author: LATTIMORE, Judge.

text:
    BRICE v. STATE.
    No. 15616.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Tatum & Strong, of Dalhart, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

The facts show that officers, armed with a search warrant, went to appellant’s house; that he saw them coming and ran into the house, fastening the door behind him; that the officers pulled open the door and went in and found appellant breaking fruit jars in a sink; that the officers secured a quantity of the liquor which came out of the fruit jars, and testified that it was whis-ky; that judging from the number of fruit jars which were broken and whose tops and bottoms were found by the officers, they asserted that there was about six and one-half gallons of the liquor. The evidence is sufficient to support the finding of the jury.

There is but one bill of exception, whose complaint is of alleged misconduct of the jury. We have carefully examined the testimony offered upon the hearing of the motion for new trial. The alleged misconduct rested upon supposed separations of the jury, and a reference to the failure of the appellant to take the stand and testify as a witness.

The uncontroverted testimony, in regard to the separation of the jury, shows that as the jury walked by a store in which onej of the jurymen worked, in view of threatening weather, this juror suggested that he wished to step inside the store and get his coat. He unlocked the door and stepped in and secured the garment, at no time being but a few feet away from the other jurors, and being gone less than a moment. Another alleged separation was after this fashion: The jurors walked down the street past the home of one of them; this one suggested that he would like to go and lock the door of his garage. He did so in full view of the other members of the jury, the garage being about forty feet from where they were. We think this testimony fails to support the proposition of an illegal separation of the jurors.

Eleven jurors testified upon the hearing of the motion, and the testimony of the twelfth juror was agreed to by appellant and the state. A number of the jurors testified that they heard no mention made-of the failure of the appellant to testify. A number of others testified that they heard one mention made of it, which was promptly rebuked by the foreman, who told them they were instructed by the court not to consider or discuss the failure of the defendant to testify. All these men agree that there was no discussion of the matter. A number of the jurors said that the thing that was said by some one of their number was that neither the appellant, nor his wife, nor any member of his family, testified. We appreciate the able brief of counsel for appellant, and the citation of the many authorities therein, but are constrained to ¡hold that under the facts of this case the authorities have no application. This court has uniformly held that a mere casual reference to the failure of the defendant to testify, especially where same was promptly checked and was not followed by discussion, would not be error calling for reversal.

Finding nothing in the record calling for a reversal, the judgment will be affirmed.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    JACKSON v. STATE.
    No. 15621.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    E. A. Camp, of Rockdale, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.'
   CHRISTIAN, Judge.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for two years.

The conviction is under an indictment charging appellant with the murder of Mrs. Louise Melde. On a former trial the court submitted charges covering murder and assault with intent to murder, the result being that the jury reached the conclusion that the wounds inflicted were not the proximate cause of Mrs. Melde’s death, and convicted appellant of assault with intent to murder. Upon appeal to this court the judgment was reversed and the cause remanded. Jackson v. State, 118 Tex. Cr. R. 448, 39 S.W.(2d) 63. On the present trial, the court submitted assault with intent to murder and aggravated assault.

A careful review of the testimony leads us to the conclusion that the evidence is insufficient to support a conviction for assault with intent to murder. Mrs. Melde and appellant were neighbors. Apparently their relations had been friendly until shortly before the assault. About sixty days prior to the difficulty, appellant borrowed $60 from Mrs. Melde. She had requested that the money be repaid. Pressing the demand that the money be repaid, the foster daughter of Mrs. Melde telephoned appellant, asking that the amount due be immediately paid. According to appellant’s version, he had already paid the money to an agent of Mrs. Melde. Prior to the date of the difficulty, some one had taken a pistol from one Joe Elliott. According to the version of appellant, believing that Mrs. Melde’s son had taken the pistol, he (appellant) had sought to have him return it to the owner in order to avoid trouble. On the day of the difficulty, appellant went to the home of Mrs. Melde for the purpose of collecting an account she was due him. Going to the back door, which, according to his testimony, was his custom, appellant was invited in by Mrs. Melde and her foster daughter. Touching the facts and circumstances surrounding the assault, the foster daughter testified, in substance, as follows: Mrs. Melde told appellant that she would pay the bill as soon as appellant paid her the $60 he owed. Upon being advised by appellant that he had paid the money to her agent, Mrs. Melde started to pay appellant’s bill. Appellant began to curse and abuse Mrs. Melde, calling her vile names. He also referred to the son of Mrs. Melde as a s — — of a b-. Approaching Mrs. Melde, appellant threatened to strike her with his fist. After appellant had applied the vile names to Mrs. Melde, she attacked him, striking him several times with her fist. A fight ensued. During the difficulty, appellant pulled a pistol and struck Mrs. Melde several blows on the head. Appellant then left the scene of the difficulty and returned to his home. At this point we quote the testimony of the witness, on cross-examination, as follows: “After my mother hit Mr. Jackson the first time he hit her; my mother and defendant were both hitting each other; they continued to hit each other until Mr. Jackson hit my mother in the head. Mr. Jackson did not hit my mother any more after he hit her in the head. He did not attempt to hit my mother a single lick until after mother hit him. My mother hit the first lick and then they commenced fighting. When Mi’. Jackson hit mother and she stopped fighting Mr. Jackson 'Stopped too, and then me and my mother passed out of the room. When we walked out of the room Mr. Jackson did not have his six shooter in his hand. Mr. Jackson did not attempt to shoot my mother. He did not point the pistol at her in a threatening manner 'holding it like he was going to shoot. Nobody kept Mr. Jackson from shooting my mother. He was close enough to mother to where if he had wanted to shoot her he could have shot her.”

Testifying in his own behalf, appellant denied that he struck Mrs. Melde with a pistol, and declared that he had no pistol on his person at the time. He said that the injured party attacked him with a knife, and the foster daughter with her fists, and that, in order to protect himself, and prevent her from injuring him, he struck her a light blow with a closed pocketknife. Further, he denied that he cursed Mrs. Melde or her son. He testified that he had no intention of injuring Mrs. Melde. Appellant received some scratches. According to his testimony, Mrs. Melde’s blows bruised his face and body.

A physician, who testified for the state, said that he examined Mrs. Melde and declared that she had two visible wounds, one on the scalp, and one on the cheek. He said that at the time there appeared to be nothing serious about either wound, except the probability of infection. He testified there was probability of any character of wound becoming infected. Approximately a week after the difficulty, a wound in Mrs. Melde’s mouth, which apparently had been cut by her tooth during the difficulty, became infected. Sha died from this infection thirteen days after the assault.

According to the state’s testimony, appellant used the pistol as a bludgeon. He did not attempt to shoot deceased. As soon as deceased stopped her assault on appellant, he left her house. At that time deceased was walking from the room in which the difficulty took place. That appellant had ample opportunity to kill deceased is apparent. The wounds inflicted on deceased were not of a serious nature, in the absence of infection. The evidence is no stronger than that disclosed in Hawkins v. State, 115 Tex. Or. R. 163, 29 S.W.(2d) 384,.and Scroggins v. State, 119 Tex. Or. R. 32, 45 S.W.(2d) 983. In those cases we held the evidence insufficient.

The judgment is reversed, and the cause 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.


author: CALHOUN, Judge.

text:
    ASHMORE v. STATE.
    No. 15505.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.
    Adams & Hamilton, of Jasper, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Theft of a hog is the offense; punishment, two years in the penitentiary.

The evidence for the state in brief was as follows: The complaining witness, Mrs. Annie Robinson, owned hogs running on the open range. On the 9th day of November, 1931, acting under a search warrant, the sheriff of Newton1 county, together with several others, including Mrs. Robinson and her son, went to the appellant’s place, and there Mrs. Robinson identified in the appellant’s possession five head of hogs as belonging to her. One hog in particular was referred to throughout the record as a “ground squirrel” hog which was around three or three and one-half years of age. The state’s evidence further showed that the ear markings of the hogs claimed by Mrs. Robinson had been mutilated and changed. Mrs. Robinson testified that she had not seen this hog since the spring before along in the winter. Her son testified that he had not seen it since the spring before. The witness Arthur Robinson testified that Mrs. Robinson was his greataunt, and he was acquainted with part of Mrs. Robinson’s hogs in that community; that one of the hogs in controversy was a ground squirrel colored hog with a white hip; that it ranged around the Bloodworth place for a while; that he was employed by the said Bloodworth and fed his hogs. During the time that he had observed the hogs around the Bloodworth place, the hog that he had observed was marked with a crop in the right ear and an overslope and underbit in the left ear; that Mrs. Rohinson gave that mark. He further testified that none of the other hogs of Mrs. Robinson ran with the Bloodworth hogs. He further testified that he had not seen the hog since he examined it about a year before at the Bloodworth place; that he did not know of his own knowledge whether the fyog found in the pen of the appellant was the same hog or not; he had not seen it; that he did not know whether there was a ground squirrel colored hog in Blood-worth’s bunch or not, but, if it was, he had not seen it.

Appellant admitted that he had taken up and penned the hogs and further testified that he purchased part of the hogs claimed by Mrs. Robinson from Mr. Pete Ellis, and the said Ellis had delivered 10 hogs to him; that at that time they were in Mr. Ellis’ mark, and, at the time he purchased the hogs from Ellis, Bilis requested him to change the mark; that he brought them home and changed the mark and put them in his pen. This occurred about the 1st of October; that the little ground squirrel colored hog claimed by Mrs. Robinson was one of the Johnnie Bloodworth hogs. It was about three years old at the time Mrs. Robinson identified it as hers, and at the time this hog was claimed by Mrs. Robinson he had had it in his pen about two months, and he found it down near the Bloodworth place at the time he put it in his pen.

The witness Johnnie Bloodworth testified that he lived at Wiergate and had lived there about three years; before he went to Wier-gate he lived at Weeks Ohapel; about three months before he moved from Weeks Ohapel to Wiergate he sold the appellant ten head of hogs. He sold him a black sow first, and at the time he moved he sold him the rest of his hogs, which was nine head, two sows, one of which was a red sow. Three of the hogs were a year old and four about four or five months old. All of the hogs were marked in his mark except the black sow, which was in the mark of one J. T. Hardy; at the time he sold the hogs they ranged in and around Weeks Chapel on Cow creek. Of the younger hogs there was a red male and some black spotted ones in the bunch. They were different colors, but he did not pay much attention to the younger hogs.

When the case was called for trial, the appellant filed a first application for a continuance on account of the absence of his wife. The application showed that the appellant’s wife was sick and not able to attend court at the time. In the motion for continuance, appellant stated that he expected to prove facts by his wife which we think were entirely relevant and material to his defense in this case. Among other things, the appellant showed to the court that he would prove by his wife that she was . present at the time the appellant purchased the alleged stolen hog from E. P. Ellis and heard the conversation between the appellant and the said Ellis with reference to the changing of the marks on the hogs. It is further shown in said application that the said Ellis was dead. If the hog alleged to have been stolen belonged to Mrs. Robinson, it was certainly material to show that the appellant purchased the said hog in good faith from the person whom he believed to be the owner of it, and it would have aided appellant in his defense to show that he purchased the hog from one Ellis. So far as the record shows, the appellant had never before continued the case, and the motion so far as the record discloses was not contested. Touching the diligence, the motion for continuance shows that on March 14, 1932, appellant, through his attorneys, made written application to the district clerk of Newton county, Tex., for a subpoena for the witness Mrs. Julia Ashmore, and on the 16th day of March, 1932, the district clerk of Newton county issued a subpoena for said witness, and placed it in the hands of the sheriff, and on said 16th day of March, the sheriff summoned the witness, and the case was called for trial on March 24, 1932, and the appellant’s application for a continuance was presented on said date. The application for continuance conformed with the requirements of the statute in every essential detail, and should have been granted. See section 355, Branch’s Ann. P. C.; Merritt v. State, 2 Tex. App. 177; Jarrott v. State, 98 Tex. Cr. R. 239, 257 S. W. 256; Dixon v. State, 91 Tex. Cr. R. 217, 238 S. W. 227. The motion for new trial also complains of the refusal of the trial court to grant appellant’s first application for a continuance.

Another bill of exception complains of the refusal of the trial court to require the state to elect which hog was stolen, which was refused by the court. The bill shows that the appellant requested the court to require the state to elect while the witness Annie Robinson was testifying and objected to her testimony until an election had been made. As stated in the case of Bradshaw v. State, 32 Tex. Cr. R. 381, 23 S. W. 892: “When an election is to be had, the rule in this state is that the prosecution, and not the defendant, is authorized to make its selection of the transaction upon which the state will rely for a conviction. He [the defendant], when authorized, may demand of the state an election, but this cannot be done by objection urged to the evidence sought to be introduced.” An objection to the introduction of testimony as to a separate transaction is not equivalent to a motion to require the state to elect. Branch’s Ann. Penal Code, §444.

Because the court erred in overruling appellant’s first application for a continuance, the judgment is reversed and 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.


author: CHRISTIAN, Judge. HAWKINS, Judge.

text:
    BURNS et al. v. STATE.
    No. 15198.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Appeal Reinstated Nov. 23, 1932.
    Rehearing Denied as to Tillman Burns and Granted as to R. C. Burns March 22, 1933.
    S. M. Adams, of Nacogdoches, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for five years.

The trial term of court adjourned on the 12th day of October, 1931. Appellants did not enter into recognizance during the term of court in order to secure their enlargement pending appeal, but on the 9th day of October, 1931, executed appeal bonds to effect their enlargement. These bonds were filed on October 11, 1931, which was one day prior to the adjournment of court. This court acquires no jurisdiction of an appeal where an appeal bond is filed during the trial term of the court. Zepeda v. State, 109 Tex. Cr. R. 473, 7 S.W. (2d) 527, and authorities cited.

The appeal is dismissed.

PEE CUEIAM.

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 Appellants’ Motion to Eeinstate the Appeal.

The record having been perfected, the appeal is reinstated and the ease considered on its merits.

The place of business of Leo Bergman was burglarized and a quantity of merchandise taken therefrom. Three days after the burglary appellants confessed to the arresting officer and told him where he could find the fruits of the crime. Pursuant to the statements of appellants the officer went to the home of appellant Tillman Burns and found a quantity of the stolen merchandise. The appellants each made a written voluntary confession. These confessions gave substantially the same version of the transaction, each appellant stating in his confession that the burglary had been committed by the two appellants and Sam Brown pursuant to an agreement entered into between the parties. Omitting the formal parts, we quote, in part, the statement" of appellant E. C. Burns as follows: “Last Thursday afternoon, September 4th, 1930, Sam Brown, T. B. Burns, my brother, and I agreed to go in the store of Leo Bergman that night. We were all drinking over on the creek when we made this agreement. We ate supper at the home of my brother, where he had killed a black hen fox-supper. After we had gotten supper and sometime after dark we all three left there to go to Corrigan and go in the store. We got to Corrigan about eleven o’clock and waited behind Cobb’s store for a while. A train came in and Sam went over there to cut the screen. It was agreed that I should stay out there and watch and T. B. Burns and Sam Brown were to go in the store. This they did and I stayed out there and watched for them. I was going to throw a rock on the store if anyone was coming. They stayed in there about fifteen minutes and came out each came out carrying a sack. We left there right then and went back down the track. On our way back home two of us eat sardines and threw the cans away down the way we traveled home, just where I don’t know.' After we had gotten close to home we divided the stuff. I got some bacon. One pair of gloves, several knives and some spelling tablets.”

We quote from the confession of appellant Tillman Burns as follows: “About Thursday night, September 4th, 1930, Sam Brown, E. C. Burns and I went over to Corrigan, Texas, to go in the store of Leo Bergman. We had all three agreed to go in there that afternoon before, we were over on the creek about a mile from my house and there while drinking some whisky, it was mentioned by Sam Brown first that Leo should have several hundred dollars in that safe or vault, and that it had a sign on same that it wasn’t locked, and we then agreed to go in there that night. We all three above mentioned left my house to go over there sometime after dark. We walked over there and got there sometime about midnight I would guess. When a train came in Sam cut the screen twice or three times. Then one of us two raised the window and Sam went in first then he pulled me in. We had thrown two sacks in there. After we got in there we began to gather stuff and put in the sacks. E. C. Burns was outside watching for us. We had all agreed that he was to watch and let us know if anyone was coming. And Sam Brown and I had agreed to go in and get the stuff. As soon as we got in there we unfastened the back door so that we could get out easy if necessary. Each of us got stuff in our sack, one sack was a grass sack and the other a cotton sack. We had brought both of them with us. We got two full sides of meat, and two other pieces that would about make a third side. We got. a package of rice. We got about five boxes of sixteen gauge shotgun shells. We got a piece of a box of twelve gauge shells. We got some seven or eight pocket knives. We got one can of sweet potatoes. We got some raisins. We got one can of soup. We got some sardines. On big ‘Bale’ sack of tobacco. We got 5 bottles of three-sixes tonic. We got some snuff. We got some spelling tablets ‘called cat bird tablets.’ We got some gloves three and one-half pairs of gloves. We went in there about midnight. We got in by cutting the screen and raising a window. We traveled the track both coming and going, that is the track from Benford. We stopped at a branch and got water both coming and going. We hid under the water tank at Cobb’s store when we first got there. While in the store we ran over a chair and knocked it over and just left it that way. When we come out of the store E. C. Burns, my brother, was still there waiting for us. We all left there together and went back to my home. Before we separated that night we divided the stuff. B. C. took his and left and Sam and I went to my house and stayed all night.”

Appellants were separately indicted, but upon their motion were Jointly tried. Appellant R. O. Burns pleaded not. guilty. Appellant Tillman Burns refused to plead and the court entered a plea of not guilty for him. The last-named appellant filed an application for &■ suspended sentence. Appellant R. O. Bums did not testify. Appellant Tillman Burns took the stand and admitted his guilt, but declared that appellant R. 0. Burns had nothing to do with the commission of the offense. He admitted that appellant R. O. Burns was outside the store, but testified that he was asleep. He said R. O. Burns was too drunk to know what occurred. Further, he testified that R. O. Burns had not entered into an agreement to burglarize the store and did not know that he and Sam Brown committed the offense. He denied that appellant R. O. Burns received any of the stolen property.

No effort was made by either of the appellants to attack the voluntary character of their confessions.

Bill of exception No. 2 relates to the refusal of the court to grant appellant R. O. Burns’ subsequent application for a continuance. It is alleged in the application that the witnesses named therein would testify, if present, that they saw R. O. Burns on the evening before the burglary and the morning thereafter, and that he was in such a state of intoxication that, in their opinion, he did not know the difference between right and wrong. One of the witnesses would testify, according to the averments in the application, that R. O. Burns had been drunk several days prior to the burglary. We deem it unnecessary to mention the diligence shown in the application. Appellant R. O. Burns failed to attach to his motion for a new trial the affidavits of the absent witnesses showing that they would give the testimony alleged in the application. In the light of the testimony heard upon the trial, the opinion is expressed that, in considering the motion for a new trial, the trial court did not abuse his discretion in determining that the testimony of the absent witnesses was probably not true, and that such testimony was not of the character as that a different result might be produced thereby on another trial. In the absence of the affidavits of the absent witnesses to the effect that they would have sworn to the facts stated in the application for a continuance, the judicial discretion rested with the trial judge in determining, in passing on the motion for a new trial, whether or not the absent testimony was probably true, in view of all of the evidence heard during the trial. Blanks v. State, 111 Tex. Cr. R. 223, 12 S.W. (2d) 564; Tubb v. State, 109 Tex. Cr; R. 458, 5 S.W.(2d) 150.

Bill of exception No. 3 presents the following occurrence: While the sheriff was testifying on direct examination for the state, he stated that he had a conversation with the appellants and Sam Brown at the same time and in the presence of each other three days after the burglary, during which they told him where he could find the merchandise taken from the burglarized store. He said that the three parties admitted to him that they burglarized the store. He testified that pursuant to the declarations made to him by the parties, he found the stolen goods in the home of appellant Tillman Burns. He said: “Tillman said he had it (meaning the snuff) in his house and I found it there next day after they made the statement. Reece (appellant R. O. Burns) and Tillman Burns told me about some 666 Oliill Tonic, the best I remember. They said that two bottles and I found one at Tillman’s.” Further, he said: “During this conversation they made a statement to me with reference to the fruits of the burglary of Leo Bergman’s store that I after-wards found to be true. They told about going out and going in the store and on the way back what they had done.” It is certified in the bill of exception that the appellants were under arrest at the time the statements were made and that said statements were admitted by the court against both appellants. Further, it is certified in the bill that none of the property was found where' appellant R. C. Burns said it would be. Appellant R. C. Burns objected to the use of the testimony against him on the ground that he was under arrest and that it was not admissible for any purpose. In his voluntary confession appellant R. C. Burns made substantially the same statement the sheriff made. He made no attack on the voluntary character of his confession. No objection was made to the introduction in evidence against him of his voluntary confession. If the evidence was improperly admitted, and this is not conceded, its reception does not constitute reversible error. It is a general rule that the admission of improper evidence does not constitute reversible error if the same facts were proved by other and proper testimony which was not objected to, as where the accused voluntarily gave testimony substantially the same as that, erroneously received over objection. Texas Jurisprudence, vol. 4, page 587; Hathcock v. State, 112 Tex. Cr. R. 374, 16 S.W.(2d) 821; Lawler v. State, 110 Tex. Cr. R. 460, 9 S.W. (2d) 259.

Bill of exception No. 19 reveals that when the confession of appellant Tillman Burns was offered in evidence, appellant R. 0. Burns objected to it being introduced in evidence against him, in that it was a statement and confession made by his codefendant after the conspiracy had terminated and was hearsay. Bill No. 20 shows that appellant Tillman Burns made the same objection when the confession of appellant R. C. Burns was introduced. It is not necessary to decide whether the fact that the confessions were taken at the same time and in .the presence of each other and that each heard the confession made by tbe other at the time they were taken would render admissible both confessions against either of the appellants. The appellants were being jointly tried and it was proper for the court to receive in evidence the confession of appellant R. C. Burns as against him and the confession of the appellant Tillman Burns as going to establish his guilt. If appellant R. C. Burns desired to have the matter reviewed by this court, he should have excepted to the charge of the court for its failure to limit the use of the confessions, or else he should have presented a requested instruction on the subject. As 'far as the record reflects the matter, this he failed to do.

As shown in biil of exception No. 22, appellant Tillman Burns was asked on his direct-examination to state how many members there were in his family. Upon objection by the district attorney he was not permitted to answer the question. The bill recites he would have answered that he had a wife and five children, the ages of the children ranging from two months to eight years. It is recited in the bill that appellant Tillman Burns had made an application for a suspended sentence. It is shown that appellant Tillman Burns was thirty-five years of age. Many witnesses testified that his general reputation for being peaceable and law-abiding was bad. The testimony of these witnesses was not controverted. If it had been proper for appellant to testify as to the fact that he had a wife and several children, we are unable to reach the conclusion that the refusal of the court to receive the testimony should work a reversal. The fact that it was shown beyond dispute that appellant Tillman Bums’ general reputation for being peaceable and law-abiding was bad would more than likely have impressed the jury with the view that his children should be removed from his influence.

, 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.

Most of the questions discussed in our original opinion and those presented in the motion for rehearing found their way into the record because of the consolidation of cases predicated on separate indictments against appellants, and because of a joint trial. We said in Sims v. State, 119 Tex. Cr. R. 83, 45 S. W.(2d) 579, 580: “Experience and observation demonstrate that the joint trial of two individuals upon separate indictments leads to confusion and difficulty in preparing a record for appeal.” The truth of the above statement is further demonstrated by what we find in the present record. See, also, Ivey v. State (Tex. Cr. App.) 51 S.W.(2d) 716.

It will be necessary frequently to refer to R. C. Burns and Tillman Bums, and for brevity and convenience they will be referred to as R. C. and Tillman. At the time the original opinion was prepared no objections to the court’s charge appeared in the record. Such objections which were timely filed are now before us and bill of exception No. 3 will be again reviewed in the light of these objections. It appears from the recitals in said bill that while Sam Brown, Tillman, and R. C. were under arrest the sheriff had a talk with them and they made certain oral statements to him. If such statements became admissible in evidence, it is by reason of that part of article 727, C. O. P., which admits confessions if in “connection with said confession, he [referring to accused] makes statements of facts or circumstances that are found to be trae, which conduce to establish his guilt, such as the finding of secreted * * ⅜ property,” etc. The bill shows that the sheriff in his testimony continually used 'the word “they,” such as “they made a statement to me with reference to the fruits of the burglary,” and “they told about going out and going in the store, and on the way back what they had done.” The sheriff testified that as a result of this conversation with the. three parties he found at Tillman’s house and near it certain property enumerated by him and which seems to have been identified as some of the property taken out of the burglarized store. It is recited as a fact in the bill that these statements were admitted against both R. O. and Tillman, but that none of the property was found where R, O. said it would be. The testimony was specifically objected to as against R. O. We understand from the bill that none of the fruits of the crime were discovered as a result of what R. O. told the officers. An examination of the statement of facts upon the same subject leads to the conclusion that the statements regarding the location of the stolen property were really made by Sam Brown and Tillman, although the testimony is somewhat confusing. There was a specific objection (paragraph seventeen) to the charge because the court had omitted to instruct that the statements of Brown and Tillman could not be used against R. C. We had occasion to consider practically this same question in Garcia v. State, 88 Tex. Cr. R. 605, 228 S. W. 938, and Nelson v. State, 113 Tex. Cr. R. 632, 21 S.W.(2d) 1045. In Garcia’s Case he and another party, while both were under arrest, each admitted to the officer that they had committed a burglary and each told the officer in detail where the property had been secreted. The officer being doubtful whether he could find the property from the description of its location, took one of the prisoners with him to aid in its recovery, leaving the other in jail. The stolen property was found at the exact point described by the prisoner left in jail, as well as by the one who accompanied the officer. Under such circumstances it was held that the confession of the prisoner who did not accompany the officer was admissible in evidence. The opinion makes it clear that the holding was based upon the fact that the stolen articles were found at the very place described by the prisoner who was left in jail. In the present case the bill contains a recital which amounts to a certificate of fact that none of the stolen property was recovered by reason of any statements made to the officer by R. 0. In.our opinion the statement testified to by the sheriff should not have been admitted against R. O. Of course, it was admissible against Tillman, who was also on trial, but the court should have responded to the objection and made it plain that it could not be considered as against R. O. The question under consideration was mentioned in Blake v. State, SI Tex. Or. R. 87, 193 S. W. 1004, 1065. It was said in the opinion that the bill of exception presenting the question was indefinite as to the real conditions and environment attending the making of the statements of accused then on trial, as well as his codefendant The court says: “It seems from the bill that the court admitted tte testimony on the theory that fruits of the crime, or instruments by which it was committed, were found by reason of the confession, though this is not clear. Upon another trial this testimony will not be admitted unless a proper predicate is laid. * * * If proper predicate is laid, we are of opinion the statements of the codefendant could also be introduced, as these conversations occurred between the sheriff and the two parties, each having made practically the same statement in the presence of each other at same time.”

It is not clear from the opinion what was in the mind of the learned judge writing it as to what would constitute a proper predicate.

Still another complication by reason of this joint trial arose when Tillman took the witness stand to testify. R. C. did not testify, neither did he call Tillman as a witness, and could not have done so under the statute (article 711, O. O. P.) had he so desired. Neither could he have prevented Tillman from becoming a witness because the latter was himself upon trial and had a right to testify in his own behalf. In his testimony Tillman completely exonerated R. O. of any complicity in the burglary. Tillman’s testimony was to the effect that he and ¡Sam Brown committed the burglary; that R. C. went with them to a point near the store, but was not a party to an agreement to commit the burglary, and was so under the influence of intoxicating liquor that he was in a stupor and knew nothing about what was going on and was asleep at the time Tillman and Brown came out of the store. With the record in this condition the court charged the jury that Tillman was an accomplice witness against R. O. If the charge was called for, it was erroneous in that it instructed the jury that they could not convict R. C. upon Tillman’s testimony unless they first believed that Tillman’s testimony was true and “tended to connect R. C.” with the offense charged and then that they could not convict R. C. unless there was other testimony in the case corroborative of Tillman’s testimony which tended to connect R. O. with the offense. It is doubtful if this defect in the charge was pointed out' by sufficiently specific objection to call the court’s attention to it; that it is erroneous has been so many times decided we discuss the matter no further, simply citing some of the authorities. Baggett v. State, 65 Tex. Cr. R. 425, 144 S. W. 1136, in which many authorities are cited. One of the later cases is Sealey v. State (Tex. Cr. App.) 47 S.W.(2d) 295, in which many other authorities are noted. We call attention to the form of the charge in order that the same mistake may not occur upon another trial, if one should be had of R. O.

In the ninth paragraph Of the objections to the charge it was pointed out to the court that the defendant was complaining about the instructions with reference to Tillman being an accomplice witness because he had testified positively that R. O. had nothing whatever to do with the burglary, and that, as framed, the charge on accomplice testimony was not applicable. We are doubtful as to the propriety of giving a charge on accomplice testimony as to Tillman, at all under the circumstances. If there were any incriminating (statements in his testimony and the court thought it proper to charge on accomplice testimony by reason thereof, then in framing the charge he should have avoided leaving the impression on the jury that as to the exculpatory statements it was necessary that they should also be corroborated. See Josef v. State, 34 Tex. Cr. R. 446, 80 S. W. 1067; Williams v. State (Tex. Cr. App.) 37 S. W. 325. In Puryear v. State, 56 Tex. Cr. R. 231,118 S. W. 1042, an instruction given by the court under somewhat similar conditions is set out. While not approved in all particulars, it protected accused under the circumstances mentioned. It is the opinion of the writer thát it would have been better for the court not to have undertaken to charge on the matter at all .unless requested to do so by appellant R. O.

There appears another instruction on accomplice testimony under most peculiar circumstances. It relates to statements made by Sam Brown which went into the record through the testimony of the sheriff. Sam Brown was not upon trial and did not testify in the case. Notwithstanding this, the jury was told that Brown was-an accomplice and was instructed regarding his statements to the sheriff. We And no exception to the giving of the charge and therefore pretermit any discussion of the propriety of the charge having been given at all. The objections are directed to the form of the charge. We refer to Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188, and Oates v. State, 67 Tex. Cr. R. 497,149 S. W. 1194, and Henderson v. State, 97 Tex. Cr. R. 247, 260 S. W. 868, for a discussion generally of charges on accomplice testimony.

Our discussion of the questions presented in the motion for rehearing have been with reference to appellant R. C. Bums. We have not discussed the claimed errors as .they relate to Tillman Burns for the reason that he went upon the witness stand and testified upon the trial and admitted his guilt. Such errors, if any, as may have been committed against him, would, under the circumstances, be harmless.

The motion for rehearing as to Tillman Burns will be overruled. As to R. O. Burns the judgment of affirmance is set aside, the motion for rehearing is granted, and the judgment is reversed as to him, and the cause remanded for the errors pointed out.


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    PEARSON v. STATE.
    No. 15526.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    State’s Rehearing Denied March 15, 1933.
    H. J. Cureton, of Meridian, and Tirey & Tirey, of Waco, for appellant.
    J. P. Word, Co. Atty., of Meridian, and Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Conviction is for murder without malice; punishment, four years in the penitentiary.

Appellant was charged with the unlawful killing of one Gladys Crawford. I-Xis whole defense was that of a mistake in identity in that he thought and believed that he was shooting at and killing a negro woman whom he claimed to be a concubine of his father, who was some 75 or 76 years of age at the time. Appellant contended that said negro woman had been living with his father for some time prior to the killing. The appellant himself testified to the facts touching the killing substantially as follows: “I went out there and went up to the top of the hill and turned my car around and came back and got out and went in there for the sole purpose of telling this negro woman that if they moved back to town I was going to have to kill them. As I opened the door and went in right where I had seen this negro woman ■ — I had been out there and seen her slipping around and poking her head from out behind things, and on this occasion as I stepped in the door Mrs. Crawford (deceased), evidently thought it was her husband or somebody coming in for she stepped right out there where I had seen this negro woman on two or three occasion, stepped right out that identical way, and when I laid eyes on her it was dark in that room, as dark as could be — and I had my gun down and I don’t know whether I put it to my shoulder or not; I don't remember; but I just ‘snap’, ‘snap’, thinking all the time I was killing that negro woman. I would not have shot Mrs. Crawford for the world.”

Bill of exception No. 2 complains of the following action in regard to the witness Loy Poole, a negro, in regard to the admission in evidence of his testimony for the state. The bill shows that for the purpose of making objection, the appellant’s counsel interrogated said witness as to whether or not he had been to the penitentiary. The bill shows that said witness without objection admitted that he had been to the penitentiary one time and he went from Bosque county; that he had served his sentence out and gotten a discharge from the penitentiary, and the bill shows that the defendant objected to said witness’ testimony when it was offered for the reason that the record shows that the witness had been convicted of a felony in this state on or about October 4, 1926, and said witness had never been pardoned and no pardon was introduced by the state showing that said witness had been pardoned, and offered in support of said objection the judgment and sentence showing that said witness had been convicted of a felony and sentenced to a term of two years in the penitentiary on the 4th day of ■ October, 1926. The court overruled appellant’s objection to said' Poole testifying and qualified said bill to the effect that the witness was convicted in October, 1926, and was not in the penitentiary at the time of giving this testimony.

We think the court was correct in admitting the testimony of said witness. The evidence showed that he was convicted on October 4, 1926. Article 708, O.' O. P., before it was amended by the 39th Legislature (Laws 1926, c. 13 [Vernon’s Ann. O. O. P. art. 708]), which amendment went into effect in January, 1927, provided that “all persons who have been or may be convicted of felony in this State, and who are confined in the penitentiary shall not be permitted to testify in person in any court, for the State or for the defendant, but their deposition may be taken by the defendant as in other criminal cases provided by law.” It will be noted that under said act above set out a person who had been convicted and who is confined in the penitentiary shall not be allowed to testify. Said article referred to, article 708, was construed in the ease of Alexander v. State, 103 Tex. Cr. R. 620, 281 S. W. 852, to mean that an unpardoned convict has the same right to testify as a pardoned one, provided he is not incarcerated in the penitentiary at the time of trial. See, also, Brunett v. State, 114 Tex. Cr. R. 244, 26 S.W.(2d) 208.

By proper bill of exception, it is shown that on the trial of this case one Oscar Ma-berry, when placed upon the stand by the state, testified without any objection on behalf of the state that he had been convicted and sent to the state penitentiary for the offense of perjury from Bosque county and he had been pardoned after he had served about 19 months; that he was convicted of the offense of perjury in 1912. The bill further shows that no objection was made by the state to the answer of the witness that he had been sent to the penitentiary. It is true that the witness testified that he had a pardon but none was produced and offered in evidence, and the appellant did offer the judgment of conviction and sentence, and, as we understand the bill, objected to the witness’ testimony unless the pardon was duly shown in evidence. We think that the objection of the defendant to the competency of the witness should have been sustained. Before the amendment to article 708 of the Code of Criminal Procedure by the Acts of the 39th Legislature, article 788 of the old Code of Criminal Procedure provided in subdivision 3 that all persons who have been or may be convicted of a felony in this state Of in any other jurisdiction, unless such conviction has been legally set aside, or unless the convict has been legally pardoned for the crime for which he was convicted, are incompetent to testify; and further provided that no person who has been convicted of the crime of perjury or false swearing and whose conviction has not been legally set aside shall have his competency as a witness restored by pardon unless such pardon by its terms specifically restored his competency to testify in a court of justice.

It will be seen from said subdivision that, even though the witness had been pardoned, his competency as a witness was not restored by a pardon unless such pardon by its terms' specifically restored his competency to testify in a court of justice. This was not shown or attempted to be shown by the state. Having been convicted of the offense of perjury prior to the taking effect of article 708, O. O. P., as amended by chapter 13, General Laws, First Galled Session, 39th Legislature, 1926.(Vernon’s Ann. C. O. P. art. 708), the witness was not made competent to testify as a witness, under the authorities of this court, by said act and its amendment. We quote in part from Fitzgerald v. State, 118 Tex. Cr. R. 64, 39 S.W.(2d) 47, 48: “Under the provisions of our law, article 708, C. C. P., as amended by chapter 13, General Laws, First Galled Session, 39th Legislature (1926), Vernon’s Ann. O. O. P. art. 708, as construed in Underwood v. State, 111 Tex. Cr. R. 124, 12 S.W.(2d) 206, 63 A. L. R. 978, any convict is competent to testify as a witness, even though convicted of a felony and unpardoned, provided he was convicted subsequent to the taking effect of said amended statute as above referred to.” As said in Thompson v. State, 84 Tex. Cr. R. 148, 205 S. W. 988: “It seems to be well settled that where a convict witness is offered, and objection is made on that ground, then, in order to permit his testimony, it must be shown by the production of pardon that he has been restored to his citizenship, where' it is urged.”

The bill of exception shows that the purpose of the question to the witness as to whether he had been to the penitentiary or not was to establish the incompetency of the witness so that his testimony might be objected to and upon the testimony being developed that he had been sent to the penitentiary by being convicted of a felony, to wit, perjury, the objection was made on the ground that the witness had been convicted of a felony and was disqualified. The court overruled the objection, as shown by said bill of exception, and the witness gave material testimony conflicting in several ways with the testimony of the appellant and some of his witnesses. The bill shows, as we construe it, that the questions asked the witness as to his conviction for a felony were for the purpose of disqualifying him and were not sought merely for the purpose of affecting the credibility of the witness. • It having been shown by the witness’ testimony before he testified that he had been convicted of a felony and sent to the penitentiary, it was incumbent upon the state to show that he had been pardoned and that said pardon was a full pardon and not partial or conditional and that said pardon restored his competency as a witness by its terms specifically restoring his competency to testify in a court of justice. See Thompson v. State, supra; Brown v. State, 101 .Tex. Cr. R. 63, 274 S. W. 588; Jones v. State, 117 Tex. Cr. R. 8, 36 S.W.(2d) 736.

Appellant also objects to certain paragraphs of the 'court’s charge, claiming that each of said paragraphs contained an affirmative submission of the state’s rights to a conviction and constitutes a repetition. Paragraph 6 of said charge merely instructs the jury that “if you find the appellant guilty of the unlawful and voluntary killing of Gladys Crawford and if you further find from the evidence beyond a reasonable doubt that it was done with malice aforethought, then you will assess his punishment at death or confinement in the state penitentiary for life or for any term of years not less than 2.” Paragraph 9 of said charge is to the effect that “if from the evidence the jury believed beyond a reasonable doubt that the appellant, Carl Pearson, in Bosque County, Texas, on or about the 29th day of March, 1932, without malice, as hereinbefore defined, did voluntarily kill the said Gladys Crawford, by shooting her with a gun, as alleged in the indictment, then you will find the appellant guilty of murder and assess his punishment at confinement in the penitentiary for not less than two nor more than five years.”

The appellant was convicted of the unlawful killing without malice aforethought. Under the law he presents no defense which would justify said killing, but the reliance is made alone upon the mitigating circumstances which would reduce the offense to an unlawful killing without malice. We do not believe that any harm was done to the appellant by reason of said sections of the charge complained of, and therefore does not show reversible error under article 666 of the O. C. P.

Complaint is also made of the failure of the court to grant a new trial for the reason that one of the jurors was disqualified because of expressions made by him before he was accepted as a juror; complaint is also made of the failure of the court to grant a new trial because of arguments of the district attorney made in his closing argument to the jury. As these matters are not liable to occur upon another trial of the case, we preter-mit a discussion thereof.

Because of the error pointed out in admitting the testimony of the witness Maberry, over the objection of the appellant, the judgment is reversed and, cause 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:
    HILLIN v. STATE.
    No. 15524.
    Court of Criminal Appeals of Texas.
    Feb. 22, 1933.

      J. A. Gooch, Prank H. Rawlings, and R. V. Nichols, all of Port Worth, and Morrow & Clarke, of Hillsboro, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. ■
   CHRISTIAN, Judge.

The offense is negligent homicide of the second degree; the punishment, a fine of $100.

The indictment charges J. C. Morgan and appellant jointly with causing the death of Sterling Copeland; it being averred, in substance, that appellant and Morgan were in the performance of an unlawful act. Apparently the pleader attempted to charge that the unlawful act was a misdemeanor, as it is averred that appellant and Morgan unlawfully obstructed state highway No. 2 in Hill county. Without setting out the indictment, it is observed that it is not clear whether a violation of the provisions of article 784,-P. C., or section 10 o'f article 827a, Vernon’s Annotated Penal Code, is charged. Article 784, supra, among other things, denounces as a misdemeanor the act of willfully obstructing any public road, etc. Section 10 of article 827a, supra, declares it to be a misdemeanor for any person to park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main-traveled portion of any highway, outside of any incorporated town or city, when it is possible to park or leave such vehicle standing off of the paved or improved or main-traveled portion of such highway. Further, it is provided in said section that in nó event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway, unless a clear and unobstructed width of not less than 15 feet upon the main-traveled portion of said highway opposite such standing vehicle shall be left" for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of 200 feet in each direction upon such highway.

We are constrained to agree with appellant’s contention that the motion to quash should have prevailed. Article 414, O. O. P., requires that the offense be set forth in the indictment in plain and intelligible words. Punchard v. State (Tex. Cr. App.) 54 S.W.(2d) 110. All that is essential to constitute the offense must be explicitly charged and cannot be aided by intendment. Middleton v. State, 114 Tex. Cr. R. 263, 25 S.W.(2d) 614, and authorities cited. We are unable to reach the conclusion that a presumptively innocent man could ascertain from the indictment whether the unlawful act was the willful obstruction of a highway or the parking of automobiles in a manner denounced' as a misdemeanor in article 827a, supra.

Other attacks were made on- the indictment which we do not undertake to discuss. If another indictment should be returned, the elements of negligent homicide of the second degree should be explicitly charged. We quote from Van Arsdale v. State, 94 Tex. Cr. R. 169, 249 S. W. 863, 864, as follows: “The elements of negligent homicide in the second degree thus appear to be charged, i. e., a homicide by the. act of appellant; that such homicide resulted from his carelessness and negligence; the apparent danger of causing death; the lack of an intent to kill; and that at the time of such homicide appellant was engaged in an unlawful act.”

The state relied upon circumstantial evidence. Appellant did not testify, and introduced no witnesses. The proof on the part of the state was, in substance, as follows: Sterling Copeland, deceased, was returning home from Hillsboro somewhere between 12 and 1 o’clock on the night of May 2, 1931. While traveling north in his Ford automobile on the concrete highway between the towns of Itasca and Grandview, deceased ran his car into the rear end of a Sproules truck in such manner as that the entire front end of the car was demolished. Deceased’s car be-, came engulfed in flames, and the body of deceased was burned. It was impossible to tell whether death resulted from the collision or was caused by burning. The truck deceased struck was headed north, and was on the right-hand side of the pavement going north. After the collision, another Sproules truck was seen on the highway. This truck was headed south, and was on the right-hand side of the. pavement going south. Its lights were burning. It was near deceased’s car.

A witness for the state, who lived near the scene of the collision, heard the crash of the vehicles and ran to the door to see what was taking place. She saw a burning car and a truck standing on the right of the road. The lights of this truck were on. She also saw another truck in front of deceased’s car. Witnesses visiting the scene of the collision declared that the truck deceased’s car hit was headed north. At the time they reached the scene the truck which was headed north was about 40 feet in front of deceased’s car. There was a second truck there, which was headed south. This truck was on its side of the road, just a few steps south of the burning car. The lights were on. The truck headed north was on the right side of the road going north. The truck drivers gave one of the witnesses their names. He wrote the names on a slip of paper, which he gave to the city marshal of Itasca. The city marshal lost the slip, but testified that it bore the names of J. C. Morgan and appellant.

Grandview and Itasca are approximately 8½ miles apart. At about 12 o’clock on the night of the collision appellant came into a • sandwich shop in Grandview and asked the night watchman if he had seen a truck going north, saying that he was to meet'a truck either between Grandview and Alvaredo or between Alvaredo and Burleson. Appellant was driving a Sproules truck. Shortly thereafter, the night watchman heard the truck move out, and observed that it was traveling south. About 12 o’clock the same night, the night watchman of Itasca observed a Sproules truck pass through Itasca and drive on north. Fifteen or twenty minutes after this truck drove out on the highway, deceased came into the town of Itasca in his Ford car. Stopping at a sandwich shop, he remarked that he was sleepy, and the proprietor asked him if he wanted a cup of coffee. He said he believed he did not, and took a glass of water. Shortly thereafter he headed out north on the highway in the direction the truck had gone. Shortly before the collision, a state’s witness drove over highway No. 2, between Itasca and Grandview. A little after 12 o’clock he passed a Sproules truck headed north. This truck was standing on the highway at a point apparently near where the collision occurred. The driver was lying over in the truck as if asleep. He had no lights burning. Before reaching Grand-view, the witness met another Sproules truck traveling south.

It is clear from the testimony that the truck going south on the highway was not hit by the car of deceased. If it should be conceded that appellant was sufficiently identified as one of the truck drivers, it is apparent that he was driving the truck traveling south. There is an entire absence of testimony as to where the truck going south was at the time the car of deceased struck the truck traveling north. The only evidence in this connection is that there was on the scene shortly after the accident a truck headed south and that this truck was located south of the burning ear, and with its lights burning. There is no evidence to show when this truck arrived, and an entire absence of proof that it was there at the time of the collision. There is proof to the effect that the truck headed north was parked on the highway shortly before the collision. However, a witness for the state testified that the driver of this truck stated to him, in substance,, as well as he remembered, that he did not know what had hit him “until he had gone on a little ways.” The propf shows that the drivers of the trucks attempted to extricate deceased from his burning ear. The hypothesis is reasonable, under the circumstances reflected by the record, that the truck going south came upon the scene after deceased had run his car into the back* end of the truck going north, and stopped for the purpose of attempting to extricate deceased from his wrecked and burning car. Hence the demand of the law of circumstantial evidence to the effect that the circumstances must exclude every other reasonable hypothesis except that of the guilt of the accused was not met. Graves v. State, 119 Tex. Cr. R. 68, 43 S.W. (2d) 953. To warrant a conviction on circumstantial evidence, there must be “proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person” who committed the offense, or “was a participant in its commission.” Branch’s Annotated Penal Code, § 1877; Graves v. State, supra, and authorities cited.

The judgment is reversed, and the prosecution ordered dismissed.

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.


author: MORROW, Presiding Judge.

text:
    BURROWS v. STATE.
    No. 15686.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Denman & Fowler, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Theft of an automobile horn of the value less than $50 is the offense; penalty assessed at a fine of $1.

The evidence is circumstantial. A recital of it is not desirable further than • to state that in holding the evidence sufficient the trial court is not deemed to have been in error. The trial was had in the county court of Nacogdoches county. A written charge was given to the jury. In a special charge, appellant requested the court to instruct the jury to acquit him if he had traded gasoline to a third party for the horn in question or if they had a reasonable doubt upon that subject. A special charge was given to the'jury embracing substantially the same matter as that contained in the requested charge mentioned above.

In the motion for new trial and in a formal exception to the court’s charge, the same question with reference to the appellant’s defensive theory, namely, that he acquired the horn in trade for some gasoline, is raised. That subject was pertinently brought before the jury in what is deemed an adequate instruction. Criticism of the form of the charge on circumstantial evidence is not tenable. Moreover, there was no charge prepared by the appellant and presented to the court upon that subject.

In the trial of a misdemeanor case, an exception to the court’s charge is not ordinarily sufficient on which to found a complaint, unless it is accompanied by an appropriate special charge. See Tex. Jur. vol. 4, p. 74, § 47. See, also, Verfion’s Ann. C. C. P. 1925, vol. 2, p. 28S, art. 662, note 4; Simpson v. State, 87 Tex. Cr. R. 277, 220 S. W. 777; Hand v. State, 88 Tex. Cr. R. 422, 227 S. W. 194.

There are some questions of practice concerning the sufficiency of the evidence, a discussion of which is pretermitted in view of the disposition of the case.

Perceiving no error in the trial, the judgment is affirmed.


text:
    SMITH v. STATE.
    No. 15663.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Allen K. Pattillo, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.-
   MORROW, Presiding Judge.

Keeping a disorderly house is the offense; penalty assessed at a fine of $200 and confinement in the county jail for a period of twenty days.

The offense is denounced in article 514, P. C. 1925.

From the state’s testimony, it appears that Lula Mae Smith lived at 509½ Dallas avenue, Houston, Harris county, Tex. An officer testified that Peggy Davenport, Annie Barber, and Leona Thornton lived with Lula Mae Smith at the place stated. The officer testified: “I have been solicited from the bottom doorway of this house, and all of these girls have been convicted of vagrancy, as being a common prostitute, and soliciting charges in the Corporation Court.”

In detail, the officer said that he had arrested Annie Barber in a park close by; that the man who was with her admitted that he was going to fill a date with her. The officer testified further:

“I, at one time, went up into this house and found Peggy Davenport and a man by the name of Cotton Grabel in a little kitchen leading off from a bed room, where they were cooking breakfast.”

“I know that the place in question bears the general reputation of being a house of prostitution. I know that the inmates of said house bear the reputation of being common prostitutes.”

On cross-examination the officer testified that Annie Barber, at the time he arrested her, was tried and found not guilty; that the rooming house occupied by the appellant was on the second and third floors of the building; and that the girls were downstairs on the street when they solicited the officer. The officer further stated: “Prom my personal knowledge I do not know of any unlawful acts having been committed in this house. I know of no time where, within my observation, a man and a woman were at said house for the purpose of sexual intercourse.”

Two other officers gave practically the same testimony as that set out above.

As to notice of the appellant of the unlawful conduct of the inmates of her house, the record is silent. Knowledge by the accused of the alleged unlawful acts of the persons who resided in her house was an essential element in justifying her conviction. The evidence shows that the parties lived at the apartments conducted by the appellant, which were on the second and third stories of the building; but it fails to show that in the apartment under her control, there had been any misconduct of either of the girls named. Aside from the solicitation which did not take place in the building and of which no notice was shown in the appellant, there were no specific acts of the inmates shown that were criminal. One of the girls was seen with a man cooking breakfast in the kitchen. Some of the inmates had been arrested a number of times, but when or under what circumstances and where the appellant was at the time is not disclosed. Only one girl was arrested by one of the officers who testified, and she had been tried and acquitted. Some of the leading cases on the subject are Johnson v. State, 102 Tex. Or. R. 409, 278 S. W. 210; Orim v. State, 118 Tex. Cr. R. 93, 42 S.W.(2d) 1027; Hardeman v. State, 100 Tex. Or. R. 358, 273 S. W. 584.

The facts in evidence are not deemed sufficient to support the verdict.

•Therefore, the judgment is reversed, and the cause remanded.


author: HAWKINS, Judge.

text:
    SCOGGIN v. STATE.
    No. 15652.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    McGaugh & Darroch and Callaway & Cal-laway, all of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for possession of intoxicating liquor for the purpose of sale, punishment being assessed at 18 months’ imprisonment in the penitentiary.

Appellant and Lev Baugh were jointly indicted. The prosecution against Baugh -was dismissed upon motion of counsel for the state upon the ground that the evidence was insufficient to convict Baugh.

At the time the officers, under a warrant, searched the residence of appellant neither he nor his wife was at home. Both were at the hospital where appellant was to furnish the blood for a transfusion to a relative. ■ The case is one on circumstantial evidence. There was found in appellant’s car which was at his house an empty five-gallon keg which bore the odor of whisky. Appellant had spent the day with Ritter and his wife at their camp on the bayou. Williams went to the camp to summons appellant to the hospital. Williams testified that as they were getting ready to leave the camp Ritter put a keg in appellant’s car and requested him to take it to town. Williams said he did not know if the keg found in appellant’s car was the one placed there by Ritter as he (witness) was not present when it was found. Appellant asked for a continuance for Ritter from whom it was expected to secure evidence that the keg found in appellant’s ear belonged to Ritter; that it was placed there by him and at his request was brought from his camp by appellant. This evidence, if believed, would have explained away any crim-inating circumstance of the keg in appellant’s car. While Williams’ evidence was to the same effect, we observe that he was related to appellant by marriage. This fact may have caused the jury to discount his evidence. The diligence to secure Ritter’s presence appears sufficient. We think appellant was entitled to his evidence, and that the refusal of the continuance was erroneous.

No one was at appellant’s residence when the officers arrived except Baugh, and appellant’s little son for whom Baugh was caring at appellant’s request until he and his wife returned from the hospital. One of the officers testified that as he approached the house he saw Baugh go into the kitchen and pour something from a jar into the kitchen sink and then, fill the jar with water. It was in evidence that the jar in question bore the odor of whisky. Baugh, testifying for appellant, denied that he poured any whisky in the kitchen sink.. Upon cross-examination he was asked, over appellant’s objection, if it was not a fact that while the officers were there he talked to some one over the telephone and said officers were then raiding the place and “had found some whisky out in the defendant’s yard, and that he had poured what there was in the house down the sink.” Upon appellant’s objection being overruled Baugh answered that he did talk to appellant’s wife over the telephone and told her the officers were raiding the place, but denied telling her that the officers had found whisky in the yard, or saying that he had poured any in the sink. The officers did not claim to have found whisky in appellant’s yard. They did find some in a vacant lot adjoining appellant’s place. Baugh claimed he did not even know that whisky had been fouiid anywhere when he had the conversation with appellant’s wife over the telephone. An officer was recalled by the state, and, over objection, testified that he heard Baugh say to some one over the ’phone; “They found some out at the back, but I poured out some that was in the sink.” Objections were urged to the cross-examination of Baugh and also to the officer’s testimony on the ground that the conversation over the “phone” was not in the presence or hearing of appellant, was between third parties, and could not be binding on appellant. The bill presenting the matter for review is qualified to show that the conversation was admitted because it was the state’s theory that appellant and Baugh were acting together, and because the state contended that the conversation was between Baugh and appellant and not appellant’s wife, and further, because-it tended to show the presence of whisky in defendant’s house. We find no support of the contention that Baugh’s conversation was with appellant. In Texas Jurisprudence, vol. 18, § 60, appears the following text: “The conversations and statements of third persons not made in the presence or hearing of the accused, and of which he is not shown to have had any knowledge or connection, are hearsay and inadmissible.” ■

As supporting the text, see Ballard v. State, 96 Tex. Cr. R. 98, 255 S. W. 1115; Patrick v. State, 45 Tex. Cr. R. 587, 78 S. W. 947; Joiner v. State, 89 Tex. Cr. R. 408, 232 S. W. 333; Smith v. State, 93 Tex. Cr. R. 529, 248 S. W. 685. The telephone conversation seems to have been admitted upon the question of appellant’s guilt. We find no instruction from the court attempting to restrict its use by the jury to any other purpose.- Appellant requested no limiting instruction presumably standing upon his contention that the evidence was inadmissible-for any purpose. It most certainly was not legal evidence on the question of guilt; that it<was harmful cannot be doubted, and in view of the unsatisfactory and inconclusive character of .other evidence in the record the conclusion'cannot be escaped that the testimony just discussed contributed largely to appellant’s conviction.

We do not base a reversal on the failure to limit the testimony-as no objection was urged to the charge for such omission.

In a vacant lot not belonging to appellant and some sixty or sixty-five feet from his residence the officers found under a tub a sack containing five and a half gallons of whisky in jars. Appellant was not shown to have exercised any control over such whisky and was never seen about it, nor in the vacant lot. No well-defined path led from appellant’s residence to the point where the whisky was found. Trails seem to have run in every direction through the vacant lot, one leading towards a church on an adjoining block. Houses were across the street from appellant’s residence. Witnesses testified that cars were frequently seen to stop at or near appellant’s house, but no evidence regarding any transaction of appellant with the occupants of such cars is found in the record.

In our opinion the evidence fails to measure up to that required in cases depending on circumstantial evidence. At most it raises only a suspicion against appellant,, but does not exclude every reasonable hypothesis save that of appellant’s guilt. See Mathis v. State, 100 Tex. Cr. R. 509, 272 S. W. 204; Albaneso v. State, 99 Tex. Cr. R. 108, 268 S. W. 158; Todora v. State, 117 Tex. Cr. R. 317, 36 S. W.(2d) 746; Chandler v. State (Tex. Cr. App.) 49 S.W.(2d) 778; Moore v. State, 91 Tex. Cr. R. 46, 237 S. W. 258; Ponton v. State, 99 Tex. Cr. R. 93, 268 S. W. 155. Many other authorities are cited in appellant’s brief, but we deem those referred to sufficient without burdening this opinion with others..

The judgment is reversed and the cause remanded.


text:
    DUE v. STATE.
    No. 15684.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    W. B. Thomas, of Groveton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Unlawfully carrying a pistol is the offense; penalty assessed at confinement in the county jail for a period of thirty days.

The offense is defined in article 483, P. C. 1925.

Prom the evidence it is made to appear that Evans, the sheriff of Trinity county, was called to the home of Willis Steele. He was accompanied by his son and Brunson, a constable. Information was given that there was a disturbance at the Steele home. Upon reaching it, some one remarked: “Yonder they go now,” pointing to a field where the appellant and Olgie Parker were walking down a public road which passed the home of M. B. Kee and proceeded on by the residence of L. L. Lee. The sheriff and his associates, upon receiving the information mentioned, pursued thfe appellant and Parker. As they were overtaken, the sheriff noticed that “they were staggering back and forth across the public road.” They were commanded to halt. The appellant obeyed, but Parker fled. He was pursued by the sheriff and one of his posse, while Brunson remained with the appellant. Brunson observed upon the appellant something bulky, and, upon investigation, found it to be a jar with a small quantity of whisky in it. The constable observed another bulky place on the appellant’s clothing. The appellant was then searched, and a pistol taken from him.

It seems that Parker and the appellant reached the home of Steele about 1 o’clock in the afternoon. While there, appellant made no display of his pistol. No warrant was possessed by the officers for the arrest of either Parker or the áppellant. Appellant had been arrested two days before a warrant was obtained. After retaining the warrant, it was returned reporting the appellant’s arrest.

Prom some source, not definitely shown by the record, the appellant had borrowed a pistol from Norman Trevathan on a Priday night, and was returning it on Sunday afternoon in accord with his promise; that, while on his way to the home of .Trevathan, appellant fell in company with Parker, and they went together to the residence of Steele, and stayed from the time of their arrival until about 4 o’clock in the afternoon; that, while there, the appellant made no display of his pistol. After borrowing the pistol, he took it home without stopping. He had not subsequently handled it until he picked it up to carry it back to the home of the man from whom he had borrowed it.

In his charge to the jury the court embraced the following instruction: “As a defense set up by the defendant is that he had borrowed the pistol in question on Friday night before with the promise to return the same on Sunday afternoon, when he was arrested. Now, if you believe from the evidence in this case that the defendant had borrowed the pistol, as is testified, and was returning the same, as testified to, you will acquit the defendant, and he is not required to travel the most direct route in making such delivery. But, in this connection, you are instructed that should you believe that defendant borrowed the pistol, as testified to upon his trial and was returning the same as testified to at the time he was intercepted by the officers, but that the evidence before you should show that while on his journey to return the pistol the defendant digressed from the common purpose of delivering the pistol and loitered along the way at any place and engaged in any matters foreign to and not pertaining to his business on his journey in delivering the pistol, he would lose his protection under the law and would be guilty of the charge placed against him, and if you so believe beyond a reasonable doubt, you will convict the defendant and assess his punishment as heretofore directed.”

By exception to the charge, the appellant challenges the instruction to the jury above quoted. However, it is thought that the paragraph fully protected the appellant’s rights as indicated in the various precedents. See article 483, P. 0., also Rosebud v. State, 87 Tex. Cr. R. 267, 220 S. W. 1003; Deuschle v. State, 109 Tex. Cr. R. 355, 4 S.W.(2d) 559; Veal v. State, 58 Tex. Cr. R. 340, 125 S. W. 919; Cordova v. State, 50 Tex. Cr. R. 353, 97 S. W. 87.

Appellant prepared a special charge which covers the same subject as that embraced in the court’s charge; namely, the circumstances under which the appellant would be' guilty if he digressed from his purpose in • returning the pistol. The court having substantially embodied the matter in the main charge, the special charge was properly refused.

Touching the matter of the arrest of which the appellant, complains, the subject seems not pertinent. The arrest resulted in the discovery of the pistol in the possession of the appellant. The appellant having put in evidence that he possessed a pistol and explained the purpose for which it was possessed, the matter of the discovery of the pistol by the officer has no important bearing upon the issues involved. See Benoit v. State, 117 Tex. Cr. R. 135, 36 S.W.(2d) 168; Johnson v. State, 118 Tex. Cr. R. 293, 42 S.W.(2d) 421; Reusch v. State, 119 .Tex. Cr. R. 112, 45 S.W.(2d) 209; Rippy v. State (Tex. Cr. App.) 53 S.W.(2d) 619 ; Spicer v. State, 119 Tex. Cr. R. 87, 46 S.W.(2d) 707.

The case of Deuschle v. State, supra, cites many authorities which are deemed the proper basis for upholding the paragraph of the court’s charge of which complaint is made, and as supporting the judgment.

No error having been presented by the record, the judgment is affirmed.


author: CALHOUN, Judge. MORROW, Presiding Judge.

text:
    GRAHAM v. STATE.
    No. 15340.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Rehearing Denied March 8, 1933.

      L. J. Bracks, of Hondo, and L. D. Hill, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The conviction was under article 359 of the Penal Code for the giving of a false certificate by a county clerk. The punishment assessed at confinement in the penitentiary for two years.

The record shows two orders in reference to change of venue, first from Uvalde county to Kendall county, and from Kendall county to Medina county.

It is alleged in the indictment thát the appellant was clerk of the county court of Uval-de county and did unlawfully and willfully give to Mrs. H. C. King, county treasurer of Uvalde county, Tex., on or about the 29th day of May,' 1927, a false certificate in writing, as follows:

“No. 21287 $1188.55
“The Treasurer of the County of Uvalde “State of Texas
“Will pay to J. W. Graham or order the sum of Eleven Hundred Eighty Eight and 55/190 Dollars out of the Imp — Fund, being the amount allowed by the County Commissioners Court of said County at their May Term, 1927.
“Witness my hand and seal of said Court at Uvalde, Texas, this 20th day of May, 1927.
“J. W. Graham, County Clerk. “For Trans. — Records T & Brank & Marks
“Min Book-—
“Page -
“-, Deputy
“[Seal]
“No. -
“Registered the - day of- 192—
“- — , County Treasurer.”

It is admitted by the appellant that he was clerk of the county court of Uvalde county on the 20th day of May, 1927. The state offered the record of accounts allowed for the May term, 1927, of the commissioners’ court of Uvalde county. The record showed that at the May term of the commissioners’ court in Uval-de county in 1927 a claim was presented by the appellant for $8.55 for transcribing record, brands, and marks, which was allowed by the commissioners’ court as appeared from the record of said meeting. The record further shows that no showing was made to the court or jury by the state or appellant by minutes of accounts allowed that there was any accounts presented, allowed, or approved for $1,188.55 at its May term, 1927. It is also testified by a state’s witness that he was familiar with the handwriting of the appellant, and the instrument set out in the indictment for $1,188.55 was signed by the appellant and the rest of said instrument was in appellant’s handwriting.

The witness B. W. Hillis testified that he was cashier of the Sabinal State Bank and he knew the appellant. He also identified the instrument set out in the indictment as one that he had received from the appellant through the mail, and he had sent said instrument to the Commercial National Bank of Uvalde, and when they received the money on it that it was credited to appellant’s account.

Mrs. H. C. King testified that she was county treasurer of Uvalde county in May, 1927, and that the warrant described in the indictment and offered in evidence, dated May 20, 1927, in the sum of $1,188.55, was presented to her as county treasurer and paid for the full amount on June 8,1927.

Green B. Penley, Jr., testified that he was county judge of Uvalde county and held that position in May, 1927; that he knew the appellant, who was county clerk of Uvalde county in 1927. He further testified that he had a recollection of an account being presented by the appellant for $8.55, for transcribing, at the May term, 1927, but the only time he had seen the warrant for $1,188.55 was when it was shown to him in the grand jury room in September, 1927. He also testified that no such account was approved or ordered paid by the commissioners’ court while he was in attendance upon the court.

Two other witnesses testified that they were members of the commissioners’ court of Uvalde county in May, 1927, and they had no recollection of the commissioners’ court allowing in the May term, 1927, any account of the appellant’s for $1,188.55.

The appellant did not testify nor offer any . evidence.

There is a hill of exception reserved to the action of the trial court in refusing to grant a new trial because of misconduct of the jury in referring to the failure of the appellant to testify, which occurred during their retirement and while they were considering their verdict. The court heard testimony as to the alleged misconduct of the jury and overruled the motion for new trial. Said testimony so heard is brought forward as part of the record in this case. The testimony of five of the jurors who sat in the case was heard on said issue.

The juror Binderly testified that they talked about appellant not being on the stand. He further testified as follows: “We said if he had got on the stand we might have had a better way to decide. I do not know that we had any discussion about the failure of the defendant to get on the stand, we just said that if he had gone on the stand we might have had a different idea.” He further testified that when the defendant’s failure to testify was mentioned, the foreman immediately called the attention of the juror making said statement to the fact that he did not have to testify and that that could not be considered.

The juror W. J. Brook testified that after the jury retired to consider their verdict in the case, the matter of defendant’s failure to testify was discussed two or three times and it was discussed before the verdict had been agreed upon. That this discussion was had on two or three occasions and he did not recall how many different jurors made reference to defendant’s failure to testify; that he remembered that some member of the jury did discuss that it was funny that defendant did not take the stand and testify, and that such discussion was had prior to arriving at a verdict. Said statement was not used as an argument to convince any of the jurors that he ought to vote guilty; that what he meant in saying that it was discussed was that some one made the statement that it looked funny defendant did not testify.

The juror Koenig testified that he couldn’t remember what was said in reference to defendant’s failure to get on the stand, but it was mentioned once or twice; that it was just mentioned that he did not get on the stand. This was before they arrived at a verdict; that he didn’t know what juror made the remark; that the foreman made the statement that the defendant’s failure to take the stand could not be considered and this was as far as the discussion went.

The juror Haby testified that it was mentioned that defendant did not get on the stand and testify; that this was mentioned once or twice prior to the time the verdict was agreed upon; that he didn’t know what juror made the remark, and when the remark was made that the foreman informed the jury that that matter could not be considered and that was as far as the matter was discussed; that the remark in reference to defendant’s failure to testify was a general statement and it occurred at least twice.

Alfred Brooks, foreman of the jury, testified that after the jury’s retirement to consider their verdict, he heard the remark made by some member of the jury to the effect that the defendant did not offer any testimony and did not himself testify, and he then told the juror making the remark' that defendant did not have to testify; that one juror, after the foreman had made the statement that the defendant did not have to testify, made the following remark: “It looks like he would have got on the stand.” That this was at the same time and he called their attention to the fact that defendant did not have to testify; this was before any ballot was taken. He further testified that it was never discussed but it was mentioned probably three times; the first two times by the same member of the jury, and right then he could not say who it was mentioned it again, but he heard it mentioned, but he did not hear the matter used as an argument of any juror to some other juror.

While the testimony of one of the jurors might tend to show that there was a discussion by the jurors of the accused’s failure to testify, the testimony of the other jurors tends to show that it was a mere reference to the fact that the accused failed to testify. This court has held that a mere reference to the fact that the accused failed to testify, by a juror, unaccompanied by any discussion in their retirement, is not in every case a ground for reversal. Leslie v. State (Tex. Cr. App.) 49 S. W. 73; Mason v. State (Tex. Cr. R.) 81 S. W. 718; Hammonds v. State, 114 Tex. Cr. R. 394, 23 S.W.(2d) 372; Vinson v. State, 96 Tex. Cr. R. 307, 257 S. W. 905; Dyer v. State, 96 Tex. Cr. R. 301, 257 S. W. 902. The opinion is expressed that the conclusion was warranted under the testimony of the jurors that if any reference to the matter was made it constituted a mere casual mention which was not followed by any discussion of appellant’s failure to testify, and further we are of the opinion that the trial court was warranted in finding that appellant’s failure to testify was not considered by the jury as a circumstance against him. There being a conflict in the testimony, as we view it, on this issue, and the testimony warranting the finding of the trial court on this issue, we would be unauthorized to order a reversal. The granting of, a new trial for misconduct of the jury is largely in the discretion of the trial court, whose action in refusing a new trial will not be disturbed in the absence of abuse of such discretion. Lamb v. State, 98 Tex. Cr. R. 358, 265 S. W. 1035; Williams v. State, 102 Tex. Cr. R. 624, 279 S. W. 462; Johnson v. State, 118 Tex. Cr. R. 454, 40 S.W.(2d) 111.

Appellant’s motion to quash the indictment contained sixteen objections urged jointly and severally, many thereof referring to related and overlapping issues. It is appellant’s contention, as we understand it, that the indictment is fundamentally erroneous and charges no offense under article 359, P. O., and that an offense under such statute can be committed only upon two false state of facts, each being a felony, to wit, certifying (a) that any person has done any act whatever, and (b) that such person is entitled to any right whatever; and that the indictment by averment has alleged the effect of the instrument made a basis of the alleged offense to mean and imply that an account had been allowed by the commissioners’ court, which averment (if an account had not been approved) does not state an offense known to the law within the purview of said article 359, the statute under which the purported indictment is predicated. Article 359 of the Penal Code provides: “If any such clerk [of a court] shall give a false certificate, stating that any person has done any act whatever, to which he has a right to certify, or that such person is entitled to any right whatever, when such clerk may by law give such certificate if the same were true, he shall be punished as directed in the preceding article.” The punishment for said offense is set out in article 358 of the Penal Code of Texas. The indictment charges in substance that “the appellant was the duly qualified and acting clerk of the county court of Uval-de county, Texas, and as such clerk did then and there unlawfully and wilfully give to ■ Mrs. H. O. King, county treasurer of Uvalde county, Texas, a false certificate in writing.” Following this averment, the false instrument is set out. Immediately following the instrument, we find this allegation: “Which said certificate was then and there given, stating that he, the said J. W. Graham, had performed the services of transcribing records, ‘T brands and marks and said account for said services had been allowed by the county commissioners of said county at their May term, 1927, to which matters contained in said false certificate, he, as such clerk, had a right to certify and might by law have given said certificates if said matters were true. Whereas in truth and in fact said matters contained in said certificate were and are false, in this, that the said account had not been allowed by the county commissioners court of said county at their May term, 1927, nor at any other time, and the said J. W. Graham, county clerk as aforesaid, at the time of making and giving said certificate knew that the same was false.”

- The opinion is expressed that, considered-in its entirety, it is clear that the only allegation that the instrument set out in the indictment as being false was that the said account had not been allowed by. the county commissioners’ court of Uvalde county at their May term, 1927, nor at any other time. The other element of the statute nowhere enters into the offense charged, and it is • therefore not duplicitous as contended for by the appellant. We think the indictment sufficient and the motion to quash same was properly overruled. See Wilson’s Tex. Crim. Forms, § 167.

It is contended by appellant that the venue is not proven by sufficient evidence. The indictment alleged the commission of the offense in Uvalde county, .and appellant contends that the showing is not sufficient that the instrument was actually filled out in the comity of Uvalde, and that it was reversible error for the trial court to overrule appellant’s motion for an instructed verdict because of the failure to establish venue as alleged in the indictment. Considering the facts proven together, we believe the evidence reasonably sufficient to show that the offense was committed in the county alleged. It is not required that venue should be established by direct testimony nor that it should be proven beyond a reasonable doubt. Yenue may be proven by circumstantial evidence, as any other fact, and if the evidence be reasonably sufficient to satisfy the jury that the offense was committed in the county alleged, their finding on that issue will not be disturbed on appeal. Branch’s Ann. P. O. § 451; Belcher v. State, 71 Tex Cr. R. 646, 161 S. W. 459; Hoffman v. State, 12 Tex. App. 406.

Appellant contends that the court erred in the submission of paragraph 2 of his main charge, which is as follows: “ You are instructed that the instrument of writing described in the indictment is such a certificate as comes within the purview of the law, and that a clerk of a county court has the lawful authority and right to give such certificate, if the matters therein stated are true.” It appears to be the theory of the appellant that the issuance of the warrant complained of (set forth in the indictment in hsec verba) was not and did not constitute the offense of the issuance of false certificate within the purview of article 359 of the Penal Code. The instrument set out in the indictment was shown to be entirely in the appellant’s handwriting and signed by him and was a warrant drawn on the county treasurer of Uvalde county for $1,188.55, bearing the seal of said county and signed by appellant as county clerk and purported to be by authority of the commissioners’ court of said county. The county clerk is ex of-ficio clerk of the commissioners’ court. Article 1940, Revised Civil Statutes. All war- , rants issued against the county treasurer shall be signed and attested by the clerk or judge of the court issuing same, under his official seal. Article 1643, Rev. Civil Statutes. The courts have held that a copy of an order of the commissioners’ court allowing a claim certified and attested by the clerk, under the seal of the court, is sufficient to justify the county treasurer in paying the amount from county funds. Callaghan v. Salliway, 5 Tex. Civ. App. 239', 23 S. W. 837. We are therefore constrained to hold that the trial judge was not in error in his instructions to the jury complained of.

Appellant also complains of the want of sufficiency of the evidence to warrant and sustain a conviction. A review of all the evidence before us leads this court to believe that the evidence is amply sufficient to support the verdict and judgment in this case.

Finding no error that would call for reversal of this case, 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.

MORROW, Presiding Judge.

Touching the criticism of the indictment, we adhere to the conclusion stated in the original opinion.

Concerning the alleged misconduct of the jury, the following observations are made:

The language used in article 710, C. C. P. 1925, reads thus: “But the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.” The construction put on this statute has been held applicable to jurors when, in their retirement, it was shown by their conduct that the silence of the accused was taken as a circumstance against him. The bare allusion or reference to the failure of the accused to testify has been held not a violation of the statute. The question on appeal is whether the facts make evident that the appellant’s failure to testify was taken by the jury as a circumstance against him. See Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 364. On appeal, the decision of the trial judge will prevail when the evidence is conflicting as to whether the jurors disobeyed the statute. A reversal will not result unless the evidence heard on motion for new trial convinces this court that, in overruling the motion, the trial court abused its discretion. See Serivnor v. State (Tex. Cr. App.) 50 S.W.(2d) 329, 330. See page 332 for citation of authorities.

Statement by. the jurors, as in the present case, that the fact that the accused did not testify was “discussed,” is regarded as a mere conclusion. It states no detail. It suggests debate, exchange of reasons, disputation, examination in detail. See Webster’s New International Dictionary, p. 638; Corpus Juris, vol. 18, p. 113S. The term “discussed,” as it appears in the present record, conveys to this court no information as to the words, argument, or illustrations made by the jurors, if any were made, and if there was argument, its nature, whether for or against the accused. This court, in order to overrule the trial judge, should have more information than can be obtained from the mere statement that the silence of the accused was discussed by the jurors. The presence of the trial Judge at the hearing of the motion gaye him knowledge of all the language used, while in the record there is but the descriptive statement that there was “discussion.”

Applicable, we think, is the statement of this court in Smith’s Oase, 52 Tex. Or. R. 344, 106 S. W. 1161, 1165, 15 Ann. Oas. 357, from which we quote as follows: “We think the true rule is that where, as in this case, the testimony supports the Verdict, and the charge of the court properly submits the case to the jury, that a verdict ought not to be set aside for every incidental and casual mention of a former trial or a former conviction, and that in no case should it he set aside in a case tried according to law where the conviction is supported by the testimony, unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant’s case.” See, also, Scrivnor v. State (Tex. Cr. App.) 50 S.W.(2d) 329.

The motion for rehearing is overruled.