text:
    RICE v. STATE.
    No. 15734.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense is conspiracy to rob; the punishment, confinement in the penitentiary for two years.

The appellant was jointly indicted with Charlie Rice, Willie Rice, Chick McKay, H. E. Bell, and Ollice Woods in the first count with having entered into a conspiracy to assault W. E. Roberts, Jr., and put him in fear of life and bodily injury to fraudulently take from him and his possession, etc., and in the second count with conspiracy with said parties above mentioned to assault the cashier of the Lohm State Bank by putting him in fear of life and bodily injury to fraudulently take from his possession personal property belonging to said bank, etc.

The testimony in brief was to the following effect: About 7:30 o’clock on the morning of January 6, 1930, W. E. Roberts, Jr., the cashier of the Lohm State Bank, went to the bank preparatory to opening said bank for the day. As he unlocked the_ front door and entered, he was confronted by a man with a drawn pistol, who required him to unlock the vault and deliver to him approximately $1,400 of the bank’s money. The money so taken consisted of bills of different denominations and some silver — nickels, dimes, quarters, and half dollars. Said Roberts testified that he saw the form of another man coming from the back or end of the lobby of the bank, but that he did not see the other man well enough to identify him. He further testified that the man who held him up would weigh about 190 or 200 pounds, and the other man seemed to be taller and not as heavy as the man who held him up. The state through its district attorney, in open court, after said testimony had been given by the said Roberts, admitted that the appellant was not there at the bank on that occasion.

Another witness testified that he lived about 50 yards west of the Lohm State Bank, and about 8 o’clock on the morning of the alleged robbery he saw two men come out of the back door of the bank and get into a model A Ford roadster parked there and leave immediately thereafter going in a northeastern direction. Several witnesses testified for the state that they noticed a Ford roadster going up the Santa Anna road, which road led in the direction of what was known as the Jennings oil lease in Coleman county. They all testified that the car was going at a rapid rate of speed, and they could not recognize who was in the car or the number of persons in the car because the curtains of said car were up. It was also in evidence that on the morning of the alleged robbery a Ford roadster with the curtains up was seen coming towards the house of appellant’s brother, Willie Rice, but the witness testifying could not tell whether there was more than one man in the car or not. The car was going toward a vacant house about half a mile from the house of Willie Rice. The evidence further showed that the vacant house had formerly been occupied by the appellant and his family, but that some months prior to the venture herein related the appellant had moved away with his family, but had left a few things in the house at the time he moved. At the time of' the alleged offense, he and his wife were visiting his brother, Willie Rice, at said Willie Rice’s home. The testimony was also to the effect that the lights on said car seen going toward the vacant house were burning at the time. There was further testimony in behalf of the state that a few minutes after the car passed the house of Willie Rice the appellant and the said Willie Rice with another man were seen to leave Willie Rice’s house and go toward the vacant house. It is also shown by the evidence that the Ford roadster testified about was later seen parked in the vicinity of the vacant house and the lights were still burning. Several hours after the robbery, officers went to said vacant house, and, upon approaching the house, they saw five or six men fleeing from the vicinity thereof. A gun fight ensued in which police Woods was killed, and his body was afterwards identified by the witness Roberts as the person who perpetrated the actual robbery. The officers found some currency in the vacant house, and this currency was identified by the witness Roberts by some clips that had been placed on the currency by himself. The money was not marked otherwise. It was also in evidence that the clips placed on the currency could be purchased from any stationery drummer, and were more or less in common use.

The state also put upon the witness stand the appellant’s brother, Charlie Rice, who testified that on the day before the alleged robbery he, intending to go to California where some of his people lived, had, together with Ollice Woods, taken the appellant’s car while the appellant was in bed, and, without informing the appellant, went to Brownwood, where the said Charlie Rice left Ollice Woods in possession of the car with the promise that the said Woods would take the car back to the appellant.

The appellant strenuously contends that the evidence was insufficient to support a conviction, and we have not attempted to fully state the facts in this opinion, because the evidence in this case is practically the same facts as were developed in the case of Willie Rice v. State, 51 S.W.(2d) 364, recently decided by this court, and also in the case of Charlie Rice v. State (Tex. Cr. App.) 53 S.W.(2d) 629. In the Willie Rice Case, the offense there charged was a conspiracy to commit the crime of robbery, while in the Charlie Rice Case he was convicted as a principal- to the robbery. Both of said cases grew out of the same transaction, and in both of said cases this court held on appeal that the testimony was insufficient to warrant a conviction. The record shows that the present ease was tried before the opinions in each of the above cases were handed down.

Article 1622, P. C., defines a conspiracy as an agreement entered into between two or more persons to commit a -felony. Article 1624, P. C., provides: “Before a conviction can be had for the offense of conspiracy', it must appear that there was a positive agreement to commit a felony. It will not be sufficient that such agreement was contemplated by the parties charged.” After fully considering all the facts in the case, we are of the opinion, taking the testimony in its strongest and most favorable light for the state, that it does not show a positive agreement, as required by the statute, to commit the offense of robbery. The state in this case relies for conviction alone on circumstantial evidence, and the trial court so charged the jury. A conviction on circumstantial evidence cannot be sustained unless the circumstances proven exclude every other reasonable hypothesis except that of the guilt of the accused. Proof that only amounts to strong suspicion or mere probability is not sufficient to support a conviction. Branch’s Ann. P. C. § 1877; Hernandez v. State (Tex. Cr. App.) 72 S. W. 840. There must be evidence overcoming the'presumption of innocence and excluding every other reasonable hypothesis except the guilt of the defendant. Pogue v. State, 12 Tex. App. 283; Hogan v. State, 13 Tex. App. 319; Clifton v. State, 39 Tex. Cr. R. 619, 47 S. W. 642. This we think the evidence fails to do.

By a proper bill of exception it is shown that H. E. Bell, who was jointly indicted with the appellant on trial, was called to the witness stand, notwithstanding the court had been advised that he would refuse to testify because he was indicted for the same offense. Both the district attorney and the 'court were advised that the same attorneys representing the appellant also represented his codefend-ant, H. E. Bell, and the court was requested to admonish the district attorney not to place the witness on the stand. The request was denied, and over appellant’s objection the district attorney was permitted to call the said H. E. Bell as a witness and have him decline to testify, all in the presence of the jury. This should not have been allowed and constitutes error, as it could be offered for no other purpose under the circumstances than to compel or invite the said Bell, who was then under indictment for the same offense, to refuse to testify in order to use this as an incriminating fact against the appellant. This direct question was passed upon in the case of McClure v. State, 95 Tex. Cr. R. 53, 251 S. W. 1099, 1102, and as said by Judge Lattimore in said opinion:

“Every man has a constitutional right to decline to give testimony which would incriminate him, and it is held that, if he declines to testify, no inference of guilt may be drawn from his refusal to answer. Owen v. State, 7 Tex. App. 334. Certainly, if no inference of guilt can be indulged. against -the man who declines to testify, none could be drawn as to the guilt of a codefendant. Appellant should not in any way be held accountable for the refusal of McComber to give testimony. If the state’s purpose in putting this witness on the stand was to compel or invite his refusal to testify, in order to use this as an incriminating fact against appellant, the state was guilty of an injustice.”

See, also, Rice v. State (Tex. Cr. App.) 51 S. W.(2d) 364, where the same identical question was presented.

The judgment is reversed, and the cause remanded.

Beversed and remanded.

PEB CUBIAM.

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.


source: Caselaw Access Project

author: CHBISTIAN, Judge.

license: Public Domain

text:
    H. E. BELL v. STATE.
    No. 15812.
    Court of Criminal Appeals of Texas.
    April 5, 1933.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHBISTIAN, Judge.

The offense is conspiracy to rob; the punishment, confinement in the penitentiary for two years.

It was charged in the indictment that appellant, Charlie Bice, Joe Bice, Chick McKay, and Office Woods, acting together, unlawfully conspired, combined, confederated, and entered into a positive agreement with each other to commit the offense of robbery. We have not undertaken to set out the indictment, but merely call attention to the nature of the offense charged therein.

Rice v. State (Tex. Cr. App.) 51 S.W.(2d) 364; Rice v. State (Tex. Cr. App.) 53 S.W.(2d) 629; Joe Rice v. State (Tex. Cr. App.) 59 S.W.(2d) 119, delivered March 29, 1933, and the present cause are companion cases. In the case first mentioned Willie Bice was convicted of conspiracy to rob. In the case found in 53 S.W.(2d) at page 629, Charlie Rice was convicted of robbery. In the case of Joe Rice, 'supra, the conviction was for conspiracy to rob. As we understand the record, the testimony is substantially the same as that revealed in the companion cases. In those cases it was held that the evidence was insufficient. Such holding appears to control the present appeal. It may be added that the record discloses that the present case was tried prior to the time the opinions in the companion eases were rendered.

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: CALOHbUN, Judge.

text:
    REED v. STATE.
    No. 15788.
    Court of Criminal Appeals of Texas.
    April 5, 1933.
    J. M. Ralston, of Cameron, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALOHbUN, Judge.

Murder is the offense; • punishment, 2 years in the penitentiary.

The evidence shows that on or about the 29th day of May, 1932, the appellant shot the deceased. Some time previous to the killing the appellant was suspicious of the conduct, of her husband and the deceased. The appellant left her husband and went to live with her father. Afterwards there was a reconciliation between them and she went back to live with her husband. It seems that on the night of the homicide some women belonging to the-church in the neighborhood, including the appellant, were giving a supper for the benefit of' the church and the appellant and her husband went to the place where the supper was being given and assisted in the supper affair. It further appears from the testimony that the-deceased and another negro woman started to the place where the supper was being given, but before getting there they stopped and the two men with them went on, and the deceased sent word by one of the men to tell appellant’s husband where she was and for him to come down there. It seems that the husband of the appellant went to where the deceased was and they started going in the direction of the deceased’s home. The other woman walked ahead of the deceased and the appellant’s husband. When they had reached a point about three hundred yards from the deceased’s house, she was shot and killed by the appellant as she was running away.

The appellant testified that she had missed her .husband from the supper and had become suspicious of where he had gone and taking a pistol out of a drawer of the house she departed in search of her husband. She started for the home of the deceased thinking that she would find him there and when she reached a point on the road about three hundred yards from deceased’s home she saw the deceased and her husband by the side of the road in a compromising position, he bending over as she thought in the act of committing adultery. She became excited by this sudden surprise and hollered to her husband, “Oh, Bubba” (meaning her husband), and the deceased and her husband jumped up and started running; that she fired at the deceased as she started to run and when she fired the. deceased fell, and she then fired one shot at her husband as he ran off; afterwards she went to a telephone and told the telephone operator what she had done and asked her to telephone for the sheriff.

Appellant objected to the charge of the court on the ground that it fails to submit the law of temporary insanity. The testimony upon which the request was predicated was in substance-as follows: The appellant testified that the condition of her mind at the time she fired was very uncertain and she did not have any thought when she saw them in the road and she fired at once; she hardly knew what she was doing; she was startled at the scene before her eyes. A doctor testified in behalf of the appellant as follows: “The term ‘temporary insanity’ means for the time being; it means just a short time; a person going along and seeing something that would shock them might cry out or -make some movement that would be ah involuntary movement or shock; of course you couldn’t tell what they might do under the circumstances you have related, coming- upon ¡something suddenly which might produce some exclamation or something of that kind: no physician or no person could tell with absolute certainty what a shock of that kind would cause a person to do; it would be just a mere opinion of anybody of what the effect on a person would be of a shock of any kind.”

We are of the opinion that the testimony mentioned fails to raise the issue of temporary insanity. According to the record before us, prior to and subsequent to the time of the killing, appellant showed no symptoms of insanity or weakened intellect. She testified fully to her movements up until the time she fired the fatal shot. After killing the deceased, she went from the scene of the homicide and had them telephone for the officers. Before the refusal to submit an alleged defense theory to the jury in the charge of the trial court would be deemed an error for which a reversal would be ordered, it must not only appear that there were facts before -the trial court tending to raise or support such theory but also from such facts it reasonably appeared that the refusal might have resulted in injury -to the rights of the accused. Davis v. State, 107 Tex. Cr. R. 389, 296 S. W. 605; Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967. Evidently the trial court was of the opinion that there was not sufficient evidence before him to justify the submission to the jury of the law applicable to the case of insanity. No witness testified that appellant did not know at the time she shot the deceased that it was wrong to kill her. We quote from Anderson v. State, 67 Tex. Cr. R. 320, 148 S. W. 802, 804, as follows:

“We cannot sanction the doctrine that one who, prior to the time and subsequent to the time of committing an act, shows no symptoms of insanity or weakened intellect, can raise the question of insanity as a justification of crime by showing that he was not in a normal state of mind, was angry, looked wild, and acted different than he did ordinarily for the brief period of time necessary to the consummation of the act. Such doctrine would render virtually all homicides justifiable, for there are but few instances where one slays another while his mind is in normal condition.”

See, also, Lyles v. State, 91 Tex. Cr. R. 400, 239 S. W. 616; Dover v. State, 102 Tex. Cr. R. 113, 277 S. W. 675; Swann v. State, 92 Tex. Cr. R. 153. 242 S. W. 735.

Appellant also objected to the charge of the court on the ground that said charge did not charge that homicide is justifiable when committed by -the wife .upon one taken in the act of adultery with the husband, provided the killing takes place before the parties to the act have separated. In support of said contention the appellant cites articlel 1220 of the Penal Oode, which is as follows: “Homicide is justifiable when committed by the husband upon one taken in the act of adultery with the wife, provided the killing take place before the -parties to the act have separated. Such circumstance cannot justify a homicide where it appears that there has been, on the part of the husband, any connivance in ox-assent to the adulterous connection.” The contention of the appellant, as we understand it, is that while said article specifies that where the homicide is committed by the husband upon one taken in the act of adultery, that- it was also the intention of the Legislature to pi-ovide that the wife would be justified in killing the person taken in the act of adultery with the wife’s husband. No authority wherein this exact point was raised has -been cited by the appellant, but he cites the case of Williams v. State, 73 Tex. Cr. R. 480, 165 S. W. 583, and also the case of Cook v. State, 78 Tex. Cr. R. 116, 180 S. W. 254. In both of said cases it is held that under article 1220, P. C., above quoted, if the husband intentionally shot his wife while she was in the act of copulation with a man, it would be justifiable homicide. In the ease of Billings v. State, 102 Tex. Cr. R. 338, 277 S. W. 687, 689, the holding in said eases above quoted was overruled and it was held that in a -prosecution for murder of a wife killed with an alleged paramour after finding them in a compromising -position, a charge on justifiable homicide was not authorized under article 1220, P. C. We quote from the -opinion of Billings v. State, supra:

“We are aware of the fact that the case of Williams v. State, 73 Tex. Cr. R. 480, 165 S. W. 583, and the case of Cook v. State, 78 Tex. Cr. R. 120, 180 S. W. 254, are authority for the court’s action in giving this charge in this case. After a very careful consideration of those cases and certain expressions in other eases which seem to support them, we have reached the conclusion that they are cleai-ly wrong. Those cases are an extension of the statute which we are unable to justify or indorse. The right to kill is a matter with which the legislative 'branch of the government alone ought to deal, and when it confides to the citizen a right so important, it is, we think, the clear duty of this court to follow, but not to extend such legislative declaration beyond thclass clearly stated in the statute. Our great respect for the wisdom of the eminent judge who wrote the opinions in those cases is such as to make us hesitate to dissent from any view expressed by him. But a careful consideration of the question involved has convinced us beyond question that by enacting article 1220 of the Penal Code the Legislature did not express the purpose or intend to justify a person in killing his wife when she was found in adultery with a man. By its express terms, the right of the husband to slay under those conditions was limited to the man with whom she was found taken in adultery. If under article 1220’ of the Penal Code the Legislature in its wisdom had desired to justify the husband in killing his wife when taken in adultery, it was clearly its province to so declare, and in the absence of a legislative declaration to this effect, this court is without the right or the authority to furnish an accused with any such shield. By no rule of construction known to us would we be justified in extending the statute’s protection to one who kills his wife when by its clear and unequivocal terms it limits the right to the killing of ‘one taken in the act of adultery with his wife.’ So far as the Williams Case, supra, and the Cook Case, supra, are in conflict with the conclusions herein reached, the same are hereby overruled, and on another trial of this case we think the court should not charge on justifiable homicide under' article 1220 of the Penal Code.”

This holding was approved in the cases of Jordan v. State, 107 Tex. Cr. R. 137, 294 S. W. 1109, and Jiminez v. State, 103 Tex. Cr. R. 163, 280 S. W. 829.

We cannot agree with the contention of the appellant. No matter what our opinion might be upon the justice or injustice of article 1220, P. C., which justifies a homicide when committed by the husband upon one taken in the act of adultery with the wife, provided the killing takes place before the parties to the act have separated, it does not give the wife justification for her act if she should kill the woman taken in the act of adultery with her husband. The courts are not vested with the power to make laws but under the Constitution such power is vested alone in the Legislature, and the duties of the courts are to take and enforce them as they are written. If the Legislature in their wisdom has not given equal rights to the wife as they have given to the husband under article 1220, P. C., the courts are without power to do so.

The judgment is affirmed.

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


author: LATTIMORE, Judge.

text:
    WELLS v. STATE.
    No. 15783.
    Court of Criminal Appeals of Texas.
    April 5, 1933.
    See, also, 118 Tex. Cr. R. 355, 42 S.W.ffid) 607. •
    S. F. Rose, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, two years in the penitentiary.

According to the state’s testimony Carl Hays called a taxicab company in Amarillo and asked the party answering the phone if whisky could be sent to 512 Monroe street in Amarillo. Presently appellant and one Pee Wee Cantrell appeared in a car driven by Cantrell. Mr. Hays testified that he talked to a party at the taxicab company who answered the name of Jack. Hays further testified that, when appellant and Cantrell appeared at 512 Monroe street, he asked them if they had it, and both of them answered that they did. He said both of them handed him a package, that is, that one handed it to the other and the other handed it to witness. He said both of them asked him for the money. The package contained two half gallon jars of whisky. After delivering to Mr. Hays this whisky, appellant and Cantrell started away; appellant jumped from the car and ran, and threw down another half gallon jar of whisky and broke it. Jack Plummer was introduced for the defense and testified that he was at the taxicab company and some one called up who gave his name as Carl and said he wanted whisky. Plummer said this party told him if he could get a gallon to bring it to 512 Monroe street. He said that when he hung the receiver up he turned to Pee Wee Cantrell and said “He must think I am a bootlegger, or something,” and laughed about it. Cantrell wanted to know what was the matter, and witness told him what the party had said. Cantrell asked him if he could not fix the fellow up, and witness told him that he would have nothing to do with it, and Cantrell replied: “You are a hell of a cab driver.” He said Cantrell presently left the taxicab company’s place. Sam Martin testified that he was talking to appellant on the day of appellant’s arrest, and Pee Wee Cantrell came along in a car and said to appellant: “I am going your way, do you want to go home.” Witness said that appellant got in the car with Cantrell, and he later learned that appellant was arrested shortly afterward. Appellant took the stand and testified that he was talking to Martin when Cantrell came by. He said Cantrell said to him that he was going by his house and if he wanted to ride home to get in; that he got in the ear with Cantrell. He had had no conversation with Plummer, and knew nothing about any conversation that Plum-mer had had with a man named Carl. He did not know what was in the car except he saw two packages lying on the seat. The contents of the packages were not visible to him. He further testified that as they were going on out toward his neighborhood they passed 512 Monroe street and some one was sitting on the running board of a car in front of said house. He identified that man as being the witness Carl Hays. He said as they approached Hays came up to the side of the taxicab and said something to Cantrell, in effect, “Did you get it,” and that Cantrell said yes. He testified that Cantrell handed Hays a package and Hays said something about it, but that he, witness, did not say a word. He said Cantrell opened the package and showed Hays that it was whisky, and this was the first time that he knew that there was any whisky in the car. He said he had no interest in the whisky, did not own it, and did not hand the whisky to Hays or to Cantrell. He admitted that some confusion arose and when the ear started, Cantrell said to him “Break that,” and he did so; that he jumped out of the car and broke the half gallon of whisky. He said he did not know what made him do it, except that it was lying on the seat and Cantrell asked him to do it. 1-Ie further affirmed that Cantrell had the packages in the car when he, witness, got into it, and that his sole and only purpose in being in the car was to go home.

There are three bills of exception. By the first complaint is made of the fact that at a certain period in the proceedings, after both the state and defendant had rested their cases, the district attorney told the court that he had one witness who was not present and that she would have to be called by telephone, and asked that a recess be taken until said witness could come; that the jru-y were sent to their room at this time, and appellant, through his attorney, then advised the court, out of the presence and hearing of the jury, that the state was bringing Mrs. Harty, United States Commissioner for the Northern.District of Texas, as a witness to testify to statements made by defendant at a time when he was under arrest for the same offense for which he was on trial, and at the time the purported statement was made appellant was unwarned, and the statement was inadmissible because of the fact that appellant was under arrest and unwarned. It is made to appear that counsel informed the court that the state desired to ask Mrs. Harty, in the presence of the jury, if appellant had not told her, at the time referred to, that he was alone responsible for the presence of the whisky in Cantrell’s car; that he was guilty, and wanted her to let Cantrell go without bond. It is also shown further from this hill of exception that appellant requested the court to conduct a hearing in the absence of the jury, to ascertain whether or not this testimony was admissible; and after the witness came, and while the- jury were still out of the courtroom, the defendant, in open court, again told the court that since the' witness was present he desired to call the attention of the court to the testimony that the state was going to ask her about, and asked the court to interrogate the witness in the light of the statements made to him by appellant’s attorney, in order that the court should not permit the defendant’s ease to be prejudiced by the asking of Mrs. Harty, in the presence of the jury, as to the statements made by appellant which were inadmissible. It also appears in this bill that while appellant was testifying in his own behalf, and was being cross-examined by the state, he was asked by the state’s attorney if it was not true that he orally stated in the office of the United States Commissioner that the whisky in the car of Cantrell, at the time here being investigated, was his; to which question the defendant had objected because he was under arrest, and any statement made by him at such time was inadmissible if not reduced to writing and warning given; that it was not res gestee, which objections were by the court overruled, and appellant had been compelled to testify that he did not recall such statements or remember making them. In this connection appellant further set up that to allow the state’s attorney to ask Commissioner Harty, in the presence of the jury, if appellant did not orally state to her when he was brought before her under arrest and unwarned, that the whisky had by him and Cantrell at the time of their arrest was his and that Cantrell had nothing to do with it, would compel appellant to object and would be thus getting before the jury by the mere asking such question a matter which would be prejudicial and which would greatly harm his cause before said jury, and would cause the jury to connect such question with the statement which had been asked him over objection, and which he had said he did not remember. The bill further sets out that the court declined to pass in advance upon the admissibility of the testimony of Commissioner Harty, and the jury were returned into the courtroom, and over appellant’s objection Mrs. Harty was asked by the state if appellant had said, when brought before her with Cantrell in reference to the very occasion and facts here involved, that the whisky belonged to him and Cantrell had nothing to do with it. The bill further sets .out that when this question was asked in the presence of the jury, appellant objected on the ground that he was under arrest and unwarned, and the court promptly sustained the objection.

This bill is qualified by the learned trial judge who approves the statements made therein, but says that the witness Harty testified both in the absence and presence of the jury, and in the presence of the jury she testified that appellant and Cantrell were brought before her as United States Commissioner, in the custody of prohibition officers, and were under arrest. She was then asked by the district attorney if appellant did not make the statements to her which are set out above, and the court sustained the defendant’s objection to the question and any answer thereto. The court certifies that nothing else occurred in reference to the testimony of this witness in the presence of the jury. He says the jury was then retired, and in their absence the witness testified that Cantrell and appellant were brought before her under arrest, in the custody of officers, but that neither was sworn, nor asked for a hearing, but that she questioned them there before her, and, in the presence of appellant, Cantrell told her he had nothing to do with the transaction, and appellant told her that Cantrell knew nothing about the whisky being in the car, and had nothing to do with it. She further testified that she discharged Cantrell without bond because of what appellant said to her about Cantrell having nothing to do with the whisky.

We have no doubt of the injury resulting to appellant from the matters set out in this bill of exception. Similar questions have been before this court. See Faulkner v. State, 80 Tex. Cr. R. 341, 189 S. W. 1077; Bullington v. State, 78 Tex. Cr. R. 187, 180 S. W. 679. See, also, Spicer v. State, 52 Tex. Cr. R. 177, 105 S. W. 813; Rice v. State (Tex. Cr. App.) 51 S.W.(2d) 364; McClure v. State, 95 Tex. Cr. R. 53, 251 S. W. 1099; Long v. State, 119 Tex. Cr. R. 270, 43 S.W.(2d) 932.

The matters complained of in bill of exception No. 2 will not be discussed in view of the reversal made necessary by our holding in regard to bill of exception No. 1. If upon another trial of this case the evidence should be in the same condition as here and present the theory that appellant had no knowledge of the contents of the packages in the car until they reached 512 Monroe street, and that he had no interest in the transaction in any way, a charge should be given, in effect, if the jury believe this, or have a reasonable doubt thereof, they should acquit. Regardless of whether appellant made a foolish explanation of his conduct in regard to breaking a jar of whisky, this would be a matter of argument, and its truth and weight for the jury. Every right of any citizen accused of crime should be fairly safeguarded, and every theory of fact fairly raised on such trial should be submitted to the jury, who are the exclusive judges of the credibility of the witnesses and the weight to be given their testimony.

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


author: CALHOUN, Judge.

text:
    WATSON v. STATE.
    No. 15674.
    Court of Criminal Appeals of Texas.
    April 5, 1933.

      I-Iowth, Adams & Hart, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Murder is the offense; punishment, confinement in the penitentiary for 15 years.

This is the second appeal in this ease; the former appeal will be found reported in 120 Tex. Cr. R. 4S2, 48 S.W.(2d) 623, 624.

The state’s witness Roy E. O’Borski testified substantially to the following facts: He and the deceased had stopped their car near what was known as the Port Arthur Amusement Club in Port Arthur, Tex. As they entered the door leading into the clubroom the deceased was directly behind the witness, and the appellant was standing directly inside the door. The witness spoke to him and said, “Hi, Joe,” and then proceeded to the cigar counter a few steps away, and he then heard the deceased say, “Don’t do that Joe,” and he turned around and the appellant had a gun in his right hand and was holding the deceased by the collar with his left hand and stated, “I am going to kill you.” The deceased said, “Don’t do that Joe,” two or three times and the appellant then hollered, “Open the back door”; that during all this time the appellant was moving toward the wall and the deceased was trying to get loose. Appellant backed the deceased up against the wall and the witness said to the appellant, “Don’t do that Joe. Put up the gun. We don’t want to have any trouble here,” and the appellant then put the gun on the said witness and said, “stay out of this. It is none of your affair.” The appellant then hit the deceased over the head with the gun and then shot him. He was still holding the deceased by the collar at the time he shot him. The witness further testified that the appellant, after he had shot the deceased and the deceased had fallen to the floor, put his gun in his pocket and walked out of the place with a man by the name of Jack Cooper-. When the witness went over to where the deceased was lying, he was breathing but was about dead. He carried him to the hospital and he died a few minutes after reaching the hospital.

The appellant testified that a few hours before the killing, the woman with whom he was living as his wife told him that the deceased had forced her to go to Galveston with him and there have intercourse with him and that afternoon rang her up and asked her if he could not come up to see her. The appellant claimed to have had a double motive for the killing, he testifying that when he met the deceased on the occasion of the killing he intended to ask him for an explanatipn of his conduct and that the deceased and the witness O’Borski assaulted him and the killing was in self-defense.

A witness by the name of Virginia Watson testified that she had made an agreement to live as the common-laiw wife with the appellant several years before and after they made the agreement they began living together as man and wife and had lived together ever since. She testified that on the afternoon of the killing the deceased had called ■her up three or four times and she had then told her husband about' the time she had gone to Galveston with the deceased and the reason she went to Galveston with him was because he had threatened to do both she and the appellant bodily harm if she refused to go with him and that he would kill both of them if she refused to go with him. She went to- Galveston with him on a Saturday night because of said threats and stayed down there with him until Monday morning at what was known as the Buena Vista Hotel; that while she was there at the hotel the deceased had intercourse with her and she permitted him to do so because he had told her if she did not permit him to do so that he would kill her and she had told the appellant about it on the day of the killing several hours prior thereto.

By bill of exception No. 17 appellant complains of the cross-examination by the prosecuting attorney of the witness Virginia Watsdn concerning her relations with other men and the deceased on the occasion of said trip to Galveston and respecting her drinking and having nothing on but stepiris in the presence of other men on that occasion and denying that she was married. Substantially the same question was raised on the former appeal of this case and in passing upon said issue this court, speaking through Judge Lattimore, used the following language: “Voluntary improper relations of appellant’s wife with deceased and other men were provable as rebutting and combatting the claim of appellant that the woman told him that deceased had forced his attentions upon her, and forced her to have sexual relations with him. Complaint of the reception of such testimony was of no avail.”

This also disposes of bill of exception No. 12 which pertains to the same question.

Bill of exception No. 14 shows that upon the trial and while appellant was testifying in his own behalf at a time when he had not' put his general reputation in issue and had not asked for a suspended sentence in case of conviction, the district attorney asked the appellant on cross-examination the following question, “You have beat up several men, haven’t you?” to which question the appellant objected as being improper and because it was an indirect way of putting the defendant’s character in issue and was asked for the purpose of injuring the appellant and was Only asked for that purpose. The court sustained the objection and instructed the jury to disregard the question, whereupon the district attorney asked the following question, “You cut up several men, haven’t you?” and whereupon the court sustained the objection and instructed the jury not to consider the same. The district attorney then asked the defendant, “You have been in the whiskey business down there?” whereupon the appellant answered, “No, sir,” and the district attorney asked the following question, “Teebee (meaning the appellant) do you mean to say you haven’t been in the whiskey business even after you were convicted in this other case before?” whereupon the appellant objected to the same and the- court sustained the objection. Notwithstanding the court having sustained the appellant’s objection to said questions, the appellant objected to all of said matters for the reason that said questions on behalf of the prosecuting attorney were done deliberately and willfully for the purpose of going into the reputation of the appellant and by virtue of said questions he had brought out or had placed before the jury the fact that appellant was convicted on a former trial of this case and he was in the whisky business and had beat up and cut up several- men.

That such questions were hurtful and improper is manifest. We cannot gauge the evil effect on the jury of such improper questions. The appellant was not given the lowest penalty, and we think the cases cited in appellant’s brief authority for holding that such action is reversible error. Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029; Harrison v. State, 102 Tex. Cr. R. 385, 278 S. W. 430; Hunter v. State, 113 Tex. Cr. R. 90, 18 S.W.(2d) 1084.

By bill of exception No. 15 it is shown that the state attempted to elicit from the state’s witness Mrs. J. J. Bell, sister of the deceased, testimony as to the physical condition of the deceased and that he had spent some time in the hospital in Galveston. This testimony was held inadmissible by thisi court on the former appeal of this case, and upon another trial of this case the state’s attorney should not be allowed to attempt to go into said matters.

Numerous other bills of exception appear in the record. A number of said bills of exception complain of the argument of the district attorney. Since this case will have to be reversed on another issue, and the matters complained of are not likely to occur on another trial, we pretermit further discussion of same.

There are also a number of bills of exception to the charge of the court. A careful examination of said charge leads us to believe that same is a fair presentation of the law and affirmatively submitted every defense set up by the appellant in this case.

For the error pointed out, the judgment is reversed and the cause remanded.

PER GURIAM.

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: LATTIMOBE, Judge.

text:
    MACKLEY v. STATE.
    No. 15522.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Rehearing Denied April 19, 1933.

      Abe W. Wagner, K. C. Haynie, and John A. Mobley, Jr., all of Houston, for appellant.
    O’Brien Stevens, Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMOBE, Judge.

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

John Cherris was shot through the head and killed. Jack Jones testified that appellant did the shooting; that it was done on the night of August 30, 1931, in Houston, Tex.; and that afterward witness, his brother Keggy Jones, and appellant, took the body out near West Columbia, wired weights on it, and dropped it from a bridge into the Brazos river. This was Sunday night. Three days later the body of Cherris with the iron wired to it was found in the Brazos river a short distance below a bridge on whose floor and railing a quantity of blood was noted. There were two bullet holes in the head, one in the back and the other in the top. The money, watch, ring, etc., of deceased were found on his person.

Appellant testified denying his presence at or part in the killing. He said he did not know Cherris, and was not out with the Jones brothers in any car on the night of said homicide. The court below told the jury in his charge that Jack Jones, who was introduced by the state, was an accomplice, and in correct form told them they could not convict on Jones’ testimony unless he was sufficiently corroborated. We think ample corroboration appears. Appellant was seen on the night of August 30, 1931, at about midnight with Keggy and Jack Jones on the bridge above referred to, by a man who identified each of the three and said they ran across the bridge in front of his car and to a car standing near. When he first saw them they were about twenty-five feet from where the blood was afterward found on the bridge, and were going toward their car. The car to which the men went was a brown Eord sedan. Jack Jones testified that the car in which the body was driven was a brown Eord sedan, and further he testified that after throwing the body in the river the three men came back through Angleton and there woke up a filling station man at a two-story station and got some gas from him. Davis testified that he ran a two-story filling station at Angleton, and that about 3 a. m. on the night of August 30th he was awakened by men in a maroon colored car and sold them gas. One of these men he said was appellant. A laundryman of Houston swore that on August 31st he went to appellant’s apartment in said city and was given a suit of clothes by appellant’s wife, on which he saw blood, and was asked if he could remove said blood spots.

Jack Jones further testified that after shooting deceased in said car and carrying the body to the Brazos river and dropping it in, the party came back to Houston, and the next day removed the license plates from the murder car, saturated it with gasoline, and burned it up. He further testified that he moved from place to place for several days, and finally, at the home of a Mrs. Martin where he was spending the night, split a mattress and put said license plates in said mattress. Mrs. Martin testified that she found said license plates in the mattress and turned them over to the officers. The number of these plates were shown to be E 55949. Mr. Light testified that about the middle of August, 1931, he sold appellant an old car, and agreed to and did get new license plates and put on same, for which appellant gave him the money. Appellant gave witness the name of M. R. Moore. Light testified that he signed the transfer to appellant as M. R. Moore in the name of Roosevelt Houston, that being the name of the man from whom witness got said old car. This transfer was introduced in evidence, or the record of same, and showed the license number to be E 55949. Another witness testified that he saw Jack Jones and appellant together a day or two after this killing. The fact of the discovery of the body of deceased was published in the Houston papers. Appellant left Houston about this time and went to a small town in East Texas, where he remained for a few days apparently avoiding observation. He was arrested in Pueblo, Colorado, about the middle of September, 1931. We have not tried to set out all the corroborative circumstances.

Appellant asked a special charge presenting the theory of his right to act in his own self-defense against an attack upon him by deceased. We think said special charge correctly refused. Nothing in the record supports any such theory. Appellant also asked a special charge submitting his right to kill Cherris if it reasonably appeared to him that Cherris was about to kill Keggy Jones; and that if the jury believed from the testimony that appellant shot Cherris to prevent the killing or infliction of serious bodily injury upon Keggy Jones, appellant’s act would be lawful, and he should be acquitted. In their able brief appellant’s counsel admit that the theory of this charge is opposed by appellant’s own testimony, in that he swore he was not present at the scene of the killing; but they urge that such theory finds support in the testimony of Jack Jones. See Elam v. State, 16 Tex. App. 34; Bishop v. State, 43 Tex. 390; article 666, C. C. P.

Without giving in detail the testimony of the last-named witness, we set up the case on its facts to see whether the testimony referred to supports appellant’s theory in the latter regard.

Appellant lived at 407 Lamar street, Houston, Tex. Some time after 9 o’clock Sunday night August 30, 1931, he got a phone call. A car presently drove up. Appellant got in the car and left. According to the testimony of Jones, the party in said car then consisted of appellant, K. and J. Jones. K. Jones was driving the car then and when this killing took place. He had two pistols and J. had one. When appellant got in the car, K. Jones told him that he was going to “make Cherris talk,” and wanted appellant to go with him. As they drove along K. Jones — without request from or explanation by appellant— handed the latter a pistol, thus putting a pistol in possession of each of the three. As they went away K. Jones also told J. that if Cherris looked back he wanted J. to turn his face, as he did not want Cherris to recognize J. At this juncture appellant spoke up and said it would make no difference anyhow as he (Cherris) “wasn’t coming back.” The party proceeded to a point near St. Joseph’s Infirmary in Houston, and about the time they drove up one Buddy Jenkins came with deceased in his car. This indicated prearrangement. Deceased got out of Jenkins’ car and got into the Jones’ car on the front seat, and without statement as to where to go or consultation, K. Jones drove away. The situation of the four men in the car was that K. had the wheel; beside him was deceased; immediately behind whom was appellant; while J. was behind his brother. Before they had gone more than a few hundred yards, appellant shot deceased; the bullet entering the back and coming out at the top of the head. Presently the car was stopped and three pieces of iron, aggregating one hundred pounds in weight, were obtained. The party then drove out of Houston through Angleton in Brazos county to where the highway crossed the Brazos river. Here the body was laid on the railing of the bridge apparently, the iron weights mentioned were wired to it, and the body was dropped in the water, where it was later found. These facts have some bearing on the contention of appellant that he had a right to shoot deceased on the theory that the latter was attempting to shoot K. Jones, or that it so reasonably appeared to appellant at the time.

Erom J. Jones’ testimony we note further that when deceased got into the car Jones had his pistol in Ms hand. He also testified that he had his gun in his hand when appellant shot Cherris. As the car moved away, J. Jones testified that K. Jones made some inquiries as to the family of deceased, which were answered, and K. Jones said to deceased, “What is wrong with your hip?” or, “Why have you something on your hip?” He said that then Cherris reached for his gun. Appellant said, “Drop that gun,” twice; then fired. J. Jones testified that Cherris’ gun went off or was fired after he was shot by appellant. No witness testified that deceased did or said anything other than what we have set out. No one claimed that his pistol was. pointed at K. Jones, or that deceased ever got his pistol out, or then made any threatening statement to or movement toward K. Jones. IÍ. Jones was sitting under the wheel when the shooting took place. How he knew, or whether he knew, is conjectural based only on the question above set out put by him to deceased. What the tone of this question or its significance was to the two men in the back seat, where they could easily observe every movement of deceased, is also left undetermined. We see nothing in what occurred before or at the time of or subsequent to the killing supporting any theory that deceased was attempting to kill K. Jones. It is shown that appellant’s attorney on cross-examination of J. Jones asked and received the answer which appears in the following quotation; “Q. You are here telling this jury that the man that tried to defend your brother’s life is the man that fired the shot? A. Yes, sir.” The hypothesis contained in the question asked was the suggestion of counsel for appellant, and its affirmative answer by J. Jones can have no force or weight beyond the facts stated by said witness as seen and heard by him at the time, and which constituted his narration of what then took place.

Buddy Jenkins, who brought deceased to the meeting place near the St. Joseph’s Infirmary, appears in this record to have been one of a group which met in Dallas ten days before this killing, made up of men referred to as bad men, and men with records. Appellant was present at this meeting. K. Jones seems to have been there. He appears to have been suspected of some sort of treachery. Some character of threats seem to have been indulged in there, none of them, however, attributable to Cherris.

Some one had Buddy Jenkins to bring deceased to meet the three men who “took him for a ride.” They were going to “make him talk.” He “wasn’t coming back,” in the language of appellant before deceased got in their car. His seat in the car was apparently arranged for him before he got in. He was so seated as to be .immediately in front of the man who knew beforehand that he was not coming back. The ride had scarce begun when the life of deceased was snuffed out by the same man. The significance of the words of K. Jones, “What is wrong with your hip?” apparently sprung the trap. Whether deceased then for the first time sensed his danger and attempted to defend or protect his life, we can only conjecture; but it is made certain that when he moved in that direction the watchful eye of appellant caught. the move, and the command to drop the gun was re-enforced by the crack of appellant’s pistol in deadly nearness. “He wasn’t coming ■hack,” but the mills of the Gods that grind slow, but grind exceeding fine, began their grinding.

Jack Jones was a state witness. Complaint on behalf of appellant that Jack was asked by the state’s attorney, on redirect examination, if he had ever been engaged in any holdup or bank robbery or burglary before he met appellant, and that this was hurtful to appellant even though his objection to same was sustained, seems untenable. The bill presenting the complaint is qualified to show that the only objection in fact made to this question was that it was immaterial and irrelevant. We are unable to see the application of the authorities cited by appellant.

Complaint of the admission of testimony, to which no objection was made, is of no avail; and this is true of what is said against an argument made by the 'state’s attorney which is not so brought before us as that we can appraise the objection made. Bills of exception 1 and 2 bring forward appellant’s complaint of the refusal of the special charges presenting the theory of self-defense above discussed. We might observe that the affirmative defensive theory raised by appellant was that of alibi, upon which the court fully charged.

The alleged newly discovered testimony was that of a witness who attended the trial and was apparently not used by either side, showing that such testimony could not be held newly discovered. The numerous authorities cited by appellant, in his brief, in support of the views of his attorneys on the question of the propriety of refusing the special charges on self-defense, do not seem to us to in any wise hold contrary to what we have said.

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


author: CHRISTIAN, Judge.

text:
    RAMERIZ et al. v. STATE.
    No. 15953.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Art Schlofman and Jno. H. Merchant, both' of Dalhart, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possession of a narcotic drug; the punishment, a fine of $100.

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:
    UNDERWOOD v. STATE.
    No. 15852.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Reynolds & Heare, of Shamrock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, murder; punishment, confinement' in penitentiary for 30 years.

No statement of facts accompanies the record. Several special charges appear in the record. It is impossible for this court to determine whether they were applicable in the absence of a statement of facts. There also appears in the record a number of exceptions to the court’s charge. In the absence of a statement of facts, the charge must be held to be sufficient and will not be reviewed if as given it is applicable to any state of facts which might be made by the evidence under the allegations of the indictment. We must assume that the court below submitted to the jury the law of the case and all the law required by the statute or any portion of same. See section 170, 4 Tex. Juris.; Kell v. State (Tex. Cr. App.) 31 S.W.(2d) 1079; Smith v. State, 113 Tex. cr. R. 398, 22 S.W.(2d) 460; Davis v. State, 110 Tex. Cr. R. 602, 9 S.W.(2d) 1108.

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:
    SCOTT v. STATE.
    No. 15959.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Earl M. Greer, of Wills Point, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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.


author: HAWKINS, Judge.

text:
    SCOTT v. STATE.
    No. 15960.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Earl M. Greer, of Wills Point, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

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

The record is before this court without statement of facts or bills of exception. The indictment appears to be in proper form. In this condition of the record nothing is presented for review.

The judgment is affirmed.


text:
    MOORE v. STATE.
    No. 15967.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    O. H. Atchley, of New Boston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for murder, punishment being five years in the penitentiary.

The record is before this court without statement of facts or bills of exception. The indictment appears to be in proper form. In this condition of the record nothing is presented for review.

The judgment is affirmed.


author: MORROW, Presiding Judge.

text:
    BOOKMAN v. STATE.
    No. 15947.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    W. R. Smith, Jr., of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

The evidence heard before the trial court is not brought up for review. The indictment appears regular and regularly presented.

There are no bills of exception making complaint of the procedure in the trial court. There are exceptions to the charge of the court, but the absence of the facts precludes the appraisement of the complaints.

In the absence of knowledge of the facts that were before the court, the complaint of the argument of counsel for the state presented in the motion for new trial cannot be made the basis of a reversal.

The judgment is affirmed.


text:
    CARTER v. STATE.
    No. 15935.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    J. W. Ellington, of Center, for appellant.
    Lloyd W. Davidson; State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for perjury; punishment being five years in the penitentiary.

The record is before this court without statement of facts or bills of exception. The indictment appears to be in proper form. In this condition of the record, nothing is presented for review.

The judgment is affirmed.


author: IIAWKINS, Judge.

text:
    STOUT v. STATE.
    No. 15962.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    W. W. Ballard, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   IIAWKINS, Judge.

Conviction was for fraudulently receiving and concealing stolen property over the value of $50; punishment being two years in the penitentiary.

The record is before this court without statement of facts or bills of exception. The indictment appears to be in proper form. In this condition of the record nothing is presented for review.

The judgment is affirmed.


text:
    MAIORK v. STATE.
    No. 15974.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    A. C. Winborn, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, foil the State.
   CHRISTIAN, Judge.

The offense is possession of intoxicating liquor for the purpose of sale; 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:
    RILEY v. STATE.
    No. 15779.
    Court of Criminal Appeals of Texas.
    April 5, 1933.

      E. T. Chandler and J. B. Keith, both of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

Appellant and Mrs. Yera Riley, the injured party, had three small children, all of them being girls. Shortly before the assault Mrs. Riley had obtained a divorce from appellant. Under the divorce decree she was to have the custody of the children, but at stated times appellant was to have them. Prior to the divorce appellant had accused his wife of going with one Dee Balter, who was married. According to appellant’s version, he had found several letters in his wife’s handwriting. In these letters the writer expressed the desire to receive the caresses of the party to whom the letters were written. The letters bore no name or address. They were introduced in evidence by appellant. Appellant declared' that he had been advised that the letters were written to Dee Baker. Mrs. Riley denied that she wrote the letters. Further, she denied that she knew Dee Baker. Appellant testified that he had been informed by others that they had seen his wife with Baker on several occasions. Touching the trouble between his wife and himself, appellant testified, in substance, as follows: He found his wife’s mother and his wife with one Rucker. His wife’s mother, notwithstanding she was married and living with her husband, was permitting Rucker to hug and kiss her. He (appellant) demurred and tried to prevent, his wife from going with her mother. Two or three weeks later he saw his wife carrying some letters and putting them under a rock. He secured the letters and read them. His wife finally acknowledged that she had written the letters, but would not tell him the name of her lover. Later, he was informed by some parties that they had seen his wife with Dee Baker in a car down by the railroad track. After the divorce was granted, he went to his wife’s home for the purpose of taking the children for the time specified in the divorce decree. He was unable to get the children. Shortly prior to the assault he saw his wife and children in town. His wife’s mother was with her at the time. His wife got in a car with Dee Baker, leaving the children with her mother. She and Baker drove out of town. He got in his car and hunted for them. Finally his wife and Baker returned to town and she got out of the automobile, and Baker drove away. At this juncture, we quote from appellant’s testimony, as follows:

“As to my remembering striking my wife with that knife, I don’t know that I can hardly remember it or not; seems like I can, something about it. I was not cool, calm and collected; and I never was- in such a shape I was in, in my life. What made me in that frame of mind was just because she left my little children, and that man that was with her, and everything I reckon, and just too uncontrollable for the act that I done. Under the decree of the court she had the custody of these three children the biggest part of the time, I just had them two days, and she was supposed to raise them, care for them, and raise them properly. This fellow that she was with was a married man. He has a wife. I know his wife. They have three children. He lives with them.”-

Appellant followed his wife into a store, where she had gone to secure protection. One of the employees of the store attempted to prevent appellant from attacking his wife, and held him until she ran out on the street. Appellant pursued his wife and attacked her with a knife, inflicting several wounds. According to the state's testimony, appellant said, in effect, that he would kill the whole family. Further, appellant said: “I am going to get him too.” Mrs. Riley denied that she had been in a car with Dee Baker.

In the charge the court gave an abstract definition of murder without malice. Following this definition, the court attempted to define the expression “under the immediate influence of sudden passion.” The jury were advised that such expression meant that the provocation must arise at the time of the commission of the offense and that the passion was not the result of a former provocation. Further, the jury were advised that the act must be directly caused by the passion arising out of the provocation, and that it is not enough that the mind is merely agitated by a passion arising from some other provocation, or a provocation given by some other person than the party assaulted. The jury were then advised in the charge, in substance, that any condition or circumstance which is capable of creating and does create sudden passion such as anger, rage, resentment, or terror in a person of ordinary temper rendering the mind incapable of cool reflection is deemed an adequate cause. Further, the jury were instructed that where there are several causes; to arouse sudden passion, although no one of them alone would constitute adequate cause,, it was for the jury to determine whether or not all of such causes combined might be sufficient to do so. We quote paragraph 14 of the charge as follows:

“Although the law provides that the provocation causing sudden passion arising from an adequate cause, must arise at the time of the killing; or, at the time the assault if any was committed, it is your duty in determining the adequacy of the provocation, if any, to consider in connection therewith, all the facts and circumstances in evidence in the case and if you find that by reason of anything the assaulted party did, or by reason of anything said to or concerning the accused, by the assaulted party before and at the time of the assault, if any, that the defendant’s mind at the time of the assault, if any, was incapable of cool reflection, and that such facts and circumstances, if any, were sufficient to produce such a state of mind, in a person of ordinary temper, then the proof as to the sufficiency of the provocation, if any, satisfies the requirements of the law.”

In applying the law to the facts, the court advised the jury, in substance, to find appellant guilty of assault to murder without malice if they believed that he acted under the immediate influence of a sudden passion arising from an adequate cause, “as that term is hereinbefore defined,” etc., in the charge.

Manifestly, in defining “adequate cause” and “under the immediate influence of sudden passion,” the court had in mind the law relating to manslaughter, as it existed prior to the enactment of the present statute defining murder. The statute defining assault with intent to murder provides that the court, in its charge to the jury, shall define malice aforethought, and, in a proper case, murder without malice, and instruct the jury touching the application of the law to the facts. Article 1160, Vernon’s Annotated Penal Code. Article 1257c, Vernon’s Annotated Penal Code, reads as follows: “In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.”

There is nothing in the foregoing statute providing that the provocation must arise at the time of the commission of the offense, and declaring that the passion must not be the result of a former provocation, etc. In his testimony, appellant detailed circumstances claimed by him to have occurred on several occasions prior to the assault. If the jury believed appellant saw his wife with Dee Baker, they might have deemed the prior occurrences related by appellant sufficient to have contributed to producing the state of mind described by him. The charge might have caused the jury to have restricted its consideration to what occurred at the time of the assault, and to the acts alone of the injured party, in determining whether appellant acted under the immediate influence of a sudden passion arising from an adequate cause. Prior to the repeal of the statutes relating to manslaughter, this court, in Butler v. State, 109 Tex. Cr. R. 113, 3 S.W.(2d) 101, 102, speaking through Judge Battimore, used language as follows: “When the facts of a case show, as in this one, the presence of other prior facts and circumstances which might cause or contribute to produce the passion, excitement, etc., deemed by our statute to he adequate cause, and the possible acts of persons other than those named, the court should not in whole or in part restrict the jury’s consideration of same to what occurs at the time, nor to the acts of the specified persons. As stated in the original opinion, threats and acts of said parties at other times and places were in evidence and might be considered by the jury in connection with what occurred at the time in determining the question of adequate cause.”

The instructions in question not being warranted by our present statutes defining murder without malice and assault with intent to murder, the court should have amended the charge in response to appellant’s exception.

The judgment is reversed and the cause remanded.

PER OURIAM.

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


text:
    FARRIS v. STATE.
    No. 15926.
    Court of Criminal Appeals of Texas.
    April 12, 1933.

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

Conviction is for theft of property over the yaiue of $50, punishment being two years’ confinement in the penitentiary.

The record is before this court without statement of facts or hills of exception. The indictment appears to be in proper form. In this condition of the record nothing is presented for review.

The judgment is affirmed.


text:
    Chas. FARRIS v. STATE.
    No. 15927.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Wright Stubbs, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

The record is here without statement of facts or bills of exception.

The judgment will be affirmed.


author: MORROW, Presiding Judge. HAWKINS, Judge.

text:
    PALMERTREE v. STATE.
    No. 15827.
    Court of Criminal Appeals of Texas.
    March 15, 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.

The offense is murder; penalty assessed at confinement in the penitentiary for a period of four years.

The staté’s witness, Olsen, a master mechanic for the Frisco Railroad, having an office at Paris, Tex., gave in substance the following testimony: On the 9th day of September, 1932, the deceased, Jack North, entered the office of the witness. A short time thereafter the appellant entered the office and said that “he was going to shoot the low down dog,” and also stated, “I am going to shoot you.” North said, “Don’t shoot,” but the firing had already begun. North fell down on the floor, but later got up, and, while fleeing, was again shot by the appellant. Four shots were fired by the appellant.

A doctor testified that the injuries resulted in the death of North. He described the location and character of the wounds, stating, among other things, that “the puncture wound through the abdomen was a serious wound and a mortal wound.”

Appellant testified in his own behalf and enumerated a number of instances in which the hostility of North against him had been shown. Both North and the appellant were in the service of the Frisco Railroad at Paris, Tex. There was testimony from the' appellant and others that North was aggrieved at the appellant about some alleged transactions following the discharge of North; also that North had made a number of statements indicating his desire to injure the appellant in his standing with the railroad company. Appellant and other witnesses also testified to a number of threats which had been communicated to the appellant; some of them being threats to take the life of the appellant.

The appellant’s office was near that of the witness Olsen. There was also a tool house nearby. The appellant’s occupation called for him to go from time to time to the office of Olsen and to the tool house. On the day of the homicide, North, according to the appellant, came into the office of the appellant and threatened to kill him, and, fearing death from the use of an iron bar by North, the appellant fled. After seeing North leave in his car, the appellant returned to his office, got his gun and put it in his pocket. He later went to the office of the master mechanic without knowledge that North was there. Appellant went around to speak to Olsen and saw North, who immediately jumped up and made a demonstration as though he were drawing a weapon. Thinking his life was in danger, the appellant began to fire. North outweighed the appellant some forty pounds. According to some of the testimony, North had the reputation of a man of violence and one who would probably execute a threat.

English, a* special officer of the railroad company, testified that North had reported to him what he claimed to be certain irregularities and conduct detrimental to the appellant and such as, if true, would probably have caused him to be discharged by his employer. Among other things, it was charged that the appellant was associating with lewd women and was addicted to drunken brawls.

Bill of exception No. 1 complaiiis of the refusal of the court to receive the testimony of the witness English to the effect that he had learned that North had attempted to employ people to put whisky in the office of the appellant and report the matter to the officers so that he would be arrested. This manifestly called for hearsay testimony, and its exclusion by the court was not error.

In bill No. 2 complaint is made of the refusal of the court to permit the appellant’s witness English, on cross-examination to testify that he had made an investigation of the charges against the appellant by North and found that they could not be sustained. It is manifest from the bill and from the record that the question called for hearsay testimony.

Bill No. 3 complains of the refusal of the court to permit the appellant, on the cross-examination of the witness English, to XJrove that, whenever there was a prospective lawsuit against the company, it was his duty to collect the evidence. The inquiry seems entirely irrelevant to the issues involved.

In bill No. 4 it appears that, while the appellant’s witness English was upon the witness stand, he was asked by the appellant’s counsel the following question: “Now, then, I believe Mr. Hutchison asked you if North said to you that he was doing that for the purpose of protecting his job. I will ask you if a short time after that an investigation was made of those charges and of the men and if Jack North was not released and discharged and this man retained?”

The objection that the testimony was irrelevant and immaterial was sustained; the court stating that it called for hearsay testimony. It is thought that all of the bill shows no error. Moreover, it may be added that it was in evidence without controversy that in the reduction of the employees of the railroad company North had been released and the appellant retained.

In bill No. 5, it appears that the appellant’s witness Lohmann was asked if he did not know of the appellant having been charged with drunkenness. The relevancy of the testimony is not perceived, nor is it shown to have been so.

In bill No. 6, it appears that, while the witness Adams was being cross-examined, the state’s attorney asked him if on the day of the shooting he did not furnish liquor to the appellant. The answer-was “No.” We think the bill shows no substantial error.

Apparently bill No. 7 reflects an effort to impeach the witness Cunningham, but the bill is meager to a degree that we are not able to comprehend the purport of the appellant’s complaint.

Bill No. 8 complains of the refusal of the court'to give a peremptory instruction to the jury eliminating the issue of malice aforethought No error is perceived.

Bill No. 9 complains of the remarts of the state’s attorney. The bill is regarded as showing no error. A discussion of it is not deemed necessary.

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

On Motion for Rehearing.

HAWKINS, Judge.

The only point stressed in the motion for rehearing is the claimed improper argument of the state’s attorney, complaint of which is found in bill of exception No. 9. The attorney expressed his opinion that certain witnesses for appellant were favorable to him because they were afraid a civil suit would be filed against the railroad by the wife and children of deceased, in the event appellant should be convicted. It is not clear from the bill whether objection was interposed at the time the argument was made, but it shows that the court gave a written instruction directing the jury not to consider the argument. We are not impressed with the view that the argument was of such vicious or harmful character that the action of the court in withdrawing it did not properly care for the matter.

The motion for rehearing is overruled.


author: HAWKINS, Judge. MORROW, Presiding Judge.

text:
    Ex parte DE GRAZIER.
    No. 15940.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Rehearing Denied April 26, 1933.
    W. B. Harrell, of Dallas, for appellant.,
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

A writ of habeas corpus was issued on the 15th day of June, 1931, directed to the sheriff of Dallas county commanding him to show by what authority he was restraining relator. We find in the transcript a judgment entered “as of the 25tb day of June, 1931,” and which is as follows: "On this day came on to be heard the application for writ of habeas corpus in the above cause and the court, after hearing the said application and the answer thereto, and the evidence introduced and argument of counsel, is of the opinion that the said Joe T. DeGrazier should be remanded to the custody of John T. Carton, the duly ánd legally designated agent appointed and designated by the Governor of the State of Texas, in the executive warrant issued by' the Governor of the State of Texas, on June 23, 1931, and introduced in evidence in this cause, the evidence showing the said Joe T. DeGrazier to be a fugitive from justice from the State of Illinois, and the Governor of the State of Illinois having duly and legally requested the extradition of the said Joe T. DeGrazier from the State of Texas to the State of Illinois. It is therefore ordered, adjudged and decreed that the relator, Joe T. DeGrazier be and he is hereby remanded to the custody of John T. Carton, duly and legally appointed and designated agent of the State of Illinois to receive the said Joe T. DeGrazier, to be conveyed by the said John T. Carton to the State of Illinois and there dealt with according to law.”

The judgment then recites that relator excepted thereto and gave notice of appeal to this court. The judgment bears fil'e mark of date March 6, 1933.

No statement of facts accompanies the record. There is nothing to show that the extradition order issued by the Governor of the state was irregular or unauthorized. In the absence of a showing to the contrary, the presumption is that the Governor acted properly in the premises, and that the trial court was justified in remanding relator. See Ex parte Haynes, 98 Tex. Cr. R. 609, 267 S. W. 490, and cases therein cited.

In justice to this court, it ought to be said that, while the action of the trial court was of date June 25, 1931, no record was filed in this court until March 9, 1933.

The judgment remanding relator is affirmed.

On Motion for Rehearing.

MORROW, Presiding Judge.

The recitals of the judgment of the trial court, reproduced in the original opinion as they appear in the transcript, make clear the authority, of the trial court to refuse to discharge the relator. See article 1005, found in title 14, Texas O. C. P. 1925. See, also, Ex parte Carroll, 86 Tex. Cr. R. 301, 217 S. W. 382, 8 A. L. R. 901. The recitals in the judgment showing regularity are not controverted in any manner by any procedure before this court. The presumption of the validity of the Governor’s warrant, under such circumstances, has been declared in a number of cases, many of which are collated in Tex. Jur. vol. 19, p. 506, § 18.

The motion is overruled.


text:
    ARMSTRONG v. STATE.
    No. 15745.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    L. D. Johnston, of Waxahaehie, for ap>-pellant.
    Archie D. Gray, Or. Dist. Atty., and F. D. Wilson, Asst. Cr. Dist. Atty., both of Waxaha-ehie, and Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for swindling; punishment being assessed at a fine of $25, and ten days-in jail.

The prosecution is based upon a transaction had by appellant with George Watson, manager of a store in Waxahaehie, Tex., on May 10, 1932, at which time appellant purchased groceries worth $20.24, for which he paid with a check for that amount drawn on the City National Bank of Cleburne, Tex. The check was returned to Watson unpaid some; three or four days after it was given. Several days later Watson claims to have talked to appellant about the check being turned down, and testified that appellant told him he was then getting the money together to take up the check, but said he did not do so, and that he filed prosecution in the matter on June 7th. Watson further testified that apt-pellant never proffered the money to take up the check before the prosecution was instituted.

A bookkeeper in the Cleburne bank testified that appellant had made deposits as follows: On April 20th, $225, on April 25th, $150, and on April 30th, $20, that this amount was checked out by appellant, and that on May 1st appellant’s balance was $1.75, and that this was never increased by any additional deposits.

Appellant testified that at the time he gave the check he thought he had sufficient funds in the bank to cover it; that Mr. Watson told him a few days after the check was given that it had been returned unpaid. Appellant offered to testify that he had tendered Watson the money to take up said check, and that at the time he tendered the money he did not know of any action by the district attorney’s office on the check; that he was in Waxahaehie with the money to cover the check and to pay the amount he owed Watson. Upon objection by the state, this testimony was excluded. The matter is presented by hill of exception No. 2. It is qualified by the trial court with the statement that appellant had “failed and refused to give the date on which they claimed the money was offered to the witness (meaning Watson) and that the prosecuting attorney objected on the ground that it was after appellant liad been arrested.” It is certified as a fact in the hill that the tender of said money to Watson was made prior to the time appellant learned that the cheek had been turned over to the district attorney; it is further certified as a fact that at the time of so tendering the money appellant had no notice that any action had been taken on the «ck by the district attorney’s office. This rt is bound by the recitals in the bill. The objection to the testimony on the ground that the offer to pay was after appellant had been arrested cannot impeach the facts as certified in the bill. The reasons urged by the prosecuting attorney was only a ground of objection. It did not amount to the establishment of the fact that the ground therefor actually existed. Deatherage v. State, 91 Tex. Cr. R. 181, 237 S. W. 1111; West v. State, 98 Tex. Cr. R. 653, 267 S. W. 731; Neeley v. State, 113 Tex. Cr. R. 401, 22 S.W.(2d) 138. Watson had testified that no offer to pay was made before prosecution. was commenced. Appellant’s offered evidence would have made an issue on the point. The court had charged the jury, if they believed from the evidence beyond a reasonable doubt that the check had not been paid within fifteen days after it was returned, that it would be prima facie evidence that no good reason existed for appellant to believe it would be paid, and would also be prima facie evidence of appellant’s intention to defraud at the time he executed the check. This instruction was given under the provisions of subdivision 4, art. 1546, Penal Code. The excluded evidence would have tended to overcome the prima facie presumptions mentioned. As presented in the bill, the exclusion of the evidence must be held erroneous.

According to bill of exception No. 1, appellant offered to prove by E. A. Bedichek that appellant tendered Watson the money to take said check up before appellant had been informed that the check had been turned over to the district attorney’s office. According to the bill, objection was interposed by the state on the ground that this was after the check had been turned down by the bank on account of insufficient funds and had been returned to Watson. The trial judge undertakes to qualify this bill, but the qualification was excepted to, and therefore cannot be considered. Dowd v. State, 104 Tex. Cr. R. 480, 284 S. W. 592; Dailey v. State, 106 Tex. Cr. R. 99, 291 S. W. 242; Barton v. State, 107 Tex. Cr. R. 75, 294 S. W. 1112; McCarty v. State, 107 Tex. Cr. R. 589, 298 S. W. 575. As it appears in the bill, this evidence seems to have been admissible for the same reason given in discussing bill of exception No. 2.

Eor the errors discussed, the judgment must be reversed, and the cause remanded, and it is so ordered.


text:
    WALKER v. STATE.
    No. 15657.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Oscar Callaway, of Comanche, for appellant.
    Lloyd W. Davidson; State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for robbery; punishment being ten years in the penitentiary.

It was charged that appellant, by the use of a gun, robbed R. R. Evans, the cashier of a bank in the town of Proctor, in Comanche county, and obtained the sum of $403.77.

The state’s evidence showed that on the day of the robbery appellant borrowed a chocolate-colored Chevrolet roadster from a friend in Dublin, with the promise of returning it in 30 or 40 minutes. During the time of the robbery, a car of this description was parked near the bank in Proctor. Evans positively identified appellant as the robber. There is conflict between Evans and some of the other witnesses as to the kind of clothes appellant was wearing. This was incidental to his identity, a matter for the jury to determine. The gasoline line on the ear had been broken before appellant borrowed it. Some time after the robbery, and several miles from Proctor, appellant, with the car in question, was found by the officers. He had been having trouble with the car because of the defective gasoline line. None of the stolen money was found in appellant’s possession. It was never recovered. On the trial appellant admitted having borrowed the car, claiming that his purpose was to use it in getting some whisky. He denied having driven into the town of Proctor and parking the car near the hank; denied being in the bank, or committing the robbery. 1-Iis affirmative defense was an alibi.

Appellant briefs the question sought to be raised by bill of exception No. 4, which attempts to bring forward objection to the argument of the district attorney. First, we fail to discover in the argument any violation of the rules regarding same. It appears to be only a conclusion of the prosecutor that the state had established such a clear case of guilt that about the only thing left for the jury to determine was the punishment. Second, no objection seems to have been urged to the argument at the time it was made. It was complained of for the first time in the motion for new trial. The bill shows-an exception to the action of the court in overruling the motion for new trial based upon complaint of the argument. An objection to argument comes too late when complaint of it is made for the first time in motion for new trial. Simmons v. State, 93 Tex. Cr. R. 421, 248 S. W. 392; Harris v. State, 93 Tex. Cr. R. 544, 249 S. W. 485; Salinas v. State, 113 Tex. Cr. R. 142, 18 S.W(2d) 663; Thompson v. State, 116 Tex. Cr. R. 437, 34 S.W.(2d) 250; Crowley v. State, 117 Tex. Cr. R. 372, 35 S.W.(2d) 437.

The only affirmative defense interposed by appellant was that of alibi. Upon that subject the court charged as follows: “Among other defenses set up by the defendant is one of alibi, asserting that if the offense was committed as alleged, then the defendant was at the time of the commission thereof at another and different place from that at which such offense was committed, if any offense was committed, and, therefore, was not and could not have been the person who committed the offense, if any .offense was committed. Now, if the evidence raises in your mind a reasonable doubt as to the presence of the defendant at the place where the offense was committed, if any offense was committed, at the time of the commission thereof, you will give the defendant the benefit of such doubt and acquit him and say by your verdict not guilty.”

In his objection to the foregoing charge, appellant complained that the court did not include therein the question of reasonable doubt, and urged that the court should have instructed the jury that, unless the evidence of the state convinced the jury beyond a reasonable doubt that appellant and no other person committed the offense, they should acquit.. The court had álready instructed the jury that before they could convict appellant they must believe from the evidence beyond a reasonable doubt that he made an assault upon Evans, put him in fear of life or bodily injury, and by the úse of a gun fraudulently took from Evans the property described in the indictment. In the next paragraph the court told the jury, if they had a reasonable doubt as to whether he was gr '^L of the offense, alleged in the indictment, would give him the benefit of such doubt and acquit him. We are unable to discover any vice in the charge on alibi. It has been many times approved.

The questions discussed are presented in bills of exception 1 and 4, which bills are the only ones covered by appellant’s brief. However, we have carefully examined the remaining bills, which are Nos. 2, 3, 5, 6, 7, 8, and 9. In our opinion they show no error, nor do they call for discussion. The case is peculiarly one of fact, with some conflict in the evidence. The jury has determined that in favor of the state. If the evidence of the state was accepted by the jury as true, its sufficiency to support the verdict is not debatable.

The judgment is affirmed.