text:
    CLAUNCH v. STATE.
    (No. 4680.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    1. Criminal Law <s=>917(2) — New Trial — Refusal of Postponement — Absence of Witness.
    Defendant, having on misinformation given by the sheriff as to the name of the person who had said defendant was not the person with the stolen property, summoned the wrong witness, and not discovered this till noon of the day of the trial, should be granted a new trial for refusal of a postponement of argument till the next morning; the witness desired making affidavit that he noticed particularly the person with the property, and that defendant was not the person.
    2. Criminal Law <@=>778(5) — Instructions— Burden of Proof.
    Instruction that, if the jury believe defendant was not at the place at the time of the theft, but was then at a different place, or if they have a reasonable doubt of the fact, they will find him guilty, reverses the rule as to burden of proof.
    3. Criminal Law <@=>1172(2) — Instructions —Burden of Proof — Circumstantial Evidence.
    Error of the charge in reversing the rule as to burden of proof is emphasized by the fact that it is a case of circumstantial evidence, and that there was no charge on that phase of the law.
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    Jake Claunch was convicted, and appeals.
    Reversed and refhanded.
    E. E. Johnson, of Cleburne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of horse theft and awarded three years’ confinement in the penitentiary.

The alleged owner drove his horse and buggy to a certain corner of a certain street in Cleburne and hitched the horse. This was something like 7:30 o’clock in the evening. About 9 or 9:30 he found his horse and buggy gone. Some time subsequently he recovered the buggy in Denton county, at Roanoke, about 48 miles from Cleburne.

The state’s theory was that appellant drove the horse, to Roanoke and sold both horse and buggy. Appellant denied having anything to do with it, and proved by witnesses that he was at Saginaw, in Tarrant county, 8 or 10 miles northwest of the city of Et. Worth, on the night the horse was taken, which was the 21st of February, and that on the 22d of February the railroad construction gang of which he was a member moved from Saginaw about 40 miles to the north or northwest, on the Rock Island Railroad. His presence there was shown by witnesses, and by the man who had charge of this force, on both dates. The fact of his presence was also- sustained by the time book, which showed appellant’s presence, hours of work, etc., on these respective dates. If that testimony is true, it would have been an impossibility for appellant to have stolen the horse, and the witnesses who tried to identify him as being in Roanoke are mistaken.

The issue was sharply drawn as to his committing the theft or that he was seen with the horse at Roanoke. Two witnesses identified him as being at Roanoke. They had never seen him before. Among other means of identification of appellant was the fact that he had a crippled hand. Three witnesses were brought from Roanoke to Cleburne to identify appellant some months after the occurrence. Two of them identified him and the third did not, and, in fact, would have testified that he was not the man. One of the witnesses who identified him was a deputy sheriff, and another the purchaser of' the horse. The third one, who would have testified favorably to appellant on this question, was not at the trial.

It seems, from the case presented to the trial court, that appellant’s attorneys went to the sheriff to secure the name of the third party, the absent witness, and the sheriff gave him the wrong name, and this party was summoned to the court, but during the trial it was discovered by appellant’s counsel that this was not the man, and that the sheriff had given him a wrong name. Upon ascertaining this, at the -noon hour, appellant’s counsel requested the judge to postpone the final argument of the county attorney until the following morning, at which time he would secure the presence of the absent witness. The court refused, the case proceeded, and. closed that evening about 6 o’clock. Affidavit of this witness is attached to the motion for a new trial, and the facts set out to which he would testify. In substance, his evidence would have been that the man who drove the horse and buggy to Roanoke had breakfast at the witness’ restaurant, and he noticed him particularly (his reasons being given therefor), and this was not the man who drove the horse to the place and sold it. This was very important testimony, and, whether it he newly discovered testimony or not, we are of the opinion that appellant’s request to postpone the final argument of the case until the following morning was reasonable, and should have been granted. The testimony of this witness was very material, and a postponement would not have unnecessarily delayed the court; and also, inasmuch as appellant had used fair diligence to secure the testimony of this witness, this judgment should be set aside. He was misled, and he imputes no wrong to the sheriff; but he gave him the wrong name, an.d, thinking he had the right witness, went to trial. The horse was never seen after it left Cleburne by anybody who could identify it. That the buggy was found seems to he not questioned. A brother-in-law of the alleged owner of the horse went to Roanoke to identify the horse, but when he reached there the horse had died and had been skinned. He testified that it was the bay horse, though he had been skinned when, he saw him, and that he did not see the hide that came off the horse.

The rule of newly discovered evidence might not strictly apply. The matter has been discussed in quite a number of cases, and while the testimony was hardly newly discovered, yet it might be pleaded in a certain sense as newly discovered. In fairness, justice, and right, under the circumstances, appellant ought to have had this testimony before the jury,

There is another question. Thé' court charged the jury:

“If you believe from the evidence that the defendant, Jake Claunch, was not in Johnson county at the time said horse was taken, but at said time was at a different place, or if you have a reasonable doubt of that fact, then you will find the defendant not guilty.”

We are of opinion that this charge reverses the rule. The jury should have been informed in some way that before they could convict they must believe beyond a reasonable doubt that defendant was in Johnson county, -and not that they must believe beyond a reasonable doubt that he was not in Johnson county.

It will be noticed in this connection that this is a case of circumstantial evidence. Nobody saw appellant take the horse. There is nothing to show when and where he got in possession of the horse, if he sold it in Roanoke. It is clearly a case of circumstantial evidence, and the charge on this phase of .the law was not given. This would serve to emphasize the error in the court’s charge, above quoted.

The judgment will be reversed, and the cause remanded.
      ©n»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDBRGAST, J.

license: Public Domain

text:
    GARRETT v. STATE.
    (No. 4635.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    Criminal Law <§=>1043(1) — Appeal—Pbeseb-vation on Exceptions.
    Where the court charged that to convict of assault with intent to murder the jury must find that defendant used a knife on the prosecu-trix with the specific intent of killing her, and with malice aforethought, the objection that the court failed to charge Pen. Code 1911, art. 1147, requiring the means used to be considered, and article 1149, as to the use of means not calculated to produce death, under the influence of sudden passion, sufficiently presented the question of the sufficiency of the instruction given.
    Appeal from District Court, Sabine County; C. B. Collins, Special Judge.
    Mary Garrett was convicted of assault with intent to murder, and she appeals.
    Reversed and remanded.
    Minton & Lewis, of Hemphill, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDBRGAST, J.

Appellant was convicted of assault with intent to murder Alberta Johnson, and her punishment assessed at the lowest prescribed by law.

There is no necessity of reciting the evidence in detail. The testimony on behalf of the state was clearly sufficient to show that appellant, without justification, assaulted Alberta Johnson with a razor and cut her therewith very seriously and dangerously. Alberta Johnson, the assaulted party, testified that appellant could have killed her with that razor, and that if she had cut her as deep on the front part of her neck as she did in another part of her body it would have killed her, and she said the doctor took 23 stitches in sewing up her wounds. Appellant cut her on the top of the head. The doctor said almost a block was cut out of her head about 1½ inches long. She was cut on the arm, it seems in the back, and across her neck and breast. The deepest part of the cut was nearest to her neck, and the doctor swore that the instrument that inflicted that wound was such as would have been capable of inflicting death. “If the wound had been slightly deeper in one place, it would have inflicted death.”

Appellant and her witnesses swore that she did not do the cutting with a razor, but cut her with an ordinary pocketknife, or a small pocketknife. Some of her witnesses bore her out on this point. She.also testified that Alberta Johnson assaulted her, and when she cut said witness she did it in seli-defense. The state’s testimony and the physical facts dispute this. She did not have a scratch on her. In impeachment of the appellant, the state proved by her that within a few years she had been indicted in three other cases for an assault with intent to Mil three other negro girls, and that this was the fourth time in which she was indicted and tried for this offense.

The court gave a full charge, correctly telling the jury what assault and battery was, what murder, malice, etc., were, to which there was no objection. Then in submitting the case for a finding on assault to murder, it charged the jury as follows:

“If from the evidence you are satisfied, beyond a reasonable doubt that the defendant, Mary Garrett, on or about the time charged in the indictment, in the county of Sabine, and state of Texas, with a deadly weapon, and with malice aforethought, did assault the said Alberta Johnson with intent then and there to kill and murder her, by the means charged in the indictment, and if you are further satisfied by the evidence beyond a reasonable doubt that said assault was not made under the immediate influence of sudden passion, produced by an adequate cause (as the same is hereafter explained to you) or npt in defense of herself against an unlawful attack, producing a reasonable expectation or fear of death or serious bodily injury, then you will find the defendant guilty of an assault with intent to murder, and so say by your verdict, and assess her punishment at confinement in the penitentiary for a term not less than 2 nor more than 15 years, as you may determine and state in your verdict.
“Before you convict the defendant in this case of assault with intent to murder, you must find beyond a reasonable doubt: (1) That the defendant cut the said Alberta Johnson; (2) that she did so with the specific intent of killing said Alberta Johnson ; and (3) that she did so with malice aforethought. And if you have a reasonable doubt as to whether or not all of said_ three propositions are true, you will not convict the defendant of assault with intent to murder.”

The court also submitted aggravated assault and self-defense in her favor. In the charge the court also correctly told the jury what was a deadly weapon.

Appellant objected to the charge of the court solely on the ground that the court failed to charge articles 1147 and 1149 of the Penal Code. That is the whole of the objection, except he quoted these articles in his objection. 1-Ie asks no special charge on the subject.

This writer is of the opinion that under the circumstances of this case appellant’s said objection to the court’s charge, especially when the court charged as he did, as stated, does not present reversible error. However, the other two members of the court hold that the objection, to the court’s charge sufficiently presents the question, and that the trial court erred in omitting to charge the two articles named, and upon their opinion the judgment of the court will be reversed, and the cause remanded.

Another question raised was some claimed newly discovered evidence. Under the statute and decisions the evidence would not be newly discovered. However, as that question cannot arise on another trial, it is unnecessary to further state or dismiss it.

Reversed and remanded.
      ÉstFof other oases see same topic and KEY-NUMBER il all Key-Number eel Digests and Indexes


author: DAVIDSON, P. J.

text:
    DICKEY v. STATE.
    (No. 4575.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1917.
    On Motion for Rehearing, Nov. 14, 1917.)
    1. Husband and'Wife <§=>302 — Wins Desertion — Willfulness.
    To convict a husband under the wife desertion statute, he must not only have deserted his wife, or have failed to support her, but it must have been willfully done.
    2. Husband and Wife <§=>313 — Desertion— Sufficiency of Evidence.
    In a prosecution for wife desertion, evidence held insufficient to support conviction, defendant having been penniless, to his wife’s knowledge, when he married her, and his failure to send Her money when they were separated by agreement while he was seeking employment having been due solely to inability.
    On Motion for Rehearing.
    3. Bail <§=>64 — Appeal — Recognizance as Bail Bond.
    The mere fact that to the end of appellant’s recognizance were signed the names of appellant and his sureties, under the circumstances that the judgment entering the recognizance recited appellant and his sureties came into open court and were properly recognized, as required by statute, did not constitute it a bail bond.
    4. Bail <§=>64 — Appeal—Recognizance.
    If defendant’s recognizance was taken and approved by the trial judge, it was not changed into a bail bond, because the judge required defendant’s sureties on appeal to sign it; it being a sufficient compliance with the law where taken and approved in open court, though it is unnecessary that the sureties should sign a recognizance so taken and approved, or that it be written at all.
    Appeal from Collingsworth County Court; A. C. Nicholson, Judge.
    Floyd Dickey was convicted of deserting his wife, and he appeals.
    Judgment reversed, and cause remanded.
    R- H. Templeton, of Wellington, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of deserting his wife, his punishment being assessed at a fine of $100.

Appellant, a boy about 20 years of age, married Miss Essie Thomas, who was about the same age. The marriage occurred about January 10, 1917, at Childress, Tex. They went at once on a visit to appellant’s uncle in Arkansas. On their return trip about January 15th, before arriving at Dallas, they agreed that the defendant should go in search of a position or procure some business by which he could make a living and would then return to Wellington for his wife, where she was to remain with her father until appellant had secured a remunerative position. This was an agreed separation for the purpose stated. She did return to and remain with her father while he was to go, as his wife indicates, to Clovis, N. M., to engage in business. Upon their separation at Dallas he gave her $15 to bear her expenses while she returned to her father’s home at Wellington. Debating the matter in his own mind as to the best opportunities, appellant went to Kansas City to see a friend of his who had promised him a position. Upon arriving there, however, the friend had employed another party, but gave him letters of recommendation, and suggested where he might get employment at some place in the state of Colorado. He went there but arrived too late; another man had secured that place. He then went to another town in Colorado and was again disappointed. Finally, at another point in Colorado he received employment. All this occurred within a few days after their separation, and four or five days after ¡being employed, as above stated, he was taken vei-y ill and remained so for a good while. His mother was telegraphed and came to his bedsid'e, and as soon as he was able to travel she carried him to her home, she being a widow. He made no money and had no other employment, and was not able to do anything while sick and up to the time of and during the trial. His wife went to her father’s and remained there. He sent her no money, the reason stated being that he had none; and it is also made to appear that when they were married his wife knew he had no property or money, and what he did have was given him by his mother at the time of his marriage. Her father gave her $30, which she turned over to him, and at their separation he handed her $15, keeping what was left to bear his expenses until he could secure a position. She testified, as did her father, that while she had no'property except such as he gave her, that she returned to his home and' remained with him, and that he cared for her and furnished everything she wanted and she suffered for nothing. That phase of the case is undisputed. It seems also to be undisputed that defendant had no money except as above indicated, and failed to make anything by reason of his sickness directly after his employment. It was their purpose when they separated at Dallas that he was to get employment and secure a residence for himself and wife, and then she was to go to him, or he was to return (for her. This it may be stated is substantially the case on the facts.

There are several questions presented on the rulings of the court which are of a reversible nature, both on the introduction of testimony and on the charge and refused instructions. These are all properly and timely presented by exceptions to the charge, as well as refusal to give special requested instructions. In fact, these matters are presented every way they could be under the practice and procedure in criminal cases. In order to convict a husband under this statute he must not only desert his wife, or fail to support her, as the case may be, but it must be willfully done. In a sense, she was not in necessitous circumstances, for she testified as did her father that she wanted for nothing; that he furnished her everything that she desired, and was able to do so. This, however, might not excuse the appellant for not furnishing her means, but it seems to be a fact that he had' no money and could furnish no means for her support, all of which his wife understood at the time they were married. He testified he would have sent money to her if he had it, but under the condition he was in he could not secure and did not have it.

Under the cases decided by this court we do not believe the state has sufficient evidence to justify an affirmance. Irving v. State, 78 Tex. Or. R. 615, 166 S. W. 1166; Furlow v. State, 182 S. W. 308. Taking the case from this standpoint it is unnecessary to discuss the legal questions. The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

On the original submission, the Assistant Attorney General filed a motion to dismiss the appeal, based upon the idea that what purported to be a recognizance was not a recognizance but a bail bond. The judgment entering this recognizance recites the appellant and his sureties came into open court and were properly recognized as required by the statute, but at the end, however, of this recognizance the names of appellant and his sureties were signed. Because of this the Assistant Attorney General asked the court to dismiss the appeal, because it was in fact a bail bond and not a recognizance. This motion was not discussed in the disposition of the case, the court being of the opinion that it was a recognizance. The mere fact that the names were signed at the bottom of it under the circumstances surrounding the instrument, and its form and circumstances attending it, did not constitute it a bail bond.

A motion for rehearing is now filed by the state asking a reconsideration of the case and dismissal of the appeal, insisting that the instrument was an appeal bond. A sufficient test, and we believe a correct one, in testing instruments of this character, is if a forfeiture was declared upon it under scire facias proceeding, would the forfeiture be sustained? If so, the instrument is sufficient ; if not, it would not be sufficient. Appellant filed a reply in the form of a contest to the state’s motion. The clerk of the county court where the case was tried reproduces the instrument in his certificate practically, and perhaps literally, as in the transcript. Then he further certifies the above is a true and correct copy of the judgment as entered in the minutes, and that there are no file marks or other entries on the judgment; and, further, that if any file marks appeared on the transcript of said judgment they were copied from the original draft of said judgment placed with the papers of said cause for entry, and that file marks on the draft of the judgment were entered by mistake, under the impression that the draft of said judgment ought to be marked filed; and he further certifies that it was the custom of A. O. Nicholson, county judge, to require all judgments to be presented to him and have his O. K. before entering same of record. This instrument is shown by the transcript and this certified copy shows it was 0. K.’d by A. O. Nicholson, the trial judge. R. H. Templeton, attorney for appellant, filed an affidavit showing the circumstances occurring at the time of the taking of the recognizance and incidental matters. He drew the form of the recognizance before it was entered into by the appellant, and his sureties and presented it to the court. The court took the recognizance but had appellant have the names of his sureties signed to the document, and O. 'K.’d it as was his custom, and of all judgments entered while he was Judge, and that the signatures were fixed to the recognizance at the instance of the judge and on his request, and with the advice by counsel that this was a judgment and did not require the signatures of the parties as in case of a bond, and that the recognizance was duly entered of record as a part of the judgments in said case. He says he prepared this document as above indicated, and presented it to the county judge, and had the recognizance taken and approved; that Judge Nicholson required all judgments drawn by attorneys to be first presented to him and have his O. IC written on same before the clerk would be permitted to enter them.

This is a sufficient statement of the matters in connection with the taking and approval of the recognizance. If, as stated, the recognizance was taken and approved by the Judge and had his O. K. on it, this did not change it into a bail bond by reason of the fact that he required sureties to sign it. If it was taken and approved in open court as shown by the clerk and the attorney representing appellant, we think it is a sufficient compliance with the law. It is not necessary that the sureties should sign the recognizance if it is taken and approved, or in fact that it should be written at all; but where it is written, and the recognizance is taken and approved as written, as the judge requires, it would not invalidate it as a recognizance. Had there been a forfeiture of this instrument, we are of opinion that it would have been, so far as that matter is concerned, sufficient to form the basis of a judgment. This we think is a sufficient test of the validity of obligations of this character. The names of the principal and sureties are properly set out in the judgment of the court entering the recognizance, and in'this manner it seems was taken and approved.

We are of opinion the motion for rehearing ought to be overruled, and it is accordingly so ordered.
      <B=>For other cases see same topic and KBY-NUMBER. in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    STEGALL v. STATE.
    (No. 4681.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    1. Criminal Law <®=»1144(13) — Appeal—Absence of Statement of Facts — Assumption That Evidence Established Guilt.
    In the absence of statement of facts, the Court of Criminal Appeals must assume that the evidence unquestionably established defendant’s guilt.
    2. Indictment and Information @==>176 — Allegation of Date of Offense — Proof of Commission on Other Date Within Period of Limitation.
    The allegation of an indictment for burglary that the offense was committed April 30th would not preclude the state from proving that it was on some other date within the period of limitation from the time the indictment was found.
    3. Criminal Law <§=o1144(1) — Appeal — Assumption That Alibi Would Not have Availed Defendant.
    Where the court trying a charge of burglary heard all the testimony on appeal in the absence of a statement of facts, there being nothing in the record to show the contrary, the Court of Criminal Appeals must assume that defendant’s claimed alibi, as to the particular night the indictment charged the offense, would have availed him nothing, though it were conceded he was at home, and not at the place of the burglary, on the particular night.
    Appeal from Criminal District Court, Dallas County; C. A. Pippin, Judge.
    Walter Stegall was convicted of burglary, and be appeals.
    Judgment affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

On May 17, 1917, the grand jury of Dallas county indicted appellant for burglary alleged to have been committed April 30, 1917. The case was tried June 12, 1917, on which date the jury found him guilty, and assessed his punishment at the lowest prescribed by law. The judgment is that when the cause was called for trial on June 12th, both parties appeared by attorneys, and the appellant also in his own proper person, and announced ready for trial. There is no statement of facts and no bill of exceptions.

On June 13th appellant filed a motion for a new trial solely on the ground that the “verdict is contrary to law and the evidence.” This motion was heard and overruled on June 26, 1917. On the next day the court, at appellant’s instance, set aside that order overruling the motion, and granted him leave to file an amended motion for a new trial, which he did. Then on the next day, June 28th, the' court heard his amended motion and overruled that.

The record shows no motion for a coñtin-uance .nor any objection whatever to going to trial on the date the case was tried, for any reason. But there does appear in the record, which was filed on June 21st, nine days after the trial verdict and judgment, and which was sworn to by appellant on June 26th, still five days later, a paper which alleges that defendant cannot safely go to trial at this time for the reason of the absence of Bab Stegall, who resides in Dallas county, Tex., by whom he expects to prove that on Saturday night, April 30th, he was at his home at a certain numbered street in Dallas, and remained there all night long, not leaving the place, and was there about 9' o’clock p. m. until daylight the next morning ; hence he could not have committed the burglary charged against him. Wherefore he at that time prayed that the case be continued until another term or postponed until some future day in order that he may procure the attendance of said witness.

In his said amended motion he alleged that he had not been arrested after the indictment was found up to the time he was tried; hence he had applied for no process for the witnesses in his behalf, and among other things he set up that he could prove, in substance, a complete alibi by certain witnesses, naming them, and sought a new trial on that ground. He attached affidavits of several persons sworn to on June 27th to the effect that appellant had not been arrested after the indictment was found, but was originally arrested on a complaint and gave an appearance bond at that time and the affidavits of some witnesses to the effect that he was at his home on Saturday night April 30, 1917, when the indictment alleges he committed the burglary.

There is no statement of facts in the record, and we must assume that the evidence unquestionably established appellant’s guilt. The allegation that the burglary was committed on April 30th would not, of course, preclude the state from proving that it was on some other date within the period of limitation from the time the indictment was found. The court heard all the testimony on the trial, and we must assume, as there is nothing in the record to show the contrary, that his claimed alibi on the night of April 30th would have availed him nothing whatever, even if it be conceded that he was at home, and not at the place of the burglary, on that particular night.

Upon the whole, without a. statement of facts or a bill of exceptions, there is nothing in the record shown in such a way as that we can hold any error was committed' in the trial of the case or the overruling of his amended motion for a new trial, ancl therefore the judgment must be affirmed.
      ©ssFor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MATHENEY v. STATE.
    (No. 4653.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.
    Rehearing Denied Nov. 21, 1917.)
    Intoxicating Liquors @=339 — Local Option Election — Order oe Commissioners — Oo-n-CLTTSIVENESS.
    The record of the commissioners’ court declaring the result of an election and entering an order putting local option into effect in the county was conclusive, in the absence of a contest, that the election was regular.
    Appeal from District Court, Morris County;. J. A. Ward, Judge.
    Sam Matheney was convicted of violating the local option law, and appeals.
    Affirmed.
    6. D. Hart, of Daingerfield, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, his punishment being assessed at one year’s confinement in the penitentiary.

There is one bill of exceptions in the record reserved to the action of the court permitting the prosecution to introduce the order of the commissioners’ court declaring the result and entering an order to that effect putting local option into effect. The theory upon which this is presented is that the commissioners’ court held its session on the ninth day after the election. The court qualifies this bill with the explanation that the election was not contested, and the certificate of the county judge to the fact that the order declaring the result of the election had been published as required by law; and the court further states that this was conclusive that the election was regular in the absence of a contest. It seems that the judge, in this respect, was in accord with the decisions of this court in regard to this matter. These decisions will be found collated in Branch’s Ann. Penal Code, p. 692. The evidence, we think, is sufficient to support the conviction under quite a line of decisions announced by this court.

We do not feel justified, under the circumstances, to set aside or interfere with the-judgment, and it will be affirmed.


text:
    GARDNER v. STATE.
    (No. 4666.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    Criminal Law @=>913(5) — Grounds for New Trial — Insanity.
    Where defendant had no attorney at trial and conviction, insanity at the time of the alleged crime and trial is a good ground for a new trial on motion therefor by relatives who became aware of the prosecution after conviction, there being.- no claim or evidence of insanity at the trial, because an insane person would not be held to know that he was insane so as to-plead insanity.
    Appeal from Criminal District Court, Dal--las County; Robt. B. Seay, Judge.

      Ed. Gardner was convicted of a'statutory offense, and lie appeals.
    Reversed and remanded.
    Lafayette Eitzhugh, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an assault to rape a very young little girl, and his punishment assessed at seven years confinement in the penitentiary.

The record shows that appellant had no attorney to represent him on the trial. There was no claim on the trial that appellant was insane either at the time of the commission of the offense, if one was committed, or at the time of the trial. Neither was there any claim or evidence on the trial that appellant, by reason of previous disease and his advanced age, had lost his manhood, and it was impossible for him to have had sexual intercourse; or that it was a physical impossibility for him to have had an emission. Just after the trial, and his friends and relatives learned thereof, it seems, they employed an attorney who at once conferred with the trial judge, telling him that appellant was insane at the time of the commission of the •offense, if any, and at the time of the trial, and of his sexual inability, and he claimed that all these facts were newly discovered testimony. The judge thereupon suggested to the attorney that he file his motion for a new trial setting up by affidavits his claimed newly discovered testimony. The attorney at once filed such motion, alleging that such were the facts, and swore to it himself. He attached three affidavits, one of a physician, and another of appellant’s former wife, in which it is briefly hut specifically sworn that his condition, physical and mental, was as alleged by his attorney. There was no congest or counter affidavits filed by any one.

When the motion came on to be heard, in addition to the affidavits attached to the motion, his attorney produced some 12 witnesses and tendered them to the court to be sworn and testify orally to prove what he had alleged. We will here copy in full what he offered to prove by two of these witnesses:

By Dr. S. M. Hill: “That said witness resides in the city of Dallas; that he is a member of the firm of doctora, Samuel, Thomasson, Hill & Trumbull. That he is a physician of large experience. That he has resided in Dallas for several years in the active practice of his profession. That he is intimately acquainted with the defendant and has been his physician for several years. That/the defendant has always borne a most estimable reputation. That he knows the condition of the defendant both physical and mentally and has known it for a long time. That he has examined the defendant professionally, and from such examination he will state that it was a physical impossibility for the defendant to have had an erection, emission, or discharge at the time of the alleged commission of the crime of which he now stands convicted of. That he visited defendant professionally while he was in jail, just a few days before his trial, and made an éxamination of Mm, and from that examination and other examinations, and his personal and intimate relations and long acquaintance with the defendant, he is in a position to state and will state that the defendant was insane at the time of the alleged commission of the crime for which he stands convicted, and that he was insane at the time of his trial. That defendant at the time of his trial was mentally incapable of making a rational defense. That at the time he visited the defendant just before his trial, as aforesaid, he found defendant greatly depressed and mentally unbalanced. That his eyes were expressionless, and that his answers to questions propounded to him were vague and rambling, and that he talked and acted like a child. That defendant is over 70 years of age, broken in health, feeble, childish, and harmless.”
By Mrs. Mattie Devere as follows: “That said witness resides in Dallas, That she is the daughter of Judge W. C. Loving, deceased, late of Sulphur Springs, Tex. That she married the defendant in the year 1882 and lived with him as his wife until about S years ago, when she was divorced from defendant, on account of his physical and mental condition. That since said divorce she married again, and her' husband is now dead. That she lived with defendant as aforesaid for 32 years, during which time she became thoroughly familiar with defendant’s physical and mental condition. That about 10 years prior to the time of the alleged offense, the defendant had a severe case of smallpox, long spells of sickness and his kidneys and bladder were affected to such an extent as to cause him great suffering and pains. That he lost his manhood, and his privates shriveled up and wasted away. That it was a physical impossibility for the defendant to have an erection, emission, or discharge at the time of the alleged commission of the crime of which he now stands convicted of. That defendant’s body and mind was weak from old age and long suffering from sickness. That she'is in a position to know and does know that the defendant was not sane at the time of the alleged commission of the offense charged, and that from his acts, manners, and conversations he was insane at the time of his trial. That she saw the defendant the day before he is said to have committed the alleged crime, for which he stands convicted of. That he was shaking his head, talking to himself, and acting crazy. That she visited the defendant while in jail prior to the time of his trial and conviction and he looked blank in his expression and talked foolish and hardly recognized her. That defendant is about 70 years of age, broken in health, body, and mind. That he is fond of children and always has been, and that the older he gets the more childish he becomes. That he is gentle and kind in his disposition and talks like a child, and there is no harm in him.”

By other of said witnesses he offered to prove the same state of facts in substance. What he states in the bill they would testify all tends to show appellant’s insanity as alleged, and his loss of manhood, and his physical and mental condition, as would have been testified by the two witnesses whose proposed testimony is copied, but their testimony, was not so full as either Dr. Hill’s or Mrs. Devere’s. Among these witnesses were his two grown sons by his former wife, Mrs. Devere.

All this testimony was offered as a ground and for the purpose of procuring a new trial. No affidavit was made charging he became insane after his conviction, nor seeking a trial therefor. This character of trial is provided for in articles 1017 et seq., in our Criminal Procedure. At the time appellant’s attorney offered to prove said state of facts before the judge so as to get a new trial for him, the judge himself declined to hear the testimony, but tendered to appellant a jury to try the issue of insanity under said articles of the Procedure. Appellant refused to try such an issue before the jury, because he was not seeking to show that he had become insane since his conviction. Thereupon the court declined to hear the evidence himself or pass upon the question so as to determine whether or not he would grant a new trial.

The proffered testimony might not have been what is originally termed newly discovered testimony. But if he was insane as alleged, surely he could not be held to have known it, so as to plead insanity, and introduce such evidence when he was tried. But whether it could be called newly discovered testimony or not, it certainly set up such a state of facts as undoubtedly called for an investigation of the question and the hearing of the testimony of these witnesses to determine whether he was insane when tried. If the judge had heard the testimony, and any other offered by the state, and had held that appellant was not insane when tried, and had overruled the motion for a new trial on that ground, a different question would be presented ; but he did not do this. He refused to hear or consider the testimony, and to pass on the issue at all. We think it was undoubtedly his duty to have heard the testimony himself and pass upon the question before and when acting on the motion for a new trial.

Our law (article 39, P. O.) is clear that:

“No act done in a state of insanity can be punished as an offense. No person who becomes insane after he committed an offense shall be tried for the same while in such condition.”

Surely if appellant was insane when he committed the alleged offense, and continued so and was insane at the time he was tried, and these matters were shown to the court afterwards in a motion for new trial, he was certainly illegally tried for an offense for which he could not be punished.

The court has made a very full and lengthy explanation to appellant’s bill presenting these questions. It is unnecessary to quote or state it in full; it explains various things, and the judge’s opinion about matters other than what we have stated or discussed. Bdt the fact is clear from the bill and his explanation that he himself refused to hear the testimony on the matters we have mentioned, alleged in the motion and affidavits, but he wanted appellant to have a jury and required him to try the issue of insanity before a jury, the effect of which would have been to have failed to pass at all on the question of whether or not appellant should be entitled to a new trial because he was insane when tried. If, under that condition of affairs, a jury had been impaneled and found appellant was insane at that time — -had become insane after he was tried, not when he committed the offense, nor when he was tried — all further proceedings, even on the motion for a new trial, would have been suspended, and the appellant would have been sent to the insane asylum. If, however, the jury had found that he was not insane at the time when the motion for a new trial was acted upon, and had not become insane after he was tried, that still would not have passed on the question of whether he was insane when he committed the offense, if he did, nor when he was tried, and in no way would the verdict of the jury solve the question put up to the court, and which the court should have passed upon and. acted upon without reference to any such proceeding before a jury.

It may be shown upon a full trial that ap-' pellant committed the crime alleged, and that he was not insane at that time, and not insane when tried, but, under the conditions shown, neither in law nor in justice, can we-permit this judgment of conviction to stand, but must reverse and remand this cause, which is hereby ordered.

Reversed and remanded.
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text:
    ARRELANO v. STATE.
    (No. 4677.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    Criminal Law ⅞=>265 — Time to Plead.
    Under Vernon's Ann. Code Cr. Proc. 1916, art. 578, providing that in all cases defendant shall be allowed two entire days after his arrest and during the term of the court to file written pleadings, where a complaint and information was dismissed, and a new complaint and information filed as substitutes under which defendant was not arrested until put on trial, he was then entitled to two days in which to plead, though the complaint had been filed more than six days before the trial.
    Appeal from Bexar Comity Court; Nelson Lytle, Judge.
    Perfecto Arrelano was convicted of theft, and he appeals.
    Reversed and remanded.
    G. Woodson Morris, of .San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft. ' Complaint was filed by Albert Maverick against appellant on the 13th of March, 1917. Information was also filed predicated on that complaint. Both seemed to be insufficient, and on tjie 11th of May another complaint was filed, and, on the 12th of May information based on that complaint was presented to the court. Appellant claimed the right under the statute to have two days in which to prepare written pleadings. The court signed the bill of exception with the statement that the. complaint had been filed six days before the trial. The bill of exception also recites the fact that the last complaint and information were filed as substitutes for the former; but he had not been arrested under the com plaint filed on May 11th and the court forced him to trial over his protest.

The statute provides that an accused shall have two days in which to prepare his written pleadings. When the first complaint and information were dismissed appellant was no longer held by virtue of those pleadings; and as he had not been arrested subsequently he had the right to claim the two days when put on trial. The fact that the complaint was filed six days before would have no effect as to this right. Gases bearing upon this question will be found collated in Vernon’s C. G. P. p. 297; the article being 578. Under this article there are a great number of authorities collated.

The Judgment will be reversed, and the cause remanded.
      CfcoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    FITZGERALD v. STATE.
    (No. 4674.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1917.)
    1. Jury <S=»70(1) — Drawing or Jurors — Summoning oby Sheriff.
    Action of court in having the sheriff summon a jury for the week, there_ being none present because of the court accidentally, at _ the previous term, having failed to appoint a jury commission, is in conformity with Vernon’s Ann. Code Cr. Proe. 1916, art. 715.
    2. Criminal Law <⅜=1169(6) — Appeal — Harmless Error — Admission of Evidence.
    Defendant cannot complain of the owner of buggy taken being allowed to testify to its value, where the punishment inflicted was that provided *y Vernon’s Ann. Pen. Code 1916, art. 1259a for a minimum value.
    3. Criminal Law <⅜=>665(4), 1144(13) — Appeal — Presumption — Discretion — Witnesses Violating Rule.
    Admissibility of witnesses who have violated the rule is addressed to the court’s discretion, which on appeal will be presumed properly exercised, the contrary not appearing.
    Appeal from Potter County Court; T. W. McBride, Judge.
    Dick Fitzgerald was convicted, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Under Acts 1915, p. 160 (article 1259a, Vernon’s Crim. Stat.); appellant was prosecuted for purposely taking and driving upon the public streets of Amarillo a buggy belonging to W. B. Benton, without Benton’s 'consent, etc.

Said act is as follows:

“Whoever purposely takes, drives or operates, or purposely caused to be taken, driven or operated, upon the public road, highway or other public place, any motor vehicle, bicycle, buggy, carriage or other horse driven vehicle, without the consent of the owner thereof shall, if the value of such motor vehicle, bicycle or other vehicle is thirty-five ($35.00) dollars or more, be imprisoned in the county jail for not less than six months nor more than one year, or if the value is less than that sum, be fined not more than two hundred dollars ($200.00), or imprisoned not more than thirty days, or both.”

His punishment was assessed at a fine of $75 and 30 days’ confinement in the jail, of course, under that part of the statute fixing the punishment when the value of the buggy was less than $35.

The testimony on behalf of the state was clearly sufficient to establish the offense of which he was convicted. He denied taking the buggy at all and introduced evidence, some of which, if believed, would have been sufficient to have shown an alibi in his behalf. The jury, without doubt, believed the state’s testimony and disbelieved his, and his evidence on the alibi question. The court, in a proper charge, submitted his claimed alibi.

In one bill it is shown that at the previous term of the court, the court accidentally, and not deliberately, failed to have a jury commission impaneled to draw a jury for the term during which appellant was tried; that on Monday morning of the week during which this trial occurred, there being no jury in attendance, the court directed the sheriff to summon 14 qualified juro’rs to serve as jurors for that week. This the sheriff did, and said 14 jurors were used for the jurors of that week. Appellant, when his case was called, made a motion to quash the entire panel because the jurors were not drawn by a jury commission, which the court overruled. The action of the court in having the sheriff to summon a jury for the week, under the circumstances, was clearly in compliance with the statute and decisions. Article 715, C. C. P.; Cox v. State, 71 Tex. Cr. R. 236, 158 S. W. 560, and cases there cited, and other cases. The bill, as explained by the court, shows no error.

Appellant has another bill which shows that when the state asked Mr. Benton, the owner of the buggy, what the value of it was he objected to the question and answer “for the reason that the witness was not qualified, and because it had been established that the buggy had a market value, and it was improper and prejudicial to permit the witness to state any value -except the market value.” His further claim in the bill was that the value of the buggy became material because if of the value of $35 or over it authorized the jury to inflict a severer punishment than was imposed. The court qualified the bill by stating that Mr. Benton testified that he knew the market value in the community in which he lived and that it was about $35; that he did not know the market value in Amarillo; that there were various values. This bill, as qualified by the court, shows no error.

When the state offered Horace Griggs as a witness, appellant objected to his testifying because he had violated “the rule,” in that he had heard the testimony of some of the other witnesses in an adjoining room to the courtroom, and when under the rule, with other witnesses. The court qualified the bill as follows:

“At the time the said witness was in attendance upon the court for the sake of convenience and for a place to sit down, he, together with witnesses for the defendant were using my office, which adjoins the courtroom. The door was closed but not locked and the wind blew the door open just before the witness Gl'ig'gs was called. The witness stated that he was reading a magazine; that he heard some of the questions and some of the answers but paid no particular attention to them; that he was simply in the room-with other witnesses and was reading awaiting the time to be called; that he had no intention of disregarding the court’s instructions. It was not shown that witness heard any particular statement. or remembered any particular answer. Defendant’s motion to prevent witness Griggs testifying was overruled.”

It has always been held, and in a great many decisions, as thus laid down by Mr. Branch in his 1 Ann. P. O. p. 197:

“The admissibility of witnesses who have violated the rule, or who have not been placed under the rule, is a matter addressed to the sound discretion of the court, and, until the contrary appears, it would be presumed on appeal that such discretion was properly exercised”

—citing quite a nuihber of decisions so holding. This bill shows no error.

The judgment is affirmed.
      •femFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    WILLIAMS v. STATE.
    (No. 4633.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    1. Criminal Law <§=369(1)- — Evidence—Admissibility-Independent Offenses.
    In prosecution for cattle theft, admission of testimony that accused gave a minor whisky, for the purpose of fixing and identifying the occasion of a conversation, was error, since it concerned an independent, unrelated offense.
    2. Criminal Law <§=713 — Argument of Counsel.
    Argument that plea for suspended sentence should not be considered, as it would encourage others to commit crime, was improper, though it did not require reversal.
    Appeal from District Court, Hoard County; J. A. Nabers, Judge.
    Dave Williams was convicted of theft, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction was for the theft of cattle. The evidence is sufficient to sustain the conviction, and the charge of the court fairly presents the issues.

There was evidence in the case with reference to a conversation which took place at or near the residence of the father of appellant. In this conversation appellant and several others took part. One of the parties present was a boy 12 years of age. It appeared incidental to the conversation that at the time thereof there was some whisky drunk. The drinking was not involved further than that the conversation took place at the time when the appellant and others met and at which’ they were drinking whisky. The boy Buster Boardman was put on the stand by appellant to give his version of the conversation and testified on that question. The state, on cross-examination of this witness, proved by Mm, over appellant’s objection, that appellant gave him alcohol to drink. There was no suggestion that anybody was drunk on the occasion, or that the use of the alcohol or whisky by any of the parties affected their testimony, but it was brought into the ease merely as identifying the occasion of the conversation. Other witnesses testified to the conversation and there was no doubt but what the boy Buster Boardman was there and heard it. The proof that appellant offended the law by giving intoxicating liquor to minors was proved by the state as an independent fact and was without relevancy to the issues involved, was not res gestae, nor pertinent under any rule of evidence; it was illegal evidence calculated to prejudice the appellant, and, in our opinion, should operate to reverse the judgment. The rules with reference to the circumstances under which other offenses are admissible are well defined in our law (Vernon’s C. C. P. p. 617 to p. 624), and where proof of such other offenses is not embraced within some of the exceptions to.the rule excluding it, but is introduced as an independent and disconnected fact, it is generally regarded as substantial error. Currington v. State, 72 Tex. Cr. R. 143, 161 S. W. 478; Ware v. State, 36 Tex. Cr. R. 597, 38 S. W. 198; Bowman v. State, 70 Tex. Cr. R. 22, 155 S. W. 939; Barnett v. State, 50 Tex. Cr. R. 538, 99 S. W. 556; and other cases listed under article 783, Vernon’s C. C. P. p. 617, note 51. And in the application of this rule it has frequently been held that proof of offenses such as that involved in the admission of the evidence referred to was erroneous. Freedman v. State, 37 Tex. Cr. R. 115, 38 S. W. 993; Shepherd v. State, 76 Tex. Cr. R. 307, 174 S. W. 609; Haney v. State, 57 Tex. Cr. R. 158, 122 S. W. 34.

The prosecuting attorney in argument of the case insisted that appellant’s plea for a suspended sentence should not be sustained because “it would encourage other young men who witnessed the trial to commit crime.” The law contemplates that the rights of an accused in a criminal case will be determined from the evidence and not influenced by outside considerations. Branch’s Ann. P. C.. p. 206, §§ 367 and 368, and cases cited. WMle the argument mentioned would probably not demand reversal of the case, it would make it fall within the class to be avoided.

Because of the error pointed out, the judgment of the lower court is reversed, and the cause remanded.
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