author: HARPER, J. DAVIDSON, J.

text:
    VILLAREAL et al. v. STATE.
    (No. 3838.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Dec. 22, 1915.
    Dissenting Opinion, Jan. 19, 1916.)
    1. Homicide <&wkey;30 — Pasties to Oeeenses— “Pbinoipal.”
    Pen. Code 1911, art. 75, provides that when an offense is actually committed by one or more persons, but others are present and knowing the unlawful intent, aid by acts or encourage by words or gestures those actually engaged in the commission of the unlawful act or who not being actually present, keep watch so as to prevent the interruption of those engaged in committing the offense, such persons so aiding, encouraging, or keeping watch are principal offenders. Article 87 provides that the persons therein specified, including the relations of an offender in the ascending or descending line cannot be accessories. Haiti, that mere presence at the time and place of a homicide will not alone constitute one a principal offender, though such presence is a circumstance tending to support a finding that one is a principal, and hence a person could not be convicted of murder on proof that he was present when his son killed deceased, and that he concealed the fact that his son had committed the offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 48-51; Dec. Dig. &wkey;^30.
    For other definitions, see Words and Phrases, First and Second Series, Principal.]
    2. Criminal Law <&wkey;59 — Pabties to Oeeens-es — “Pbinoipal. ’ ’
    To make one a principal offender he must be shown to have been guilty of some overt act or conduct prior to or at the time of a homicide.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. <&wkey;>59.]
    3. Homicide <&wkey;250 — Evidence—Weight and Sufficiency.
    On a trial for murder, evidence hold sufficient to support a conviction, though the reputation of the state’s principal witness for truth and veracity was severely assailed and he was strongly contradicted.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. <&wkey;>250.]
    4. Chiminal Law <&wkey;1120— Appeal — Bills oe Exceptions — Sufficiency.
    Bills of exception complaining of the exclusion of questions asked witnesses should show what the witnesses’ answers would have been.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. (®^> 1120.]

      5. Witnesses &wkey;>337 — Impeachment of Accused IN CRIMINAL PROSECUTIONS.
    Where accused on trial for homicide testified in his own behalf, it was permissible as affecting' Ms credit as a witness to elicit from him that he was under indictment for horse theft.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132,1140-1142, 1146-1148; Dee. Dig. <&wkey;>837.]
    6. Cbiminal Law <&wkey;957 — Verdict — Impeachment by Affidavits of Jurors.
    Where jurors on a trial for murder Tiad been discharged and permitted to mingle with the outside world, one of them could not be permitted to impeach his verdict by his affidavit that he and most of the others believed a witness for the state committed the crime, and that they voted to find defendants guilty believing that defendants knew something about the crime and would tell what they knew if convicted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dec. Dig. &wkey;> 957.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Kleberg County ; W. B. Hopkins, Judge.
    Gorgonio Villareal and another were convicted of murder, and they appeal.
    Affirmed as to the defendant named, and reversed and remanded as to the other defendant.
    Pope ■& Sutherland, of Corpus Christi, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Both appellants were convicted of murder, and their punishment assessed at five years’ confinement in the penitentiary each.

The most serious question in the case is the one contending that the evidence is insufficient to sustain the conviction, and as to the defendant Práxedis Villareal, we think such contention must be sustained. Mere presence at the time and place of the homicide will not in and of itself alone constitute one a principal offender. Such presence is a circumstance tending to support a finding that one is a principal, but there must be other facts and circumstances in evidence tending to show that one aided by acts or encouraged by words or gestures the person who actually committed the unlawful act before a conviction can be sustained. Article 75, P. C. 1911; Burrell v. State, 18 Tex. 713; Golden v. State, 18 Tex. App. 637; Noftsinger v. State, 7 Tex. App. 302; Alford v. State, 31 Tex. Cr. R. 299, 20 S. W. 553. In this case the most the evidence would tend to show is that Práxedis Villa-real may have been present when his son Gorgonio Villareal fired the fatal shot, if he shot James Rowland, but all the evidence, both for the state and for the defendants, would show the most kindly and friendly relations existing between deceased and defendant Práxedis Villareal, and would exclude the idea that he for any reason would participate in the murder. All the state can insist that the evidence would suggest is, that perhaps he was present' and witnessed the homicide, afterwards concealing the fact .that his son Gorgonio had shot Rowland.

By article 87 it is provided that a father, by concealing the fact that his son has committed a crime, is not guilty as an accessory. To make one a principal offender he must be shown by circumstantial evidence or otherwise to have been guilty of some overt-act or conduct prior to or at the time of the homicide.

As to Gorgonio Villareal, the record presents a wholly different ease. By the witnesses Refugia Rodriguez, Toribia Ortiz, and Mariana Guzman, it is shown that Gorgonio Villareal not only desired the death of deceased, but besought Refugia Rodriguez and Mariana Guzman to obtain poison for him, offering to pay them $25 to do so, in order that he might have it administered to Rowland. All three of the witnesses testify to a state of facts that would show that appellant Gorgonio Villareal was intimate with the wife of deceased, and desired to have him killed that he might secure his wife. A sufficient motive is shown by the state’s testimony for him to have committed the crime, and that he had it in contemplation. Appellants’ own witnesses testify that ill will existed, but they place it on a different ground. They say that Gorgonio formerly was a frequent visitor at the home of James Rowland, but that Rowland had stopped him from coming to his' home. They gave as a reason for this that a mule or a horse had been stolen from Rowland, and he believed that appellant, with another, had stolen the animal, and for this reason had stopped appellant from coming to his home. Appellant Gorgonio says he had not Been at Rowland’s home for some months. However, a state’s witness, Annie Rowland, testifies to seeing him at her father’s home on two occasions shortly before the homicide, when her father was not at home. Lawrence Morris testifies that he was staying at the home of appellants, and that on Wednesday before the homicide occurred on Sunday, that Gorgonio in a conversation with him said that he wanted to get Jim Rowland out of the way so that he could have Rowland’s wife. Morris was a cousin of Gorgonio by marriage, and detailed the conversation, but the above is the substance of it. He also says that on the day of the homicide Gorgonio told him he was going to Ricardo (the home of Jim Rowland) and get deceased out of the way. That he saw Gorgonio when he left home and that he went in a buggy, and carried with him his Winchester rifle — a 44 caliber rifle. Morris says Jesus Gallardo was horseback, and went along with Gorgonio. On Monday morning he had a conversation with Gorgonio, in the presence of Gallardo, and that Gorgonio told him he had gone to Ricardo and got Jim Rowland out of the way. The other testimony shows that Jim Rowland on that Sunday night had been killed, being shot with a rifle ball of 44 caliber. Morris testifies that appellant drove off in a buggy, and this buggy was by the sheriff traced into the yard of deceased, and back to appellant’s home.

Appellant by his testimony seeks to explain why the buggy was sent to Rowland’s home. He denies driving it, and says' that Gallardo drove it after his father, Práxedis Villareal, and he is supported in this testimony by his father, mother, and other witnesses. He also testifies that state’s witness Morris had borrowed his 44 caliber Winchester rifle, and had it in his, Morris’, possession on the Sunday that Rowland was killed. In this he is supported by the testimony of his mother and other relatives. The jury evidently accepted the testimony of Morris, and did not believe the alibi testimony of appellant Gorgonio, and the explanation of why the buggy was driven to Rowland’s home, and did not believe that Morris was in possession of the rifle on that Sunday night, and while Lawrence Morris’ reputation for truth and veracity was severely assailed, and he was contradicted by appellants’ witnesses, are we authorized to hold that such evidence is unworthy of belief, when the jury who tried appellant Gor-gonio and the district judge who presided at the trial evidently thought it worthy of credence? If the testimony of Lawrence Morris is true, with the other facts and circumstances in evidence, the testimony authorized the conviction of Gorgonio Villareal, and we will not disturb the verdict as to him. Another strange circumstance in the case is that Jesus Gallardo, who was jointly indicted with appellants, charged with this murder, and who Lawrence Morris says went with appellant Gorgonio when he,- Morris, was told by appellant that he was going to Ricardo and get deceased out of the' way, and was with appellant when appellant told Morris the next morning that he had gotten deceased out of the way, disappeared on that Monday morning and has not been seen nor heard of since that time.

The court permitted a sufficiently broad scope in the cross-examination and impeachment of the witness Refugia Rodriguez, and there was no error committed in sustaining the questions propounded as shown by bills of exception Nos. 1 and 2, and the same may be said as to the witness Toribia Ortiz in bills Nos. 3, 4, and 5. These bills are very incomplete, some of them showing the questions which were not permitted to be propounded, do not show what the answer would have been, nor, where the questions were permitted to be propounded, what answer the witness really would have made.

As to the questions propounded to the witness Lawrence Morris and questions propounded to Mrs. James Rowland on cross-examination, the answers of the witnesses are not given, nor Is it stated what could have been proven by them, nor the substance of what was proven or expected to be proven.

As presented in this record, bills Nos. 6, 7, 8, and 9 present no error, and if they were more full and complete, under the record before us no error would be presented.

It was permissible to elicit from appellant Gorgonio Villareal that he was under indictment for horse theft as affecting his credit as a witness, he having testified in his own behalf.

The only other question presented by the record is an affidavit of one of the jurors, S. L. Gotten, seeking to impeach the verdict, lie says that the jury when they first retired stood 7 for conviction, and 5 for acquittal. That after the case was discussed they all voted for conviction. That what induced him to vote for conviction was that he and most of the jurymen believed that Lawrence Morris killed the deceased, and that the defendants in this case knew something of the crime, and if they were convicted they would tell what they knew, and in such event a pardon could be secured. He states that he voted guilty by ballot, and also when the jury was polled, but he did not believe the defendants guilty. A juryman will not be thus permitted to impeach his verdict after being discharged and permitted to mingle with the outside world. Such has been the unbroken rule of decision in this court. Johnson v. State, 27 Tex. 758; Weatherford v. State, 31 Tex. Cr. R. 530, 21 S. W. 251, 37 Am. St. Rep. 828; Pilot v. State, 38 Tex. Cr. R. 515, 43 S. W. 112, 1024; Henry v. State, 43 S. W. 340; Montgomery v. State, 13 Tex. App. 74, and other cases cited in section 1151 of White’s Ann. Code Cr. Proc.

The judgment is reversed and remanded as to Práxedis Villareal, and affirmed as to Gorgonio Villareal.

DAVIDSON, J.

(dissenting). I concur in the reversal as to the elder Villareal, and I further believe that the judgment ought to have been reversed as to Gorgonio Villareal. The evidence places the elder Villareal in the vicinity of where the homicide occurred and shortly prior to the tragedy, in company with Jesus Gallardo. The state sought to show, and largely predicated its case upon the fact, that the parties who did the killing were in a buggy. The elder Villareal and Gallardo were in a buggy, and are supposed to have left the ranch where the homicide occurred shortly prior to the killing the same evening. The state’s case as to Gorgonio Villareal is made by the testimony of Lawrence Morris. In substance his testimony is: His wife was related to the Villareals; that he and his wife were on a visit to the Villa-real ranch, and had been a day or two prior to the homicide; that that ranch was 8 or 10 miles or something like that from the scene of the homicide. His testimony is further that Gorgonio Villareal left the Villareal ranch at about 3 o’clock on Sunday evening, and returned during the night. That when he left the ranch he was horseback and carried a rifle. This was the only rifle on the Villareal ranch. He further testified that on Monday morning Gorgonio told him that he had made away or gotten rid of the deceased, calling him by name. This is the substance of the state’s case, except by the same witness introduced some evidence showing a motive on the part of appellant Gorgonio to do the killing. He says this grew out of an affection or love for the wife of the deceased, and that is the motive relied upon by the state, or at least seems to he. Of course, all those things were met on the trial and by some of the state’s evidence, that there was evidence to show the motive alleged by this witness was false; that there was nothing improper, and had not been between defendant Gorgonio and the wife of deceased, and that they had not been together to amount to anything for quite a while. So all the facts disconnected appellant Gorgonio with the buggy. All the facts put the elder Villareal and Gallardo in the buggy. To meet Morris’ testimony that Gorgonio Villareal absented himself from the ranch, carrying the gun mentioned by Morris, as well as to disprove the confession stated to have been made by Villareal to Morris, the witnesses at the Vil-lareal ranch were introduced, and every one of these placed upon the stand testified that there was but one rifle on the ranch, and it had a screw missing which had to be fixed; that Morris left the ranch, leaving his wife at the ranch on Sunday evening about 3 o’clock, and rode away horseback, carrying this gun with him to have it fixed, and that he was gone from the ranch until perhaps Tuesday, or at least until late Monday evening. All of these witnesses testify that the defendant Gorgonio did not leave the ranch after 12 o’clock on Sunday; that he was working about the place during Sunday evening, they going into detail as to what the work was and what he was doing; that he was also at home the next day working and remained about there; that Morris was not at the ranch Monday morning, which rendered it impossible that any confession should have been made as he swore. In fact, the testimony of all of the witnesses at the ranch by each side placed on the stand testified positively that Morris took the gun and left the ranch Sunday evening, and did not return to the ranch until late Monday evening or Tuesday; that he carried the gun away with him to have a screw fixed, and brought it back with the screw fixed. In addition to this, other state witnesses, among them the constable and a Mexican woman, Refugia Rodriguez, testified they saw him Monday morning about 10 o’clock in Falfurrias, 20 miles away from the Villareal ranch. They talked with him. These were state’s witnesses, but were not at the ranch. If Morris’ testimony is eliminated, the .state would not have had evidence enough to have gone to the jury with any hope of a conviction. Morris accounts for himself only by stating that he spent Sunday night at the Villareal ranch. Every witness testifies to the contrary, and his wife, who was at the ranch, was not even placed on the stand to sustain him. So he stands with every witness, state and defendant, who testifies to the facts with reference to what has been above stated contradicting, and the state stands alone upon thé testimony of this witness Miorris. The writer does not understand how any jury would have convicted on the testimony of Morris.

On the motion for a new trial one of the jurors filed an affidavit in line with the matters I have just stated. The facts show a complete alibi for Morris from the ranch, but not from the scene of the homicide; he leaving the ranch in possession of the gun that is supposed to have been used, and the state relied on as being used to commit the homicide. He was not accounted for from the time he left the ranch until Monday morning about 10 o’clock 20 miles away at Falfurrias; 10 o’clock or about 10 o’clock is the time he states defendant Gorgonio made the confession to him at the Villareal ranch. At that hour the constable, Mr. With, and Refugia Rodriguez testify they saw and talked with Morris at Falfurrias. They were state witnesses. Every witness except Morris proves an alibi for the defendant Gor-gonio from the scene of the homicide, and his presence at the ranch 10 or 12 miles from where the homicide occurred. In addition to this, the affidavit of the juror is filed and appended to the motion for a new trial, in which it is stated that he and most of the jurors did not believe defendants guilty, but did believe Morris guilty, giving various reasons for such belief, and why a verdict was finally reached convicting the defendants ; that by convicting appellants “the state might get the right man,” and in that event the jury “would sign up a petition to free these defendants, * * * though 1 never believed the defendants were proven guilty, and did not then believe them proven guilty when I agreed to verdict of guilty, and do not now believe that the defendants are guilty under the evidence on the trial, but do believe that by finding the defendants guilty that the guilty party might be found, and that the defendants thereafter can be released.” The rule is invoked that the jury are the exclusive judges of the facts proved and the weight to be given the testimony. This is the general proposition asserted by the statute, and marks the dividing line between the authority of the jury as to the facts and that of the court as to the law. Article 734 of the Revised Code Criminal Procedure 1911, so provides, and further that the jury are not the judges oí the law in any case, but must take the law from the court. Practically the same rule is laid down in article 786, Revised Code oí Criminal Procedure, 1911. This, however, does not mean that the jury may arbitrarily convict, nor do these articles annul the fundamental principle of the law which provides that the presumption of innocence and reasonable doubt sha! be the law of every criminal case. In finding a verdict and passing on the facts, the verdict must he in consonance with the presumption of innocence and reasonable doubt. These presumptions are binding fully on the jury, and require that body to weigh the facts from these standpoints. It is a clear limitation on the exclusive power of the jury deciding the facts and the weight of the testimony. The jury must receive the law from the court and be governed by it. See article 734, supra. The court must charge these presumptions, and the jury must be governed by them. They furnish the criterion by which facts are to be solved. This is a statutory rule that is to be read into and considered with the statute with reference to the province of the jury in passing on the facts. They have no right, no authority in law or good conscience to convict a man until the presumption of innocence and reasonable doubt have been overcome. They do not become arbitrarily the judges to set aside the presumption of innocence. This must be done by the facts, and the state cannot ask in good conscience a verdict of conviction until the presumption of innocence, to the exclusion of reasonable doubt, has been overcome by facts. These are fundamental rules fixed-by law and cannot be ignored by the jury any more than by the court. The jury is practically prohibited from viewing the facts from any other standpoint than from the presumption of innocence and reasonable doubt, and no verdict ought to be permitted to stand that does not overcome these basic principles of the law. These presumptions, or rather presumptions of innocence, must be overcome. It is not what we call a conclusive presumption, but still it is a presumption in favor of innocence that must be overcome by facts, and because the jury are the exclusive judges of the facts does not abolish the statutory rule of the presumption of innocence and reasonable doubt. It may be overcome, but it must be overcome by evidence of a trustworthy nature. Though it is the province of the jury to find the facts, that body cannot deduce from the facts an unfavorable deduction or conclusion, unless the favorable conclusion or deduction is excluded as unreasonable. Cromeans v. State, 59 Tex. Cr. R. 611, 129 S. W. 1129. That is a sound and correct rule. That opinion is a clear enunciation of the law — in full harmony with the statutes.

Applying this rule then to the facts of this case, and the record as it comes to this court, the finding of the jury is not correct. It does not speak a true verdict either in law under the evidence, or viewed from the standpoint of the uncontradicted affidavit of the juror that they did not believe appellants to be guilty. The accused is entitled to a fair trial and on competent evidence. He should never be convicted when the jurors who convict him admit his innocence, but convict him, not because he is guilty, but in order, by doing so, they might reach somebody else who was guilty. He should not be the “scapegoat for the sins turned loose in the wilderness.” That is not the rule under our law. The man who is on trial and. convicted must be proved guilty. He is not made the innocent “victim for the sins of the xreople.” While this court should be cautious in setting aside a verdict on the question of fact, yet it has power to do so, and on proper occasion should rise to the emergency. This court is empowered to reverse on the facts, and it becomes its solemn duty to do so to prevent unjust convictions. This court should not lend itself to the affirmance of a case that comes to us in the shape this record does. It is said that a juror will not be heard to impeach his own verdict. That may or may not be correct, owing to circumstances, and the manner in which it comes. I am of opinion that a verdict may be impeached whenever that impeachment carried corruption with it on the part of the jury. The verdict is admitted to be an illegal conviction, stating the want of belief on the part of the jury from the facts of the guilt of the man they are incarcerating in the penitentiary. This juror stands uncontradicted as to his statements in this matter. Our court has power to investigate this matter and award a new trial, even on the facts, as is plainly stated in the statutes of our state. See articles 938 and 939, Revised Code of Criminal Procedure 1911. The court has the power to reverse for want of sufficient evidence, and in this case, in my judgment, the conviction against Gorgonio should have been reversed as well as that against the elder Villareal. In fact, in my judgment, the ease is more favorable to Gor-gonio than it is to his father. If Morris had been placed on the stand for perjury, his guilt would not have been the subject of debate, if this record is true, and this by the state’s own testimony, and he was the man they were relying upon to incarcerate two men who the juror swears that the jury believe are not guilty. Perjury ought never to be regarded as sufficient to justify a conviction in the trial court, and certainly not of an affirmance by this court. This unfavorable verdict is a deduction most unfavorable on a state of facts from which no legitimate deduction of guilt can be inferred or ought to be inferred, as I understand this record.

For these reasons I concur in the reversal as to the elder Villareal, and dissent from the affirmance of Gorgonio Villareal. I do not believe these men to be guilty, and. I tbink the evidence shows beyond any question that fact and conclusion.

Since filing this dissent Judge HARPER has called my attention to the fact that I was in error in stating that Gorgonio left his ranch on horseback and Gallardo in the buggy. This I find to be correct. I should have stated that Gorgonio was in the buggy and Gallardo on horseback. This correction is made so as to conform to the evidence of Morris.
      &wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=aEor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    WARREN v. STATE.
    (No. 3924.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.)
    Ckiminax. Law &wkey;1090 — Statement oe Pacts — Bills oe Exception — Necessity.
    Where the an under the law, no questions are reviewable without a statement of facts or a bill of exceptions.
    [Ed. Note. — For other cases, see' Criminal Law, Cent. Dig. §§ 2653, 27&9, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. &wkey; 1090.]
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Will Warren was convicted of vagrancy, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of vagrancy, and his punishment assessed at a fine of §200.

No statement of facts nor any bill of exceptions accompany the record. The indictment charges an offense under the law, and under such circumstances no question is presented for us to review.

The judgment is affirmed.


text:
    WILLIAMS v. STATE.
    (No. 3919.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.)
    1. Criminal Law • i&wkey;3'51 — Evidence—Relevancy-Light.
    In a prosecution for burglary, evidence that the defendant had been in several states since tlie alleged burglary was admissible as a circumstance tending to show guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig <&wkey;>351.]
    2. Criminal Law <&wkey;1120 — Appeai>2.Bxcltjsion oe Evidence — Exception.
    Upon a bill of exception not disclosing what the testimony alleged to have been erroneously excluded would have been, the Court of Criminal Appeals is unable to judge whether it would be material, if admissible.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. &wkey;> 1120.]
    3. Ceiminal Law <&wkey;829 — Trial — Instructions.
    In a criminal trial the refusal of defendant’s special charge was not erroneous, where it was fully covered by the court in its charge.
    [Ed. Note. — For other, cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;»829.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    Arthur Williams was convicted of burglary,' and he appeals.
    Affirmed.
    Ralph P. Mathis, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of burglary, and his punishment assessed at two years’ confinement in the state penitentiary.

Bill No. 1 shows that appellant objected to the “defendant being compelled to testify on cross-examination that he had been in several states since the alleged burglary.” Evidence as to flight immediately after the commission of crime is always admissible as a circumstance tending to show guilt. Benavides v. State, 31 Tex. 585; Mathews v. State, 9 Tex. App. 140; Sebastian v. State, 41 Tex. Cr. R. 249, 53 S. W. 875, and cases cited in section 350, Branch’s Crim. Law.

The P. B. M. department store at Wichita Falls was burglarized on the night of the 19th of May. Melvin Dwight, constable at Childress, was on the train that night, and testified he saw appellant and another negro get on the train about a quarter of a mile from the Wichita Falls station, with five grips. Three of these grips and a portion of the stolen property was afterwards recovered in Ft. Worth.

Defendant in bill No. 2 says the court erred in refusing to permit him to testify to what the other negro told him why the goods were to be placed on the train at the point testified to by the constable. The bill does not disclose what the testimony would have been; therefore we are unable to judge whether or not it would be material, if admissible.

The other bill in the record complains of the failure of the court to give special charge No. 1 requested by appellant. As it was fully covered by the court in his charge to the jury, there was no error in refusing to give it.

The judgment is affirmed.


author: BRENDERGAST, P. J.

text:
    COLLINS v. STATE.
    (No. 3904.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    1. Indictment and Information <&wkey;lll — Language oe Statute — Negativing Proviso.
    Code Cr. Proc. 1911, art. 474, provides that the words used in a statute to define an offense need not be strictly pursued in the information, and that it is sufficient to use other words having the same meaning; article 453 provides that the certainty required is such as will enable the accused to plead the judgment in bar of another prosecution, and article 460 provides th'at an indictment for any offense shall be sufficient if charging its commission in ordinary and concise language so as to enable a person of common understanding to know what is meant, and to enable the court, on conviction, to pronounce the proper Judgment. Rev. Oiv. St. art. 7355, imposes on traveling persons selling patent medicines, ote., a $100 occupation tax annually, and, by subdivision 2, exempts commercial travelers selling or soliciting trade for merchants “engaged in the sale” of drugs or medicine by wholesale. Held, that an indictment thereunder alleging that defendant was not a traveling salesman for merchants “selling” medicines, etc., sufficiently negatived the proviso.
    LEd. Note. — -For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. <®^>111J
    2. Hawkers and Peddlers <©=7 — Licenses— Oeeenses.
    Rev. Oiv. St. art. 7355, provides for the levy and collection from every traveling person selling patent medicines, etc., of a $100 occupation tax annually and exempts salesmen for merchants engaged in the sale of medicines, etc. Pen. Code 1911, art. 130, makes it an offense for any person to follow any occupation, or do any act taxed by law without first obtaining a license therefor, and fixes a penalty. In a prosecution for pursuing the occupation of peddling medicine without paying the occupation tax, it appeared that defendant ordered goods from a wholesale establishment in another state at wholesale prices, which were delivered on his payment of the freight; that he took and opened the goods and sold them at retail prices from his wagon, sometimes on trial, and returned the unsatisfactory and unsold goods to the seller. Held, that a conviction was authorized.
    [Ed. Note. — For other cases, see Hawkers and Peddlers, Cent. Dig. §§ 16-19; Dec. Dig. <&wkey;>7.]
    .Appeal from Callahan. County Court; W. R. Ely, Judge.
    W. F. Collins was convicted of pursuing the occupation of peddling medicine without paying the occupation tax provided by law, and he appeals.
    Affirmed.
    F. S. Bell and J. Rupert Jackson, both of Baird, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   BRENDERGAST, P. J.

Appellant was convicted for pursuing the occupation of peddling medicines without paying the occupation tax prescribed by law.

The information strictly follows the statute and alleges properly everything necessary as a proper pleading, unless it be ■what we will now state.

Our statute (article 7355, Rev. Civ. Stats.) enacts that there shall be levied on, and collected from, every traveling person selling patent and other medicines $100 occupation tax annually to the state, and that no traveling person shall so sell until said tax is paid. Our statutes further authorize the commissioners’ court to levy one-half of such amount for the state in favor of the respective counties. Subdivision 2 of said article 7355 adds as a proviso:

“That this tax shall not apply to commercial travelers, drummers or salesmen making sales, or soliciting trade for merchants engaged in the sale of drugs or medicine by wholesale.”

The information negatives this proviso in this allegation:

The said Collins “not then and there being a ■commercial traveler or salesman making sales or soliciting trade for merchants selling drugs or other medicines by wholesale.”

It will be noted that the proviso is, that the tax shall not apply to commercial travelers, etc., in making sales or soliciting trade for “merchants engaged in the sale of drugs, etc., by wholesale.” The allegation does not use this identical language, but instead negatives the proviso as such commercial traveler, etc., for “merchants selling drugs by wholesale.” In other words, the statute is, engaged in the sale, and the allegation is selling, etc.

Our statute (article 474, C. C. P. 1911) prescribes that words used in the statute to define an offense need not be strictly pursued in the indictment or information; it is sufficient to use other words having the same meaning;, or which include the sense of the statutory words. The allegation negativing the proviso clearly does so, and, if anything, is broader in appellant’s behalf than the words of the statute itself. Clearly the information was sufficient. Articles 453 and 460, C. C. P.

Our statute (article 130, P. C. 1911) makes it an offense for any person to pursue or follow any occupation, etc., or do any act taxed by law without first obtaining a license therefor, and fixes the penalty at a fine of not less than the amount of the tax and not more than double the same.

Appellant waived a jury and submitted the case to the trial judge, who found him guilty and assessed his fine at $150.

It was admitted by both sides that the county tax for said county had been duly levied by the commissioners’ court, and that it was one-half of the state tax. We will give the balance of the statement of facts in full:

“It is agreed by the state and defendant that the following is in substance a part of the contract which was introduced in this case and under which said defendant Collins was working April 15, 1914:
“(2) That for and in consideration of the promises and agreements hereinafter contained, to be kept and performed by the parties hereto, the company, unless prevented by fires, strikes, accidents, or other causes, beyond its control, agrees to sell and deliver to the second party f. o. b. cars at Freeport, III., or at its option at any other regular place of shipment, in such reasonable quantities only as the second party may from time to time desire to purchase, all medicines, extracts, and other products manufactured or sold by it, such goods to be sold and delivered to the seeond party at the usual customary wholesale price, such prices to be shown by invoice of each shipment. And said second party agrees to purchase such goods on the above-prescribed terms and conditions ; but the company may at any time suspend such sales and shipment if said party fails to make the payments as hereinafter provided, or for any other omission or neglect by said second party.
“(3) The company will at its option also sell second party for cash or partly or wholly on credit, a medicine wagon, such as said seeond party may choose from current catalogues, circulars, or other descriptions, and charge said wagon to Us account at its customary cash price or part cash and part credit price.
“(4) The company further agrees to purchase from said second party at any time during the term of or promptly after the termination or expiration of this contract, and at the wholesale list prices then current, such medicines, extracts, and other products of its manufacture as second party may have on hand and unsold, provided that these products are in as good and salable condition when received by the company as when purchased by said second party; and pay or credit second party therefor on the return of such products promptly by prepaid freight to Freeport, Ill., or such other shipping point as may be designated by the company in writing, and provided that second party shall pay the company its actual expense of receiving, inspecting, and overhauling such goods.
“ (5) The second party agrees and promises to pay to the company at its wholesale list prices f. o. b. cars at Freeport, Ill., or at any other regular place of sUpment as aforesaid, for all medicines, extracts, and other products sold to him from time to time, including any balance due from him on wagon as hereinbefore provided, by ample cash weekly payments until this account shall be fully paid, and that upon the termination of this contract for any cause whatsoever, or by its expiration by limitation as hereinafter provided, second party promises and agrees to pay in cash the balance due said company for all medicines, extracts, other products and wagon sold and delivered to him as hereinbefore provided, but the time of making such payments or any or all of them may be extended by said company without notice of the guarantors of this agreement, and without prejudice to any of the interest or rights of said company.”

Appellant testified:

“I am the defendant herein. I live in Callahan county and do business in said county for W. T. Rawleigh & Co., which is a wholesale establishment, and is in Freeport, Ill. I order the goods that I sell, at wholesale prices from this company, and said goods are delivered to me at wholesale prices at the depot in Baird, Callahan county, Tex., and I pay the freight on them. I take and open these goods and sell them out at retail prices. I take them around in my wagon in this county, and sell and deliver them to the purchaser. I sell these goods on three months’ trial if they desire such time, and if they desire to pay cash, I accept it. If, after the three months, the goods are satisfactory to the purchaser, they, then pay for them, and if they are not satisfactory, I am to return these goods to this company. The wholesale price at which I purchase these goods is remitted to this company by me. When any of these goods are left over, I always send them back to this company. These goods are not mine until paid for. This company has no office in Texas, and never had any office in Texas. I was engaged in this work on the 15th day of April, 1914, in Callahan county, Tex., and also prior to the 15th day of April, 1914, and I had not at that time paid any occupation tax either to the state of Texas or to the county of Callahan. I am employed by this company to sell these goods, and I am its agent.”

We have so often and thoroughly considered in former opinions this offense and the questions raised by appellants attacking the law and convictions thereunder, that we think it wholly unnecessary to again discuss the law or any questions raised thereunder in this ease. We will, therefore, merely cite some of the cases. They are entirely on all fours with all questions raised in this case, and uniformly hold against appellant and all his contentions. Shed v. State, 70 Tex. Cr. R. 10, 155 S. W. 524; South v. State, 72 Tex. Cr. R. 381, 162 S. W. 510; Saulsbury v. State, 43 Tex. Cr. R. 90, 63 S. W. 568, 96 Am. St. Rep. 837; Camp v. State, 61 Tex. Cr. R. 229, 135 S. W. 146.

The judgment is affirmed.
      <§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      d&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MESSNER v. STATE.
    (No. 3875.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Criminal Law <&wkey;433 — Embezzlement— DOCUMENTARY EVIDENCE — LETTERS.
    Where, in a prosecution for embezzling money sent defendant to pay the amount due the state to get a patent to public school land purchased by the sender and defendant’s charges- and expenses in connection therewith, it appeared that the sender’s correspondence to defendant relative to the money consisted of letters written by a bank cashier for him, defendant’s replies to these letters, wherein he acknowledged receipt of the money and agreed to apply it as directed, were properly admitted in evidence, where there was evidence authenticating defendant’s signature to them.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1022; Dec. Dig. t&wkey;433.]
    2. Criminal Law <&wkey;1169 — Harmless Error-Evidence.
    In a prosecution for embezzling money sent defendant to use in getting a patent to school land, the admission of evidence that a third person had written defendant to get certain school land patented, if error, was harmless, where defendant’s letters introduced in evidence showed that he had agreed to get the land patented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143;. Dec. Dig. <&wkey;1169.]
    3. Indictment and Ineormation <@=5132 — Election — Submission to Jury.
    Where an indictment contained two counts, one charging embezzlement of a check and the other embezzlement of the money represented by the check, both counts being based on the same transaction, the court properly refused to require the prosecution to elect on which count to ask for a conviction, and did not err in submitting both counts to the jury.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-447, 449— 453; Dec. Dig. &wkey;132.]
    4. Criminal Law <&wkey;8Í4 — Instructions — Evidence — Return oe Money.
    Where, in a prosecution for embezzlement, there -was no evidence that defendant returned the money, the court'properly refused to instruct on that issue.
    [Ed. Note. — For other cases, see .Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig.. @=>814.]
    5. Embezzlement &wkey;>47 — Peremptory Instructions — Evidence.
    Where, in a prosecution for embezzling money, the evidence showed that defendant had’ agreed to use the money as agent to secure a patent for school land, and that he received the-money, deposited it to his credit, checked it out in small quantities, and made no. attempt to secure the patent, the court properly refused peremptory instructions for defendant.
    [Ed. Note. — For other eases, see Embezzlement, Dec. Dig. &wkey;>47.]

      Appeal from District Court, Hartley County; R. C. Joiner, Judge.
    W. S. Messner was convicted of embezzlement, and appeals.
    Affirmed.
    Reeder & Dooley, of Amarillo, for appellant. C. 0. McDonald, Asst Atty. Gen., for tbe State.
   HARPER, J.

Appellant was convicted of embezzlement, and bis punishment assessed at two years’ confinement in tbe penitentiary.

Tbe evidence would show that P. C. Madson lived near Sheffield, Ill., and that be bad purchased section 6, block A-7, public school land, and there was a balance due tbe state on tbe purchase price of about $900, which must be paid before a patent could be obtained for tbe land; that Mad-son was desirous of having tbe land patented, and bad tbe cashier of tbe Sheffield Bank, C. W. Boyden, to send to appellant a draft for $950 to pay appellant’s charges and expenses, and to pay tbe remainder due tbe state to get a patent to tbe land. Tbe evidence shows appellant received this draft and deposited it at tbe First State Bank of Channing, having it credited to bis account in tbe name of W. S. Messner, guardian; that be appropriated this money to bis own use, and did not pay tbe balance due tbe state, nor any part thereof, and made no effort to have tbe land patented. Tbe evidence shows that Mr. Madson bad tbe bank cashier do all tbe writing to appellant, and appellant’s letters were addressed to,tbe bank cashier, Mr. Boyden. Appellant objected to tbe introduction of some four letters alleged to have been written by him to Mr. Boyden. Tbe first letter states:

“I am in receipt of papers from Judge D. B. Hill, in re to that part of section 6, block A-7, public free school land, in Dallam county, Texas, owned by Mr. Peter C. Madson. * * * This land was sold at $2 an acre, I presume; hence the amount due on it is $897 for the 460 acres, or $898.56 for the 460.8 acres. The fees in the land office, if it has to be patented separately, will be about *$17, and it will have to be resurveyed, which will be an additional expense; but I will cut that out, and also one patent fee, by getting a straight deed from Clifton Egerton direct to Mr. Madson, covering the whole survey, and if I can succeed in doing this, which I think I can, it will cut the land office fee down to about $10, and my fee will be about $20, and in this case the surveyor’s fee will be entirely cut out. I will do the work, however, in the cheapest possible way that will be consistent with getting it absolutely correct in all things. Tou may remit $950 in any Eastern exchange, which X can use here and will be at no expense for exchange, and I will procure Austin exchange here. I am certain that this amount will cover, and probably will be a little more than enough. I write you thus fully in regai-d to the matter that Mr. Madson may' fully understand the situation, and by to-morrow I will have a complete abstract of the land before me and will get it in shape as rapidly as possible. Very truly yours,
“[Signed] W. S. Messner.”

Tbe next letter, among other things, states:

“I am in receipt of yours of 29th, with inelo-sure of draft for $950, and will advise you if' any hitch arises in patenting the land, which I do not anticipate,” etc.

The other two letters are directly relevant to tbe transaction, and all are admissible, if properly proven up. Mr. Madson testifies that Mr. Boyden received these letters at Sheffield, Ill., and be read them to him; that be and Mr. Boyden came to Texas together, and be was present when Mr. Boyden delivered tbe letters to tbe district attorney. Tbe letters are written upon letter beads bearing the following words:

“Hartley County Abstract Company, Incorporated. W. S. Messner, General Manager.”

Tbe letters are dated at Channing, Tex., and tbe banker at Channing, who testifies that appellant deposited tbe $950 draft in bis bank, also testifies that tbe signature to tbe letters—

“looks like W. S. Messner’s signature. I was familiar with his signature several years ago. In my opinion that is his signature.”

Tbe draft that was deposited was also indorsed “W. S. Messner.” There was no error in admitting these papers in evidence, and tbe bills complaining of their admissibility present no error. Tbe banker also testified that appellant checked tbe money out of tbe bank, and appropriated it. Commissioner of tbe Band Office J. T. Robison, testified:

“As Commissioner of the General Land Office I have charge and custody of the records and archives of that department. The balance of the purchase money due the state of Texas on section 6, block A-7, public free school land, Dallam county, Texas, was never sent to the land office by Mr. Messner or any one else. This land has never been patented. The defendant never did request a patent to that land, nor did he ever send the requisite amount of money or fees there to have it patented.”

Thus the evidence clearly shows that appellant received tbe money of Mr. Madson to have tbe land patented, made no effort to patent tbe land, and appropriated tbe money to bis own use. He did not testify in tbe case, nor seek to explain in any way why be did not make an effort to secure the patent for tbe land, nor what be did with tbe money after receiving it.

While Mr. Madson was testifying, he stated that Mr. Boyden did all tbe corresponding with Mr. Messner; that be would write for him; that be saw tbe letters, sealed in an envelope, and addressed to appellant at Channing; that they were then deposited in tbe box at tbe bank where all letters for mail were deposited; that be did not personally see the letters deposited in the post office. As none of these letters were introduced in evidence, nor tbe contents of them, the bills complaining of these matters present no error, unless it be the bill which states that tbe witness was permitted to testify that he had Mr. Boyden write to defendant to have the land patented; that Boyden had written appellant, “You get the land patented.” If there was no other evidence in the record that appellant contracted and agreed to get the land, patented, this bill would probably present error. The contents of the letters written by Boyden to appellant would perhaps not be admissible without a more specific showing that he received the letters, and a demand had been made on him to produce the letters on the trial, or secondary evidence of their contents would be introduced. But this statement, in the light of the statements contained in appellant’s letters, which were properly proven up and admitted in evidence, fenders the admission of the above testimony immaterial. In all of his letters he admits he had agreed to have the land patented. After writing as he did in the letters above copied, in other letters he writes:

“The patent may be a little slow in coming out of the land office, but that will be on account of waiting its turn. I have sent all necessary papers. I have gotten all necessary matters in shape to transfer the land and have the whole survey patented in one patent to Mr. Madson.”

Other similar statements are contained in appellant’s letters, and the isolated statement of Mr. Madson, above recited as being admitted in evidence, under such circumstances, presents no reversible error.

The indictment contained two counts— one charging embezzlement of the check, and the other charging embezzlement of the money. Both counts were based on the same transaction, and there was no error in refusing to require the prosecution to elect on which count they would ask for a conviction, nor in submitting both counts to the jury. Gonzales v. State, 12 Tex. App. 657; Green v. State, 21 Tex. App. 64, 17 S. W. 262; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647.

There is no proof nor suggestion in the evidence that appellant returned the money; therefore there was no error in refusing the special charge on that issue. The evidence shows he received the money, deposited it to his credit, and checked it out in small quantities. The evidence sufficiently shows that appellant had agreed as agent to secure a patent for the land for Mr. Mad-son, and the court did not err in refusing the peremptory instructions requested. In one letter he says:

“I will do the work in the cheapest way possible that will be consistent with getting it absolutely correct in all things. Yon can remit $950 in Eastern exchange. I am certain that this amount will cover, and probably will be a little more than enough.” .

As the letters disclose there was a specific agreement on the part of appellant to obtain a patent for the land, there was no error in refusing special charges Nos. 3 and 4. His letters disclose he knew he was acting for and on behalf of Mr. Madson, and he was not acting for Boyden.

The charge of the court fully and fairly submits all thé issues in the case, and the judgment is affirmed.
      @=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FRY v. STATE.
    (No. 3878.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.)
    1. Forgery &wkey;>29 — Forging Check — Indictment.
    An indictment charging accused with forging a check drawn by P., the county treasurer, by forging the indorsement of the payee thereon, was not insufficient for failure to allege facts showing P.’s authority to act as treasurer and to issue checks against the funds of the county, since accused was guilty of forgery if he in fact forged the payee’s name to a check valid on its face, though there existed facts not appearing on the check which rendered it invalid.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. <&wkey;29.]
    2. Criminal Law <&wkey;372 — Forging Check-Other Forgeries — Admissibility.
    In a prosecution for forging the payee’s name to a check issued by the county treasurer in payment of a warrant issued for road work, it was admitted that a large number of checks introduced in evidence were issued by the treasurer, and that the indorsement of accused’s name thereon was accused’s signature. The evidence tended to show that accused, as presiding judge of the commissioners’ court, O. K.’d an account made out for road work, which was presented to the county clerk who issued a warrant on the treasurer therefor, the treasurer issuing a check; that the check came into accused’s hands, who indorsed the payee’s name, as well as his own, thereon; that all the other cheeks introduced were obtained and indorsed with accused’s name in the same way, and accused cashed many of them; and that the names of the payees were in the handwriting of accused. Nearly all of the payees were fictitious, those who were not swearing that they did not receive or indorse the checks. Held, that such other checks were admissible in evidence, as showing a system which tended to prove the crime in question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;> 372.]
    3. Criminal Law &wkey;>636 — Jury Disagreeing — Remarks by Court in Accused’s Absence.
    Where, in a prosecution for forgery, the jury after retiring came into court announcing that they could not agree, and requesting to be discharged, and accused having left the court, the judge made remarks to the jury to the effect that trials were expensive, that they, and not the court must decide the case, and that while not wishing to punish them or extort a verdict, he desired them to return and deliberate further, such action was not error, since under his bond given as authorized by statute for remaining until verdict is returned, it was accused’s duty to remain in court while the jury was out, and his voluntary absence therefrom did not require the court to delay proceedings until his return.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. <&wkey;>636J
    4. Forgery &wkey;>16 — Passing Forged Instrument-Submission to Jury.
    Where accused indorsed the payee’s name to a check issued by the county treasurer for a road warrant, and indorsed his own name thereon in order to cash it at the county depositary bank whose officials testified to the custom of requiring the person collecting, a check to indorse his name thereon, and accused’s indorsement was the last appearing on the check, it was not error for the court to submit to the jury the count in the indictment charging accused with passing a forged instrument.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 51-53; Dec. Dig. <S=»16.]
    5. Criminal Law- <&wkey;351 — Forgery — Attempt to Suppress Evidence — Admissibility.
    In a prosecution for forgery, evidence that accused, a county judge, after his indictment for forging the name of the payee to a check issued by the county treasurer, visited the courthouse to get possession of a number of other checks, together with that in question for the purpose -of suppressing evidence, was admissible where the court limited the evidence to showing the visit, its purpose and the seriousness of the effort to suppress.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. &wkey;>351.]
    6. Criminal Law <&wkey;857 — Accused’s Failure to Testify — Jury Discussion.
    Where, after their retirement in a forgery prosecution, the jury discussed the failure of accused to testify in his own behalf, saying they thought it would be right for him to so testify, and that if he was not guilty he could have got up and said he was not, and such discussion occurred a number of times, it was ground for a reversal of the judgment of conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. <&wkey; .857.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    E. W. Fry was convicted of forgery, and he appeals.
    Reversed.
    Edgar Scurry, of Wichita Falls, Arnold & Taylor and Fred Arnold, all of Henrietta, and Ramsey, Black & Ramsey, of Austin, for appellant. P. A. Martin, Jno. C. Kay, and Leslie Humphrey, Dist. Atty., all of Wichita Falls, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was tried under ran indictment charging him with forgery and passing a forged instrument. The conviction was applied to the count charging forgery. The instrument alleged to be forged by alteration is as follows:

“I. B. Padgett, County Treasurer of Young County.
“No. 3515. Graham, Texas, 10 — 21—1013.
“Pay to J. M. Watson or order $154.00, one hundred and fifty-four & no/100 dollars.
■‘To the Graham National Bank, County Depository.
“[Signed] I. B. Padgett, County Treasurer.”

That appellant altered said instrument by indorsing thereon the name of the payee, J. M. Watson, thus making the check payable to bearer.

Appellant moves in this court to quash the indictment on the ground that the indictment does not show that the instrument, prior to the alteration, was an instrument possessing legal efficacy and obligation, in that there is no allegation of the facts showing the authority, if any, of I. B. Padgett to act as county treasurer, and as such, to issue this cheek against the funds of the county; the contention being that there should have been a specific allegation that I. B. Padgett was the duly qualified and acting county treasurer of the county, and that in the issuance of said check he acted in the performance of his duties under the law— that all the facts which would render the county legally liable for the amount of the check should have been affirmatively alleged. Appellant was not charged with forging the name of Padgett, but forging the name of J. M. Watson by indorsing his name on the check. If the check on its face purported to be a check issued by Padgett, county treasurer, on the Graham National Bank, as it did, if there were extrinsic matters not appearing on the face of the cheek that would render it invalid, this would render it none the less forgery for appellant to indorse the name of J. M. Watson on the check. If Watson had in fact received the check and indorsed it over to a' third person, he would certainly be liable to such person, for the check on its face purported to be a valid check for the amount named. We do not care to take up and review the authorities again, as we did so quite exhaustively in the case of Dreeben v. State, 71 Tex. Cr. R. 341, 162 S. W. 501. In. the case of King v. State, 42 Tex. Cr. R. 108, 57 S. W. 840, 96 Am. St. Rep. 792, the authorities are also reviewed, and under the authority of those two cases the instrument in this case, on its face, being a valid instrument, would make appellant guilty of forgery if he indorsed the name of J. M. Watson thereon. It is not customary for a check to bear on its face that it is issued by virtue of article so and so of the Revised Statutes, and the person who signed it is the duly elected, acting, and qualified treasurer of a given county, and no person would look for such averments in the face of a check.

Appellant contends that it was error to admit certain other checks in evidence, which it was contended appellant had also forged, in a similar manner in which it was alleged he committed this forgery; that evidence of other crimes committed by him, if he did do so, should not have been admitted. Usually this is the rule, but the exception to the rule is as well recognized as the rule itself. In the statement of facts it is alleged that some 500 or 600 of these other checks were admitted in evidence, while in the bills of exceptions complaining of the matter it is recited that there were about 150 of these other similar checks admitted. The number is immaterial. If one was admissible, then all were admissible, under the agreement we find in the record. It reads:

“It is agreed by counsel and it is admitted by the defendant that the entire bunch of warrants purporting to be issued by the county clerk of Young county and his deputies and the entire bunch of checks purporting to be issued by I. B. Padgett, county treasurer of Young county and drawn on the Graham National Bank, are each and all the genuine warrants, so issued by the clerk, and that the checks are the genuine checks of I. B. Padgett, drawn by him or by his authority, and that the indorsements appearing on the back of said checks, as E. W. Pry, are the genuine indorsements and signatures of the defendant, E. W. Pry.”

Thus it is seen that after this admission was made, about the only issue left for the jury to decide was: Was the indorsement of J. M. Watson forged, and, if so, did appellant forge that name? Appellant introduced evidence tending to show that if the name was forged, he did not forge it. At his instance J. P. McKinley testified:

“I have seen some of Judge Pry’s [appellant’s] handwriting. Prom having seen his signature and having seen his handwriting, I think I would know his handwriting if I were to see it. I could not swear that the ‘J. M. Watson’ up there is in Judge Pry’s handwriting. Prom my observation and experience with Judge Pry’s handwriting, I do not see any similarity. I do not see anything that would impress me that he wrote that name.”

He had other witnesses testify in substance the same thing. On the other hand, J. S. Oglesby testified for the state he was an expert accountant; that he had made a study of handwriting for 19 years. He goes into detail as to the way he identifies signatures, and says that in his opinion appellant wrote the indorsement “J. M. Watson” on the check. He also testified he had examined all the checks introduced in evidence, and that in his opinion “E. W. Pry wrote the indorse-ments upon each of the checks” introduced in evidence. Other witnesses gave testimony that would authorize the jury to believe that appellant wrote the indorsements. Thus it is seen the issue was squarely drawn as to whether or not appellant forged the name of J. M. Watson on the cheek, and all evidence which would legitimately tend to show that he did do so would be admissible. The evidence for the state would tend to show appellant was county judge of Young county; that an account was made out for road work for the amount of this check in the name of J. M. Watson, and it was marked “O. K.” by Judge Pry as presiding judge of the commissioners’ court; that it was then presented to the county clerk, who issued a warrant on the treasurer for that amount, and the treasurer gave the check payable to the order of J. M. Watson upon which this charge of forgery wás presented. This warrant issued by the county clerk, and the cheek issued by the treasurer, is traced into the hands of appellant, and in addition to the indorsement of “J. M. Watson,” it has his name indorsed thereon, which indorsement appellant admitted to be genuine. All the other cheeks introduced in evidence, issued to various people, are shown to have been obtained in the same way, and bear the genuine indorsement of appellant. The evidence shows where he used and cashed many of them. The testimony for the state is that the indorsements made on all the checks, the various names of the payees, are in the handwriting of appellant, but whether indorsed by him or not, it is shown he passed many, if not all, of them, and received the proceeds. Thus a system is shown of presenting accounts for road work against the county, extending over 2 years or more, for which the evidence would justify a finding that no work had been done on the roads; that in nearly every instance they were issued in the names of persons whom the road superintendent says did not work on the road; that persons by such names could not be found in the county, except in four instances, and in these four instances the men swear they did not receive the checks and did not indorse them; yet they are all indorsed with the name of the person appearing on the face of the check as payee, and Mr. Oglesby says indorsed in the handwriting of appellant, and in addition thereto are indorsed “E. W. Ery,” which indorsement appellant admits to be genuine. In our opinion if there ever was a case where other crimes became admissible as tending to show a system of forgery being practiced, this is such a case. Such evidence would enable the jury to pass on the question of whether or not appellant wrote the name of J. M. Watson on the check in this case and passed the same. It would be a circumstance tending to show that he did so. Dugat v. State, 72 Tex. Cr. R. 40, 160 S. W. 376, and cases cited; McGlasson v. State, 37 Tex. Cr. R. 620, 40 S. W. 503, 66 Am. St. Rep. 842; Taylor v. State, 47 Tex. Cr. R. 101, 81 S. W. 933.

Of course, when the state offered this proof, appellant should be, and was, permitted to offer proof that the signature on none of the checks was in his handwriting. The court in his charge limited the purpose for which such checks could be considered by the jury, and instructed them:

“You cannot consider for any purpose any of such cheeks, other than the J. M. Watson check, except such [if any] as you may find and believe from the evidence, beyond a reasonable doubt, were altered by the defendant, without lawful authority and with intent to injure and defraud.”

Therefore it was unnecessary to give the special charge requested on this issue.

By a bill it is made to appear that after the jury had been considering the case for some 40 hours, they came into court and requested that they be discharged' — that they did not think they could agree on a verdict. The appellant was not present at this time, and the court in answer to such request stated to the jury:

“Gentlemen, all jury trials are attended with considerable expense. This matter has to be decided by a jury. The court cannot decide it, and it seems to the court that you are just as capable of deciding it as any other jury. The court is not keeping you together as a matter of punishment, nor to try to extort from you a verdict either way. I don’t want any juror to render a verdict that he does not consider fair and honest, or one that is against his conscience, and if a juror should return a verdict that he did not consider fair and honest, or one that was against his conscience, the court would not receive it if he knew it. It might be that by a further deliberation of this case you could arrive at some conclusion one way or the other, and I will ask that you retire and further consider of your verdict.”

Appellant contends it was error for tlie court to make any such remarks to the jury in his absence. This might toe such a matter as appellant could complain of, as occurring in his absence, prior to the enactment of those xjrovisions of the statute authorizing him to remain on bond until the verdict of the jury is returned, and authorizing the court to receive the verdict in his absence if he intentionally absents himself from the court. A person on trial is supposed to and should have as much interest in a case as the trial judge, and it is his duty under his bond to remain in attendance on the court while the jury is out considering his case. If he intentionally and deliberately walks out of the courtroom and remains away, he cannot and should not expect the court to delay the proceedings to await his pleasure in returning to the courtroom. The above remarks are not of a character that could have been injurious to appellant, but were proper to be made to the jury when they asked to be discharged.

We think there was ample evidence authorizing the court to submit to the jury the count charging appellant with passing a forged instrument. The check was indorsed by him, and paid at the bank, and the bank officials testify it was their custom to require the person to whom they paid a check to indorse his name thereon. Appellant’s indorsement was the last appearing on the check, and the court did not err in submitting this count, and refusing the special charges instructing the jury not to consider that count. The verdict was applied to the count charging forgery.

It appears that after appellant was arrested he and some friends went to the courthouse to get possession of the checks on which the indictments were based-—the state’s contention being that it was an effort to destroy and suppress testimony. On this visit appellant is shown to have been present, and a shooting occurred in which two men were killed, and another injured. No effort was made to show that appellant was guilty of murder on that occasion, but on the other hand it was in evidence that he had been tried and adjudged not guilty of that offense. No details on another trial should be gone into further than to show tile visit, the purpose of the visit, and the seriousness of the effort. This much of the testimony was admissible, and the court did not err in so holding. The court properly limited the purpose of the testimony. Mr. Wharton, in section 74S, says the suppression or destruction of pertinent testimony is always a prejudicial circumstance of great weight; for, as no act of a rational being is performed without a motive, it naturally leads to the inference that such evidence if it were adduced would operate unfavorably to the party in whose power it is. Evidence to suppress testimony is admissible as a circumstance of guilt the same as flight, evading arrest, etc.

The only other question discussed in appellant’s brief, and the only one we deem it necessary to discuss, is the one which contends that the jury discussed appellant’s failure to testify while considering the case, and this bill, we think, presents error. The only case the state cites as holding that the bill presents no error is Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 365. We think the Cooper Case correctly announces the law, but the facts in this case are wholly different from the facts in that case. In this ease one juror, Mr. Dodson, testified:

“Q. State to the court whether or not you heard anybody refer to his failure to testify while you were in the jury room. A. Yes; I did. Q. State to the jury what was said. A. Well, they said that they thought that it would be right for him to testify in his own behalf. Q. Do you know who it was that said that? A. There were three or four said it, but I could not get up and point out the men. Q. Could you tell us how many times you heard mention made about his failure to testify in his own behalf? A. Well, every day. Q. About how often would you think that occurred? A. Well, I would not like to say how many times a day, but mighty near every time we would get to arguing it was brought up.”

Another juror, Mr. Roland, testified:

“Q. Mr. Roland, state whether or not upon the trial of this case you heard anybody refer to the fact that E. W. Fry did not testify and what they said. A. Oh, I do not know what they did say; they said that if he was not guilty, he could have got up and said that he wasn’t, etc.”

Every juryman who testified says that the fact that appellant - did not testify was mentioned. Some say they heard it only once and it was suppressed. Others testify they heard it mentioned four or five times.

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

DAVIDSON, J.

I agree to the reversal on ground stated, and believe there are other grounds for reversal, and may add some reasons.

I do not believe either the extraneous alleged offenses or the details thereof should have been admitted; also that, having admitted these matters, appellant was entitled to his witnesses to meet and counteract the force of such admitted alleged offenses.
      i@^>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      (grroFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILLIAMS v. STATE.
    (No. 3885.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    On Motion for Rehearing, Feb. 2, 1916.)
    1. CRIMINAL Law <&wkey;448 — Evidence-Tracks — Conclusion oe Witness.
    In a prosecution for theft of peas, a witness’ testimony that he found wagon tracks and mule tracks in the road near where the peas were taken and traced the tracks and found peas spilled on the ground and walked on and saw similar tracks was admissible, over objection that it was a statement of a conclusion and incompetent in the absence of any measurement of the tracks having been made by him.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1089, 1041-1043, 1045, 1048-1051; Dec. Dig'. &wkey;448.]
    2. Larceny <&wkey;51 — Evidence — Identification of Stolen Property — Presence of Officer.
    In a prosecution for the theft of two bushels of black-eyed peas, the complaining witness was properly permitted to testify that, when he went to defendant’s house and identified the peas found there as belonging to him, the sheriff was with him.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 144-146; Dec. Dig. &wkey;51.]
    3. Criminal Law <&wkey;417 — Identification of Stolen Property — Evidence—Presence of Defendant.
    That defendant was not present when the complaining witness identified property found on defendant’s premises as being’ the stolen property did not render inadmissible such witness’ testimony as to his identification of the property.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dee. Dig. <&wkey;>417.]
    4. Witnesses <&wkey;387 — Cross-examination-Wife of Accused.
    Where, in a prosecution for the theft of two bushels of peas, defendant’s wife testified that she saw her husband buy the peas found at their home, the state was properly permitted to ask her, on cross-examination, whether she did not tell the sheriff, at the time the peas were found that all she knew about it was that her husband told her he had bought them.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1228-1232; Dec. Dig. &wkey;387.]
    5. Witnesses <&wkey;391 — Impeachment — Wife of Accused.
    Where defendant’s wife testified that she saw her husband buy peas identified as those stolen, it was competent to impeach her by Testimony of the sheriff that she told him that all she knew about the peas was that her husband told her he bought them.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1248; Dec. Dig. <&wkey;>391.]
    6. Criminal Law &wkey;>889 — Correction of Verdict — Assessment of Penalty.
    Where, in a prosecution for theft of two bushels of black-eyed peas, the verdict returned assessed defendant’s punishment at a fine only, the court properly directed the jury to return to their room and, if they found defendant guilty, assess a jail penalty.
    [Ed. Note. — For other cas.es, see Criminal Law, Cent. Dig. §§ 2109, 2110, 2112; Dec. Dig. <&wkey;>889.]
    On Motion for Rehearing.
    7. Witnesses <&wkey;188 — Husband and Wife-Confidential Communications.
    Where defendant’s wife testified that she saw her husband buy peas identified as those stolen, permitting the sheriff to testify that she told him all she knew about the peas was that ■her husband told her he had bought them- was not error, as permitting her to be contradicted by a confidential communication made to her by her husband.
    [Ed. Note. — For other cases, see Witnesses, Cent Dig. §§ 734, 736; Dec. Dig. <&wkey;188.]
    8. Criminal Law <&wkey;1043 — Appeal—Presentation Below.
    Objections, other than those made below, to the court’s refusal to receive a verdict of guilty until it had been corrected by the jury, could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. &wkey;> 1043.]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    E. W. Williams was convicted of theft — a misdemeanor — and appeals.
    Affirmed.
    W. B. Featherston and W. E. Myres, both of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft — a misdemeanor — and his punishment assessed at a fine of $25 and 30 minutes’ confinement in the county jail.

Z. C. Jones testified to having lost two bushels of black-eyed peas. In the first bill, it is shown he testified:

“On the next morning I was again at the house, and the sack of peas were gone. At the side of the road I saw where a wagon had turned out of the road in front of said house. The tracks of the wagon and horses were in the soft dirt on the side of the road, and I noticed that where the wagon had stopped at the side of the road some cotton seed hulls had been spilt on the ground, and I also found somo of the black-eyed peas on the ground. I walked up the road in the easterly direction to Morgan Peacock’s pasture, and I saw the track of some horses and a wagon in Morgan Peacock’s pasture; the tracks of the horses in Morgan Peacock’s pasture were the same as the tracks of the horses that I' saw where the wagon turned out of the road in front of the house from which the peas were taken. The horses were shod. I did not measure any of the tracks nor the hoofs of the defendant’s horses.”

Appellant objected to this testimony because it called for the conclusion óf the witness; that in the absence of measurement having been made by the witness he should not be permitted to testify that the tracks about which he first testified and the tracks' he found in Morgan Peacock’s pasture were the same tracks. The testimony, in fact, would show the witness found the wagon tracks and mule tracks in the road near the house from where the peas were taken, and he traced those tracks and found where some cotton seed hulls and black-eyed peas had been spilled on the ground, and he walked on and saw" similar tracks in Morgan Peacock’s pasture. Such' testimony was held to be admissible in the case of Porch v. State, 50 Tex. Cr. R. 341, 99 S. W. 102, wherein it was said:

“Witness stated that he observed those tracks, and that they looked to Mm to be the same tracks; that is, made by the same person both coming and going. We believe that this testimony was admissible, and any objection urged thereto would go to the weight, and not to its competency. As we understand it, this is not a comparison between a track on the ground where the homicide occurred and a track found somewhere else, or between the appearance of a track made by defendant and a track found on the ground. But it is a comparison by the witness of tracks going and coming, found in juxtaposition to each other, and in the immediate vicinity of the spot where the homicide was committed. Gill v. State, 36 Tex. Cr. R. 595 [38 S. W. 190]: Weaver v. State, 46 Tex. Cr. R. 617 [81 S. W. 39].”

The next bill complains that Mr. Jones was permitted to testify that, when he went to appellant’s house, and identified the peas there found as his peas, the sheriff was with him. Appellant objected to the witness being permitted to testify who was with him. This was clearly admissible, and such testimony would have no tendency to cause the jury to believe the sheriff thought appellant guilty. At any rate, there was no error in permitting the witness to state who accompanied him. It is also contended that it was improper to permit the witness to testify he identified the peas as the peas stolen from him; defendant not being present. This has been clearly settled adversely to appellant’s contention in Davis v. State, 55 S. W. 341.

Defendant placed his wife on the stand as a witness, and had her testify that she was in Cleburne and saw her husband buy the sack of black-eyed peas found at their home from a man; that her husband paid !?3 for the peas. These were the peas Jones claimed to identify as his peas, and on cross-examination, the state asked her if she did not tell Sheriff Cooper, while Cooper and Jones were at their house, “that all you knew about the peas was that your husband told you he had bought them.” She denied making this statement. Appellant objected to this question, as he had asked his wife nothing about what she had told the sheriff. The question was proper cross-examination, as appellant’s wife, at his instance, had testified she saw him purchase the peas and pay a man $3 for the peas. She could be impeached on that testimony, the same as any other witness and there was no error in permitting the sheriff to testify that Mrs. Williams had told him “that she knew the peas belonged to them, because her husband told her he had bought the peas.”

After they had retired and considered the case, the jury returned into court the following verdict:

“We, the jury, find defendant guilty as charged in the indictment and assess his punishment at a fine o-f $25.00.”

When this verdict was read by the clerk, the court requested the clerk to hand the papers to him, when the court instructed the jury they must retire to their room, and if they found appellant guilty, under the law, "they must assess as part of the punishment a jail penalty. Appellant objected to this proceeding, contending that, as the verdict as at first returned did not assess a jail penalty, but only assessed a pecuniary fine, the defendant should be discharged. The court acted properly in refusing to receive the verdict and instructing them, under the law, to return to their room, and if they found appellant guilty, they must assess some imprisonment in the jail. As the verdict first returned found appellant guilty, he was not entitled to be discharged from custody, and until the jury had been discharged, the court could, and properly did, require them to return a verdict in accordance with law.

The evidence is conflicting, but under the testimony of Mr. Jones appellant would be guilty, and the jury so find, and we are not, under such circumstances authorized to disturb it.

Affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing and insists the court erred in holding that there was no error in permitting the sheriff to testify as to what Mrs. Williams told him, contending that this was permitting her to be contradicted by a confidential communication made to her by her husband. Mrs. Williams was not asked what her husband told, nor asked if her husband told her anything. She testified she was present when her husband bought the peas. On cross-examination, she was asked if she did not tell the sheriff, at the time the peas were found, “that all she knew about the peas was that her husband told her he had bought them.” As she had testified she was present when her husband bought the peas at his instance, it was permissible to show she had made a different statement to the sheriff, if she did so, as tending to impeach her. The sheriff was only permitted to testify to what he said Mrs. Williams had told him. This was her statement made to the sheriff, and was in no sense a confidential communication between the husband and the wife. The husband was not even present when she made the statement.

The only other ground in the motion is appellant contends that the court erred in what he said to the jury when he refused to receive the verdict first brought into court. The only objection urged at the time, • as shown by the bill, is as follows:

“That the defendant then and there objected to the remarks as made by the court because same were made orally and were highly improper, and further objected because the jury had returned the verdict, which each juror said was the verdict of the jury; and it was improper for the court to again instruct the jury to retire because the verdict as read by the jury was tantamount to his acquittal, and the court should have discharged the defendant.”

Appellant seeks in this court to make other objections, not then made to the trial court. If he desired to make such objections as he now seeks to make, he should have made them at the time, and doubtless the trial judge would have conformed the proceedings in accordance with such request. It is too late to raise such matters in this court for the first time.

The motion is overruled.

DAVIDSON, J., not present at consultation.
      (S=3jPor other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    SMITH v. STATE.
    (No. 3917.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.)
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    M. Smith was and
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant appealed from a conviction for bigamy, but has neither a statement of facts nor a bill of exceptions. No question is presented which can be reviewed in the absence of these. Therefore the judgment must necessarily be affirmed.


text:
    ARMSTRONG v. STATE.
    (No. 3884.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Henry Armstrong was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of punishment assessed at two years’ confinement in the state penitentiary.

No statement of facts nor bills of exception accompany the record. Under such circumstances there is no question presented by the motion for a new trial we can review.

The judgment is affirmed.


text:
    OZMENT v. STATE.
    (No. 3906.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.)
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    E. L. Ozment was convicted of crime, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was con-an aggravated and assessed the lowest punishment, a fine of $25.

There is no bill of exceptions nor statement of facts; hence, nothing presented which can be reviewed.

The judgment is affirmed.