text:
    MOORE v. STATE.
    No. 15208.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.
    Adams & McAlister, of Nacogdoches, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

A still was in operation out in the woods on a branch. When detected by officers, appellant was on his knees beside said still. He fled, but was overtaken and captured. The whisky running out of the coil was being caught in a glass jar, which was practically full. The still was located on land controlled by Simpson, who testified that he knew nothing of the presence of the still. Appellant took the witness stand and testified that he was going through the woods and came upon the still and was merely examining it. He denied running away from the officers. He also denied that he was on his knees beside the still at any time. He explained his presence in the neighborhood by saying he was going down to look at a plow, and that he saw the smoke of the still and went over to where it was. It is in testimony that appellant ordinarily used a walking stick, claimed by him to be necessary in aiding him to get about, resulting from an accident. He left his walking stick at the still when he ran away. The officers said he ran rapidly. Fresh dirt had been dug out from under the drum, and the knee prints, where appellant was kneeling when the officers came up, were in this fresh dirt, as was also the print of his hands. The still was a complete one with a fire burning under it. Mash barrels were near by. The evidence seems sufficient to justify the conclusion of the jury.

'Appellant moved for a new trial upon the ground of newly discovered evidence. When the motion was presented the court heard evidence, which is brought forward in a separate statement of facts. We have carefully read the testimony in this statement, but are unable to find anything therein which appears ‘of sufficient weight to justify us in a belief that if same had been before the jury, a different result would have obtained. Apparently the purpose of the evidence deemed newly discovered was to support the proposition that the still belonged to Joe Posche or his brother. The testimony in said statement of facts consisted largely of the denials by each and all of the witnesses of knowledge of any fact which might lead to the belief that either of the Posches owned the still. We think the motion for new trial properly refused.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Two officers, Spurgeon and Lambert, were looking for a still. Describing their efforts, Spurgeon' said that he struck a trail and walked on a few steps when he observed the appellant, who was “hunkered” down, right around the fire. About that time the officer saw Moore raise up and run. Spurgeon followed the appellant for about fifty yards and shot several times in his direction and told him to stop. The appellant continued his flight. While fleeing from Spurgeon the appellant was intercepted by Lambert, the other officer. Moore, ordinarily, walked with a walking stick, but he left that at the still. Appellant was right down by the still, where the dirt had been dug out and where there was a Are under a thirty-five gallon drum. The appellant’s knee prints were found in the loose dirt right by the still where the officer first saw him. The prints of the appellant’s hands and knees were plain. The still was in operation and whisky was running out of it into a one-gallon glass jar, like something was being filled. Split wood was being used for the fire.

Lambert testified that after hunting in the locality for a still, he and Spurgeon separat•ed. They were a short distance apart and came upon a still. The appellant jumped up and started through the woods and was pursued by the officers. He was captured after running about 160 or 200 yards. The testimony of Lambert is substantially the same as that of Spurgeon.

The appellant explained his presence in the locality with the statement that he had gone to Charley Moore’s field to get a plow. The appellant’s children were making a crop, but he was not. While looking for the plow he heard some one talking. He walked through the field and came out through the fence and ran upon the still. He saw it running but did not know what it was. He was standing there peeping out of the bushes, which were-high, and it looked like he discovered somebody talking. He was just peeping and could not make out what it was. While he was looking at the still, a man commenced firing right behind the appellant and hit a tVee over his head. He then took back up the trail and tried his best at running. Appellant disclaimed any ownership or previous knowledge of the still.

The sufficiency of the evidence to sustain the verdict is challenged. The conflict of evidence was settled by the jury. The state’s evidence, if believed, is deemed sufficient to support the verdict. From such evidence, the still was in operation. The appellant alone was present. Upon becoming aware of the presence of others he fled. Analogous cases are McPherson v. State (Tex. Cr. App.) 43 S.W.(2d) 944; Read v. State, 116 Tex. Cr. R. 240, 34 S.W.(2d) 269; Taylor v. State, 105 Tex. Cr. R. 465, 288 S. W. 1080. The flight of one suspected or charged with crime is uniformly recognized as a circumstance tending to support the theory of guilt. Many cases may be cited, among them Wilkerson v. State, 108 Tex. Cr. R. 384, 300 S. W. 942; Brown v. State (Tex. Cr. App.) 51 S.W.(2d) 616, 617. The flight of the appellant, as described by the officers, was a circumstance tending to show guilt. See Underhill’s Cr. Ev. (3d Ed.) p. 282, § 203.

Upon the record before us, we are con■strained to.overrule the motion for rehearing, and it is so ordered.


source: Caselaw Access Project

author: MORBOW, P. J.

license: Public Domain

text:
    ADAMS v. STATE.
    No. 15712.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    M. E. Lawrence, of Eastland, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORBOW, P. J.

The possession of intoxicating liquqr for the purpose of sale is the ofíiénse; penalty -assessed at confinement in the penitentiary for one year.

The indictment and the procedure, so far ,as shown by the record, appear regular. The record is before us without a statement of the facts heard upon the trial.

There are some criticisms of the charge of the court by way of exception, but, in the absence of the statement of facts, they cannot be appraised.

A bill of exception challenges the soundness -of the ruling of the court in permitting, inculpatory evidence upon the ground that it was obtained through an illegal search. The •bill does not demonstrate that the evidence was improperly received, nor is it otherwise shown by the record. Moreover, in the absence of the evidence that was before the court, the bill would be insufficient to warrant a reversal.

Complaint is made of the remarks of state’s counsel in his closing argument to the jury wherein he said: “Gentlemen of the Jury, you should convict in this case and in all cases where they transport liquor by the gallons.”

In qualifying ,the bill, the court does not certify that the argument was made.

Finding no error, the judgment is affirmed.

HAWKINS, J., not sitting.


author: MORROW, P. J.

text:
    WILLIAMS v. STATE.
    No. 15562.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    H. M. Wade, of Rockwall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

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

No statement of facts accompanies the record.

Two bills of exception assail the ruling of the court in receiving in evidence the testimony of the officer who searched the appellant’s car and found therein a quantity of intoxicating liquor. Against the reception of the testimony the contention is made that the evidence failed to show “probable cause” for the search. The testimony heard upon the subject is set out in a bill of exception in great detail, both in narrative and question and answer form. A review of it in detail, however, is not deemed desirable or necessary. The officer who made the search stated various circumstances which aroused his suspicion that the appellant had put ⅛ his automobile in view of the officer a sack containing intoxicating liquor. Acting upon the suspicion, he approached the appellant and said: “I want to search your car. You look set.” Appellant replied: “All right; go ahead.” The officer proceeded to raise the cover of the turtleback where he had seen the sack deposited, and found therein the sack containing intoxicating liquor. Aside from the subject of “probable cause” to make the search, growing out of the facts, the consent or permission of the appellant to the search would fully justify the reception of the evidence. See Williams v. State, 112 Tex. Cr. R. 307, 17 S.W.(2d) 56, 57; Gonzales v. State, 113 Tex. Cr. R. 122, 18 S.W.(2d) 618; McPhail v. State, 114 Tex. Cr. R. 635, 26 S.W. (2d) 218; Jones v. State, 108 Tex. Cr. R. 444, 1 S.W.(2d) 617.

In addition to the foregoing, it may be stated that, in the absence of a statement of facts or some recital in the bill of exceptions showing that there was not other evidence-than that of which complaint is made above supporting the judgment, the court would not be authorized to order a reversal of the judgment of conviction upon a showing made in the bill of exception, even if it be conceded that the bill showed an illegal search.

The judgment is affirmed.


text:
    VANCE v. STATE.
    No. 15564.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    L. D. Johnston and Lynn B. Griffith, both of Waxahachie, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

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

A plea of guilty was entered. When, in the offense of murder such a plea is entered, the hearing of the evidence by the jury is for the purpose of determining the extent of the punishment to be assessed. See article 502, C. C. P. 1925; also Harwell v. State, 19 Tex. App. 423; Burton v. State, 33 Tex. Cr. R. 138, 25 S. W. 782; Coats v. State, 86 Tex. Cr. R. 234, 215 S. W. 856. The matter of guilt of the offense is established by the plea, except in cases in which the evidence introduced demonstrates the innocence of the accused of the offense for which he is charged. See Anderson v. State, 118 Tex. Cr. R. 194, 42 S.W.(2d) 1012. In the present instance, the evidence adduced upon ’the trial shows conclusively that the appellant killed the deceased, and is such as to justify the conclusion that in committing the homicide the appellant acted with malice aforethought and without justification.

Appellant introduced testimony through his wife suggesting that he acted in self-defense. As stated above, however, the preponderance of the evidence is far to the contrary. The state’s evidence is quite sufficient to support the conclusion that the commission of the offense was neither justifiable nor excusable.

Some bills of exception appear in the record which, in the main, relate to the cross-examination of the appellant’s wife. She was called as a witness by him and testified, as abqve stated, to facts tending to exculpate him. On the face of the bills we think that the claim that error is disclosed is untenable, and it is clearly made so by the bills as qualified.

In sentencing the appellant, the court ignored the statutory provision relating to the Indeterminate Sentence Law as set forth in article 775, C. C. P. 1925. The sentence will be reformed so as to condemn the appellant to suffer ■ confinement in the state penitentiary for a period of not less than two nor more than forty-five years. As so reformed, the judgment is affirmed.

HAWKINS, J., not sitting.


author: CHRISTIAN, J.

text:
    RHODES v. STATE.
    No. 15635.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    P. O. French, of Fairfield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

The indictment alleges that appellant “did then and there unlawfully take nine hogs,” etc., • omitting the word “fraudulently.” The use of the word “fraudulently” is indispensable in charging theft under our statute (Pen. Code 1925, art. 1410). Haney v. State, 117 Tex. Cr. R. 564, 37 S.W.(2d) 746; Phillips v. State, S9 Tex. Cr. R. 483, 231 S. W. 400, 401, and authorities cited. In Phillips v. State, supra, it was held that an allegation that the appellant “did unlawfully take, steal, and carry away” was not equivalent to an averment that he “did then and there fraudulently take,” etc.

The judgment is reversed and the prosecution ordered dismissed.

PER CURIAM.

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

HAWKINS, J., not sitting.


author: LATTIMORE, J.

text:
    McELREATH v. STATE.
    No. 15285.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    State’s Rehearing Denied Nov. 23, 1932.
    Davenport & Crain, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

We deem it necessary to notice but two propositions involved in this appeal. The record shows that after proving the theft of the alleged stolen car in Dallas, and that same was found in the possession of appellant. ⅛ Wichita Falls, and that same was by him and another transferred, the state proceeded to introduce testimony showing the theft by appellant of two other cars from other people than the owner of the alleged stolen car in this case, the two last-mentioned cars being taken from different owners and at different times and places. Objection to this testimony was preserved by proper bill of exception. There seems little need for discussing the question of its admissibility. This court has many times held it erroneous to pursue such course in a trial. The most recent case is that of McGowan v. State, 117 Tex. Cr. R. 74, 36 S.W.(2d) 156, in which reference is made to many earlier authorities.

There is no claim that the testimony above referred to was introduced by the state in its rebuttal as meeting and overcoming a claim on the part of the appellant of an acquisition of the property in some honest manner. Said testimony was introduced as part of the state’s main case. The principles involved are discussed in the various cases referred to, and we think it unnecessary to here discuss them further.

Over objection the state was permitted to introduce a number of dealers in used cars who testified to.their several methods of investigating the questions of title and ownership when used cars were offered to them by purported owners, especially when such purported owner- was a stranger to the witness. The manifest purpose of this testimony was to reflect upon the character of dealing in similar transactions on the part of appellant. We are of opinion the testimony was improperly admitted. That some dealers under similar circumstances were more cautious, or that they used methods different from those used by the party under investigation or upon trial, would appear incompetent as showing or tending to show the criminality of the accused, as an inference from use .of a different method by him in ascertaining ownership and title to used cars bought by him from persons unknown from the methods of these witnesses.

For the errors discussed, the judgment is reversed and the cause remanded.


author: CALHOUN, J.

text:
    MELTON v. STATE.
    No. 15543.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    G. B. Lockhart, of Lubbock, for appellant-
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, transporting intoxicating liquor ; the punishment, three years in the penitentiary.

The record is before us without a statement of facts or bills of exception. No defect either in the indictment or proeedure-has been pointed out or has been perceived. No question is presented .for review.

The judgment is affirmed,

PER CURIAM.

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


text:
    SHELMAN v. STATE.
    No. 15677.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Barron & Ware, of Bryan, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, murder; the punishment, three years in the penitentiary.

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

We note that the verdict of the jury finding the appellant guilty of murder without. -malice assessed his punishment at three years in the penitentiary, and the sentence fixed his punishment at confinement in the penitentiary for a straight term of three years. The sentence will therefore be reformed so as to assess appellant’s punishment at confinement in the penitentiary for an indeterminate period of not less than two years nor more than three years, and, as so reformed, no question being presented for .review, the judgment is affirmed. •

.Reformed and 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.

.HAWKINS, J., not sitting.


author: HAWKINS, J. LATT1MORE, J.

text:
    WILLIAMS v. STATE.
    No. 15510.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    See, also, 53 S.W.(2d) 628.
    Paul Petty, of Ballinger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary, punishment being assessed at two years in the penitentiary.

The record is before us without a statement of facts. Only one' bill of exception is brought forward. It complains of the argument of the district attorney in which he said: “If you go out and turn this defendant loose, then you might as well tear the law books up, burn court house down, destroy jails, and let everybody go free and do as they please.”

In connection with, and as a part of the bill,there is set out in a general way the evidence produced at the trial. It is insisted that, under the circumstances shown, we should hold the argument to have been reversible error. Appellant cites the cases of Pemberton v. State, 55 Tex. Cr. R. 464, 117 S. W. 837; Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 959; Coates v. State, 98 Tex. Cr. R. 314, 265 S. W. 891, 892; Rutherford v. State, 104 Tex. Cr. R. 127, 283 S. W. 512; Tucker v. State, 96 Tex. Cr. R. 356, 257 S. W. 260. The arguments complained of in all save the last ease cited were very similar to that used in the present ease, and most of those cases were affirmed, and none was reversed because of the argument. In some of them doubt as to the propriety of such an argument was expressed. The argument in the Tucker Case was of an entirely different nature. The language used by the court in passing upon an argument very similar to that complained of in the present case expresses our views regarding the matter. We quote: “Though this flight of imagination may not with propriety be cited as a model of eloquence nor an example of logic, it cannot be assumed that the verdict of the jury was responsive to the extravagant statement of counsel rather than to the facts adduced upon the trial. In the reviewing court, -the verdict having the sanction of the trial court and the evidence heard are important elements in estimating the effect of remarks of counsel which, though improper, are not obviously harmful.” Coates v. State, supra.

In his brief appellant seeks to draw a distinction between cases on direct evidence where the judgments have been affirmed over complaint of similar arguments, and the present case in which the state relied on circumstantial evidence. The distinction does not appear sound when the point at issue is determining the probable effect of an argument. Circumstantial evidence frequently furnishes as convincing prooí of guilt as would direct evidence.

We cannot bring ourselves to believe that the somewhat fervid remarks of the district attorney were so seriously regarded by the jury as counsel for appellant seems to think.

Nothing appears from the record leading to the conclusion that the jury’s verdict was based on anything save the evidence produced before them.

The judgment is affirmed.

On Motion for Rehearing.

LATT1MORE, J.

We have examined with interest the persuasive motion for rehearing, but are still of opinion that, in a case where the accused was given the lowest penalty by the jury, and whose facts are not before us, we could not justifiably order a reversal because of the argument set out in the original opinion. The trial judge heard the testimony and the argument, saw the witnesses, and refused to grant a new trial. If the testimony was sufficient, and we must presume it so, the jury were evidently not moved by the argument .complained of to go beyond the minimum penalty.

The motion for rehearing will be overruled.


text:
    TATUM v. STATE.
    No. 15503.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    Shelton & Stubbs, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

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

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

The judgment is affirmed.

PER CURIAM.

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


author: CALHOUN, J. LATTIMORE, J.

text:
    JOHNSON v. STATE.
    No. 15320.
    Court of Criminal Appeals of Texas.
    May 25, 1932.
    State’s Rehearing Granted Oct. 12, 1932.
    Appellant’s Rehearing Denied Nov. 23, 1932.
    Max Coleman, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

This is an appeal from a judgment finding the appellant guilty of keeping a bawdy-house ; the punishment, a fine of $200 and 20 days in jail.

Appellant raises the issue that she is enti-tied to a reversal of the judgment and to have the cause remanded because the record in this case, as shown by the transcript on file, fails to include an information. It is shown by the record that there was a complaint filed, charging the offense for which the appellant was convicted, but there is no information in the record, and the clerk in making up the record shows that no information was filed. This also seems to he substantiated by the judgment finding the appellant guilty, which merely recites that the appellant pleaded not guilty to the complaint. There is nothing in the record to show that this case arose or was originally filed in the justice court, but to the contrary the record shows that the complaint was filed originally in the county court.

In the case of Ethridge v. State, 76 Tex. Cr. R. 41, 172 S. W. 784, 785, the record showed that the case originated in the county court by filing a complaint charging the appellant with gaming. There was no information filed, and appellant was tried only on the complaint. Motion in arrest of judgment was ■based on the failure of the county attorney to file a complaint. This was overruled by the court, it seems on the theory that appellant had gone to trial without raising the objection that the information had not been filed. After citing the Constitution and statutes, Judge Davidson, speaking for the majority of the court, used the .following language: “* * ⅜ Construing the Constitution and the statutes, the courts have invariably held that the county court cannot acquire jurisdiction or try a misdemeanor where it originated in the county court, until an information has been filed. See Garza v. State, 11 Tex. App. 410; Kinley v. State, 29 Tex. App. 582, 16 S. W. 339; Leal v. State, 51 Tex. Cr. R. 426, 102 S. W. 414; Baker v. State, 54 Tex. Cr. R. 53, 111 S. W. 735. This court will reverse a conviction from the county court where an information was not filed in that court, provided the case originated in the county court, whether there was a motion made in the trial court or not. It is a jurisdictional question. An information is as prerequisite, under such circumstances, in the county court, as is the indictment in a felony prosecution in the district court. To hold that a party could waive an information in the county court would be equivalent to holding substantially that the party could waive an indictment in a felony prosecution. The invalidity of a prosecution originating in the county court without an information has been decided so often, and has become so thoroughly the settled law, it is deemed unnecessary to discuss the matter or cite further authorities.”

For collation of other' authorities, see Branch’s Ann. Tex. P. O. § 473.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

At a former term, upon the ground that no information appeared in the record, this cause was reversed and remanded. .It is now made to appear by supplemental transcript that there was on file in the record at the time an information. Considering the case, we observe that there is in the record no statement of facts. Appellant presents a statement of facts accompanied by his affidavit. Both the county judge and the county attorney connected with the trial of the case have on file with us affidavits in which they state unequivocally that there was at no time presented to either one of them by appellant or his attorney any statement of facts.

The record being before us without bills of exception or statement of facts, the state’s motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is now affirmed.


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

text:
    ADAMS v. STATE.
    No. 15523.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    State’s Rehearing Denied Nov. 23, 1932.

      Moore & Wilson, of Amarillo, for appellant.
    Uloyd W- Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

In the count of the indictment, under which appellant was convicted, it is charged that the appellant “did then and there unlawfully in and upon Willie Mae Gentry, a woman, who was not then and there the wife of the said Charley Adams, make an assault, with the intent then and there to commit the offense of rape upon the said Willie Mae Gentry hy then and there, without the consent of the said Willie Mae Gentry, attempting hy force, threats and fraud to have carnal knowledge of her, the said Willie Mae Gentry.”

Appellant operated a second-hand car lot in Amarillo. According to the testimony of the state, appellant was sitting in an automobile on his lot when prosecutrix, Willie Mae Gentry, who was a girl 12 years of age, accompanied by Gwyndoline Puett, a girl of about the same age, approached. Appellant spoke to the girls and they stopped to talk to him. Getting into appellant’s car, they carried on a conversation with him for some little time. Appellant, in the meantime, bought them some candy. Finally, appellant volunteered to take prosecutrix and her companion home and they left the lot in appellant’s ear. Instead of taking them home, appellant drove out of town. According to the testimony of the two .girls, prior to leaving the ear lot, appellant had attempted to place his hand under prosecutrix’s dress. After leaving town appellant continued his unwelcome attentions. Touching the alleged assault, prosecutrix testified, in substance, that appellant placed her hand on his male organ; that she protested; that appellant got out of the car, leaving Gwyndoline Euett in the car, and came to the side of thé car near her (prosecutrix); that appellant tried to pull her bloomers down; that at the time appellant’s pants were unbuttoned and his male organ exposed; that appellant tried to get between her legs. At this point we quote from the testimony of prosecutrix, on direct examination, as follows;

“As to what Gwyndoline and I were doing at that time — well, we just kept scooting over and tried to keep him from it, and couldn’t. I was inside of the car. He was inside of the car, too. He had gotten in on the side I was on around on the right side of'the car. 1 stated 'that he got between my legs. The defendant, Charley Adams, at that time had his-privates out. I felt his privates between my legs. As to what Gwyndoline Puett and I did to keep the defendant Charley Adams from doing what I have told this jury about out .there in the country — well, we were fighting- and trying to keep him from it. As to whether I consented for the defendant, Charley Adams, to do any of the things I have told the jury about that he did out there in the country — well, I don’t know just what you mean. I don’t know what ‘consent’ is. I did not agree with him that he could do to me the-things I have told the jury he did do. As to what I said or did to him there — well, he tried to put his privates between my legs and I kept fighting, and he tried to Gwyndoline and she kept fighting. When I was fighting I, was scratching him and pushing him back.. As to what the other girl and I said to Mr. Adams while this was going on — well, 1 told him if he didn’t leave usi alone I would tell my mother when we got home, and he told us not to tell. We told him if' he didn’t leave us alone we were going to tell our mothers, and he told us not to tell anybody, and not to tell those jokes that he told. I stated that the-defendant left me and went over to Gwyndo-line. He came 'back to me again after he had. tried Gwyndoline. As to what he did the second time — well, he just tried the same thing that he tried the fir^t time. When he was over there the second time we were still fighting and pushing him and scratching him. We were both fighting at the same time. While we were out there in this car, and during the-time these events took place I have told the jury about, I saw an automobile coming. This automobile did not come up there'where we were; it turned down another road. I-continued to fight and push until the defendant quit. As to what I did after the defendant quit doing the things I have told the jury about- — well, we told him if he didn’t leave us alone we would tell our mother as soon as we got home, and he left us alone, and started on back to town.”

Prosecutrix testified on cross-examination, that appellant took hold of her at the time of' the alleged assault and she hit him; that she-was fighting appellant to keep him away; that appellant held her hand; that she and her companion fought appellant at the same time; that neither she nor her companion tried to get out of the car; that neither her-clothes nor those of her companion were torn in any way; that she was not hurt in any way; that she had the print of appellant’s-hand on her left leg; that appellant did not choke or hit her or Gwyndoline. She said:. “As to what caused him to quit — well, we just told him if he didn’t leave us alone we was going to tell our mothers. When we told him that he quit. I told him if he didn’t quit I was going to tell my mother. As to what he-said then — well, he didn’t say nothing; he-Just started on back. Tbe car was stopped then. Tbe motor wasn’t running. He Just turned around and started tbe car up and cam.,- on back.”

Tbe testimony of Cwyndoline Puett was substantially tbe same as that of prosecutrix.

Appellant did not testify in bis own bebalf, -but introduced witnesses wbo testified tbat appellant was at another and different place when tbe offense was alleged to have been committed. Tbe testimony of appellant’s witnesses to tbe effect tbat bis general reputation for being peaceable and law-abiding was good was uncontroverted.

We are constrained to sustain appellant’s contention tbat tbe evidence is insufficient to support a conviction for assault to (rape by tbe use of force. In an indictment for assault to commit rape upon a female under tbe age of eighteen years, it is not necessary to charge tbat force was used. Shroeder v. State, 92 Tex. Cr. R. 7, 241 S. W. 169. However, the count of tbe indictment under which appellant was convicted charged an assault with intent to commit rape by force, and without tbe consent of prosecutrix. Hence, in order to sustain a conviction, tbe allegation of force charged in tbe indictment was required to be proved. In Morgan v. State (Tex. Cr. App.) 50 S. W. 718, tbe court said: “Tbe indictment is in two counts. Both counts charge an assault with intent to commit rape by force, and without tbe consent of tbe prosecutrix. Tbe fact tbat tbe prosecu-trix is alleged to be under tbe age of 15 years thus becomes immaterial, for, in any event, in order to sustain a conviction, tbe allegation of.force charged in tbe indictment was required to be proved. The court, in its charge, as seen above, presented a case of rape without force upon tbe prosecutrix, with tbe intent to have carnal knowledge of her, she being' at tbe time under tbe age of 15 years, and not tbe wife of defendant. This is not the' case presented in tbe indictment, for, as we have seen under it, tbe state could only procure a conviction by the use of force, and against tbe consent of tbe female.”

(See, also, Shroeder v. State, supra.

Under tbe charge contained in the indictment, tbe state was required to prove beyond a reasonable doubt not only tbat appellant made an assault on prosecutrix, but tbat he intended to gratify bis passion on her person, and tbat be intended to do so at all events, notwithstanding any resistance on her part. Vinsen v. State, 102 Tex. Cr. R. 235, 277 S. W. 644, and authorities cited; Pierce v. State, 109 Tex. Cr. R. 461, 5 S.W.(2d) 517. There was no fact or circumstance that caused appellant to desist except bis own volition. Tbe force described was not, in our opinion, as great as tbat used in Yinsen v. State, supra. Under tbe circumstances reflected by tbe record, we are driven to tbe conclusion tbat tbe conduct and acts of appellant, measured by tbe rules of law applicable to the charge embraced in tbe indictment, cannot 'be said to show beyond a reasonable doubt tbat appellant intended to gratify bis passion on tbe person of prosecutrix, and tbat be intended to do so at all events, notwithstanding any resistance on her part. This would be necessary where tbe charge is assault with intent to rape by force.

Tbe judgment is reversed and tbe cause remanded.

PER -CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

A consideration of tbe state’s motion for rehearing leaves us of tbe opinion that the disposition of the case upon tbe original bearing should remain tbe judgment of this court. Tbe motion raises no new question of law but reiterates the facts which we have carefully examined and analyzed as well as tbe members of tbe court are able to do so and have appraised them as reflected ¡by tbe opinion heretofore rendered.

Tbe motion is overruled.


text:
    MOXLEY v. STATE.
    No. 15334.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    Rehearing Withdrawn Nov. 23, 1932.

      R. W. Haynie, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for tbe State.
   MORROW, P. J.

Assault with intent to murder is the offense ; penalty assessed at confinement in the penitentiary for one year.

Erom the evidence, it appears that Hulen Rutherford, a youth eighteen years of age, and the appellant, .Leona Mosley, a woman, about twenty-two years of age, had been keeping company with each other for some time. The appellant was an elevator operator at the Wooten Hotel, at which place Rutherford was also employed. Using a telephone, the appellant called Rutherford to meet her at a certain place, which she named. He met her and they walked on the street together, she stating that she was going to see a friend. She led the way to the office of Mr. Bledsoe, a lawyer. They entered Bledsoe’s office together. She told Mr. Bledsoe they wanted to get married. He explained the conditions under which they could get married, and she aslied him if they could not have a secret marriage, to which he replied in the negative. Assuming that was all she wanted, Bledsoe turned his attention to another matter when he heard a pistol fire. He saw Rutherford fall to the floor and saw a pistol in the hand of the appellant. Bledsoe took the pistol from the appellant and called for help. He gave testimony, however, that there was an attempt to fire the second shot.

Appellant bore a good reputation in every re$pect and had attended the schools and churches in Abilene. She had recently been in. care of a dentist due to some defect in her teeth. She had apparently been suffering from nervousness, and had surrendered her position as a stenographer because of her health. All of her friends testified that she had had a nervous breakdown and had been treated for nervous troubles. She had at times exhibited fits of madness and appeared extremely nervous. This was spasmodic, and the witnesses gave no information as to the cause of it other than as stated above.

At the close of the evidence, counsel for the appellant stated that he expected the attendance of Dr. Cash, the family physician, who had known the appellant practically all her life; that Dr. Gash had promised to be present at the trial but had some time previous thereto been in an automobile accident which fractured the vertebra, and he informed counsel that he could not attend the trial. A verbal motion to penpit counsel to withdraw his announcement of ready for trial was made and overruled.

In the motion for new trial the affidavit of Dr. Gash was presented, in which it was stated that he had been injured in an automobile ■accident which produced a fracture of the vertebra and pelvis bone, and he had been confined for some two months under constant medical treatment; that he had promised the appellant’s attorney that he would be present on Friday, October 30th, at the time the ease was called for trial, but he had suffered a severe setback and was unable to leave his bed and attend the trial on that day; that, if he had been present, his testimony would have been in substance as follows: “That he knows Leona Moxley, the defendant in said cause and that he has known her since she was five years old and has been her family physician. That he is acquainted with her physical condition and has been observing her for several years with reference to a nervous derangement caused by her physical condition. That he has advised an operation in an attempt to cure her nervous affliction but that she has not been operated upon. That her physical condition is such that she suffers from a high nervous tension, nervous breakdowns and spells of irresponsibility. That this condition has gotten worse the last two years and she has consulted with him frequently regarding her condition. That she is a stenographer by profession and he advised her to abandon this line of work and attempt some other work to see if this would assist in curing or helping her physical condition and her nervous system. That upon his advice she quit her job as stenographer and accepted a job in the Wooten Hotel as elevator girl. That she was under his treatment at the time of the commission of the offense with which she is charged in this case, and that at that time her nervous system was in such a condition that she was not responsible for her acts. The affiant says that had he been able to testify in said cause he would have testified in substance to the above facts and that such are the facts.”

The claim for review is based upon the absence of Dr. Gash. It seems that he had not been subpoenaed; that he had been confined to his home for two months immediately preceding the trial. There was no showing that any effort was made to take his deposition, nor legal motion to continue or postpone the case. Under the circumstances, there is apparently such lack of diligence to secure the testimony of Dr. Gash as would deny this court the authority to reverse the conviction. The cases in point are Boxley v. State, 100 Tex. Cr. R. 334, 273 S. W. 589; Ellington v. State, 63 Tex. Cr. R. 426, 140 S. W. 1104; Cole v. State, 70 Tex. Cr. R. 459, 156 S. W. 929; Norton v. State, 102 Tex. Cr. R. 213, 277 S. W. 141.

The judgment is affirmed.


author: CALHOUN, J. MORROW, P. J.

text:
    CLARE v. STATE.
    No. 14978.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1932.
    Rehearing Denied Nov. 23, 1932.
    Alex F. Cox, of Beeville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The record in this case shows that appellant was indicted in San Patricio county for the theft of an automobile of the value of $100. On the trial of the case on October 4, 192S, appellant entered a plea of guilty. Before the trial began, the appellant filed a written sworn application, asking, in case of conviction, that sentence be suspended. On his plea of guilty the jury fixed his punishment at five years in the penitentiary, but found in their verdict that he had not been theretofore convicted of a felony in this or any other state and recommended that the sentence be suspended. On the same day judgment was entered upon the verdict of the jury and the sentence was suspended thereon during appellant’s good behavior, and appellant was released upon his own recognizance in the sum of $500.

On the 7th day of February, 1930, the appellant, under the name of Richard Clair, in the United States District Court for the Western District of Texas, pleaded guilty to an indictment charging him with transporting in interstate commerce from the city of Wing-field, Kan., into the city of San Antonio, Tex., a certain Nash automobile alleged to have been the property of one R. Davis, which had theretofore, on or about the 6th day, of August, 1929, been unlawfully stolen and taken away from the possession of the owner in the said city of Wingfield, Kan., by the said Richard Clair, and upon said plea of guilty his punishment was fixed at imprisonment in the county jail of Bexar county for period of nine months, which sentence appellant served out.

On the 28th day of September, 1931, the judge of the district court of San Patricio county, the county in which the conviction in the first instance had been obtained, entered an. order finding that the appellant had committed a subsequent felony and ordered his arrest and the issuance of a capias therefor. On the 26th day of October, 1931, a warrant in pursuance of said order of arrest was placed in the hands of the sheriff of San Patricio county. On the 27th day of said month, the sheriff of San Patricio county received the appellant from the sheriff of Bee county at the jail in Beeville and took the appellant to Sinton for the purpose of having sentence pronounced upon him in the original conviction, and sentence was pronounced in said cause on October 28, 1931.

Prior to the pronouncement of sentence, appellant duly filed his plea to the jurisdiction of the court and exceptions and objections to the judgment and pronouncement of sentence, all of which .the court overruled, to which action of the court appellant duly ex-ceptedj and gave notice of appeal to this court. The: ca.se is now before this court for review and final determination.

Appellant contends that our suspended septehce.. statute (Code Cr. Proc. 1925, art. 776) is unconstitutional, being a violation of a: number of sections of the Bill of Rights of.'the Constitution of Texas. The constitutionality of the present law has been passed on;hy this court' and the act held constitutional in Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998, and that opinion has been followed in Roberts v. State, 71 Tex. Cr. R. 77, 158 S. W. 1003. We deem it unnecessary to discuss the constitutionality of the act other than refer to said cases.

The appellant further contends that the court passing sentence upon the appellant was without jurisdiction to so do because the statute of this state upon which said judgment is founded is applicable only to felonies committed in this state and tried by our state courts under indictments presented by a grand jury in the state, and is not applicable to judgments of conviction rendered in a federal court. A similar question was before this court in the case of Brown v. State, 105 Tex. Cr. R. 586, 289 S. W. 682. The position appellant takes that the. words “any other felony” used in the statute does not include felonies within the purview of the federal law, nor is the conviction of a felony in a federal court sufficient to bring into effect a sentence which has been suspended, was therein held not tenable.

Appellant further contends that the lower court was without jurisdiction to enter said sentence herein complained of because it lost jurisdiction of this case .by permitting appellant to go at large without hindrance for some foürteen months after he had served an imprisonment for a conviction of nine months in the county jail of Bexar county by order of a federal .court; because said court had notice of said judgment of said federal' court and also notice that the defendant had been at all times within the jurisdiction of said court after he had served this said sentence. The appellant cites, in support of this contention, Miner v. U. S., 157 C. C. A. 48, 244 F. 422, 3 A. L. R. 905; Smith v. State of Indiana, 188 Ind. 64, 121 N. E. 829, 2 A. L. R. 999.

In the case of Miner v. U. S., supra, it was held that a court is without power to suspend a sentence once imposed, and similarly it is without power to suspend the imposition of sentence or to parol him when it is not vested with power of parol.

In the ease of Smith v. State of Indiana, supra, it was held that the indefinite postponement of sentence upon one convicted of crime deprives the court of jurisdiction to pronounce sentence at a subsequent term and that such postponement is in effect a discharge of the prisoner and therefore ousts the court after the expiration of the term of further authority over him.

The cases cited by appellant are holdings to the effect that until Legislatures shall vest courts with powers to suspend sentences under certain conditions, it is their duty in the trial of a case’ upon a conviction or a plea of guilty to_ pronounce judgment without unreasonable delay. However, in this state we have a statute which has been declared constitutional authorizing the suspending of sentence by the court under certain stated conditions. Therefore, we do not think the cases cited by appellant are in point. Article 779, C. C. P., following articles 776, 777, and 778, which provide the manner and mode in which a suspended sentence may be obtained, is as follows: “Upon the final conviction of the defendant of any other felony pending the suspension of sentence, the court granting such suspension shall cause a capias to issue for the arrest of the defendant, if he is not then in the custody of such court, and during a term of the court shall pronounce sentence upon the original judgment of conviction, and shall cumulate the punishment of the first with the punishment of any subsequent conviction or convictions, and in such cases no new trial shall be granted in the first conviction.”

As we understand the contention of the appellant, it is not his contention that the lower court lost jurisdiction because it had no right to sentence appellant at a subsequent term after the date of his conviction in the federal court, but his contention is that under the law he should have been sentenced within a reasonable time after his subsequent conviction in the federal court and that the court’s failure to so sentence him until October 28, 1931, was - unreasonable and unjust and that the action of the court in failing to sentence him until said date amounts to an indefinite suspension of sentence by the court, and that by reason thereof the lower court lost jurisdiction and power to sentence the appellant and was without jurisdiction to pronounce sentence on said defendant. , The evidence offered by the appellant upon the hearing of his plea to the jurisdiction of the court was substantially as follows: Appellant testified that he lived in Bee county, Tex., and had lived there practically all his life; that he was convicted in San Patricio county, Tex., in September, 1928, and given a five-year suspended sentence; that he was convicted in federal court in San Antonio, Tex., and a punishment of confinement in the county jail for a term of nine months had been assessed against him; that said conviction occurred on February 7, 1930; that he was released from jail on September 22, 1930; after he was released from jail he came back to Beeville, Bee county, Tex., and stayed there until he was arrested on the 27th day of October, 1931, the day before he was sentenced; that some hind of process was served upon him while he was in jail serving his sentence in San Antonio; that it was served approximately 30 days after he began serving his sent.enee, hut that he was never removed from the county jail of Bexar county.

It was shown by W. G. Gayle, district attorney of the Thirty-Sixth judicial district, that the appellant was originally convicted of the theft of a car from one Withers, and that on or about February 7, 1930, he was told by the said Withers that he (Withers) understood that the appellant was in jail in San Antonio and had been convicted of a felony and that he (Withers) was going to see that the suspended sentence that the appellant had gotten for stealing his car was carried into effect. He further testified that some time during February, 1930, the court issued a warrant for appellant’s arrest at Mr. Withers’ instance, but that he did not think that the warrant was ever executed; that he did not have anything to do with it not being executed, and that was the last connection he had with Withers.

The sheriff of San Patricio county testified that he had had a warrant for appellant’s arrest before but did not get him.

Neither the record nor the evidence show that there was any attempt on the part of the presiding judge or of the district attorney to indefinitely postpone the sentencing of the appellant. He was never brought before the court, nor was there any order continuing the passing of the sentence upon the appellant; but the most that can be. said in regard to the record is that there was delay in the arrest of the appellant after the knowledge had come to the court and district attorney that he had been convicted and was serving a sentence in federal court in San Antonio.. There is no dispute but that the appellant at no time had suffered restraint during the whole time after he had been released from jail in San Antonio.

The right to a suspended sentence is a valuable right. The appellant so recognizes it by asking for same in case of conviction in the first instance, and upon recommendation of the jury it was not within the discretion of the trial court to refuse it. If the appellant did not desire to have a suspended sentence hanging over him, he had the right to refuse to ask for it and serve his term on his plea of guilty. He elected to do otherwise and received his freedom subject to good behavior during the period of time assessed by the verdict of the jury against him. The purpose of permitting the sentence to be suspended is to give a defendant an opportunity to comport himself with good behavior. If he does not do so and is finally convicted of any other felony with-in the period of suspension, he cannot complain if he is required to serve a sentence in accordance with law for the offense for which he has been theretofore convicted and upon which sentence has been suspended.

We have been unable to find any cases in this state directly in point on this question. The following are some of the cases supporting the views herein stated: State v. Abbott, 87 S. C. 466, 70 S. E. 6, 33 L. R. A. (N. S.) 112, Ann. Cas. 1912B, 1189; Fuller v. State, 100 Miss. 811, 57 So. 806, 39 L. R. A. (N. S.) 242, Ann. Gas. 1914A, 98; Spencer v. State, 125 Tenn. 64, 140 S. W. 597, 38 L. R. A. (N. S.) 680; State ex rel. Tingstad v. Starwich, 119 Wash. 561, 206 P. 29, 26 A. L. R. 393.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

It is understood that the suspension of the sentence of one convicted of crime is not, in the absence of statutory authority, one of the inherent powers of the trial judge. See State of Utah v. Zolantakis, 70 Utah, 296, 259 P. 1044, 54 A. L. R. 1463, and authorities cited in notes on page 1471 of 54 A. L. R.

In this state the subject is covered by statute and limited thereby. That is to say, that the accused, at any time after the term of his conviction has expired, may, upon showing that he has not been subsequently convicted, be released from the suspended sentence by an order of the court. Likewise, if within the period of his conviction under a suspended sentence he is again con-, victed of a felony, the court has authority to recall the suspended sentence and make the judgment final. See articles 779 and 780, C. C. P. The time within which the court may act is limited only by the duration of the sentence. That is to say, after the time for which one is.convicted and placed under a suspended sentence has expired, it is not within the power of the court to recall the suspension and make the judgment final. This was held in the case of Ex parte Coots, 85 Tex. Cr. R. 334, 212 S. W. 173. So far as we are aware, there are no other limitations upon the right of the court to recall the sentence. In the present instance, the recall of the suspended sentence" was within the duration of the conviction, and therefore was within the jurisdiction of the trial court.

The sufficiency of the sentence pronounced against the appellant in October, 1931, is challenged upon the contention that the appellant was not given an opportunity,' before the sentence was passed, to state his reason why it should not be passed. It appears from a bill of- exception that the appellant was asked the following question: “Have you anything to say why this sentence should not be pronounced against you?” To which the appellant replied, “I have,” and stated in substance that after his conviction in 1928, he was convicted in the federal court and confined for nine months in jail. He was released in November, 1930, since which time he had been in Bee county until October 26, 1931, when he was arrested.

It appears from the record that on his original trial in 1928, the penalty assessed against the appellant was confinement in the penitentiary for five years.

The statute invoked by the appellant, in his contention that he was denied the privilege of giving his reason why sentence should not be pronounced upon him, is article 773, O. C. P., which sets forth the reasons which would be available. It is not contended by the appellant that any of the reasons there mentioned existed. However, as stated above, it appears from the record that he was not denied the right to be heard in opposition to his sentence.

We are constrained to overrule the motion for rehearing, and it is so ordered.


author: CHRISTIAN, J. HAWKINS, J.

text:
    KATZ v. STATE.
    No. 15257.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    State’s Rehearing Denied Nov. 23, 1932.
    Newton & Gittinger and Leonard Brown, all of San Antonio, for appellant.
    D. F. Davis, Co. Atty., Marion R. McClana-han and Arthur V. Wright, Asst. Co. Attys., all of San Antonio, James V. Allred, Atty. Gen., Neal Powers, Asst. Atty. Gen., and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is pursuing the business of lending money and oharging and receiving therefor a fee and' brokerage, without paying the occupation tax provided for in chapter 41, General and Special Laws of the Forty-Second Legislature, enacted during the Second Called Session (Vernon’s Ann. Civ. St. art. 7047, subd. 15); the punishment, a fine of $150.

Appellant attacks the caption of the act, insisting that it is violative of section 35, article 3, of the Constitution. The applicable portion of the cited section of the Constitution reads: “No bill * * ⅜ shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.”

The title to the bill reads as follows: “An Act- to amend Section 14, Article 7047, of the Revised Civil Statutes of 1925, relating to and imposing an occupation tax on money lenders and defining same and providing for certain exceptions, and declaring an emergency.”

The provision of the bill here in question reads:

“Section 1. That Article 7047, Section 14, of the Revised Civil Statutes of Texas of 1925 be and the same is hereby amended to read as follows:
“Section 14. Money Lenders. — Money lenders as hereafter defined, an annual tax of One Hundred and Fifty Dollars ($150.00) for each place of business. A money lender, for the purpose of this section, is a person, firm or corporation, or agent or agents for, or anyone representing a person, or persons, firm or corporation, who regularly pursues the business of lending money with or without security, and charges or receives therefor a fee, brokerage or other charge of any kind whatsoever, provided, this tax shall not apply to persons, firms, associations or corporations who lend money on or incident to real estate nor shall this tax apply to banks or banking institutions and life insurance companies regularly organized as such.”
A solution of the question makes it necessary to examine article 7047, Revised Civil Statutes of 1925, which embraces the section sought to be amended. After providing for the collection of an occupation tax, article 7047, sets forth thirty-nine numbered subdivisions, each of which relates to a distinct occupation. Subdivision 14 reads as follows: “Loan brokers. — (From loan brokers, as that term is defined by the laws of this State, an annual tax of one hundred and fifty dollars for each place of business.”
We find “loan brokers” defined in article 6162, Revised Civil Statutes of 1925, which we quote: “A ‘loan broker’ is a person, firm or corporation who pursues the business of lending money and taking as security for the payment of such loan and interest an assignment of wages, or an assignment of wages with power of attorney to collect the same, or other order for unpaid chattel mortgage or bill of sale upon household or kitchen furniture.”

Subdivision 15 of article 7047 defines “money lenders” and provides for the payment of an occupation tax. We quote: “Money lenders. — From every person, firm or association of persons loaning money as agent or agents for any corporation, firm or association, either in this State or out of it, an annual occupation tax of one hundred and fifty dollars for the State, for the principal office, and a county tax of fifteen dollars from each agent for each county in which he may do ■business, and no additional occupational tax shall be levied by any county, city or town in this State.”

Deducing from the judicial precedents the principles controlling, it is observed that a liberal construction will be applied in determining whether or not a statute violates section 35 of article 3 of the Constitution, and, where the provisions are germane in any degree, the law will be upheld. Mercer v. State, 111 Tex. Cr. R. 657, 13 S.W.(2d) 689; Davis v. State, 88 Tex. Cr. R. 183, 225 S. W. 532. The word “subject” in the constitutional provision to which reference has been made is used in the same sense as the word “object” in former Constitutions. Mercer v. State, supra ; Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376. The word “object” under former Constitutions was construed by the courts to mean “end or purpose.” Giddings v. San Antonio, 47 Tex. 548, 26 Am. Rep. 321; Breen v. Ry. Co., 44 Tex. 302; Stone v. Brown, 54 Tex. 331; State v. McCracken, 42 Tex. 384; Houston & T. C. R. Co. v. Odum, 53 Tex. 344; International & G. N. R. Co. v. Smith County, 54 Tex. 1.

The purpose of the constitutional provision under consideration is well expressed in the case of Consolidated Underwriters v. Kirby Lumber Company (Tex. Com. App.) 267 S. W. 703, 705, from which the following is taken: “It is well recognized that the purposes of this provision are to advise the Legislature and the people of the nature of each particular bill, so as to prevent the insertion of obnoxious clauses which otherwise might be in-grafted on it and become the law, and to obviate legislation through the combination, upon a composite bill, of the votes of the proponents of different measures included in it, some of which would not pass upon their merits if separately considered.”

See, also, Stone v. Brown, 54 Tex. 342.

The judicial precedents are to the effect that, if the general and ultimate subject of the particular.act as a whole is to be found within the wording of the title, the subject thus expressed will support provisions in the body of the act that are components of the general subject; are reasonably implied by it because they have been connected with, and appropriate to, it in similar laws or by usage; are relevant and germane to it; are necessary for the attainment of it; are reasonably auxiliary to it; are complementary to it; or are reasonable incidents of it, or of its incidents as expressed in the title. Consolidated Underwriters v. Kirby Lumber Company, supra, and authorities therein cited. On the other hand, it is the announcement of the decisions that particular provisions are not within a given title where no subject at all is expressed in the title; where the ultimate subject expressed and that provided for are plainly different; where the provisions are palpably ulterior or foreign to the title; where they are separate, distinct from, and not germane to the subject expressed; where by no intendment they possess a necessary or proper connection with it; where they are disconnected from it and inappropriate to it. Consolidated Underwriters v. Kirby Lumber Company, supra, and authorities therein cited.

It has already been observed that the act (chapter 41) under consideration purports to amend section 14 of article 7047, Revised Civil Statutes of 1925. In stating the principles from which it may be determined whether the title to a bill meets the requirement of section 35, article 3, of the Constitution, sve are not to be understood as bolding that tbe title of an act amendatory of an article in a code, such as our Revised Statutes, is insufficient if it does no more than refer to the code and the number of the article therein. The courts of this state have held that a reference to a number of an article in a code, such as our Revised Statutes, is sufficient in the title of an act amendatory thereof, to allow any amendment germane to the subject treated in the article referred to. English & Scottish-American Mortg. & Inv. Co. v. Hardy, 93 Tex. 289, 55 S. W. 169; State v. McCracken, 42 Tex. 384. The reason for .the holding appears to be that the naming of the article to be amended directs attention to all of the provisions therein, as the subject of the amending act, and that such provisions can be ascertained by reading the article to be amended. However, when the Legislature restricts the title of an amendatory act by reference to the number in the code of the article amended, and announces its purpose to deal with the original bill in respect to particular matters therein, it is bound to govern itself accordingly, and keep within what it had itself declared would be the limits of its proposed action. Sutherland Statutory Construction (2d Ed.) vol. 1, § 139; State v. American Sugar Refining Co., 106 La. 553, 31 So. 181, 186.

We quote from Sutherland-Statutory Construction, supra, as follows: “Where the title of the amendatory act specifies the section or sections to be amended, the weight of authority is that the amendments must be germane to the subject matter of the sections specified, and that amendments of other sections, not specified, will be void. * * * Where the section is specified, matter can not be introduced by way of amendment in such section which is provided for elsewhere in the act.”

Many authorities are cited in support of the text, among the citations being State v. American Sugar Refining Co., supra. In the case last mentioned, the court considered an act to amend sections 10, 12, and 14 of an act in relation to licensing occupations. The act brought into these sections the business of refining sugar and molasses. The business last mentioned was provided for in section 11 of the original act. This was held to be void as not within the title. We quote from the opinion of the court as follows: “When this act was passed, the general public and each person pursuing any of the businesses mentioned therein were advised of the exact situation, and placed in position to take steps to thereafter maintain, alter, or repeal the act as the different interests might, be affected. The general public and each individual concerned was called upon to watch subsequent legislation concerning licenses. If the title of a proposed law should give notice of an intention to amend or repeal generally the preceding act, every interest involved should be placed upon the alert, and warned of a possible injurious charge in the law. If, however, the title of the proposed law should give notice of an intention to simply amend a particular section of the bill, then all parties other than those interested in the subject-matter contained in that particular section would be thrown off their guard, and, being led to believe they had no interest in the new statute, would take no steps looking to their own protection. 'If, under the title of a bill to amend simply ‘section one’ of a given law, which section affects only specified persons, or deals with a particular subject, distinct matters which are contained in and specially provided for in another section, and which concerned a different set of persons, could, after being dealt with differently from what they were in their proper section, be transported over and inserted into ‘section one’ as so altered, the parties concerned in this change might be greatly deceived and ruined without their knowledge.”

Numerous judicial precedents are cited in support of the holding in State v. American Sugar Refining Co., supra, among them being Ex parte Cowert, 92 Ala. 94, 9 So. 225, 227; Ex parte Hewlett, 22 Nev. 333, 40 P. 96; Trumble v. Trumble, 37 Neb. 340, 55 N. W. 869, 870; State v. Bankers’ & Merchants’ Mut. Ben. Ass’n, 23 Kan. 502; Chiles v. Monroe, 4 Metc. (Ky.) 72; Board of Com’rs of Pitkin County v. Aspen Mining & Smelting Co., 3 Colo. App. 223, 32 P. 717, 718; People ex rel. v. Fleming, 7 Colo. 230, 3 P. 70; Miller v. Hurford, 11 Neb. 377, 9 N. W. 477; State v. Cornell, 54 Neb. 72, 74 N. W. 432, 434; State v. Tibbets, 52 Neb. 228, 71 N. W. 990, 66 Am. St. Rep. 492; State v. Southern Ry. Co., 115 Ala. 250, 22 So. 589-591; Armstrong v. Mayer, 60 Neb. 423, 83 N. W. 401; State v. Ferguson, 104 La. 249, 28 So. 917, 918, 81 Am. St. Rep. 123.

The following is taken from Dolese v. Pierce, 124 Ill. 140, 16 N. E. 218, as quoted in State v. American Sugar Refining Co., supra : “An act to amend certain sections of a general law is limited in its scope to the subject-matter of the sections proposed to be amended. In such case the introduction of any new substantive matter not germane or pertinent to that contained in the original sections cannot be regarded as an amendment thereto, but must be regarded as independent legislation upon a matter not expressed in the title of the act, and therefore void. The amendment of an act in general or a particular section * * * implies merely a change of its provisions upon the same subject to which the act or section relates.”

The foregoing principle is found announced in numerous decisions of the Supreme Courts of other states having constitutional provisions similar to our own. See State v. American Sugar Refining Company, supra, and authorities cited. It is in harmony with'the general principle announced in our own decisions. Consolidated Underwriters v. Kirby Lumber Company; English & Scottish American Mortg. & Inv. Co. v. Hardy, supra. As we have already stated, the reason for the holding by our courts that a reference to a number of an article in a code, such as our Revised Civil Statutes, is sufficient in the title of an act amendatory thereof to allow any amendment germane to the subject treated in the article referred to, appears to be that the naming of the article to be amended directs attention to all of the provisions therein, as the subject of the amending act, and that such provisions can be ascertained by reading the act to be amended. Thus, in the present case, the provisions of the section sought to be amended- were, in effect, directed attention to in the title of the act as the subject of the amending act.

If, in giving application to the principles controlling, it appears that there was introduced in the amendatory act new substantive matter, not germane or pertinent to that contained in section 14 of article 7047, Revised Civil Statutes of 1925, the amenda-tory act must be held to -be independent legislation upon a matter not expressed in the title of the act, and, therefore, void. Looking to the title of the amendatory act, it is seen that it is stated therein that such act amends section 14 of article 7047, Revised Civil Statutes of 1925. Examining the body of the act, it is found that it is expressly stated therein that section 14 is amended. There is nothing in the act expressly repealing section 15. Section 14 of the original act sought‘to bet amended relates to an occupation tax on loan brokers, who are defined in article 6162, Revised Civil Statutes of 1925. Subdivision 15 of article 7047 provides for an occupation tax on money lenders, who are defined in such subdivision. Thus it is seen that loan brokers and money lenders were, in article 7047, separately classified as distinct occupations. Article 6162, supra, was not attempted in the amendatory act to be amended. In referring to section 14, the Legislature made that section the subject of the amending act. It is clear, we think, that the matter treated in the body of the amending act is not germane to the subject treated in section 14 of article 7047. It might be that the Legislature really wished to amend section 15 relating to money lenders, but as the title stated that it is an act to amend section 14, and the body of the act repeats that statement, the opinion is expressed that it must >be taken just as it reads. Ex parte Hewlett, 22 Nev. S34, 40 P. 96; State v. American Sugar Refining Company, supra.

Giving application to the principles controlling, we are constrained to hold that the introduction of new substantive matter in the amendatory act not germane or pertinent to that contained in the original section 14 characterizes the amendatory act independent legislation upon a matter not expressed in the title of the act, and that the act is, therefore, void.

The judgment is reversed and the prosecution ordered dismissed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, J.

In a motion for rehearing by the state we understand no serious question is raised regarding the disposition of the case upon the grounds stated in our original opinion, but the state suggests that, in view of probable future legislation on the subject, an expression of the opinion of this court on other phases of the case might be desirable. If there should be other legislation upon the subject involved, it is impossible for this court to know in what form it might appear. The propriety of expressing an opinion upon matters not necessary to the disposition of a case is open to serious criticism, as being dicta only, and of little, if any, weight. For the reasons stated we refrain from responding to the state’s suggestion.

The motion for rehearing is overruled.


author: HAWKINS, J. LATTIMORE, J.

text:
    LA FITTE v. STATE.
    No. 15200.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.

      Dallas Ivey and Maurice Short, both of Center, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

Officers armed with a search warrant searched appellant’s residence, and upon a table in a pantry found two gallons of whisky, and in the wall of the house they found a pint of whisky.. Twenty-seven empty pint bottles were found in the house. Appellant was not present at the time of the search, but his wife and other members of the family were there.

The affidavit and search warrant upon which the state relied are attacked by bill of exception No. 4 as insufficiently describing the premises to he searched, and for the further reason that they were claimed to be illegible. The learned trial judge attached to the bill the original affidavit and search warrant, and they are before this court for inspection. Both the affidavit and warrant were prepared by filling in mimeographed forms with a typewriter. It is apparent from the originals that the typewritten words were not properly aligned with the blank spaces to be filled in, and in some instances the typewritten words overlapped the mimeographed matter on the forms used. The learned trial judge in qualifying the bill says that, although the words used in filling in the blanks did to some extent overlap the printed matter, he was able to read both the affidavit and search warrant. We have found no difficulty in reading them. They appear not subject to the criticism that they are illegible. Furthermore, the description of the residence to be searched seems to he sufficient. It is described as follows: “ * * s The white frame house well known to these affiants to be the residence of Earnest LaEitte, situated on the Logansport hiway about two miles from the courthouse in Center, and located on the east side of said hiway No. 76. ⅜ * ⅜ ”

Bill of exception No. 3 brings forward complaint of the refusal of a requested charge to the effect that it would be no violation of the law for appellant to have possession of the whisky found if he had it for his own use or that of his family. The court assigned as his reason for refusing said charge that the evidence did not raise or suggest the issue covered by the special charge. An examination of the statement of facts verifies the truth of the reasons given by the court for refusing the charge;

Bill of exception No. 1 relates to the refusal of a continuance which was requested on account of. the absence of Mrs. Onie La Fitte and one E. 0. Gibbs. Tbe application for continuance omits to set out wbat the expected testimony from Gibbs would be, and therefore is as to him insufficient. As to Mrs. La Fitte, the application states that, if she was present, she would testify that “the officers came to her house and that she first heax-d one of them breaking into the house through a back door, that no search warrant was shown to her by the officers making the search, and that none was served on her.” It is also stated in the application that appellant had been in jail for about three weeks and had been “advised” that his wife was sick and unable to be present in court.

Bill of exception No. 2 relates also to the absence of this witness, and reflects the fact that after the state had closed its case, and the charge to the jury had been prepared and was ready to be delivered, appellant then requested that attachment issue for said witness, he not having asked for such process when his application for continuance was denied. The two bills may be considered together.

Four officers were present at the time the search of appellant’s house was made, three local officers and one visiting officer who happened to be with them. Two officers, Samples and Adams, went to the front door of the house and Houston and Peace went to the back door. Samples testified that he found appellant’s wife at the residence and made known to her the purpose for which they came and left with her a copy of the search warrant and served it on her before the house was searched; that he and Adams were at the front door, a screen being between the officers and appellant’s wife, and that he (Samples) gave her the search warrant, and they then went in. Samples went in the front door, passed through the house and met Peace in the back of the house. He said Peace was not supposed to go in until after he had served the warrant. Officer Peace testified that he and Houston were standing at the back door and heard Mrs. La Fitte talking to Officer Samples and heard her tell them “All right, come in,” and, when Samples and Adams were walking through the house, he (Peace) went in at the back door; that it was a screen door and he opened it and went in as he heard Officer Samples and Mrs. La Fitte coming through the house; that he met Samples in the kitchen. Peace testified that he did not tear the screen and had no occasion to do so; that the door he went in was not latched. The visiting officer, Houston, testified that he did not know whether Officer Samples or Adams entered the house first, but that it was one of the two at the front door; that he was at the back with Peace, and, after they heard the other officers in the house, Peace went in through the unlatched screen door; that they did not break any screen on the door.

In regard to the legal effect of the aver-ments in the application' for continuance as to the proposed testimony of Mrs. La Fitte, we refer to the cases of Justice v. State, 112 Tex. Cr. R. 586, 18 S.W.(2d) 657; Elms v. State, 114 Tex. Cr. R. 642, 26 S.W.(2d) 211. We do not discuss the legal proposition suggested by the claimed absent testimony, as the bills may be disposed of upon other grounds. Subdivision 6, art. 543, C. C. P., in part, provides: “ * * ⅜ The truth of the first, or any subsequent application, as well as the merit of the ground set forth therein and its sufficiency shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right. If an application for continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted. * * * ”

No affidavit of Mrs. La Fitte was attached to the motion for new trial stating that she would have in fact given the testimony expected from her. While such an affidavit may not be indispensable, its absence, unless accounted for, which was not done, may be considered by the court together with the evidence heard upon the trial and the circumstances of the case in determining whether the claimed absent evidence was probably true. It is inconceivable that officers armed with a perfectly legal search warrant should have conducted themselves in any such manner as would have been reflected-by the claimed testimony of Mrs. La Fitte.' Appellant was absent, Mrs. La Fitte was at the residence, and one of her children was sick in bed at the time. There was no occasion for the officers to break in the house, nor to neglect to exhibit the search warrant or a copy thereof to her. We deem the court well within his discretion in overruling the motion for new trial, predicated upon refusal of continuance in the first instance, and his subsequent refusal to grant an attachment for the absent witness on the ground that the proposed testimony was not probably true, and that, if the witness had been present and given the testimony expected of her, it would not, in view of other .evidence in the case, have changed the result of the trial. Many illustrative cases will be found in the notes under subdivision 6, art. 543, Vemon’s Ann. C. C. P., in addition to which the following recent cases are cited: Wiley v. State, 117 Tex. Cr. R. 449, 36 S.W.(2d) 495, which reviews-many of the older cases bearing upon the subject; Barfield v. State, 118 Tex. Cr. R. 394, 43 S.W.(2d) 106; Fox v. State (Tex. Cr. App.) 43 S.W.(2d) 951.

Finding no error in the record which would justify a reversal, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Responding to appellant’s motion for rehearing, we have again examined the affidavit for search warrant; the original being sent up with the transcript herein. The same not only described the premises to be searched, but sets out that same is a place where whis-ky is manufactured and sold in violation of the law, by appellant, and this is signed by two affiants and sworn to before a justice of the peace on February 19, 1931. In our judgment it is sufficient to form the basis for the issuance of a warrant to search a private residence. •

We cannot change rules adhered to uniformly holding that, unless there be exact and definite showing of diligence, in an application for continuance, we must uphold the action of the trial court in refusing same, as not an abuse of his discretion. When it is admitted .that no attachment was asked for the witness known to. be absent when the trial began, until after the state had closed its case, and. there is no showing of the possibility of getting said witness, save the statement in another bill of exception that she lived “a few miles” in the country, and when no affidavit of the absent witness or of the party who has “advised” appellant that the witness was ill is on file, we feel impelled to uphold the discretion of the trial judge in refusing the application for continuance, also in refusing to grant the attachment asked for the witness for the first time, when the state has closed its-case. If the witness was really ill, it would appear easy to have procured the affidavit of some person who knew such fact.

The motion for rehearing will be overruled.


text:
    LA FITTE v. STATE.
    No. 15215.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.

      Dallas Ivey and Maurice Short, both of Center, for-appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor; punishment being one year in the penitentiary. The indictment alleged that the sale of intoxicating liquor was made by appellant to one Jess Emanis.

The purchaser and Henry McCauley testified that appellant sold Emanis a pint of whisky for $1. Appellant did not testify. Through the only witnesses offered by him he attacked the reputation for veracity of the state’s witnesses. One of his witnesses also testified that McCauley had offered to absent himself from the trial if appellant would pay him $10.

We first consider bill of exception No. 7 as it complains of the -refusal of continuance. The application was based upon the absence of three witnesses, Virgil Finch-er, J. B. Atkinson, and Eliza Atkinson. Appellant was arrested on November 9th. The case was tried November 26th. In the application for continuance, it is averred that the request for process for witness Fincher was made on November 20th. ’The written request for such process attached to the application is dated November 23d. This discrepancy, however, we regard as immaterial. Appellant undertook to excuse - the delay in asking process for Fincher by stating in his application that he had been advised through his attorney that the clerk of the court -had informed him that process would not be issued in ordinary felony cases until such cases were set for trial for some particular week of court. The bill of exception is defective, in that nowhere in it nor in the application for continuance is it averred that the case against appellant had been set for trial for any particular week of the term. So far as the record shows, the ease may have stood for trial at any day of the term the trial judge saw fit to call it. Furthermore, it appears from the qualification to the bill that no evidence was offered in support of the averments in said motion, and "further that, “if the clerk had inade any statement (which he denied) that process could not be issued until the ease was set, it was without authority in law or from the court.” Considering the bill in connection with the‘qualification, it shows a lack of diligence as to the witness Fincher. It was averred in the application for continuance that J. B. Atkinson and Eliza Atkinson, if present, would testify that they knew the general reputation of state’s witness Henry McCauley, and would testify that his reputation for truth and veracity was bad. Process for these witnesses was not taken out until the 26th day of November, the day before the trial. The return of the officer, however, shows that process had been served on J. B. Atkinson, and that he was absent. The proposed testimony of the two Atkinsons was purely impeaching.

It is stated by Mr. Branch in section S24 of Branch’s Ann. Tex. P. C. that: “ * * ⅜ A continuance sought to secure testimony which would only be available to impeach a witness who is to testify, should ordinarily be refused.” Many authorities are cited in support of the text Other authorities to the same effect are collated in note 26 under article 543, Vernon’s Ann. Tex. C. C. P., and also in the same pote under the same article in the 1032 cumulative annotation. In addition to these general references, we cite Jones v. State, 115 Tex. Cr. R. 60, 29 S.W. (2d) 791; Williams v. State (Tex. Cr. App.) 43 S.W.(2d) 98; Hays v. State (Tex. Cr. App.) 49 S.W.(2d) 813; Russell v. State, 88 Tex. Cr. R. 582, 228 S. W. 948; Freeman v. State, 91 Tex. Cr. R. 410, 239 S. W. 969; Moore v. State, 92 Tex. Cr. R. 48, 241 S. W. 475; Miller v. State, 94 Tex. Cr. R. 508, 251 S. W. 1104. The refusal of the court to grant a continuance or a postponement under the circumstances was not erroneous.

In .bill of exception No. 1, appellant complains of the refusal of a special charge which would have instructed the jury that they could not consider the testimony of the witness' Jess Emanis for any purpose. It is evident from the bill that this special charge was based upon the cross-examination of Emanis. On his direct examination he testified positively and in no uncertain terms that he purchased the liquor in question from appellant, and refers to him as “Mr. Ea Fitte.” He said that, when they left the point at which they had the first conversation with appellant, “Mr. Ea Fitte” was driving, and that, after they got to the point where the liquor was secured, “this defendant Ea Fitte got out and they walked around a while.” In another place in his direct examination he says: “Mr. La Fitte delivered me the whisky. I paid him a dollar for it.” On cross-examination he became uncertain about the identification of appellant, and testified..that at the time he bought the .whisky he did not know him, and, not having known him, he could not be positive about who he bought it from, but that appellant looked like the same man, and says: “I can swear to the jury that I bought whisky from this man — I mean he just looks like him. I am not positive about that, but he looks like the same fellow. I hadn’t seen him until then. I can’t be positive about things like that.” On redirect examination he testified that the man he bought the whisky from was a one-armed man, and the court in explanation of the bill states that appellant was a one-armed man; that is, that a part of one arm had been amputated. Under the circumstances, the court properly refused the requested charge.

Bill of exception No. 2 recites that appellant had not taken the witness stand, nor put his character in issue, and that no testimony had been introduced tending to show that appellant had been indicted for other felonies or misdemeanors involving moral turpitude. The bill then complains of language used by the county attorney in his opening speech to the jury. There is some difference in the pronouns used as appears in the body of the bill and the qualification thereto. The qualification was accepted without objection, and is binding on this court. According to the qualification, the language used was as follows: “They must have wanted to kill time because they had some other cases that they wanted to be slow in getting to.” It is appellant’s contention that this statement conveyed to the jury information that there were other criminal charges pending against appellant in that court In further explanation of the bill, the court says only one defendant was on trial, but that he was represented by two lawyers, and that the court did not understand from the language used by the county attorney that he was referring to appellant, but to his counsel. We think under the circumstances this court would) be unauthorized to say the jury must have understood that the county attorney was referring to appellant when the trial judge, who was upon the ground and heard the language used and ■ understood the situation, says he did not understand the language to convey such meaning.

It appears from bill No. 3 that the county attorney in his argument said: “It’s a wonder to me that they did not plan some better defense for an old-time bootlegger, as they usually have a lot of tricks in their bag. Looks like they could have gotten a better one than this.” Appellant objected to this argument as being a reference to the fact that he did not testify in the case. While appellant offered no affirmative defensive testimony, he did attack the reputation of the state’s witnesses, and also attempted to show that one of them had sent to appellant a proposition that for a consideration of $10 he would absent himself from the trial. The language complained of was not a direct reference to the failure of defendant to testify, and, before it can be held to have been an indirect reference to such fact, the implication from the language used must be a necessary one. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 5S0; Howard v. State, 108 Tex. Cr. R. 373, 1 S.W.(2d) 289; Kennington v. State (Tex. Cr. App.) 49 S.W.(2d) 776. The bill shows no error.

Appellant avers in his motion for new trial that the jury considered as a circumstance against him the fact that he did not testify in his own behalf. He brings this question forward by bill of exception No. 4, and also by a statement of facts which incorporates the testimony of the ten jurors who were examined upon the point. In explanation of the bill, the trial judge very fairly analyzes the testimony of the jurors and states that only five of the jurors claimed to have heard any mention of appellant’s failure to testify; five heard no mention of it at all. The juror Brown, whose affidavit is attached to the motion for new trial, testified upon the hearing of the motion that as soon as he called the attention of the jurors to the fact that the court had directed them not to consider the failure of appellant to testify it was not further mentioned. Another juror said the only mention he heard in regard to the matter was after they had already voted appellant guilty; that immediately upon it being mentioned their attention was called to the charge of the court and nothing further was said about it. As we gather from the testimony generally, those jurors who claimed to have heard any mention of the matter said it came up in the form of a question; some juror saying he wondered why appellant did not take the witness stand. The attention of this juror was immediately called to the charge of the court with reference to the matter, and there was no further mention of the fact, and no discussion of it. The trial court’s finding with reference to the matter is epitomized in the last sentence of his explanation to the bill, from which we quote; “From the testimony the court concludes that no injury to defendant was shown, and there was no discussion of his failure to testify, going beyond a bare mention of the fact.”

We think the finding of the trial judge entirely justified under the evidence, and do not deem it necessary to set out the testimony of the jurors in detail. It has been held many times that the bare mention of the fact of a defendant’s failure to testify does not call for a reversal of the case under the provisions of article 710, C. R. R. Probest v. State, 60 Tex. Cr. R. 608,133 S. W. 263 ; Powers v. State, 69 Tex. Cr. R. 494, 154 S. W. 1020; Espinoza v. State, 73 Tex. Cr. R. 237, 165 S. W. 208; Freeman v. State, 118 Tex. Cr. R. 67, 39 S, W.(2d) 895, opinion on rehearing and authorities therein cited.

Bill 6 recites that in his closing argument the district attorney made the statement that “they have offered no defense.” Objection was interposed that this was a reference to the fact that appellant' had not testified in his own behalf. It is apparent from the language itself that it was not a direct reference to the failure of appellant to testify, and, under the circumstances shown by the record, it cannot be regarded as a necessary allusion to such fact. A defense of a sort had been offered in that appellant had undertaken to break down the state’s witnesses by impeaching their reputations for truth and veracity, and also in an attempt to show that one of them had offered for a consideration to absent himself from the trial. It further appears from the statement of facts and the court’s qualification to the bill that another man was with appellant at the time of the alleged sale. This man was not called as a witness by appellant, nor his absence in any way accounted for. The bill is without merit.

Bills of exception 5, 8, and 9, when considered in connection with the court’s qualifications, are without merit, and we deem it unnecessary to discuss them.

Bill of exception No. 10 complains of the ruling of the court in sustaining the state’s objection to certain questions propounded by appellant to a witness. The bill fails to show what the answer of the witness would have been to the question asked. In the absence of the answer expected, the bill fails to exhibit error.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We know of no authority holding it proper to tell the jury in a charge to disregard the testimony of a witness who has sworn on direct examination to one state of facts, and, on cross-examination, has made answers which might appear contradictory. The jury see the witnesses, hear the questions asked and the answers given, and are wisely charged with the sole responsibility of passing on the credibility of such witnesses and the weight to be given to their testimony. We think we correctly upheld the action of the trial court in refusing the special charge asking that the jury be told not to consider the testimony of the witness Emanus.

We must take the bills of exception as they appear in the record, unless attacked in some authorized way, in seeking to solve the erroneous or harmful character of the things therein complained of. The arguments objected to, viewed in the light of the qualifications placed on the bills, were properly held not subject to the objections made. The complaint of misconduct of the jury was fully analyzed and discussed in the original opinion, and we think correctly disposed of.

The motion for rehearing will be overruled. '