author: HARVEY, Presiding Judge. CURETO'N, Chief Justice.

text:
    JACKSON v. STEELE.
    No. 1608-6011.
    Commission of Appeals of Texas, Section A.
    Feb. 15, 1933.
    Bonner, Bonner & Childress, of Wichitai Falls, for plaintiff in error.
    Kilgore & Rogers, of Wichita Falls, for defendant in error.
   HARVEY, Presiding Judge.

This suit was brought by the plaintiff in error, J. L. Jackson, Jr., trustee in bankruptcy, to recover of Oliver O. Steele, doing business under the name of Oliver C. Steele Manufacturing Company, the amount of an alleged preferential payment, in the sum of $4,509, made to Steele by the bankrupt corporation, the Wichita School Supply Company. At the trial of the case, the court peremptorily instructed a verdict against the trustee, and judgment was entered accordingly. The Court of Civil Appeals affirmed that judgment [37 S.W.(2d) 762], and the trustee sought and was granted the wirit of error.

The facts, so far as need be stated, are substantially as follows:

The School Supply Company was engaged in business at Wichita Falls for a number of years prior to June 18, 1929. On that date, a petition for involuntary bankruptcy was filed against the company, in the federal bankruptcy court at Fort Worth. In its answer to the petition, the company admitted insolvency, and in July, 1929, was duly adjudged bankrupt. On March 30, 1929, the alleged preferential payment was made. At that time the supply company owed Steele an indebtedness of approximately $17,000, which was some two or three years past due. On the last-mentioned date, there were numerous other debts of the company which were past due. During the entire period of some three or four years prior to March 30, 1929, the company, on numerous occasions, failed to pay, when due, debts incurred by the company in carrying on its business of selling school supplies. A large number of those claims, which accrued during that time, were not paid until they had been placed in the hands of an attorney for collection, and a; number of them were paid only after suit thereon was brought. In short, for some three or four years before the filing of the petition in bankruptcy against the company, the latter had been unable to pay its debts as they fell due in the ordinary .course of business. i Within four' months prior to the filing of the petition in bankruptcy, the company paid, in whole or in part, a large number of past-due unsecured claims held by various creditors, besides Steele. The aggregate amount paid on those claims at various times during the four months’ period was, im round numbers, $11,464. Steele’s place of business was in the; state of Indiana, and on March 30, 1929, the payment of $4,500 was made to him there. The payment was made by check, which was promptly met. During the course of some three or four years next preceding the date of the payment, Steele had been doing business with .the supply company, in the way of selling goods to the company; and for some time before March, 1929, his business with the company had been conducted on a cash basis. It was shown by the testimony of the witness McMurray, who was an accountant and who had been the office manager for the suppiy company while the company was a going concern, that the business records of the company reflected that, on March 30, 1929, the assets and liabilities of the company were as follows: Assets — cash on hand, $4,048; merchandise,. $16,767; office furniture and fixtures' $6,000; notes and bills (mostly school warrants), $49,945; accounts receivable (from customers) $6,305; accounts‘receivable (for commissions), $16,966; sample accounts, $4,-000; judgment against Stafford Manufacturing Company and accrued interest, $19,161. These items aggregate $123,192. The witness, however, gave testimony which tended to show that the fair value of the accounts for commissions was 30 per cent, less than the face value as shown by the company’s records. The witness also testified that, allowing for depreciation, the office furniture and fixtures were worth $2,000. This testimony would show the item of commission accounts to amount to $11,876, and the item of office furniture and fixtures to amount to $2,000; and thus show that instead of $123,192, as disclosed by the company records, the aggregate assets of the company on March 30,1929, amounted to $114,102. It is also shown in testimony that the company owned two automobiles not disclosed by the company’s books. The value of these automobiles does not appear. The liabilities of the company, on the date mentioned, as shown by the company’s records, were as follows: Unsecured debts: Accounts payable, $38,168; trade acceptances, $14,129. Secured debts (secured by school warrants), $47,369. Total amount of unsecured and secured debts, $99,566. Except as hereinabove stated, there was no testimony to show the nature and amount of the assets of the supply company on March 30,1929, or the value thereof. The witness did, however, testify to the bald fact that the Stafford Manufacturing Company, against whom the supply company held the judgment hereinabove mentioned, had gone into the hands of a receiver 'some time prior to March 30, 1929. The grounds for the receivership or the condition of the affairs of the Stafford Manufacturing Company, relative to the value of the judgment mentioned, does not in any wise appear in testimony. The amount and character of the assets of that company, or of its debts, do not appear. What has been said discloses the substance of all testimony that bears on the question which we shall now discuss. No question of fraud is involved in the case.

In order for the payment of the $4,-500 by the supply company to Steele to constitute a preference under the Federal Bankruptcy Act (11 USCA § 96), the supply company must have been insolvent at the time the payment was made. With proof of this latter fact lacking, it was the duty of the trial court to instruct a verdict against the trustee. The burden of proof of insolvency of the supply company, at the time mentioned, was on the trustee. 2 Collier on Bankruptcy (14th Ed.) § 60, pp. 1248-1328; 4 Remmington on Bankruptcy (3d Ed.) §§ 1729-1829. “Insolvency,” within the meaning of the Bankruptcy Act, is defined in the act as follows: “A person shall be deemed insolvent within the provisions of this title whenever the aggregate of his property * * * shall not, at a fair valuation, be sufficient in amount to pay his debts.” 11 USCA § 1(15). It is clear to us that the testimony to this case does not raise the fact issue of the supply company being insolvent, as thus defined, when the payment in question was made. Eor aught that appears in testimony, the aggregate amount of assets of the company, at a fair valuation, was sufficient to pay the company’s debts. There is no testimony at all to show that the aggregate of the company’s property, at a fair valuation, was insufficient in amount to pay the debts of the company. The trial court did not err in instructing a verdict against the trustee.

Counsel contends, however, that the trial court erred in excluding from the jury, on the objection of the defendant in error, the testimony of the plaintiff in error, Jackson, to the effect that, after the latter was appointed trustee of the bankrupt estate, he sold the stock of merchandise and office fixtures for $4,009, and the total. amount received by him from this source, and from collections on accounts, amounted to $4,893.39; and, except what might be collected from the Stafford Company judgment, nothing further could be collected. Granting that the court erred in excluding this testimony, the error would be harmless. As already shown, no testimony was adduced which tended to show that the assets of the company, at a fair valuation, were insufficient in amount, on March SO, 1929, to pay the debts of the company. The proffered testimony would not, if same had been admitted in evidence, have raised a fact issue in the last-mentioned respect. Lib; erty National Bank v. Bear, 265 U. S. 365, 44 S. Ct. 499, 68 L. Ed. 1057.

Counsel further insists that the trial court erred in refusing to allow the trustee to testify that, according to the best estimate of the trustee, based “on all information he had,” there would be no more than 5 per cent, of the amount of the judgment against Stafford Manufacturing Company collected. The bill of exception relating to this matter is the same bill which relates to the matter disposed of next above. The bill shows that the witness was asked “to state to the jury the amount he had on hand and the amount that came to his hands, whereupon the defendant objected to the same as being immaterial and irrelevant.” The objection was sustained. The bill, after reciting what the witness would have testified respecting the sale of stock of merchandise, receipts by the trustee, etc., further recites that the witness would have testified, as stated above, regarding the Stafford Company judgment. In the first place, the matter last mentioned was not responsive to the question propounded to the witness; and in the second place, the bill does not disclose the nature or source of the “information” upon which the witness proposed to base his estimate of the amount collectible from the Stafford Company judgment. No error appears in respect of this matter.

Still another complaint of the trusted will be noticed. While the witness McMur-ray was on the witness stand, counsel for the trustee asked him to state, from his knowledge of the condition of the affairs of the supply company, and from the condition of the affairs of the company, as reflected by the business records of the company, whether the company was insolvent when the $4,500 was paid to Steele. The defendant objected to the question because same called for a conclusion of law. The trial court properly sustained the objection. The term “insolvent”' has different meanings. As applied in some cases, the term means that a person is unable to pay his debts in regular course of business ; whereas the statute, which governs the present case, prescribes an entirely different meaning. If, in a ease like the present one, it would ever be permissible for a witness to state his opinion as to the bankrupt being insolvent at the time the alleged preference occurred, it is certain that he should not be permitted to do so unless he first state facts which would themselves disclose such insolvency within the meaning of the statute. Magee v. Paul, 110 Tex. 470, 221 S. W. 254. We do not mean to say that the witness Mc-Murray, in response to proper interrogation, could not have stated his opinion as to the insufficiency, in amount, of the supply company’s assets on March 30, 1929, at a fair valuation, to pay the company’s debts. That is a matter which- we are not called on to consider or decide, and we imply no conclusion in that respect.

We recommend that the judgment of the trial court, and that of the Court of Civil Appeals affirming same, be affirmed.

CURETO'N, Chief Justice.

Judgments of the district court and Court of Civil Appeals are affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: RYAN, Judge.

license: Public Domain

text:
    FUQUA v. MAPES.
    No. 1371—5957.
    Commission of Appeals of Texas, Section B.
    Feb. 15, 1933.

      Carl Gilliland, of Hereford, for plaintiff in error.
    Charles H. Dean, of Dimmitt, for defendant in error.
   RYAN, Judge.

Defendant in error, C. J. Mapes, sued J. 11. Fuqua, plaintiff in error, in the county court of Castro county to recover on a promissory note dated January 30, 1920, due on or before July 30, 1929, in the principal sum of $450, with interest at the rate of 10 per cent, per annum from its date, and the usual 10 per cent, attorney’s fees, if placed in the hands of an attorney for collection. Said note also provided that all past-due interest should bear interest thereafter at the rate of 10 per cent, per annum.

To secure payment of said note, the plaintiff in error (defendant below) executed a chattel mortgage lien on certain live stock therein described.

The prayer was for Judgment for the debt (principal, interest, attorney’s fees), and foreclosure of the chattel mortgage lien.

The defendant below answered by general demurrer, general denial, and specially, that said note was given as the consideration for the purchase of one bull which he was in-’ duced to purchase by false and fraudulent representations, wherefore the consideration for said note failed.

The defendant below also filed an admission of plaintiff’s cause of action as set forth in the original petition, except in so far as it may be defeated in whole or in part by the facts alleged in his answer constituting a good defense, which may be established on the trial (rule 31 for district courts).

The trial court submitted to a jury only the one issue touching failure of consideration for the note sued on, and, this being resolved in favor of plaintiff below, entered judgment for him for the amount of the debt, as sued for, with interest from date of judgment and costs, and awarded execution therefor. The judgment did not foreclose the mortgage lien.

In the Court of Civil Appeals, as in the application for writ of error to the Supreme Court, plaintiff in error, Füqua, assigned the single ground of error, viz., that the trial court erred in overruling his general demurrer to the petition on the proposition that plaintiff below failed to allege the value of the live stock upon which he sought foreclosure of the mortgage.

The Court of Civil Appeals affirmed the judgment of the trial court on the ground that no .jurisdiction was exercised over the mortgaged property; only a personal judgment having been rendered, 40 S.W.(2d) 847.

Opinion.

Upon general demurrer, every reasonable intendment arising upon the pleading excepted to, from the allegations contained in it, must be indulged in favor of its sufficiency. District court rule 17; Wynne v. National Bank, 82 Tex. 378, 17 S. W. 918; Gulf, W. T. & P. Railway Co. v. Montier, 61 Tex. 122; Garrett v. Kelley (Tex. Civ. App.) 6 S.W.(2d) 414; Northwestern Nat. Insurance Co. v. Woodward, 18 Tex. Civ. App. 496, 45 S. W. 185; Knoohuizen v. Nicholl (Tex. Civ. App.) 257 S. W. 972, 974. As said in the latter case: “The rule is that after indulging all intendments in favor of the pleading unless it then plainly appears from the allegations that the court is without jurisdiction * * it should retain jurisdiction. * * * This is the rule applied by the Supreme Court and by this court in cases appealed from county courts. Pecos & N. T. Railway Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103; Underwriters v. Bank (Tex. Civ. App.) 192 S. W. 1098.”

In Hill v. Preston, 119 Tex. 534, 34 S.W.(2d) 780, 783, it is announced: “In passing upon the petition as tested by the general demurrer, the court should consider every thing as properly alleged which by reasonable construction is embraced within the allegations contained in the petition. If the petition does not contain sufficiently specific allegations with reference to any issue, the objection thereto may be made by means of a special exception.”.

When tested by a general demurrer, the pleading will be given the most reasonable intendment in favor of its sufficiency. Gorham v. Railway Co., 41 Tex. Civ. App. 615, 95 S. W. 551.

This brings ns to the inquiry, whether the petition sued on sufficiently alleges jurisdiction in the county court as to the value of the mortgaged property. It is conceded that the county court had jurisdiction as to amount of the debt sued for.

The petition, after averring the execution, delivery, and nonpayment of the note sued on, then averred the execution and delivery of the chattel mortgage in question, and defendant then and there warranted that there was no prior lien on any of said property, and that said property was of the reasonable, aggregate cash value of $1,000.

The chattel mortgage is then set out in hsec verba; it contains this statement, after describing the property: “Together with all increase thereof and upon which ‘there is no proper lien; said property is of the reasonable aggregate cash value of one thousand dollars.”

We think this allegation in the petition in connection with the chattel mortgage itself carrying the defendant’s admission of the value of the property is sufficient, under the authorities, in the absence of a plea to the jurisdiction, or a special exception on the question of value. Ferguson v. Rhoades Drilling Co. (Tex. Civ. App.) 271 S. W. 155; T. & N. O. R. R. v. City of Beaumont (Tex. Civ. App.) 285 S. W. 944.

The statement that defendant warranted the property as of a certain value necessarily carries the intendment that it was of that value.

While it is true that the chattel mortgage copied in the petition, if treated as an exhibit, cannot supply the omission of a necessary allegation, yet it can cure a defective allegation; and, when read in the light of the exhibit and aided by it, if the reasonable intendments of the pleading and the exhibit meet the requirements of the law, then such pleading will be held sufficient. T. & N. O. R. R. v. City of Beaumont, supra; Milliken v. Callahan Co., 69 Tex. 205, 6 S. W. 681; Wynne v. Bank, 82 Tex. 378, 17 S. W. 918.

We think jurisdiction of the county court was sufficiently aUeged in the petition, and, that being the only question raised by plaintiff in error, we recommend that the judgments, of the county court and Court of Civil Appeals be affirmed, but for the reasons above given.

GREENWOOD and PIERSON, JJ.

Judgments of the trial court and the Court of Civil Appeals are affirmed.

CURETON, C. J., not sitting.


author: CHRISTIAN, Judge.

text:
    SAPP v. STATE.
    No. 15806.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    McLemore & Ivy, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

The record is before us without a statement of facts or bills of exception. No question is presented for review.

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.


author: CHRISTIAN, Judge. MORROW, P. J.

text:
    MAZUREK v. STATE.
    No. 15546.
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Rehearing Denied Feb. 22, 1933.
    W. S. Ethridge, of Bandera, Robt. I. Wilson, of Kerrville, and L. J. Brueks, of Hondo, for appellant.

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

The offense is theft of sheep; the punishment, confinement in the penitentiary for two years.

The state relied upon circumstantial evidence. We are unable to agree with appellant’s contention that the evidence fails to meet the measure of the law.

J. H. Bruce, the injured party, and John Mazurek, the brother of appellant, owned adjoining pastures. On May 21, 1931, Mr. Bruce had fourteen head of sheep in a field which was separated from John Mazurek’s pasture by a wire fence. Late in the evening of May 21st, Mr. Bruce’s son, who had gone after the sheep, returned with only thirteen head. One of these animals had been shot in the face with small shot, indicating that a shotgun had been used. Early the next morning Mr. Bruce went to the place where his sheep had been ranging, and found that a sheep had been put over the fence into John Mazurek’s pasture. There was some wool on the wire and blood on the ground. After the sheriff had been called upon, a further investigation was made. A short distance from the fence Mr. Bruce and the officers found where a sheep had been dressed. The hide had been stripped down seven or eight times. Placing the strips together, Mr. Bruce’s brand was plainly visible. It appeared that the animal had been dressed under a live oak tree. Signs on the tree indicated that a rope had been put over a limb. There was blood on the ground under the tree. The hide was discovered about forty-five steps from where the animal had been dressed. The entrails and feet were found under a cedar bush twenty steps away. The place where the animal had been dressed was about two hundred fifty steps from that part of the fence where the wool was found on the wire. Near the place where the animal had been put through the fence the parties found some small shot in a fence post. Twelve steps away they discovered a 410 empty shotgun cartridge. The parties failed .to find the head of the sheep. A witness who was shearing sheep for Mr. Bruce met appellant on the afternoon of May 21, 1931, coming from the direction of the place where the sheep had been butchered. Appellant was about half a mile from the place where blood was discovered on the fence. He was going toward John Mazurek’s house. At this juncture we quote the testimony of the witness as follows: “I was pretty close to him, I guess, before he saw me. He had something on his back; it looked like a sheep to me; he also had a gun and a x'ope; that gun looked like a shotgun, a 410,— looked like to me; it was a small shotgun. I do not know what he said when I met him —we just were talking; he said T got me a fine buck’ — something like that. I went back to the house with him, John Mazurek’s house. When I got over to John Mazurek’s house with Kasper, there was a boy and a girl there, might have been two boys, I do not know, might have been some of John Ma-zurek’s children. I think they asked him: did you get a turkey, — something like that, and he said no — he says, I did not go after a turkey — went after a mutton, something like that.”

The witness testified, further, that he had handled sheep and goats all his life and believed he knew “sheep meat from deer meat.” He said: “The meat Kasper Mazurek had on his shoulder I took to be sheep meat.” He said, further, that the rope appellant was carrying was long. It appears from the testimony that appellant hung the meat on the yard fence at his brother’s house. The witness testified that appellant was not trying to hide the meat when he saw him. He said, further, that “the hide nor the head nor the feet” were on the animal appellant was carrying. Touching the amount of meat that appellant had, the witness testified as follows: “As to how much meat he had, — -well he had the whole thing. Xes, I mean he had the four quarters.”

John Mazurek owned sheep which ranged in his pasture.

The day after the theft appellant was arrested and carried to John Mazurek’s house. He was kept outside while the officers went into the house. John Mazurek’s young son, upon seeing the officers, went toward the barn with something in a sack. The officers later went to the barn and found a sack of “sheep meat.”

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, P. J.

In the motion for rehearing the sufficiency of the evidence to support the verdict is challenged. The cases cited by the appellant have been examined and the evidence reviewed. We are constrained to regard the evidence sufficient to support the verdict.

The motion is overruled.


author: CALHOUN, Judge. MORROW, Presiding Judge.

text:
    DANIEL v. STATE.
    No. 15482.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    Rehearing Denied Feb. 22, 1933.
    Ashworth, Crisp & Ashworth, of Kaufman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Selling liquor is the offense; the punishment, one year in the penitentiary.

Two peace officers, J. W. Tidwell and H. F. Steifer, testified that Charlie Harris, the man to whom the appellant was alleged to have sold the liquor, lived on South Delphine St. in Terrell, Tex.; that Charlie Harris, his mother, and his brother lived there; that about 8:30 or 9 o’clock at night they went to Harris’ house and waited there about 15 or 20 minutes; that the defendant, Wyatt Daniel, drove up in his car. They knew the appellant at the time, and knew his car. They further testified that, when appellant drove up to the house, he did not stop his car out in the street, but made a little circle and stopped about two feet from the front porch. When the appellant stopped his car, the said Charlie Harris came out and defendant handed him a paper sack, and Harris handed appellant $5 and appellant gave him back two $1 bills. One of the officers testified that, when Harris received the paper sack he went into the house and put the sack on a machine, and he, the officer, made an effort to get the sack, and it was broken in the struggle that ensued. Both officers testified positively that it was whisky that was contained in the fruit jar in the sack. The effect of the other officer’s testimony is that in the struggle between the officer and Harris the sack fell to the floor and Mrs. Harris, the mother of Charlie Harris, kicked it against the bedpost, where it was broken. By and with the consent of the appellant, the officers searched his automobile and found on his person ji $5 bill and also some other bills. The officers than arrested appellant.

The appellant testified in his own behalf, and admitted his presence at the time and place in question, but said he was there for the purpose of collecting a debt for $3 which Harris owed him, and when Harris gave him the $5 to pay him, Harris told the appellant that he could not pay him but $2.50 out of the $5 bill, and the appellant stated to the said Harris that he did not have the change, and gave him back $2 and said he would give him the 50 cents the next day. He denied delivering Harris any whisky or that he sold Harris any whisky. Appellant was corroborated by his nephew who was riding with him at the time in the car to the effect that he did not deliver a sack 'containing whisky to the said Harris, but the transaction involved only collection of money owed appellant by the said Harris.

Two bills of exception appear in the record. Bill of exception No. 1 complains of the following statement of the assistant county attorney in his argument to the jury:

“Gentlemen of the Jury, you know and I know why J. W. Tidwell and H. F. Steifer went down to Mrs. Harris’ house that night, you know that they didn’t go just to be going and I tell you that they went down there and sat on the negro’s front porch in front of old lady Harris’ house for the purpose of catching this defendant, Wyatt Daniel, deliver whisky at Mrs. Harris’ house and they would not have gone down there to catch Wyatt Daniel if they had not had some information that he would be there with some whisky.”

To this language counsel for appellant objected and excepted, giving as his reasons that said argument was not warranted by the evidence and was entirely outside of the record; that said statements so made were hurtful to the rights of defendant and calculated to mislead the jury and cause them to believe-that said Steifer and Tidwell had received information that the said defendant would go to said house on said night and deliver liquor to some person at said place, and said argument was highly prejudicial. The hill further shows that the court overruled said objection, and said argument was permitted to go before the jury, to which defendant then and there excepted. The record shows that the said Tidwell and Steifer were the two officers who testified for the state to the effect that they had gone to said house, and after ten or fifteen minutes saw the appellant drive up in his car and deliver whisky to said Harris and receive pay therefor.

In permitting the argument, we are of the opinion that the trial court did not err, for the reason that the argument c'omplained of was a reasonable deduction from the testimony adduced on the trial, and counsel for either side had the right in their argument to the jury to draw reasonable deductions from the testimony adduced on the trial. Branch’s Ann. P. 0. § 370; Cooper v. State, 66 Tex. Cr. R. 441, 147 S. W. 273, 275; Grantland v. State, 65 Tex. Cr. R. 639, 146 S. W. 196; Morrison v. State, 40 Tex. Cr. R. 496, 51 S. W. 358. While nothing in the trial of the case should be done or said, if it can be avoided, that is calculated to prejudice the rights of defendant or prejudice him in the eyes of the jury, granting that the argument should not have been made, it is not made to appear from said bill or from the record that the argument was of such character that injury would result to appellant by reason thereof. The punishment assessed by the jury was the minimum punishment, and we are unable to agree with the appellant that the assistant county attorney’s argument would warrant a reversal of this case in the light of all the evidence. The facts and surroundings of the particular case should be looked to in determining the effect of an argument complained of. The same language under a certain state of facts might be highly prejudicial, and not so regarded under other circumstances. Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 9 S.W.(2d) 358, 60 A. L. R. 290; McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 172.

Bill of exception No. 2 shows that among grounds set up by the appellant as grounds for new trial was that of newly discovered evidence, to wit, the testimony of Mrs. Charlie Harris, whose affidavit was appended to appellant’s motion for new trial, and wherein she stated in substance that there was no light of any character in the north room, and that the door entering the north room was fastened with a bar, and was not opened on the occasion of the arrest of the appellant, and she did not own any character or kind of machine, and there was none in the house on the occasion of the arrest of the appellant; that she did not go into the north room on said occasion and did not kick a fruit jar containing liquor against the bedpost or any object on said occasion; that the first time she knew of the presence of the witness Tidwell (one of the arresting officers) was when she awoke and the witness Tidwell and her son, Charlie Harris, were on the floor in her bedroom in a fight; that, when she awoke, she saw blood on her son, and she immediately fainted and did not know what transpired thereafter, but there was no whisky in her home on said occasion and no scuffle between herself and her children with the witness Tidwell over a package containing a fruit jar or any other substance. .The affidavit further showed that she had never told the appellant or his attorney of the facts contained in the said affidavit .until a few days after the appellant had been tried and convicted.

. There is an entire absence in the record of any diligence on the part of the appellant to secure this testimony and having it upon the trial of the case. The appellant must necessarily have known that the witness was present on the occasion. It was not shown that he interrogated her or tried to find out what her evidence might be. We therefore deem it unnecessary to determine whether the alleged newly discovered testimony is material. The mere fact that it may have been unknown to appellant or his counsel until after the trial and that Mrs. Harris did not make known to them what she knew until after the trial did not make this evidence newly discovered where no diligence was used to ascertain the facts. Branch’s Ann. P. 0. § 198; Harris v. State, 117 Tex. Cr. R. 201, 35 S.W.(2d) 1046. It was not only incumbent upon the appellant to show the trial court that the new testimony had come to his knowledge since the trial, but it was further necessary to show that it was not owing to a want of dire diligence that it was not discovered sooner. Branch’s Ann. P. C., supra ; Koontz v. State, 41 Tex. 570; Dansby v. State (Tex. Cr. App.) 53 S. W. 105. This the appellant failed to do.

The judgment is affirmed.

PER OURIAM.

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.

A careful re-examination of the record in the light of the appellant’s motion for rehearing leads us to the conclusion that the proper disposition of the case was made in the original opinion.

.The motion is overruled.


author: HAWKINS, Judge. LATTIMORE, J.

text:
    CRENSHAW v. STATE.
    No. 15509.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    Rehearing Denied Feb. 22, 1933.
    Adams & McAlister, of Nacogdoches, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for possessing a still and equipment for the manufacture of intoxicating liquor; punishment being one year in the penitentiary.

Appellant and his mother lived on a farm which they jointly owned. Some three or four hundred yards from their residence and across a railroad therefrom, there was a house which was supposedly used for storing ■ feedstuff and farm tools.

Without a search warrant two officers went on the premises belonging to appellant and his mother, and, when within about sixty yards of this house, they heard a “lumbering” noise therein. Appellant came out of the house ranning, having in his hands a copper pot of about twenty gallons capacity. It had a faucet about two inches from the bottom. Appellant ran some two hundred and fifty or three hundred yards with this pot before being overtaken by the officers. A negro by the name of Jeff Tudman also ran out of the house with a five-gallon keg of whisky, which he dropped after going about eight or ten steps from the door. The negro got away, and was a fugitive at the time of appellant’s trial. The officers described in detail what they found in the house. It is not necessary to enumerate the articles. They testified that, together with the vessel which appellant ran away with, the equipment constituted a complete still for making whisky. Appellant opposed the officers’ evidence on the ground that they had no search warrant, and that the entry upon his land and the search of the house in question was in violation of his constitutional and statutory rights to be free from unreasonable searches and seizures. In his brief appellant expresses the opinion that this court is in error in Wolf v. State, 110 Tex. Cr. R. 124, 9 S.W.(2d) 350; Greenwood v. State, 110 Tex. Cr. R. 478, 9 S.W.(2d) 352, and Worth v. State, 111 Tex. Cr. R. 288, 12 S.W.(2d) 582. The cases mentioned have been followed in numerous other opinions, among them being January v. State, 117 Tex. Cr. R. 223, 34 S.W. (2d) 1097; Robie v. State, 117 Tex. Cr. R. 283, 36 S.W. (2d) 175; Turner v. State (Tex. Cr. App.) 20 S.W.(2d) 764; Melton v. State (Tex. Cr. App.) 49 S.W.(2d) 803. The searches were upheld in the cases mentioned, on the ground that they were not unreasonable. We see no necessity for again reviewing the question or of deciding whether the principle upon which they were predicated is applicable in the present instance. As we understand the record, that question passes out of the case upon the proposition now to be discussed.

Appellant testified as a witness in his own behalf. His evidence on direct examination was to the effect that he had gone to the house where the still was in operation for the purpose of finding the negro Jeff Tud-man, and ascertain why he had not driven the cattle up to be dipped. Pie admits that he discovered, before getting to the house, that the cattle had been dipped that morning, but that he still continued his search for the negro. He said: “Well, I went over there, and there was a kettle or distill, like Mr. Spurgeon and Mr. Cook said was there, and it was making whisky.”

Spurgeon and Cook were the officers whose testimony appellant had sought to exclude. Appellant gave the same testimony which came from the officers. Under these circumstances it would not call for a reversal even had the officers’ evidence been improperly received. Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169; McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54; Machado v. State, 112 Tex. Cr. R. 538, 17 S.W.(2d) 1060; Flower v. State, 113 Tex. Cr. R. 69, 18 S.W.(2d) 659; Reusch v. State, 119 Tex. Cr. R. 112, 45 S.W. (2d) 209; Moss v. State (Tex. Cr. App.) 50 S.W.(2d) 835; Schaefer v. State (Tex. Cr. App.) 53 S.W.(2d) 302. Only a few of the cases holding as indicated are cited, .but in them others will be found collated.

Appellant disclaimed any interest whatever in the still and equipment, and explained his presence as heretofore stated, and claimed that the negro Tudman was alone responsible for the operation of the still. In this connection appellant also testified, that although he had no interest in the still and equipment, when he saw the officers approaching he “grabbed” up the vessel in which the mash was cooking, catching it by the faucet in order to throw out the contents. Although the vessel was “red hot” and “burned his hands severely,” he carried it some three or four hundred yards, and says, “when he came to himself he threw it down.” The court charged on principals. The charge was objected to on the ground that it contained no instruction on the converse of the law of principals, and because it failed to submit appellant’s affirmative defense. In paragraph six the court had correctly told the jury whoi were principals in the commission of a crime. Immediately following is paragraph seven, which reads: “But you are 'instructed that the mere presence of the defendant, at the time and place of the commission of the offense, if an offense there was, would not make him a principal thereto, unless he participated in the commission of the same in some one or more of the modes mentioned in the foregoing definition of a principal, or unless he had previously entered into' an agreement that such an offense, if any, would be committed, and was present in pursuance of such an agreement, if any; and so in this case, if you believe, or have a reasonable doubt thereof, that the defendant was merely present there and had no interest in the ownership of the intoxicating liquor, still, equipment, mash, material and supplies, you will find the defendant not guilty.”

The only defense interposed by appellant was explaining his presence at the still and the denial of any interest therein. The converse of the law of principals as well as appellant’s defense is fully covered by said paragraph seven.

To our minds the case was not one depending on circumstantial evidence, and therefore, the court properly declined to embrace in his charge an instruction on' that subject.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant ably urges that his defensive theory was not affirmatively presented to the jury, and that the converse of the law of principals was not properly submitted. The case of Johnson v. State, 105 Tex. Cr. R. 26, 285 S. W. 329, cited by appellant in his motion, was not a case involving a charge on the law of principals, and hence has no application in this regard. It was, however, a case involving the question of the possession of a still, material, and equipment for the purpose of manufacturing intoxicating liquor. We have examined the charge given in that case and compared it with the one held sufficient by us in our original opinion, and are unable to distinguish between them in so far as the mere matter of the presentation of the law of principals is concerned. It is true that the charge given in the Johnson Case, supra, was in somewhat more elaborate language than the one complained of as given in the instant case, but the latter gave to the jury every essential element found in the one which appellant here urges as a model.

Appellant admitted his presence at the still in the case at bar, and that it was in operation, and that mash, material, etc., were there. He also admitted that when the officers appeared, and just before they got to the house where the still was -in operation, he ran out of the house, having in'his possession the pot in which was a quantity of mash, and that he fled and was pursued by the officers for quite a distance, they shooting at him, before he stopped and was captured. As we understand, and as evidently the trial court understood, appellant claimed that he had no interest in the still, mash, material, etc., and that he was merely present. It would be wholly unnecessary to load the charge down with an additional instruction that the jury must find that the still belonged to somebody else. This would be of no assistance to appellant, any more than he derived from a charge which was given as quoted in our original opinion. If the jury believed he was merely present at the time and had no interest in the intoxicating liquor, still, equipment, mash, material, etc., they should have found him not guilty, and they were so told in the charge, which we* still believe to have appropriately and sufficiently presented his defensive theory in an affirmative manner.

The motion for rehearing will be overruled.


author: CHRISTIAN, Judge. LATTIMORE, J.'

text:
    SMITH v. STATE.
    No. 15487.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Rehearing-Denied Feb. 22, 1933.
    Moore & Wilson, of Amarillo, for appellant!
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is robbery; • the punishment, confinement' in the' penitentiary- for seven years.

Originally, appellant, George Fox, and Nona Fox were tried jointly and convicted; appellant and George Fox receiving a penalty of 25 years each, and Nona Fox a pénalty of 20 years. The judgment of conviction was reversed by this court because of the 'denial of appellants’ first application for continuance. Fox’ et al. v. State, 119 Tex. Cr. R. 552, 43 S.W.(2d) 951. On the present trial a severance was granted.

The testimony on the part of the state was substantially the' sanie as that adduced on the former trial. On the present trial, James McVeigh, the injured party, was not present. A proper'predicate having been laid, his testimony was reproduced. No question is presented by the récord as to the sufficiency of the predicate to authorize the reading of such testimony by the court reporter.

The state’s testimony was, in substance, as follows: James McVeigh, a discharged sailor, had gone from San Francisco to Amarillo, wearing his sailor’s uniform. He was standing on a street corner near a bus station when 'he was approached by George Fox, who engaged him in conversation. Hpon McVeigh advising Fox that he would probably remain in Amarillo for a time, Fox recommended that he stop at the- Verdun' Hotel. McVeigh then crossed the street to a' restaurant and ordered something to eat. • While he w'as eating, Nona Fox, who was the wife of George Fox, entered the restaurant and ordered - a cup of coffee. She and McVeigh engaged in conversation. She advised McVeigh that she knew where some liquor could probably be obtained. She and McVeigh loft the restaurant together and walked down a street to a hotise. Upón-entering a room in the house they found appellant in the room on the bed. Nona Fox advised appellant that they wanted some beer. McVeigh told the parties he had just gotten into town, and showed them his pocketbook, his money and ticket. He had approximately $73 in his purse. Appellant left the room for a moment, leaving McVeigh with Nona Fox. While McVeigh was facing Nona Fox, appellant came up behind him, placed a pistol to his back, and ordered him not to move. Appellant then directed Nona Fox to take McVeigh’s money. About the time Nona Fox was taking the money, George Fox entered the room and said: “Well, I see you got the -b-d.” After appellant and his companions had taken McVeigh’s money, Nona Fox marched him down the street, holding a pistol in her coat pocket. After she left him, McVeigh saw George Fox and Nona Fox leaving in a.Ford car, and he took the number. He reported the matter to the officers, who several hours thereafter arrested appellant, George Fox, and Nona Fox. When appellant was arrested, he had some currency in 'his shoe, among the bills found being a $10 gold certificate. The parties had taken a $10 gold certificate from McVeigh, as well as the balance of his money. No pistol was found in appellant’s room. No weapons of any character were found in the possession of George and Nona Fox when they were arrested. McVeigh’s purse was not found in the possession of any of the parties. A witness for the state testified that she was near the room during the time that McVeigh was with George and Nona Fox. She said she heard some man in the room say, “Don’t move.” Also she testified that she saw McVeigh leave the house with Nona Fox. She was unable to identify appellant.

Appellant did not testify in his own behalf, and introduced only one witness. This witness testified that he had George Fox’s automobile in his garage shortly before his arrest. He said that there was no gun in the car that he knew anything about. Further, he said he probably would have seen the gun had theie been one in the car.

In his opening argument the district attorney used language as follows: “This witness James McVeigh does not live here and can’t be here.” The objections interposed by appellant at the time the argument was made raise the question as to whether the -statement of the district attorney injected into the case a new fact harmful to appellant. As already noted, the predicate for the reproduction of the testimony of the witness McVeigh was laid in the absence of the jury. Nevertheless, the jury knew that McVeigh was absent. Furthermore, they learned from the testimony that McVeigh, at the time of the former trial, did not live in the state of Texas, and that, on the occasion of the alleged offense, he was passing through Amarillo on his way to the state of his residence. The statement of the district attorney to the effect that the witness could not bo present embraced the only new matter called to -the attention of the jury. It is appellant’s position that the jury might have regarded the unexplained absence of the prosecuting. witness as due to a desire on his part to remove himself from the jurisdiction of the court after presenting under oath a story probably not true. Stated in another way, -appellant contends that, if the district attorney had not told the jury that the witness could not be present, the conclusion might have been reached that the witness was afraid to face the jury because of the fact that his testimony was false. Under the circumstances reflected by the record, the opinion is expressed that we would not be warranted in reaching the conclusion that -the statement in question was material. The testimony of the witness was uncontroverted. Notwithstanding appellant contends that the version of McVeigh might be deemed unreasonable, he admits that the evidence is sufficient to support the conviction. We are unable to reach the conclusion that the state’s version of the transaction is not reasonable. There is nothing in the record tending to discredit the testimony of the witness. To hold -that his absence would probably have impressed the jury with the view that the witness had given perjured testimony would, under the circumstances revealed by the record, require us to indulge in speculation to a degree not deemed warranted.

In his motion for new trial, appellant alleged newly discovered evidence, and appended to the motion the affidavit of W. L. Scott, the witness alleged to be newly discovered, as well as the affidavit of his attorney. The affidavit -of the witness is to the effect that during the latter part of March, 1931, he was working in the Star Gafé in Amarillo; that some time during the latter part of March a man dressed in a sailor’s uniform came into his place of business in the evening about 9 o’clock, and asked for something to eat; that this man stated that he did not 'have any money to pay for his meal because some “card sharks,” consisting of two men -and one woman, had just “flimflammed” him out of his money; that the woman had gotten him down to the place; that the woman and one of the men had seemed to use the name of Fox; that he had the officers looking for these parties; that the man making this statement to him had a “Scottish-sounding” name, beginning with “Me” and his name could have -been McVeigh, although he did not have any recollection of it; that, after reading of the first trial in which George Fox, Nona Fox, and appellant Richard Smith were tried for robbery, he realized that the man he had talked to was in -all probability the prosecuting witness; that he did not want to get mixed up in the matter, and did not tell what he knew to appellant or either of his attorneys; that since reading of the second trial of appellant he discussed the case with a man who suggested that he ought to tell the attorneys; that' the attorneys called on him, and he told them what he knew and agreed to make the affidavit; that he was not personally acquainted with appellant or his codefendants; that he was not able to give any definite description of the party who had talked to him in his restaurant, except that he was a man about average size and height, weighing about 150 or 160 pounds; that this man told him he had been discharged from the United States Navy at some point in California and was only temporarily in Amarillo; that he believed he would recognize the man who talked to him if he saw him again. In qualifying the bill of exception, the trial court made, in substance, the following statement: The court heard evidence upon the motion for new trial, and the witness Scott testified in open court. The witness did not sufficiently identify the man he was talking to as being James McVeigh, the injured party. He testified that a sailor came to his restaurant between the 15th and 25th of March, between 8 and 9 o’clock p. m., to get something to eat, and said that the reason he did not have any money to buy something to eat was that he had lost his money in a card game. Further, he testified that this sailor stated that he “got to matching his money in the bus station and'lost his money.”' The witness repeated that the sailor had stated that he had lost his money in the hus station. Further, he testified that the sailor said his nickname was “Mack.” At this point, we quote from the qualification of the court as follows:

“This testimony, that the sailor repeatedly stated that he ‘got to matching money in the bus station’ etc., is so different from the testimony of James McVeigh, as will appear from the statement of facts, as to show, clearly, that the man Scott was talking to was not McVeigh or else; if he was, he was talking about an altogether different transaction •than that involved in this case, for neither McVeigh nor any witness for either of the defendants in these cases ever testified that there was any game of matching or anything of the kind at the bus station. * * * The witnesses McNeilus and Lewis, the officers who investigated the case and arrested the defendants, testified, in effect, that from the time McVeigh reported the matter to them (which was immediately after it happened) he was in their company continuously, all that night, and with Mr. Lewis every night thereafter up to and during the time and after the trial, so that it was altogether improbable that he could have been the man that Scott claims to have talked to at the restaurant, if said officers were telling the truth, and they were neither impeached nor contradicted.”

We deem is unnecessary to determine whether the testimony alleged to be newly discovered was merely impeaching. See Hale v. State (Tex. Cr. App.) 51 S.W.(2d) 611. In any event, the opinion is expressed that the trial court was warranted in concluding that, if the alleged newly discovered evidence was before the jury, it would not likely change the result. Hale v. State, supra, and authorities cited. In his qualification to the bill of exception, the court shows that the testimony given by the witness on the motion for new trial wholly failed to identify the witness McVeigh. Moreover, the court states that the witness alleged to be newly discovered testified in one instance that the party he was talking to told him 'he had lost his money in a bus station, and at another place in his testimony said that such party declared that he had lost his money in a game of cards in a house. Again, in the qualification, attention is called to the testimony of the officers to the effect that shortly after the robbery the injured party was in their company, and remained with them .continuously all that night and with one of the officers every night thereafter “up to and during the time and after the trial.” Considering the testimony adduced upon the trial in connection with the court’s qualification to the bill of exception, we are unable to reach the' conclusion that the trial court was not warranted in overruling the motion for new trial on the ground that the alleged newly discovered testimony would not likely change the result.

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.

LATTIMORE, J.'

In view of the testimony introduced by the state showing the nonresidence of the witness McVeigh, we are not able to agree with appellant that the argument of the state’s attorney relative to McVeigh not being a resident and not living in Amarillo injected a new element into the case.

Neither do we think, when all parts of paragraph 3 of the court’s charge are considered, that it is open to the criticism contained in the exception taken thereto. We do not think it a necessary fact inference from the language of said charge that appellant was present at the time of the alleged robbery.

The motion for rehearing will be overruled.


text:
    SHROPSHIRE v. STATE.
    No. 15568.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Otis Rogers, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. '
   CHRISTIAN, Judge.

The offense is forgery as denounced in article 1006, Penal Code; the punishment, confinement in the penitentiary for five years.

On February 2, 1929, appellant executed and delivered to M. L. Massingill, trustee, a deed of trust covering lot 3 in block 2 of the Q-P.one addition to the city of Fort Worth; the purpose of the instrument being to secure F. W. Skiles in the payment of a note for $600. At the time the deed of trust was executed a new house, which was not occcu-pied, was being constructed on the lot 3. Appellant’s wife, Mrs. Callie Shropshire, did not join in the execution of the- deed of trust or promissory note, but, in appellant’s presence, these instruments were executed by Bessie Mae Shropshire, who was the daughter-in-law of appellant and who appellant represented to be his wife. Bessie Mae Shropshire testified that appellant asked her to appear and execute the instruments in his wife’s name and that she complied with his request in order to help him. She said that Mrs. Callie Shropshire had not authorized her to sign her name. The deed of trust contained a stipulation as follows: “This property is not our homestead or any part thereof.” Prior to the time the deed of trust was executed, the lot in question had been conveyed to appellant and Callie Shropshire, his wife. This deed was on record, and the attorney representing Mr. Skiles had advised him that, if he made a loan on the property, Mrs. Callie Shropshire,' appellant’s wife, should be required to join her husband in the execution of the deed of trust and note. At the time of the execution of the deed of trust, appellant signed an instrument purporting to designate a house at 2107 South Main street in Fort Worth as his homestead. Bessie Mae Shropshire signed the name of appellant’s wife to this instrument. Appellant did» not own the property designated, but had, on the 16th day of December, 1928, conveyed such property to Kimble Milling Company, a corporation, and was, at the time he executed the deed of trust, living in the house as a tenant. After executing the deed of trust and note appellant received $600 from Mr. Skiles. At the time of the trial, although the note was past due, Mr. Skiles had been unable to collect his money. Appellant did not testify, nor did he offer his wife as a witness.

Appellant contends that the state failed to show that the property involved was not the community property of appellant and his wife, his position being that in the event it was community property, the deed of trust was valid without the joinder of his wife in its execution. We deem it unnecessary to deal with the statutes and decisions relating to the power of the husband to mortgage the community property. The opinion is expressed that appellant’s act in procuring the forgery of his wife’s name is condemned by article 1006, Penal Code. We quote the article as follows: “Every person who falsely makes, alters, forges, or counterfeits, or causes or procures to be falsely made, altered, forged, or counterfeited, or in any way aids, assists, advises, or encourages the false making, altering, forging, or counterfeiting of any certificate, field notes, returns, survey, map, plat, report, order, decree, record, patent, deed, power of attorney, transfer, assignment, release, conveyance, or title paper, or acknowledgement, or proof of record, or certificate of record belonging to or pertaining to any instrument or paper, or any seal, official or private stamp, scroll, mark, date, signature, or any paper, or any evidence of any right, title, or claim of any character, or any instrument In writing, document, .paper or memorandum, or file of any character whatsoever, in relation to or affecting lands, or any interest in lands in this State, with the intent to make money or other valuable thing thereby, or with intent to set up a claim or title, or aid or assist any one else in setting up a claim or title to lands or any interest in lands, or to prosecute or defend a suit, or aid or assist anyone else in prosecuting or defending a suit with respect to lands, or to cast a cloud upon the title, or in any way injure, obtain the advantage of, or prejudice the rights or interest of, the true owner of lands, or with any fraudulent intent whatever, shall be deemed guilty of forgery and be punished by imprisonment in the State penitentiary at hard labor not less than five nor more than twenty years.”

We also quote article 1010, Penal Code: “Upon indictment under this chapter, to warrant a conviction, it shall only be necessary to prove that the person charged took any one step, or did any one act or thing in. the commission of the offense, if from such step, act or thing any of the intentions hereinbefore mentioned, or any other fraudulent intention, may he reasonably inferred; nor shall it be any defense to a prosecution under this chapter that the matter, act, deed, instrument or thing was in law, either as to substance or form, void, or that the same was not in fact used for the purpose for which it was made or designed; and it shall only be necessary in an indictment under this chapter to state with reasonable certainty the act constituting the offense, and charge, in connection therewith, in general terms, the intention to defraud, without naming the person or persons it was intended to defraud. On. trial of such indictment, it shall be sufficient and shall not be deemed a variance if there appears to be an intent to defraud the United States, or any State,. Territory, county, city, town or village, or any body corporate, or any public officer in his official capacity, or any co-partnership, or member thereof, or any particular person.”

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.


text:
    Walter SHROPSHIRE v. STATE.
    No. 15569.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Otis Rogers, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is forgery as denounced in article 1006, Penal Code; the punishment, confinement in the penitentiary for five years.

The instrument alleged to have been forged was a deed of trust covering lot 3 in block 2 of the Q-Bone addition to the city of Fort Worth. The purpose of the deed of trust was to secure F. W. Skiles in the payment of a note for $400. The date of the transaction was February 23, 1929. The circumstances surrounding the execution of the instruments are the same as those disclosed in the opinion in Walter Shropshire v. State of Texas (Tex. Cr. App.) 57 S.W.(2d) 108, this day delivered. An interval of approximately three weeks separated the present transaction from that upon which the prosecution was predicated in Shropshire v. State, supra. The same questions are presented in the two cases.

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.


author: CALHOUN, Judge. LATTIMORE, J.

text:
    PHILLIPS v. STATE.
    No. 15498.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Lamar Bethea, of Bryan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, assault with intent to murder; the punishment, 2 years in the penitentiary.

It appears from the evidence that tie appellant, the injured party, and another were engaged in shooting craps. A dispute arose between the appellant and the injured party, and the injured party picked up a pair of scissors which he contended was for the purpose of defending himself against the appellant. The injured party contended that he put down the scissors and started to leave the room, and when he did so the appellant attacked him with a knife and cut him in the back and arms. The defense was that the injured party had applied vile epithets to the appellant during the discussion, and had made an attack upon him, and the cutting of the injured party by appellant was in his own self-defense.

There are no bills of exception in the record. The court charged the jury: “That if the jury believed from the evidence beyond a reasonable doubt that the defendant, Johnny Phillips, on or about the time charged in the indictment, in the County of Brazos, •State of Texas, with a deadly weapon, did assault the said James Woods with the intent then and there to kill him by the means charged in the indictment, and-not in defense of himself against an unlawful attack, that they would find the defendant guilty of assault with intent to murder and assess his punishment at confinement in the state penitentiary for a term of not less than twoi years nor more than 15 years.” The court further charged the jury: “That if they believed from the evidence that defendant was guilty of an assault, but had a reasonable doubt as to whether such assault was with malice aforethought with intent to murder, then they would acquit him of that offense and next consider whether he was guilty of aggravated assault or whether he was justified in his acts.” The court then submitted to the jury the issue of aggravated assault, and also the issue of self-defense.

' The undisputed evidence, shows that the cutting occurred on the 16th day of August, 1931. The trial court nowhere in his charge submitted the issue of assault to murder with or without malice aforethought, and nowhere in his charge defined malice aforethought. It is the contention of the appellant in this case that, notwithstanding the fact that no exceptions are taken to the court’s charge, the trial court committed fundamental error in failing to charge the provisions of chapter 61, Acts of Regular Session, 42nd Legislature (Vernon’s Ann. P. O. art. 1160), which act became effective April 17, 1931, which was prior to the offense charged in the indictment.

Article 1160, as amended by said act (Vernon’s Ann. P. 0. art. 1160, § 1), provides: “If any person shall assault another with intent to murder, he shall be| confined "in the penitentiary not less than two nor more than fifteen years; provided, that if the jury find that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three years confine-' ment in the penitentiary; if the assault be made with a bowie-knife, or dagger, or in disguise, or by laying in wait, or by shooting into a private residence, the punishment shall be double.”

The act further provides that upon the trial of any person for assault with intent to murder, the court, in its charge to the jury,, shall define malice aforethought, and, in a proper case, murder without malice, and instruct the jury touching the application of the law to the facts. It is further provided that all laws or parts of laws in conflict with the provisions of this act are hereby repealed.

The appellant submits, in support of his contention that the failure to submit the provisions of the amended act is fundamental error, the case of Villa et al. v. State (Tex. Or. App.) 53 S.W.(2d) 1023. In that case the appellants were convicted of assault to murder and their punishment fixed at six and two years respectively, to which charge the! appellants both pleaded guilty. The appellants in that case testified that they acted in self-defense. We quote in part from the opinion of Judge Lattimore in said case: “By an act which became effective April 17, 1931, which is chapter 61, Acts of the Regular Session of the 42d Legislature (Vernon’s Ann. P. O. art. 1160, § 2), it tó provided that upon the trial of any person for assault with Intent to murder, the court, in its charge to the jury, shall define malice aforethought, and in a proper case murder without malice, and instruct the jury touching the application of the law to the facts. It is further provided in said act that if the jury find that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three years confinement in the penitentiary. In his charge to the jury in this case the learned trial judge failed to take any note of this' change in the law of assault with intent to murder, and it becomes our duty to determine whether, even though no exception was taken to the failure of the court to give such charge, the failure is such as will demand of this court a reversal of the judgment.”

After discussing the effect of the ¿lea of guilty and the duty of the court in regard thereto, the court in ■ the opinion further states: “In the case before us, we are convinced that it was error for. which the case must be reversed, to- fail to submit to the jury an instruction in regard to malice aforethought,' and to further instruct them that unless they believed the assault in question was upon malice aforethought, or in case they had a reasonable doubt of such fact, the punishment of the parties accused should be by confinement in the penitentiary for not less than one nor more than three years.”

Following the law as laid down in said case, we are constrained to hold that the trial court committed reversible error in failing to instruct the jury in accordance with the terms of the amended law on assault to murder, even though no exception was taken to the failure so to do.

For the error pointed out, 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.

LATTIMORE, J.

We did not intend in Villa’s Case, supra, .to change the rule adhered to in Scott v. State, 114 Tex. Cr. R. 631, 26 S.W.(2d) 263, Arcos v. State (Tex. Civ. App.) 29 S.W.(2d) 395, Johnson v. State (Tex. Cr. App.) 48 S.W.(2d) 274, and Lopez v. State (Tex. Cr. App.) 49 S. W.(2d) 462, but intended to hold it fundamental error for the court below to omit from his charge any instruction under which the jury might have inflicted a penalty lower than was allowed under the charge as given; said lower penalty being fixed in a recent law, the proper presentation of which in the charge in an applicable case would have necessitated a definition therein of murder with malice aforethought and of murder without such malice.


author: CHRISTIAN, Judge. LATTIMORE, Judge.

text:
    HANCOCK v. STATE.
    No. 15453.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    Rehearing Denied Feb. 22, 1933.

      Harris & Harris and James R. Boyd, all of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tlie State.
   CHRISTIAN, Judge.

The offense is forgery; the punishment, confinement in the penitentiary for two years.

Appellant went to the Cabaniss Furniture Company and advised I-I. W. Hieling, a salesman, that he desired to buy a stove, stating to Mr. Hieling that his name was I-Ienry Lewis. After purchasing the stove, appellant produced a check drawn on the American National Bank of Austin, Tex., dated September 26, 1931, payable to the order of Henry Lewis, in the sum of $18, and signed, “M. L. Hancock.” Indorsing the name, “Henry Lewis,” on the back of the check, appellant delivered the check to Mr. Hieling and received $15.50 in money. Mr. Hieling testified: “He (appellant) gave me a certain address to take the stove to, and I went with the boys and it was a different address.” Further, he testified that he went to the address that appellant gave him and made a search for appellant, taking several hours. He said this place was supposed to be an “eating joint.” Again, he said ho looked in the directory and did not find the name of Henry Lewis listed at that address. Without objection on the part of appellant the state proved by a deputy sheriff that one of his associates made a search for Henry Lewis in an effort to execute a subpoena, and returned the subpoena with the statement that there was no such person; This subpoena was introduced in evidence without objection. It appears that one Henry Lewis, who had' lived at 1605 East Twelfth street, had been dead for two years, but that his name was still listed in the telephone directory. Further, it appears that appellant gave M. L. Hancock’s address as 2105 Nueces street, and the address of Henry Lewis as 1620 Washington avenue. In addition to proving that no person named Henry Lewis lived at 1620 Washington avenue, the state showed that appellant did not live at 2105 Nueces street at the time he executed the check.. Appellant did not testify in his own behalf, and introduced no witnesses.

In his motion to quash the indictment, appellant averred that in a single count there were inconsistent allegations, his position being that it was charged that the check was a forgery in contemplation of article 979, P. O., and also that he (appellant) committed the.offense of forgery by alteration, as defined in article 984, P. C. The indictment charges, in substance,' that appellant,' with intent to injure and defraud, made a • false instrument in writing purporting to be the act of another. Following this averment, the check is set out, as is also the indorsement of the name, “Henry Lewis.” Immediately following the check and indorsement, we find this allegation: “And said indorsement being then and there the false and forged portion of said instrument.” Appellant’s name is M. L. Hancock. On the face of the check it is shown to have been executed by M. L. Hancock. In the absence of the allegation that the indorsement was forged, the indictment would charge no offense. Where the alleged forged instrument purports to bear the true signature of the accused an offense is not charged in the absence of an explanatory averment making plain the fact that while the signature appears to be that of the appellant, it is in fact an imitation of that of another person. Carnahan v. State, 110 Tex. Cr. R. 550, 9 S.W. (2d) 1034, 1035. The opinion is expressed that, considered in its entirety, it is clear that the averment that appellant made “a certain false instrument in writing” refers to the indorsement. See Richards v. State, 116 Tex. Cr. R. 100, 29 S.W.(2d) 367; Strang v. State, 32 Tex. Cr. R. 219, 22 S. W. 680.

The indictment embraced a count charging appellant with having passed a forged instrument to Cabaniss Furniture Company, a corporation. In the count charging forgery there was no allegation that Cab-aniss Furniture Company was a corporation. Bill of exception No. 2 shows that prior to an election, the state proved by Mr. Hieling, that Cabaniss Furniture Company was a corporation. After the state had concluded its tes-, timony, the district attorney elected to prosecute for forgery and the count charging appellant with passing a forged instrument was withdrawn. After the election had been made, appellant offered to prove that Cabaniss Furniture Company was not a corporation, but upon objection by the state the proof was rejected. There was nothing in the count upon which appellant was convicted rendering relevant and material proof that -the company was incorporated. After the election by the district attorney the matter became collateral and immaterial to any issue in the case. It is recited in the bill of exception that the proof was offered for the purpose of impeaching the state's witness. It is not permissible to impeach a witness on ah immaterial matter. Branch’s Annotated Penal Code, § 165'; Evans v. State, 76 Tex. Cr. R. 56, 172 S. W. 795.

At the conclusion of the testimony, appellant made a motion for an instructed verdict based on the ground that it had not been shown that he was without lawful authority to sign the name of Henry Lewis. Appellant stated to Mr. Hieling at the time he indorsed the check that his name was Henry Lewis. The proof was positive that his name was M. L. Hancock. A search for Henry Lewis by a deputy sheriff proved futile. Appellant gave false addresses. No person named Henry Lewis lived at the place appellant designated and described. The circumstances taken together are, in our opinion, sufficient to meet the requirement -of the law.

Appellant objected to the charge of the court for its failure to submit an instruction covering the law of circumstantial evidence. The proof was direct that appellant indorsed the name, “Henry Lewis,” on the check. We are aware of no ease that has been reversed because of the failure to charge on circumstantial evidence where there was direct evidence that the alleged forged instrument was written by the accused. That appellant indorsed the check as alleged was the main fact to be proved. Johnson v. State, 82 Tex. Cr. R. 585, 200 S. W. 522. A charge on circumstantial evidence is not required where the evidence is not wholly circumstantial. Branch’s Annotated Penal Code, § 1874; Lawler v. State, 110 Tex. Cr. R. 460, 9 S.W. (2d) 259. The main fact was not proved as a matter of inference from other facts in evidence. Hence, in a legal sense, the case did not rest wholly upon circumstantial evidence. Branch’s Annotated Penal Code, § 2367; Robertson v. State, 33 Tex. Cr. R. 366, 26 S. W. 508.

Appellant timely and properly objected to that part of the charge of the court wherein the jury were instructed, in substance, to convict appellant if they believed from the evidence beyond a reasonable doubt that with intent to defraud and without lawful authority, he falsely made the instrument in writing described in the indictment, and if they further believed from the evidence beyond a reasonable doubt that the indorsement on the instrument was false and forged. The exception was that the charge submitted forgery, as well as forgery by alteration. If the charge is susceptible of the construction contended for — and this is not conceded — we are unable to reach the conclusion that the error was calculated to injure the rigjits of appellant. The proof was undisputed that appellant wrote the indorsement. Before they could convict, the jury wer.e required by the charge to find beyond a reasonable doubt that appellant forged the indorsement. The testimony is sufficient to support the conviction. Appellant introduced no witnesses controverting the state’s ease. The minimum penalty was assessed. Under the provisions of article 666, O. O. P., we are not permitted to reverse a judgment for an error in the charge, unless such error was calculated to injure the rights of the accused, or unless it appears from the record that the accused has not had a fair and impartial trial.

It is recited in the bill of exception, No. 9, that, after the evidence had been concluded and the argument had begun, the as-sistant district attorney used language as follows: “Gentlemen of the jury, the case stands before you upon the state’s evidence, uneontroverted. The testimony of the state is not disputed.”

The bid embraces appellant’s objection to the effect that the language of the assistant district attorney constituted an allusion to appellant’s failure to testify. Nowhere in the bill of exception is it certified that appellant had not testified in his own behalf. This was essential. Texas Jurisprudence, volume 4, p. 396; Cuellar v. State, 110 Tex. Cr. R. 47, 7 S.W.(2d) 565, and authorities cited. Further, the bill of exception fails to show that thei’e were no witnesses other than appellant who could have given testimony contradictory of the state’s case. In this respect the bill is insufficient. Gonzales v. State, 113 Tex. Cr. R. 122, 18 S.W.(2d) 618; Texas Jurisprudence, vol. 4, p. 398.

Bills of exception Nos. 11 and 12 relate to argument on the part of the district attorney. It is recited in these bills that appellant objected and excepted to the argument at the time it was made. It is not shown what action the court took. Without setting out the language used by the district attorney, it appears that in the course of his argument he referred to appellant as a crook, and stated that appellant told a d--d lie when he indorsed the check. The uncontro-verted testimony of the state was to the effect that appellant made a false statement when he presented the check and appropriated the money belonging to Cabaniss Furniture Company. If the state’s testimony was to be believed, appellant was dishonest. The testimony showing guilt was plain and un-controverted. The minimum penalty was assessed. Conceding that the remarks were improper, the opinion is expressed that, under the facts reflected by the record, we would not be warranted in ordering a reversal. The result is referable to the judgment of the jury upon the uncontroverted testimony rather than to prejudice resulting from' the argument. See Franklin v. State, 104 Tex. Cr. R. 240. 283 S. W. 802.

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.

LATTIMORE, Judge.

We have considered the well-reasoned and ingenuous motion for rehearing filed by appellant. We do not think the fact that the alleged forged check bore addresses and notations not set out in the hssc verba description thereof ir the indictment would be such variance as would call for reversal. Authorities are cited in Branch’s Annotated F. O. § 1397.

It is only when a case rests entirely on circumstantial evidence that the court must charge on that theory. We do not think this such a case. The averment was that appellant forged an indorsement of the name of Henry Lewis on the back of a check, which was set out. The proof showed without contradiction that appellant’s name was M. L. Hancock and not Henry Lewis, and that he presented said check to a business concern in Austin, and told the clerk who waited on him that his name was Henry Lewis, and in the presence of said employee he indorsed on said check the name of Henry Lewis as his own. This was direct proof of the fact of the alleged forgery and obviated the necessity for a charge on circumstantial evidence.

Appellant introduced no testimony, and asked no special charges. He sought to prove that the concern alleged in the second count of said indictment, as being the party to whom the check was passed as alleged therein, was not incorporated; his reason for the admission of such testimony being that it contradicted and impeached the testimony of the employee who had been asked and repeatedly answered that the concern was incorporated. The second count was not submitted to the jury. We think the matter correctly passed on in our original opinion as one of immateriality.

We have carefully gone over the case in the light of appellant’s motion. We are unwilling to say that there was not proof sufficient that Henry Lewis was dead, and that no such, person lived in Austin. The facts seem sufficient.

The motion for rehearing will be overruled.'


text:
    McCARTY v. STATE.
    No. 15447.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1933.
    Rehearing Denied Feb. 22, 1933.

      Robert H. Hopkins, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possession of intoxicating liquor for the purpose of sale; the punishment, confinement in the penitentiary for two years.

Appellant challenges the sufficiency of the evidence. The state’s testimony was, in substance, as follows: On April 11, 1931, an officer stationed himself in an elevator 368 steps from appellant’s residence. Between 8 and 9 o’clock in the morning he observed one Sullivan drive up to appellant’s house and stop. Appellant came out of the house and talked to Sullivan. When this conversation was ended, appellant re-entered the house, and later brought out a pint bottle, which appeared to be red. The officer was using a German field glass, and was able to determine accurately the size and color of the bottle. Later one Nance drove to appellant’s residence and was met by appellant. After the parties had conversed a few minutes, appellant entered the house and returned with a pint bottle, which, appeared to be red. When he delivered this bottle, Nance gave appellant something, which the officer was unable to see. The same procedure took place when Marshall Scoggins appeared on the scene, and later, when one Hughes came to the house, appellant went into the house and returned with a pint bottle which he delivered to him. One Rogers appeared and had a conversation with appellant, after which appellant entered the house and returned in a few minutes with a half pint bottle, which was red. At 8 o’clock at night on April 11, 1931 (the same day), officers went to appellant’s residence with a search warrant for the purpose of making a search for intoxicating liquor. Appellant was not present at the time. In the house were appellant’s mother and grandmother, who resided with appellant. In a hallway between the rooms there was an ice box. Under this box there was a trap door. Opening the trap door, the officers discovered a stove pipe. In this stovepipe they found three pints and three half pints of whisky. They also found (the exact location not being shown) a number of fruit jars, pint and half pint bottles. Smelling these bottles, they detected the odor of whisky. In the house were some men’s clothing. Parted near the house was appellant’s automobile and another car. One hundred yards across the street was another house, which was controlled by appellant. In this house the officers discovered some empty fruit jars, an old table, an old stove, and some poker chips. There was no clothing in the house, and it was not “fixed up for anybody to live in."

Testifying in his own behalf, appellant declared that he lived in the house 100 yards distant from his mother’s residence, and had no control over or management of the house in which the whisky was discovered. He denied that the whisky belonged to him, and stated that he did not know it was in the house. Further, he denied that he had delivered anything in pint or half pint bottles to Nance and the other parties named by one of the officers. He admitted that the two cars parked near the house belonged to him. He said he might have been at his mother’s home on the day in question, as he frequently went there to carry groceries. Nance and several of the other parties named by the officer testified for appellant; their version being in the main that they might have been at the house in question at the time testified to by the officer, but that they went there either for the purpose of collecting money due them by appellant, or of selling him some article of merchandise. Each of the witnesses denied that "appellant delivered any red liquid in pint or half pint bottles on the occasion in question. Appellant’s mother testified that appellant did not live at her. house, and had not been there on the occasion in question. She said appellant occupied the house 100 yards distant, across the street. She denied that the parties named by the officer came to the house on the morning of April 11th. She said appellant delivered no whisky to any person on that occasion. She testified, further, that her son Leonard brought some whisky to the place a short time prior to the raid, and gave her a pint for medicinal purposes. She declared that appellant did not put the whisky under the floor. Further, she said that only she and her mother lived in the house, and that neither her husband, Jim Lee, nor her son Leonard lived there with them at the time. Jim Dee testified that he (Lee) had not been in the house since the month of October prior to the search, and was not living there at the time the search was made, tie declared that appellant’s house was on the opposite side of the street.

Whether required or not, the court charged on circumstantial evidence. We are unable to reach the conclusion that the evidence is insufficient. The state’s proof was direct that appellant lived in the house in which the whisky was found. The proof of appellant’s witnesses was to the effect that only appellant’s mother and grandmother lived in the house. The jury were warranted in concluding that appellant lived in the house with his mother and grandmother, and that no other adult person resided there. The jury being warranted in concluding that the house searched was the residence of appellant, the next question is whether the circumstances in evidence were sufficient to support the- finding that appellant was in possession of the whisky discovered by the officers. The jury had before them the testimony of the officer.touching appellant’s actions prior to thé raid. Prom such testimony, they were not unwarranted in concluding -that appellant delivered to several parties pint and half pint bottles containing a red substance of some character. In the house were several pint and half pint bottles which appeared to have had whisky in them. We think the evidence sufficient to support the finding that appellant possessed the whisky. The amount of whisky discovered by- the officers exceeded one quart. This made operative the statute relating to the presumption arising from the possession of more than a quart of intoxicating liquor. •This, taken in connection with appellant’s actions on the morning prior to the raid, is deemed to support the finding that the possession was for the purpose of sale.

Bill of exception No. l' brings forward appellant’s objection to the testimony of the officers touching the result of the search of the house occupied by appellant’s mother. It embraces no objection to the search of the house across the street claimed by appellant to be his residence. The specific objection was that the description of the premises in the affidavit and search warrant was insufficient. We deem the objection not well taken.- After reciting that the place to be searched is situated in the county of Denton and state of Texas, the affidavit reads: “The private residence and buildings and premises occupied by Willie McCarty, the same being situated in the southeast part of the town of Sanger, Texas, and being on the east side of the Santa Ee Railroad, and being on the east side of the second street east of the Santa Fe depot and about a block south of the Sanger to Aubrey public highway; that. the particular described ’ place is occupied by Willie McCarty as a residence.”

The description in the search warrant follows that embraced in the affidavit.

Bill of exception No. 2 is concerned with the action of the court in declining to submit to the jury the following requested charge: “In order to convict in this case the state must prove to your satisfaction, beyond a reasonable doubt, that the defendant had the exclusive control, management and ownership of said liquor, if any was found.”

In the general charge the court instructed the jury that they could not convict unless they believed beyond a reasonable doubt that appellant had • the care, control, and management of the whisky, and possessed it for the purpose of sale. Further, the jury were instructed that appellant could not be convicted unless the jury believed beyond a reasonable doubt that he possessed the liquor in question, and that said possession was for the purpose of sale. We think the charge of the court was sufficient to cover the subject embraced in appellant’s requested instruction.

It is shown in'bill of exception No. 3 that appellant excepted to the action of the court in refusing to give a requested charge reading as follows: “You are instructed in .this case that you will decide whether or not the premises searched were the residence of the defendant, and if you have a reasonable doubt thereof you will acquit the defendant.”

The question was whether appellant possessed the whisky for the purpose of sale. Under the evidence, appellant might have exercised the management, care, and control of the whisky, and yet not have resided at the premises searched. "We think the court was warranted in rejecting the charge.

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, P. J.

On the original hearing the appellant’s brief was carefully examined and considered. The brief, together with the motion for rehearing and the record, has been again carefully reviewed.

In bill of exception No. 1, the testimony of the officers who searched the house is opposed by the appellant upon the ground, as stated in the bill, that “the description fails to state how many houses were on the street to be searched, and that it failed to state the location of the house to be searched, except to state that it was on the East side of said street.” The affidavit and the warrant are both copied in the hill. In the affidavit for the search warrant, the following is stated: “The private residence and buildings and premises occupied by Willie McCarty, the same being situated in the southeast part of the town of Sanger, Texas, and being on the east side of the Santa Fe Railroad, and being on the east side of the second street east of the Santa Fe depot and about a block south of the Sanger to Aubrey public highway; that the said described place is occupied by Willie McCarty as his residence; that intoxicating liquor is being sold and manufactured in said residence by the said Willie McCarty.”

The same description is contained in the warrant.

The objection to the evidence is not deemed tenable. There is nothing in the bill to show that there were any other houses on the same street on which the dwelling in question was located. However, the description, as copied from the affidavit above, is deemed sufficient, although there may have been other houses on the street. The house is identified as one controlled and occupied by the appellant. We find nothing in any of the precedents cited by the appellant which would sustain the contention that the description was insufficient.

The refusal to give the instruction embraced in bill of exception No. 2, as set out in the original opinion, presents no error. The exclusive possession, control, and management of the intoxicating liquor in the appellant was not essential to constitute his guilt. See Bennett v. State, 113 Tex. Cr. R. 460, 21 S.W.(2d) 1066; Van Zandt v. State, 109 Tex. Cr. R. 513, 5 S.W.(2d) 771; Spero v. State, 109 Tex. Cr. R. 392, 5 S.W.(2d) 145.

The refusal to instruct the jury, as set out in bill of exception No. 3, which instruction is copied in the original opinion, is deemed to have been a proper ruling of the court under the facts. The guilt of the appellant primarily did not depend upon his ownership of the residence searched, and in which the whisky was found. Whether the residence in which the officers claimed to have found the whisky was the residence of the appellant was. a controverted issue of fact. The officers searched the house which they understood to be the home of the appellant. His mother and grandmother also lived there. Some of the whisky found was in a stovepipe under the house. In the officers’ testimony there was exhibited other evidence tending to. support the state’s theory that the appellant possessed intoxicating liquor for the purpose of sale. Appellant testified that he did not live in the house which was searched, and in which the whisky was found; that it was not his dwelling place; and that he had no connection with the ownership of the whisky. If the house searched and in which whisky was found was the residence of the appellant, the- warrant possessed by the officers authorized them to search it, and the circumstances were sufficient to identify the appellant as the possessor of the whisky. The quantity of whisky found was sufficient to meet the law declaring that the posses-' sion of more than one quart of whisky is prima facie evidence that it was possessed for sale. Article 671, P. C. 1925. If the house searched and in which the whisky was found was not the residence of the appellant, he would not be in a position to complain of the search of it. The court committed no error in refusing to instruct the jury that if the house searched did. not belong to the appellant, there could be no conviction. See Craft v. State, 107 Tex. Cr. R. 130, 295 S. W. 617; also Flower v. State, 113 Tex. Cr. R. 69, 18 S.W.(2d) 659.

The fact that the appellant possessed intoxicating liquor in the home of some other person would not exculpate him if he possessed it for the purpose of sale. There are several precedents upon the subject. See Craft v. State, supra.

A number of questions are brought forward in the motion for new trial, including the complaint of various matters which have been' discussed above touching the sufficiency of the affidavit and search .warrant, and other matters which have been mentioned in the foregoing opinion; also certain alleged remarks of counsel for the state. Complaint of remarks of counsel and the ruling upon the introduction of evidence are not available, in the absence of bills of exception. See Johnson v. State, 111 Tex. Cr. R. 395, 13 S.W. (2d) 114; Rollins v. State (Tex. Cr. App.) 53 S.W.(2d) 786; Mershon v. State (Tex. Cr. App.) 55 S.W.(2d) 836; Cade v. State, 96 Tex. Cr. R. 523, 258 S. W. 484. There are no bills relating to the rulings of the court and the argument of counsel. The bills of exception relating to the introduction of evidence have hereinabove been discussed.

The circumstances detailed before the jury are deemed sufficient to support the conclusion of guilt. Therefore, the motion for rehearing is overruled.