text:
    RUSSELL v. STATE.
    (No. 5202.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.
    On Appellant’s Motion for Rehearing, March 19, 1919.)
    1. Criminal Law <&wkey;923(l) — Refusal to Geant New Trial.
    Refusal to grant new trial, when it was disclosed that one of the jurors who had rendered verdict of guilty of murder was an unpardon-ed convict, requires reversal of judgment, in view of Code Cr. Proe. 1911, arts. 692, 695, as to qualification of jurors.
    2. Homicide <&wkey;166(2) — Motive — Evidence Admissible,.
    Where the evidence justified conclusion that the abuse of defendant’s friend at a hotel furnished motive for the homicide, and it appeared that deceased participated in the difficulty at the hotel, proof of details of the encounter at hotel, as well as a conversation had by defendant with his friend, in which the latter gave a detailed account of the occurrence, was relevant.
    3. Homicide <&wkey;158(3) — Animus — Evidence Admissible.
    Where the state’s theory was that defendant’s purpose to punish those responsible for the abuse of his friend was accomplished in the killing of deceased, testimony that defendant had stated that any one beating his friend “is going to settle with me; * * * I will stay with my friends to the limit” — disclosed animus toward those connected with the friend’s injury, and defendant’s intent to find them, and was admissible.
    4. Witnesses <&wkey;379(2) — Impeachment op Dependant — Inconsistent Statements.
    In prosecution for the murder of one who took part in an altercation with defendant’s friend at a hotel, testimony to the effect that defendant said he had been looking for the hotel proprietor for the purpose of killing him was properly received in rebuttal of defendant’s testimony that his visits to the hotel were for another purpose.
    5. Criminal Law <&wkey;673(3) — Rebuttal— Limiting- Testimony to Impeachment Purposes.
    Although denied by accused on cross-examination, the court was not required to limit to impeachment purposes testimony admissible in rebuttal.
    6. Witnesses <&wkey;328 — Credibility — Evidence, oe Intoxication.
    In prosecution for murder, where defendant testified to facts on which self-defense was predicated, there was no error in allowing evidence that he was under the influence of intoxicants; such evidence bearing on the weight of his testimony. ¡

      7. Criminal Law <&wkey;396(l) — Caeeying Aems —Evidence Admissible.
    In prosecution for murder, admitting testimony that defendant exhibited his pistols was not error, where he testified to his habit of •carrying arms.
    -8. Homicide <&wkey;194 — Self-Defense — Evidence Admissible.
    In prosecution for murder, where defendant claimed that he did not shoot until deceased moved his hand to his right side, the position of the arm of deceased was a material inquiry on issue of self-defense, and the coat worn by deceased at the time of the homicide was relevant on that issue.
    •9. Juey <&wkey;72(3) — Resobt to Juey .Wheel foe Talesmen.
    The provision of Code Cr. Proc. 1911, arts. ■644-654, constitute rules for drawing juries in ■capital cases, and complaint of failure of court to resort to jury wheel for talesmen cannot be sustained, in view of article 667 as to procedure, where there is a failure to select jury from special venire.
    10. Homicide i&wkey;309(2) — Manslaughtee—In-steuction.
    Refusal to charge on manslaughter cannot be justified on the ground that the defendant said he shot in self-defense, since defensive issues arise from the whole case and are not controlled by the evidence of accused.
    11. Homicide <&wkey;309(2) — Manslaughter — Submission of Issue,.
    The incidents leading up to the homicide, together with defendant’s testimony, held to present a condition in which the propriety of refusing to submit the issue of manslaughter was ■so doubtful .that request therefor should not have been denied.
    On Motion for Rehearing.
    12. Homicide <&wkey; 158(4) — Malice — Theeats Against Thied Pebson.
    In prosecution for murder of one who took part in altercation resulting in injury of defendant’s friend, testimony of a witness, quoting defendant as saying, “I would just as soon kill you as any one,” was inadmissible; there being no suggestion in the evidence that the witness was connected with the injury.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    W. G. Russell was convicted of murder, and appeals.
    Reversed and remanded.
    W. I-I. Bledsoe, of Lubbock, and Lea, Mc-■Grady & Thomason, and Hudspeth & Harper, all of El Paso, for appellant.
    Leigh Clark, Dist. Atty., of El Paso, and E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for murder.

A reversal of the judgment of conviction in this cause must result from the refusal of the trial court to grant a new tidal, when it was disclosed on hearing thereof that one of the jurors who rendered the verdict was an unpardoned convict. The statute required this. Article 692, Code Cr. Proc., declares that one convicted of any felony is disqualified to sit on a jury, and article 695 of the Code declares that “no such juror shall he impaneled, * * * although both parties consent thereto.” This court in Rice v. State, 52 Tex. Cr. R. 359, 107 S. W. 832, held that when, on motion for new trial, it was shown that one of the jurors who rendered the verdict had been convicted of a felony, and was unpardoned, the law requiring that the verdict be set aside was imperative. This view is supported by the earlier and the later cases. Greer v. State, 14 Tex. App. 179; Bundick v. State, 59 Tex. Cr. R. 10, 127 S. W. 543.

A judgment of the district court of Dallas county, showing the conviction of Joe Bozza of a felony, was introduced. An issue of fact was formed concerning the identity of the juror Joe Vozza as the convict. From the penitentiary authorities it was shown that Joe Bozza, sometimes called Joe Yozza, served the sentence; that his residence was El Pazo, Tex., and gave a minute and detailed description of the convict, showing that he was an Italian, his height, weight, color of eyes and hair, location and description of three scars, his occupation, the name of relatives residing in El Paso, his conviction at Dallas in 1906. Vozza’s wife and sister-in-law and others testified, showing that the description of the convict who served the sentence coincided with that of the juror in detail.

His wife and relative testified to his absence at Dallas at the time of his conviction, ascertained from correspondence with him, and to the' receipt of letters from him postmarked at Huntsville, Tex., while he was in the penitentiary there, and advising them of that fact. It was shown that he had stated to parties, and in a deposition after he was released and returned to El Paso, that he had been convicted of the offense mentioned. He was offered as a witness, and would have testified to his identity with the convict Boz-za, but the court rejected his evidence on the ground of disqualification. It was affirmatively shown that he had not been pardoned. The fact that he was a convict was established, and the trial court was without discretion to determine the contrary. Some of the evidence on the hearing relative to motion for new trial was by affidavit. We understand the statute to authorize their use. C. C. P. art. 841; Haggart v. State, 77 Tex. Cr. R. 270, 178 S. W. 328; Dougherty v. State, 59 Tex. Cr. R. 474, 128 S. W. 398.

On the night of January 2d, appellant shot and killed Charles Qualey. Immediately before the homicide deceased and one Buchoz were in conversation on a street of El Paso, near tiie Sheldon Hotel. Buchoz; testifying as a witness for the state, declared that while he and deceased were engaged in a conversation the deceased was shot without having made any demonstration or engaged in any conversation with appellant. Appellant claimed that he was not acquainted with deceased; that he and a companion, while walking on the street on a business mission passed near Buchoz and deceased; that his attention was attracted by one of them calling his name, which was immediately followed by one of them saying, “Russell, come here;” that he had previously met Buchoz, but did not at the time recognize him or know his companion. On responding to the call deceased said to him, according to his testimony, “I understand you are hunting Louis Ziegler and making a lot of talk about Ted Houghton being beat up,” to which appellant replied, “He is a friend of mine,” and said, “What is that your business?” whereupon deceased said, “I will damn quick make it my business,” and moved his hand to the right side, and stepped back with one foot, whereupon appellant drew his pistol and fired.

The incidents in evidence leading up -to the homicide disclose that on the evening of December 31st one Houghton, in a difficulty at the Ziegler Hotel, in El Paso, had been severely beaten and injured, and had been taken to a hospital, and that on the following morning appellant learned of the occurrence, and, being a friend of Houghton's visited him and found him with his leg broken, his nose broken, and otherwise severely injured, and, as appellant thought, seriously injured. He requested Houghton to state the details of the occurrence, which was done, and which, in substance, were that Houghton and some friends, including one Smith and Kinne, while on a spree, had entered one of the booths in the Ziegler Hotel, and, after remaining there and drinking awhile, Hough-ton and Smith approached or entered a nearby booth in which were the deceased, Qualey, and some companions, and that deceased insulted Smith, whereupon Houghton struck deceased and started out of the building, and was overtaken by Zieglér, the proprietor. Ziegler seized his wrist; ■ Houghton struck Ziegler, whereupon some negro employés of Ziegler joined in the mélée and attacked Houghton. In the encounter Houghton received the injuries mentioned. Appellant expressed resentment and showed agitation over the occurrence, and insisted that he was going to ascertain the truth and going to make Ziegler close the hotel and discharge the negroes.

The evidence is undisputed that appellant went to the Ziegler Hotel on several occasions prior to the homicide. The state introduced evidence to the effect that appel-lant was armed, and had gone to the hotel for the purpose of killing Ziegler, and had uttered various threats; that he was drinking intoxicants on the day of the homicide, appellant admitting that he was at the Ziegler Hotel, but controverted the threáts and design to kill, but claimed that his purpose was to investigate the facts preliminary to instituting prosecution for the assault on Houghton. There was evidence that at the time of the difficulty at the hotel Qualey was under the influence of intoxicants, and that on the occasion of the homicide Buchoz was intoxicated. There was evidence justifying the conclusion by the jury that the treatment of Houghton in the difficulty at the Ziegler Hotel furnished the motive for the homicide, and, it appearing that deceased was a participant in that difficulty, at least in its inception, and that appellant had knowledge of the occurrence independent of the relation of it by Houghton, we think proof of the details of the encounter at the Ziegler Hotel was relevant, and are likewise of the opinion that the conversation had by appellant with Houghton at the hospital was admissible, upon the same principle. The evidence shows that Houghton, in that conversation, told appellant that the difficulty was caused by deceased insulting Houghton’s companion, and that Houghton’s assault on deceased resulted in the assault by Ziegler and his negro employés on Houghton. Appellant at once disclosed that he was incensed by the occurrence, and aggrieved at those who took part in it. This was emphasized by his subsequent conduct and threats. Appellant expressed his indignation and intentions to Houghton in the presence of Buchoz, the friend of deceased with whom he was conversing at the time he was killed. From the conversation of Buchoz and deceased, heard by appellant, relative to the difficulty with Houghton, and from appellant’s testimony concerning the conversation with, and conduct of, deceased at the time of the homicide, it would be not unnatural to infer that deceased was a party to the outrage upon Houghton, and that appellant was so impressed at the time he fired.

Whether the abuse of Houghton furnished the motive for the homicide, and whether appellant was aware that deceased was one of the objects of appellant’s resentment, were at least issues of fact arising from the evidence in the case, and the admission of the evidence relating to the details of the difficulty with Houghton and appellant’s knowledge thereof, his expressed intentions and circumstances disclosing that they were hostile toward the participants in the difficulty, and his desire and efforts to, acquaint himself with them, were relevant to aid the jury in deciding the accuracy of the state’s theory that appellant’s purpose to find and punish those responsible for his friend Houghton’s distress was accomplished in the killing of deceased.

The testimony of Gilchrist that appellant said: “X have been over to the Ziegler Hotel twice looking for Louis Ziegler, but he is hiding from me, and X cannot find him. This beating up of an old friend and business partner, Ted Houghton, and any one doing it is going to settle with me;” and that appellant, throwing his pistol on the table, said: “You are a friend of mine, but I had just as soon kill you as any one; I am here to do business, and if you see me doing business, don’t lay your hands on me;” also that he exhibited the card with the names of Smith and Kinne written thereon, and said: “I want to see these men, and there are others, and I want to find out where they are; I have, the names of two parties, and I am looking for more of them;” the testimony of Mrs. Franklin that appellant while at the Ziegler IXotel talked to her about his friend Houghton’s beating up, and said: “I will stay with my friends to the limit” — were statements which we think, while they do not name deceased, disclose the animus of appellant towards those connected with Houghton’s injury, and his intent to find them, and carry the implication that they include all connected with it. See Branch’s An. P. C. § 2072; Williams v. State, 40 Tex. Cr. R. 501, 51 S. W. 220.

The testimony of McKnight and Gilchrist to the effect that appellant said he had been looking for Ziegler for the purpose of killing him was properly received in rebuttal of appellant’s testimony that his visits to the Ziegler Hotel were for the purpose of learning (he facts preliminary to instituting a prosecution, and, being admissible in rebuttal, the court was not required to limit them to impeachment purposes, although, when called to his attention on his cross-examination, were denied by appellant.

Appellant testified to the facts on which self-defense is predicated, and we think there was no error in allowing evidence that he was under the influence of intoxicants. It bore on the weight of his evidence. Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 700; Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 405; Wallace v. State, 65 Tex. Cr. R. 654, 145 S. W. 925; Wharton’s Crim. Ev. vol. 2, p. 1720, and vol. 1, p. 785.

As to the testimony of the witness Vaughan, to the effect that shortly after the homicide he asked appellant “why he did it,” and received no reply, even if any inference adverse to appellant could be drawn from his failure to make reply (which is not at all clear), it does not sufficiently appear that appellant heard the question. Wharton’s Crim. Ev. vol. 2, § 680; O’Quinn v. State, 55 Tex. Cr. R. 18, 115 S. W. 39; Frazier v. State, 52 Tex. Cr. R. 131, 105 S. W. 508.

We think the bill of exception to the admission of the testimony of McKnight going to show that appellant exhibited his pistols discloses no error. The appellant testified to his habit of carrying arms.

The position of the arm of deceased was a material inquiry on the issue of self-defense, and, as we understand the record, the coat worn by deceased at the time of the homicide was relevant on that issue.

The provisions of title 8, c. 2, C. C. P., R. S. 1911, constitute the statutory rules for drawing juries in capital cases. The act, of the Legislature (General Laws 1907, p. 269, amended 1911) establish procedure for using a wheel instead of jury commissions in counties containing cities of over 20,000 inhabitants. There is found in that act, with reference to drawing special venires in capital -cases, only article 660, C. C. P. 1911, which designates a method for drawing a special venire, and in the act there is no provision touching the method to be pursued after the venire is exhausted. Article 667, which is a part of title 8, O. O. P., says that:

“When, for any cause, there is a failure to select a jury from those who have been summoned upon the special venire, the court shall order the sheriff to summon any number of persons that it may deem advisable for the formation of the jury.” Mays v. State, 50 Tex. Cr. R. 169, 96 S. W. 329.

The complaint of the failure of the court to resort to the jury wheel for the talesmen cannot be sustained.

The state attempts to sustain the action of the court in refusing to charge on manslaughter on the ground that appellant said he shot in self-defense. Defensive issues arise from the whole case, and are not controlled by the evidence of the accused alone.

The extent to which the assault on Houghton incensed and angered appellant, and the various circumstances and incidents indicating that he continued in a state of rage and excitement therefrom; the fact that, according to appellant’s testimony, at the moment of the homicide direct reference was made by deceased to the Houghton affair, and he assumed a hostile attitude toward appellant by reason thereof, coupled with appellant’s evidence that at the time of the homicide the threatening words and conduct of deceased frightened him, present a condition in which the propriety of refusing to submit the issue of manslaughter is so doubtful that a request of appellant therefor should not be denied.

Reversed and remanded.

On Motion for Rehearing.

The conversation with Gilchrist, set out in the original opinion, was held admissible on the theory that it went to show the malevolent disposition and design of appellant toward all persons, known or unknown, whom he should identify as causing, inspiring, or participating in the assault upon Hough-ton, and the extent to which his malignance would be carried. Touching a similar transaction, Judge Ramsey, writing an opinion for this court said:

“That part of his declarations in which appellant expressed himself as ready for trouble would be admissible with the view of showing, in connection with his act of preparation, reckless disregard of the safety of any one and every one who might antagonize him,' and as showing a malignant disposition of all persons, or at least such class of persons, as might or would embrace the deceased.” Helvenston v. State, 53 Tex. Cr. R. 640, 111 S. W. 959.

See, also, Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Taylor v. State, 44 Tex. Cr. E. 549, 72 S. W. 396; Wharton on Homicide, § -; Wharton’s Crim. Ev. §§ 756, 709.

That part of the testimony of Gilchrist quoting appellant as saying, “I would just as soon kill you as any one,” taken in connection with the remainder of the conversation, we did not regard as trenching on the rule excluding threats against third parties. Wharton’s Orim. Ev. § 910. That part of the testimony quoted, however, we have, on further reflection, concluded should not on another trial be admitted, there being no suggestion in the evidence that the witness Gilchrist was in any way connected with the injury of Houghton, nor that appellant so regarded him. To the extent that the expression, “I would just as soon kill you as any one,” in Gilchrist’s testimony was held admissible, the original opinion is modified, and on another trial that expression should be excluded. Appellant’s motion for rehearing is in all other respects overruled.
      <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    HALEY v. STATE.
    (No. 5270.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    1. Criminal Law <&wkey;338(2) — Circumstantial Evidence.
    To render evidence admissible in a case depending on circumstantial evidence, it is enough that it tends to prove the issue or constitute a link in the chain of proof, though standing alone it might not justify a verdict; and in such cases incidents may be legitimate evidence, which would be deemed irrelevant in a case depending on direct testimony.
    2. Ceiminai, Law &wkey;>1091(4) — Bill of Exceptions — Circumstantial Evidence.
    Bills of exceptions in case depending on circumstantial evidence, not disclosing the relation of the facts, to which they refer, to other facts in the case, nor negativing their relevancy as links in a chain of circumstantial evidence, show no error in admission of evidence of finding after the homicide in defendant’s place of business of a shotgun indicating recent discharge.
    3. Homicide &wkey;>170 — Evidence—Tracks of Defendant’s Auto.
    Evidence of the tracks of an automobile near the scene of murder being those of defendant’s machine, held admissible in a case depending on circumstantial evidence, it being shown that a machine passed there that night, and that he was driving that night; the possibility that they were made earlier or by another machine going only to its weight.
    4. Homicide <&wkey;170 — Evidence — Defendant’s Tracks.
    Evidence of finding footprints near the scene of the homicide corresponding to defendant’s shoe is admissible.
    5. Criminal Law &wkey;>721(l) — Comment by Counsel —Defendant’s Failure to Testify.
    Disregard of Code Cr. Proc. art. 790, prohibiting counsel alluding to or commenting on any failure to testify, requires reversal.
    6. Homicide i&wkey;466(8) — Evidence—Motive.
    Conversations between defendant and deceased’s wife, detailed by her, disclosing his illicit relations with her, his desire that she abandon deceased, her unwillingness to do so, and his reference to his freedom since his wife’s death, are admissible. ⅛
    7. Criminal Law <&wkey;374^-EviDENCE — Other Crime.
    To justify admission of evidence of another crime, as within the exception to the rule excluding evidence of other crimes, its commission must be proved; and if the evidence merely casts suspicion, it should be rejected.
    8. Criminal Law &wkey;>372(4) — Evidence—Other Grime — Plan.
    The state’s theory being that dedendant, desiring to continue, unobstructed, his illicit relations with deceased’s wife, formed a plan to remove the obstacle, his own wife and deceased, evidence that he murdered his wife, if sufficiently cogent, is admissible.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    W. I. Haley was convicted of murder, and be appeals.
    Reversed and remanded.
    Williams, Puckitt & Harty, of Dallas, and Martin & McDonald, of Austin, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

This conviction is for murder; the punishment being fixed at confinement in the penitentiary for 20 years.

The state’s theory is1 that the deceased was assassinated. The evidence relied upon by the state is wholly jcircumstantial. The deceased resided in the country, and early in the morning a neighbor went to his house and found his body in his yard near the door of his garage. The body was cold and stiff, and apparently the deceased had been dead six or eight hours. There were a number of buckshot wounds in his face and head. As a motive for the homicide the state advanced the theory, supported by the testimony of the wife of deceased, that she and appellant were criminally intimate; that she on the day preceding the homicide had told the appellant that their intimacy must cease, and he had declared his determination to have her.

There are a number of bills of exception complaining of the admission of evidence. These bills complain of the introduction of specific parts of the evidence, but are not so drawn as to disclose the relation of the facts to which they refer to other facts in the case, nor to negative their relevancy as links in a chain of circumstantial evidence when considered in connection with other circumstances. In a case depending upon circumstantial evidence it is necessary only to render it admissible that it tends to prove the issue, or constitutes a link in the chain of proof, and it is not to be rejected, though standing alone it might not justify a verdict. In such cases incidents may be legitimate evidence which would be deemed irrelevant in a case depending upon direct and positive testimony. Preston v. State, 8 Tex. App. 30; Washington v. State, 8 Tex. App. 377; Simms v. State, 10 Tex. App. 132; Langford v. State, 17 Tex. App. 445; Vernon's Crim. Stats, vol. 2, p. 595, note 18. Undier these rules the bills show no error wherein complaint is made of the fact that a shotgun was found at appellant’s place of business, and that subsequent to the homicide it bore evidence of recent discharge. Wharton on Homicide, p. 943; Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847; Michie on Homicide, vol. 1, p. 821, § 170.

There was evidence that late in the evening preceding the homicide the deceased was in the village of Forney, at which the appellant lived, and near which the deceased lived; that about 9 o’clock the same night an automobile passed along the road near the scene of the homicide. There was evidence that appellant owned an automobile; that the tire on one side was smooth and on the other a Diamond tread. There were found on the ground a short distance from the scene of-the homicide tracks made by an automobile with a smoth tire on one side and a Diamond tread tire on the other. There was evidence that on the same night that the homicide took place appellant was recognized driving his car. The imprint made by the Diamond tread tire on the mud near the scene of the homicide was preserved and introduced in evidence, and a plaster cast of the tire on appellant’s car was also made and proof introduced that the tread on his car and the impression on the mud were identical in size and shape. The fact that it was possible that the track may have been made prior to the homicide, or that it might have been made by an automobile other than that of appellant, would, under the circumstances, relate to the weight of the testimony, but would not be legal ground for its rejection. Baines v. State, 43 Tex. Cr. R. 495, 66 S. W. 847; Doss v. State, 50 Tex. Cr. R. 49, 95 S. W. 1040; Rucker v. State, 51 Tex. Cr. R. 222, 101 S. W. 804; Liles v. State, 58 Tex. Cr. R. 310, 125 S. W. 921; Liles v. State, 62 Tex. Cr. R. 34, 135 S. W. 1177; Pinkerton v. State, 71 Tex. Cr. R. 195, 160 S. W. 87; Michie on Homicide, vol. 1, p. 819, § 170 (41).

The bills of exception complaining of the identification of the car belonging to appellant present no error.

The complaint of the evidence that footprints were found in the vicinity of the homicide and that appellant’s shoe was identified and compared with the tracks, is not well founded. Branch’s Ann. P. C. p. 81; Weaver v. State, 43 Tex. Cr. R. 340, 65 S. W. 534. Proof of tracks and other matters found at or near the scene of the homicide was legitimate. Michie on Homicide, p. 829, § 171 (l%b); Tate v. State, 35 Tex. Cr. R. 231, 33 S. W. 121.

The trial court should have granted a new trial because of the remarks of the county attorney. Among other things, it appears from the bill he said, referring to counsel for appellant:

“You said the facts of this case point just as much to the guilt of these men, Terry Mc-Keller and John McKeller, as Irvin Haley. The state has seen fit to put the two McKellers upon the witness stand to deny their guilt, but you did not put Mr. Haley upon the witness stand to deny his guilt.”

There were other similar remarks not necessary to quote. Our statute (article 799, C. C. P.) provides:

“The failure of any defendant to testify” in Ms own behalf “shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

A disregard of this command of the statute has been from the date of its passage uniformly held an imperative cause for reversal. Alvilla v. State, 32 Tex. Cr. R. 136, 22 S. W. 406; Vernon’s Texas Crim. Stats, vol. 2, p. 716, note 29, and cases cited.

The conversations between appellant and Mrs. Williams detailed by her disclosing his illicit relations with her, his desire that she abandon her husband, her unwillingness to do so, his references to his freedom since the death of his wife, and other matters detailed in her testimony, were relevant and admissible in evidence. Weaver v. State, 43 Tex. Cr. R. 340, 65 S. W. 534; Rice v. State, 54 Tex. Cr. R. 149, 112 S. W. 299.

The state introduced evidence for the purpose of showing that some ten months prior to the homicide in question the appellant had killed his wife by administering poison to her. The admissibility of this testimony is challenged upon various grounds. The manner in which this is, presented in the bill of exceptions rendjers it difficult to grasp entirely appellant’s viewpoint, but in view of another trial we express such views as we have formed touching its relation to the case. The evidence showed that appellant’s wife died at night. He called a physician and her stepmother, who arrived after her death. According to their statement appellant and his wife came in from a drive; that his wife had been taking some aspirin for neuralgia which she had; that they went to bed, and later she told him to bring her that dose of quinine she got that evening in capsules; that he gave it to her, and after taking it she went to sleep and dozed off, and later she woke .him up saying she was feeling bad; that she said she did not need a doctor, she would be all right, but that she had a convulsion, and he phoned for a doctor, and that she died in his arms. The doctor said he did not remember that the appellant told, him how long his wife lived after she complained ; that she woke up suddenly and grabbed him; that he had! given her some quinine about an hour before the doctor was called. The doctor testified:

“In an examination of the body I found the lower lip bitten. After that I looked over her arms and portions that were exposed, I think. I think there was some remark made about some splotches on her body. I think, as a rule, pied splotches follow strychnine poisoning. I made no analytical examination of the contents of the stomach; there was no post mortem examination had.”

As we understand the record there was no prosecution founded upon this matter. Evidence was introduced, however, on the trial of this case that some time subsequent to the death of Mrs. Haley her stepmother visited the house of appellant, and found a bottle marked “Strychnine,” and talked to appellant about it, and he said he knew it was there; that he had bought it several years ago to kill a dog and had never used it; that she asked him if he did not know that it was half gone, and he replied, “No”; that it had never been unwrapped; that the bottle was turned over to her husband, and it was introduced upon the trial.

The general rule of evidence is that evidence of extraneous crimes is not received. The reason for its rejection, as stated by Mr. Underhill, is:

“That persons selected as jurors will very naturally believe that a person is guilty of the crime with which he is charged if it is proved to their satisfaction that he has committed a similar offense, or any offense of an equally heinous character; and it cannot be said with truth that this tendency is wholly without' reason or justification, as every person can bear testimony from his or her experience, that -a man who will commit one crime is very likely subsequently to commit another of the same description. To guard against this evil, and at the same time to avoid the delay which would be incident to an indefinite multiplication of issues, the general rule (to which, however, some very important exceptions may be noted) forbids the introduction of evidence which will show, or tend to show, that the accused has committed any crime wholly independent of that offense for which he is on trial.” Underhill on Or. Ev. % 87.

If it be assumed that the facts of this case bring it within one of the exceptions to which we will hereafter refer, it is clear that the due administration of justice demands that evidence tending to show appellant’s guilt of another crime should not be admitted, unless the proof of the other offense is clear. In this case, if it is proper for the state to use the alleged fact that appellant poisoned his wife as a circumstance connecting him with the assassination of Williams, it should be shown beyond a reasonable doubt that his wife died from poison knowingly administered by him with intent to destroy her. Applying this principle to the case in hand, we find no satisfactory evidence that the appellant’s wife died from poisoning.

“In a case of * * * poisoning, where the symptoms and appearance during the last illness become controlling facts in determining whether the death was from poison or from disease, the charge is not made out unless the prosecution negative everything but poison as the cause of death. And this they can only do by showing affirmatively that the combined symptoms, and the absolutely certain facts with which they are associated, are inconsistent with any other disease or ailment.” People v. Millard, 53 Mich. 63, 18 N. W. 562; Wharton, Crim. Ev. vol, 1, p. 162.

The circumstances, especially when taken in connection with the subsequent developments growing out of the present prosecution surrounded appellant with suspicion connecting him with the death of his wife, but to justify the admission of evidence of another crime, its commission must be proved1, and if the state can do no more than supply evidence casting suspicion upon the accused, the evidence should be rejected. We think on the application of this rule the evidencq. admitted on the subject should have been excluded from the jury. If, upon another trial, evidence is proffered sufficiently cogent to establish the fact that appellant’s wife died from poison, we believe the evidence should be received as coming within that exception to the rule excluding independent crimes which recognizes their admissibility when they are evidence of a systematic plan formed and executed by the accused. This arises from the theory advanced by the state that the appellant, desiring to continue unobstructed his illicit relations with the wife of deceased, formed a plan to remove the obstacles, viz. his own wife and the deceased Williams, and proof that he killed his wife in pursuance of his purpose to attain the same object which would furnish the motive for the killing of the deceased tended to identify appellant as the slayer of Williams. Concerning the admissibility of similar acts, although they constitute other offenses on the theory that they are a part of a design or system, Mr. Wigmore, in his work on Evidence, § 104, says:

“There is no situation in which a design to do an act would be irrelevant to show the doing of the act.”

Again at section 304:

“When the very doing of the act charged is still to be proved, one of the evidential facts receivable is the person’s design or plan to do it.” “To render them admissible, there must be not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.”

Thus he says:

“To show a plan to rob a safe, the stealing of the key would be relevant; or to show a plan to murder a whole family and obtain their insurance money, the killings of other insured members of the family would be admissible.”

Precedents from which these general statements of the author are taken will be found at section 363 of the same volume. Among these are cases in which, the plan being to get rid of obstacles to the marriage or association with a particular woman, crimes committed in furtherance of this design have been received as relevant to the issue of identity of the slayer of the deceased in the particular case. See Stephens v. People, 19 N. Y. 671. Such evidence has often been received in cases of poisoning where the evidence of identity was circumstantial.

If this evidence is received upon another trial, it should be limited in the charge of the court, and it should be made clear to the jury that it is not to be considered at all against the appellant, unless the state had shown beyond a reasonable doubt that appellant’s wife died from poison knowingly administered by the appellant with intent to kill her.

Because of the errors pointed out,, the judgment of the lower court is reversed, and the cause remanded.
      cSr^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PARISH v. STATE.
    (No. 5154.)

    (Court of Criminal Appeals of Texas.
    Jan. 8, 1919.
    On Motion for Rehearing, March 12, 1919.)
    1. Homicide <&wkey;250 — Evidence — Sufficiency.
    In a prosecution for the murder of an 18 year old Mexican boy by a soldier, who was a passenger in his automobile, circumstantial evidence hold sufficient to sustain a verdict of guilty.
    On Motion for Rehearing.
    2. Ckiminal Law <&wkey;552(3) — Conviction — Sufficiency of Circumstantial Evidence.
    In order to convict on circumstantial evidence, it is not essential that the circumstances proved should to a moral certainty exclude every hypothesis that the act may have been committed by another person, known or unknown.
    3. Criminal Law <&wkey;>552(2) — Conviction — Sufficiency of Proof by Circumstantial Evidence.
    When conviction depends upon circumstantial evidence alone, it is essential to prove each necessary fact beyond a reasonable doubt before it can become the basis of any inference adverse to accused, although each fact thus proved need not, standing alone, be of sufficient weight to establish guilt.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Ratio P. Parish was convicted of murder, and he appeals.
    Affirmed.
    Abernathy & Smith, of McKinney, for appellant.
    B. B. Hendricks, Asst Atty. Gen., for the State.
   MORROW, J.

The conviction is for murder and punishment fixed at confinement in the penitentiary for 20 years. The evidence is circumstantial.

The deceased, Elíseo Ornelas, appears to have been a Mexican, owner of a Ford automobile which he operated for hire; that during the night of October 9th appellant, in company with one Foreman, both of them being soldiers in the United States army, made a contract with the deceased to take them in his car to a point in the vicinity of ■San Antonio; that the two soldiers entered the car with the driver, one of them sitting on the front and the other on the back seat The cousin of the deceased suggested or wanted to go along, hut the appellant and his companion objected on the ground that they were to bring others back in the car and there would not be room. Deceased appears to have been a boy about IS years of age. He was found the following morning about 7 o’clock by some persons passing along the road. He had wounds upon his head, his skull was crushed, and he was in an unconscious and dying condition. He was in the road, and near his body were automobile tracks corresponding in size and description to those which were on the deceased’s car. There was in the road near these tracks, and not far from the body, some blood in several places and evidence of a fight or struggle having taken place. The deceased had a small amount of money, between $7 and $8 at the time he made the contract, and this had been taken from him and his pockets turned inside out, though his watch and chain had not been removed. Near the body there was found some tobacco and cigarettes, and a button from a soldier’s coat. Tlie car was found on the morning of the 10th of October at a point some distance from the scene of the homicide. It was located near some buildings that were being newly constructed in Camp Travis. There were stains of blood at various places upon the car, engine, footboard, and running board. In the car was found a cap, which was identified as belonging to deceased, and which had a dent in it, indicating that it had been struck by some object. While the persons in charge of the work and the sheriff were examining the car, some one of them handed the sheriff a coat. This was a military coat, and there was evidence introduced identifying the coat as belonging to the appellant. There was evidence, also, that the coat was of a different character from, that used by the other soldiers at Camp Travis, it being similiar to those formerly used by soldiers, and it was claimed by the witnesses that it had been brought from another camp, at which the appellant and his companion were formerly stationed. One of the buttons had been torn from the coat, and the button picked up- near the body of deceased was of the same character as those remaining on the coat, though .there is nothing to show that the buttons on that coat were peculiar or different from those on the clothing worn by the numerous soldiers stationed at Camp Travis. There was a small amount of blood on the coat. The person who handed the coat to the sheriff was not introduced as a witness, and it is only from circumstances that the inference is to be drawn that the coat was picked up by one of the several people who were attracted to the scene of the car after it was found and while it was undergoing examination by the sheriff.

A very short time after the homicide, appellant and Foreman were transferred, with the company to which they belonged, from Camp Travis, at San Antonio, to Camp Bowie, in Ft. Worth, and were there arrested by the sheriff, being identified by the brother of deceased, who was present at the time that the contract between the deceased and the appellant and his companion was entered into.

No questions other than the sufficiency of the evidence are presented. We are unable to reach the conclusion that there was insufficient evidence to support the verdict.

The judgment is affirmed.

On Motion for Rehearing.

The only question raised in the motion for rehearing is whether, tested by the rules of circumstantial evidence, the facts support the verdict.

That the deceased came to his death by violence inflicted by some human agency other than his own was established beyond doubt. Tire back of his head bore evidence of blows with some blunt instrument, fracturing the skull in several places, and driving the bone into the brain. The only question that can arise is whether the evidence, under the rules of law, shows that the appellant was the guilty agent. The deceased was found in an unconscious and injured condition on the morning of the 10th of October. The exact locality is not disclosed by the record, further .than it appears that he was in and at one side of a road designated as the Cassin road, which was a dirt road about three-quarters of a mile in length, with cactus and brush growing on each side, with no houses near it, though there was a field in which there was also cactus. He was near the intersection of this road with what is described as the Quintana road, which is from the city of San Antonio to Yon Ormy, and the Quintana road was connected with what is described as the Somerset road by the Cassin road mentioned. As we understand the record, the Somerset road and Quintana road were macadamized, and frequented much more than the Cassin road. From a reading of the statement of facts, we understand that the place where the deceased was found was several miles from the city of San Antonio, though neither the direction nor the distance is proved with any degree of accuracy. In the road near where he was found there were tracks made by an automobile with tires like those used on a Ford car; the front tires being smooth and the back tires nonskid tires. About 30 yards distant from the deceased the tracks indicated that the car had moved a short distance, been turned around, and driven back to the Quintana road. What the witness described as a soldier’s button was about 2 feet from the auto tracks and about 1 foot from the body of deceased. The pockets of the deceased were turned inside out, there was no money found on his person, though his watch with a fob containing the initial “R” was found, also some cigarettes and tobacco in the pocket of his coat or jumper, and one cigarette was on the ground some dozen feet from the body. There were pools of blood in the road, and the appearance of a scuffle, or scraping tlie ground, something like the side of a shoe. One witness described the tracks indicating a scuffle as about 20 feet from the body, and stated there were several puddles of blood, one about 4 feet from the body. Another witness estimated the scuffle as 10 or 12 feet from the body.

It was shown that the Ford automobile was found on the morning of October 10th, at a place, as we understand the record, in Camp Travis where they .were building gun sheds and stables. The car had been driven between two of the stables and stopped. There were bloody stains all over the car, the engine, footboard, and running board. A cap was lying in the car, on the floor, between the -seat and the dashboard. There was blood on the floor, and the cap was stained with blood. It was a stiff cap, and had a dent in the back of it about 2¼ inches in length. This cap was produced on the trial and identified as belonging to the deceased. The automobile thus found was also identified as belonging to him, and the tires showed to be smooth on the front and nonskid on the back ones. After the car was found by workmen, the sheriff and military police were called, reaching the car some time after noon, about 1: SO or 2 o’clock, and while they were examining the car one of the workmen, a carpenter by the name of Smith, who worked in front of where the automobile was found, about 50 yards away, and whose hours of work were from 7 in the morning until 6 in the evening, handed a coat to the sheriff or military police captain. Smith was not used as a witness, nor does the record show where he got the coat. The coat was a part of a United States soldier’s uniform, and was of an old issue worn by the soldiers when they were on the Mexican ■border, and not generally worn by soldiers stationed at the time of the homicide at Camp Travis, though some of the soldiers there who had been stationed on the border possessed coats of the same kind. “Inside of the lining the coat or blouse was smeared with a thin layer of blood over a wide space.” One of the buttons from the coat mentioned was missing and the buttons remaining thereon were like the button which was picked up near the body of the deceased on the road mentioned. The coat was identified as having been purchased by appellant from another soldier a few days before the homicide.

It was shown, by the testimony of a young man who was a relative of the deceased, that on the night of the 9th of October, about 1:30 o’clock in the morning, the appellant and another soldier, both of them wearing uniform, approached the deceased in the city of San Antonio, the deceased being the owner of a Ford automobile which he operated for hire, and made an agreement with him to take them in his car to Kelly Field. Appellant and his companion held a whispered conversation during the negotiations, which was not heard by the witness. The witness asked permission to accompany them, which was denied, upon the ground that they expected to bring three other soldiers back with them. The appellant and his companion then got into the car; the deceased driving, the appellant sitting upon the back seat, and his companion on the front seat with the driver. They left, going in the direction of Camp Kelly. Deceased was a boy about 18 or 19 years of age. Appellant and his companion also wore soldiers’ hats. The deceased had some money, $7.75, the witness declared. The cap worn by deceased and found in the automobile, the coat mentioned belonging to appellant, and a hat which this witness described as one of the hats worn by the men, were introduced in evidence.

The verdict implies that the jury believed beyond a reasonable doubt that the circumstances disclosed by the evidence, whether controverted or uncontroverted, existed. That the deceased was killed by violence, not self-inflicted, and that he was rob'bed, is the only inference reasonably deducible from the circumstances surrounding the homicide. We assume that the jury found that he was robbed; that he was wounded while in his car; that a button from a military coat was found near his body; that appellant was a soldier domiciled at Camp Travis; that the deceased’s automobile was found at Camp Travis; that its tires were smooth in front and nonskid in rear; that the appellant’s coat was found in the same vicinity in which the automobile was found; that there was a button missing from the coat and blood smeared upon the inside of it; that the button found near the body of deceased was like the button that came oif of appellant’s coat; that about 1:30 at night, before the body of deceased was found, the appellant and a companion, both soldiers wearing uniform, contracted with the deceased to take them in his automobile to Camp Kelly; that they got into the car with deceased and started in that direction; that pending negotiations over the contract they held a whispered conversation; that they objected to the relative of the deceased accompanying them, stating that they expected to bring other soldiers back with them; that the deceased was not seen again until he was found in a dying condition near the road.

Appellant insists that these established circumstances were fatally faulty in connecting him with the homicide, suggesting that the absence of proof that the body was found in the direction of Camp Kelly or Camp Travis, and its direction from San Antonio was undisclosed, aifords a hypothesis favorable to the appellant. He would he entitled to the benefit of any favorable inference reasonably to be drawn from these omissions in the proof; but there are none pointed out, and we discern none.

Doubtless, the case having been tried in Bexar county, the counsel assumed the familiarity of the jury with well-known localities, and it appears, moreover, that a plat or diagram was before the jury, which is not brought up by the record. The circumstances were such as would have justified the inference by the jury that the deceased received a mortal wound while driving his car, and in the absence of some suggestion from the evidence that at the time he received it he was in company with others than the appellant and his companion,.with whom the evidence placed him, the location of the car at the time he received the wound would not, so far as we are able to understand, be á matter of consequence, whether it was on the road to Camp Kelly, in which direction, according to the evidence, they started, or whether it occurred at the point near which the body was found. ,

The omission to show how, or at what point, the carpenter, who handed the coat to the sheriff, received it, is made the basis of attack upon the sufficiency of the evidence. If it be presumed that the coat was found on the wayside and was not hidden, it would not destroy the circumstances established by the evidence that it was appellant’s coat, that it had blood on it, and that a button was missing from it, unless we go farther, and presume that the carpenter’s testimony, if presented, would have explained these circumstances in a manner consistent with the innocence, or inconsistent with the guilt, of appellant. The evidence discloses that the carpenter ¡worked near where the car was found; that he began work about 7 o’clock in the morning; that he handed the coat to the sheriff while he and others were examining the bloody car, some time after noon on the day it was found; and there is no circumstance or fact in evidence which would justify the presumption that the carpenter’s knowledge of the coat would extend further than his having found it in the vicinity of the car in the condition in which he delivered it to the sheriff. The location of the blood was not a controlling fact. It may have gotten on the coat by its falling on the car, or from ¡contact with the car or the deceased while on appellant.

The failure to introduce testimony going to show that appellant was not at his place with the company on the morning when the body was found could do no more in appellant’s favor than to compel the presumption that he was with his company at the time mentioned. This presumption would not have' been inconsistent with his guilt, for the reason that' he was shown, by the undisputed evidence to have been absenijfrom Camp Travis at the time that he undertook the journey with the deceased at 1:30 on the; night of the 9th of October. The deceased’s car, bearing evidence of the tragedy, had been driven to Oamp Travis and deposited between two; of the stables at a place where, during the daytime, it would have been seen by numbers of people who were working upon the buildings, and it is quite consistent with the state’s theory that the appellant returned to his barracks before the dawn of the day upon which the body of the deceased was found. There was no direct evidence that the appellant and his companion were acquainted with the operation of a Ford automobile. There w'as evidence, however, going to show that the appellant and his companion conspired against the deceased, and that their conspiracy contemplated that, to make their escape, the use of his automobile would be necessary, from which the inference would be a natural one that they were prepared to operate it.

In their able and ingenious argument, counsel, who presented the case on motion for rehearing, advance the theory that a hypothesis favorable to appellant arises from the fact he or his companion stated, in answer to the request of the relative of the deceased that he might accompany them to Kelly Field in the ear, that he could not be permitted to do so, for the reason, that they expected, on returning from Kelly Field, to bring three soldiers with them. In order to convict oni circumstantial evidence, it is not essential that the circumstances proved should to a moral certainty actually exclude every hypothesis that the act may have been committed by another person, known or unknown; but- the hypothesis intended is a reasonable one, consistent with the circumstances and facts proved, and the supposition4 that the act may have been committed by another person must be in harmony with the evidence. Shultz v. State, 13 Tex. 401; Hamlin v. State, 39 Tex. Cr. R. 606, 47 S. W. 656; Porch v. State, 50 Tex. Cr. R. 335, 99 S. W. 102; Taylor v. State, 195, S. W. 1150; Wallace v. State, 46| Tex. Cr. R. 349, 81 S. W. 966; Michie’s Crim. Digest, vol. 2, p. 721.

In Pogue’s Case, 12 Tex. App. 295, to which we are referred, there were weaknesses disclosed by the record not apparent in this one. There there was a hypothesis of suicide, of self-defense — an absence of evidence that the appellant ¡was present, save that he had been seen with the deceased some hours before the dead body was 'found. There was no motive disclosed, no blood stains found. When cases depend upon circumstantial evidence alone it is essential to prove each- necessary fact beyond a reasonable doubt before it can become the basis of any inference adverse to the accused. It is not, however, required that each fact thus proved he, standing alone, of such weight as to establish guilt. Marshall v. State, 5 Tex. App. 273; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Vernon’s Crim. Stats, vol. 2, p. 595. That a button from a soldier’s coat was found near the body of the deceased, while it tends to show that a soldier was present at the homicide, it, standing alone, is by no means conclusive. Tq strengthen it there was available to the jury the fact that there were automobile tracks made by the car with tires similar to that of the deceased’s; that there were footprints on the ground showing the presence of others; that the spot was an unfrequented one, rendering the presence of others, who would have accounted for the presence of the button, improbable; the fact that appellant, when he entered the car with the deceased was • wearing a military uniform, and that his coat, after the body was found, was minus a button, and those remaining were like that found near the body; the fact that the coat had blood upon it; the fact that the car turned around and was driven from the scene of the tragedy on the Quin-tana road towards San Antonio, at or near which was located Camp Travis, the domicile of appellant and his companion, at which place the car was found, abandoned, containing the battered and bloody cap of the deceased, the car itself smeared with blood; the fact that after midnight, a few hours before the deceased was found in an injured and unconscious condition, the appellant and his companion, on their own seeking, had taken passage with deceased in his car, taking care that they should be alone with him by objecting, after a whispered conversation, to the cousin of the deceased accompanying them.

While probably no one of these facts would support the verdict, they being consistent with each other, with the main fact in issue, with the guilt of the accused, and inconsistent with his innocence, the verdict is upheld by their cumulative and combined strength, each forming a thread in the cord of circumstances which drew and bound the minds of the jury to the conclusion which produced a reasonable and moral certainty that the appellant took part in the homicide. Hocker v. State, 34 Tex. Cr. R. 359, 30 S. W. 783, 53 Am. St. Rep. 716; Wells on Circumstantial Ev. p. 279. This conclusion having received' the sanction of the trial judge, we are convinced that, in view of the evidence, it is neither our right nor our duty to overthrow it.

The motion for rehearing is overruled.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    SMITH v. SMITH.
    (No. 6171.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 12, 1919.
    Rehearing Denied March 12, 1919.)
    1. Appeal and Ebeok <&wkey;773(2) — Time foe Filin» Bbiefs.
    Where record on appeal in divorce case was filed in Court of Civil Appeals, September 18, 1918, appellant’s briefs, filed January 25, 1919, 12 days before case was submitted, and after appellant had been notified it was set for submission February 5th, were not filed in time required.
    2. Appeal and Ekeoe <&wkey;766 — Bbiefs — Single-Spaced Typewritten Matter.
    Briefs consisting of 19 pages, each of single-spaced typewritten matter, were not in compliance with the rules, and, in the absence of good excuse, the appeal will be dismissed.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Suit for divorce by Charles C. Smith against Lena Lucius Smith. From a decree granting the divorce, defendant appeals.
    Appeal dismissed.
    Alex C. Bullitt and John D. Robinson, both of San Antonio, for appellant.
   FLY, C. J.

This is a suit for divorce instituted by appellee, and from a judgment granting the divorce appellant has perfected an appeal. The record was filed in this court on September 18, 1918. Appellant filed her brief in this court on January 23, 1919, 12 days before the case was submitted, and after appellant had been notified that it was set for submission on February 5, 1919. The briefs were not only not filed in the time required, but consist of 19 pages, each of single-spaced typewritten matter. Appellee seeks a dismissal of the appeal on the ground of noncompliance with the rules in regard to the briefs. No good excuse is given for such violation of the rules.

The appeal is dismissed.
      ®=oFor other oases see same topic and KEY-NUMBER_in_aH Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    FIRST STATE BANK & TRUST CO. OF SANTA ANNA v. O. D. MANN & SONS et al.
    (No. 5996.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 18, 1918.
    Rehearing Denied March 12, 1919.)
    1. Appeal and Error &wkey;>390 — Bond on Appeal — SUBEIOIENOY.
    On appeal to a court of civil appeals in cases where the county court exercises original jurisdiction under Const, art. 5, § 6, an appeal bond deficient in any particular required by Rev. St. 1911, art. 2097, is sufficient to confer jurisdiction on the appellate court, since it may be amended under article 2104, when objection is -made.
    2. Appeal and Ebkor <&wkey;391(l), 392 — Bond on Appeal— Supeiciency — Objections — Waiver.
    When an appeal bond deficient in any particular mentioned in Rev. St. 1911, art. 2097, is seasonably objected to by appellee, and appellant fails to file a new bond within a reasonable time fixed by the court, the appeal will be dismissed, but failure seasonably to object is a waiver of the defect.
    Appeal from Coleman County Court; W. Marcus Weatherred, Judge.
    Action by the First State Bank & Trust Company of Santa Anna against O'. D. Mann & Sons and others. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant.
    Critz & Woodward, of Coleman, for appel-lees.
   Findings of Fact.

JENKINS, J.

Appellant brought this suit to revive a judgment against O. D. Mann & Sons, O. D. Mann individually, and Wm. Connelly & Co., alleged to be a private corporation.

On September 8, 1914, in the county court of Coleman county, appellant obtained judgment by default against O. D. Mann & Sons, a copartnership, composed of O. D. Mann and others unknown, and against Wm. Con-nelly & Co. and others not necessary to mention, for the respective sums set forth in appellant’s petition herein. Appellees herein filed a motion for a new trial, which being overruled, they gave notice of appeal to this court. This court reversed and remanded said cause. See Miller et al. v. Bank, 184 S. W. 614.

The bond given on the appeal in said cause complied with the statute in substance and in form, except that it was not payable to the appellee therein, but was payable to the appellants’ codefendants. No objection was made to this bond on the former appeal, and our attention was not called to the defect therein. The mandate of this court was filed in the county court of Coleman county, and said cause is still pending on said docket.

More than 12 months have elapsed since the rendition of judgment by the county court. No part of said judgment has ever been paid, and no execution has been issued thereon. The trial court entered judgment herein, refusing to revive said judgment, from which we quote as follows:

“ * * * It is the opinion of the court that said judgment sought to be revived is not a final judgment of this court, and has been set aside and reversed by the judgment of said Court of Civil Appeals at Austin, and that plaintiff is not, entitled to the relief prayed for in said motion. * ⅜ * To which action of the court the plaintiff then and there in open court excepted.”

Opinion.

There is but one question on this appeal, and that is whether the action of this court in reversing and remanding the former appeal was void for want of jurisdiction. The appellant asserts that it was, for the reason that the appeal bond was not payable to the appellee in said appeal. The Constitution of this state confers appellate jurisdiction on Courts of Civil Appeals of all cases of which the county court has original jurisdiction (article 5, § 6), but the Legislature has the power to regulate the manner in which such appeals shall be prosecuted. One of the regulations required by statute is that the appellant shall execute an appeal bond:

“[a] With two or more good and sufficient sureties, [b] to be approved by the clerk, [c] payable to the appellee or defendant in error, [d] in a sum at least double the probable amount of the costs of the suit in the Court of Civil Appeals, Supreme Court and court below, to be fixed by the clerk, [e] conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect, [f] .and shall pay all the costs which have accrued in the court below, and which may accrue in the Court of Civil Appeals and the Supreme Court.” R. S. art. 2097.

Article 2104 of the Revised Statutes reads as follows:

“When an appeal has been or shall be taken from the judgment of any of the courts of this state by filing a bond or entering into a recognizance within the time prescribed by law in such cases, and it shall be determined by the court to which appeal is taken that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond on such terms as the court may prescribe.”

The courts of this state have passed upon every requisite of an appeal bond as above. set forth, and have held as to each of them' that a bond deficient as to any one of them is sufficient to confer jurisdiction on the appellate court, and may be amended when objected to, under authority of article 2104, supra. Tynberg v. Cohen, 76 Tex. 417, 13 S. W. 318; Hugo v. Seffel, 92 Tex. 415, 49 S. W. 369; Williams v. Wiley, 96 Tex. 153, 71 S. W. 12; Oliver v. Jammers, 136 S. W. 509; Cason v. Haney, 82 Tex. 318, 18 S. W. 667; Cason v. Connor, 83 Tex. 28, 18 S. W. 668; Franklin v. Tiernan, 56 Tex. 621; Engle v. Rowan, 48 S. W. 757.

When a bond, defective in one or more of the particulars required by the statute, is seasonably objected to by appellee, and the appellant fails to file a new bond within such reasonable time as is fixed by the court, the appeal will be dismissed for want of such bond; but a failure to seasonably object-to such bond will operate as a waiver of its defects. Davis v. Estes, 4 Tex. Civ. App. 207, 23 S. W. 411; Howth v. Shumard, 40 S. W. 1079; Murphy v. Williams, 103 Tex. 157, 124 S. W. 900; Ricker v. Collins, 81 Tex. 662, 17 S. W. 378.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.
      ig=mFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    BURLINGTON BUGGY CO. v. USREY.
    (No. 2035.)
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 31, 1919.
    Rehearing Denied Feb. 13, 1919.)
    1. Execution <§=>194(1) — Claims by Third Persons — Burden oe Proof.
    Mere fact that cotton levied on under execution was at M.’s gin did not necessarily raise inference that it was in M.’s possession, and burden was on judgment creditor to remove uncertainty as to who was in possession thereof in order to cast burden upon a third person claiming to own such property to prove his ownership, under Vemon’s Sayles’ Ann. Civ. St. 1914, arts. 7785, 7786.
    2. Appeal and Error 3=1056(6) — Harmless Error — Exclusion oe Evidence.
    A eause will not be reversed by reason of error in exclusion of evidence where appellant would not have prevailed in any event.
    Appeal from Bowie County' Court; J. B. By tal, Judge.
    Proceeding between the Burlington Buggy Company and R. C. Usrey, as next friend of Everett and D. O. Usrey, for the purpose of trying the right of property in certain personality levied on, under an execution issued against J. F. Usrey. From an adverse judgment the Buggy Company appeals.
    Affirmed.
    By virtue of an execution purporting to have been issued to Bowie county by a justice of the peace for Tarrant county on a judgment for $191.49, and $4.95 costs, in favor of appellant against one J. F. Usrey, M. O. Young, as constable for a precinct in said Bowie county, on October 27, 1917, levied on two bales of cotton as the property of said J. F. Usrey. November 5, 1917, appellee, R. C. Usrey, “as next friend for the minors Everett and D; C. Usrey,” presented a claim affidavit and bond to said constable for the purpose of trying the right of property in the cotton as provided by the statute (articles 7769 to 7795, Vernon’s Statutes). On the same day, to wit, said November 5, 1917, the constable made a copy of the execution by virtue of which he levied on the cotton, and, having valued the cotton at $276.81, filed said copy and the claim affidavit and bond with the county clerk of said Bowie county. Notwithstanding the sole purpose of the litigation was to determine the ownership of the cotton, at the trial (evidently because each thought the burden of proof was on the other) neither appellant nor appellee offered any evidence whatever to show who owned it. In this attitude of the case the trial court, presumably because he thought the burden was on appellant, peremptorily instructed the jury to find in favor, of appel-lee, and the jury, having returned such a verdict, rendered judgment accordingly.
    O. B. Pirkey, of New .Boston, and T. M. Brooks, of Ft. Worth, for appellant.
    Sid Crumpton, of Texarkana, for appellee.
   WILLSON, C. J.

(after stating the facts as above). If the burden was on appellant to prove that J. F. Usrey, the defendant in the execution, was the owner of the cotton at the time the constable levied on it, the trial court did not err when he instructed the jury as he did; for appellant neither made nor offered to make such proof. By the terms of the •statute the burden of proof was on appellant if the cotton when levied upon was in the possession of the minors on whose behalf appellee claimed it, and on appellee if it was in the possession of the defendant in the writ or any other person than said minors. Articles 7785 and 7786, Vernon’s Statutes. In its brief appellant says the testimony of the constable who made the levy was “the sole and only evidence bearing upon the possession or ownership of the cotton” at the time it was levied upon, and sets out that testimony as follows:

“I levied on the cotton at Walter Moseley’s gin. At the time I made the levy there were several bales of cotton in the yard — I don’t remember how many — 10 or 12 there in a pile to itself, all marked alike, and I levied on 2 bales. All marked ‘J.. F. U.’ ”

Appellant insists that this testimony showed that the possession of the cotton when levied on was in another person than either of the minors, to wit, Walter Moseley, and therefore that it appeared that the burden of proof was on appellee. The argument is that, if the cotton was at Walter Moseley’s gin, it must have been in Walter Moseley’s possession. We do not think the inference is a necessary one at all. The cotton might have been at said Moseley’s gin and yet have been in the possession of the minors. If it might, then it was uncertain from the testimony who had possession of it. It devolved upon appellant to remove the uncertainty ; and failing, as it did, to do so, the burden of proof in the case was on it. Boaz v. Schneider, 69 Tex. 128, 6 S. W. 402; Dawedoff v. Hooper, 190 S. W. 522; Bank v. Howard, 174 S. W. 719; King v. Sapp, 66 Tex. 519, 2 S. W. 573. Therefore the first assignment, in which appellant complains of the action of the court in instructing the jury as stated, and the second assignment, in which it complains of the refusal of the court to instruct the jury to find in its favor, are overruled.

It is unnecessary to determine whether •the trial court erred, as appellant in its third assignment insists he did, when he refused to admit in evidence a certified copy of the execution by virtue of which the constable levied on the cotton; for, had the copy been admitted, in view of the fact that appellant had not discharged the burden resting upon it to prove that J. F. TJsrey owned the cotton, no other judgment than the one rendered would have been warranted.

The judgment is affirmed.
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