author: HIGGINS, J.

text:
    STRATTON v. GULF CASUALTY CO.
    No. 2728.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 13, 1932.
    J. B. Gotten, of Crane, and Thomas & McDonald, of Big Spring, for plaintiff in error.
    John E. Green, Jr., of Houston, P. O. Settle and R. E. D. Batts, both of Eort Worth, and Paul Moss, of Odessa, for defendant in error.
   HIGGINS, J.

This suit was brought in the district court of. Crane county by the plaintiff in error, upon appeal from an award of the Industrial Accident Board denying a claim for compensation presented to said board .by the plaintiff in error, Stratton. Stratton gave “Notice of Injury” to the effect “that on the 16th day of August, 1930, at about 12:15 p. m., I sustained personal injuries while in the employ of Gulf Production Company in Crane, Texas. The place of injury was at Battery of Tanks near well No. 79, J. T. McElroy Lease. The injury was caused to me by reason of the external and internal effects of poisonous gas and inhaling the same.” This notice was received by the Industrial Accident Board on September 16, 1930, and on the same date Stratton filed with the board “Claim for Compensation for Injury,” in which he stated that “the place of injury was at Battery of Tanks near well No. 79, J. T. McElroy lease, Crane County, Texas.” On October 16, 1930, he filed with the board an affidavit in connection with the “Notice of Injury” and with the “Claim for Compensation for Injury,” in which he stated, among other things, “that on or about August 16, 1930, while doing his usual and customary work as a pumper, and while working under the advice and instructions of the Gulf Production Company, af-fiant was accidentally gassed and was overcome by the external and internal effects of poisonous gas and poisonous gas vapors, and by breathing and inhaling the same, that af-fiant was gassed while trying to gauge an oil tank sixteen feet high. * * *

On December 16, 1930, the board entered a final award upon the claim denying Stratton compensation.

On January 17, 1931, he filed this suit. In his petition he alleged that he was injured “while engaged in the course of his employment and discharge of his duties as such employee in the plant of the Gulf Production Company located in Crane County, Texas, he was exposed to poisonous gases and poisonous gaseous fumes, it being alleged by plaintiff that said poisonous gas and poisonous gaseous fumes entered said room due to a still exploding in said plant in a sudden and unexpected manner, and while Plaintiff was endeavoring to close a maim header valve oj the maim steam line." (Italics ours.)

Defendant in error filed a plea to the jurisdiction of the district court on the ground that it was without jurisdiction to hear .the cause because the claim for injury, as set forth in the plaintiff’s petition, had never been presented to or passed upon by the Industrial Accident Board.

On August 5, 1931, plaintiff in error filed his first amended original petition in which he alleged for the first time in said -court “that on or about August 16, 1930, and prior thereto, Plaintiff herein was in the employ of the Gulf Production Company in Crane County, Texas, and while engaged in the course of his employment and in the discharge of his duties as such employee in Crane County, Texas, was exposed to poison gas and poisonous gas fumes as a gauger and pumper on or near well No. 79 on the J. T. McElroy Lease in Crane County, Texas, said gas and gas fumes arising from a tank while plaintiff was in the course of his duties as a gauger, said gas and gas fumes being present and coming up through the said hole in the tank as the Plaintiff attempted to gauge the depth of the oil in said tank, such escaping gas striking the plaintiff in the face, causing him to breathe some of said poisonous gas.”

The defendant again filed plea to the jurisdiction of the court upon the ground that the amended petition was neither in effect, nor in fact, an amended petition, because plaintiff in error therein set up a new, separate, and independent cause of fiction, abandoning his cause of action as originally filed, and had failed to comply with the provisions of the Workmen’s Compensation Act requiring suit to be filed within 20 days after notice of intention to appeal has been given to the Industrial Accident Board.

The pleas to the jurisdiction were sustained, and the suit dismissed. This writ of error is to review the action thus taken by the court.

In eases of this nature, the court is without jurisdiction unless the claim upon which the action is based has been first presented to and acted upon by the Industrial Accident Board. Lumbermen’s Reciprocal Ass’n v. Henderson (Tex. Com. App.) 15 S. W.(2d) 565; Garsee v. Indemnity Ins. Co. of North America (Tex. Civ. App.) 47 S.W.(2d) 654; Benson v. Insurance Co. (Tex. Civ. App.) 40 S.W.(2d) 966; Maryland Casualty Co. v. Meyer (Tex. Civ. App.) 41 S.W.(2d) 291; Texas Employers’ Ins. Ass’n v. Newton (Tex. Com. App.) 25 S.W.(2d) 608, 609.

In the case last cited, it was said: “The legal effect of a suit to set aside an award of the Industrial Accident Board is to invoke the judgment of the court on the issue of the insurer’s liability under the provisions of the act, upon the facts alleged in the claim presented to the board, and to substitute the court’s judgment when rendered for the prior award of the board. Texas Emp. Ins. Ass’n v. Nunamaker (Tex. Civ. App.) 267 S. W. 749, 751. It is true the trial is de novo, but that is upon the facts alleged in the claim presented to the board; one claim may not be made to the accident board and another and different claim presented in the court on appeal from the board’s action. Texas Emp. Ass’n v. Jimenez (Tex. Civ. App.) 267 S. W. 752, 755.”

Upon the hearing of the pleas, defendant in error offered in evidence the quoted portions of -the plaintiff’s original and amended petitions; also the notice of injury and claim for compensation referred to above; also the testimony of J. F. Murrell and Ray E. Campbell.

Murrell testified:

“That he was employed by the Gulf Production Company in Crane County, Texas, and was so employed on or about the 16th day of August A. D. 1930; that he was acquainted with T. H. Stratton, and had worked with him on previous occasions and was well acquainted with Mr. Stratton inasmuch as he and Mr. Stratton, the plaintiff, performed the same kind of work for the Gulf Production Company, and worked on the opposite tours; that he was well acquainted with the locations of the Battery of Tanks near Well No, 79 on the J. T. McElroy Lease in Crane County, as they existed on the 16th day of August, 1930, and also the Gas Purification plant and rooms in said plant; that he saw T. H. Strat-ton about noon August 16th, 1930, and that he did not see anything wrong with the said T. H. Stratton, or anything that would causé him to believe that he was sick as a result of receiving poisonous gas; that the nearest room in the Gas Purification plant of the Gulf Production Company was some two miles distance from the Battery of Tanks on the McElroy Lease near Well No. 79 in Crane County, and that Mr. Stratton’s place of work was not near such plant and that if Stratton was working in a room in said plant on the 16th day of August, 1930, he was not working in the line of his duty with the said Gulf Production Company; that his employment consisted entirely of working on the Battery of Tanks near Well No. 79 on the McElroy Lease some two miles from the plant previously identified;' that it was not necessary for the said T. H. Stratton, in order to perform the ordinary and customary duties of his employment for said company, to be at the plant located some two miles distance from his customary place of work and that his presence at such plant, if present, was not by the direction of the Gulf Production Company.”

Campbell testified:

“That he was employed by the Gulf Production Company on or about August 16th A. D. 1930, and was well acquainted with the location of the Battery of Tanks near Well No. 79 on the J. T. McElroy Lease in Crane County, Texas, and was also familiar with the location of the Gas Purification plant belonging to the said Company in Crane County; that it was and is some two miles distance from the Battery of Tanks hithertofore mentioned to the plant of the Gulf Production Company in Crane County.
“That the witness did not see T. H. Strat-ton on or about August 16th, A. D. 1930, and did not know where he was working on said date, but knew that Mr. Stratton was employed as an oil gauger for tlie Gulf Production Company, and that his employment on «uch date was limited to the Battery of Tanks hithertofore mentioned, all of which are some two miles distance from the plant, and that if Mr. Stratton was at the plant, and in the room in said plant on said date in question, he was not acting within the course of his employment for the said Gulf Production Company, and was not employed to perform that kind of labor for said Company.”

Plaintiff in error offered no evidence upon the hearing of the pleas.

The claim presented to the Industrial Accident Board was for an injury by gas alleged to have been received at the battery •of tanks near well 79. The affidavit filed in connection with the claim shows he was gassed while trying to gauge an oil tank 16 feet high. This battery of tanks must have been in the open.

The original petition alleges he was injured “in the plant of the Gulf Production Co.” by exposure to gas which “entered said room due to a still exploding in said plant * * * >> <■‘while plaintiff was endeavoring to close a main header valve of the main steam line.”

This petition upon its face discloses that the injury therein alleged occurred at a different place and in a different manner from the injury described in the notice of injury, claim for compensation, and affidavit presented to and acted upon by the Industrial Accident Board.

If there be any doubt as to the identity of the transaction from an inspection of the instruments themselves, it is relieved by the testimony of the witnesses Murrell and Campbell.

The evidence would abundantly support a finding of fact by the trial court that the claim presented to and acted upon by the board is not the one declared upon in the original petition. Findings of fact were not filed by the trial court,' and in support of the judgment rendered it is to be presumed by this court that the trial court found as a fact the claim sued upon is not the claim presented to and acted upon by the board.

Upon the authorities cited above, it follows the court had no jurisdiction of the cause of action declared upon in the original petition.

The amended petition is based upon the same claim presented to the board, but, since it was not filed within the 20-day (section 5, art. 8307, R. S.) period allowed for an appeal from the ruling and decision of the board, the court had no jurisdiction of the cause of action declared upon in the amendment. Therefore the jurisdictional pleas were properly sustained.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    FIRST NAT. BANK OF DALLAS v. BROWN et al.
    No. 5971.
    Supreme Court of Texas.
    Oct. 18, 1932.
    Coke & Coke, Rosser J. Coke, and B. O. Baker, all of Dallas, for plaintiff in error.
    H. P. Edwards, W. H. Clark, Jr., and McBride, O’Donnell & Hamilton, all of Dallas, and W. W. Mason, of Mexia, for defendants in error.
   HILTON E. HOWELL, Special Chief Justice.

The opinion of the Court of.Civil.Appeals from whose judgment a writ of error was granted by this court may be found in 34 S.W.(2d) 412 to 419, where the facts are fully reviewed.

After a most careful consideration of the jurisdictional questions raised by the defendants in error in support of their motion to dismiss the application .of plaintiff in error, we have concluded that the Supreme Court is without jurisdiction to entertain the application for writ of error in this case.

Buck W. Brown sued the Investment Securities .Company of Texas and the First National Bank in Dallas. He alleged that he was a bondholder of the investment Securities Company of Texas; "that the company had defaulted in payment of-interest on his bond and was insolvent; that the bank acting under a certain trust indenture, held more than $1,000,000 of notes secured by’liens for the protection of the series A bondholders, of which plaintiff was one. He prayed for the appointment of a receiver, for judgment upon his debt alleged to be due him as a bondholder, and for foreclosure of his lien against the assets held in trust by the bank, “or in the •alternative that .his claim b.e established in this proceeding, and be, by appropriate order of this court, permitted to participate in the distribution of the funds and properties constituting such trust.” Others intervened in the suit and prayed for ⅛ similar relief as the plaintiff.

The trial court set a date for hearing on the plaintiff’s plea for the appointment of a receiver. At the conclusion of this hearing the court found that the stipulation in the trust indenture, giving the bank as trustee the exclusive power to enforce the security for the protection of the bondholders, was “ineffective and void,” and that necessity existed for the appointment of a receiver. He thereupon entered an order appointing a receiver to take over the series A trust assets. The order contained the additional provision: “It is further ordered that when such receiver shall have given bond and taken the oath as aforesaid, notice shall issue to the defendants, and each of them, restraining them from further proceeding under the terms of said trust indenture dated July 15, 1924, and executed by said defendants.”

The court.order did not adjudicate as to the claims of the plaintiff, Buck W.. Browp, of those of the .various interveners suing as bondholders for debt and foreclosure, etc. The bank perfected its appeal from said order within the time allowed by law for appeals from interlocutory orders. Article 2250 of Revised Statutes of 1925. The Court of Civil Appeals affirmed the action of the lower court.

The jurisdictional question is presented as to whether or not the order of the trial court was one of such finality as to permit this court to determine the issues raised in view of the provisions of article 1821, Texas Revised Statutes of 1925. That article says:

“The judgments of the Courts of Civil Appeals shall be conclusive on the law and facts, nor shall a writ of error be allowed thereto from the Supreme Court in the following cases, to-wit: * * *
“6. In all appeals from interlocutory orders appointing receivers or trustees, or such other interlocutory appeals as may be allowed by law.” [Subdivision 5 in 1929 amendment, Vernon’s Ann. Civ. St. art. 1821.]
'' Able counsel for the plaintiff in error bank and amici curiae contend forcefully that the order entered by the trial court is such a final judgment as to justify this court in taking jurisdiction. They cité the case of Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S. W. 326, 329, decided by this court, and other eases to support their position.
In the Waters-Pierce Oil Co. Case a final judgment had been entered for the state of Texas against the defendant oil company for $1,632,000, and its permit to do business in this state had been forfeited. Thereafter, and during the same term of court, the district judge appointed a receiver. This court in its opinion stated: “It is also objected by the state’s counsel that this court has no jurisdiction of this branch of the proceeding, because the order appointing the receiver is an interlocutory order, and this court has jurisdiction only of final judgments of the Court of Civil Appeals. If this be an interlocutory order, then the objection is well taken; for this court has no jurisdiction to review such an order of the district court and of the Court of Civil Appeals. Mr. Freeman defines an interlocutory judgment in the following language: ‘An interlocutory decree is one made pending the cause and before the hearing on the merits.’ Freeman on Judgments, § 29. This definition has been approved by this court in the case of Linn v. Arambould, 55 Tex. 611. Mr. Freeman defines a final decree as follows: ‘A final decree is one which disposes of the cause either by sending it out of the court before a hearing is had on the merits, or, after a hearing on the merits, decreeing either in favor of or against the prayer of the bill.’ The order clearly comes within the definition of a final decree or order; for, so far as the defendant was concerned, it finally disposed of the matter then before the court, which was the appointment of a receiver to take the prop-terty into his custody as a consequence of the complete determination of the controversy.”

As stated by the court in that case, there had been a “complete determination of the controversy.” In the case at bar, however, no judgment has been entered for the plaintiff and interveners establishing their individual claims against the defendants, and there has not been a complete determination of the controversy. Only an interlocutory order appointing a receiver and’ enjoining the defendants from interfering with him in performing his specified duties under court order has been entered by the court.

Other cases cited by counsel hold that such court orders as those approving final reports of masters in chancery, receivers, or commissioners in a partition suit are final judgments for purposes of appeal. See Keystone Pipe & Supply Co. v. Liberty Refining Co. et al. (Tex. Com. App.) 260 S. W. 1018, and cases therein cited. It is argued in connection with those cases that, as between the bank and Buck W. Brown, the order entered was final in that the provision in the trust indenture giving exclusive control of the securities involved to the bank as trustee, was found to be ineffective and void, and that this was the only point at issue so far as the plaintiff in error bank is concerned. We do not believe that the cases cited are applicable to the facts involved in this cause. The order appointing a receiver necessarily involves a tentative finding by the court that the trust agreement did not give the bank exclusive control of those assets. Otherwise the court would have no reason to appoint a receiver. Such an express finding does not, in our opinion, render the order appointing a receiver a final judgment nor alter its legal effect in a manner to justify this court in taking jurisdiction in the face of the express provisions of article 1821, supra.

Under these circumstances this court has no jurisdiction by the plain letter of the statute, and this is true even though, as indicated by counsel for plaintiff in error, the matter of entering a final judgment in the trial court might be a perfunctory one. Nor can this court be guided by a consideration of the importance of the case at hand because of vital questions raised or the large amounts involved, this being a case coming within a class over which, in its present status, this court is denied jurisdiction 'by statutory enactment regardless of the important issues at stake.

Having held that no final judgment has been entered, but only an interlocutory receivership order, this court is not authorized to take jurisdiction under the provisions of article 1728 of the Revised Statutes of 1925, which expressly restrict such jurisdiction to cases “when same have been brought to the Courts of Civil Appeals from final judgment of trial courts,” and exclude cases involving alleged errors of substantive law whenever “the jurisdiction of the Court of Civil Appeals is made final by statutes.”

Authorities deemed in point are Leyhe v. McNamara (Tex. Com. App.) 243 S. W. 1074; East & West Texas Lumber Company et al. v. Williams et al., 71 Tex. 444, 9 S. W. 436; Lodge et al. v. Twell, 135 U. S. 232, 10 S. Ct. 745, 34 L. Ed. 153.

The plaintiff in error contends that this is an appeal from an order granting an injunction and that this court has jurisdiction under article 4662 of the Revised Civil Statutes of 1925 and under the decision of this court in the case of Houston Oil Co. of Texas v. Village Mills Co., 109 Tex. 169, 202 S. W. 725, 226 S. W. 1075, which holds that the Supreme Court has jurisdiction to grant writs of error in appeals from interlocutory-orders granting injunctions.

The plaintiff in the trial court prayed tor the appointment of a receiver as well as for a judgment of debt and foreclosure, but he did not pray for an injunction. The court appointed a receiver and restrained the defendants from proceeding in conflict with the receiver. Hid such a restraining clause change the character of the interlocutory order from one of receivership to one of injunction? We must look to the.main character of the - proceeding. Maxfield v. E. L. Sterling & Sons, 110 Tex. 212, 217 S. W. 937. To uphold the jurisdiction of this court by answering this question in the affirmative would be to render virtually meaningless the statute excluding jurisdiction of this court in all appeals from interlocutory orders appointing receivers. The appointment of a receiver implies the exercise of exclusive control over the receivership property by the court. To that end an order appointing a receiver is injunctive in nature as against those who. might interfere with the control of the receivership property. It follows that the inclusion in the order of the restraining clause in question was an incident to the receivership order, such a clause being ancillary to, and essentially a part of, the interlocutory order appointing the receiver, and that by reason of such restraining clause this court is not given jurisdiction. 23 Ruling Case Law, p. 46; Treat v. Pennsylvania Mutual Life Ins. Co., 199 Pa. 326, 49 A. 84, 85 Am. St. Rep. 788.

The petition for writ of error is, therefore, dismissed.


author: CHRISTIAN, J.

text:
    BROWN v. STATE.
    No. 15627.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for twenty-two 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: MORROW, P. J.

text:
    THOMAS v. STATE.
    No. 15565.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Cline & Cline, of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for burglary of a private residence; penalty assessed at confinement in the penitentiary for a period of five years.

The appellant entered a plea of guilty and waived a jury.

There is found in the record an unverified statement of the appellant, signed by Charles Thomas and Cline & Cline, his attorneys, stating that the plea of guilty, was due to the persuasion of the attorney who was appointed to represent him. The matter is not presented here by a statement of facts or otherwise, sa that this court may be authorized to review the subject.

The judgment is affirmed.


author: LATTIMORE, J.

text:
    Ex parte HERRING et al.
    No. 15648.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Vickers & Campbell, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

This is an appeal from an order of the district court fixing bail of applicants at the sum of $15,000 for each, following their indictment for the offense of robbery with firearms, or being an accomplice to the offense of robbery with firearms.

The facts in the record show that those in charge of a bank at Seagraves, Tex., were held up by one Edwards, who had in his hand a pistol, and by its exhibition compelled the - employees of the bank to deliver to him quite a sum of money. No one was, injured or hurt.. Edwards was the only person who entered the bank and took any active part in the alleged robbery. The theory of the state is that Edwards and these two applicants, with others, had theretofore planned the robbery, and that these applicants are accomplices. Slaughter, one of the applicants herein, made a written confession admitting his guilt as an accomplice, and asserting that of the other applicant, Herring. The state undertakes to corroborate Slaughter by circumstances which might be taken as corroborating his confession. Plainly the confession of' slaughter would not be admissible upon the trial of Herring if a severance should be had and the parties be tried separately.

The testimony shows said parties to have made reasonable effort to make the bail fixed by the trial court herein without success, and that, in the opinion of the witnesses introduced, the parties would not be able to make bail in the amount fixed. There is nothing in the record supporting the conclusion that applicants, if tried and convicted, would be given the death penalty, and in the opinion of, the trial court the eases called for the granting of bail. In our judgment ■the amount of bail fixed was too much.

The judgment fixing bail at $15,000 for each applicant will be reversed, and bail fixed at the sum of $7,500 for each, upon the making of which, with good and sufficient sureties, the applicants will be released.


text:
    JANUARY v. STATE.
    No. 15558.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Earl M. Greer, of Wills Point, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for tlie State.
   CHRISTIAN, J.

The offense is manufacturing intoxicating liquor; the punishment, confinement in the penitentiary for one year. No notice of appeal appears in the record.

The appeal is dismissed.

PER CURIAM.

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


author: CALHOUN, J.

text:
    JANUARY v. STATE.
    No. 15559.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Earl M. Greer, of Wills Point, for appellant
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, possessing a still for the manufacture of 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 oí Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    WHITE v. STATE.
    No. 15643.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    L. M. Cox, of Huntsville, for appellant. ,
    Lloyd W. Davidson, State’s Atty., of Austin, for the State,
   LATTIMORE, J.

Conviction for burglary; punishment,seven years in the penitentiary.

We find in the record no bills of exception. A number of exceptions were taken to the charge of the court and appear to have been filed with the clerk of said court, but same are not approved as having been properly presented to the trial court and cannot be by us considered. Appellant asked a special charge, which was refused by the court, and we find no exception nor objection to this action of the court. There is in the record no statement of facts.

The judgment will be affirmed.


text:
    CLEVENGER v. STATE.
    No. 15529.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.

      Denman & Fowler, of Nacogdoches, for appellant.
    Lloyd W. Dayidson, State’s Atty., of Austin, for tlie State.
   CALHOUN, J.

The offense, aggravated assault; the punishment, a fine of $100.

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:
    SANTOS v. STATE.
    No. 15538.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Wright Stubbs, of Austin, for' appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possessing marijuana; punishment, two years in the penitentiary.

The record is before us without any statement of facts. Appellant moved t,o quash the indictment. There was an exception to the court’s charge for failure to charge on the law of circumstantial evidence, which we cannot appraise because of the absence of a statement of facts.

The Legislature of this state in 1930 enacted what is now article 725a of Vernon’s Annotated Penal Code, wherein the possession of any narcotic drug is penalized. In section 1 of said act the expression “narcotic drug” is defined as meaning and including, among other things, “Marijuana.” We think an indictment sufficient which charges, as in this case, that the accused possessed marijuana, and that there need be no allegation, where a specific drug is named, the possession of which is forbidden by statute, that same was a narcotic' drug.

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


text:
    MILLER v. STATE.
    No. 15617.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    L. W. Sandusky and R. H. Ratliff, both of Colorado, Tex., for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, burglary; the punishment, confinement in the penitentiary for 2 years.

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 hás been examined by the judges of the Court of Criminal Appeals and approved by the court.


author: CADHOUN, J.

text:
    MILLS v. STATE.
    No. 15469.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Joe Ellington, of Center,' for appellant.
    Dloyd W. Davidson, State’s Atty., of Aus-’ tin, for the State.
   CADHOUN, J.

The offense, possessing a still for the manufacture of 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:
    RODRIQUES v. STATE.
    No. 15528.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Denman &’Fowler, of Nacogdoches, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is transporting 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.


text:
    TAYLOR v. STATE.
    No. 14806.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Collins & Martin and Bob Calvert, all of Hillsboro, for appellant.
    Nat Gentry, Jr., of Tyler, Sam H. Allred, Jr., Dist. Atty., of Hillsboro, and Dloyd W: Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is making a false entry in a book of a state bank; the punishment, confinement in the penitentiary for two years.

Appellant was cashier of the Farmers’ State Bank of Blum. The testimony was undisputed that an entry had been made in the register of drafts on October 4,1930, showing that appellant’s bank had drawn a draft on the Continental National Bank of Fort Worth, payable to the Federal Reserve Bank, in the sum of- $5.28. Further, it was undisputed that on the date mentioned the true amount of the draft was $7,275.28. This was shown by the introduction of the draft, which appears to have been in appellant’s handwriting and signed by him, as cashier of the Farmers’ State Bank of Blum. The proof showed that the draft in the sum of $7,275.28 was in payment of a cashier’s cheek. A bank examiner testified that if the draft had been actually drawn for $7,275.28, under the circumstances stated, and entered on. the register as being in the amount of $5.28, the cash in the bank on the date in question would have been short $7,270. Due to the fact that some of the records had been burned, witnesses were unable to say that there was a shortage in the cash. Several witnesses testified that in their opinion the entry of $5.28 on the register of drafts was in appellant’s handwriting.

Appellant did not take the stand in his own behalf. Miss Beatrice Wheat, who was an elnployee of the bank, testified that she made the entry in question, and that appellant knew nothing about it. The witness explained that she had started to make an entry of $7,275.28 when she was called to some other part of the bank. She said that it was her habit to start on the right with the figures and that she had written the figures '‘5.28” when interrupted. She testified that she later placed the difference between $5.28 and the amount of the draft in the proper column on the draft register.

Appellant’s motion to quash the indictment embraced several grounds, it being averred that allegations therein were vague and indefinite, and, further, that the- indictment was duplicitous. An examination of the indictment 'discloses that it charges every element of the offense created by the statute with sufficient certainty, and that it is not duplicitous. It is in substantially the same form as the indictment set forth in King v. State, 113 Tex. Cr. R. 130, 19 S.W.(2d) 52. See, also, Boyd v. State (Tex. Cr. App.) 45 S.W.(2d) 215.

Grouping two bills of exception relating to the argument of counsel for the state, it is observed that bill of exception No. 14 presents the following occurrence: There was a great congregation of people assembled. in the courtroom in plain view of the jury. The assistant county attorney, in addressing the jury, used language as follows: “Before you find a verdict of not guilty in this case, think carefully and prayerfully of the obligation resting upon you toward'the people and toward those good people of Blum who entrusted their funds in that bank. Do you think they are here in Ellis Taylor’s behalf?”

At the time the assistant county attorney said, “Do you think they are here in Ellis Taylor’s behalf,” he waved his hand toward the congregation of people sitting in the courtroom. Appellant timely and properly objected to the argument, and the court instructed the jury not to consider the statement of counsel, but to be guided by the evidence. Bill of exception No. 16 reflects the following: The county attorney made the closing argument for the state. At the time he addressed the jury there was a large congregation of people in the courtroom. There had been no evidence adduced upon the trial showing that the Farmers’ State Bank of Blum had failed, nor was there any evidence showing that the community on the northwest side of the county had been wrecked or in any manner injured by appellant or by reason of the making of the alleged false entry. After the assistant county attorney, as shown in bill of exception No. 14, had called the attention of the jury to the presence of the people in the courtrooni, and after he had asked the jury if they thought that such people were there in appellant’s behalf, the county attorney, in the course of his closing argument, used language as follows: “I reéall in the beginning of the argument by Judge Collins that he used a.great portion of his time not discussing the merits of his case, but in discussing Nat Gentry who was here to assist the state in the prosecution of a man who had been vitally interested in a bank which failed and wrecked the whole community in the northwest side of our county.”

Appellant timely and properly objected to the remarks of counsel and the court instructed the jury to disregard that part of the argument which referred to the wrecking of the west side of the county.

The opinion is expressed that, considering the bills of exception together, the remarks of counsel for the state were, under the facts reflected by the record, obviously prejudicial. The issue of guilt was closely contested. The state relied upon circumstantial evidence to show that appellant made the entry. Miss Wheat testified that she made the entry and appellant did not know anything about it. There was no evidence supporting the statement that the community had been made to suffer by reason of the making of the false entry. The remarks injected a new issue not supported by the facts in evidence. If influenced by the remarks of counsel for the state, the jury could not likely have fairly; analyzed the testimony touching the defensive issue. Reference to the large congregation in the courtroom, in connection with the insinuation that the people composing it desired conviction, gave color to the statement that appellant had wrecked the community in which his bank was situated. It has been many times held improper to get before the jury, in argument, a fact which the state would not be entitled to prove, the effect of which is damaging to the accused. Cantu v. State, 110 Tex. Cr. R. 401, 10 S.W.(2d) 542, and authorities cited. Again, it is the announcement of the decisions when the improper argument is of such nature as to be obviously hurtful and prejudicial, a reversal will follow, although the trial court instructed the jury to disregard such argument. Goolsby v. State, 112 Tex. Cr. R. 216, 15 S. W.(2d) 1052; Branch’s Annotated Penal Code, § 362.

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:
    COOK v. STATE.
    No. 15187.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    N. L. Dalby and E. Harold Beck, both of Texarkana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Under an indictment charging him with assault with intent to murder O. S. Pigg, appellant was convicted of aggravated assault, and his punishment assessed at confinement in jail for four months, and a fine of $660.

Appellant lived across the street from the place of business of Mr. Pigg, the injured party. Two or three weeks before the difficulty, officers had made a search of Mr. Pigg’s place of business in an effort to discover intoxicating liquor. Witnesses for appellant testified that, after the raid, the injured party stated in their presence that appellant was the s- of a b- who had caused the officers to make the search. The officers who made the raid testified that the injured party accused appellant of having been responsible for the search. It appears from the record that no liquor was found by the officers. After the raid, appellant ’and Mr. Pigg were not on friendly terms. 'Shortly before the difficulty, Mrs. Johnson, who had been in Mr. Pigg’s store, was crossing the street. According to the testimony of the injured party and his wife, appellant’s wife came into the street and slapped Mrs. Johnson. Mrs. Johnson called: “Oh, Mrs. Eigg, come here, come here.” Mrs. Pigg approached, and, according to her testimony, asked Mrs. Cook to desist. Mrs. Cook replied: “She has been bothering my baby.” She then said to Mrs. Pigg: “I guess you want some of it.” At this point appellant came across the street. According to Mrs. Pigg, appellant either shoved her or hit her, she was not sure about the matter, and she fell. Mr. Pigg then ran into the street with a pistol in his hand. Although he denied that he directed the pistol at appellant, appellant and his witnesses testified that he pointed the pistol at appellant, with the statement that he was going to kill him. According to Mr. Pigg’s testimony, he merely held the pistol in his hand, saying to appellant: “Cook, you have gone far enough, I don’t want any trouble.” The testimony of Mr. Pigg and his wife was that at this point appellant ran to his yard and secured a shotgun ; that the injured party -went toward his place of business and was standing near a cold drink box when appellant raised the shotgun and fired across the street at him; that one of the shot struck him in the eye. We quote the testimony of the injured party, in part, as follows: “I fired then, when X saw he was going to fire. When I looked back he threw his gun up and then I fired. He already had his gun on me. He shot first. He shot two times, and I shot once. I was already shot when I fired.”

Other state’s witnesses testified that while the women were engaged in their difficulty appellant came to the scene and pushed Mrs. Pigg away from his wife. One of these witnesses for the state testified that after the parties had met in the street appellant walked to his yard and the injured party went to his place of business. He said appellant secured a shotgun which was in the edge of-some weeds in his yard. We quote from the testimony of this witness as follows: “When he got the gun he took two steps toward the highway then he fired. I would not say whether he had the gun to his shoulder, wouldn’t say whether he had it to his shoulder or to his side. The gun was pointed straight at Mr. Pigg when he fired. I saw Mr. Pigg. He was right at the corner of his store right behind the coke box. He was in full view of Homer Cook from here up (indicating). Mr. Pigg was just looking. I believe Mr. Pigg had his gun up like this (indicating) when he turned around at the corner of the store. Tes I am certain about that, he still had his gun. I would not say who shot first, both shots were together. I don’t believe there were but the two shots fired and they were fired together. If there were three it was awful quick.”

Other witnesses testifying for the state said that it was impossible to tell who fired first.

Appellant testified, in substance, as follows: His wife went to the street to talk to Mrs. Johnson. Mrs. Johnson refused to stop, and his wife took hold of her. Mrs. Johnson then called for Mrs. Pigg. When Mrs. Pigg reached the street a difficulty ensued between the women, and he went- to the scene and tried to separate them. He did not strike Mrs. Pigg, and was not rough or rude in any way. Mr. Pigg ran out into the street with a pistol, drew it on him, and threatened to kill both him and his wife. He went into his house and secured a shotgun. Coming onto the porch, he could not see Mr. Pigg. When he got into his yard Mr. Pigg raised up from behind an ice box, which was in front of his place of business, with a pistol in his hand, and shot at him. He then returned the fire. He had nothing to do with having Mr. Pigg’s place of business raided.

Appellant testified, on cross-examination, In part, as follows: “X went in there to get that gun to shoot with, yes. Tou say that I had no one in my mind except O. S. Pigg. No. I did not go to get the gun to shoot Mr. O. S-. Pigg with unless he shot-at mo, or attempted to. Tou say that I went back in the house and he could not have shot me back in the house. No, but he could have shot my wife or something while I was gone.”

It appears that appellant’s wife was in the street at the time of the shooting. Several witnesses corroborated appellant’s version of the transaction.

.The court submitted an instruction covering the law of self-defense. Following this instruction, the jury .were charged as follows: “Tou are further instructed that if the witness O. S. Pigg had abandoned the difficulty, if any, which occurred west of his building, and returned to his store, and you further believe from the evidence that the defendant knew that the said O. S. Pigg had abandoned the said difficulty, if any, and that •neither he, the defendant, nor his wife was then in danger of deathi or serious bodily injury at the hands of the said O. S. Pigg, and that thereafter the defendant shot the said O. S. Pigg with the intent to kill the said O. S. Pigg, then and in that event the defendant is not entitled to his claim of self-defense, if any.”

The foregoing charge was timely and properly excepted to by appellant. The opinion is expressed%that in giving the charge the court improperly limited appellant’s right of self-defense. The testimony of the state and appellant showed that appellant was not armed when he went across the road to where his wife and Mrs. Johnson were engaged in the difficulty. According to all of the testimony, the injured party came rushing out, flourishing a pistol. All of the witnesses agreed that appellant went back across the road, either into his yard or into his house, after Mr. Pigg came out with the pistol. It was after Mr. Pigg got back into his filling station and' appellant came into his yard with a gun that the shooting took place. There was no shooting prior to that time. No blows had been passed between appellant and Mr. Pigg. The effect of the charge was that if the injured party had left the scene of the difficulty between the women, and appellant knew he had left such scene, and knew that neither his life nor that of his wife was in danger, he had no right of self-defense, notwithstanding the fact that the injured party might have fired upon him when he came to the edge of his yard with the shotgun. If appellant’s testimony was to be believed, he had the right to arm himself and return for the purpose of protecting his wife, who was still" in the street. Although the jury might have believed he had such right, and further have believed that the injured party fired the first Shot when appellant was making no demonstration, yet, under the charge of the court, fhey could not have accorded the right of self-defense to appellant.

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: LATTIMORE, J. HÁWKINS, J.

text:
    SHADWICK v. STATE.
    No. 14815.
    Court of Criminal Appeals of Texas.
    Jan. 27, 1932.
    Appeal Reinstated June 22, 1932.
    Rehearing Granted Oct. 19, 1932.
    Will R. Saunders, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The trial term of the court below adjourned on December 12, 1930. On January 6, 1931, what is denominated a recognizance bond was made. It appears to be approved only by the sheriff. The law requires that an appeal bond made after the adjournment of the trial term shall be approved by the sheriff and the district judge. There being no legal recognizance or appeal bond in this case, this court is without jurisdiction.

The appeal will be dismissed.

LATTIMORE, J.

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

At a former day of this term, this appeal was dismissed because of a defective appeal bond. A proper appeal bond having been filed, the appeal is reinstated, and the case now considered on its merits.

A. C. Dale was a railroad man, working about May 14, 1930, for the P. & S. P. Ry. Co. Appellant was a switch foreman for the same railroad company at said time, working in and around Pampa. Mr. Guyer operated the Texas Garage at Pampa. Moon, Hiatt, and Sweeney worked in various capacities for the Phillips Petroleum Company which had a refinery at Pampa, connected with which were loading racks for loading gasoline refined by the company. On the morning of May 14, 1930, two Phillips Petroleum Company cars were shown J>y the records of the railway company to be on the loading racks of said Petroleum Company. The numbers of these cars appear in the record. On that same day Dale sold a car of gasoline to Guy-er at nine cents per gallon. The two cars above referred to were moved from the loading rack of the Phillips Petroleum Company to a track which served a storage tank of the Texas Garage operated by Mr. Guyer, and on the morning of May 15th one of these cars was unloaded into said storage tank. After it was unloaded, and on the same day, Dale demanded and received from Guyer a check for $731.97 in payment for said ear of gasoline. The check was payable to A. C. Dale. On the same day said check was taken to a bank in Pampa by this appellant, Shad-wick, and the amount thereof was deposited by him in said bank to his credit. The railroad records of the location and movement of cars in the yards at Pampa showing that on the morning of May 14th said cars were at the Phillips Petroleum Company’s loading rack, and the next check of said cars showing that the following morning they were on the track serving the storage tank of the Texas Garage, and there being no record of any order for them to be so moved, evidently caused suspicion and led to investigation, following which arrests were made. Two accomplices swore to facts which made out a complete case of theft of said gasoline, and showed that appellant was an active participant in the commission of the crime, it being his part to move and dispose of the gasoline after it had been made ready for shipment and disposition by the conspirators who worked for the Phillips Petroleum Company.

Appellant in Ms brief urges the lack of corroboration of the accomplices. That the money or check given Dale for the stolen gasoline by Guyer on the 15th of May was established by witnesses, not accomplices, to have been turned over to appellant and to be in his possession and by deposit in the bank asserted to be his, on the same day the gasoline was stolen, appears without dispute. The accomplices claimed that appellant paid to them several hundred dollars a few days after the theft. Appellant’s account at his bank showed the deposit of the $731.97 on May 16th, and also showed a few days later a check-out from said account of $450, a sum sufficient to cover the amount claimed by the accomplices to have been paid them by appellant as their part of the proceeds of the stolen gasoline. In our opinion, there were circumstances corroborating the accomplices, and sufficiently tending to connect appellant with the theft of the gasoline.

Appellant asserted misconduct of the jury, claiming that, after retirement, they discussed his failure to testify. Three jurors testified upon the hearing of the motion for new trial. It was shown beyond question that upon the first ballot the jury stood nine to three for conviction, those voting not guilty being Hurst, Propst, and Andrews. The testimony of Hurst and Propst makes plain that, whatever reference may have been made, to the failure of defendant to testify, it had nothing to do with changing their views from not guilty to guilty. Article 710, O. C. P., forbids that the failure of the defendant to testify shall be taken as a circumstance against him. This court has often held that mere casual references to the failure of the accused to testify, which are cheeked and the matter not .discussed in such way as to make evident the fact that it was taken by the jury, or some member thereof, as a circumstance against him, will not be cause for reversal. Mr. Boston, foreman of the jury, testified that there was a reference made to the failure of appellant to testify. According to his testimony, this statement was made by Mr. Hurst, one of the jurors who was favorable to appellant, and the last juror to vote for conviction. In one place Mr. Boston testified that Mr. Hurst was the one who called attention to the failure of defendant to testify. It appears from the testimony of Mr. Hurst, as well as that of Mr. Boston, that Mr. Hurst called for the presence in the jury room of certain written testimony material to the case which was sent in, and that, after Hurst examined this, he said he was ready to vote for conviction. We think the trial court within his discretion in overruling the motion for new trial, See Wilson v. State, 87 Tex. Cr. R. 538, 223 S. W. 217; Taylor v. State, 88 Tex. Cr. R. 470, 227 S. W. 679; Vinson v. State, 96 Tex. Cr. R. 307, 257 S. W. 905; Lamb v. State, 98 Tex. Cr. R. 358, 265 S. W. 1035.

There is complaint of the argument of Mr. Weeks, special prosecutor, which argument is set out in the bill of exception as follows:

“These deposit slips and this check make out the State’s case (referring to the deposit slips of H. J. Shadwick and the check for $731.97,drawn on the First National Bank of White Deer, Texas, signed: ‘White Deer Motor Company by L. M. Guyer,’ and shown to have been deposited to the credit of H. J. Shadwick in the First National Bank of Pam-pa, Texas). No witness has been called by the defendant to deny them.”.

Appellant asserts that this was such reference to the failure of the defendant to testify as to furnish ground for reversal. We are not able to agree with appellant. The part of the argument so claimed as a reference to appellant’s failure to testify must be the statement: “No witness has been called by the defendant to deny them.” Guyer was a witness to the check referred to, and said he gave it to Dale. Dale was not called to testify, nor was he offered as a witness by the accused. To say that he could not have testified because indicted for the same offense would involve an assumption wholly without support in this record. For all we know, Dale may have been tried and acquitted, or the state might have waived any objection to Dale testifying. We cannot lend support to such a claim advanced without more proof to establish it. Again, the record shows the transaction between appellant and Mr. Vickers to have occurred at a bank where, for aught this record shows, there may have been a dozen people cognizant of the matters pertaining to the deposit of the money. The language used which by interpretation is attempted to be construed as referring to the failure of defendant to testify must be of such a character as that the reference is a necessary one, in order to effect a reversal.

Appellant’s bill of exception No. 6 sets out four pages of questions and answers of the witness Hiatt, to ⅜11 of which it was objected that the testimony was immaterial and irrelevant to any issue in the case, and transpired out of the presence and hearing of appellant. As far as we are able to understand said bill, it brings here matters elicited from Hiatt explanatory of matters brought out from him by the appellant upon eross-exam- ■ ination. The statements given by this witness and appearing in the bill of exception appear to have no criminating effect upon appellant, and seem to relate wholly to the manner and circumstances surrounding the giving of a statement by Hiatt. There seems nothing in the testimony capable of any injury to the accused. We do not deem the matter complained of in this bill of exception of such serious nature as to call for a reversal.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

HÁWKINS, J.

Appellant’s motion for rehearing is predicated upon two points, first, that we were in error in holding that the evidence corroborative of that of the accomplice witnesses was sufficient; second, that we were in error in the conclusion reached with reference to appellant’s claim of misconduct of the jury.

The testimony of the accomplice witnesses connected Shadwick with the transaction, but the difficulty arises in appraising the evidence which was introduced to corroborate their testimony. The payment for the gasoline was made by a check for $731.97 payable to A. O. Dale. The record shows that Dale was present in the courtroom when the case against Shadwick was tried. He was not called as a witness. There is no explanation in the record as to how or when the check went into the possession of Shadwick. The amount of 'the check was deposited in the First National Bank of Pampa, Tex., to the credit of Shadwick 'pn May 15th. The check bears the indorsement of Dale, but does not bear the indorsement of Shadwick. The deposit slip for the amount of the cheek does not show, that it was deposited by Dale to Shadwick’s credit. It is insisted that the testimony of the officer of the bank who took the deposit, when analyzed, .shows that, while he testified it was Shadwick who made the deposit, really it was only the expression of the opinion of the witness, arrived at by a process of reasoning from the general course of business at the bank, and discloses that he had no personal recollection of the transaction whatever. This becomes important in determining the sufficiency of the evidence to corroborate the testimony of the accomplice, and presents the matter in such light as would demand further consideration but for the fact that we now believe the ease should be reversed upon another ground; therefore the question just alluded to will not be further discussed at this time, as the evidence upon the point mentioned may not be the same upon another trial.

A further review of the record in the light of appellant’s motion and the argument presented thereon leads us to believe we were in error in the conclusion with reference to appellant’s claim that the jury considered the failure of appellant to testify as a circumstance against him. The accomplice witnesses testified that, some days after the Dale check was deposited in the bank, appellant delivered a check, to one of the accomplices for a sufficient sum of money to cover their part. The exact amount of the check was not-given by any of the accomplice witnesses.' ' The ledger sheet of the bank shqws that on May 20th there was a charge against Shadwick’s account of $450. The record is silent as to the items which made up this aggregate charge. One bank official testified that, if the checks going to make up this aggregate had not been returned to Shadwick, they would still be in the bank and that he could secure them. He later returned and testified that the checks were not in the bank. It will be seen from the statement, already made that the corroborating evidence revolves around Shadwicks account as shown by the bank ledger, and the deposit of the Dale check, it being contended that the evidence was uncertain as to whether Shadwick had deposited the Dale check or whether Dale had deposited it to Shadwick’s account. Appellant’s case was submitted to the jury with the evidence in that condition. A discussion arose with reference to the matter, as clearly appears from the testimony of the three jurors introduced by appellant upon the hearing of the motion for new trial. Their evidence shows that upon the first ballot nine jurors were for conviction and three for acquittal. Boston, who was foreman of the jury, testified as follows:

“With reference to whether anything was said relative to the failure of the defendant to testify, in the jury’s deliberation, — well, some member of the jury said that if Shad-wick wasn’t guilty he ought to have gone on the stand and said so. I am not sure when that was said relative to the time we sent for the documentary evidence; I believe it was afterwards. I do not recall what member of the jury made that remark. The next ballot was taken, approximately — might have been twenty minutes after that occurred. Tes, after that remark was made and the next ballot was taken, the second ballot stood eleven to one for conviction.”

This juror further testified that as foreman of the jury he warned the jurors who had spoken about the defendant not having testified that the court had instructed them not to take that into consideration. He further said: “I am not sure the fact was mentioned again after this first time we talked about it, I believe somebody else did.”

It further appears from the testimony of this juror that they had taken with them upon retirement to the jury room the Dale check, but that, when this matter came up, they requested the court to send them the deposit slip and the ledger sheet, which was done. Boston testified further: “Mr. Hurst didn’t vote for conviction until after we Sent for the deposit slip and ledger sheets. That was the point he held off on. As to what was said in the jury room as to the deposit slip and the ledger sheets reflecting the truth and that if it did not reflect the truth, Mr. Shadwick would have taken the stand and denied it, well, it was mentioned. The fact that Mr. Shadwick didn’t testify in his own behalf was mentioned. I believe Mr. Hurst called attention to it and I told him we couldn’t use that against Mr. Shadwick. That was about it. It was mentioned and we sent for the deposit slip and we did send for the ledger sheets and it was mentioned in the jury room that these statements reflected the truth or Mr. Shadwick would have gone on the stand and denied it.”

Mr. Hurst, one of the jurors, testified as follows: “Relative to what was said, after the ledger sheets and the deposit slip had been brought into the jury room, with reference to Mr. Shadwick’s failure to testify, as near as I can recall, — well, we figured everything up there, and we just felt like that being as he didn’t testify,- he must have been guilty. .Yes, then a third ballot was taken, and I went over and voted for conviction. As to whether I mean I figured that what had been mentioned about the $450.00 check, in connection with the bank statement, and the fact that there is a claim that he got some money, that I felt that Mr. Shadwick should have produced, or caused to be produced, that check, yes, sir.”

Mr. Propst, another of the jurors, testified as follows: “As to what was said with reference to Shadwick’s failure to testify in the case — wasn’t anything I remember about. Yes, it is a fact that some of the jurors said if the check didn’t reflect the truth he would have denied it. I don’t remember what was said with reference to the ledger sheet with reference to Shadwick’s failure to explain the ledger sheet. Yes, it was being talked about. First by one, and then by another, and I don’t remember; as to whether it was mentioned several times about his not testifying, — well, I think a couple of times.”

We have not undertaken to set out in detail all the testimony of the three jurors who were examined upon the point under discussion. It is apparent from the record that the state was undertaking to show that, after the jurors had examined the deposit slip and the bank ledger sheets, they were sufficiently satisfied as to appellant’s guilt; that the change- on the part of the jurors was not brought about by any reference to appellant’s failure to testify; that, in view of the fact' that the foreman had cautioned the jury that the court had instructed them not to consider the failure of. defendant to .testify, there was no such discussion of it as would bring about a reversal of the case. This was our view .of the matter upon original submission. Further consideration leads us to the conclusion that we were in error. Article 710, O. O. P., provides that the failure of the defendant to testify in his own behalf “shall not be taken as a circumstance against him.” It seems to be perfectly clear that the jury got into a discussion as to the effect of the deposit slip and the ledger sheets; that, after examination of them, some of the jurors said, if appellant was not guilty, he would have gone upon the stand and testified regarding the deposit slip and the ledger account, and would have made an explanation of the matters which evidently in the jury’s opinion needed clearing up. These jurors evT idently were using as a circumstance against appellant his failure to testify.

Under these circumstances, we have no alternative under the provisions of article 710, - supra,' but to grant the motion for rehearing, set aside the opinion of affirmance, and order a reversal of the judgment.


text:
    ROSSER v. STATE.
    No. 15647.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    A. C. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for- the State.
   CALHOUN, J.

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

The record is before ns 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:
    TOMLIN v. STATE.
    No. 15471.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    D. R. Taylor, of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is child desertion; 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.


text:
    SANDERS v. STATE.
    No. 15545.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Wm. E. Jackson, of Hempstead, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offénse, burglary; the punishment, 25 years 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:
    MOORE v. STATE.
    No. 15439.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    John Mathis, Jr., of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for five years.

The record is before ns without a statement of facts or bills of exception. N-o question is presented for review.

The judgment is affirmed.

PER CURIAM.

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