author: PRENDERGAST, J.

text:
    LIMANTIA v. STATE.
    (No. 4791.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1917.)
    Indictment and Information @=>110(11) — Following Language of Statute — Disorderly House.
    A complaint and information charging the keeping of a disorderly house, where spirituous liquors were kept for sale, and prostitutes, lewd women, or. women of bad reputation were employed or kept in service, etc., was sufficient, where it followed the language of the statute (Pen. Code 1911, arts. 496 and 500) though it did not allege the names of such women, or give any other description of them.
    Appeal from El Paso County Court, at Law; Will B. Brady, Judge.
    A. Limantia was convicted of keeping a disorderly house, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for keeping a disorderly house, and the punishment prescribed by law was assessed. The complaint and information were in several counts. He was convicted under one of them only. It is unnecessary, therefore, to mention any of the others. He was convicted under that clause of articles 496 and 500, Pen. Code, which makes it an offense to keep a disorderly house where spirituous liquors are kept for sale, and prostitutes, lewd women, or women of bad reputation for chastity are employed, kept in service, etc. Appellant contends that this count in the information was insufficient, in that it did not allege the names or give any description of the women who were prostitutes, etc. The information follows the form therefor laid down by Mr. Branch in section 1066, 1 Branch’s An. P. O., and the language of the statute.

It has all the time been held that it is unnecessary, in prosecutions of this character, to give the name of the house, or describe the lot on which it is located, or identify its location, further than to allege that it is situated in the county. 1 Branch’s An. P. C. § 1067; Lowe v. State, 4 Tex. App. 34; Sprague v. State, 44 S. W. 837; Schulze v. State, 56 S. W. 918; Wilson v. State, 61 Tex. Cr. R. 628, 136 S. W. 447; Farrell v. State. 64 Tex. Cr. R. 200, 141 S. W. 535; Orth v. State, 72 Tex. Cr. 278, 161 S. W. 1199, and other authorities. These cases are in point by analogy. It was unnecessary to allege the names or give any other description other or further than to allege that they were prostitutes, etc.

There is no statement of facts or bill of exceptions in the record, and nothing else raised which can be reviewed in the absence of these.

The judgment is affirmed,


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    LONG v. STATE.
    (No. 4781.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    Contempt @=>66(1) — Review of Proceedings —Form of Remedy — “Contempt Proceeding.”
    A proceeding to punish a witness for failing to obey a subpoena is classed as a “contempt proceeding,” and the judgment is not appeal-able under Code Cr. Proc. 1911, art. 894, authorizing appeals in criminal cases upon conviction, and article 952, relative to the hearing of appeals in habeas corpus cases; the remedy being by habeas corpus.
    [Ed. Note. — For other definitions, see Words and Phrases, First and .Second Series, Contempt Proceeding.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    W. J. Long was fined for contempt in failing to obey a subpoena, and he appeals.
    Appeal dismissed.
    T. C. Hutchings, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was subpoenaed as a witness in a criminal case, and fined $50 by the court for failure "to obey the subpoena.

Thgre was a hearing, and a motion to set aside the judgment. The state, through the Assistant Attorney General, moves to dismiss the appeal on the ground that the judgment-is one from which an appeal does not lie. This proceeding is classed as a contempt proceeding from which there is no provision for appeal. The cases in which this court has jurisdiction are those in which there is a final judgment of conviction (article 894, 0. O, P.), and where on habeas corpus the relief sought is denied (article 952, O. C. P.; Ryan v. State, 198 S. W. 582, recently decided by this court). Other cases in point are Pegram v. State, 72 Tex. Cr. R. 176, 161 S. W. 458, and cases there cited, and Ex parte Degener, 30 Tex. Cr. App. 566, 17 S. W. 1111. Erorn a judgment for contempt this court can give relief only on writ of habeas corpus when the relator is in custody.

For the reasons stated, the appeal is dismissed.
      @=For otter oases see same topic and KEY-NUMBER in all Key-NumSered Digests and Indexes


author: DAVIDSON, P. J.

text:
    WHEAT v. STATE.
    (No. 4769.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    1. Criminal Law ©=1091(4) — Bill ox Exceptions— Suxetciency — Admission ox Evidence.
    A bill of exceptions reciting that defendant objected to the question and answer as to what prosecuting witness said about who cut him, for the reason that the statement was not made in defendant’s presence and not acquiesced in by him, was too indefinite, where it did not show the circumstances under which the statement was made, so as to show that it was inadmissible as part of the res gestae.
    2. Criminal Law ©=1091(3) — Bill ox Exceptions— Suxetoiency.
    A bill of exceptions reciting that the state asked defendant upon cross-examination if it was not a fact that he had tended bar in a saloon, to which question and answer defendant objected because it was irrelevant, immaterial, and prejudicial, he not having put his reputation in issue, was not sufficiently specific, where it did not show the absence of circumstances making the testimony legitimate.
    3. Criminal Law ©=31091(4) — Bill ox Exceptions — Suxeioiencx.
    General exceptions for irrelevancy and immateriality of testimony should not be sustained, where the testimony is admissible for some purpose.
    4. Criminal Law ©=>1091(3) — Bill ox Exceptions— Suxxiciency.
    A bill of exceptions reciting that defendant objected to being asked on cross-examination how many times he had been charged with theft, on the ground that there had been no direct examination with reference thereto, and that the testimony was immaterial, irrelevant, and calculated to prejudice his rights, was not sufficiently specific; the grounds of objection not being verified by the court or stated as facts.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.
    Fred Wheat was convicted of an aggravated assault and battery; and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault and battery, his punishment being assessed at a fine of $100 and one year imprisonment in the county jail.

Bill of exceptions No. 1 recites that while the witness Meek was testifying in behalf of the state, and after testifying that he was in the store of Mr. Mogab and saw the defendant and another party pass the store, heard some cursing, and afterwards the party, or prosecuting witness, returned and witness asked him whp cut him, that defendant objected to the question and answer as to what prosecuting witness said about who cut him, for the reason that said statement was not in the presence of the defendant, unknown to him, and not in any manner acquiesced in by him. The witness answered that they (referring to defendant and the party with him) stuck him with a knife. This bill is very indefinite. The testimony may have been res gestae and admissible. The bill does not show the circumstances under which it occurred, and why it was not admissible.

Another bill recites that defendant was testifying in his own behalf, and, not having filed a plea for suspension of his sentence, that the state asked the defendant upon cross-examination if it was not a fact that he had tended bar in a saloon in Ft. Worth, to which question and answer the defendant objected because it was irrelevant, immaterial, and prejudicial to the rights of defendant, in that its purpose was, and in fact its effect would he, to prejudice the rights of defendant before the jury, and that it would induce the jury to believe that he was a character who hung around saloons, and thereby reflect upon his character; he not having put his reputation in issue. The witness answered that it was true; he had tended bar in a saloon in Ft. Worth. These exceptions are very general. The facts are not shown so as to explain how this matter came. It may have been entirely legitimate, but the bill fails to show the connecting facts. General exceptions, such as the irrelevancy and immateriality of testimony, might be considered in the light of general demurrers, and being so considered, if the testimony was admissible for any purpose, the objections are not well taken, and should not be sustained if the testimony is admissible for any purpose. This seems to be an unquestioned rule. There could be circumstances and environments of the case that would make this character of testimony entirely legitimate, but the bill fails to show that these matters were or were not in the case. The bill is not sufficiently specific, and therefore does not place the matter in such light that this court can hold it objectionable.

Another bill recites that appellant was, on cross-examination, asked how many times he had been charged', with theft. The objection to this was that this had not been brought out on direct examination; was immaterial, irrelevant, and calculated to prejudice his rights before the jury. The witness replied he had been twice charged with the offense of theft. The same may be said of this as of the other matters. The grounds of objection are not verified by tbe court as facts, nor are they- stated as facts, but simply as grounds of objection, and as stated in reference to tbe other bill, they are but general demurrers, and if tbe testimony was admissible for any purpose in tbe record, tbe general demurrers will not reach tbe question. Special exceptions were not presented.

These being tbe only matters of importance in tbe case, tbe judgment will be affirmed.
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HAYS v. STATE.
    (No. 4744.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    1. Witnesses @=344(2) — Examination — Scope.
    In a prosecution for murder, it was error, after asking a witness if lie was not a deserter from the army and his reasons for such desertion, to inquire as to details, circumstances, and incidental matters.
    2. Homicibe @=5300(3) — Self-Defense — Instructions.
    In a prosecution for murder, instructions on self-defense that, if the jury believed defendant killed deceased, and that at the time of doing so deceased had made an attack on defendant, which from the manner and character caused defendant to have a reasonable expectation _ or fear of death or serious bodily injury, and acting under such reasonable expectation defendant killed deceased, they should acquit him; that a reasonable apprehension of death will excuse a party in using all necessary force to protect his fife or person, and it is not necessary that there should be actual danger, providing he act on the reasonable apprehension of danger as it appeared to him from his standpoint at the time —were erroneous as submitting the self-defense theory from the standpoint of the jury rather than from the standpoint of defendant, the charge not instructing the jury to view the transaction as defendant did at the time of the killing, but as they viewed it in light of testimony and events subsequent to the homicide.
    3. Criminal Law @=>829(5) — Self-defense-Instructions.
    'In a prosecution for murder, .an instruction that the jury should find for defendant, if deceased, by any act, induced the defendant to believe that deceased was about to inflict either death or serious bodily injury upon defendant, if at the time it reasonably appeared to defendant that it was then the intention of deceased to inflict death or serious bodily injury, that it did not matter whether the danger was real or merely colorable, if from defendant’s standpoint, taking into consideration all the circumstances, it would reasonably appear to him that he was in danger of serious bodily injury from deceased, and that under such circumstances he had a right to kill, although the danger did not in fact exist, was erroneously refused, where there were different theories made by the evidence as to the circumstances of the killing, and as to whether deceased was armed or not, and where instructions given did not cover such phases of the case.
    4. Homicide @=>309(4) — Manslaughter — Questions for Jury.
    In a prosecution for murder, "where deceased invited defendant to come outdoors with him, subsequent to a quarrel at a Christmas celebration, and made an attack upon him with a knife, the issue of manslaughter should have been submitted to the jury.
    Prendergast, J., dissenting in part.
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Thomas Hays was convicted of murder, and be appeals.
    Reversed and remanded.
    Sid Crumpton, of Texarkana, and O. B. Pirkey, of New Boston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at a term of five years in tbe penitentiary.

The application for continuance will not be discussed as it may not occur upon another trial. Tbe witnesses may be obtained by that time.

There is a bill of exceptions reserved to tbe action of tbe court with reference to the examination and cross-examination of the witness Asbill. This witness was an important one for tbe state, and testified to tbe immediate facts attending tbe killing. Upon cross-examination be was asked if be was not a deserter from tbe federal army. This was answered in tbe affirmative, as shown by tbe statement of facts, but tbe bill indicates that be was not permitted to answer, on objection of tbe state. However, later tbe state recalled and proved by him that be was a deserter, and went into quite a lengthy detail of bis enlistment, bis history in tbe army, bis desertion, tbe wbys and wherefores for his desertion, his peregrinations over the country after bis desertion, and finally his return to tbe neighborhood of where this killing occurred, in which county be seems to have enlisted' in tbe army. This matter is not discussed particularly, because it may not occur upon another trial, and ought not to, as it occurred upon this trial as shown in this record. Tbe writer is of opinion that it can be shown that be was a deserter from tbe army, and his reasons for such desertion, but tbe long details and circumstances and incidental matters contained in this bill of exceptions should not have been permitted. Tbe bill of exceptions covers quite a number of pages and a great many exceptions. These matters will not be incorporated in this opinion, nor discussed further than stated.

Exception was reserved to tbe fifth and sixth subdivisions of the charge on self-defense, and a special charge requested, which was refused. In subdivision 6 tbe court instructed tbe jury that, if they should believe tbe defendant killed deceased, Bean, and at tbe time of doing so Bean bad made an attack on defendant, which from tbe manner and character of it caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and acting under such reasonable expectation and fear tbe defendant killed deceased, they would acquit him. Tbe fifth subdivision reads thus;

“A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided ho acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is, in no event, bound to retreat in order to avoid the necessity of killing his assailant.”

It will be noticed these charges submitted the self-defense theory from the standpoint of the jury rather than from the standpoint of the defendant, for that body was instructed if they should believe at the time of so doing the deceased had made an attack on the defendant, which from the manner and character of it caused the defendant to have a reasonable expectation or fear of death, etc. The charge should have instructed the jury not as they viewed it in the light of the testimony and the events subsequent to the homicide, but as defendant viewed it at the time of the killing.

The charge requested by appellant to meet what he deemed to be defects in the other paragraph of the court’s charge is as follows:

“You are charged the law to be that, should you find from the evidence that at the time the defendant killed the deceased the deceased, by any act done, or by words coupled with such acts, induced the defendant to believe that he (the deceased) was then in the act, or was about to inflict either death or serious bodily injury upon the defendant, and you further believe from the evidence that at the time it reasonably appeared to the defendant that it was then the intention of the deceased to inflict death or serious bodily injury upon the defendant, then, in such case, the defendant under such circumstances shot and killed the deceased, he would be justifiable, and you will find him not guilty. /You are further charged that, in such case, and under such circumstances, it matters not whether the danger was real, whether in fact it existed, or whether it was merely colorable, if, from the defendant’s standpoint, taking into consideration all the circumstances of the case, it would reasonably appear to him that he was in danger of death, or serious bodily injury from the deceased, he had the right to kill him, although in fact such danger did not exist.”

This charge should have been given. The court’s charge was not full enough. There were different theories made by the evidence, as is usual in such cases. There had been a previous difficulty between deceased and defendant some years prior to this transaction. On the' night of the homicide the deceased, Bean, and defendant were at a Christmas tree. Defendant went, at the request of parties, to take part in making music for the occasion with a string band, he being a performer on the guitar. Defendant himself did not own the guitar. Upon reaching the scene of the festivities it was discovered that strings could not be obtained for the instruments, and this part of the performance did not occur. The deceased was drinking. Just exactly the state of intoxication is not clear from the testimony. He made threats on the particular night against the life of appellant, and requested a witness named Smith to get defendant out of the house so he might kill him. A brother of appellant was present. These matters were known to several, but nobody would induce defendant to leave the house, and finally deceased himself went to and requested appellant to go out of the house with him. Appellant followed deceased to the door which opened upon a gallery, and declined to go farther. . Deceased insisted, but appellant declined. Up to this point there seems but little controversy or conflict in the testimony. The gallery was six or seven feet in width. Apxjellant was standing outside the door on the gallery. When deceased reached the steps he turned, when defendant declined to go farther. He had one foot on the step and one on the floor of the gallery. Some language occurred which is not necessary here to repeat, but deceased started at him with a knife in a striking attitude and the shooting occurred. Another theory was thatv deceased did not have a knife, and did not in fact make an attack or attempt to make an attack on appellant. There is other testimony to the effect that deceased started towards appellant as if to attack him. This phase does not mention the knife. So there seem to be three theories: One was that deceased was armed with a knife and making an attack, cutting at appellant; one that he did not make any attack and had no knife; and the other was he attempted to reach defendant, and the witnesses saw no knife. There was a knife, however, found on the ground an hour or two after the homicide, near where deceased fell. This is a sufficient statement. Under these theories, the court’s charge on self-defense was too restrictive, and the requested charge asked by appellant should have been .given. These matters are timely and properly presented in the record.

Appellant also contends, under this state of case, that the issue of manslaughter was raised. We are of opinion this contention is correct, and that upon another trial this phase of the law should be given in charge to the jury:

For the reasons indicated the judgment is reversed, and the cause remanded.

'PRENDERGAST, J. I think manslaughter was not in this case.
      @=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GREEN v. STATE.
    (No. 4756.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    1. Embezzlement <®=^30 — Prosecution — Indictment — Sufficiency.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 457, providing for the allegation in indictments of the ownership' of property, an indictment charging embezzlement of money belonging to the “Mesquite Camp No. 575, Woodmen of the World, a fraternal, order and society,” is insufficient, the name showing that the owner was not a natural person, and the status of the owner not being averred.
    2. CRIMINAL Law <®=o419, 420(12), 1169(1) — Evidence — Hearsay.
    In a prosecution for embezzlement from an alleged fraternal order, introduction in evidence of the minutes of the order, showing accused’s expulsion, and that the order had offered a reward for his arrest, was error, the resolution having been passed in the absence of accused; for. such evidence was hearsay, and was prejudicial, in that it involved the opinion and conclusion of the members of the order as to accused’s guilt.
    Appeal from District Court, Foard County; J. A. Nabers, Judge.
    C. W. Green was convicted of embezzlement, and hd appeals.
    Reversed, and cause dismissed.
    Robert Cole, of Crowell, and D. J. Brook-reson, of Benjamin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a prosecution for embezzlement founded upon a count in the indictment which charged appellant embezzled money belonging to Mesquite Camp No. 575, Woodmen of the World, a fraternal order and society.

The sufficiency of the indictment is challenged upon the proposition that ownership is not sufficiently alleged; that is to say, the charging of the ownership in Mesquite Camp No. 575, Woodmen of the World, a fraternal order and society, is not a sufficient compliance with the law which requires the indictment to state the name of the owner of the personal property embezzled. In indictments for theft and embezzlement it is essential that the name of the owner, if known, shall be stated. C. C. P. art. 457, and notes; Vernon’s Crim. Stats, vol. 2, p. 206; Leonard v. State, 7 Tex. App. 417; Riley v. State, 32 Tex. 763; Turner v. State, 32 S. W. 767. Where the allegation of ownership is laid in other than a natural person, it is essential that it show whether the owner is a corporation or not. White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879; Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1097; Roby v. State, 41 Tex. Cr. R. 152, 51 S. W. 1115; State v. Horned, 178 Mo. 59, 76 S. W. 953; State v. Clark, 223 Mo. 48,122 S. W. 665, 18 Ann. Cas. 1120; Maddox v. State, 14 Tex. App. 447; Wallace v. State, 63 Ill. 451; Nasets v. State, 32 S. W. 698; Martin v. State, 5 S. W. 859.

It is manifest that in the instant case the ownership is not laid in a natural person. The name given may be that of a corporation or of some other form of organization or association. We have a statute (article 4827, Revised Statutes) defining fraternal beneficiary associations, and recognizing a form of government therefor. The failure to classify by allegation the owner of the property, and the fact that the alleged name of the owner negatives the idea of a natural person brings about an uncertainty which is fatal to the indictment. It furnishes by averment no basis for proof of want of consent, and renders the indictment in this ease fatally defective.

There are other errors which are not likely to occur upon another trial, and are therefore not discussed. 'The introduction in evidence of the minutes of the lodge of Mesquite Camp No. 575, Woodmen of the World, showing that appellant had been expelled from the lodge, and also showing that the lodge had offered a reward for his arrest, was inadmissible, and was such an error as would have necessitated a reversal of the case. This resolution was passed in the absence of the defendant, and was obnoxious to the rule against hearsay evidence, and harmful in that it involved the opinion and conclusion of the persons present at the. meeting that appellant was guilty. The case of Tippens v. State, 43 S. W. 1000, is parallel, in that it involved the introduction of proof of the expulsion of the appellant in that case from church. Similar facts were also passed upon in Manley’s Case, 69 Tex. Cr. R. 169,153 S. W. 1138, in which proof was introduced that the appellant was expelled from the Masonic Lodge, and reasons therefor given.

Because of the insufficiency of the indictment, the judgment of the lower court is reversed, and the cause dismissed.
      (ge^sFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    LOVE v. STATE.
    (No. 4765.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    1. Burglary <®=^41(6) — Defendant as Person Who Broke in — Sufficiency oe Evidence.
    In a prosecution for burglary, evidence held to show that defendant was the person who broke the glass out of a store door and entered it.
    2. Burglary — Intent to Steal — Question for Jury.
    Whether or not defendant’s intention was to steal when he broke and entered is for the jury under the circumstances.
    3. Burglary <⅝=>41(3)— Intent to Steal— Sufficiency of Evidence.
    In a prosecution for burglary by breaking and entering a store with intent to steal, evidence held to justify the jury in finding that defendant’s intention in unlawfully breaking and entering was to steal.
    4. Burglary ⅞=32 — Breaking with Intent to Steal.
    Defendant was guilty of burglary in unlawfully breaking and entering a store or' house with intent to steal, though the state does not prove that he actually stole anything.
    5. Criminal Law <®=o44S(8) — Evidence — Speculation of Witnesses.
    . In a prosecution for burglary, the court properly excluded testimony by a witness that he and the deputy sheriff discussed between them how blood stains could have gotten on the right-hand side of the tracks, which they were following away from the store burglarized, both the witnesses having testified as to the fact, which the state had admitted, so that speculation of the witnesses was immaterial. .
    6. Criminal Law <s=^784(1) — Trial—Charge on Circumstantial Evidence.
    Where the evidence establishing defendant’s guilt of burglary was circumstantial, it was necessary for the court to give a proper charge on the subject of circumstantial evidence.
    7. Criminal Law ⅞=»784(5) — Charge on Circumstantial Evidence — Propriety.
    A charge on circumstantial evidence, which did not state that each circumstance necessary to the conclusion of defendant’s guilt must be proven by competent evidence was proper; the last paragraph of the charge expressly telling the jury that defendant was presumed to be innocent until his guilt was proved by competent evidence beyond a reasonable doubt.
    8. Criminal Law <®=o784(4) — Charge on Circumstantial Evidence — Sufficiency.
    The charge that in order to convict on circumstantial evidence the state must show beyond a reasonable doubt each circumstance necessary to the conclusion of defendant’s guilt, which circumstances must be consistent with each other, conclusive, and exclude every reasonable hypothesis of defendant’s innocence, etc., was sufficient, though somewhat terse.
    Appeal from District Court, Midland County; Chas. Gibbs, Judge.
    Ed Love was convicted of burglary, and he appeals.
    Judgment affirmed.
    Wright & Harris, of San Angelo, and H. A. Leaverton, of Midland, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

From a conviction of burglary with the lowest punishment assessed, this appeal is prosecuted.

The uncontradicted testimony shows that on the night of January 15, 1917, the storehouse of Mr. Rohlfing, in Midland, was broken into. The glass in the door was broken, the Yale lock from the inside then turned, and the door opened. Whoever broke the glass cut his hand. Blood was found on the, doorlock on the inside and drops of blood on the floor from there down into the store to the safe, and about the safe, and then back from there to the door and on the outside.

The store door was discovered standing open the next morning about, or just before, daylight. Mr. Rohlfing was phoned for, and as soon as he could go down he discovered that the glass of his door had been broken and entrance effected that way, and the drops of blood found in the store back and forth as indicated. These drops of blood in the store and about the safe were proven by witnesses who at the time examined them. The officers then tracked this blood from the store door outside, telling the route, until they came to the room in a negro boarding house where they found appellant. They found that the thumb on his left hand had been recently cut, was still bleeding, and they also found blood on various articles in the room where they found him. It had snowed a day or two before this. They found tracks from the store door around in the snow and oh the ground around where these drops of blood appeared clear to the house where they found appellant. They took his shoes off, measured them in the tracks, and they fitted exactly. No other tracks than these were found at the locations indicated except appellant’s, when they were first traced. There can be no sort of doubt from the uncontradicted testimony that appellant is the person who broke the glass out of the store door and entered the store. The evidence would exclude the idea that it was any other than appellant.

The store of Mr. Rohlfing was a racket store. He testified, in substance, that when he first went down and found that his store had been broken into he looked to see if any of his goods were missing, and that he failed to discover that any of them were missing.

The indictment alleged that said house was broken into and entered with the intent by appellant to steal. He contends that because the evidence fails to show he stole anything, when he had the opportunity, that the evidence is insufficient to show that he committed a burglary, and that the court erred in submitting the case to the jury authorizing his conviction for burglary. Whether or not his intention was to steal at the time he broke and entered the house is a question of fact to be solved by the jury from the circumstances and from all the testimony. The law on the subject is well settled against appellant’s contention. Franco v. State, 42 Tex. 276; Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756; Mullens v. State, 35 Tex. Cr. R. 149, 32 S. W. 691; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406; Moore v. State, 52 Tex. Cr. R. 364, 107 S. W. 355; Williams v. State, 65 Tex. Cr. R. 86, 143 S. W. 634; Black v. State, 73 Tex. Cr. R. 476, 165 S. W. 571; and other cases..

This court, by Judge Davidson, in the Alexander Case, supra, held:

“The intent with which the defendant entered the house is a fact for the jury, to be gathered from the circumstances attending the entry, and prior and subsequent thereto. The Supreme-Court of California, in a case similar to the one in hand, said: ‘Though there was no direct evidence of the intent, it might be inferred from the surrounding circumstances. The weight to-be given to these was a question properly left to the jury; and when a person enters a building through a window at a late hour of the-night, after the lights are extinguished, and no explanation is given of his intent, it may well be inferred that his purpose was to commit larceny, such being the usual intent under such circumstances.’ People v. Soto, 53 Cal. 415; Painter v. State, 26 Tex. App. 454 [9 S. W. 774]; Steadman v. State [81 Ga. 736], 8 S. E, 420; 11 Crim. Law Mag. 410; 2 Archb. Crim. Prac. & Pl. p. 1107. Mr. Archbold says: ‘Even, the very fact of breaking and entering in the nighttime raises the presumption- that it is done with the intent of stealing.’ ”

This holding was repeated by Judge Davidson in the said Mullens Case, supra.

In' the Smith Case, supra; the same contention in effect was made as in this case. This court, through Judge Henderson, therein held:

“The facts on this point are meager. _ The prosecutor says he kept no valuables in his room, only his clothing, bedding, and furniture; that he also kept a six-shooter in his room, which, immediately after the burglary, he discovered was gone, but he testified that this pistol may have been taken before that night, as he did not remember to have seen it for some days prior to the burglary. What other purpose than to steal appellant had in going into the room is not suggested by any evidence, and under the authorities as we understand them the evidence of an intent to steal in a burglary ease may be slight. See Burke v. State, 5 Tex. App. 74; Alexander v. State, 31 Tex. Cr. R. 362 [20 S. W. 756]; and Mullens v. State, 35 Tex. Cr. R. 140 [32 S. W. 691]. In this case, though evidence of the specific intent to steal was slight, yet we believe, under the authorities, it was sufficient.”

This court again in the Moore Case, supra, in an opinion by Judge Bamsey, discussed this question, and held:

■ “We must, in a case like this, have some respect for the verdict of the jury. They are essentially the arbiters under certain restrictions of all questions of fact; both their integrity and intelligence are vouched for by their selection, without objection by both counsel for the state and the defendant. Again, the verdict has received the approval of the judge of the court trying the case; he had the opportunity of seeing the witnesses, and had better opportunities than we have to judge in the first instance, both in respect to their credibility and the weight to be given to their testimony. He is -something more than a mere disinterested moderator of a forensic contest. By law he is charged with the responsibility of deciding on the sufficiency of the evidence which the jury has acted on to support their verdict. Yielding the respect which the law requires to the verdict of the jury and the action of the court, we hold against the contention of appellant that the verdict is unsupported, in that there was not sufficient evidence of an intent to commit theft, but that, judged in the light of all the circumstances, the verdict of the jury is supported by the evidence. Alexander v. State, 31 Tex. Cr. R. 359 [20 S. W. 756]; Painter v. State, 26 Tex. App. 454 [9 S. W. 774]; People v. Soto, 53 Cal. 415.”

The evidence herein, as stated, without doubt, shows an unlawful breaking and entry by appellant. As held in the cases above cited, no other reasonable deduction can be drawn than that he entered it at the time for the purpose to steal. No other purpose than this is indicated or suggested by the whole testimony. What scared him off or caused him to change the purpose of his unlawful breaking and entrance is not disclosed. The testimony strongly indicates that it was for the purpose of rifling the safe and stealing the money that was therein. The testimony shows the safe was locked. Doubtless he found this out upon testing the door to the safe. The blood found upon the surface of the shelf on the safe would indicate that he placed his left hand, bleeding, there while he tested the door or lock with his right hand. Upon the whole, the evidence was sufficient from which the jury could deduct that his intention in unlawfully breaking and entering the house was to steal. It is not nec-essary to prove he actually stole something. The court did not err in submitting the question to the jury in his charge, and the evidence was sufficient to sustain the verdict.

The court did not err in excluding the proffered testimony by Jim Lee to the effect that he and the deputy sheriff, John Boberts, discussed between them how blood stains could have gotten on the right-hand side of the tracks which they were following away from said store, in view of the court’s qualification of appellant’s bill stating that:

“Both of these witnesses testified that the-blood stains were on the right-hand side of the tracks for a short distance from the door of the building broken into, the state admitting that fact, and speculation between the witnesses and conversations as to how it got there is immaterial.”

The court, among other instructions, charged the jury as follows:

“In order to convict upon circumstantial evidence the state must show beyond a reasonable doubt:

“(a) Each circumstance necessary to the conclusion of defendant’s guilt.
“(b) They must be consistent with each other and with the guilt of defendant.
“(c) They must be of a conclusive nature, and they must be inconsistent and incompatible with the theory of defendant’s innocence.
“(d) They must exclude every reasonable hypothesis of defendant’s innocence.
“And unless the circumstances in evidence show the defendant’s guilt to a reasonable and moral certainty, you will acquit him.
“The defendant is presumed to be innocent until his guilt is proved by competent evidence beyond a reasonable doubt.”

Appellant objected to this charge and to some particular paragraphs of it.

The evidence establishing appellant’s guilt was wholly circumstantial; hence it was necessary for the court to give a proper charge on this subject. The decisions of this court are many and uniform to this effect, as laid down by Judge White in his Ann. O. O. P. § 813, subd. 5:

“There is no prescribed formula for a charge on circumstantial evidence. Loggins v. State, 8 Tex. App. 434; Hubby v. State, 8 Tex. App. 597. If the ideas conveyed are correct, and so-expressed as to be understood by the jury, the charge is sufficient. Chitister v. State, 33 Tex. Cr. B. 635, 28 ,S. W. 683; Ray v. State, 13 Tex. App. 51; Taylor v. State, 9 Tex. App. 100; Rye v. State, 8 Tex. App. 153; Simms v. State, 8 Tex. App. 230.” Coffman v. State, 73 Tex. Cr. R. 300, 165 S. W. 939.

One of appellant’s objections is that said charge nowhere states that each circumstance necessary to the conclusion of defendant’s guilt must be proven by competent evidence. This objection is completely met by what was held in Taylor v. State, 9 Tex. App. 104, as follows:

"In such case each fact in a chain of facts from which the main fact in issue is to be inferred must, it is true, be established by competent evidence, which is merely another way of stating the proposition that each fact in such chain must be established in proof by evidence; for any other evidence save competent evidence is, in legal contemplation, no evidence. But these isolated facts need not be proved by the same weight and force of evidence as if each one were the main fact in issue; neither need all the facts in evidence before the jury be consistent with each other and the main fact to be proved. The only rule which can be regarded as of practical application in. the administration of the-law is that the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury, and to produce in their minds a moral certainty of the guilt of the prisoner, to the exclusion of every reasonable doubt. When a jury is substantially informed of this requisite, as was done in this case, the law is satisfied. Brown v. State, 23 Tex. 195.”

Besides, the last paragraph of the charge quoted above expressly told the jury that appellant was presumed to be innocent until his guilt was proved by competent evidence beyond a reasonable doubt.

Another objection was to paragraph (b), to the effect that it should have read:

“All the facts necessary to the conclusion must be consistent with each other and the main fact sought to be proved.”

The whole charge on this subject, taken together, meets appellant’s objection. Upon the whole, while the charge quoted is somewhat terse, yet it meets all of the requirements of a charge on circumstantial evidence.

The judgment is affirmed.
      ©a^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. PRENDERGAST, J.

text:
    HOLLINGSWORTH v. STATE.
    (No. 4531.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    Dissenting Opinion, Dec. 31, 1917.)
    1. Criminal Law <@=>726 — Retaliatory Argument.
    Where alleged improper argüment of the state’s counsel was occasioned by an improper argument of defendant’s counsel, defendant cannot complain.
    2. Criminal Law <@=>726 — Improper Argument — Invitation.
    In a prosecution for incest committed with defendant’s niece, where letters from defendant to her and from her to him were in evidence, none of which specifically responded to his letter inquiring what was the matter or informed him that she had given birth to a child, his counsel, by commenting upon the facts proven, did not invite the state’s counsel to discuss her alleged letter to defendant stating the birth of a child, but which was not in evidence.
    3. Criminal-Law <@=3720(7) — Argument—Inference prom Evidence.
    Where numerous letters from defendant and his niece were in evidence, none of them stating that she had given birth to a child or was about to do so, or suggesting the existence of such letter from her, the inference that she had written and that defendant had received such a letter was not justified.
    4. Criminal Law <@=3721½ (2) — Argument-Absence op Admissible Evidence.
    The absence of inadmissible evidence that defendant had received a letter from his niece informing him that she had given birth of a child could not be used in argument as evidence of his guilt.
    5. Criminal Law <@=31171(3) — Argument—Inadmissible Evidence — Eppect.
    The argument of the state’s counsel, with a paper before him, that the niece had written to defendant a letter informing him that she had given birth to a child, which he had suppressed, so that it was not available to the state as evidence, thus bringing new and damaging matter to the jury by way of innuendo, and not by direct statement or by way of proof at the trial, required setting aside a verdict of guilty.
    Prendergast, J., dissenting.
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Alfred Hollingsworth was "convicted of incest, and he appeals.
    Reversed, and cause remanded.
    See, also, 182 S. W. 465; 189 S. W. 488.
    D. W. Odell, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of incest with Cassie Dunn, Ms niece. The act of intercourse was sharply controverted. Cassie Dunn, who was a member of the family of the • appellant, on the trial testified that she gave birth to a child on the 29th day of October, 1914; that appellant was the father of the child. In her testimony it was developed that on the first trial of appellant she denied the intercourse with appellant, and testified that Henry Dollins was the father of her child; that on the second trial she again denied intercourse with appellant, and denied that the other named by her on the first trial was the father of her child, and declined to state who was, and on the trial from which this appeal is prosecuted she testified, as above stated, to a series of acts of intercourse with appellant, and that he was her child’s father. A number of letters were introduced in evidence written by Cassie Dunn to appellant, and letters written by the sister of Cassie Dunn to her, which letters were dictated by-appellant. One of the letters so written or dictated by him bore date 22d day of November, 1914. There was no reply to this letter introduced in evidence.

One of the bills of exception discloses the following procedure:

“While the district attorney was presenting to the jury his closing argument on behalf of the state, he used the following language and argument, to wit: ‘Mr. Sadler stated to you in his argument that you might read all the letters written by Cassie Dunn to- the defendant and all the letters w'ritten by the defendant to Cassie Dunn in evidence before you, and you would not find in any of the letters where Cassie Dunn had, in apswer to the defendant’s request to know what was the matter with her, ever stated what was the matter with her, or had ever told him that she had given birth to a child. Now, gentlemen, in the letter written by the defendant on November 22, 1914, the defendant said: “An I am the, same fellow when you saw me last and I wait to noe now Cassie you want to come home, and I want to know what is the matter with you, and just as soon as I get the news I will send you the money to come on and noebody never has read your letters aild won’t. Your Pa has wrote some letters here and I want to noe if you are alright and I want to noe just what is the matter.” And counsel for the defendant says that she never told the defendant what was the matter with her. Gentlemen of the jury, where did these letters come from? The letters written by Cassie Dunn to the defendant came from his possession. Have we all of the letters? Now suppose that on November 24, 1914, Cassie Dunn answered the letter of the defendant, and suppose she said to him in answer to that letter: “I don’t want to tell you a lie, and I will not if the truth kills me. You know what you thought was the matter with me. It was so. It came the 29th of last month. It is a boy and alright; has the bright eyes. I intend to bring it to Ft. Worth to one of the rescue homes. You know it was nobody else but you, but I will die before I will tell it. I have told Pa a story. Never told you any story. You may think I am not as good as I was. I know I am to blame for it. So you see what I wanted with the money. It was for Bailey. He charged me fifteen dollars, so you see that would.be enough for me to go to Ft. Worth. I can’t help what Pa write down there. He has done everything he can to get me to tell him. I’ll die first. I told you I would not tell, and I have not yet. Do as you like, cast me off if you want to, but I’ll never tell it. I spent my money for fruit and the rest for the boy, some close for the boy, and that is why I wanted you to come to meet me. I wanted you to see him. Don’t let Fannie read this.” Now, gentlemen, Cassie might have written such letter. If she did write such a letter, we haven’t got that letter. The defendant didn’t give us that letter.’ While the district attorney was giving the contents of this supposed letter, he had lying before him on the table, in the presence and sight of the jury, purported copy of a letter supposed to have been written by Cassie Dunn to the defendant which had not been offered in evidence, and which said copy had been held in a previous appeal of this case not to be admissible in evidence, and he was leaning over quoting from said purported copy in the presence and sight of the jury, and quoted and repeated the language of the supposed letter as it was contained in the said purported copy which had not been introduced in evidence. Thereupon counsel for the defendant, during the recital by the district attorney of the contents of said supposed letter, called the attention of the court to the fact that the district attorney was reading to the jury the contents of the said copy of the said supposed letter and objected thereto, and the court did not stop counsel for the state, but permitted said counsel to continue his statement and to read from said copy of said supposed letter to the jury, and to continue his said argument. And counsel for the defendant objected thereto, and stated to the court that said copy was not in evidence; that counsel was out of the record, and was presenting to the jury evidence which had not been admitted under the rulings of the court, and was placing before the jury the contents of the copy of the supposed letter which had not been offered in evidence and which was not evidence before the jury.”

After excepting to the refusal of the court to sustain an objection to the argument mentioned, the appellant in due time presented a special charge requesting that it be withdrawn. ■ In qualifying the bill the court says:

“It is proper to state that such argument was in reply to argument of the defendant’s attorney and was inspired and incited by said argument. Furthermore, the letter first referred to in the bill was one written by the defendant, and was introduced in evidence and before the jury, and I considered it a legitimate subject of comment. The letter so introduced was one of the letters brought into court by the defendant and filed by him in connection with his motion for new trial after his first conviction and claimed by him to be newly discovered evidence, and essential to his defense, as the record of this case on the first appeal will show”

—and further that the district attorney did not claim that such letter had in fact been written, but stated that, if such letter had been written, he did not have it, and no such letter had been brought into court by the defendant, and that it was not in the state’s possession, and that in the opinion of the court the argument was not an unauthorized deduction or supposition.

The supposed) letter copied in the bill is in the exact verbiage of the purported copy of a letter which was introduced in evidence by the state on a previous trial of this case, and which is copied in the report of the case in 182 S. W. 479, and which this court in that case held to be inadmissible. See opinion on motion for rehearing, Hollingsworth v. State, 182 S. W. 481. The reasons for excluding the letter are fully stated in the opinion mentioned. A comparison of the composition of the supposed letter with that of other letters of the witness, which were before the jury on this trial, develops a marked similarity.

If the argument of state’s counsel was permissible under the rule of invited argument, that is, occasioned by an improper argument of counsel for the appellant, no just complaint can be founded upon it. Baker v. State, 4 Tex. App. 229; Lubbock v. State, 66 Tex. Cr. R. 309,147 S. W. 258; Branch’s Ann. P. C. p. 205, § 363, and cases cited. If, however, the argument of appellant’s counsel was couched in proper terms and confined to the evidence adduced on the trial, the state’s counsel would not be justified in detailing facts relevant to the e¿se not in evidence in making his response. It appears from the record that the letter written by the appellant dated the 22d of November, 1914, and quoted in the bill, was introduced in evidence by the state, as were the numerous other letters from the appellant and from Cassie Dunn in evidence. None of them, however, were in specific response to the letter from appellant quoted, and none of them informing appellant that the witness had given birth to a child. In stating that none of the letters in evidence answered the one from appellant quoted, or told the appellant of the birth of the child, counsel for the appellant appears to have been within the record. On the former trial of the case a purported copy of the supposed letter from Oassie Dunn was proved by her and introduced in evidence. The receipt of it on that trial was denied by appellant. On the trial from which this appeal is prosecuted there is disclosed neither by the bill of exceptions nor statement of facts any evidence with reference to the supposed letter or copy thereof. There is- a statement in Oassie Dunn’s testimony that she identifies a paper as a copy of a letter which she wrote appellant, but the paper is not described or its contents) given, nor was it introduced in evidence, nor offered in evidence so far as the record discloses. This is the only suggestion that we find in the entire record of any reference to the copy of any letter. It is manifest, therefore, that there is an entire absence of evidence that the witness Oassie Dunn wrote or sent; or that appellant received the supposed letter mentioned in the bill of exceptions. The evidence in the case as disclosed by the record stands as though there had never been a claim that such a letter was or had been in existence. These being the circumstances, we fail to discern a foothold for the contention that appellant’s counsel, by reciting and commenting upon the facts that were proved, invited the state to discuss facts which were not in evidence.

If the argument of the state’s counsel was, as suggested by the court, a legitimate inference or deduction from the evidence, the complaint of it is withouti foundation. In evidence, as above stated, were numerous letters from the appellant and the witness, none of them containing a statement that she had given birth to a child, or was about to do so, and, as before stated, there was an absence of suggestion of the existence of the supposed letter quoted in the bill. Do these facts justify an inference or deduction that the witness wrote and appellant received the supposed letter? If the inquiry in the letter from appellant justifies an inference! or deduction that the witness replied to it, and that appellant received the reply, does it follow that the reply was within the terms quoted in the bill? We think these queries must be answered in the negative. Assuming them to be answered in the affirmative, the argument still bears the color of suggesting the further inference that appellant had received and suppressed the letter, and that by this act deprived the state of the use of legitimate evidence. The evidence, however, was illegitimate under the rulings of this court in this case on the former hearing. 182 S. W. 479. Being illegitimate and inadmissible, its absence could not lawfully be used in argument as evidence of appellant’s guilt. Millner v. State, 72 Tex. Cr. R. 45, 162 S. W. 355; Landers v. State, 63 S. W. 557.

The jury doubtless believed from the argument, and not from the evidence adduced on the trial, that the witness Oassie Dunn had claimed to have written appellant a letter of the tenor of that quoted in the supposition; that the district attorney had before him a copy of this purported letter; that, producing other letters in the correspondence between himself and Oassie Dunn, appellant had withheld andl suppressed the one in question; and that but for this suppression it would be available to the state as evidence bearing upon appellant’s guilt. That these new and, damaging facts camei to the knowledge; of the jury by way of innuendo, and not by direct statement, does not neutralize their sting. However clothed, they bring to the jury facts not proved, evidence not admissible, which, entering into the verdict, destroys it. Bullington v. State, 180 S. W. 681; Vick v. State, 71 Tex. Cr. R. 62,159 S. W. 50; Faulkner v. State, 189 S. W. 1079; Moran v. Baldi, 71 N. H. 490, 53 Atl. 307; Rudd v. Rounds, 64 Vt. 432, 25 Atl. 439. Nor does it allow the state by argument to give to the jury damaging evidence not proved on the trial. Branch’s Ann. P. C. p. 205; Stephens v. State, 20 Tex. App. 255; Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Rodriguez v. State, 58 Tex. Cr. R. 275, 125 S. W. 403; Battles v. State, 53 Tex. Cr. R. 202, 109 S. W. 195; Hatch v. State, 8 Tex. App. 420, 34 Am. Rep. 751; 38 Cyc. 1494-1496, subdiv. 14; Railway v. Harrington, 44 Tex. Civ. App. 386, 98 S. W. 653.

In Harris v. State, 72 Tex. Cr. R. 120, 161 S. W. 125, after certain letters had been excluded in developing.the evidence, the state’s attorney said, “If we had been allowed to introduce these letters in evidence, we would have shown his guilt,” and this was held error so prejudicial that it could not have been cured by withdrawal by special charge.

The objections to the correspondence between the appellant and the witness Oassie Dunn which was admitted in evidence were, we think, not well taken. This correspondence consisted of a number of letters written by Oassie Dunn to appellant and letters written for the appellant by the sister of Oassie Dunn. They were not used to prove any recital of facts, but to show the intimate relation of the parties, and contained no statement of fact having an important bearing upon the case. There was evidence in the case to the effect that the denial by Oassie Dunn of intercourse with appellant on previous trials was influenced by solicitation of the appellant, and in view of this testimony and some other of a similar nature we regard the letters showing the relation of the parties were not subject to the objections. Some of the letters coming from appellant were not signed by him, and it appears in dictating them he dictated the substance rather than the details. The fact of intercourse was a controverted one, and we think the developments such as to render the evidence of a series of acts of intercourse admissible. Bradshaw v. State, 198 S. W. 942, recently decided.

Because we think there was prejudicial error in permitting and refusing to withdraw the statement made by the state’s attorney in his argument, the judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). The second sentence in Judge MORROW’S opinion herein is: “The act of intercourse was sharply controverted.” In this I think he is mistaken. On the contrary, the evidence, both positive and circumstantial, establishes the intercourse by appellant with his niece, without any shadow of doubt. He and no other for Mm denied it. He did not testify at all. He merely pleaded “not guilty.” Three juries of 12 fair and impartial men each time have three times found him guilty “beyond a reasonable doubt.” An able, fair, experienced, and upright judge has so held three times. There can be no doubt of his guilt in fact or in law.

The letter by appellant to Oassie Dunn, or copy of it, as proven upon the first trial, and copied in the opinion on the first appeal (182 S. W. 479), was clearly admissible, as at first unanimously held in the original opinion on that appeal, and as further demonstrated by authority and reason in my dissenting opinion on that appeal (182 S. W. 485 et seq.). Doubtless in deference to the majority opinion finally on that appeal, that letter was not offered in evidence on this third trial. But, even if it was not, the argument of the state’s attorney in supposing such a letter does not present reversible error.

It was in direct response to, and invited by, appellant’s attorney’s argument and taunt of the state’s attorney, as shown by the bill as given by Judge MORROW in his opinion herein, and the state’s attorney could well suppose, and so argue to the jury, that she wrote such a letter to him.

Justice, though long delayed, has been meted out to appellant herein, and this judgment should be affirmed, not reversed.
      <§=?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MARTINEZ v. STATE.
    (No. 4777.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    Criminal Law <§=>1094— Appeal — Record— Affirmance.
    Where the indictment for burglary appeared regular, and the instructions were not complained of by any bill of exceptions, and the record contains neither a statement of facts nor a bill of exceptions, nothing is presented for review, and the judgment of the lower court will be affirmed.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Reuben Martinez was convicted of burglary, and he appeals.'
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

TMs appeal is from a conviction for burglary, with a punishment assessed at five years’ confinement in the penitentiary.

The indictment appears regular. The case was tried before a jury which was instructed by the court in a charge not complained of by any bill of exceptions. The record contains neither a statement of facts nor bill of exceptions. In this state of the record there is nothing presented which this court can review.

The judgment of the lower court is therefore affirmed.


text:
    KRUEGER v. STATE.
    (No. 4618.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    1. Banks and Banking <S=>4 — Swindling by Giving Check Without Funds — Statute — Validity.
    Pen. Code 1911, art. 1422, subd. 4, as added by Acts 83d Leg! c. 98 (Vernon’s Ann. Pen. Code 191Ó, art. 1422, subd. 4), including in swindling defined by article 1421 the obtaining of money or other valuable thing with intent to defraud by the giving or drawing of any check, draft, or order upon any bank, etc., with which such person giving or drawing said check, draft, or order has not at the time of the giving or drawing or at the time when in the ordinary course of business such check, draft, or order would be presented to the drawee for payment, sufficient funds to pay the same and no good reason to believe that such check, draft, or order will be paid, is not invalid because it makes a condition subsequent to the act of drawing the check or draft a necessary element in order to convict.
    2. Criminal Law <@=513 — Swindling by Giving Check Without FuStds — Statute-Validity.
    Such provision is not void for uncertainty in that it does not define or prescribe what shall constitute a “good reason,” direct or prescribe who shall determine, the court or the jury, what is a “good reason,” or that a jury in arriving at whether a good reason exists shall view the case from accused’s standpoint.
    3. Banks and Banking <§=>4 — Swindling by Giving Check Without Funds — Statute — Validity.
    Neither is it void in that it subjects the liberties of accused to the caprice of different juries who might adopt different views, rather than determine his liberties according to law.
    4. Constitutional Law <@s=258 — Due Process of Law — Swindling.
    Nor does it deprive accused of liberty without due process of law.
    5. Banks and Banking <g=>21 — Swindling By Giving Check Without Funds — Evidence Admissible.
    In prosecution for swindling by the giving of a draft contrary to Pen. Code 1911, art. 1421, and article 1422, subd. 4, as added by Acts-33d Leg. c. 98 (Vernon’s Ann. Pen. Code 1916, art. 1422, subd. 4), although the indictment did not allege that defendant and another were partners, testimony that the amount of the draft drawn by defendant was deposited to the credit of defendant and another, was admissible; there being evidence that defendant stated in making the deposit that he and such person were partners.
    6. Corporations <§=>32(1) — Presumption of Corporate Existence.
    That defendant made a deposit to the credit of himself and another would raise no presumption that defendant and such other person were a corporation.
    Appeal from Nolan County Court; Jno. H. Cochran, Jr., Judge.
    Alvin Krueger was convicted of swindling, and appeals.
    Affirmed.
    Grisham & Grisham, of Sweetwater, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant has appealed from a conviction for swindling, a misdemeanor. So far as the offense in this case is concerned, the statute defines swindling as the acquisition of any personal or movable property or money by means of some false or deceitful pretense or device or fraudulent representation with intent to appropriate the same to the use of the party so acquiring. Article 1421, P. 0.

Before Acts 1913, p. 184, the next article prescribed certain wrongful acts which were included in the above definition of swindling. By said act of 1913 this subdivision was added to said article 1422 (Vernon’s Ann. Pen. Code 1916, art. 1422, subd. 4), to wit:

“The obtaining by any person of any money or other thing of value with intent to defraud by the giving or drawing of any check, draft or order upon any bank, person, firm or corporation, with which or with whom such person giving or drawing said check, draft or order, has not at the time of the giving or drawing of such check, draft or order, or at the time when in the ordinary course of business such cheek, draft or order would be presented to the drawee for payment, sufficient funds to pay same, and no good reason to believe that such check, draft or order will bo paid.”

The emergency clause of that act (section 2) stated:

“The fact that there is no law now protecting the merchants and banks of this state from being swindled by the giving of checks where there are no funds to pay same, creates an emergency,” etc.

Appellant was indicted and convicted under said articles for swindling the Continental State Bank of Sweetwater out of $30 by giving to it his check for that amount on the Eirst National Bank of Winters, Tex. The uncontradicted testimony, briefly stated, shows that some time prior to January 16, 1917, appellant deposited in said bank at Winters $30, that bank at the time issuing to him its deposit slip showing the deposit by him of said $30; that on January 16, 1917, appellant went into the said bank at Sweetwater and exhibited to that bank, and turned over to it at the time, said deposit slip for $30, thereby representing, and the officials of the bank at Sweetwater understanding, that he had said $30 in said bank at Winters, and upon the face thereof, and such representation, he drew his draft, in favor' of said Sweetwater bank on said Winters bank, for $30, and had the amount then and there placed to the credit of himself and his partner, Boone, representing at the time to said bank that he and said Boone were partners; that shortly thereafter he and Boone, or one or the other of them, drew out of said Sweetwater bank said $30. The $30 draft he thus drew and gave to said Sweetwater bank was, in due course of business, forwarded by it for collection on said Winters bank; that at the time he gave and drew said draft he did not have sufficient funds on deposit in said Winters bank for the payment of said draft; that before giving said draft he had checked out some of said $30; that the only deposit he had ever made in said Winters bank was $30, made some time before January 16th, and never thereafter deposited with said Winters bank any money except said one deposit of $30.

Appellant introduced no evidence. He attacks the validity of said subdivision 4 of article 1422, copied above, on these grounds: (1) It makes a condition subsequent to the act of drawing the draft a necessary element in order to convict. (2) It is uncertain because the following language therein is not defined: “And no good reason to believe that such check, draft, or order will be paid” — contending that what shall constitute “good reason” is not defined nor prescribed. (3) Said statute is uncertain in that it does not direct or prescribe who shall determine, the court or jury, what is “good reason.” (4) Nor that a jury, in arriving at whether or not a “good reason” exists, shall view the case from his standpoint. (5) That what might appear as good reason to one defendant or one jury might appear to another defendant or jury as wholly insufficient, thus rendering the liberties of the accused subject to the caprice of different juries who might adopt different views rather than determining his liberties according to law. (6) It deprives him of liberty without due process of law.

None of appellant’s contentions can be sustained. This court and our Supreme Court, and the United States Supreme Court, have so repeatedly discussed such questions and sustained the validity of laws thus attacked that it is deemed unnecessary to again enter into such discussion. See Bradford v. State, 180 S. W. 702, and cases there cited; Baskins v. State, 75 Tex. Cr. R. 537, 171 S. W. 723, and authorities there cited; State v. H. P. Ry. Co., 106 Tex. 18, 154 S. W. 1159. The opinion in the Bradford Case cites decisions by the United States Supreme Court exactly in point, in principle, against appellant’s contentions.

The testimony of Dr. Bowie, the cashier of the Sweetwater bank, to the ef; feet that the $30, the amount of the draft drawn by appellant, was deposited to the credit of appellant and Boone, and his producing the deposit slip of his bank to that effect, was admissible. It was unnecessary for the indictment to allege, in order to make such proof admissible, that Krueger and Boone were partners. Dr. Bowie testified that appellant represented to him that they were. Neither is there any presumption in law that Krueger and Boone was a corporation. Rather the reverse is true.

At the instance of the state herein the clerk of the lower court has completed the record by a properly certified copy of the order of the transfer of the indictment from the district to the county court.

The judgment is affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BAKER v. STATE.
    (No. 4782.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    Peostitutx)o,n <⅜»4 — Pandering—Evidence —Sufficiency.
    In a prosecution for pandering, evidence held, insufficient to sustain a conviction showing no more than acquiescence on defendant’s part to the prostitution of his wife.
    Appeal from District Court, Fisher County; Jno. B. Thomas, Judge.
    Earnest Baker was convicted of pandering, and he appeals.
    Reversed and remanded.
    J. D. Barker, of Roby, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of pandering; his punishment being assessed at five years’ confinement in the penitentiary.

The indictment contains several counts. We are of opinion the evidence is not sufficient to support any charge contained in the indictment. The substance of the whole indictment is that appellant induced his wife to submit her body to illicit intercourse. This is covered by various counts as stated. Some counts allege that he induced his wife to go in a house of prostitution. His wife was used by the state, and testified her husband had never at any time solicited her to become an inmate of a house of prostitution; had never asked her to submit her person to any man or men for the purpose of prostitution, or to have intercourse with any man. She testified also that she had never lived in a house of prostitution, that she and her husband lived in a tent, and that there was another tent not a great ways from where she and her husband lived, about 150 yards distant. Overby was used as a witness, and testified, in substance, that appellant never induced him or told him to go about his wife or to have intercourse with her, and never said anything to him about it in any way. “He did not suggest to me from any standpoint that he wanted me to go down and have intercourse with his wife and pay her for it.” He says he was down at appellant’s tent to see him about a horse trade, and went there without invitation. The witness Hanna testified that he was at appellant’s camp or place of residence; that he did not talk to defendant; that defendant never invited him to come and have intercourse with his wife or ever suggest it to him. To use his language he says, “He never did give me any sign that I could have intercourse with his wife.” The same may be said of the witness Huey. The witness Hale testified about the 1st of December last year, which seems to have been long prior to this matter under investigation, that he was in his car and drove up near the sidewalk, and appellant came to his car and stopped and asked him if he wanted to go out and see a woman. The witness told him he would go if it was not too far. He was informed by defendant it was about 2⅛ miles. There were others there besides appellant and witness. He went out to a tent and had intercourse with a woman, for which he paid her $3; that Brantley, Curley, and Weatherby accompanied him. There was no light in the tent. He says this was in Fisher county. He did not know the woman, but thought it was Mrs. Baker; that he would not swear whether it was a yellow negro or not; did not know whether it was Mrs. Baker or not; that there were two beds in the tent, or a bed and a pallet. He says after reaching the tent Weatherby made arrangements for him; defendant did not. “This defendant did not make any arrangements or tell me anything.” If there is any testimony in this record that shows appellant induced men to have intercourse with his wife it is found in the testimony of the last-mentioned witness. It may be stated, without giving the details, that the circumstances show that the wife of appellant was a prostitute; that they moved from one county to another, as detailed in the testimony. They did not remain long in any one place. The circumstances would indicate also that the defendant knew that his wife was a prostitute, and was having intercourse with men, and from the record it may be inferred that he made no objection to her course of conduct, but outside of the one witness above mentioned there is nothing to show that appellant induced men to visit his wife. The case is one of knowledge of the fact and want of protest on his part. We are of opinion this is not sufficient to convict of pandering.

Believing the evidence is not sufficient, the judgment will be reversed, and the cause remanded.


text:
    EVERETT v. STATE.
    (No. 4780.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.)
    1. Rape <S^16(7) — Assault with Intent to Rape — Abandonment.
    Where an assault with intent to rape is made, abandonment of the attempt is- no excuse.
    2. Rape <®=o59 (23) — Assault with Intent to Rape — Aggravated Assault — Instbuc-tions.
    In a prosecution for assault with intent to rape, where it appeared that the assault was made on the female in the presence and plain view of a number of people at a public gathering, it was error to refuse an instruction as to aggravated assault.
    Appeal from District Court, Titus County; J. R. Warren, Judge.
    Palmore Everett was convicted of an assault with intent to rape, and he appeals.
    Reversed.
    E. B. Hendricks, Asst. A tty. Gen., for the State.
   MORROW, J.

Appellant was charged with an assault with intent to rape Etta Mae Harper by force, threats, and fraud. His punishment was fixed at two years’ confinement in the state penitentiary.

There was an issue of identity an'd of alibi, which, on conflicting evidence and a proper charge, were determined against appellant. The assault took place about sundown on the evening of the 19th of June, on the public road at a point very near a store building and cold drink stand, at which there was in progress an Emancipation day-celebration. The injured party, a girl about 15 years of age, testified that prior to the occasion she had never seen appellant; that about sundown she, in company with her aunt, her cousin, and her sister, were walking along the road, starting away from the gathering, when she was assaulted by appellant. We copy from her testimony as follows:

“It was just about sundown when I saw the defendant. He asked me to let him go home with me, and I told him ‘No,’ and he said he was going anyhow. He tried to pull me out in the woods and I went to hollering. He caught hold of me and tried to pull up my dress and then they ran down there and he turned me loose and went to running. When he caught me those other girls were going on up the road ahead of us. He did not hurt me; he just kind of scratched me on my arm and across my side a ■little bit. I had on a dress and he tore it right up here. Nobody did anything to him. Uncle Early ran back there and he seen him and run. My sister started back with a stick and he went to cursing and she broke and run herself. There was sope woods around there. We were in the big road. He was by himself walking. Two wagons passed us when he was there with me, but I don’t know who it was in them; they were colored people. One of the girls with me got in one of the wagons. It did not stop, but was driving slow. Defendant was there then. He went about as far as from here to the back door with me before he said anything. 1-Ie tried to pull up my dress and I went to hollering. My uncle and Joe Marshall came down there and the defendant ran. I was coming along the road towards the storehouse and wasn’t as far as from here to the wall from it. I don’t know whether that is 30 or 35 feet or not; it is not as much as 25 steps. My aunt’s little girl and my sister were right in front of me, about as far as from me to you. I don’t think there was hardly as’many as 100 people at the store, but there was a crowd there. 1-Ie did not ask me loud enough for those folks in front of me to hear; he talked low. He first asked me to let him go home with me and I refused; then he asked me for some, and then he grabbed me and took hold of me. He did not put his arm around my waist or hug or kiss mo or tell me he loved me; he just caught hold of my arm and scratched it. He was trying to pull up my dress and scratched my side. It was right there before all those people. The ones who were in front of me told him to let me alone. They did not holler at him; I don’t know why. My aunt did not see him when he carried me down the road; my sister and my aunt’s little girl seen it. My aunt was in ahead of the girls on the road, but not far ahead. She was pretty far down the road when she turned and seen it. The girls turned at once and saw it. He was carrying me forward towards where my aunt was. He did not throw me down, but he tried to. My aunt’s little girl ran and told my uncle. There was lots of people at the storehouse, but I don’t know how many. I was not making any resistance to keep Mm from throwing me down; I was hollering and crying. I don’t know who the woman was that passed in a wagon. He was trying to rape me then. There were other people in the wagon with that women; I guess it was her old man and children. They were all black.”

The mother of the injured girl testified that she was past 15 years of age. The other girls with her were about the same age. These other girls and the aunt who was with her testified, in substance, as did Etta Mae Harper. One of them, said:

“I picked up a stick and started back with it,, but never got close to him; he ran. I don’t know what made him run. Uncle Early and them came up and he ran. He pulled her just a little bit on the side of the road. . That boy grabbed my sister by the arm and was pulling her, and another girl ran up and told my uncle about it. Uncle Early White, and Joe Mitchell passed by us in a wagon just before that, and Aunt Ada was with them. There was a wagon passed by, and some one in it told my sister that boy was married. I don’t know who was in the wagon. That was not before she hollered. The defendant had hold of my sister at that time. I don’t know for what purpose. I heard him tell her he wanted to go home with her; he was just talking in an ordinary tone of voice. We had just started home and we could see all around there; it was light enough to see things. When I saw him he tried to throw her down in the road. 1-Ie was not trying to throw her down in the road, but was trying to pull her out of the road. That was not such woods as a man could lay a woman down and have sexual intercourse with her without the people around seeing them; it was a heap of people around there.”

One of the girls with the injured party said:

“I heard that girl holler, ‘Oh, Uncle Early, make this here boy turn me loose.’ I ran back to make him turn her lose and he ran after me- and I ran for Uncle Early. He said, ‘Give me some.’ She told him she wasn’t studying him. At the time he asked her she commenced hollering for Uncle Early. He had hold of her around the waist and was pulling her. We were about 12 feet ahead of her. We were not far from the cold drink stand. There was a big crowd back there around the storehouse; they had not broke up.”

Another witness testified:

“I was traveling in a wagon with my brother, Early White, and we passed by them; they were all together when we passed them. The defendant was walking by the side of Etta Mae. Not very long after I got in the wagon I heard some-hollering ; we were not so far ahead of it.”

Early White said:

“My sister Ada was walking with them, and I told her to get in the wagon and ride down the hill a piece and let the girls walk, and as we started when we got even with Andrew Erans’ house Ada got in the wagon with us and went on down a good piece from there, and Hattie-overtook us and said that boy was beating the-girl, and I jumped out of the wagon. Joe Mitchell went back there with me. I heard some hollering before I went back; it wag a woman,, the way they were screaming.”

The court gave no charge on aggravated assault. The appellant prepared, and the court refused,- a charge submitting that issue. It contained the following:

“If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Palmore Everett, did, in Titus county, Tex., on or about the 19th day of June, 1917. make an-. assault and battery upon Etta Mae Harper, but you have a reasonable doubt as to whether or not he made said assault with the specific intent •to rape the said Etta Mae Harper by force, and to have carnal intercourse with her, over all resistance she might be able to offer, then you will find the defendant guilty of an aggravated assault and battery.”

If appellant made an assault with, intent to rape, his abandonment would not excuse him. Shepard v. State, 34 Tex. Cr. R. 35, 28 S. W. 816. As said by Mr. Branch:

“If the testimony shows an assault coupled with a present intention to have carnal knowledge of the woman without her consent by force and at all hazards, it will support a conviction for assault with intent to rape, though defendant fled or desisted when assistance came.” Stout v. State, 22 Tex. App. 339, 3 S. W. 231; Branch’s Ann. P. C., and cases listed, p. 966.

The same author, in section 1700, p. 966, of Branch’s Ann. P. 0., citing many authorities, including Pefferling v. State, 40 Tex. 492, and Taff v. State, 65 Tex. Cr. R. 80, 143 S. W. 1156, states the rule as follows:

“AYhen the female is not alleged to have been under the age of consent, to be guilty of an assault * * * to commit rape the defendant must have made an assault upon the woman with the intent to then have carnal knowledge of her by the use of such force as might reasonably be supposed sufficient to overcome resistance, taking into consideration the relative strength .of the parties and other circumstances ■of the case, and if bis intention falls short of this, he is not guilty of an assault with intent to rape, however outrageous the assault may be. There must be sufficient evidence to authorize the jury to believe that it was his intention to have the carnal knowledge at the time at all hazards; that he intended to use sufficient force to accomplish his purpose notwithstanding any resistance the woman might make.”

The same author, at section 1712, p. 969, stating the rule with reference to the necessity of a charge on aggravated assault in this character of case, uses the following language, and cites the following authorities:

“There is a manifest difference between an assault with intent to commit rape and an assault with intent to have an improper connection; any such violent and indecent familiarity with the person of a woman against her will when the latter is the extent of the purpose and intent of defendant, is an aggravated assault, and if the testimony raises such issue it is error to fail or refuse to charge on aggravated assault. Pefferling v. State, 40 Tex. 492; Curry v. State, 4 Tex. App. 578; Thomas v. State, 16 Tex. App. 535; McGee v. State, 21 Tex. App. 670, 2 S. W. 890; Robertson v. State, 30 Tex. App. 498, 17 S. W. 1068; Shields v. State, 32 Tex. Cr. R. 503, 23 S. W. 893; Cox v. State, 44 S. W. 157; McCullough v. State, 47 S. W. 990; Taylor v. State, 50 Tex. Cr. R. 362, 97 S. W. 94 [123 Am. St. Rep. 844]; Taff v. State [65 Tex. Cr. R. 80], 143 S. W. 1156.”

Such is the general rule. Wharton, Crim. Law, § 48, and notes.

In a prosecution for this offense in which there is no evidence from which the jury might conclude that the assault, if made, was made with the intent to accomplish rape by the use of force necessary to overcome resistance, the submission of the issue of aggravated assault is not called for. Long v. State, 46 S. W. 640; Ricks v. State, 48 Tex. Cr. R. 229, 87 S. W. 345; Herbert v. State, 49 Tex. Cr. R. 72, 90 S. W. 653. This is the principle relied upon by the state to support the action of the trial court in refusing to give the special charge requested. We regard this as an erroneous view as applied to the facts of this case. The assault proved, we think, was made under circumstances which raised the issue of fact as to whether the intent of the appellant was to force the injured party over all resistance to submit to sexual intercourse. The assault is made at a time of the day when it was subject to the observation of persons near by, at a place within a few yards, and in plain view of a large gathering of people, and upon a road which some of the people at the gathering were at the time traveling so close to appellant and his victim that members of the party with them got into the vehicles passing. At the time of the assault the injured female was accompanied by several people, including her aunt, her sister, and her cousin, with her uncle only a few yards away, and within calling distance of a number of people gathered at the picnic.

A refusal of the court to submit to the jury the issue of aggravated assault was, we think, under the circumstances, error requiring a reversal of the judgment, which is ordered.
      <S=»For other crises see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes