author: CALHOUN, Judge. BATTIMORE, Judge.

text:
    SHANNON v. STATE.
    No. 15598.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Rehearing Denied April 26, 1933.

      C. C. McDonald, of Wichita Falls, and John Morison and W. E. Myres, both of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the ¡State.
   CALHOUN, Judge.

Conviction is for transporting intoxicating liquor; punishment, three years in the penitentiary.

The testimony of the state’s witness, Mrs. Chick Ledbetter, in brief was as follows: She was formerly Mrs. Troy Taylor, wife of Troy Taylor, who died on June 19, 1929. On the 15th day of June, 1929, she was living in Paducah, Tex., and was acquainted with the appellant, Boyd Shannon, who lived three or four blocks from where she and her former husband, Troy Taylor, lived. On said 15th day of June, about 11 or 12 o’clock at night, the appellant drove up in a Ford truck to the house where she and her husband lived and called her husband to come out and help unload. Her husband went out to where the appellant was but she herself did not go out. She heard the appellant say something about a part of the ¡alcohol being broken and that he had crushed two cans of it. The two crushed cans were taken out of the truck and wrapped ,up in quilts and although she did not examine the cans brought in the house, there was alcohol on the quilts. She saw the appellant and her husband pour what was left in the two crushed cans into fruit jars and carry the rest off. She knew the truck contained alcohol when it came to the house because the appellant said it was alcohol. The following night, Sunday night, the appellant and her husband had a conversation in her presence at her home and referred to the load as being alcohol and stated that it would make them about $8,000. They were partners in the load. .They had a settlement in regard to the load the appellant brought the night before and her husband gave the appellant a check for $941, which was drawn on the Citizens State Bank of Pa-ducah and was signed by her husband, Troy Taylor, and made payable to Boyd Shannon, the appellant. She identified the check offered in evidence, which was dated 6-16-1929,, and shown to have been indorsed by Boyd Shannon, as being the check given by her husband to the appellant on said night. She had seen the appellant write and the indorsement on the check looked like his handwriting.

The appellant did not testify in his own behalf but offered several witnesses by whom he proved an alibi on the night of June 15, 1929.

Bill of exception No. 1 sets up the fact that there was received in evidence, over appellant’s objection, testimony from the state’s witness, Mrs. Ledbetter, to the effect that her husband, Troy Taylor, and the 'appellant were using the alcohol to make gin and whisky with it and about a week before the appellant came to her house she saw them make whisky and gin from said alcohol, to which testimony appellant objected on the ground that it was immaterial, prejudicial, and because the same permitted the state to prove a wholly distinct and separate crime and the testimony was highly prejudicial in that it would permit the jury to convict the appellant for an offense for which he had not been charged, although innocent of the offense for which he stood charged.

The indictment in this case contains two counts, the first count charging the appellant with unlawfully transporting intoxicating liquor, and the second count charging the appellant with unlawfully having intoxicating liquor in his possession for the purpose of sale. The evidence complained of wag offered on the direct examination of the witness Led-better and at a time when no election had been made or asked for by the appellant as to which count of the indictment the state would ask for conviction. We think the testimony was admissible at the time it was admitted in evidence under the second count in the indictment charging the appellant with the unlawful possession of intoxicating liquor for the purpose of sale.

After the testimony was all in, the court in his charge to the jury charged the jury that the second count was withdrawn from their consideration and submitted to the jury only the guilt or innocence of the appellant under the first count in the indictment, and in paragraph 8A of the court’s charge to the jury, we find this language: “You are instructed that that portion of the testimony elicited from the-witness Mrs. Ohiek Ledbetter as to how the defendant and her deceased husband, Troy Taylor, had been accustomed in times past to mix alcohol» with other ingredients so as to make whiskey and gin, for the purpose of sale is withdrawn from your consideration and you will not consider same for any purpose.”

The effect of this charge was to effectively and completely withdraw from the consideration of the jury the very testimony of which appellant complains in his bill of exception. If it should be held that there was any error in the admission of said testimony, which is not conceded, the withdrawal of same by the court relieves the matter of any probable error which would call for reversal of the case, gee Schwab v. State, 102 Tex. Cr. R. 454, 278 S. W. 427.

By bill of exception No. 2, appellant complains of the trial court admitting in evidence, over his objection, the testimony of the state’s witness, Mrs. Ledbetter, as to the conversation between the appellant and her husband, on the night following the night she testified that the appellant brought the alcohol to their house, in regard to the' crushed cans and the statement of the appellant that what was contained in said cans was alcohol and the statement that the said load would make them about $8,000, and that her husband paid the appellant $941 for his part, because it was an attempt on the part of the state to prove a separate and distinct crime and an offense for which the defendant was not charged.

By bill of exception No. 3 appellant complains of the action of the trial court in permitting the introduction of the check signed by her husband to the appellant for the sum of $941 on the ground that it was immaterial and prejudicial and related to a transaction occurring long after the offense for which the appellant was on trial and was an attempt by the state to prove details of a wholly distinct and separate offense.

We fail to find any merit in these contentions. The testimony shows that it was a part and parcel of the same transaction and was not a separate and distinct transaction from the one under investigation and the testimony was admissible as a circumstance tending to connect the appellant with the offense for which he was being tried. It was also admissible in rebuttal of the defense of an alibi offered by appellant. Nichols v. State, 97 Tex. Cr. R.. 174, 260 S. W. 1050, and for collation of authorities see Branch’s Ann. P. C. § 166, p. 98.

It may be conceded that in introducing the testimony complained of in bills of exception 2 and 3 the state was premature, but the subsequent conduct of the case upon the part of the accused having rendered the testimony relevant, the premature receipt thereof was not such error as would justify reversal of the judgment. Branch’s Ann. Tex. P. C. § 98, and authorities collated thereunder; Cox v. State, 8 Tex. App. 297, 34 Am. Rep. 746; Nichols v. State, 97 Tex. Cr. R. 174, 260 S. W. 1050; Gregory v. State, 92 Tex. Cr. R. 581, 244 S. W. 615; Mirales v. State, 112 Tex. Cr. R. 67, 13 S.W.(2d) 868.

Bills of exception 5 and 6 complain of the refusal of the trial court to give a special instruction to the jury to disregard the testimony complained of in bills 1, 2, and 3. The discussion of said bills fully disposes of said contentions of the appellant.

Bill of exception No. 7 complains of the refusal of the trial court to instruct the jury not to consider the argument of the private prosecutor in regard to the contemplated profit of $8,000 which appellant and Troy Taylor expected to make and also his argument with reference to the $941 bank check. Said testimony being legitimately before the jury, we see no error in the refusal of the trial court to instruct the jury to disregard said argument.

Bill of exception No. 8 brings forward appellant’s objections and exceptions to the court’s main charge, which merely presents appellant’s objections to the introduction of the testimony complained of in bills 1, 2, and 3, and the refusal of the court to withdraw same from the consideration of the jury.

We have carefully considered all the evidence and believe the evidence is sufficient to support the conviction.

Finding no error in the record which would call for reversal of the ease, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

BATTIMORE, Judge.

This case was submitted to the jury as one of circumstantial evidence. Mrs. L., the state’s only witness, swore that on the night of June 15th appellant came to the house where she and her husband were. She heard him say he had a load of alcohol. Her husband went outside to the truck but witness did not go. She heard the two talking, heard appellant ask her husband to help him unload the alcohol, heard him tell her husband that two cans of the alcohol were crushed. She testified that these two crushed cans were wrapped in a quilt, which latter she did see and it had alcohol on it. She also testified that the alcohol which came out of the crushed cans was poured in fruit jars, which she also saw. She further testified that her husband left home with appellant that night to go in the truck with him to his home. This was Saturday night. She further testified that on the following day appellant was back at her house and had a conversation with her husband about said load of alcohol, what it was worth, what they expected to make out of it, and that her husband then paid appellant in a check for his part of said alcohol. She said she saw the check written, and identified it on this trial, and also testified that the indorsement on the back of said cheek was in appellant’s handwriting. As far as we can see, each and all of these facts were material as links in the chain of circumstantial evidence leading to the conclusion that appellant was guilty of the transportation of intoxicating liquor.

There was a second count in the indictment charging possession of such liquor for purposes of sale, and as pertinent thereto it was permissible for the state to show by Mrs. L. that she had seen appellant and her husband mixing alcohol and making gin and whisky, but when the testimony was concluded the court withdrew from the jury’s consideration said second count, and also told them not to consider for any purpose the testimony of Mrs. D. as to such mixing, etc. This was clearly proper practice.

"We see nothing in the record supporting appellant’s proposition that the testimony as to the mixing of alcohol, etc., to -make gin and whisky was inadmissible for that it related to a separate and extraneous offense. When this testimony was given, there was pending a prosecution upon count No. 2 for the offense of possession, which involved the element of such possession for the purpose of sale, to which the evidence objected to was pertinent. When this count was withdrawn, this testimony was stricken from the jury’s consideration, which procedure is uniformly upheld.

The testimony of Mrs. L. as to the acts and conversations between appellant and her husband on iSaturday June 15th, and those testified to by her as taking place on Sunday June 16th, plainly related to the same transaction revolving around the single load of ajcohol, its transportation, ownership, etc., and all of same was admissible, as above stated, upon the ground that all said facts were pertinent as making out the state’s case of transportation.

We have examined the authorities which are numerously cited in appellant’s motion, but are forced to conclude that same have no application to the facts before us.

Believing the case was properly decided, the motion for rehearing will be overruled.


source: Caselaw Access Project

author: MORROW, Presiding Judge. HAWKINS, Judge.

license: Public Domain

text:
    BOYD v. STATE.
    No. 15713.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Rehearing Denied April 26, 1933.

      J. E. Cunningham, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for two years.

The following is the substance of the state’s testimony: Two officers (apparently highway patrolmen) were looking for a car on the road which they had learned was running with a license number of plate which did not belong on the car. The description which the officers had of the car with the changed license number coincided with that which was driven by the appellant. When they first noticed him on the road, the speed of his car was about 30 or 35 miles an hour. As they approached him, he increased the speed of his car and continued to do so until it was running at about 75 miles an hour. After chasing the car for about 4 miles, the appellant and his companion abandoned it. After its abandonment, the officers went to the car and found sitting between the seats a number of containers in which there was a total of about ten gallons of alcohol. The appellant was recognized by the officers. Other circumstances were introduced which served to identify the appellant as the person who was the possessor of the car in which the alcohol was found.

In their assumption that the car driven by the appellant was the one -on which the license plate had been changed, the officers were mistaken. However, the appellant’s anxiety to avoid them and his efforts to that end, the abandonment of the car, and his flight thereafter, led the officers to believe that intoxicating liquor was being transported in the car.

The evidence upon which the trial court based the reception of the testimony of the officers showing the result of the search was investigated in the absence of the jury. We are not prepared to hold that the court committed error in concluding that the facts were such as to warrant him in overruling the appellant’s objection to the introduction of proof that the automobile contained alcohol. As stated in some of the books, the facts showing probable cause for the search of an automobile without a search warrant are as varied almost as the transactions occur. The facts in the present case are quite similar to those in Bullock v. State, 112 Tex. Cr. R. 313, 16 S.W.(2d) 1077, which were held sufficient to justify the reception of the evidence showing the result of the search of an automobile without a warrant.

Upon the record before us, we are constrained to order an affirmance of the judgment. It is so ordered.

On Motion for Rehearing.

HAWKINS, Judge.

We have again reviewed the record in the light of the motion for rehearing and oral argument thereon. There is no doubt in our mind that the facts furnished probable cause for the search of the car.

The other point stressed is that appellant’s identity as the driver of the car is in doubt under the facts. Such insistence is based on the claim that Helms (the owner of the car) and appellant were similar in appearance, and that the state’s witness was mistaken in identifying appellant as the driver. The state’s witness, an officer, testified on direct examination, “I know Tom Boyd, the defendant in this case * * * I saw him driving a car * * * I had occasion to follow him * * * He was driving an Oakland coach.” On cross-examination, “I am not mistaken in this man. I am positive I am not mistaken. I could not be mistaken, because I have arrested him before.”

After appellant had introduced evidence on the issue of alibi, and evidence to the effect that appellant and Helms resembled each other, he called as a witness Johnny Crow who knew both of the parties. On direct examination the witness said Helms would weigh about 170 pounds, “was sandy-haired or red-headed.” On cross-examination he testified, “I have described the man I sold that car to (referring to Helms). I see that man there (appellant). I think I could tell them apart. I don’t think I would have any trouble telling them apart. I think I could tell them apart across this court room. * * * I would have no trouble in distinguishing that man and this man here at any distance that I could see them.” On redirect examination he said, “Helms was not as red-headed as this man, but he was light-headed, more lightheaded than this man. The main difference is in the height; he is not as tall, and is heavier.”

In view of the evidence on controverted issues this court would not be warranted in disturbing the- verdict of the jury which settled the issues in favor of the state.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge. HAWKINS, Judge.

text:
    MILLS v. STATE.
    No. 15365.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1932.
    Rehearing Denied April 12, 1933.

      Bush & Parten, of Eranklin, and C. S. Farmer and Munroe & Holt, all of Waco, for appellant.
    T. L. Tyson, County Atty., of Franklin, Willard McDaughlin, Crim. Dist. Atty., and Frank M. Wilson, and Sam Dardnne, Asst. ■Crim. Dist. Attys., all of Waco, and Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is misapplication of public funds; the punishment, confinement in the penitentiary for four years.

The indictment was returned in McLennan county. Upon considering appellant’s application for a change of venue, the trial- court reached the conclusion that the case should be transferred to Robertson county. It was in the county last mentioned that the trial was had.

The conviction is under article 95, Penal •Code, which reads as follows: “If any officer of any county, city or town, or any person employed by such officer, shall fraudulently take, misapply, or convert to his own use any money, property or other tMng of value belonging to such county, city or town, that may have come into his custody or possession by virtue of his office or employment, or shall secret the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it, he shall be confined in the penitentiary not less than two nor more than ten years.”

In the indictment it was charged, in substance, that- appellant was tax collector of McLennan county, and that, by virtud of his office, there had come into his custody and possession the sum of $44,823.62 in money belonging to McLennan county, which amount he fraudulently took, misapplied, and converted to his own use.

The indictment was returned by the grand jury on the 21st day of March, 1931. The trial was had on the 14th day of January, 1932. Appellant’s term of office expired December 31, 1930. On retiring from office, appellant had failed to file his report for the month of December, 1930. In February, 1931, the commissioners’ court called upon him for his December report, and he appeared before the court on the 23d of February with the statement that he was preparing such report. Further he stated that his report would show that he owed the county approximately $44,-000 for taxes collected. He asked for time, promising toj bring in the report and money due the county on February 25th. On the date last mentioned, appellant appeared before the court with an incomplete report. The time for filing the report and paying over the money due McLennan county having passed, the court insisted that appellant make a settlement. At this time appellant stated to the county judge that he needed more time, and that he thought he could arrange a trade which would enable him to pay over the amount of money he was due the county. In the first part of March, 1932, appellant filed his report for the month of December, 1930, showing that he had collected taxes due Mc-Lennan county in the sum of $44,823.62. Other than the sum of $3,802.57, which appellant paid into the county treasury, no part of the amount shown in the report was ever accounted for by appellant.

In making proof that appellant had collected $44,823.62 in taxes for McLennan county, the state introduced in evidence appellant’s report for the month of December, 1930, showing that his tax collections amounted to $44,823.62. Also appellant’s statement to the commissioners’ court to the effect that his report showed that he owed the county approximately $44,000, and the declaration that he did not have the money but could get it if given a little time, were before the'jury. Again, the jury had before them proof that appellant declared to a newspaper man that his report would show that he owed the county $44,000, and that a check for that amount would accompany the report. Appellant proved by a state’s witness, on cross-examination, that under an agreed judgment the surety company making appellant’s bond had paid into the county treasury practically the entire amount of money alleged to have been embezzled. In the same connection it was shown that appellant was not a party to the suit resulting in the agreed judgment, but objected to being made a party. Appellant’s counsel elicited from the county treasurer, on cross-examination, the following: “I know from my own personal knowledge that some thousand dollars of this particular money he (appellant) was indicted for taking was in the bank at the time he was indicted. Some of that money was in the depository when he was arrested. I do not know the amount as I did not keep up with that part; it wasn’t my business to keep that part.”

Appellant did not testify in liis own behalf, bnt contented himself with proving by several witnesses that his general reputation for. honesty and fair dealing and for being peaceable and law abiding was good.

It is appellant’s contention that the proof is insufficient to show that the money alleged to have been embezzled came into his possession; his position being that his report of collections is an extrajudicial confession, without corroboration. If it should be conceded that appellant is correct in his contention that his report is an extrajudicial confession, the opinion is expressed that the facts and circumstances in evidence furnish sufficient corroboration. As heretofore shown, appellant’s counsel elicited from the county treasurer that, after appellant had been indicted, there was in the depository several thousand dollars of the money shown in the report to have been collected. We have also noted that appellant proved that the surety company making his bond had paid into the county treasury, under an agreed judgment, approximately the amount alleged to have been embezzled. Whether this proof would have been admissible against appellant if offered by the state it is not necessary to determine. Appellant himself placed it before the jury in an effort to show that the county had lost no money. As the matter stands, it affords a circumstance corroborating the statement in appellant’s report as to the amount of tax money he had collected.

The corpus delicti may be established by circumstantial evidence, and in its establishment the extrajudicial confession may be taken in connection with the other facts and circumstances in evidence. Extrajudicial confessions, standing alone, are not sufficient proof of the corpus delicti. It is necessary that there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce a conviction of the guilt of the accused beyond a reasonable doubt. It is not required that the suppletory evidence be conclusive in its character. A jury may be warranted in rendering a verdict of guilty where the circumstances related in a confession correspond in some points with those proven to exist. Kugadt v. State, 38 Tex. Cr. R. 6S1, 44 S. W. 989; Aven v. State, 95 Tex. Cr. R. 155, 253 S. W. 521; Howes v. State, 109 Tex. Cr. R 136, 3 S.W.(2d) 445.

The opinion is expressed that the report is not an extrajudicial confession. The> law required appellant to make it in his official capacity. Article 7261, Revised Civil Statutes 1925. Under the terms of the statute. the tax collector is required, at the end of each month, to make a report, under oath, to the commissioners’ court showing each and every item of ad valorem, poll, and occupation taxes collected by him. Article 133, Penal Code, provides a penalty for failure to make the report. A prosecution for perjury can be based on a false report, deliberately made. Appellant cites no case, and we know of none, sustaining his contention. The rule seems to be that a report of the character under consideration is admissible in the courts as prima facie proof of the facts it contains. From Wharton’s Criminal Evidence, vol. 2 (10th Ed.) p. 1099, the following is taken: “Documents evidencing official acts or proceedings are admissible in evidence when kept in the "line of official duty, to establish facts relevant in the trial of criminal charges. Thus, on the trial of a clerk for embezzling postoffice funds, his quarterly report, shown to be in his handwriting, is admissible to establish the amount of money chargeable to his department. * * * ”

Prom the same work, page 109S, the following is taken: “Where a statute requires the keeping of an official record for the public use, by an officer duly appointed for the purpose, and subject not merely to private suit but to official prosecution for any errors, such record, so far as concerns entries made in it in the course of business, is admissible in the courts of such state as prima facie proof of the facts it contains.”

See, also, 16 Corpus Juris, 739; People v. Flock, 100 Mich. 512, 59 N. W. 237; State of Minnesota v. Ring, 29 Minn. 78, 11 N. W. 233; Hockenberger v. State, 49 Neb. 706, 68 N. W. 1037.

The report appears to have been made in conformity with the statute. It was signed and sworn to by appellant as tax collector of McLennan county, and shows on its face that he collected the amount of money he is charged with having embezzled.

In his application for a change of venue, appellant alleged prejudice, and requested that the case be removed to some county adjoining McLennan county. As shown by bill of exception No. 1, the state controverted the application, and evidence was heard. It is recited in the bill that the evidence embraced in the bill of exception “as well as that evidence set out in the court’s qualification” was before the court. Tire court reached the conclusion that the venue should be changed, but not to an adjoining county. In the order of transfer, the court recites that it appeared that in all of the counties adjoining McLennan there existed so great a prejudice against appellant as to preclude a fair and impartial trial. Further, it is recited that, in view of the fact that prejudice preventing a fair trial existed in adjoining counties, the transfer was made to Robertson county, where no conditions of prejudice appeared to exist. In qualifying the bill of exception, the court refers to the fact that appellant introduced in evidence newspaper clippings showing that some of the daily papers in McLennan county had contained detailed reporta of tlie testimony given by tbe witnesses on a former trial of appellant for. misapplication of public funds. It is stated in tbe qualification that these newspapers, by way of comment and editorially, took a determined stand against public officials wbo misapplied public funds, urging that their punishment should be made certain. It is further recited in the qualification that the papers in question were circulated in all of the counties adjoining McLennan county. In concluding the qualification, the court said: “The court, after having heard the testimony as set forth in this bill of exception and after having heard the above and foregoing testimony with respect to the newspaper articles contained in the News-Tribune .and contained in the Times I-Ierald, each of which newspapers extended into the adjoining counties to McLennan County, to the extent indicated by the circulation manager, and which newspapers did not extend into the counties not adjacent to McLennan County save and except to the extent indicated by the testimony of the circulation manager, the court after having heard all of said evidence entered the following order:” (The order changing the venue follows).

In view of the qualification of the court, we are unable to reach the conclusion that there was any abuse of discretion in ordering a change of venue to a county not adjoining McLennan county. Article 565, C. C. P., provides: “Upon the grant of a change of venue, the cause shall be removed to some adjoining county, the court house of which is nearest to the court house of the county where the prosecution is pending, unless it be made to appear to the satisfaction of the court that such nearest county is subject to some objection sufficient to authorize a change of' venue in the first instance.” . Article 566, O. O. P., reads: “If it be shown in the application or otherwise that all the counties adjoining that in which the prosecution is pending are subject to some valid objection, the cause may be removed to such county as the court may think proper.” See Cotter v. State, 113 Tex. Cr. R. 535, 21 S.W.(2d) 503, 22 S.W.(2d) 1071; Sapp v. State, 87 Tex. Cr. R. 606, 223 S. W. 459.

Bill of exception No. 3 presents the following occurrence: The case was set for trial for Tuesday January 12, 1932. Appellant, through his counsel,'appeared in court about 9 o’clock in the morning of Monday January 11th, at which time counsel presented a motion to quash the jury panel. Appellant’s counsel summoned witnesses, and the court heard evidence; two of the jury commissioners and the district clerk, who had been subpoenaed by appellant’s counsel, testifying. At the time of the presentation of the motion to quash and of the hearing thereon, appellant was not in the courtroom. However, he arrived in Franklin, the county seat where the case was set for trial, about noon of January 11th, but did not come to the courthouse. Appellant had been under bond since' his indictment, and was under bond at the time the motion to quash was heard. After having heard the evidence, the court overruled the motion. On Tuesday January 12th, when the case was called for trial, the motion to quash was again presented to the court in the presence and hearing of appellant; counsel for appellant requesting the court to consider the evidence that had been heard on January 11th. The court, in the presence and hearing of appellant, overruled the motion. The matter of his absence during the hearing on January 11th was presented to the court for the first time in appellant’s motion for a new trial. In qualifying the bill of exception, the trial court states that he was of the opinion from the facts and circumstances reflected by the record that appellant had voluntarily and willfully absented himself from the hearing on January 11th. We deem the court’s qualification warranted, and express the opinion that, under the circumstances, appellant cannot be heard to complain. In French v. State, 100 Tex. Cr. R. 632, 272 S. W. 195, 196, it was shown that the appellant, who was under bond, absented himself from the courtroom for a short time while his counsel was arguing certain motions. The matter was called to the attention of the court by the appellant for the first time in his motion for a new trial. In reaching the conclusion that no question was presented for review, this court, speaking through Judge Lattimore, used language as follows: “Our statute, article 837, C. C. P., sets out the grounds upon which a new trial shall be granted. We find nothing therein nor in any decision by this court holding that one who is upon bond during his trial and who voluntarily absents himself from the courtroom while his attorney is arguing a motion, and who in no wise makes known the fact of his absence to the court during the trial, and who does not show that such absence was without the consent of his counsel or the court, and who waits until after the conclusion of the court and the rendition of a verdict against him, can then thereafter successfully seek in motion for new trial to take advantage of his own act.” See, also, Ex parte Cassas, 112 Tex. Cr. R. 100, 13 S.W.(2d) 869.

It might be plausibly contended that the hearing on January 11th was merely preliminary to the trial. It has been held in many decisions that it is not necessary that the accused be present in such proceedings as are merely preliminary to and not part of the trial. Littleton v. State, 91 Tex. Cr. R. 205, 239 S. W. 202, and authorities cited; Rothschild v. State, 7 Tex. App. 519. However, it is unnecessary to decide the question last mentioned.

Bills of exception Nos. 4 to 9, inclusive, relate to the action of the court in refusing to sustain appellant’s challenge to the array of jurors. In Robertson county jurors are selected by jury commissioners under the general law; the “Jury Wheel Law” not being applicable. The jury for the week during which appellant’s trial was set, and from which several of the jurors were selected, was selected by jury commissioners. Appellant alleged in his challenge to the array that the jury commissioners had failed to comply with the provisions of the statute in selecting the jury, in that the names of the persons selected had not been drawn. The testimony heard by the court supported the averment that names had not been drawn, the jury commissioners testifying that each of the commissioners selected twelve names and that general discussion was had as to the advisability of placing such names on the jury list. Further, the commissioners testified that it was not their purpose to select jurors who would convict appellant. They said they referred to the fact that they should select intelligent men, as the case against appellant would likely be complicated. One of the commissioners said: “We did not discuss the case as we selected each individual citizen. That was mentioned once when we first started, by Mr. Bartlett. We did not discuss that on each man. Take juror No. 1 that we selected for the week: I knew at the time I put his name on the list, at the time I selected him, that he would be a juror for the second week and the same is true of each of the twelve men I selected. But that was only mentioned may be one time before we started on the second week.”

It was not shown that any prejudiced jurors- were selected. The testimony of the jury commissioners failed to show that they acted corruptly, or that they performed their duties with any intention of selecting prejudiced men who would convict appellant. On the contrary, their testimony negatives such conclusion. Article 608, C. C. P., relating to the challenge to the array in capital cases, reads as follows: “Either party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction or an acquittal. All such challenges must be made in writing setting forth distinctly the grounds of such challenge. When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained. This article does not apply when the jurors summoned have been selected by jury commissioners.”

Article 641, C. C. P., relating to challenge to the array in cases other than capital, provides: “The array of jurors may be challenged by either party for the causes and in the manner provided in capital cases.”

Under the terms of the statute, a challenge to the array cannot be made to a jury selected by jury commissioners. In Walker v. State, 08 Tex. Cr. R. 663, 267 S. W. 988, 989, in construing the statutes in question, this court, speaking through Judge Hawkins, said: “Article 681, C. C. P., explicitly denies the right to challenge the array when the jurors summoned have been selected by jury commissioners.” See, also, Columbo v. State, 65 Tex. Cr. R. 608, 145 S. W. 910; Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771.

As shown in bill of exception No. 19, at the time appellant’s report for the month of December was admitted in evidence, an employee of the state comptroller’s department testified that such report indicated that $44,970.17 had been collected for the ad va-lorem fund and $44,923.90 had been collected for the road bond fund for December, 1930. This report went to the jury without objection. However, appellant objected to the testimony of the witness on the ground that it was hearsay and a conclusion. If the witness should not have been permitted to give the testimony, and this is not conceded, we are unable to perceive how, under the facts reflected by the record, appellant could have been harmed. It was uncontroverted that appellant had collected the amount of money shown in his report. He had stated to the county judge and commissioners’ court that such sums had been collected. The report itself, under the authorities we have heretofore pointed out, was prima facie evidence of the facts stated therein.

Appellant brings forward several bills of exception in which complaint is made of the argument of the county attorney. We deem it necessary to discuss but one of these bills. Bill of exception No. 38 shows that the county attorney held in his hand, while closing the argument, appellant’s report for the month of December, 1930, which had been introduced in evidence. Exhibiting this report to the jury, the county attorney said: “Arthur Mills swore that. He got it. He didn’t swear that one of those faithful men or loyal women who work for him loyally, efficiently, faithfully and uncomplainingly got a dime of that money. He swore right here (counsel here designating the sworn summary of taxes collected, shown in the statement of facts as exhibit 2, and introduced in evidence during the trial) that he got it—he, Arthur L. Mills, and this record will reflect the money that came into my hands as ‘Tax Collector.’ ”

Appellant objected to the argument on the ground that it constituted a reference to his failure to testify. The court overruled the objection. We think the trial court was warranted in reaching the conclusion that counsel for the state was not referring to ttie fact that appellant had not taken the witness stand and testified, hut that he was confining his remarks to the sworn statement which was properly in evidence. In other words, the trial court was warranted in concluding that counsel was calling the jury’s attention to the fact that in his report appellant had sworn that he received the money, and that in such report he had not stated that any of his employees had collected any of the money shown therein.

We have discussed all questions submitted in oral argument. The record is voluminous and we have not Undertaken to discuss all of the hills of exception brought forward. Nevertheless each bill has been carefully examined. We are constrained to hold that no reversible error appears.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, Judge.

The statement of facts is comparatively short, but the transcript consists of 496 pages, containing fifty-one bills of exception, with correspondingly voluminous briefs. The motion for rehearing again stresses many of the points discussed in our original opinion, with the insistence that we arrived at the wrong conclusion. We think a further discussion of questions decided originally is not called for, save the one to which we later advert We have again reviewed them, and remain of the opinion expressed originally. Our attention is also called to several bills of exception which were not discussed in the original opinion. They were not overlooked then. They have been again examined, and it is thought none of them presents error upon which a reversal could be properly pred- • icated. We have used our best effort not to overlook any matter presented in such an extensive record.

Appellant insists that we reached a wrong decision regarding his complaint at the trial court’s action in not sustaining the criticism of the manner in which the jury panel for the week was selected; this same point, in slightly different form, being presented in bills of exception 3 to 9, inclusive.

Articles 2110 and 2111, R. C. S. (1925), provide substantially that the jury commissioners shall select from the citizens of the county the number of jurors directed by the court, they to be of good moral character, of sound judgment, and well informed; that the commissioners shall write the names of the persons so selected* on separate pieces of paper. as near the same suae and appearance as may he, and fold the same so that the names cmi-not he seen, and deposit the names in a hox, which shall he well shaken and the names mixed, after which the commissioners shall draw therefrom the names which shall he recorded as drawn to make up the jury panels of as mmiy jurors for each week as the court has designated. One ground of challenge to the array of the jury for the week was that in selecting it the provisions of the Statute indicated by italics had not been complied with. The question might be dismissed with the statement that a challenge to the array is not permitted upon the ground urged. See articles 608 and 641, C. C. P.; Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771; Walker v. State, 98 Tex. Cr. R. 663, 267 S. W. 988: Bryant v. State, 97 Tex. Cr. R. 11, 260 S. W. 598; Columbo v. State, 65 Tex. Cr. R. 608, 145 S. W. 910; Powell v. State, 99 Tex. Cr. R. 276, 269 S. W. 443. We regard the provision of the statute now under consideration as directory rather than mandatory. See Compere v. State, 107 Tex. Cr. R. 95, 295 S. W. 614; Coker v. State, 7 Tex. App. 83; Buchanan v. State, 107 Tex. Cr. R. 559, 298 S, W. 569. Some three or four jurors drawn by the jury commissioners sat on the jury which tried appellant. Some of the bills of exception relate to each of said jurors ; it evidently being an effort on the part of appellant to-present challenges for cause to them individually. No ground for such challenge is urged save the same matters contained in the motion to suppress the entire panel for the week. Whatever form in which the challenge came, it was necessarily an attack on the jury for the week as a whole. But whether it be regarded as á challenge to the array or to the jurors individually, we think the action of the court in overruling it presents no error.

We do not intend by what has been said above to intimate that the court would have no power to protect an accused where the jury commissioners may have acted corruptly in a particular case in selecting a list of jurors to secure a conviction of accused. That the court does have such power is clearly shown in Cavitt v. State, 15 Tex. App. 190, and Whittle v. State, 43 Tex. Cr. R. 468, 66 S. W. 771. The evidence heard by the court in the present case fails to show any corrupt or improper motive or acts on the part of the jury commissioners. It does show that the commissioners knew appellant’s case was to be tried at the term of court for which the jurors were selected, and that one of the commissioners said the ease would perhaps be complicated. If that knowledge operated on the mind of the commissioners at all, it seems clear it was only to the end that they used unusual care to select jurors such as the statute enjoins, those of good moral character, of sound judgment, and well informed. Articles 2110 and 2111, R. C. S. (1925). The-evidence fails to show that any man was se-leeted as a juror who was known or thought to be biased or prejudiced against accused.

The case was set for trial for Tuesday January 12th. Attorneys for appellant desired to present a challenge to the array of the jury for the week. It is apparent from the record that they thought it would be necessary, or at least proper, to present the motion before the jury was sworn in for the week. They appeared in court on Monday morning and advised the judge that they desired to present the motion and introduce evidence thereon, which the judge permitted them to do. The whole proceeding was at the instance of attorneys representing appellant. The state called no witnesses. After hearing the evidence, the motion was overruled. Appellant was not present, although he had sworn to the motion before a notary public in McLennan county on the 9th day of January. No question of appellant’s absence was raised at the time the court ruled on the motion on Monday. That point was not presented until the motion for new trial was filed. It was urged on original submission, and is again insisted upon in. the motion for rehearing, that this judgment must be reversed because in appellant’s absence the court heard evidence on the challenge to the array. No case has been called to our attention where the question arose as it did here. We cannot forbear to say the situation is unique in that appellant now finds himself in the attitude of saying that the court had no right in appellant’s absence to hear the evidence which his own counsel tendered at a time sought by them, but does insist that this identical evidence should be considered in support of the challenge to the array. It has been many times held that the selection of the jury is an important part of the trial, and that appellant should be present, but the cases so holding have reference to securing the jury which is to actually try the case, and not to passing on matters pertaining to the venire or panel of jurors for the week from which the trial jury is obtained. In our original opinion it was intimated that the hearing on January 11th was a matter preliminary to the trial. We are still strongly inclined to that view. It has been held that many things may be done preliminary to a trial in the absence of accused, such as entering an order for change of venue, transferring a case from one court to another in the same county, entering an order for or drawing a special venire, setting a case down for trial, or continuing a term of court which is about to expire. See Rothschild v. State, 7 Tex. App. 519; Parr v. State, 108 Tex. Cr. R. 551, 1 S.W.(2d) 892; Phipps v. State, 100 Tex. Cr. R. 607, 272 S. W. 209; Ehrlich v. State, 103 Tex. Cr. R. 454, 281 S. W. 548; Littleton v. State, 91 Tex. Cr. R. 205, 239 S. W. 202; Cordova v. State, 6 Tex. App. 207; Oliver v. State, 70 Tex. Cr. R. 140, 159 S. W. 235. It is not necessary, however, to rest the disposition of the matter on the foregoing suggestion.

On Tuesday January 12th, when the case was called for trial, and when appellant was present, the motion to challenge the array of jurors was renewed, and attorneys for appellant asked the court to consider in support of the motion the evidence which had been offered by them on Monday, which the court said he would do, and then in the presence and hearing of appellant again overruled the motion. Appellant makes the point that the request of his attorneys then made for the court to consider the testimony which had been offered in appellant’s absence, and the court’s statement that he would do so, does not suffice, but that the evidence should in fact have been reintroduced. He cites cases supporting his position. Most if not all of them are cases where some evidence was introduced by the state before the jury in the absence of accused. We regard Powers v. State, 23 Tex. App. 45, 5 S. W. 153, 156, and the reasoning of the court therein, as having closer application to the present facts. In that case Adams, a prospective juror, was examined in the absence of accused, and was peremptorily challenged by the state, and the court discharged him. It was then discovered that accused had been absent. The court made a futile effort to get Adams back in court so that he might be challenged in accused’s presence, but, failing -in this, the court ordered the selection of the jury to proceed. Powers insisted that the incident which occurred in his absence was fatal to the conviction. In writing on the point, Judge White said: “A selection of the jury is beyond doubt one of the most important features of a trial for a capital felony, and we can well imagine how important it is ordinarily for a defendant to be present during such proceedings. But in any case, when a rule is invoked for non-observance, there should at least appear some slight reason why it should have been observed. It is a maxim that, as a general thing, where the reason of a rule fails, the rule ceases to be obligatory or operative. Now, the talesman Adams had been peremptorily challenged by the state. What possible injury could inure to defendant because the talesman could not be found and brought back, so that the state might again challenge. him in defendant’s presence? We confess we cannot imagine. Under the' circumstances disclosed, if error was committed, it was manifestly harmless error, for which no just ground of complaint can lie.”

In Cartwright v. State, 97 Tex. Cr. R. 230, 259 S. W. 1085, 1086, we had occasion to quote with approval from the opinion in Powers’ Case, and, in making application of it to the facts in Cartwright’s case, said: “Where the record shows the absence of accused during any important step of the trial, or even raises the question of possible injury from something occurring in his absence during the trial, this court would not feel called upon to speculate upon the matter, but the record in the instant case presents no such state of affairs. It affirmatively shows that no injury could or did result to appellant, and the reasoning of Judge White in the Powers Case, supra, applies with equal force to the question now before us.”

We are of opinion the disposition of the questions raised may be rested upon the principle recognized in the cases last referred to.

Believing the case has been properly disposed of, the motion for rehearing is overruled.


text:
    JONES v. STATE.
    No. 15730.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Rehearing Denied April 26, 1933.
    E. A. Watson, of Crosbyton, for appellant.
    Dloyd W. Davidson, State’s Atty., of 'Austin, for the State.
   MORROW, Presiding Judge.

Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for one year.

The state’s testimony is in substance as follows: The sheriff and two other persons, while riding in an automobile upon the public highway after dark, met an automobile in which the appellant and several companions were riding. The appellant was driving the car. The officer saw the appellant throw something out of the car which the officer took to be a jar. The appellant’s car was pursued and forced into the ditch. Upon reaching the car there was found a jar, out of which whisky had been poured. The officer poured some whisky from the jar, smelled the odor of it, and also tasted it. He testified that it was whisky. Some of the parties who were in the sheriff’s car returned to the place where the object had been thrown from the car and recovered a half-gallon jar full of whisky.

The appellant did not testify but introduced evidence to the effect that the car in question belonged to a man by the name of Bilberry. He also introduced the witness Al-lisson who was one of the parties in the sheriff’s car at the' time of the incident. Al-lisson testified that he did not see anything thrown from the car. He also testified that upon searching the car a half-gallon fruit jar was found therein. After the car was stopped, he went back some little distance and found a half-gallon jar full of whisky.

Save the sufficiency of the evidence, no legal questions are presented by the record, and no irregularities have been discovered.

No error was committed in refusing to instruct a verdict of acquittal.

The law of circumstantial evidence was submitted to the jury.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

In our original opinion it was inadvertently stated that appellant was driving the car. In fact, Morrison was driving. Appellant was sitting to his right, or as some of the witnesses said, on the “outside.” The sheriff saw appellant throw out of the car some object which he took to be a fruit jar. About fifty yards farther on, ⅛⅜ car appellant was in was forced into the ditch. The upholstery on the car was wet with whisky, and it was dripping from the-running board. The sheriff handed one of the parties who was with him a flash-light and sent them back, telling them where to look for the object he had seen appellant throw out. At that point a jar of-whisky was found.' One of the parties with the sheriff testified that before the car was forced into the ditch he saw appellant with something in his hand holding it outside the car as though “he was trying to get the top off or trying to pour something out.”

There is no evidence in the record indicating appellant’s innocent connection with the whisky. The state’s evidence is sufficient upon which to predicate the conclusion of appellant’s guilty knowledge of its presence and participation in its transportation.

The motion for rehearing is overruled.


author: MORROW, Presiding Judge. LATTIMORE, Judge.

text:
    WRIGHT v. STATE.
    No. 15388.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Rehearing Denied April 26, 1933.
    J. Lee Cearley, of Cisco, and Prank Jud-kins, of Eastland, for appellant. ,
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is an attempt to pass a forged instrument; penalty assessed at confinement in the penitentiary for two years, as defined in article 996, P. C. 1925.

The appellant presented to Harry Johnson, a salesman in the store of Katz & Sullivan, in payment of some merchandise, a check for $72.40, purporting to have been drawn upon the United Gas Public Service Company, signed by R. R. Lott, district cashier, and payable to W. E. Davis. While' preparing the goods selected by the appellant, Johnson gave the check to Katz,' to whom the appellant represented that his name was Daws and presented a printed card with that name upon it. The transaction occurred after banking hours, but Katz found one of the bankers of the bank upon which the cheek was drawn and learned from him that Davis was without funds in the bank and that there was no account in the bank of that name. Katz then notified an officer, who came and arrested the appellant while he was still in the store.

The witness Lott testified that he did not sign the check and did not authorize its issuance; that he did not know the appellant and had never seen him until the time of the transaction in question.

Appellant testified that he received the check from one Evans and thought that it was genuine. The appellant’s position, as revealed by his testimony, is as follows: Appellant and Evans were friends and were preparing to return to their home in Cisco, Tex. They had been out of work and Evans was in debt to the appellant. They had an automobile which was parked on the street, and, ,wMle Evans went for the car, the appellant (at Evans’ request) took the check to the bank to have it cashed. Out of the money gotten on the cheek the appellant was to receive. the money which Evans .owed him. Being in need of clothes, the appellant sought to use’ the check at the store where he was arrested.

There are no bills of exception, and the sufficiency of the evidence to support the judgment of conviction is not open to serious question. “

There is a motion for new trial making some complaints of the rulings of the court, but the averments of the motion are not supported by bills of exception. Therefore, this court has no choice but to order an af-firmance of the judgment of conviction, which is accordingly done.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant files a vigorous motion for rehearing, insisting that we erred in affirming his case because of the fact that the judgment entered and the sentence pronounced in accordance therewith, neither followed the charge of the court nor the verdict rendered in the case. Appellant is correct. He was charged by an indictment containing three counts, two for forgery and one for attempting to pass a forged instrument. The court submitted only the one last mentioned, and the verdict of the jury was general, finding him guilty as charged. By some mistake the judgment entered adjudged appellant guilty of forgery, and he was sentenced for the period of years named in the verdict, for that offense. This error was overlooked when we rendered our original opinion.

However all matters of procedure otherwise appearing to be legal, and no error being found in the record other than this mistaken entry of judgment and sentence, this court, under .all of the precedents and authorities, should not reverse the case, for such reason, but should reform the judgment and sentence. Robison v. State, 68 Tex. Cr. R. 115, 150 S. W. 912; Holden v. State, 98 Tex. Cr. R. 592, 267 S. W. 275; Ragusin v. State, 105 Tex. Cr. R. 218, 288 S. W. 209; Malone v. State, 116 Tex. Cr. R. 381, 32 S.W.(2d) 832; McKinley v. State, 117 Tex. Cr. R. 243, 35 S.W.(2d) 148.

The judgment of affirmance appearing in our original opinion is withdrawn, the judgment and sentence appearing in the record and in the minutes of the trial court will be corrected, and appellant will be adjudged guilty of attempting to pass a forged instrument, and the sentence will be reformed to conform thereto. As reformed the judgment will be affirmed, and the motion for rehearing overruled.


text:
    TUCKER v. STATE.
    No. 15687.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Rehearing Denied April 26, 1933.
    Tom 0. Lindsay, of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The unlawful possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for one year.

Officers Johnson and Little possessed a warrant to search the appellant’s house. The following is the substance of Johnson’s testimony: Upon approaching the house, the witness and Little saw a boy run out on the gallery. Little caught the boy and took some whisky from him. The other boy, when pressed, threw a bottle against the cookstove and broke the bottle. The noise of breaking glass was heard in a room in the house. Johnson rushed into the room and saw the appellant with a lq.rge jug or jar from.which he was pouring whisky. As the officer entered the room, the appellant fell across the bed and pretended to be asleep. There was considerable whisky on the floor. The total amount of whisky destroyed while the officers were there was estimated to* be about two gallons.

■ According to Little, he followed Johnson into the appellant’s room and saw him lying across the bed. I-Ie also saw in the possession of the appellant’s wife a bottle with about three inches of whisky in it. She fled, and was pursued by Little. She broke the bottle on the stove. From one of the boys mentioned Little took a pint of whisky. The other boy had a gallon jug with whisky in it and broke the jug on the stove.

One of the boys was a son of the appellant, and gave testimony in substance as follows : He had found some whisky which had been hidden in the neighborhood and which he promised to divide with another boy. The whisky was about 300 yards from the appellant’s house. In dividing the whisky the boy put part of it in two one-gallon jugs. He testified that the total amount of whisky was about three pints. The other boy, Johnnie Pierce, gave testimony corroborating Robert Tucker, Jr., as to the quantity and disposition of the whisky and the finding of it. Both boys testified that at the time the officers raided, the house the appellant was asleep. It appears that the appellant had been plowing in the morning and that he returned to the house about 10 o’clock, which was apparently not long before the raid was made. According to the officers, at the time of the appellant’s arrest, he was lying across the bed, fully dressed and with his shoes on. No testimony was given by either the appellant or his wife.

The state’s attorney and the district attorney have both filed a brief in the ease, but we find none for the appellant. There are no legal questions involved, and, the facts being sufficient to support the verdict, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant, through his attorney, files a motion for rehearing, in which he refers to the fact that in our former opinion we stated that no brief was on file for the appellant. He correctly insists that a brief was on file, and wants ns to review the record in the light of his brief. This has been done, hut we are not led to change our minds as to the sufficiency of the testimony.

The motion ■ for rehearing will be overruled.


text:
    BARTLETT v. STATE.
    No. 15636.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Rehearing Denied April 26, 1933.
    Otis Rogers and Simpson & Brewster, all of Fort Worth, and Eugene Miller, of Weath-erford, for appellant.
    Lloyd W. Davidson, State’s Atty., of Ausi tin, for the State.
   MORROW, Presiding Judge.

Assault with intent to rape is the offense; penalty assessed at confinement in the penitentiary for two years.

A recital of the facts in detail is not deemed necessary or desirable; suffice it to say that the prosecutrix and other witnesses gave testimony which was not controverted and which, if true, make manifest that the appellant made an assault upon the prosecu-trix, the nature of which fully meets the measure of the law defining the offense of assault with intent to rape.

The appellant did not testify in his own behalf, nor did he introduce evidence controverting the state’s testimony to the effect that the assault was made. However, he introduced testimony challenging the reputation of the prosecutrix for virtue and chastity, but upon that subject the evidence is conflicting.

There are several counts in the indictment. The count in which it is charged that the appellant “did then and there unlawfully in and upon Mildred Moore, a woman, make an assault with the intent then and there by force and without her consent to ravish and have carnal knowledge of the said Mildred Moore,” is the one upon which the verdict is based.

A number of exceptions were addressed to the charge, but our examination of the charge leads us to conclude that the complaints of it are not tenable.

Bill No. 2 deals with the motion for new trial and presents the principal legal question involved.

By averment appellant attacks the verdict upon several grounds, claiming transgression of" the provisions embraced in article 753, O. O. P. 1925, relating to misconduct of the jury. The contention that there was other evidence received by the jury rests upon the claim that Juror Blackstock, during the deliberation of the jury, said: “I know something. * * * If it had not been for certain deputies this man would not have been here on trial.”

According to some of the jurors, Black-stock uttered the expression. quoted above, while others claimed that he went no further than to say that “he knew something,” whereupon he was admonished to refrain from relating it. However, the jurors were at two tables during tlieir deliberations, and some of them may have heard the remarks while others did not do so. The evidence is conflicting as to whether Blackstock made ■the remarks and, if made, whether before or after the verdict had been agreed upon.

Appellant also claims that in their deliberations the conduct of the jurors was violative of article 710, O. C. P., in which it is said: “ * * * but the failure of any defendant to so testify shall not be taken as a circumstance against him.”

The appellant’s contention is founded upon the fact shown in the hearing of the motion for new trial that some of the jurors alluded to his failure to testify in his own behalf. Upon that subject, it is manifest that the evidence on the motion for new trial went no further than to show that there were allusions to the fact that the appellant failed to testify in his own behalf, but the discussion of the matter did hot reach the point where it showed that the jury considered his silence as a circumstance against him. The remarks made by the jurors upon that subject, and the prompt admonition by the foreman and other members of the jury that the subject was forbidden by the charge of the court, bring the contention within the purview of many cases in which it has been held that the bare allusion to the failure of the defendant to testify was not violative of the statute. See Smith v. State, 52 Tes. Cr. R. 344, page 351, 106 S. W. 1161, 15 Ann. Cas. 357.

On the conflict of evidence touching the remarks of Blackstock, as to what he said, as to whether he said anything, and as to when it was said, the action of the trial court upon hearing evidence of each of the jurors who testified both on direct and cross-examination, in deciding that the remarks did not constitute a violation of the statute and were not harmful to the' accused, is binding upon this court on appeal in the absence of an abuse of discretion by the trial judge. The principle governing is ann.ounced in many cases, among them the following: Kelly v. State, 95 Tex. Cr. R. 138, 252 S. W. 1065; Scrivnor v. State (Tex. Cr. App.) 50 S.W.(2d) 329.

The evidence brought forward upon the motion for new trial is not deemed sufficient, either in its scope or its detail, to demonstrate that Blackstock was a disqualified juror. The inquiry before the trial court fails to disclose the voir dire examination of Blackstock or its nature, if such examination was made. The evidence also fails to show what knowledge the appellant had and what his relations with Blackstock may have been prior to the trial. In order to authorize a reversal of the judgment upon the ground that one of the jurors who tried the ease was disqualified by reason of bias or prejudice, it is essential that the record show that the party complaining on appeal was not chargeable with a lack of diligence in his efforts to acquaint himself with the juror’s status and disposition towards the accused and his knowledge of the facts of the case. In the case of Adams v. State, 92 Tex. Cr. R. 264, 243 S. W. 474, a number of authorities upon the subject are collated. See, also, Wells v. State, 111 Tex. Cr. R. 21, page 30, 10 S.W.(2d) 991.

Bill No. 3 calls in question the ruling of the court in receiving in evidence the testimony of the prosecutrix describing the details of the assault. The bill consists of a number of pages in question and answer form, sanctioned by the trial court. The facts developed, as shown in the bill, were res gestee. The claim that the questions are leading is not tenable. The bill presents no error.

Bill No. 4 reflects the complaint of the appellant of the refusal of the court to exclude persons summoned for jury service from the courtroom during the impanelment of the jury. In refusing to comply with the request the court was within his rights. No abuse of discretion is shown.

Finding no error, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant’s complaint in bill of exception No. 4 was, not that he was not permitted to ask each juror on his voir dire examination such qualifying questions as he desired, but that the trial court refused to send all the panel of jurors from the room and then call them in one by one for separate examination. In refusing this we see no abuse of the trial court’s discretion.

We think the disqualification of Juror Blackstock was fully discussed and correctly disposed of in our original opinion. We are further of the belief that the credibility of the witnesses and the weight of their testimony being peculiarly a question for decision by the jury, and they having given credence to the testimony of the state, we are without, authority to disturb the verdict; there being testimony before the jury supporting the same.

Not being able to agree with the contentions of appellant, which contentions are substantially set out above, the motion for rehearing will be overruled.


author: LATTIMORE, Judge.

text:
    WARD v. STATE.
    No. 15720.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Williford & Williford, of Fairfield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for possessing a still for the manufacture of intoxicating liquor; punishment, one year in the penitentiary.

We have examined the various complaints made by appellant, and are of opinion that none of them show error except the one hereinafter discussed.

Officers located a still, mash, etc., and stationed themselves to see if the parties operating same should appear. Appellant and others came to the place. Appellant was observed to take the tops off two barrels of mash, and, acting with another, to take the still off the furnace, and also to do something with a shovel near the furnace. One witness said appellant brought a sack of fruit jars to the place. Appellant took the stand and testified that he was on his way after a cow and calf that morning and fell in with Ritter who invited him to go by where the still was; that when he got there he simply stood around and looked at it; that he took two covers off two mash barrels at the request of the officers after they came up. He said he did not own' the still, or have any control over it, or any interest in the other equipment.

The charge was excepted to for its failure to instruct the law of circumstantial evidence. We think the exception well taken. Appellant was indicted for the possession of the still, barrels, mash, material, and equipment for the manufacture of intoxicating liquor. No one affirmed as a fact that appellant owned, controlled, or possessed the articles found by the officers. No statement of his to that effect was in testimony. The conclusion that they were in appellant’s possession was but an inference from his presence at the scene, and the things the officers testified they saw him do. In section 1873 of his Annotated P. C., Mr. Branch cites many authorities supporting the proposition that when the main fact to be proved is arrived at as an inference from various parts of the testimony, it is necessarily a case of circumstantial evidence. Hunt v. State, 7 Tex. App. 212: Harris v. State, 15 Tex. App. 638; Riley v. State, 20 Tex. App. 105, and Early v. State, 50 Tex. Cr. R. 344, 97 S. W. 82, are Cited by Mr. Branch. See, also, Hunter v. State, 120 Tex. Cr. R. 185, 47 S.W.(2d) 621.

For the error mentioned the judgment will be reversed and the cause remanded.


author: MORROW, Presiding Judge. CHRISTIAN, Judge.

text:
    BROWN v. STATE.
    No. 15693.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Rehearing Denied April 26, 1933.
    John L. Poulter, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Theft, a misdemeanor, is the offense; penalty assessed at confinement in the county jail for a period of twenty days.

The offense is sufficiently charged in the complaint and information. The trial was had before a jury. No statement of facts or bills of exception accompany the record.

There is a motion for new trial but in the absence of the statement of facts, the complaint of the rulings of the court cannot be appraised.

Finding no error presented for review, the judgment is affirmed.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

We are unable to agree with appellant’s contention that the complaint is defective. The essential ingredients of theft are sufficiently alleged.

The complaint begins: “Before the undersigned authority this day personally appeared this affiant, who, after being by me duly sworn,” etc. The complaint is signed “Oscar Hukill, Affiant.” It is sworn to before the proper officer, and attested by a sufficient jurat. The fact that the affiant’s name was not given in the body of the complaint did not render it defective. If the complaint is signed by the affiant and sworn to by him, his name need not appear in the body of the complaint. Branch’s Annotated Penal Code, § 479; Upton v. State, 33 Tex. Cr. R. 231, 26 S. W. 197; Utsler v. State, 81 Tex. Cr. R. 501, 195 S. W. 855.

The motion for rehearing is overruled.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeal's and approved by the court.


author: MORROW, Presiding Judge.

text:
    HALL v. STATE.
    No. 15770.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Hamilton, Fitzgerald & Grundy, of Memphis, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Driving an automobile while intoxicated is the offense; penalty assessed at confinement in the county jail for a period of thirty days and a fine of $50.

The record is before us without statement of facts and bills of exception.

Objection was urged to the court’s charge to the jury, paragraph 3 of which contains the following: “You are further instructed that if you find and believe from the evidence beyond a reasonable doubt, that on or about the 8th day of January, 1932, the defendant, Coy Hall, was intoxicated or was under the influence of intoxicatmg liquor in any degree, and while so intoxicated, if he was, he drove or operated a motor vehicle upon a public street, situated within the town of Memphis', an incorporated town situated in Hall County, Texas, then you will find the defendant guilty and assess his punishment at confinement in the penitentiary for any period of time not more than two years, or by confinement in jail for not more than ninety days, or by fine of not more than Five Hundred Dollars, or by both such fine and imprisonment in the County Jail, but if you do not so find and believe beyond a reasonable doubt, you will find the defendant not guilty.”

That part of the charge italicized is made the subject of objection. The use of the words “in some degree under the influence of intoxicating liquor” has been held inadequate to charge an offense.

In the present instance, the words mentioned are not in the indictment, but appear alone in the charge of the court in the connection quoted. Under such circumstances, id has been held that the words “in any degree” may be treated as surplusage. See Williams v. State, 100 Tex. Cr. R. 50, 271 S. W. 628.

In the instant case, the evidence is not before this court, and it must be assumed, in the absence of a showing in the record to the contrary, that the evidence adduced upon the trial supported the averment in the indictment, namely, that the appellant was under the influence of intoxicating liquor. See Nunn v. State, 114 Tex. Cr. R. 487, 26 S.W.(2d) 648; Herring v. State, 117 Tex. Cr. R. 211, 35 S.W.(2d) 737; Farmer v. State, 119 Tex. Cr. R. 212, 43 S.W.(2d) 588.

The judgment is affirmed.


text:
    BELOTE v. STATE.
    No. 15651.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    State’s Rehearing Denied April 26, 1933.
    Sam H. Townsend, of Lufkin, for appellant.
    W. E. Stone, Dist. Atty., of Jacksonville, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is burglary; penalty assessed at confinement in the penitentiary for a period of three years.

The trial took place on a plea of not guilty on June 7, 1932. The motion for new trial was overruled and notice of appeal entered on June 9, 1932. On the 6th of August, 1932; appellant filed an affidavit of the inability to pay the cost of the preparation of the statement of facts. In the record there appears above the signature of the trial judge, dated August 9, 1932, the following order:

“The State of Texas v. Robert Belote.
“In The District Court, Angelina County,
No. 4816.
“On this day, the 9th day of August, A. D., 1932, the affidavit of the Defendant, Robert Belote, being presented to me for the first time and complying with Art. 760 (6) Code Cr. Procedure for the procurement of Statement of Facts without payment of the'fees therefor, the Official Court Reporter of this court is ordered to make up and deliver to the defendant a transcript of the testimony in narrative form.
“S. W. Dean
“Judge 12th Judicial Dist. Presiding as Judge of the Dist. Court of Angelina County in the trial of the above cause.
“Endorsed on back as follows: No. 4816. The State of Texas v. Robert Belote, filed August 10th, 1932, Homer Garrison, Clerk, District Court, Angelina County, Texas.”

In the transcript there appears a document showing R. B. Blake as the contestant, and addressed to the presiding'judge of the court. The paper is too long to quote. I-Iow-' ever, 'the purport of it is to deny the existence of any law in force authorizing the court, under the circumstances, to make the order set out above, the contention being that in Senate Bill 110 (chapter 202), Acts of 39th Legislature, Regular Session, repealed article 760, § 6, C. C. P. 1925. We do not so understand the law. See Acts of 42nd Legislature, 1st Called Sessions, p. 75, chapter 34 (Vernon’s Ann. Civ. St. arts. 2237-2239; Vernon’s Ann. C. C. P. art. 760). We will add, however, that the appellant having made application for a statement of facts in due time, his right to it would not be destroyed by the fact that the court reporter was delayed in preparing the statement of facts on account of other work of an official nature. 'That is to say, the failure to procure the statement of facts within the ninety days allowed by law, not being due to lack of diligence on the part of the appellant or his attorney, would not necessarily deprive him of the statement of facts. See Fowler v. State, 118 Tex. Cr. R. 424, 39 S.W.(2d) 621, 41 S.W.(2d) 91; Bolt v. State, 116 Tex. Cr. R. 161, 34 S.W.(2d) 880. See, also, Vernon’s Ann. Tex. C. C. P. 1925, vol. 3, p. 132, art. 760, note 55.

The facts before the court are such as to require the decision that the appellant has been deprived of the statement of facts without fault on his part, and for that reason the judgment is reversed and the cause remanded.

On Motion for Rehearing.

HAWKINS, Judge.

The state in a motion for rehearing says this court failed to pass upon the issue of diligence of appellant in pursuing his remedy to secure a statement of facts and refers us to Wood v. State, 67 Tex. Cr. R. 609, 150 S. W. 194, in which it was said that although the trial judge may have made an order directing the court reporter to furnish an indigent defendant with a statement of facts, this court would not hold diligence sufficient unless the order was followed with mandamus proceeding against the reporter to compel compliance with the order. A similar intimation is found in Peddy v. State, 63 Tex. Cr. R. 483, 140 S. W. 229. We note that in neither of the cases mentioned had the trial court entered an order directing the court reporter to furnish the statement of facts. Under the circumstances we would not regard the suggestions relating to mandamus proceeding as binding 'even under the statute then in force relative to statement of facts, and would not be inclined to follow it. Under the statute now controlling (article 760, subd. 6, C. C. P.), we think our holding in Ex parte Fread, 83 Tex. Cr. R. 465, 204 S. W. 113, Ballinger v. State, 110 Tex. Cr. R. 148, 8 S.W.(2d) 159, Knox v. State, 113 Tex. Cr. R. 373, 22 S.W.(2d) 932, Banks v. State, 114 Tex. Cr. R. 219, 21 S.W.(2d) 517, is correct. The case of Fuller v. State, 110 Tex. Cr. R. 631, 10 S.W.(2d) 556, is called to our attention in the motion. Nothing in that case ife contrary to what was said in our original opinion. In Fuller’s Case the affidavit did not comply with the statute in that it omitted to state that accused could not give security to pay for the statement of facts. The record in that case also failed to show that the trial court ever entered an order on the affidavit.

The motion for rehearing is overruled.


author: CALHOUN, Judge.

text:
    HAMMERS v. STATE.
    No. 15698.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Sanders & McLeroy, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, transporting intoxicating liquor ; the punishment, one year in the penitentiary.

The evidence in brief showed that the appellant and others on or about December 24, 1931, were pitching washers, commonly called “pitching dollars,” in the town of Timpson near the rear of the post office, and there was a large crowd watching the game. A constable by the name of Elmer Nichols had his attention attracted, and he went over to where the appellant and others were engaged in pitching dollars, and he noticed that the appellant was drunk. When he first saw the appellant, the appellant’s back was turned, and as the appellant bent over to get the washers the constable saw a pint bottle in appellant’s pocket. The bottle appeared to have some liquor in it. He then went up to the appellant and told him he wanted to see him for a few minutes, and they went back into the end of a grocery store where he got from appellant a bottle of whisky. The officer testified that the bottle got out of the appellant’s pocket some way in a tussle, and he told one Bert Childs to hold it until he got loose. It further appeared that some one other than the appellant jerked the bottle out of the said Childs’ hand and broke it on the floor. The officer further testified that it was whisky and a full pint.

A witness by the name of Bert Childs also testified that he saw the appellant pitching washers and saw him move about where they were pitching, and he also saw a flask on him, which was later broken and whose contents smelled like whisky.

Appellant did not testify, but introduced two witnesses, one of whom testified that the first time he saw the whisky it was in the hands of the witness Bert Childs, and he could not detect whether or not whisky was in the bottle; that quite a crowd went into the store where the difficulty occurred. Another witness for the appellant testified that he was present at the time they were pitching washers, and he had not seen any whisky on the appellant; that the first time he saw anything he saw a broken bottle thrown out of the building, and he could not tell what was in the bottle; that he picked up part of the bottle, and did not see any whisky on it and did not smell any; that the contents of the bottle did not smell like whisky to him. Both of appellant’s witnesses testified that the officer struck the appellant over the head several times with a pistol.

There are no bills of exception in the record nor any exceptions to the court’s charge. The court charged the jury on circumstantial evidence.

The appellant strenuously insists that the evidence is not sufficient to support a conviction for transportation of intoxicating liquor. It has been held' by this court that the distance which the intoxicating liquor was moved will not be regarded as the sole test. Tullos v. State, 99 Tex. Cr. R. 122, 268 S. W. 174 ; Lamb v. State, 95 Tex. Cr. R. 457, 255 S. W. 424; Finley v. State, 96 Tex. Cr. R. 542, 258 S. W. 1062. But, in order to convict under a charge of transporting intoxicating liquor, it must be shown that there was a transportation of said liquor within the contemplation of our statute (Rev. St. 1925, art. 5075 et seq.). We quote from Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425, opinion by Presiding Judge Morrow: “Under Pen. Code 1911, art. 10 [now article 8], the word ‘transport,’ as used in the statute prohibiting the transportation of liquor, must be given the meaning understood in the common language; that is, the carrying or conveying from one place, locality, or country, to another.” Again in West v. State, 93 Tex. Cr. R. 370, 248 S. W. 371, in an opinion by the same judge, it is said: “The words ‘transport’ and ‘transporting,’ in the statute as to unlawful transportation of intoxicating liquor, embrace movement of the liquor by accused on his person or in some vehicle under his control as an essential element of the offense.”

While whisky was found upon the person of the appellant, there is no evidence that he did not first come into possession of it at the place where he and .others were engaged in pitching washers. There is no testimony that the appellant ever went from said place with the whisky in his pocket, except when called away by the officer. It is not shown when the appellant came to the place where he and others were or that he was under the influence of liquor at the time he came there. Taking the evidence in its most favorable light for the state, it is shown that appellant only walked around in the immediate vicinity of the place where he and others were pitching washers. No witness explained what distance the appellant walked in pitching washers, and as to whether he walked at all was a controverted issue.

Taking the evidence as a whole, we are of the opinion that the evidence does not meet the measure of circumstantial evidence which the law requires. It is not inconsistent with every hypothesis save his guilt. The sufficiency of the evidence to overcome the presumption of innocence and establish his guilt beyond a reasonable doubt is in such doubt that this court would not be warranted in affirming the judgment.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    HAYES v. STATE.
    No. 15811.
    Court of Criminal Appeals of Texas.
    April 12, 1933.

      W. B. Baker and Tom Sealy, both of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, selling intoxicating liguor; the punishment, one year in the penitentiary.

H. R. Renfro, a witness for the state, testified that he lived in Coleman and he knew the appellant, Marvin Hayes, and he also knew one Sam Munro. On the 16th day of April, Munro came into his shop about 4 o’clock in the afternoon, and while he was cutting his hair he observed that the said Munro had been drinking. While he was cutting Munro’s hair, and before he had finished, he saw the appellant pass through the lobby of the hotel in which his barber shop was located, and Munro called to the appellant, and went just outside the shop, about seven or eight feet from where the witness was, and he saw the appellant hand Munro a pint bottle. Munro then came back, into his shop and cashed a $2 check and walked back and handed the appellant $1 of it. Munro then came back, and, while the witness was finishing cutting his hair, he saw something in his pocket, and Munro asked him if he wanted a drink. I-Ie then uncorked the bottle and examined it, and there was whisky in it. The witness further testified that Munro left his coat in the shop, and there was about an inch of whisky in the bottle, which the witness poured out. He further testified that Munro did not offer him a drink when he first came into the shop and he did not have a bottle at that time and did not have a bottle of liguor until after he had talked to the appellant. 1-Ie stated further that he knew it was whisky in the pint bottle that Munro got from the appellant because he tasted the whisky and he knew whisky when he tasted it.

Sam Munro, the person to whom the appellant was alleged to have sold the liguor, was introduced as a witness by the appellant. 1-Ie testified that he did not buy any whisky from the appellant, but that he purchased the whisky from two men in a car who picked him up on the road to Coleman, and that was the whisky he had when he went to the barber shop.

The appellant testified in his own behalf that he had seen the witness Sam Munro in the barber shop on the 16th day of April; that he had gone in there to get a shoe shine, and the said Munro was in a barber chair, and he denied that he gave him any package or that he had any dealings with him at all; that on the 16th day of April, the time he was alleged to have sold whisky to Munro, he did not have any whisky in his possession.

It appears from bill of exception No. 1 that, after the state’s witness, H. R. Renfro, had testified as to what he had seen occur between the appellant and Sam Munro, the district attorney asked said Renfro if he had testified before the grand jury, to which the appellant excepted on the ground that it was trying to impeach his witness. The exception was overruled, the district attorney stating that he had been surprised by the testimony of the witness as to what actually occurred at the time. The district attorney then asked the witness Renfro if he had not talked to him about his testimony that morning, to which the witness answered, “Yes,” and the district attorney further asked the witness if he had not told him what his testimony would be and had never told him that it would be different at any time. 1-Ie then asked him if his statement had not been reduced to writing and signed by him while he was in the grand jury room. The district attorney then asked him the following question, “I will ask you if you did not say T had observed that Mr. Munro was drinking some while he was in my chair and after Mr. Munro got out of my chair I asked'Mr-. Hayes not to sell Mr. Munro any more liquor as he would get into jail,” to all of which the appellant objected. The bill further shows that the witness stated that there was an error in the statement and he did not have such a talk. So far as the bill shows, the matter was not pursued any further, but nevertheless the appellant objected to all of the matters pertaining to this statement because it was prejudicial and improper to go into what took place in the grand jury room and was hearsay acts and declarations and not a proper basis to authorize such investigation. No reversible error is shown by this bill of exception. See White v. State, 10 Tex. App. 397; Bennett v. State, 24 Tex. App. 73, 5 S. W. 527, 5 Am. St. Rep. 875; Blake v. State, 38 Tex. Cr. R. 377, 43 S. W. 107.

Bill of exception No. 5 shows that on appellant’s cross-examination of the state’s witness H. R. Renfro he proved by said witness that he had been convicted of unlawfully having intercourse with a woman under the age of 18 years and given a suspended sentence. The bill further shows that over the appellant’s objection the state was then permitted on redirect examination of said witness to ask the said witness if the act of intercourse he had had with the girl was not with her consent, to which the witness answered that it was with her consent. Appellant objected to said testimony because it was another and different transaction not under investigation and was going into details of another and different trial, which objections were by the court overruled. It is the uniform rule in this state that a witness has a right to explain any fact brought out against him by the other party which tends to create distrust of the truthfulness or integrity of the witness. Kunde v. State, 22 Tex. App. 98, 3 S. W. 325; Bruce v. State, 31 Tex. Cr. R. 594, 21 S. W. 681; Miller v. State, 106 Tex. Cr. R. 636, 294 S. W. 582; Davis v. State, 118 Tex. Cr. R. 410, 40 S.W.(2d) 809:

Bill of exception No. 6 shows that the state was permitted, over the objection of the appellant, to prove by the witness Rejifro that 2 or 3 days after he had gone before the grand jury the appellant and his brother had assaulted him after he had told the appellant that he had been subpoenaed before the grand jury and required to tell what he knew about the case, to which testimony the appellant objected on the ground that it was immaterial and irrelevant and going into details, and involved hearsay and a different transaction from that under investigation. We think that it was permissible to show that the appellant had approached the state’s witness and, after he had been told that the witness had been before the grand jury, that he assaulted him. See Brown v. State, 72 Tex. Cr. R. 33, 160 S. W. 374.

By bill of exception No. 8 it is shown that the appellant objected to the following remarks of the district attorney made in his argument to the jury: “It is my deduction from the evidence that the defendant Hayes was going about the hotel selling whiskey to different people.”

By bill of exception No. 9 appellant complains of the following argument of the district attorney: “To give your approval to action of this defendant not only in selling the liquor but in his attempt to intimidate the witness would be lending encouragement to a situation which would result in anarchy and lawlessness. Perhaps when A1 Capone started out in his defiance of the law his defiance was small like that of the defendant but it had grown until the great city of Chicago was now under a reign of terror.”

To all of said argument the appellant objected and asked the court by written instruction to instruct the jury to disregard, which the court refused to do. Without holding said argument erroneous, neither of said bills disclose the connection in which the remarks were used, and it is not every improper argument that will require reversal of a case for failure of counsel to confine themselves to the record. It must be made to appear from the record that it was of such character that injury would result to defendant by reason thereof. This the bills fail to show, and it does not appear from the bills* that the remarks were of a material character and such as under the circumstances were calculated to injuriously affect the rights of the appellant. Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 52, 58; Himmelfarb v. State, 76 Tex. Cr. R. 173, 174 S. W. 586; Pierson v. State, 18 Tex. App. 524.

The- appellant excepted to the court’s charge because the court failed to charge on circumstantial evidence. The statement of facts shows that the witness H. R. Renfro, after giving his original testimony, -was recalled as a witness for the state, and,, on cross-examination of said witness by the appellant, he testified as follows: “I* testified this morning that I saw the defendant sell to Mr. Sam Munro first a bulk and I finally said it was a pint of whiskey. It was a pint of whiskey. I will say that it was a pint of whiskey. I was standing by my chair looking them right in the face when I saw that take place. I was standing beside my chair. This took place some 7, 8, or 9 feet from me. It was 5 or 6 feet from where I was standing to this partition. They were standing just outside of the partition. You will ask me if I did not state this morning first that it was bulk that I saw Hayes hand Munro, and if then I did not state that it was a pint. I said it was a kind of bulk or a pint. As to what I meant by bulk, well, it was not a bale of cotton. It was a pint bottle of whiskey if you want to know about it. At the time Sam Munro bought the whiskey from the defendant, he did not pay him but he came back in there and I cashed a check. The defendant walked into the barber shop and the money was paid there about 3 feet in front of me.”

We think the court properly refused to charge on circumstantial evidence. The main fact, the sale of the liquor by appellant, was proven by direct evidence.

Appellant also excepted to the court’s charge because the court nowhere in said charge defines what in law takes to constitute a sale, and that said issue was raised by the testimony in this case. We find in the court’s charge a definition of the word “sale,” which loads us to the conclusion that, when the appellant had excepted to the court’s main charge for failure to define what is meant by sale, the court corrected his main charge and gave a definition of same. There is no exception to the definition given by the court.

There are other bills of exception appearing in the record which we have examined, •and do not believe that they constitute reversible error.

No reversible error appearing in the record, the judgment is affirmed.

Affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.