author: LATTIMORE, Judge. MORROW, Presiding Judge.

text:
    GOSS v. STATE.
    No. 14936.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Rehearing Denied April 26, 1933.
    Moore & Wilson, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for manufacturing intoxicating liquor; punishment one year in the penitentiary.

As we view the record, it would have been a matter of practical impossibility for the state to have made the election between transactions, demanded by appellant. Two •officers who raided testified that they found a large still with all of the accompanying paraphernalia, material, etc., but they saw no one at the still when they were there on November 22d. State witness Earl Thornton was an accomplice, and his testimony related to no particular transaction, except he stated that appellant put the still out on the Wylie ranch in June and kept it there until the raid, with the knowledge and consent of witness who had charge of said ranch. He testified to no particular date or transaction. The state witness Hinson testified that he was out at the place some time near the date of the raid and saw appellant carrying water in and whisky out. He did not swear that he saw the still in operation at the time he saw appellant there, and the jury may also have concluded, under the instructions given by the court, that he was an accomplice. State witness Luther Thornton was the only other witness who swore to specific incriminating facts, and he said he remembered the occasion of the raid mentioned, and that he was at the place a few days before, and saw appellant who asked him if he would like to see the still, and showed it to him, but did not show him how it operated, nor tell him to whom it belonged. We find ourselves at an entire loss to know, under facts like these, how the court could have selected a given transaction and directed the jury’s attention to this, or how the jury could have made an election between transactions.

No such penalty was given appellant as would indicate confusion, or possibility of conviction for more than one offense. No special charge was asked by appellant pointing out any particular transactions between which he desired that an election be made. As above stated, we regard it as extremely doubtful if either the court or the jury could have responded to the request for an election. We think no error appears in the refusal of the trial court to require an election.

The only other bill of exception complains of the fact that the jury used a dictionary in their retirement in order to know what the word “anterior” meant. The word appeared in the charge of the court. The reason' why some understanding of said word was deemed necessary by the jury is set out fully in the record, but nothing suggests the use of the dictionary for any other or further purpose, and it appears to us too great a stretch of the imagination without support in proof to cause us to believe that this was such misconduct of the jury as to. call for a reversal of the judgment. We say this without intent to criticize the civil authorities cited by appellant.

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

On Motion for Rehearing.

MORROW, Presiding Judge.

In a canyon on the ranch belonging to U. L. Wilie, the officers found a copper still having a capacity of 500 gallons. It was equipped with supplies and appurtenances for operation an'd whisky was on hand. The still was situated in Motley county. No one was present when the still was found.

Earl Thornton, a brother of Felix Thornton, testified for the state that he lived on the U. L. Wylie place and was there at the time the raid took place. He was under agreement with Wilie to take care of the stock and “ride the fence.” The still was put on the place in June, 1928. The witness had seen the appellant around the still and had been told by appellant that he had made whisky. However, the witness did not see appellant make any whisky. Others besides the appellant were Interested in the still. Thornton heard appellant say that the still belonged to Pinkney George and Walter Seals. Appellant said he was paid 20 cents a gallon for his labor in making the whisky. The witness had drunk whisky from the still but had nothing to do with it. He saw the appellant sitting outside reading a magazine on the day the still was raided. The still was in operation at the time.

Olint Hinson, a witness for the state, testified that he was under indictment in Col-lingsworth county, charged with bootlegging. He knew the appellant on November 22, 1928, the time of the raid. He was there about twelve or fifteen days before the raid was made. He had seen appellant doing various things in connection with making whisky.

Felix Thornton, a witness for the state, testified that he was a brother of Earl Thornton who had lived on the Wilie place during the fall of 1928. The witness had no occasion to go there except to visit his brother. He said there was a man by the name of Jess Goss, but the witness could not say that his name was Jess Goss; nor could' he say that he was the appellant.

Luther Thornton, another brother of Earl Thornton, had visited him in the fall of 1928, when the latter lived on the U. L. Wilie place. The witness formed an acquaintance with the appellant in the fall of 1928 and saw him several times at his brother’s place. He saw the appellant the last few days before the place was raided. He was loafing around the place. The witness had never seen the still until appellant showed it to him but did not 'show the witness how it was operated. The still was about 800 yards from the house of the witness’ brother. Appellant was at Thornton’s house every time the witness was there. He saw no one drinking when he visited his brother. He was offered a drink by the appellant, who did not say whether or not the liquid was whisky.

Appellant introduced two witnesses, Gil-breath and Bartee, to prove an alibi. From their testimony, particularly that of Gil-breath, the appellant was working on Gil-breath’s place, beginning in August and working until the 12th or 15th of December, 1928. Bartee testified that the appellant worked on Gilbreath’s place and he saw him there in 1928. He did not recall the month. However it was later than September.

Appellant testified that he lived on Gil-breath’s place near Paducah, Tex., during the month of November, 1928. He denied that he had lived upon the Wilie place from August to December. He also denied operating a still there.

Appellant contends in bill of exception No. 1 that the court should have required the state to elect as to the particular transaction upon which it would rely for a conviction. The court instructed the jury to disregard all of the counts in the indictment save the fifth count, which charges that on or about the 22d day of November, 1928, “and anterior to the presentment of the indictment, in Motley County, Jess Goss did then and there unlawfully manufacture intoxicating liquor.” There were six counts in the indictment, including the averment that the appellant unlawfully possessed equipment, still, mash, etc.; another that he possessed material and supplies for manufacturing intoxicating liquor ; another that he possessed equipment for the manufacture of intoxicating liquor; another that he possessed a still for the manufacture of intoxicating liquor; and another that he possessed intoxicating liquor for the purpose of sale. There was no election made or called for until after the evidence was introduced.

After reviewing the record, the opinion is entertained that in refusing to compel the state to elect .between, the transactions, no harmful error was committed. The court, in its charge, specifically withdrew from the consideration of the jury all counts of the indictment except the fifth. Specific testimony . that the appellant manufactured intoxicating liquor (which is the offense denounced in the fifth count) is not found in the record save that which comes from one witness, namely, Clint Hinson. The remainder of the criminative testimony is merely circumstantial and corroborative. Hinson’s testimony, as stated above, is in substance that the-appellant made whisky while Hin-son was on the place and that his sojourn there was from twelve to fifteen days before the day of the raid. As understood, Hinson’s testimony is as follows:

‘T do know that I was there ten or twelve days before the raid. I saw this defendant there at the still that day (referring to the day of the raid). He was just fooling around inside the building. 1-Ie was making whisky. That is what I would call him doing. I saw him toting out whisky. I saw him filling up barrels with water. I saw him. tote it out of the building. I saw him go in the building where the still was. I went in.”

The witness said further: “I suppose that during the year 1928, I went to the still six or seven times or more. * * * That still operated in this county something like ten months. I don’t know when it was put in there and where it was when it was moved. I judge it had been at the place where the officers found it ábout four months.”

Luther Thornton was the only one of the state’s witnesses to the transaction, save the officers who made the raid, who was not an accomplice. He fixed the time of his visits to his brother at the Wilie ranch in the fall of 1928. Appellant was there at the time of the visit and showed the still to the witness. On cross-examination the witness said that appellant offered him a drink. He did not say it was whisky and the witness did not drink it.

As the record in the present case is understood, there is no testimony standing alone which would support the conviction of the appellant for the manufacture of intoxicating liquor, hut the testimony of Hinson, with adequate corroboration, would support the conviction for that offense. As indicated above, the time of the offense to which Hin-son’s testimony points is apparently the time at which the raid took place. At all events, his testimony designates no specific date except that upon which the raid took place, which was twelve or fifteen days after Hin-son went on the place. There was other testimony showing that the appellant was present on the day when the raid was made at night.

As written, we think the charge of the court .fully guards the appellant against a conviction upon the uncorroborated testimony of an accomplice, and is so drawn as to make clear to the jury the legal restrictions upon the consideration of the accomplice testimony, making it plain that there can be no conviction without corroboration meeting the demands of the law, which are set out .in the charge, and such corroboration will not be sufficient unless it comes from other sources than from one or more of the accomplice witnesses. That there was corroborative testimony other than that of the accomplices is made apparent from the reading of the statement of facts.

Bill No. 2 reflects the complaint of the appellant of the fact that one of the jurors was unacquainted with the meaning of the word "anterior,” which is found in the indictment and in the charge of the court. In the fifth count of the indictment, it is averred that the alleged offense took place “anterior to the presentment of this indictment.” The same language is used in the charge of the court. That bringing a dictionary into the juz-yroom to ascertain the exact meaning of a word could be justly characterized as misconduct of the jury or made the basis for annulment of the verdict, we think is a matter which is entirely untenable. The disclosure by the investigation could not have been harmful. It is stated in Webster’s New International Dictionary that “anterior” means “before in time; prior; antecedent.”

The motion for rehearing is overruled.


source: Caselaw Access Project

author: MORROW, Presiding Judge. LATTIMORE, Judge.

license: Public Domain

text:
    PRITCHARD v. STATE.
    No. 15826.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Rehearing Denied April 26, 1933.
    Grady Sturgeon and H. B. Birmingham, both of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,, for the State.
   MORROW, Presiding Judge.

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

The automobile driven by the appellant was intercepted upon the street and searched. In it was found a quantity of whisky. No search warrant was possessed by the officers making the search. It appears from the record that, prior to making the search, Officer Payne (who made the arrest) called the appellant over the telephone. The officer stated over the telephone that he was Jabbo Pratt and requested the appellant to bring two gallons of whisky to Pratt’s house. Appellant stated over the telephone that he would bring the whisky. Officers Biard and Hargroves were present at the time Payne telephoned the appellant about the whisky. The officers got in their ear and intercepted the appellant as he was driving his car to Pratt’s house with the whisky. They searched his car and obtained the whis-ky. Jabbo Pratt was known to the officers, according to tbeir testimony, as an illicit dealer in liquor. They used Pratt’s name to entice the appellant to bring the whisky, for the reason that they knew that Pratt had the reputation of a bootlegger; that he had been prosecuted for violating the liquor laws. The procedure was pursuant to an agreement among the officers to induce the appellant by false information to carry.the whisky in his car in order that they might arrest him on the way to Pratt’s house, which they did.

The contention that there was no probable cause for searching the appellant’s car cannot be sustained for the reason that the officers, by falsely impersonating Pratt, had induced the appellant to state to them that he would bring the whisky to Pratt’s house. On the face of the record, it cannot be judicially held that under the circumstances the officers did not have information that the appellant had whisky in his car.

Appellant invokes the proposition that the state's testimony. comes in its entirety from persons who were accomplice witnesses. That the witnesses had a guilty connection with the commission of the offense cannot be denied. However, in article 670, P. C. 1925, it is said: “Upon a trial for a violation of any provision of this chapter, the purchaser, transporter, or possessor of any of the liquors prohibited herein shall not be hold in law or in fact to be an accomplice, when a witness in any such trial.”

The effect of this statute is to make an exception, with reference to the offense with which the appellant is charged, to the statutory rule forbidding the conviction of the accused upon the uncorroborated testimony of the accomplice, as provided by article 718, C. C. P. The effect of article 670, supra, to permit the conviction upon accomplice testimony, has been given effect a number of times in the decisions of this court. See Davidson v. State, 95 Tex. Cr. R. 638, 255 S. W. 404; Hale v. State, 96 Tex. Cr. R. 186, 256 S. W. 595; Bailey v. State, 104 Tex. Cr. R. 432, 284 S. W. 574.

The request for a charge submitting the issue. of circumstantial evidence was properly refused.

The definition of “transport” was sufficiently embraced in the court’s charge.

Bills of exception Nos. 1 and 4 complaining of the reception in evidence of the testimony showing the telephone communication detailed above present no error. It appears from the testimony that the officer recognized the appellant’s voice when he answered the telephone.

We have perceived no prejudicial error in the reception of the testimony showing Jabbo Pratt’s reputation as a dealer in the liquor traffic. This refers to bills Nos. 2 and 3.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant renews complaint in his motion for rehearing of the refusal of the trial court to instruct the jury on the law of circumstantial evidence. We have again examined and analyzed the facts. An officer who talked with appellant over the telephone said he knew that the voice at the other end of the telephone was that of appellant. He testified that appellant then agreed over the telephone to bring two gallons of whisky. Appellant and another presently appeared in a car in which were two gallons of whisky. Two persons testified that the car was driven by appellant, and two that it was driven by the other party. We regard it as immaterial to the question under discussion as to who drove the car. In view of the agreement of appellant over the telephone to bring the whisky, and that he was accompanying it, to say the least, would be sufficient to support by direct proof the fact that he was transporting it.

The motion for rehearing will be overruled.


author: LATTIMORE, Judge.

text:
    SERBROCKER v. STATE.
    No. 15835.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    R. H. Sigler, of Athens, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for transporting intoxicating liquor; imnishment, one year in the penitentiary.

But one question is presented in this case, viz. that the court below erred in overruling appellant’s first application for continuance. It appears without dispute that, as soon as this case was set down for trial, appellant applied for subpoenas for five witnesses. He only had five days in which to •procure their presence. Their names, residences, etc., appear to have been properly stated. Two of the witnesses were summoned.

Appellant asked for a continuance, in proper and legal form, because of the absence of three Mexicans, also Bessie Ward and appellant’s wife; the two latter being the witness^ es upon whom subpoenas were served. As to appellant’s wife, it was shown without contradiction that she was ill on the day of trial and could not appear. As to Bessie Ward, it was shown without contradiction that she was temporarily out of the county on the day of trial, and for this reason did not appear. We forbear discussion of the application except in so far as it relates to the two witnesses served with summons, since the case must be reversed, and possibly appellant may procure the testimony of the three Mexicans referred to upon another trial.

Officers arrested appellant and found in his possession a part of a pint bottle of whisky which he had on his person, and found in the back of his car a half-gallon jar containing whisky. Appellant testified and disclaimed any knowledge of the whisky in the back of his car, and stated that the three Mexicans above referred to gave him a pint bottle of whisky for the use of himself and his wife as medicine, under circumstances a little .more fully set out later. It was set up in the application that, if Bessie Ward was present, she would testify that she lived near appellant, and on the day in question she saw three Mexicans standing around the comer, observed them go to a plot of grass and get a quart jar from which they drank something; that said Mexicans appeared to be under the influence of intoxicating liquor; she observed appellant come up presently in his car and saw him talking to said Mexicans; saw the Mexicans go to the grass plot referred to and get the jar; saw appellant go to his house and get an empty bottle into which the Mexicans poured something from the jar; saw appellant go to his house immediately afterward, and while he was gone saw the three Mexicans put the quart jar in the back of appellant’s car, into which and on the rumble seat of which two of the Mexicans got; that about this time she saw a truck come up and the two Mexicans hastily get out of the rumble seat of appellant’s car, and all three of them got in the truck and leftshe presently saw appellant come to his car, close down the rumble seat without looking in the back of the car, get in the car, and drive away. It was stated in the application that appellant’s wife would testify that she and appellant used whisky for medicine; that on the day in question appellant came in their house and got an empty bottle which he took out, and presently c.ame back with it full of whisky from which she drank some and he drank; she having cramps and he having a severe cold. She said they had a quarrel, and appellant left, and was arrested while gone. Appellant testified that he knew one or two of the Mexicans referred to, and had agreed to take them from Athens to Malakoff in his car on the occasion referred to; said Mexicans were to come to his house, and when he got home in his car they were waiting near his house. They asked him if he wanted a drink of whisky, and he told them that ho would like to have a little, and they went to the grass ¿lot referred to and got a gallon jar containing whisky from which he drank, and then asked them if they would give him a pint of it for medicine for himself and his wife. They agreeing, he -went to' his house, got an empty pint bottle, and brought it back, and they filled it from the jar. He went in the house, and when he came out the Mexicans were either gone in the truck, or were getting in the truck and leaving. He said he closed down the rumble seat of his ear without looking in it and got in the car and left; that he took with him the remaining part of the pint of whisky which he had carried in the house because he and his wife had quarreled and he needed it for his cold. I-Ie' said while away from home on this occasion he was arrested by officers who found him in possession of the partially filled pint bottle, and that when they looked in the hack of his ear they found the jar containing whisky which he did not know was there.

It does not seem to need argument to support the proposition that the testimony of Bessie Ward and appellant’s wife would have strongly supported his defense to the charge made against appellant. True, the court instructed the jury that, if they believed appellant was transporting the whisky found in his possession for medicinal purposes for himself and his wife, they should acquit. This charge as given by the court must have been understood by the jury to apply to all the whisky found in his possession. Appellant did not claim to be transporting the quart jar of whisky for medicinal purposes. If the jury believed him unaware of the presence of the whisky in the back of the car, they might easily have come to a different verdict upon the testimony. We think appellant was entitled, upon the showing made, to have the case continued, and that the learned trial judge was in error in refusing the continuance, for which the judgment must be ré-versed.

Por the error mentioned, the judgment will be reversed, and the cause remanded.


author: MORROW, Presiding Judge.

text:
    BUNN v. STATE.
    No. 15861.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    John W. Payne, of Perry ton, 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 eighteen months.

The motion for new trial was overruled on September 21, 1932. Both the bills of exception and statement of facts were filed in the lower court on December 21,1932, which was more than ninety days after the overruling of the motion foil new trial. By article 760, C. C. P., we are without authority to consider the bills of exception and statement -of facts.

The judgment is affirmed.


text:
    ADAMS v. STATE.
    No. 15808.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    C. P. Sentell, of Snyder, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

The case is one of circumstantial evidence. A store was burglarized at Hermleigh twelve miles from' Snyder, Scurry county, Tex., on the night of December 25, 1931, and 400 pounds of Imperial sugar was taken. The locks on the door were broken. The burglary was discovered the next morning, and officers were notified who came to the scene and observed the fresh tracks of a car having two smooth tires and two with treads — said by the officers to correspond with the tires on the ear of Elton Morrow. The trades of two men were also observed, one a large track, said to be about the size of Morrow’s track, and the other a smaller track, said to be about the size of appellant’s track.

A quantity of sugar, a part of which was Imperiál sugar and part Holly sugar, and also some tobacco were found the next day under a bridge about ten miles from Herrn-leigb; said bridge just referred to being on the Snyder-Colorado City highway. Officers were notified of this find, and stationed themselves to watch. They testified that that night Elton Morrow, this appellant, and Morrow’s wife came by going toward Snyder, stopped their ear, and one of the officers testified that he heard Morrow tell Mrs. Morrow, who was left in the ear, to honk the horn if she saw any one coming. Morrow and appellant went under the bridge and were in the act of moving the sugar and carrying it to the car when the officers arrested them. They told the officers that they were going that afternoon from Snyder down to Colorado City, and stopped the car near said bridge in order to let Mrs. Morrow relieve her kidneys, and that she went under the bridge, and came back presently and reported she had found a quantity of sugar. Appellant testified that this was his first knowledge of the sugar, and that he and Morrow went down under the bridge and looked at it after Mrs. Morrow reported the find, but that they went on to Colorado City, and, as they were returning that night and approached the place, some of them suggested that they go down and see if the sugar was still there, and if so they would get it.

The indictment in this case was returned in March, 1932. Shortly afterward subpoenas were obtained by the defense for Mrs. Elton Morrow and Fermon Sturdivant, among other witnesses. The case was postponed upon the application of appellant at the February term, which makes the continuance applied for by him later in October occupy the attitude of a second application for continuance. In an application for continuance made in October, 1932, it is set up that, when the case was postponed in March, it was transferred to a special district court presided over by Judge Brooks; that every time said case had been set down or called for trial in Judge Brooks’ court appellant and all of his witnesses had been present and ready for trial. It was further alleged that the case was transferred from Judge Brooks’ court to that of Judge Mauzey shortly before the date of this trial, and,, when appellant was notified of the last transfer and began to get ready for trial, he found that Mrs. Morrow was temporarily in Canada, and Fermon Sturdivant was temporarily out of the state of Texas, but it was alleged. in the application that appellant had every reason to believe these witnesses could be present at the next term of court if the case should be continued.

We think the ease should have been continued. The testimony of Mrs. Morrow as stated in the application, in effect, that she and her husband were in Post City, in Garza county, on the night of the alleged burglary, and that they drove home to Snyder through the mud that night, that the next day, December 26th, they asked this appellant to go with them down to Colorado City to visit friends and relatives, and that the occurrences above referred to on the journey to and from Colorado City occurred as above set out, would unquestionably be very material to appellant’s defense. The defense was that of an alibi, he claiming that there was a dance in Snyder on the night of December 25th, at which he was' present continuously until about 1 o’clock,' and that from the dance he went to his home, accompanied by Fermon Sturdivant, who spent the night with him. Appellant had a number of witnesses to testify to his continuoiis presence at the dance until same broke up. His relatives testified that he and Fermon Sturdivant came home together about 1 o’clock on the night of December 25th, and that they were there at about 8:30 the next morning. Sturdivant appears to be the only person who could satisfactorily account for appellant’s whereabouts from the time they went to bed until the next morning. The application for continuance contained all of the statutory requisites for a second application (Code Cr. Proc. 1925, art. 544). We think it should have been granted.

Appellant asked a special charge, in effect, that, if the jury believed that his first connection with the sugar in question was when he saw same under the bridge, or if the jury had a reasonable doubt that this was his first connection with the alleged stolen sugar, they should acquit him. This might appear an affirmative defense supplementing his defense of alibi, and it occurs to us that this charge should have been given.

For the error of the refusal of a continuance, the judgment will be reversed, and the cause remanded.


author: LATTIMORE, Judge. HAWKINS, Judge.

text:
    FREENEY v. STATE.
    No. 15775.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Rehearing Denied April 26, 1933.

      W. H. Henderson and John C. Patterson, both of Marlin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for murder; punishment, death.

When this case was called appellant moved to quash the indictment because of alleged discrimination against the negro race in the formation of the grand jury, appellant being a negro. The trial court heard evidence, and, examining same, we observe no testimony of such discrimination. The poll tax paying list of colored citizens in the county was shown to he small. Tlie jury commission were given the usual and statutory instruction by the court at the time they were impaneled. Each of them testified that they tried to select only the men best qualified to servo on the grand jury; no mention was made as to whether any man selected or left oil was a negro or otherwise. The grand jury was drawn before this homicide was committed, had had one sitting, and was at recess when this killing occurred, and were called back, and returned this indictment. We see no error in the overruling of the motion to quash. A recent case is Ramirez v. State, 119 Tex. C. R. 362, 40 S.W.(2d) 138, in which case, upon a showing more meritorious apparently than here, a writ of certiorari was refused by the Supreme Court of the United States.

Appellant on the witness stand admitted that he killed deceased by striking her with a stick. The testimony showed that the skull of deceased was crushed by a blow on the front of her head, and a witness testified that appellant said when he killed her he picked up a mesquite club and hit her over the head several times. Appellant claimed that deceased had a knife in her hand when he struck her, and that after killing her he threw both knife and stick away. Search of his house was made after the killing and a mesquite club was found, one end of which had been washed. This club weighed two pounds or more, and was of such length and size that with it a skull could be easily fractured in the opinion of a witness who examined it. Appellant has a bill of exception in which he complains that this club was shown him while on the witness stand, in the presence of the jury, and he was then asked if this was not his club, and if he did not kill deceased with it, and afterward wash it off with soap and water. Appellant objected to the question and to the exhibition of the club before the jury. When his objection was overruled, he answered that the club was his, but that he did not kill deceased with it, (dial the club was one which he kept in his house and carried with him when he went to church at night. We do not agree with appellant’s contention. He said he killed deceased by striking her on the head with a stick. Her skull was crushed. Search in the vicinity of the killing revealed no stick. In appellant’s house a few days later was found a club sufficient in length to crush a skull. Its end was washed. It was admissible in evidence.

Letters admittedly written by appellant to deceased were properly allowed in evidence. Appellant testified on the stand that deceased had lived in his house, and that he had many acts of intercourse with her, bought groceries for her, etc. He testified that after leaving his abode because of friction with bis wife, deceased would often come at night to his bouse and by sounds call him out. Another bill of exception complains of a question asked appellant about some cotton choppers, which was of no possible harm and will not be discussed.

Rill of exception No. 5 sets out that, appellant having told a witness that deceased got a knife out of her stocking just before he killed her, the same witness was allowed, over objection, to state that he saw the body of deceased when it was dug up where appellant had buried it, and that no stockings were on it.

We have discussed each bill of exception, as is our custom in death penalty eases, but find no error in any of them. The facts show that appellant, after having practically lived with deceased, who was a noticeably small negro woman, for more than four years, during which time she had several illegitimate children, having kept np a clandestine intimacy with her after she was compelled to leave his house by his jealous wife, after being heard to say to deceased “I’ll get even with you, you are trying to run over me with your other nigger,” killed her, and then buried her body in a shallow grave near his house. He defended on the ground that she was making an attack on him with a knife. The verdict of the jury settled the conflicts in the testimony.

No error appearing, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, Judge.

In the motion for rehearing it is urged that the confession of appellant proved by the state contained an exculpatory statement in view of which it is insisted that it was error for the court not to tell the jury the state-was hound by such exculpatory statement unless the state had proved its falsity.

Neither by exception to the court’s charge nor by requested special charge was it made known to the court that such instruction was desired. Even if such a charge had been called for under the facts, the failure to give it would not have demanded a reversal, in view of article 658 (as amended by Acts 1931, c. 43, § 5 [Vernon’s Ann. C. C. P. art. 658]) and article 659, C. C. P., which requires objections to instructions, and request for special charges to be made at the time of trial and before the main charge is read to the jury.

Because the death penalty was assessed leads us to further say that, if it had been made known to the court in a timely manner that an instruction on the point mentioned was desired, its refusal would not have been erroneous under the present facts. In developing its case in chief the state proved by Mr. Hay, a deputy sheriff, that while in jail appellant admitted that he killed deceased by hitting her with his fist, and with a mesquite club, and also told witness where he (appellant) had huricd the body; as a result of this information the body was found. No exculpatory statements of appellant were disclosed when Ilay was first examined as a witness. Appellant testified in his own behalf claiming that deceased was trying to cut him with a knife at the time he killed her. On cross-examination he was asked if he did not tell Hay that deceased was trying to cut appellant with a knife which she got out of her -stocking. We quote appellant’s testimony at this point:

“I started to say that she pulled it (the knife) out of her stocking, but I thought, because she didn’t have any stockings on * * *
“Q. And you didn’t tell him that she pulled the knife out of her stocking? And you know now that she didh’t have on any stockings? A. Yes.”

In rebuttal the state recalled Hay who testified that appellant did tell witness that deceased was trying to cut him with a knife, which she pulled out of her stocking, and that when the body was dug up it was found that deceased had no stockings on.

The state was not relying upon the confession alone to prove appellant’s guilt. Many other facts were in evidence. Appellant was given a complete charge on self-defense predicated on his own testimony. If Hay’s evidence on rebuttal can be regarded as furnishing- an exculpatory statement, rather than as impeaching or contradicting appellant, the defensive charge given covered the same issue. The following cases are illustrative of the proposition that the refusal of a charge on exculpatory statements does not call for reversal in .every instance, even though timely request is made for such instruction. Nichols v. State, 110 Tex. Cr. R. 432, 10 S.W.(2d) 109; Bradley v. State, 107 Tex. Cr. R. 435, 295 S. W. 606; Harris v. State, 103 Tex. Cr. R. 479, 281 S. W. 206; Simpson v. State, 97 Tex. Cr. R. 57, 263 S. W. 273; Tidwell v. State, 40 Tex. Cr. R. 38, 47 S. W. 466, 48 S. W. 184; Pickens v. State, 86 Tex. Cr. R. 657; 218 S. W. 755; Casey v. State, 54 Tex. Cr. R. 584, 113 S. W. 534.

The motion for rehearing is overruled.


author: HAWKINS, Judge.

text:
    NICHOLS v. STATE.
    No. 15823.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    J. E. Spence, of Sulphur Springs, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for robbery with firearms; punishment being assessed at 99 years in the penitentiary.

The transcript fails to show that any sentence was ever pronounced against appellant. There appears a document which on the margin of the transcript is called a sentence, but which in fact is the judgment of conviction.

Article 769, C. C. P., provides that in all felony eases save where the death penalty has been assessed sentence shall be pronounced “before the appeal is taken.” In such cases it has always been held that sentence was prerequisite to appeal. Eor authorities, see note 3, under article 769, Vernon’s Ann. Tex. C. C. P. vol. 3; Hart v. State, 14 Tex. App. 323.

The appeal is dismissed.


author: CALI-IOUN,- Judge.

text:
    JOHNSON v. STATE.
    No. 15892.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    Shropshire & Sanders, of Brady, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALI-IOUN,- Judge.

The offense, possession of intoxicating liquor for the purpose of sale; the punishment, one year in the penitentiary.

The state relied upon circumstantial evidence to convict the appellant. An instruction covering this subject was embodied in the charge.

The only witness who testified in the case was Love Kimbrough, sheriff of McCulloch county. He testified substantially as follows: 1-Ie knew the appellant, Raymond Johnson on or about June 6, 1932. He went out to a house about a mile south of the town' of Brady on the east side of the highway. When he went to the house, there was at the house, besides the appellant, G. L. Miers, a Mr. Sanders, and Dr. Powell. There were three or four rooms in the house, and he saw the appellant in the kitchen, and he found in the bathroom a five-gallon container with something like three pints of whisky, and thex-e was a little less than a quart of alcohol there. There were also a few cases of near beer and some cases of “empties.” There was also a case of empty quart bottles and some cases of pint bottles. On the table in the kitchen there were four or five serving glasses. There was also about a half gallon of corks with a bunch of caps. The whisky was in the bath tub. He further testified that he had occasion to pass that place several times before the raid, and he had seen automobiles going in and out of there, and he had seen the appellant there two or three times, and he had seen the appellant and one G. L. Miers and Eugene Whitehead in town together numerous times. He also testified that G. L. Miers and Eugene Whitehead had been convicted for this same identical offense for which the appellant was on trial. He testified further that he did not know whether or not the appellant lived there. He just saw him sitting there.

This was all the evidence offered to show appellant’s connection with the liquor found in the house. No witness testified to seeing the appellant in possession of said liquor more than it was in possession of the other adults who were present at the time of the search. There was no testimony that appellant lived at said house or had any interest in the premises or anything found on the premises. There is no evidence that the appellant in any wise asserted any ownership of the liquor found in said house or in any way to individualize the possession of same. Mere presence, in the absence of proof of having agreed to commit the offense, will not constitute one a principal. Branch’s Ann. 3?. C. § 6S1, p. 347; Jenkins v. State, 69 Tex. Cr. R. 585, 155 S. W. 208; Johnson et al. v. State (Tex. Cr. App.) 70 S. W. 83; Golden v. State, 18 Tex. App. 637.

With the case being tried on the the'ory that the appellant was a principal with other parties in committing the offense, the state failed to show more than that appellant was present at the house where the whisky was found therein.

Because of the insufficiency of the evidence to support the conviction, the judgment is reversed, and the cause remanded.

Reversed and remanded.

PER CURIAM.

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


text:
    BARNETT v. STATE.
    No. 15609.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    B. P. Crosby, of Greenville, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

In connection with appellant’s motion for rehearing our attention has been called to some matters and statements in the former opinion which, in our judgment, lead us to believe that we should withdraw our original opinion and file this one in lieu thereof, in which we will discuss the propositions advanced in the motion for rehearing also.

The alleged owner of the mule in question in this case testified that it ran in his pasture with its mother; it was missed and found in appellant’s possession freshly sheared and marked with appellant’s mark on its jaw. On the trial appellant, supported by his wife, set up claim of ownership of said mule. The state by a number of witnesses controverted this claim. The trial judge submitted the issue as follows: “If you believe from the evidence that the mule in controversy was the corporeal personal property of and belonged to the defendant, Bob Barnett, or if you believe that the defendant, Bob Barnett, believed that said mule was his corporeal personal property and belonged to him at the time he took the same, if he did; or, if you have a reasonable doubt on either of these issues you will find the defendant not guilty.” We think this a full and fair charge on the affirmative defensive issue.

There are five bills of exception, each of which bears a qualification of the trial judge which renders same of no avail. As to hills 3, 4, and 5, the court below certifies that no such exceptions were taken. Bill No. 2 complains that the state’s objection to a certain question was sustained. The court’s qualification certifies that no such question was asked, and fully sets out what in fact did transpire. In the remaining bill of exception the court gave to appellant more than he was entitled. Ftom same it appears that he was asked while on the witness stand if he had not been tried and convicted for murder. Such testimony would be admissible for what it was worth as affecting appellant’s reputation for truth and veracity, but the court told the jury not to consider same.

The testimony so strongly supports the jury’s conclusion of guilt that we see no reason for setting it out at any length. In his ¡notion for rehearing appellant renews all cbmplaints originally made in his brief and in the record. In our opinion multiplication of words in a charge of the court, unless necessary, is but useless. The court told the jury to acquit if appellant believed the mule in question to be his. We do not think it necessary, or of any aid to the jury, or any value to appellant, for the court to have told them that they should acquit if they thought he “honestly believed,” etc.

The trial court’s certificate that no such argument was made as is complained of must be taken by us as true in the absence of an exception to the qualification. There were no exceptions taken to any of the qualifications on any of the bills. We have carefully considered both the original brief and the argument, in the motion for rehearing, of able counsel for appellant, but are of opinion that he has had a fair trial, that no error was committed, and that the jury were warranted in their verdict of guilty.

The judgment will be affirmed.


author: CHRISTIAN, Judge. LATHMORE, Judge.

text:
    POPE v. STATE.
    No. 15641.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    State’s Rehearing Denied May 3, 1933.
    Wilcox & Graves and Sam Burnap, all of Georgetown, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is willfully neglecting and refusing to provide for the support and maintenance of a child under the age of sixteen years; the punishment, confinement in the ■penitentiary for two years.

The testimony of the state was, in substance, as follows: Appellant and his wife had been going together for several months prior to their marriage. Two days before the marriage appellant’s wife gave birth to a son. Appellant was the father of this child. Pursuant to his promise, appellant married the mother of the child. They lived together in the home of the wife’s father for approximately three weeks, during which time appellant worked for the county. Upon receiving the amount due him by the county, which was about $20, appellant left his wife and baby, and thereafter contributed nothing to their support. Appellant’s wife remained with her father, who took care of her and the baby.

Testifying in his own behalf, appellant declared that he had been advised by two or three men that they had had intercourse with his wife prior to her marriage. He said that he did not know whether he was the father of the child. He testified that after he had learned that his wife had had intercourse with other men he left her. He said that he had married in order that the child might have a name. He declared that he had been unable to get work and consequently had no money. He testified that he would support the child if he had the ability. Further, he testified that his father supported him. Appellant’s father was poor. He had several other children. As to his inability to get work and contribute to the support of the child, appellant was corroborated by the testimony of his father and mother.

Two witnesses testified that they had intercourse with appellant’s wife prior to her marriage. Appellant’s wife denied these acts of intercourse.

The state introduced one of the county commissioners, who testified that he had employed appellant and would have retained him if he had been willing to remain with him.

Bill of exception No. 11 reflects the following occurrence: After appellant’s mother had testified that appellant was unable to procure work and could not contribute to the support of the child, and that she and her husband were unable to give him money, as they had several children dependent upon them, the district attorney asked the witness if she did not have another son that had gotten into the same kind of trouble. The court sustained appellant’s objection, and the question was not answered. The district attorney then asked the witness if it was not a fact that she had another son who was paying $5 a month to some person. He advised the witness not to give the name of the person. Further, he asked her if she and her husband were not furnishing the $5 that was being paid. Appellant’s counsel again objected. The objection was overruled, and the witness answered, in effect, that she had a son who was paying $5 a month to another person. The opinion is expressed that the testimony was irrelevant and immaterial, and calculated to prejudice appellant. The fact that a brother of appellant had been charged with failure to support his child and required by an order of the court to pay $5 a month toward its support could shed no light on any issue in the present case.

Appellant defended on the ground that he could not get work, and was unable to support the child. Appellant excepted to the charge of the court because of its failure to submit this affirmative defense. Also he presented a requested instruction on the subject. The court erred in failing to respond to the exception. Smith v. State, 97 Tex. Cr. R. 565, 263 S. W. 913; Prock v. State, 92 Tex. Cr. R. 494, 244 S. W. 601; Glazener v. State, 117 Tex. Cr. R. 603, 36 S.W.(2d) 752.

If another trial be had and the question as to whether the child is legitimate is presented, the court, in framing the charge, should be guided by the holding in Beaver v. State, 96 Tex. Cr. R. 179, 256 S. W. 929, 30 A. L. R. 1073. Also note should be taken of article 2581, Revised. Civil Statutes 1925.

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.

On State’s Motion for Rehearing.

LATHMORE, Judge.

The state moves for rehearing. Without setting out the grounds at any length, we discuss them. Appellant was a grown man at the time this case was tried. His father and mother were under no sort of legal duty to care for or provide for appellant’s wife or her child. The fact that appellant’s mother for the defense testified without objection, on her direct examination, that she and her husband were not able to help appellant take care of said wife and child would not justify the state, in cross-examination of said mother, over objection, to show either by direct question or indirect admission that the above statement of the witness was untrue. The manner in which the state seems to have gone about this, as reflected in bill of exception No. 11, was to ask said mother, first, if she did not have another son who had gotten into this same kind of trouble; when objection to this question was properly sustained, the state proceeded to at once ask her if she did not have another son named Arthur who was paying $5 per month to somebody else, and also where Arthur got that $5 per month, and if witness’ husband had not helped Arthur get that $5 per month, and then have witness admit that her husband had so helped the other son. These matters certainly were improper, and apparently had for their purpose an attempted impeachment of the witness upon an immaterial but hurtful matter, and same were liable to be construed by the jury both as impeaching the mother and as showing that appellant was failing in his duty to his wife and child because he ought to have-gotten help from his father for them.

The state’s motion calls attention to the fact that appellant’s special charge No. 3, which was given, presented appellant’s affirmative defense of his inability to contribute to the support of his, wife or child, and to the fact that for this reason we were in er-aror in that part of our opinion wherein we «aid that the court below failed to submit this affirmative defensive issue.

'Our statute, article 2581, Revised Civil 'Statutes 1925, provides that if a man having a child shall afterward intermarry with its mother, and recognize - such child, it shall thereby he legitimated. Appellant married Ms wife two days after the birth of the child, for failure to .support which he is convicted in this case. He testified that he married her to let the child have his name. The wife and both of her parents testified that for three weeks after said marriage appellant lived with the wife and baby. In the case of Beaver v. State, 96 Tex. Cr. R. 179, 256 S. W. 929, 30 A. L. R. 1073, we stated the law as applicable to the illegitimacy of a child whose father and mother had never married. It is doubtful if what we said there has any application to the ease before us.

Believing the case properly reversed for the reasons stated regarding the improper cross-examination of the witness Mrs. Pope .•as shown in bill of exception No. 11, the •state’s motion for rehearing will be overruled.


author: CHRISTIAN, Judge. MORR.OW, Presiding -Judge.

text:
    WILKERSON v. STATE.
    No. 15672.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Rehearing Denied April 26, 1933.
    Otis Rogers and Shropshire & Shropshire, all of Port Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Buster Grimsley by shooting him with a pistol.

. Three sixteen year old boys, one of whom was deceased, were hunting golf balls on the grounds of the Ridgelea Golf Club, which is about four miles from the city of Fort Worth. Upon seeing an employee of the club, the boys ran. Responding to, a call from the club, appellant, who was a policeman of Port Worth, and Roy Montgomery, another policeman, came to the grounds. When the officers approached, the boys fled. Getting out of his car, appellant hollered “Stop.” The boys continued to run, and appellant fired several shots at them. The state’s version of the transaction was, in substance, as follows: Appellant fired two shots in the direction of deceased and his companions. These shots hit the ground about thirty feet behind them. Appellant fired a third shot which struck deceased in the back. Deceased then threw his hands to his chest and started back toward the appellant, saying to him that he would stop. As deceased approached the officer, he held one hand up and the other to his chest. At this point appellant fired another shot. Deceased fell to the ground, saying, “Prog, (referring to one of his companions) I am dying; I can’t breathe.”' Deceased’s companion said to appellant, “Mister, what shall we do with him, he is shot?” Appellant replied, “Lay him down and let him die; I ought to have killed you too.”

There was no testimony on the part of appellant that deceased or his companions had stolen any property belonging to the golf club. Appellant admitted that he fired four or five shots, saying that, when deceased and his companions failed to stop, he drew his gun out and shot into the ground. He testified that it was his purpose to scare them in order to get them to stop, saying, “I never did at any time shoot at or intend to hit any of those boys.” Further, appellant denied that he said to let deceased die, and that he should have killed deceased’s companion. Appellant testified that, when he got to the golf club, no one had told him that any property had been stolen, nor did he find any stolen property on deceased and his companions. He said that he had been advised that the hoys had been bothering the employees of the golf club. At this juncture we quote from appellant’s testimony as follows:

“I shot at the ground. I heard the testimony of Mr. Benson and these other people and Mr. Montgomery to the effect that the first bullet knocked dust up behind these boys and in direct line behind these boys, and that is true. I did not think I was shooting pretty close to those boys on the first shot because I didn’t take aim and had the gun down something like this (indicating). I had it pointed down just like this (indicating). It is not true that I pulled it down deliberately on those boys and shot but this Hefley boy did step out to one side after the' first shot, either the first or second shot, and stopped and remained there during the time of this shooting. I don’t think the second shot hit closer in to the other two boys. * * * I do not say the second shot hit the dust in line with the boys. As to whether or not I raised my elevation on the next shot, will state I don’t think that I did. I know it hit the ground and I saw where it hit the ground. * * * I did not shoot straight at those boys with all the accuracy that I could command on that second shot. This third bullet that I fired hit the ground over to the left of the two boys that was stopped and it ricocheted and hit the ground on the side of the hill there. It hit the ground and knocked the dust on the side of the hill up there, which was after it went through this boy’s body, but it hit the dust behind him and ricocheted upon the side of the hill.”

The court charged on murder, and submitted an instruction to the jury on murder without malice. Further, an instruction was submitted covering the law of negligent homicide in the second degree. One of the instructions on negligent homicide was predicated upon a killing in the performance of an unlawful act denounced as a misdemean- or ; that is, the carrying .of a pistol. The charge on the other phase of negligent homicide was based on the commission of an act not penal, but such an act as would give just occasion for a civil action. With this view of the charge, we advert to appellant’s objection to the action of the court in permitting parol proof to the effect that the place where deceased was killed was not within the' corporate limits of the city of Fort Worth. Our view of the matter makes it un-necessary to decide whether the objection! was well taken. The state’s testimony was sufficient to support a conviction for murder.. The verdict of the jury expressly found ap>~ pellant guilty of murder without malice. Appellant’s description of the transaction: showed that he intentionally discharged his pistol in the direction of deceased and his companions. If at the time he fired the shots an apparent danger of causing the death of deceased appeared, appellant was guilty of negligent homicide, although he did not intend to kill deceased. Abell v. State, 109 Tex Cr. R. 380, 5 S.W.(2d) 139, 61 A. L. R. 318 In short, appellant’s version of the transaction brings the homicide within the definition of negligent homicide. If the jury had believed appellant’s version, they should have convicted him of negligent homicide. Having accepted the state’s version and convicted of murder, we are unable to perceive how appellant was injured by parol proof that the place-where the homicide occurred was without the corporate limits of Fort Worth. The court was probably in error in predicating: a charge of negligent homicide on the.act of unlawfully carrying a pistol. However, there-was in the charge an instruction predieating negligent homicide on the performance of ant act not penal, but such as would give just, occasion for a civil action. If the jury hadi believed appellant’s testimony, there- was nothing to prevent them from giving application to the charge on negligent homicide.. We deem untenable the position that the proof as to the place the homicide occurred couldi have militated against a conviction for negligent homicide, or influenced the verdict re*turned by the jury.

We have carefully examined all of appellant’s contentions, and are unable to reach the conclusion that reversible error is prer-sented.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORR.OW, Presiding -Judge.

A re-examination of the record leaves us-of the opinion that the disposition of the appeal made upon the original hearing is correct. A further discussion of the matter is not deemed necessary.

The motion is overruled.


author: LAT.TIMORE, Judge.

text:
    MACE v. STATE.
    No. 15870.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    L. D. Johnston, of Waxahachie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LAT.TIMORE, Judge.

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

We find in the record an affidavit made by the sheriff of Ellis county certifying that pending this appeal appellant made his escape from custody, and that he did not voluntarily return. Such escape deprives this court of further jurisdiction of the appeal, and it becomes our duty to dismiss such appeal, and it is accordingly so done.


text:
    BUNCH v. STATE.
    No. 14999.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Rehearing Denied May 3, 1933.
    S.F. Rose, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for receiving and concealing stolen property; punishment, two years in the penitentiary.

Being called on to plead to an indictment containing two counts, the first charging theft of a watch worth 8125.09, and the second charging the receiving and concealing of said watch after it had been stolen by a boy, —shown by the testimony to have been twelve years old at the time, — appellant, a grown man, represented by counsel, elected to and did enter his plea of guilty to the offense charged in count No. 2, after which the court gave to the jury his charge, instructing them fully as under such plea of guilty to find appellant guilty of receiving and concealing said stolen property, and to fix his punishment, which they did, giving him the lowest penalty of two years. Appellant also ashed for a suspended sentence which was refused by the jury’s verdict. He then filed a motion for new trial setting up that the testimony showed him guilty of theft .of said watch, and that hence he could not be adjudged guilty of receiving and concealing same. The testimony referred to was that of the child mentioned whose testimony at most was that of an accomplice, and would not in any event be held sufficient to establish guilt of a particular crime unless otherwise corroborated. No testimony supported any theory that appellant had no guilty connection with the taking of said watch, or that he was innocent in the transaction. Hence we see no application of those cases which hold that if the statutory command that testimony be introduced upon the hearing of a plea of guilty in a felony case is disregarded; or if the testimony introduced establishes the innocence of the accused, then the judgment of guilty will not be allowed to stand. Crumbley v. State, 103 Tex. Cr. R. 391, 280 S. W. 1064, and Connor v. State, 93 Tex. Cr. R. 255, 246 S. W. 374, are cited. In the latter case we said the verdict should be set aside where no evidence was adduced, or when the evidence “demonstrated the innocence of the accused.” This holding grew out of the attitude of this court in expressing its unwillingness t'o let an innocent man suffer in a case where through youth, ignorance or other reason deemed sufficient it appeared that the accused was induced to plead guilty upon facts making clear the proposition that he was innocent. We have here no such ease. We know of none in which the guilt of the accused is beyond dispute, and in which, admitting guilt of a specific offense, the accused by a species of legal legerdemain seeks to have this court hold, in effect, that he has been acquitted of theft because the count charging that offense in the indictment was abandoned, and therefore upon another trial hereafter had for that offense he could not be convicted; so that if we hold that he is not guilty of receiving and concealing the alleged stolen X>roperty. because the testimony of the accomplice tends to make out a case of theft, and hence we reverse the case for this reason, appellant will go scot free.

It appearing that appellant under the above circumstances specifically pleaded guilty to the offense charged in the second count; and there being nothing in the record showing that he was ignorant or misled; also that there was no objection to the testimony of said boy, or any other testimony; no exception to the charge of the court submitting to the jury guilt predicated on the second count, and there is nothing demonstrating appellant’s innocence, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, Presiding Judge.

In a forceful motion for rehearing, appellant’s counsel insists that the conviction should not be permitted to stand for the reason that the proof shows beyond question that the offense committed was theft. Appellant was convicted under an indictment in separate counts: In the first, with theft; in the second, with receiving and concealing stolen property.

The appellant entered a plea of guilty to the second count and thereby established his guilt of receiving and concealing stolen property. Therefore, no evidence was necessary to prove his guilt. The necessity for the evidence arose only to enable the jury to determine the penalty to be assessed. The state introduced the testimony of Tommie Jameson, a twelve year old boy, who stole a watch which belonged to Jimmie Bynam. Jameson declared that he stole the watch at the appellant’s suggestion and delivered it to him. The watch was found in possession of the appellant and identified by Bynam as the watch which he had lost. There is exhibited in the record no evidence showing how the appellant came into the possession of the watch save by the testimony of Jameson which, being uncorroborated, was inadequate under the terms of article 718, O. C. P., to prove that the appellant was guilty of theft. On the contrary, the evidence against the appellant of receiving the stolen property was definite. Bynam’s watch, having been stolen, was found in the possession of the appellam soon after the theft. No explanation of his possession was made. See article 1430, Vernon’s Ann. Tex. P. O. vol. 3, p. 198, illustrating the law controlling when one accused of fraudulently receiving stolen property, when found in possession of it, offers no reasonable explanation of his right to its possession. In the court’s charge the jury was told that, “defendant has pleaded guilty to the charge of fraudulently receiving and concealing stolen property * * * as charged in the second count of the indictment, etc.” The forms of verdict were, “We, the jury, find the defendant, Argus Bunch, guilty of fraudulently and knowingly receiving stolen property of the value of $50.00 as charged in the second count of the indictment and as pleaded by him,” etc. The remainder of the forms .relate to the penalty and suspended sentence in event such was recommended. As the case came before the trial court the trial judge properly instructed the jury to find the appellant guilty of the offense of receiving stolen property. The action of the court in submitting the second count was tantamount to an election by the state to rely upon that count. See Vernon’s Ann. Tex. C. O. P. vol. 1, p. 330, art. 417, note 36. There being evidence to support the second count and there being no objection at the time to the submission of that count, and the plea of guilty being thereto, the action of this court in sustaining the conviction should be upheld.

The ¡motion for rehearing is overruled.


author: HAWKINS, Judge. MORROAY, Presiding Judge.

text:
    WEAVER v. STATE.
    No. 15655.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Rehearing Denied April 26, 1933.
    IPerkins & Perkins, of Rusk, for appellant.
    fijlqyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for transporting intoxicating liquor, punishment being two years in the .penitentiary.

This is the second appeal. The result of the first will be found reported in 119 Tex. Cr. R. 334, 44 S.W.(2d) 731. A companion case, Oscar Weaver v. State, is reported in 117 Tex. Cr. R. 335, 38 S.W.(2d) 85.

Officers found in the car occupied by appellant and his brother, Oscar Weaver, thirty half-gallons of whisky. The only question presented is whether in advance of the search which resulted in finding the whis-ky the officers were in possession of information which furnished probable cause for the search. When the question came up in the trial the court retired the jury and heard evidence upon the issue of probable cause, which evidence is brought forward in a separate statement of facts. After hearing the testimony the court ruled that probable cause existed and permitted the evidence of the officers to go to the jury. This ruling of the court we are asked to review. The evidence on the issue of probable cause is too long to be set out in full. Jt shows that the search was made at night on a road between Rusk and Reklaw at a bridge over Mud creek. The officers were not looking for appellant nor his brother on the occasion in question, but had a warrant to arrest Red Parrish. Four officers all traveling in one ear went to the home of Parrish. Whether they arrested him there or at the creek as they came back towards Rusk is uncertain from the record. At any rate, the car belonging to Parrish, in some way not shown from the record, arrived at a point near the bridge over Mud creek, and was parked there. Two officers secreted themselves behind said car and the other two took Parrish to Rusk. It was shown that the officers had received information two or three times and from more than one party that appellant was transporting intoxicating liquor to and from Rusk to Reklaw, and was' making said trips once or twice each week. There were two roads between Rusk and Reklaw. The officers had no information as to which road appellant traveled, nor that he would be on the particular road where the search was made on the night in question, nor that he would have whisky with him on that particular night. About 2 o’clock that night the officers saw a car approaching from the direction of Rusk; near the bridge the car slowed down and the horn was lightly sounded, and the car then went on north. As it passed the officers recognized appellant and his brother as the occupants of the car. No effort was made to stop them at that time. Before the parties were recognized the car was again gathering momentum. In about ten minutes the car came back. In the meantime the officers had received no additional information as to whether appellant was then transporting intoxicating liquor. As appellant’s car approached the bridge on the return trip ft slowed down, or stopped, and appellant said, “Come out of there, Red.” It was then the officers proceeded to the car and searched it. In addition to the information already stated which they had received regarding appellant’s movements, the officers had also been informed that appellant was delivering to Red Parrish the liquor he was said to he transporting. It was Red’s car behind which the officers were hidden, and it was Red whom appellant invited to come out. The officers had a right to rely, not only upon the information they had received from other parties, but in connection therewith could properly take into consideration all the circumstances immediately preceding the search which gave color to the advance information. It was upon these combined facts the trial court determined the existence of probable cause. In overruling appellant’s objection, and permitting evidence as to the result of the search to go to the jury, we entertain no doubt that the ruling of .the trial court was correct. If the information and circumstances known to the officers in advance of the search were sufficiently strong in themselves to warrant a cautious man in the belief that the automobile was then being used for the unlawful transportation of liquor, the search was upon probable cause. Landa v. Obert, 45 Tex. 539; Battle v. State, 105 Tex. Cr. R. 568, 290 S. W. 762; Carroll v. U. S., 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Whitworth v. State, 105 Tex. Cr. R.. 641, 290 S. W. 764. Many other authorities will be found collated in McPherson v. State, 111 Tex. Cr. R. 558, 15 S.W.(2d) 633. Prom information the officers had, and the actions of appellant on the night in question, the officers were fully warranted in believing that appellant was making one of his regular trips, and was prepared to make delivery of intoxicating liquor to Red Parrish.

The judgment is affirmed.

On Motion for Rehearing.

MORROAY, Presiding Judge.

In the statement of the evidence heard by the trial judge in ruling upon the question of “probable cause,”- there is found, in addition to that stated in the original opinion, the following testimony of officer Swann: “I had received information from some one that the defendant, O. H. AYeaver, was transporting liquor to and from Rusk, Texas, to Rek-law, Texas. * * * I do not know how often I was advised that this defendant was going to and from Rusk to Reklaw transporting whisky; I received the information two or three times. I was advised that he was making the trips once or twice a week. I had received that information some time pri- or to this search, and had received the information more than one time, and from more than one party.”

On cross-examination, appellant’s counsel drew from the witness the following admissions : “I searched them on suspicion and information, too; that is right, and that is right now. I did not have a single bit of information that he was carrying liquor there that night.”

Oh redirect examination the officer testified: “I had information that this defendant was transporting liquor and delivering it to Red Parrish — that is the night I made the arrest. I had a warrant for Red Parrish.”

The term “probable cause,” as used in article 1, § 9, Constitution of Texas, prohibiting unreasonable searches and seizures, has been defined in substance in the following language: “No warrant to search any place, or-to seize any person or thing, shall issue without describing them as near a£ may be, nor without probable cause, supported by oath or affirmation.”

In the case of Landa v. Obert, 45 Tex. 539, the term “probable cause” is defined thus: “A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.”

In Cooley’s Constitutional Limitations (6th Ed.) p. 368, it is said: “And the law in requiring the showing of reasonable cause for suspicion intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well-founded; for the suspicion itself is no ground for the warrant except as the facts justify it.”

In the present instance, the evidence is regarded as sufficient to show a legal search.

The motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    DELANEY v. STATE.
    No. 15690.
    Court of Criminal Appeals of Texas.
    April 19, 1933.

      Jolm Morison and T. C. McMurray, both of Fort Worth, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed J. E. Purgason by shooting him with a pistol.

Deceased was foreman of the Worth Mills, and, as an employee, appellant was under deceased’s supervision. Some time before the homicide deceased had discharged appellant ; it being appellant’s version that he had refused to return to deceased an amount of money he had received in a transaction involving the “padding” of the pay rolls. Appellant testified that deceased placed on the pay rolls fictitious claims for wages, which sums were returned to deceased by the employees and were retained by deceased for his own use and benefit. Appellant declared that, when deceased insisted that he repay him a sum of money he had received on a fictitious claim, he told deceased that he would report the matter to the superintendent, and deceased advised him that he would kill him if he informed on him. Further appellant testified that, after he had been discharged, there had been communicated to him threats on the part of deceased to take his life.

Touching the immediate circumstances surrounding the homicide, the state’s proof was, in substance, as follows: Securing a pistol, appellant went to the place of business of the Worth Mills in search of deceased. Entering the building, he approached deceased’s desk. Deceased was sitting at his desk as appellant reached him. Deceased had no weapon in his hand or on any part of his person, and made no demonstration toward appellant. Drawing his pistol, appellant shot deceased. Immediately after the first shot was fired, deceased ran from his desk, and, as he was fleeing, appellant shot him down. Appellant then fired a third shot into the body of deceased.

Appellant testified, in substance, that ho went to the mill for the purpose of asking deceased to place him back in his old position; that he carried a pistol for the- purpose of protecting his life against deceased; that he was aware that deceased kept a pistol in the drawer of his desk and that deceased was an expert shot; that, as he reached the desk, he stated to deceased that he had como to see him about the threats he had made against him; that deceased dropped his hand to his side and he heard the drawer of the desk move; that he immediately drew his pistol and fired across the desk at deceased; that he fired several other shots at deceased; that at the time he fired he believed deceased was going to kill him; that he did not shoot deceased after he fell to the floor; that he was agitated and excited at the time he fired the fatal shots.

Bill of exception No. 1 recites that appellant testified that deceased had on numerous occasions threatened to take his life and that he believed deceased was a dangerous man. Further it is recited in the bill that after this proof had been made appellant “sought to show by the witnesses George Valentine, W. R. Kincaid, J. T. Williams, and O. O. Boone that on different occasions” the deceased had displayed a firearm in their presence and had threatened to take their lives. It is recited in the bill that tfiis proof was offered “for the purpose of showing the conduct of the deceased toward them (the witnesses), not in any way involving the defendant, except in so far as the defendant might have learned of said assaults and violence which might have affected his mind.” The bill merely states that appellant sought, to show by the witnesses that the occurrences recited in the bill took place. There is nothing to show that the witnesses would have given the testimony appellant says he sought to elicit. Moreover, the bill of exception fails to show that, prior to the homicide, appellant knew or had heard of the alleged specific acts of violence on the part of deceased. Branch’s Annotated Penal Code, § 2094-; Neyland v. State, 79 Tex. Cr. R. 652, 187 S. W. 196.

Bill of exception No. 2 presents the following occurrence: Appellant testified that deceased had forced him and several other employees to accept more time than they were entitled to, and that, -after collecting for this time, deceased would require him and such other employees to return to him (deceased) the money collected for overtime. Upon cross-examination the district attorney asked appellant this question: “This man, Mr. Bennett, made an investigation about that matter and had an auditor go in there and look over the accounts, and found out you were not telling the truth about it?” The bill of exception fails to show that this question was answered by appellant. At this point it is recited in the bill of exception that appellant “then offered the witnesses Mrs. Nora Barnes, George Brinkley, and Olin Max-ey to show that such padding of the pay rolls did in fact exist and was the beginning of the trouble between appellant and deceased which culminated in the shooting.” It is recited in the bill that upon objection by the state-the testimony was excluded. The bill is insufficient in failing to show, first, that the question addressed to appellant on cross-examination by the district attorney was answered by appellant; and, second, that thei witnesses appellant offered .would have testified that deceased “padded” the pay rolls. The bill does not embrace the questions propounded to the witnesses mentioned therein. A bill of exception reciting that the accused “offered to prove” certain facts but not showing that such facts could have been proven, or that the witnesses would have testified to such facts, is defective. Branch’s Annotated Penal Code, § 212; White v. State, 32 Tex. Cr. R. 635, 25 S. W. 784; Castlin v. State (Tex. Cr. App.) 57 S. W. 827, 828; Barbee v. State, 58 Tex. Cr. R. 136, 124 S. W. 961, 966. Stated in another way, a bill of exception to the refusal of the court to permit a witness to answer a question must show what the answer of the witness would have been. Branch’s Annotated Penal Code, § 212; Kyle v. State, 55 Tex. Cr. R. 360, 116 S. W. 598.

The judgment is affirmed.

PEB 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.