author: CHRISTIAN, Judge. HAWKINS, Judge.

text:
    ANDERSON v. STATE.
    No. 14977.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    State’s Rehearing Denied Feb. 22, 1933.
    Moztíss & Morriss and Reed Cozart, all of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

O. Q. Marshall, the injured party, was the owner of a ranch in Edwards county, where he was engaged in the sheep and goat business. Wolves .were killing his stock. Mr. Marshall was secretary of the Wolf Club, which was composed of several ranchmen. 1-Ie made a contract with appellant to trap for wolves on his ranch, agreeing to pay him $200 for each grown wolf and $100 for each puppy he .caught. Appellant established a camp on Mr. Marshall’s land and began running a string of traps. From time to time he took wolves to Mr. Marshall, for which he received the stipulated price. He represented to Mr. Marshall that he had caught the wolves on his land.

Earnest Baker, an accomplice witness, had been running a barbecue stand for appellant in Del Rio. It appears that Baker constantly drank intoxicating liquor. He lost money for appellant and appellant was forced to discharge him. Baker testified for the state that appellant requested him to trap wolves in Zavalla county and bring them to Edwards county to him. He said appellant agreed to pay'him $25 a head if he would deliver the wolves to the place where he was trapping.' He said, further, that pursuant to. his agreement with appellant, he caught wolves in Zavalla county and delivered them to appellant’s camp in Edwards county. He testified that he advised Mr. Marshall that he thought he could produce evidence that would secure the conviction of appellant for swindling. He entered into an agreement with Mr. Marshall by virtue of which he was to receive $500 for the arrest of appellant and $500 in case he was convicted. Thereafter, Mr. Marshall and other witnesses .met Baker on a highway and tatooed the ears of two wolves he had in his car. Baker then left with the wolves, going in the direction of appellant’s camp. Subsequently appellant delivered the scalps of these wolves to Mr. Marshall, representing that he had caught the wolves on Mr. Marshall’s land. ' After the arrest of appellant Baker was paid $500 by Mr. Marshall. After appellant had been indicted, Baker signed an affidavit in which he stated that the testimony he had given against appellant before the grand jury was false; that he tied the tatooed wolves near appellant’s camp and that he then advised appellant that he had taken the wolves out of his traps and tied them to a tree; that appellant was innocent of the offense he had charged him with.

In view of the disposition we make of the case, we deem it unnecessary to set out the facts and circumstances in evidence corroborative of Baker’s testimony.

Appellant denied that he had entered into an agreement with Baker to bring wolves to him from Zavalla county. He declared that each wolf he delivered to Mr. Marshall had been caught by him on Mr. Marshall’s land. In short, his testimony, if believed by the jury, entitled him to an acquittal.

.[1,2] We deem it unnecessary to discuss in detail appellant’s motion to quash the indictment. One of the grounds embraced in the motion was that the indictment failed to negative by special averment the truth of the pretenses. After alleging that appellant represented to Mr.. Marshall that the wolf for which he received pay in the sum of $200 had been caught on Mr. Marshall’s land, it was averred in the traverse clause that in truth and in fact said wolf had not been trapped ■upon the lands of Mr. Marshall but had been caught at another and different place. We understand it to be the general rule that an averment that the pretenses were false is sufficient negation of the truth of the pretenses, unless the pretense is of such nature that the negation of the truth thereof requires allegations showing affirmatively in what the falsehood consisted in order that the accused may be apprised of the evidence he must meet. 25 Corpus Juris, p. 627; Eaymond v. State, 116 Tex. Cr. E. 595, 33 S.W.(2d) 192. The nature of the pretenses involved here is not such as required that the negation of their truth should show affirmatively in what the falsehood consisted. It follows that we are of the opinion the motion to quash was properly overruled.

Appellant filed an application for a change of venue, wherein prejudice and a dangerous combination instigated by influential citizens were claimed to preclude the probability of a fair and impartial trial being accorded him. Upon the issue being joined, appellant introduced several witnesses. The state introduced no testimony.

The record shows that Edwards county has a population of 2,764 persons, according to the census of 1930, and that at the previous general election there was a vote of 802. The district clerk estimated the number of qualified jurors in the county to be about 300. He said, however, that there were a large percentage of the qualified voters — Mexicans and exempt persons — who were never called for jury service. A majority of the qualified voters lived in the county seat and vicinity. The county is devoted almost entirely to goat and sheep ranching. Of the jury serving citizens, twelve had been on the grand jury that had indicted appellant; twelve had served on the jury that had previously tried appellant for an offense involving practically the same facts as the present case; twelve or more men were members of the Wolf Club of which Mr. Marshall, the injured pa'rty, was secretary. Appellant introduced seventeen witnesses from various parts of the county. According to our analysis of the testimony of these witnesses, it reveals that the ease had been generally discussed throughout the county. In short, their testimony was to the effect that the facts were known everywhere in the county and generally discussed. Further, as we comprehend the record, the belief in appellant’s guilt was general. Practically- all of the witnesses testified that they had never heard an expression in appellant’s favor. Some of them testified that they did not believe appellant could get a fair and impartial trial. Others entertained a contrary view. However, generally these witnesses entertained the view that appellant was guilty. Of the thirty-five men on the regular jury panel, one disqualified as a witness, three as having been on the grand jury, ten as having formed opinions and conclusions which would influence their verdict. Of the remaining twenty-one, seven stated that they had formed opinions that defendant was guilty. Several of them admitted that it would require evidence to remove that opinion. Thus, of the regular panel, more than half, seventeen out of thirty-one, not disqualified otherwise, held opinions appellant was' guilty. Appellant exhausted all but two of his challenges on the regular panel, from which seven jurors were selected. Fifteen talesmen were brought in to make up the remaining five jurors. Of these fifteen tales-men, seven disqualified on their voir dire as having formed opinions which would influence their verdict. Seven admitted that they had opinions, some of them stating it would require evidence to remove such opinions. After the jury was selected, in spite of the fact that appellant challenged them, there were on the jury three men who were related to members of the Wolf Club, one a son-in-law of a member,- one a nephew of two members and a grandson of another member, and one a brother-in-law of two members. Another of the jurors was a brother-in-law of private prosecutor. Appellant renewed his motion for a change of venue, calling attention to the fact that many of the jurors had disqualified and that most of them were of the opinion that appellant was guilty. In the trial of appellant on another case involving substantially the same facts as in the present case, the evidence was heard and the court later permitted the state to withdraw its announcement of ready and dismiss the case. The courtroom was filled at the time of this trial. The opinion is expressed that, under the circumstances disclosed by the record, the venue should have been changed. We are unable to escape the conclusion that prejudgment of appellant and his case rendered it impossible for him to obtain that character of fair and impartial trial contemplated by the Constitution. It is the general rule that, if conflicting theories as to prejudice arise from the evidence, the trial court has the discretion of adopting either theory; it being his duty to weigh the evidence. McNeely v. State, 104 Tex. Cr. E. 263, 283 S. W. 522. However, when the evidence is such that it leads to the conclusion that bias, prejudice, or prejudgment of the appellant, or his case, is such as to render it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application. McNeely v. State, supra; Parker v. State, 111 Tex. Cr. R. 140, 12 S.W.(2d) 213; Boyd v. State, 111 Tex. Cr. R. 405, 13 S.W.(2d) 104, 105.

The judgment is reversed, and the cause remanded.

PEE CUEIAM.

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

On State’s Motion for Rehearing.

HAWKINS, Judge.

There is set out in the state’s motion for .rehearing excerpts from the evidence of a number of witnesses who testified upon the hearing of the application for change of venue. We have carefully re-examined all the evidence introduced upon that issue, and considering it in the light of other matters revealed by the record and alluded to in our original opinion, we think the disposition of the case was correct. It is unnecessary to write further, as it would only result in setting out in detail the evidence which is thought to justify our conclusion. This would extend our opinion to unreasonable length.

The state’s motion for rehearing is' overruled.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    WILKINS v. STATE.
    No. 15599.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    C. D. Little, of Pelly, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Upon conviction for driving a motor vehicle upon a public highway while intoxicated, appellant was prohibited from driving any motor vehicle on the highways of this state for a period of two years, and a fine of §500 was assessed against him.

The state relied upon circumstantial evidence. The issue of guilt was closely contested. Mr. Brown, accompanied by his wife and other parties, was driving on State Highway No. 3, between the towns of Stafford and Sugarland. Appellant, accompanied by his three small children and his brother, was approaching the car driven by Mr. Brown. In front of appellant was a truck which was also going toward Mr. Brown’s car. Appellant attempted to drive around the truck. Mr. Brown pulled his car off of the concrete near a ditch. Instead of passing around the truck, appellant’s car went toward the ditch and struck Mr. Brown’s car near the headlight on the left-hand side. Appellant’s car went into the ditch, and Mr. Brown and one of the occupants of his ear were thrown out and rendered unconscious. The state’s testimony was to the effect that shortly prior to the collision, appellant’s car had been “zigzagging” across the road. Thirty or forty minutes after the accident two empty pint flasks were found in the ditch within a foot of the front wheel of appellant’s car. No one testified' that the flasks had had whisky in them. After the collision appellant went to a Mexican’s house about 250 yards away, where his brother and children had preceded him. No witness to the collision testified that appellant was intoxicated. No person testified to having smelled intoxicating liquor on appellant’s breath at the time of the collision. No whis-ky was found in appellant’s automobile. Appellant testified that he had not had any intoxicating liquor prior to the collision and was in no manner under the influence of intoxicating liquor at the time. In this he was corroborated by his brother, who was riding in the automobile with him. Appellant testified, further, that he received some injuries in the collision, and that after reaching the Mexican’s house he asked for some whisky and one of the Mexicans gave him two or three drinks of whisky. He said that he sat around the fire in the house about an hour, during which time he became sick. After leaving this Mexican’s house appellant went back to the scene of the collision, where he was arrested by officers a little more than an hour after the accident. The officers testified that at the time they arrested appellant he. was drunk. Appellant introduced many witnesses who testified that appellant’s general reputation for being peaceable and law-abiding was good. The state made no effort to controvert the testimony of these witnesses.

Appellant’s first application for a continuance was based on the absence of the Mexican whom he claimed gave him whisky while he was at the Mexican’s house. It was averred in the application that this witness would testify, if present, that he saw appellant when he came to the house and that he was not under the influence of intoxicating liquor; that after reaching the house appellant took several drinks of whisky before returning to the scene of the accident. It is clear that the testimony was material. However, in view of the fact that the case must be reversed because of the matter hereinafter discussed, we pretermit further discussion of the application.

As heretofore pointed out, the issue of guilt was closely contested, appellant contending that he was not intoxicated at. the time of the collision and had not drunk any intoxicating liquor prior thereto. Shortly be-’ fore the accident a car occupied by several people was driving behind appellant’s car. Mrs. McCormick, who was riding in this car, testified that she and her companions were about a block and a half behind appellant’s car. She testified, further, that she saw appellant move his hand up to his mouth. She was then asked by the district attorney the following question: “As if doing what?” She answered, “Well, as if, I would think, taking a drink of something.” Appellant objected on the ground that the last question called for an opinion and conclusion on the part of the witness. The objection was overruled and the answer of the witness went to the jury. The witness did not testify that she saw a bottle in appellant’s hand. She based her opinion that appellant was taking a drink on the 'fact that he moved his hand to his mouth. We think the matter constitutes reversible error. From Branch’s Annotated Penal Code, § 132, we quote, as follows: “An opinion or ‘impression’ which is a mere guess is not admissible.” In support of the text the following authorities, among others, are cited: Dowell v. State, 58 Tex. Cr. R. 482, 126 S. W. 871, 874; Conde v. State, 33 Tex. Cr. R. 10, 24 S. W. 415. The statement of the witness was calculated to turn the scales against appellant on the issue as to whether he had been drinking intoxicating liquor prior to the collision.

There is nothing in the record to indicate that there was any danger of an assault being made on appellant because of the fact that his car had collided with that driven by Mr. Brown. There is nothing to show that any one had been killed as the result of the collision. On the contrary, the proof showed that no one had been killed. Appellant’s brother was asked by the district attorney, on cross-examination, the following question: “Isn’t it a fact that the reason you and your brother went to the Mexican’s house is because you knew that your brother was driving while he was drunk and that you knew that your brother had killed a man and that you were afraid that the people might jump on you and that is the reason you went to the Mexican’s house, and that is the reason you stayed there, is that a fact?” The bill of exception fails to show the answer of the witness, and hence is insufficient. Without predicating a reversal upon the matter, the opinion is expressed that, under the circumstances, the question of the district attorney was not warranted.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


author: HAWKINS, Judge.

text:
    HURST v. STATE.
    No. 15633.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Hughes & Monroe, of Dallas, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for felony theft; punishment two years’ confinement in the penitentiary.

We observe no fundamental error in the record. It is before this court without statement of facts or bills of exception. In such condition, nothing is presented for review.

The judgment is affirmed.


author: CALHOUN,. Judge.

text:
    JACKSON v. STATE.
    No. 15589.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Shropshire & Sanders, of Brady, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN,. Judge.

The offense, selling intoxicating liquor; the punishment, eighteen months in the penitentiary.

The purchaser, Vernon Hensley, testified that he was 17 years of age and went to the high school at Melvin; that he was in the town of Brady on the 19th day of April, 1932, and he and three other boys drove out to where appellant lived on the Mason road and he went into the house and the appellant sold him a half gallon of whisky, for which he paid $3; that he gave the money to appellant and she handed him the whisky; that it was about dark at the time they went there and he alone went into the house to buy the whisky. As to going to a place on the Mason road and buying liquor, he was cor- ■ roborated by another witness who testified that he did not know from whom the said Vernon Hensley purchased said liquor but that he went into a house and came out with the whisky.

The appellant did not testify, but her sister, Mrs. May Octeberg, testified that she had lived with the appellant on the Mason road about a mile south of Brady; that she was present at appellant’s house on the 19th day of April, 1932; that she knew the witness Vernon Hensley, and she, the witness, sold said Vernon Hensley a quart of whisky on the 19th day of April, 1932, and got $2.50 for the quart. She further testified that she wa-s frequently taken for her sister, Billy Jackson, the appellant. .

By proper bill of exception, appellant complains of the refusal of the trial court to grant him a new trial because of the overruling of his first application for a continuance. It was alleged in the application for continuance in substance that the indictment under which appellant was ‘ tried was returned into court on the 27th day of April, 1932. Defendant was arrested by the sheriff of McCulloch county on the 30th day of April, 1932;, that on the 2d day of May, 1932, appellant made an application for a witness by the name of Jess Posey, who resided in Brady, McCulloch county, Tex., returnable' on the 4th day of May, on which date it was understood that the entire criminal docket was set for trial; that on said 4th day of May, 1932, the subpoena was returned into court by the sheriff, showing that the same was not executed and the said Jess Posey could not be located within the county; that immediately thereafter a second subpoena for said witness was issued by the appellant and placed in the hands of the sheriff with the instructions to subpoena said witness instanta to appear before said court and testify. The return on the second subpoena showed that said witness could not be found in McCulloch county. The application further showed that, if the said Jess Posey was present in court, he would testify that he was present in the residence of the appellant on the 19th day of April, 1932, the date on which said sale was alleged to have occurred at night, and he heard a conversation by and between the appellant and the witness Vernon Hensley in which Vernon Hensley asked the appellant if she would sell him some whisky and was informed by the appellant that she had no whisky for sale; that at the time of the conversation there was an automobile stopped just outside of the house with other boys in it whom the witness did not know; that upon Yernon Hensley being informed by the appellant that she had no whisky to sell him, he returned to his car and drove off; that he would further testify that he had been to appellant’s house for more than two hours prior to the time the said Hensley tried to buy whisky and remained there a considerable time after the said Hensley had been refused said whisky, and. he knew this appellant did not sell any whisky to the said witness Hensley; that he would further testify that the appellant had two sisters who were frequently taken for her and often one or more of them lived with her; that the said sisters favored the appellant considerably and were often confused with the appellant; that if any whisky was purchased at the appellant’s residence on or about the date alleged in said indictment, that it was a purchase from one of the aforesaid sisters and not from this appellant; that while he was at said house he asked the appellant for a drink of whisky and was informed that she had none. The bill further shows that the court overruled said application and the said Posey did not appear and testify in said trial.

Attached to appellant’s motion for new trial was the affidavit of the said Jess Posey, which was to the effect that if present he would have sworn to the facts stated in the application for a continuance. The affidavit also showed that the witness had left Brady a couple of weeks before the trial for the purpose of looking for.work.

It is clear that the witness’ testimony was material. The charge of the court was especially predicated upon the alleged sale on the 19th day of April, 1932, and the issue submitted to the jury was whether or not the appellant did on the 19th day of April, 1932, sell to the witness Yernon Hensley about half sa gallon of whisky. It is the rule that, if diligence is shown, and the absent testimony appears material, and probably true, and is of such a character as that a different result might be produced thereby on another trial, the new trial should be granted. Tubb v. State, 109 Tex. Cr. R. 455, 5 S.W.(2d) 152, and authorities cited. Ordinarily, the judicial discretion rests with the trial judge in determining, in passing upon the motion for new trial, whether or not the absent testimony is probably true in view of all the evidence heard during the trial. However, if the absent witness makes affidavit that if present he would have. sworn to the facts stated in the application for continuance and such affidavit be attached to the motion for new trial, then the discretion of the trial judge to determine the probable truth of such testimony does not operate. Tubb v. State, supra; Kellar v. State, 111 Tex. Cr. R. 75, 11 S. W.(2d) 512.

After an examination of all the testimony heard upon the trial, we are confirmed in our view that the testimony of the absent witness Posey would be material to appellant’s defense and was of such a character as that its presence might produce a different result on another trial and its probable truth affirmatively appearing by affidavit of the absent witness attached to appellant’s motion for new trial, we are forced to the conclusion that the trial court’s action was erroneous in overruling appellant’s motion for new trial.

Bills of fexception 4 and 5 complain of the argument of the district attorney. Inasmuch as this case will have to be reversed upon another ground and said argument is not likely to occur on another trial, we pretermit discussion of same.

'Because of the failure of the trial judge to grant appellant’s first application for a continuance, the judgment is reversed and the cause remanded.

Reversed and remanded.

PER CURIAM.

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


author: LATTIMORE, Judge.

text:
    LEE v. STATE.
    No. 15531
    Court of Criminal Appeals of Texas.
    Jan. 18, 1933.
    Rehearing Denied Feb. 22, 1933.

      John Moyers and J. R. Creighton, both of Mineral Wells, for appellant.
    ■Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for perjury; punishment, three years in the penitentiary.

Appellant moved to quash the indictment on the ground that same alleged that the grand jury, before whom the false testimony was given, was in session in “Pala Ponto” county, Tex., and that no such county existed; also that said ' indictment alleged that the offense then being investigated by the grand jury was committed in “Palo Poito” county, Tex., hence a grand jury of Palo Pinto county would have no jurisdiction. The bill of exception bringing forward this complaint exhibits neither the original nor a certified copy of the indictment. The indictment copied in the transcript, as a necessary part thereof, recites that “the grand jury, duly sworn and impaneled, in and for the county of Palo Pinto, at the October term; 1931, of the District Court, * * * upon their oaths present into said court that on October 30, 1931, ⅜ ⅜ * in the county and state aforesaid, Albert Lee * * * before the duly organized grand jury for said county, * * * in session at the October term, 1931, of the District Court of Pala Pinto county, was a witness, * * * and it was a material inquiry before said grand jury * * * whether, in said county and state one Lono Lee did make an assault ⅜ * * and whether said Lono Lee was present at * * ⅜ and said Albert Lee did, in said county and state, before said grand jury * * * testify that said Lona Lee did not assault said Southern, and was not present at said school house on the day and date mentioned; which said testimony was in substance and effect ‘That on the 29th day of October, 1931, the said Lono Lee did not assault the said Southern in “Palo Poito” county,’ which said statement was ‘false, * * * when in truth and in fact the said Lono Lee did on said date make an assault on said Southern in Palo Pinto County, Texas, and was present at said school house,’ ” etc.

It is perfectly clear that the use of the word “Poito,” as and when stated above, was either an error in spelling or a- typographical error, which did not mislead, misinform, or in any way operate to the hurt or prejudice of appellant’s case. Harden v. State, 85 Tex. Cr. R. 220, 211 S. W. 233, 4 A. L. R. 1308. See notes under article 412, Vernon’s Ann. C. C. P.

If there was any question on this point, it is plain that, inasmuch as there was another ground of perjury laid, submitted, and proved, the trial court did not err in overruling the motion to quash. See Holden v. State, 18 Tex. App. 91; Harvey v. State, 92 Tex. Cr. R. 645, 244 S. W. 1004; Barber v. State, 64 Tex. Cr. R. 96, 142 S. W. 577; Robertson v. State, 68 Tex. Cr. R. 243, 150 S. W. 893; Mares v. State, 71 Tex. Cr. R. 303, 158 S.W. 1130; Logan v. State, 96 Tex. Cr. R. 601, 258 S. W. 830.

Appellant’s defense'was that he swore the truth before the grand jury when he said .that Lono Lee was not present and did not make the assault. This defensive theory was fully and affirmatively submitted- in the charge of the court in a manner acceptable to appellant, and we see no good reason for complaint at the refusal of a special charge seeking to have the jury told that if they believed one Norman Howell committed the alleged assault, or had a reasonable doubt thereof, to acquit appellant. The court could not give such charge in any event, in view of the fact that there was another ground of perjury laid in the indictment and relied on by the state.

There was no controversy as to the fact that appellant was legally sworn when before the grand jury, and no error appears in the court’s action in telling the jury in the charge that the oath was a legal oath; so likewise the materiality of testimony assigned as perjury is a question of law for the court ordinarily, and, under the facts of this case, it was not error for the court to tell the jury in the charge that the alleged false testimony was material. Scott v. State, 35 Tex. Cr. R. 11, 29 S. W. 274; Luna v. State, 44 Tex. Cr. R. 482, 72 S. W. 378; Jones v. State, 76 Tex. Cr. R. 398, 174 S. W. 1071. Bills of exception 3, 4, and 5 present these matters.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

No new questions are presented in appellant’s motion for rehearing. A re-examination of the indictment found in the record does not lead us to believe we were in error in our original holding that it should be sustained against the attack upon it.

The motion for rehearing is overruled.


author: MORROW, Presiding Judge.

text:
    McMillan v. STATE.
    No. 15817.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Henry Tirey, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

The appellant waived a jury and submitted his case to the court upon a plea of guilty.

In article 1, § 15, Constitution of Texas, it is said: “The right of trial by jury shall remain inviolate. The legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.”

Touching the application of the constitutional provision, the Legislature, in writing the Code of Criminal Procedure, said: “No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded.”

Also: “The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the-right of trial by jury in a felony, ease.”

See Old Code, arts. 22 and 23, White’s Ann. C. 0. P. p. 29, which are now articles 11 and 12, O. C. P. 1925.

At an early date, it was provided by statute that in a misdemeanor case the accused might waive a jury. See Johnson v. State, 39 Tex. Cr. R. 625, 48 S. W. 70; Harris’ Constitution, p. 135, § 25; Moore v. State, 22 Tex. App. 118, 2 S. W. 634. This ruling has been uniformly upheld upon the basis that the Constitution conferred a right which, without the consent of the accused, could not be impaired, but did not deny the accused the right to waive a jury. The language of the Constitution applies with equal force to a misdemeanor and felony. The decision of the court that one charged with a misdemeanor might waive a jury when so authorized by the Legislature implies that a like privilege might be exercised by one charged with a felony, except for the obstruction interposed by article 12, C. O. P., denying such privilege.

The denial of the right of the accused in a criminal case to waive a jury and submit his trial to the court resting upon a statutory declaration and not upon a provision of the Constitution, it is within the power of the Legislature to change or modify the procedure. That body having exerted its power by the enactment of the statute embraced in chapter 43, Acts of the 42d Legislature (1931), Regular Session, by the insertion of article 10a (Vernon’s Ann. O. C. P. art. 10a), and by amending articles 11 and 12, C. C. P. 1925 (Vernon’s Ann. O. C. P. arts. 11, 12), so as to modify the restriction upon the right of one accused of a felony to waive a jury in certain cases and have his case tried before the court, there exists no impediment or prohibition of the procedure followed in the present case. The conclusion here reached and stated is, in our opinion, in accord with the great weight of authority as exhibited by the decisions of other American jurisdictions in dealing with the same subject-matter as herein involved; that is to say, that the declaration of the Constitution that the right of trial by jury shall remain inviolate is not transgressed by the legislative regulation embraced in the statute above mentioned. Under the provision, the Legislature is without power to deny the right of trial by jury, but is not without power to provide for the waiving of such right. See State v. De Lorenzo, 81 N. J. Law, 613, 79 A. 839, Ann. Cas. 1912D, 329; Humphrey v. Eakeley, 72 N. J. Law, 424, 60 A. 1097, 5 Ann. Cas. 929; 2 Words and Phrases, Second Serief, 1190; People v. Peete, 54 Cal. App. 333, 202 P. 51.

The judgment is affirmed.


text:
    McMILLAN v. STATE.
    No. 15818.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    See, also, 57 S.W.(2d) 125.
    Henry Tirey,' of Dallas, for appellant.
    Uloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year.

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: HAWKINS, Judge.'

text:
    Joe McMILLAN v. STATE.
    No. 15815.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    See, also, 57 S.W.(2d) 125.
    Henry Tirey, of Dallas, for appellant
    Uloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.'

Conviction is for the sale of intoxicating liquor; punishment being, imprisonment in the penitentiary for one year.

The record is before this court without statement of facts or bills of exception. The proceedings appear to be regular. No error calling for reversal is apparent.

The judgment is affirmed.


text:
    Joe McMILLAN v. STATE.
    No. 15816.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    See, also, 57 S.W.(2d) 125.
    Henry Tirey, of Dallas, for appellant.
    Uloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

No statement of facts áccompanies the record. No brief has been filed. No errors have been perceived.

A plea of guilty was entered and a conviction by the court without a jury, which has been held permissible under chapter 43, Acts of 42d Uegislature (1931), Regular Session, by inserting article 10a, and amending articles 11 and 12, C. C. P. 1925 (Vernon’s Ann. C. C. P. arts. 10a, 11,12), thereby legalizing a judgment in a felony case less than capital rendered by the judge upon a plea of guilty. The subject has been discussed at length, in the case of McMillan v. State (Tex. Cr. App.) 57 S.W.(2d) 125, this day decided.

The judgment is affirmed.


author: CALHOUN, Judge.

text:
    Joe McMillan v. STATE.
    No. 15819.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    See, also, 57 S.W.(2d) 125.
    Henry Tirey, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

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

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or procedure has been pointed out or has been perceived. 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.


text:
    Jim HARDIN v. STATE.
    No. 15856.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    A. C. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Arson is the offense; penalty assessed at confinement in the penitentiary for two years.

The indictment is regular and regularly presented. The facts heard before the trial court are not brought up for review. No error has been perceived which would vitiate the judgment of conviction.

A plea of guilty was entered and a jury was waived. We have not been favored with a ■brief, but assume that the appeal is predicated upon the theory that article 10a, C. C. P., as it appears in chapter 43, Acts of 42nd Legislature (1931), Regular Session (Vernon’s Ann. C. C. P. art. 10a), in which, in a case less than capital, one accused of a felony is privileged to enter a plea of guilty authorizing a conviction by the judge, is contrary to the Constitution. The subject has been discussed in the case of McMillan v. State (Tex. Cr. App.) 57 S.W.(2d) 125, in which the validity of the statute has been upheld.

Upon the authority of the case mentioned, the judgment is affirmed.


text:
    Jim HARDIN v. STATE.
    No. 15857.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    See, also, 57 S.W.(2d) 125.
    A. C. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for conspiracy to commit arson; punishment, two years in the penitentiary.

Neither statement of facts nor bills of exception are found in the record. Appellant pleaded guilty. The indictment, the charge of the court, the judgment and sentence appear regular.

The judgment will be affirmed.


text:
    JORDAN v. STATE.
    No. 15619.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.

      Dan Moody, of Austin, and Thompson & Barber, of Colorado, Tex., for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Appellant was convicted of being an accomplice in the crime of-arson, and his punishment fixed at confinement in the. penitentiary for two years.

The indictment charged, in substance, that L. E. Sanders unlawfully and willfully set fire to and burned his own house, which was situated in the city of Colorado, Mitchell county, Tex.; that, prior to the commission of the offense, appellant unlawfully and willfully promised Sanders $150 in. money in order to procure the commission of the offense; that appellant was not present at the time Sanders burned the house.

Sanders testified, in substance, as follows: Appellant deeded him the house with the understanding that he was to bum it and collect the insurance. He paid appellant nothing for the transfer. The house was insured in his (Sanders’) name. Under his agreement with appellant, after he had burned the house, he-was to collect the insurance, which amounted to $2,000, and, after retaining $150, pay the •balance to appellant and the lienholder. On the day before the fire, he and appellant went toa filling station in an Austin car and bought a quantity of gasoline, which the filling station operator put in the gasoline tank. Later he (Sanders) went alone to the filling station in a Ford car belonging to appellant and bought some gasoline, which was placed in the tank. Appellant had given him a check for $3 with which to purchase the needed gasoline. He returned to appellant’s home and there'drained a quantity of gasoline out of the tank into a milk can which appellant furnished. He and appellant then placed the can containing the gasoline in a Ford car belonging to appellant, and he (Sanders) and appellant’s brother, Will Jordan, drove to the house. He (Sanders) poured a quantity of gasoline on the walls and set fire thereto. Leaving the house, he and Will Jordan drove down into the riverbed, where the car stuck. Abandoning the car, they returned to the home of appellant, where they slept for the remainder of the night.

In an effort to corroborate the accomplice witness Sanders, the state proved, in substance, the following: On October 20,1931, appellant, joined by his wife, deeded the house in question to Sanders; the consideration recited being $1,350 cash and the assumption by Sanders of an $800 indebtedness to Mrs. Annie L. Smith, and the execution and delivery by Sanders of a note in the sum of $850. On the morning after the fire, Frank Barnett pulled a Ford car out of the riverbed for appellant. Several hours prior to the burning, appellant and Sanders drove to a filling station in an Austin car and had some gasoline put in the tank, for which appellant paid by check. Later Sanders returned to the station, unaccompanied by appellant, and purchased some gasoline and oil, for which he gave a check signed by appellant in the sum of $3. The gasoline was put in the tank of the car. A fire truck driver drove to the fire, but did not get out of his car. A. R. Woods had a series of negotiations with appellant which culminated in Woods conveying the property in question to one Beech, and Beech, in turn, conveying the property to appellant, which appellant later conveyed to the witness Sanders, receiving from Sanders a note or notes in the sum of $850. The note or notes received by appellant were then assigned by him to Woods. Woods was responsible for the consideration recited in the conveyance to Sanders.

We are constrained to sustain appellant’s contention that the testimony is insufficient to corroborate the accomplice witness. Where a party is charged as an accomplice to a crime, and the state relies upon the testimony of an accomplice witness, the testimony must not only be corroborated as to the fact that the offense was committed, but must be corroborated with equal cogency to the fact that the party accused as an accomplice brought himself within the purview of the statute in his advice or assistance. Langford v. State (Tex. Cr. App.) 50 S.W. (2d) 808; Lamb v. State, 101 Tex. Cr. R. 557, 275 S. W. 1038; Hall v. State, 52 Tex. Cr. R. 250, 106 S. W. 379.

Considering the corroborative evidence to the point that L. E. Sanders set fire to the house, the opinion is expressed that it is insufficient. Other than Sanders, no witness testified to circumstances tending to shoyv that the fire was of an incendiary origin.

Nor are we able to reach the conclusion that the accomplice witness was sufficiently corroborated to the point that appellant had offered him $150 to burn the house.

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.


text:
    BYBEE v. STATE.
    No. 15631.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Jeff A. Fowler and B. F. Reynolds, both of Throckmorton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, imprisonment in the penitentiary for life.

The facts in this ease show apparently an unprovoked killing of an officer who was in the discharge of his duty at a public dance. While appellant was dancing a pistol fell out of his clothes and was observed by a number of people. The officer mentioned was present and in uniform, and had on an officer’s badge. He was notified by parties who observed the pistol incident referred to, and later told appellant that he wanted to see him on the outside. The two men walked outside, and the officer said to appellant, “You are under arrest,” and laid his hand on him. Appellant said, “Wait a minute,” and pushed deceased away, and threw his right hand down to his side and pulled a pistol, and, when the officer reached for his pistol, appellant caught him by the right hand. At this time one Harry Roberts walked up to appellant’s left side with a pistol in his hand and began shooting at the officer. Witnesses testified that when Roberts fired the first shot deceased was getting his gun out, and that appellant had his pistol in his hand when Roberts fired. Appellant turned and ran downstairs, and was later arrested some miles away.

The court submitted the case to the jury upon the theory of principals. Appellant requested a charge submitting the theory that if deceased in attempting to arrest appellant did not disclose his authority, and the defendant did not know he was an officer, the defendant had a right to resist such arrest. Appellant also requested the further charge, in effect, that a person has the right under the law to resist an unlawful arrest by an officer, and that an officer in attempting to make an unlawful arrest is guilty of an assault, and that the person assaulted has a right to use whatever force is necessary to protect himself against such assault, and that if in this case the jury believed deceased made an effort to draw his pistol, or did draw it, while attempting to execute an unlawful arrest, that appellant would be justified in grabbing the arm of deceased and in drawing his own pistol if it reasonably appeared to him at the time that it was necessary for him to draw said pistol in order to prevent deceased from killing him or inflicting serious bodily injury upon him. We find nothing in the record supporting either of said charges, or justifying the giving of same. We find no suggestion of an unlawful arrest, or of any force or attempted force on the part of the officer prior to the shooting by Roberts. Appellant did not testify, nor put in evidence the fact that he did not know deceased, and did not know that he was an officer, or that deceased was acting in such way as to give rise to justification on the part of appellant or Roberts upon the theory that an unlawful arrest was being attempted.

Appellant also asked a special charge upon the law of circumstantial evidence, which was also refused. We find nothing in evidence calling for a charge on circumstantial evidence. It was in direct testimony that appellant dropped his pistol, and that he was seen by a number of people to do so. Witness Parrish testified that a few minutes after this appellant said to him, “I pulled a foolish stunt by dropping my gun,” and witness said, “Yes, I seen you.” This witness said he saw Roberts, the party who did the shooting, talking to appellant, and heard him say he hoped they (evidently meaning the officers) would jump him, he would see how many brass buttons he could shoot off. Roberts said, “Stay in there, I am with you.” This was about a half hour before the dance broke up. It was in direct testimony that at the time the officer told appellant he would have to arrest him, appellant drew his pistol and had it in his hand when Roberts walked up and shot the officer. It was in direct testimony that after appellant drew his pistol at the time of his arrest, and when deceased attempted to draw his pistol, appellant caught deceased by the hand; he, appellant, having his pistol out at the time and having it pointed toward deceased when the latter was shot by Roberts. We think these facts establish by direct testimony the presence and the participation of appellant and his acting together with Roberts at the time of the fatal shooting.

We find in the record some exceptions taken to the court’s charge, but whether same were taken before or after the argument, or at what time same were taken, is not made to appear. Our statute is very explicit in requiring that the exceptions be taken before the charge is read to the jury and before the argument is begun. No complaint of any matter in the charge is made by bill of exception. We find in the record no bill of exception to anything done during the trial.

Finding no error in the record, the judgment will be affirmed.


text:
    PHELPS v. STATE.
    No. 15605.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Robey & Robey, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty„, of Austin, for the State.
   CHRISTIAN, Judge.

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

Prosecutrix, Pearl Harris, began going with appellant in January, 1930, she being at the time IS years of age, and appellant 20. The parties ceased keeping company in December, 1930. According to the testimony of the state, appellant went to see prosecutrix three or four times a week during the period of time mentioned. Prosecutrix testified that she had dates with no other young men during the time she was going with appellant, saying that she accompanied him to church and to parties. Further, she testified that in March, 1930, appellant asked her to marry him and she accepted his proposal. She said that «in April, which was about a month after she had become engaged, appellant solicited her to have sexual intercourse with him. Touching the first act of intercourse, prosecutrix testified, in part, as follows: “Yes, we discussed the question of marriage on that occasion; he told me he would marry me. I did not let him have intercourse with me until after he said he would marry ,me. I would not have permitted him to have intercourse with me, or bothered me, if he hadn’t promised to marry me. * * * I relied upon his promises to carry out his agreement to marry me when I let him have inter-course with me. I did not submit to Jasper Phelps and permit him to have intercourse with me just because I wanted to have intercourse; I submitted to him because I was afraid he would not like me if I didn’t; I was once in love with Jasper but I am not now.” Prosecutrix testified, further, that some time in May she engaged in another act of intercourse with appellant, and that two or more acts of intercourse were engaged in with appellant prior to December 2, 1930. On the 27th of April, 1931, prosecutrix gave birth to a baby. According to her version, she and appellant were to marry in September, 1930, but appellqnt deferred the date until the 2d day of December of the same year. In December, 1930, appellant went to the state of California, where he was later arrested. According to the testimony of pros-ecutrix, after becoming engaged to appellant, she made her wedding dress, canned some fruits and vegetables, and made a number of quilts. She declared that appellant was the father of the child, and affirmed that appellant was the only man with whom she had had sexual intercourse.

In an effort to corroborate prosecutrix, the state proved that she made a wedding dress, canned a quantity of fruit and vegetables, and made some quilts. Further, the state introduced the mother of prosecutrix, who testified, in part, as follows: “As to whether or not I ever had a conversation with Jasper Phelps concerning my daughter, Pearl Harris ; well, he has been around the house there a lot when we would make cream. With reference to whether Jasper Phelps ever said anything to me with reference to his marrying Pearl Harris; he gave a dead give-away in the kitchen one night when he said he didn’t plant no cotton to have liim any quilting cotton. As to how that statement arose; I don’t know just how it started, hut we were all talking, • and he said ’he wasn’t like the Drake boy for he didn’t plant him no cotton patch to make any quilting cotton. I don’t remember what had been said about quilting up to that time. Jasper never did ask me at any time, or talk to me personally at any time about marrying my daughter Pearl Harris. Jasper talked to my sister in my presence. As to what was said then, I just can’t tell hardly what all he did say, but in substance he said that Pearl just as well work for him as work for her daddy; that is what Jasper Phelps said. He didn’t say anything to me about them marrying along in September.”

The only other circumstance relied upon for corroboration is found in the fact that appellant went to the state of California in December, 1930, and that it was there that he was arrested upon the present charge.

Appellant contends that the evidence is insufficient to corroborate prosecutrix. The opinion is expressed that this contention should be sustained. To sustain a conviction for seduction, it is essential that the prosecutrix be corroborated. This is specifically declared in article 709, C. O. P. 1925. It is likewise necessary that the corroboration extend to both the promise of marriage and the act of intercourse. Slaughter v. State, 86 Tex. Cr. R. 527, 218 S. W. 767; Barron v. State, 119 Tex. Cr. R. 565, 46 S.W.(2d) S17. To sustain a conviction, it is essential that the corroborative evidence, whether it be circumstantial or direct, must come from some source other than the prosecutrix. It has been said: “The subsequent acts and declarations of the accomplice could not be used to corroborate her.” Haney v. State, 81 Tex. Cr. R. 651, 197 S. W. 1102. The statement, however, is subject to the qualification that there are some acts of the prosecutrix which may be relevant as circumstances supporting the corroboration, provided always that the proof of them comes from a witness other than the prosecutrix. See Ice v. State, 84 Tex. Cr. R. 509, 208 S. W. 343; Underhill on Evidence, § 389; State v. Waterman, 75 Kan. 253, 88 P. 1074.

The declarations imputed to appellant by the testimony of the mother of prosecutrix are not deemed sufficient to corroborate the prosecutrix’ testimony to the effect that she submitted' to appellant’s embraces upon his unconditional promise to marry her. Nor do we believe the fact that prosecutrix prepared a wedding dress and canned some fruit and vegetables is, under the circumstances reflected by the record, corroborative of the testimony of prosecutrix touching the alleged promise of marriage. Moreover, we find nothing in the testimony which corroborates in any way prosecutrix’ testimony relative to an act of sexual intercourse with appellant. On the question of corroboration, we deem the testimony no stronger than that disclosed in the opinions in Barron v. State, supra, and Ford v. State (Tex. Cr. App.) 55 S.W. (2d) 94. In those cases it was held that the corroborating evidence was insufficient.

The judgment is reversed, and the cause remanded.

. PER CURIAM.

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


text:
    McGUIRE v. STATE.
    No. 15640.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    Jno. T. Buckley and G. W. Lindsey, both of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for attempt at burglary; punishment, two years in the penitentiary.

We find in the record no bill of exception complaining of any procedure upon the trial. Appellant -asked one special charge, which was given. We have examined the statement of facts, which shows without dispute that appellant was seen about 1 o’clock at night working with the lock of a building. As the night watchman approached, appellant fled. The officer, in an effort to stop and apprehend appellant, fired his pistol at him several times, and was himself fired upon by some other party from a nearby point. Investigation showed that the lock of the building was broken. A bolt cutter was found not far from the building shortly after the officer observed appellant working with the lock. A partly cut bolt located near the lock was also described. After appellant’s arrest, his shoes were taken from his feet and carried to the scene of his running away, and there fitted into the tracks of the party who fled from the officer. The testimony showed the tracks fit. Appéllant did not testify.

, Finding no error in the record, the judgment will be affirmed.


author: CALHOUN, Judge. LATTIMORE, Judge.

text:
    SMITH v. STATE.
    No. 15402.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    Rehearing Denied Feb. 22, 1933.

      J. J. Collins and R. W. Fairchild, both of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, cattle theft; the punishment, 2 years in the penitentiary.

A witness by the name of Dora Wheeler testified that on the 31st day of January, 1923, she lived at Camden, Tex. She was married at that time to Jack Wheeler; that he was living on January 31,1929, but died on February 26, 1931. She and her husband owned some cattle and on January 31, 1929, she turned the cattle out. This was on Wednesday or Thursday and on Friday the cattle not having returned her husband went to look for them but he did not bring the cattle back. After he could not find the cattle, he reported the same to the officers; that after the cattle had been turned out she never saw but one of them. A man by the name of Will Neal and .another man brought one head of the cattle she had turned out back to her. The cattle were marked by a cut in the ear and the mark had been cut out of the ear of the head of cattle returned to her. The cow brought back was a little red heifer and her ears were still bleeding when it was returned to her. The ears were not in that shape when she turned them out on Wednesday or Thursday; that neither the appellant nor any one else had ever claimed the cow after she got it back and she did not give her consent to any one taking the cow or marking it.

E. D. Holliday, sheriff of Polk county, testified that he had known the appellant for about fifteen years and had also known Jack Wheeler, a negro, for about four or five years. The said Jack Wheeler came to his office and he obtained a search warrant for the appellant’s place, and at daylight the next morning he went to appellant’s house with a description of the cow Jack Wheeler had lost and at the appellant’s place they found a heifer that fit the description of the one given him by Jack Wheeler; that one of the cattle found was a muley cow, and there was a heifer or two, and one heifer in the bunch was not marked; one was a red heifer about a year old and her ears had been cut. There was also a little calf. When he first got to the house the appellant was in bed, and after he found the cattle described he went to Corrigan and got Jack Wheeler and ICennie Eobinson and showed them the cattle, and Will Neal, Will Hickman, Jack Wheeler, and ICennie Eobin-son drove the cattle away at his request. He further testified that the cattle he found at appellant’s home were some cattle claimed by Kennie Eobinson and Jack Wheeler. Three of these cattle were delivered to ICennie Eob-inson and one head to Jack Wheeler. One of the cows had a new calf and there were four or five head including the calf. He only returned one head to Jack Wheeler and that was the one Jack Wheeler identified, which was a red heifer. Her ears were cut off and they were fresh marked. At the time they found the cattle there was no one on the place except the appellant and his wife and two small children. It is further in testimony that all of the cattle claimed by the two negroes, Wheeler and Robinson, were in a little pasture close to the barn except a cow and a little calf that was in the barn.

Mrs. Jettie Smith, the wife of the appellant, testified that they had two children and she and her husband were living in their own home and had about 85 or 90 acres of land there and her husband had a large pasture leased in which he kept a large number of cattle from time to time. He had had this place under lease for about a year. The officers came to her house and aroused her husband and children and placed her husband under arrest and on the same day some cattle in the lot were carried away by the parties ; that the cattle were penned in their lot on Thursday afternoon and were taken away Saturday morning; that her brother, J. P. Sirmon, put the cattle in the lot,; that her brother came to her house before these cattle were penned some time in the afternoon and stated that he had seen some of her husband’s cattle with some cattle that were freshly marked and her brother gave her a description of . the cattle; that she did not know whether her husband owned them or not but she told her brother to pen the cattle in the pen until her husband came home and if they were not his they would turn them out; that her brother did so and the cattle were penned with some of their cattle; that after the cattle were penned one of the cows had á calf and she put the mother with the calf in a stall to keep a mule from killing the calf. At the time she put them in the stall it was not her intention to take any one else’s property. She further testified that her husband had gone to Houston Thursday afternoon and was gone when her brother came to her house and told her about the cattle. Her husband did not know anything about the cattle being penned until he came back from Houston on Friday night about 10 o’clock; that she told him about the cattle but he did not go and look at them that night, but he said he would look at them the next morning, and the next morning before he had an opportunity to look at the cattle the officers came to their house.

The state also showed by the witness Hol-liday in rebuttal of the testimony of the appellant’s wife that while he was at the appellant’s house the appellant’s wife stated to him not to take the cattle off; that they belonged to her, she bought them with some money she got from her mother’s-estate; that he was not offering to take any other cattle away and made no effort to take any cattle away except cattle that had been identified by the two ne-groes. To -the same effect was the testimony of one or two other witnesses in rebuttal.

By bill of exception appellant complains that the court erred in overruling appellant's motion for an instructed verdict of not guilty because there was a material variance between the allegations in the indictment and the proof as to the possession of the animal charged to have been stolen in that the indictment charged possession and ownership in Jack Wheeler, whereas proof showed that the cattle was the separate property of Dora Wheeler, his wife, who was the last person to exercise control and management of the animal before it was taken from its accustomed range. The testimony of the witness Dora Wheeler is not clear as to whether she contended that the cattle stolen was her separate property or the community property of herself and her husband. It has been held by this court that ownership of separate property of the wife may be alleged to be in either the husband or the wife. Branch’s Ann. P. C., § 2438; Sinclair v. State, 34 Tex. Cr. R. 453, 30 S. W. 1070; Kauffman v. State, 53 Tex. Cr. R. 210, 109 S. W. 172. “Ownership of the wife’s separate property or of the community property may be alleged to be in her husband.” Branch’s Ann. P. O., § 2438; McGee v. State (Tex. Cr. App.) 46 S. W. 930: Smith v. State, 53 Tex. Cr. R. 646, 111 S. W. 939. We do not think that any error was committed in overruling appellant’s motion for an instructed verdict of not guilty by reason of any variance between allegations in the indictment and the proof.

By bill of exception i't is shown that the trial court, over appellant’s objection, excused nine regularly selected jurors summoned to serve for the week at the time of the appellant’s trial. The bill of exception shows that all of said jurors excused by the court had sat as jurors at a former date upon the trial of the case of State v. Jettie Smith, No. 6348, wherein he was charged by indictment with the theft of cattle from Kennie Robinson. It is further shown that in this case 'the appellant was charged with the theft of cattle from one Jack Wheeler. The bill further shows that each of said jurors testified on their voir dire that the fact they had sat as jurors in the case wherein the appellant was charged with the theft of the cattle from the said Kennie Robinson would not in any way have any bearing on them in their consideration on the trial of this case. The court overruled appellant’s objection to the discharge of said jurors and held such jurors disqualified and excused them from the jury panel in this case and ordered the sheriff to summon tales-men to fill out the jury. The hill further shows that had not the said jurors been excused by the court they would have been acceptable jurors to the appellant to try this case. The court allowed said bill with the following Qualification: “It was practically conceded by state’s counsel that the jurors excused sat in a companion case where the same culpable facts occurred and which had resulted in an acquittal and the court did not deem it fair that said jurors should sit in this case regardless of what they did in the former case and for that reason they were stood aside.” The facts in this case show that several head of cattle identified by Kennie Robinson as being his cattle were found in appellant’s lot at the same time that the head of cattle claimed to have been lost by Jack Wheeler was found. There is no contention that the case in which these jurors had sat was not similar so far as the witnesses and their testimony were concerned as the present case, except as to the ownership of the cattle involved, or that it was not a companion case where 'the same culpable facts occurred as in this case and which had resulted in an acquittal.

While the trial court has no authority to arbitrarily discharge a panel regularly drawn for the week or to arbitrarily remove from the jury panel any juror who is not 'disqualified to 'try the case, still a discretion is vested in the trial court in organizing the jury and the control of the proceedings by which a jury is finally selected is committed to the discretion of the court, the primary object of the proceedings being the empanelmefit of an impartial jury. 1-Iow many of the jury panel for the week were left after the court had excused nine jurors is not shown. The bill of exception fails to show that the appellant exhausted all of his peremptory challenges and that he was required to take any objectionable juror. Hence, if the court was in error in excusing the jurors, and this is not conceded, appellant having failed to show that he was injured is not entitled to a reversal as it does not appear that any mandatory ' provisions of our statute relating to the jury law have been infringed. See Hodge v. State, 112 Tex. Cr. R. 618, 18 S.W.(2d) 167.

Appellant complains that since the indictment in this ease charged the appellant with the theft of one head of cattle, and the evidence, which was circumstantial, 'tended to-show three head of cattle taken, the court erred in refusing to compel the state to elect for which head of cattle a conviction would be claimed. The wife of Jack Wheeler, the person alleged in the indictment whose cattle were taken, testified that while she had turned three head of cattle out on the range, the only head of cattle returned to her was a little red heifer. The indictment in this case contained only one count, which charged the appellant with taking of one head of cattle belonging to Jack Wheeler. The charge of the court instructed the jury that the appellant was being tried for the offense of theft, of one head of cattle alleged to have been the property of Jack Wheeler. Only one head of cattle, the little red heifer which was claimed by the wife of the said Jack. Wheeler as- one of the cattle lost by her, was found on the premises and in the pen of appellant. As we construe the charge of the court, therefore, the issue of theft of only one head of cattle was submitted to the jury. There is no evidence that the appellant was ever found in possession of the other two cattle missing. The charge of the court was equivalent to an election by the state. The state relied only for conviction as to the theft of the red heifer found on the premises of the appellant. See Weathersby v. State, 1 Tex. App. 646; Dalton v. State, 4 Tex. App. 333; Mathews v. State, 10 Tex. App. 279; Parks v. State, 29 Tex. App. 597, 16 S. W. 532.

Appellant also excepted to the charge of the court on the law of principals in that he thereby authorized a conviction of the appellant upon a state of facts not made by the evidence. Appellant also excepted to the charge of the court in that the court erred in failing and refusing to • give to the jury a charge applying the abstract statement of the law of principals as contained in his charge to the facts of the case. A witness for the state testified that the evening before the day the cattle were found in the lot of the appellant he saw two men driving three head of red cattle a little before sundown and he knew that one of the men was the appellant, and he was not sure who the other person was but believed it to be one of the Sirmon boys. No special charge was requested by the appellant seeking to apply the law of principals to the facts of the case. The appellant's wife, the only witness introduced by him, testified that the animal in controversy was penned by her brother, J..P. Sirmon, at her request at a time when her husband was absent from home. The court in his general charge embraced a special charge requested by the appellant as follows: “If you find from the evidence that J. P. Sirmon acting upon the request of Mrs. Jettie Smith penned the animal. In controversy at the home of Jettie Smith at a time when the defendant was absent therefrom, then in that event you will acquit the defendant, or if you have a reasonable doubt thereof, you will acquit the defendant.” The effect of the charge given was that, if the appellant was not present when the cattle were penned, he would not be a principal in the taking of said cattle. This sufficiently applied the law to the facts as testified to by appellant’s wife.

Appellant also contends that the court erred in failing and refusing to give to the jury a charge submitting the defensive ther ory of alibi in an affirmative way, since the evidence raised such issue, and further that the court erred in charging the jury upon the law of alibi in failing to apply the law to the facts. On the issue of alibi, the tidal court charged the jury as follows: ‘‘Ajnong other defenses set up by the defendant is what is known as alibi, that is, if the offense was committed as alleged, the defendant was at the time of the commission thereof at another and different place from that at which such offense was committed and therefore was not and could not have been the person who committed the same. Now, if 'the evidence raises in your mind a reasonable doubt as to the presence of the defendant at the place where the offense was committed (if committed) at the time of the commission thereof, you will find him not guilty.” He further instructed the jury: “Unless you find from the evidence beyond a reasonable doubt that the defendant was present and participated in the original taking of the cattle involved, if you find they were so taken from their accustomed range, you will acquit the defendant, or, if upon this point you have a reasonable doubt, you will return a verdict of not guilty in this case.” We think the charge taken ás a whole correctly presented the defensive theory affirmatively.

By bill of exception, appellant raises the question that over the objection of the. appellant the court permitted the state to introduce in evidence in this case the indictment showing certain names on the back thereof. The appellant objected to the introduction of same for the reason that the indictment was the state’s pleading in the case and further objected to reading any names from the back of said indictment because the same was not proof of anything and was' not proof of the appellant’s guilt, and the mere fact that an indictment was returned against appellant could not be considered as a circumstance of ■ guilt on the part of the defendant. The trial judge qualified said bill as follows: “The injured party being dead at the time of the trial, his name on the back of the indictment was admitted in evidence as a circumstance of non-consent and was limited.” This qualification is not excepted to by the appellant. Want of consent may be proven by circumstantial evidence if the alleged owner is dead, incompetent to testify, or when without fault on the part of the state direct testimony cannot be produced. Section, 2452, Branch’s Ann. P. C.; Jordan v. State, 51 Tex. Cr. R. 647, 104 S. W. 900; Nixon v. State (Tex. Cr. App.) 93 S. W. 555; Wilson v. State, 45 Tex. 76, 23 Am. Rep. 602. The indictment could not be offered as a circumstance of guilt on the part of the appellant and under the qualification of the court, in the absence of any other showing or contention, we must presume that the court so instructed the jury and limited the consideration by the jury of said indictment, and the witness on the back thereof, to be considered only, if considered at all, as a circumstance of the nonconsent of the person charged in the indictment to be the owner of the animal alleged to have been taken. There was no attempt on the part of the appellant so far as any evidence introduced by him shows, to show that the cow found in his lot was his animal and was not the property of Jack Wheeler. There was no issued raised-by the evidence in the case that the said Jack Wheeler ever consented to the talcing of the animal described in the indictment. We do not believe that reversible error is shown.

Appellant also complains of the refusal of the trial court to give an instructed verdict asked by the appellant instructing the jury to acquit him because of the insufficiency of the evidence to support a conviction. That possession of recent stolen property is sufficient to sustain a conviction for theft of property has been affirmed by this court in numerous cases, many of which are collated by Mr. Branch in his Ann. Tex. P. C. § 2463. See, also, Vernon’s Ann. Tex. P. C. 1925, vol. 3, p. 147, note 34; Roberts v. State, 17 Tex. App. 82. We think an inference of guilt in this case from the circumstances of recent possession was justified, especially since there was present circumstances and facts which authorized the jury to disbelieve testimony of the accused’s wife’s explanation of the possession of said cattle. Such evidence seems to be sufficient under the authorities. Roberts v. State, supra; Teague v. State (Tex. Cr. App.) 31 S. W. 401; Odell v. State (Tex. Cr. App.) 71 S. W. 971; Roberts v. State, 60 Tex. Cr. R. 24, 129 S. W. 611.

There are nineteen bills of exception in the record. All bills found in the record which have not been discussed have been examined and none of them, in our opinion, present reversible error.

Finding no reversible error in the record, 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.

Appellant presents an able motion for rehearing urging the lack of sufficient testimony ; also a supplemental motion urging that in regard to the other matters we were w-rong in our original opinion. In the latter he first insists that the trial court erred in excusing nine jurors on the ground that they had sat in a companion case against appellant in which the issues were the same, and had returned a verdict of acquittal. Appellant insists that this action of the court was based on a wrongful assumption without proof to support it. Looking to the record, we note that when this case was called for trial — -manifestly before any question of the jury could have arisen — appellant presented to the court his plea of former acquittal, alleging that the offense for which he was about to be tried, and the offense charged in indictment No. 6348, upon which he had just been tried and acquitted, were one and the same ■offense, and rested on substantially the same proof. This plea being overruled, and both parties then announcing ready, the question raised in appellant’s bill of exception No. 11, to wit, the excusing of said jurors, was passed upon by the court, and, as stated in his qualification to said bill, the state having practically conceded that the said jurors sat in a case “where the same culpable facts would occur,” we thought when we wrote originally and still think it proper for the court to excuse said jurors. No complaint of any juror who sat on the trial of the case appears.

Appellant being charged with theft of but one head of cattle, the property of Jack ' Wheeler, and the testimony showing that possession of but one of the three cattle lost by Wheeler at said time was ever traced to appellant’s possession, there can be no question of the correctness of the ruling of the trial court in refusing to notice appellant’s contention that the state should have been required to elect as between cattle or transactions. The matter needs.no discussion or citation of authorities. We cannot conceive how there could be similarity or aptness in the case of Mazureczk v. State, 59 Tex. Cr. R. 211, 128 S. W. 136, wherein the allegation was of theft of three sheep and the proof showed theft of six sheep, and possession by the accused of six sheep.

, [14] Appellant’s wife having sworn that, if the alleged stolen red heifer was in fact found in her husband’s possession, it was put in the pen by her brother Sirmon; and Splee-tosser having sworn that on the afternoon before the officers so found said stolen heifer in appellant’s pen, he saw appellant and one •of the Sirmon boys driving three head of red cattle up to appellant’s place, it was proper for the court below to submit the case on the law of principals.

The charge on alibi was in form which has often been approved. Nichols v. State, 91 Tex. Cr. R. 277, 23S S. W. 232; Hunt v. State, 85 Tex. Cr. R. 622, 214 S. W. 983; Soria v. State, 83 Tex. Cr. R. 343, 203 S. W. 57.

The sufficiency of the facts is peculiarly for the jury. Two neighboring negroes seem to have lost cattle about the same time. Both of these men have died since such alleged loss. The case here involved charged the theft of one red heifer belonging to Jack Wheeler. Said animal disappeared Wednesday or Thursday and was found in an inclosure near appellant’s house Friday night. As far as we are informed by the record, the nearest residence, aside from that of Splee-tosser, was a mile from the residence of appellant. The animal’s ears had been cut, and its mark defaced. According to three state witnesses appellant’s wife demanded that the officers not take said alleged stolen cattle, that they were hers, bought with her money. ■Appellant was at home with his wife when the officers arrived. Apparently- no one else was there save appellant, his wife, and theii-children, to whom she referred in her testimony as “My babies.” She also swore that appellant left their home with two other men, whom she said were present as witnesses, on Thursday afternoon to go to Houston, and that ¿ppellant did not get back until 10 o’clock Ftiday night. None of the parties referred to testified for the defense on this trial. Officers seem to have been on the road over which she said appellant came home Friday night at or about the time he should have come along. They testified that no truck passed them. Appellant’s brother lived about a mile from him. "We think it not necessary to further state the testimony. The presence of no other person at the home of appellant when the cattle were found on the night of their discovery, save as above indicated, fully appears. The ease does not rest "on the fact alone of the finding of the cattle in appellant’s lot.

We think the original opinion correct, and the motion for rehearing is overruled.


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    GARTMAN v. STATE.
    No. 15420.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    Rehearing Denied Feb. 22, 1933.
    Jjovett & Lovett, of Corsicana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The conviction is for the unlawful transportation of intoxicating liquor; penalty assessed at confinement in the penitentiary for one year.

Observing the appellant driving his automobile upon the highway about six o’clock in the morning, two officers followed his car for several blocks; Upon overtaking him, the officers drove up to the side of the appellant’s car and told him to pull his ear over and stop, which he did. Officer Westbrook, according to his testimony, got out of his car and walked over to the appellant and asked him what he had in the car. Appellant replied that he had some whisky. The officei-then walked to the rear of the car, raised the cover of the turtlebaek, and found eighteen gallons of whisky. At the time the appellant was called upon to stop his car, it was the intention of the officers to search it. Prior to commanding the appellant to stop, the officers had observed nothing in the car in the way of intoxicating liquors. No liquor was observed until the officers raised the turtle-back of the car.

Testimony was introduced on behalf of the appellant to the effect that Officer Westbrook, who gave the testimony mentioned above, had, in a conversation with the witness Lov-ett, stated that after the appellant was stepped upon the highway he made no statement concerning having whisky in his car, and, if he said anything, the officer did not recall it.

The county attorney testified ttpon behalf of the state that Westbrook, while before the grand jury, stated that at the time the appellant stopped, his car, and, replying to a question from Westbrook, said that the car contained whisky.

The following is reflected by bill of exception No. 1: State’s counsel said to Officer Westbrook: “Had you ever arrested Gartman before, there on that road?”

Objection to the question was sustained by the court. In the bill prepared by the appellant, however, it is claimed that the witness gave an affirmative answer to the question before the court had time to announce his ruling. In approving, the bill, the -court does not certify to the correctness of such assumption, but, on the contrary, states that he promptly sustained the objection to the question and (heard the witness make no answer, and that no request was made to withdraw any supposed answer of the witness.

Bill of exception No. 2 reflects the complaint of the failure of the court to instruct the jury that if the appellant made no statement that he had whisky in his car before Westbrook made the search of the car, and there was no probable cause for searching the appellant’s car, there should be an acquittal. In approving the bill of exception, the court made a part thereof the testimony of the witness Westbrook given before the court, but not within the hearing of the jury; the substance of such testimony being that, two weeks before the transaction upon which this prosecution is founded, the appellant, on the same road upon which his present arrest took place, was chased about a mile or a mile and a half and finally overtaken, at which time' he was driving the same car as that in which he was arrested on the present occasion, and had whisky in his possession; that the officer knew of no business in which the accused was engaged, but had information from different sources that he was engaged in the liquor business; that in addition to the search as above mentioned, the appellant had been searched in other places and had 'been indicted in other cases.

In view of the testimony heard before the court in the absence of the jury touching the subject of probable cause to make the search, the action of the court in refusing to give the charge prepared by the appellant, which ignored some of the main facts bearing upon the'subject of probable cause, is not thought to have been error. The court, in his main charge, gave an instruction upon the subject of probable cause, against which there was directed by the appellant no objection, and which was adequate under the evidence before the jury. The matter of adequate cause having been investigated out of the hearing of the jury, its sufficiency really became a question for the court. McPherson v. State, 108 Tex. Cr. R. 265, 300 S. W. 930; Maxwell v. State (Tex. Cr. App.) 51 S.W.(2d) 334.

The reception of the evidence showing the testimony of Westbrook before the grand jury is made the subject of bill of exception No. 3. The appellant having introduced testimony to the effect that Westbrook, out of court, had made a declaration to the effect that before the arrest of the appellant he made no statement that his car contained whisky, which declaration was inconsistent with the testimony of Westbrook given upon the trial, it was competent for the state to introduce evidence, which it did, to the effect that Westbrook gave before the grand jury testimony touching the declaration of the appellant mentioned, which was consistent with and in substance the same as that which Westbrook gave upon the trial. The ruling of the court in receiving such testimony is sanctioned by many authorities, some of which are cited by Mr. Branch in his Ann. Tex. P. 0., page 111.

In bill of exception No. 4 the contention is advanced in substance that the court was in error under the facts revealed in talcing into account the evidence that the appellant had eighteen gallons of whisky in his car, and in refusing to instruct the jury to disregard such evidence and acquit the appellant. The circumstances detailed by the witness Westbrook as occurring antecedent to the search of tire appellant’s car, namely, the previous knowledge of the witness touching the appellant’s transactions in intoxicating liquor and particularly the declaration of the appellant before the search was made as claimed by the witness Westbrook that the car contained whisky, were sufficient to justify the search of the appellant’s car. Precedents on the subject are Carter v. State, 113 Tex. Cr. R. 433, 22 S.W.(2d) 659; Young v. State, 115 Tex. Cr. R. 560, 27 S.W.(2d) 801; Chapman v. State, 117 Tex. Cr. R. 150, 36 S. W.(2d) 742.

It appears from bill of exception No. 5 that the appellant sought a peremptory instruction of not guilty. The argument upon the subject dealt with the matter of conflict of evidence between the testimony of Westbrook and the testimony of Lovett, as to whether prior to the search there was made by the appellant the declaration that his car contained whisky. Prom the bill it is made to appear that in the discussion of the matter mentioned, that is, the seeking of an instructed verdict of acquittal, the district Attorney, in the hearing of the jury, made reference to the fact that the appellant had been previously charged with violations of the law, and appellant contends that the remark mentioned demands a reversal of the judgment. There appears no request that the jury be withdrawn during the argument on the law question, nor does it seem that in referring to the testimony mentioned the state’s attorney went out of the record or beyond the bounds of legitimate debate.

The judgment is affirmed.


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    POWERS v. STATE.
    No. 15603.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1933.
    J. M. Rieger, of Breekenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for theft; punishment, two years in the penitentiary.

The facts show that a man named Barker found a large quantity of mercury secreted in the pasture of one Mayhall some two miles from where appellant lived. Barker testified that he informed appellant of the presence of this mercury, and at appellant’s suggestion he went with him and showed him where it was hidden. He further testified that appellant suggested that they take the property and hide it in appellant’s pasture, and that at some later time same should be sold and appellant and the others would share in the proceeds. A witness who was engaged in the junk business testified that appellant offered to sell him 240 pounds of mercury, for which witness agreed to pay the sum of 75 cents a pound. Appellant refused to agree to accept payment by check, but in accordance with a further agreement he brought the mercury into the town of Strawn the day following, at which time he was arrested by the officers who were looking for whisky.

There seems sufficient evidence of diligence on the part of the grand jury at the time the matter was brought before them, in trying to find out the owner of said mercury, but, failing in this, the indictment which was returned, under which appellant was tried, alleged the ownership of same to be unknown. The fact that it was later found out that' two gas companies had each lost a quantity of mercury, and that this fact was known at the time of trial, would not seem to affect the propriety of a prosecution of appellant under an indictment alleging theft of property from an unknown owner. Dawson v. State (Tex. Cr. App.) 61 S. W. 489. The above case is discussed in Kuykendall v. State, 117 Tex. Or. R. 571, 36 S.W.(2d) 726.

The testimony seems sufficient to justify the conviction. We find in the record no bills of exception.

No error appearing, the judgment will be affirmed.


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    POLLARD v. STATE.
    No. 15854.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    P. G. Stanford, of Plains, and R. L. Graves, of Brownfield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction in the county court of misdemeanor theft; punishment, a fine of $10. .

We are met at the beginning of our consideration of this case with the fact that the record contains no information. We find two copies of complaints, but, if there was any information presented, same is omitted from the transcript. All prosecutions originating in county courts for violations of criminal statutes are necessarily by information supported by a valid complaint. We uniformly hold that, if the information be not copied in the transcript, the ease must be reversed. Etheridge v. State, 76 Tex. Cr. R. 41, 172 S. W. 784; Id., 76 Tex. Cr. R. 43, 172 S.W. 786; Id., 76 Tex. Cr. R. 473, 175 S. W. 702. In the last-mentioned case many authorities are cited appearing in Branch’s Annotated P. O. § 520, supporting the proposition that, in a prosecution for a misdemeanor in the county courts, there must be an information which is based upon a complaint, and that, when there is no information, such prosecution cannot be maintained. It is possible that there was a proper information, and that same has been omitted from the record through inadvertence, and, if so, this' error can be corrected upon motion for rehearing. The prosecution will not be ordered dismissed, because, if there was a valid complaint originally filed in the county court, there can still be filed a valid information predicated on such complaint.

Eor the absence of an information, the judgment will be reversed and the cause remanded.