text:
    KARR v. STATE.
    No. 15583.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Dailey & Keller and Wm. Madden Hill, all of Dallas, for appellant.
    Lloyd w! Davidson, State’s Atty., of Austin,, for the State.
   CHRISTIAN, J.

Appellant was convicted in the county court of Dallas county of violating the provisions of article 1589, Penal Code, making it an pí-fense for employment agents engaged in providing employment for skilled, professional, or clerical positions, to charge for such services a fee exceeding 20 per cent, of the first month’s salary. The punishment was assessed at a fine of $101.

It is not necessary to discuss the facts of the case other than to state that it was shown without dispute that appellant charged more than 20 per cent, of the first month’s salary for securing the position for the young lady named in the complaint.

[I] The statute under which the prosecution proceeded is assailed as being unconstitutional, it being urged that it is violative of section 19, ar-ticle 1, of the Texas Constitution, and of the due process of law clause of the Fourteenth Amendment of the Constitution of the United States. We quote article 1589, as follows: “Where a fee is charged for obtaining employment, such fee in no event shall' exceed the sum of three dollars, which may be collected from the applicant only after employment has been obtained and accepted by the applicant. Employment agents engaged exclusively in providing employment for skilled, professional or clerical positions may charge, with the written consent of the applicant, a fee, not to exceed 20% of the first month’s salary.”

Article 1584, Penal Code, defines employment agents under two subdivisions, as follows: “1. ‘Employment agent’ means every person, firm, partnership or association of persons engaged in the business of assisting employers to secure employees, and persons to secure employment, or of collecting information regarding employers seeking employees, and persons seeking employment. 2„ ‘Employment office’ means every place or office where the business of giving intelligence or information where employment or help-may be obtained, or where the business of an employment agent is carried on.”

We are concerned on this appeal solely with appellant’s contention that article 1589, P. C., is unconstitutional. The remainder of the-provisions of title 18, chapter 7, relating to employment agencies are not under consideration.

After the prosecution in the present case was instituted, appellant, joined by her husband, obtained, in the United States District Court, an injunction restraining the district attorney of Dallas county and other officials named in the petition from instituting future prosecutions under article 1589, P. C. Karr v. Baldwin et al. (D. C.) 57 F.(2d) 252. A statement of the nature of the suit is set forth in the opinion in Karr v. Baldwin, supra, as follows:

“The complainant, joined by her husband, alleges that the defendants, Baldwin, justice of the peace, William McCraw, as district attorney, James Allred, as state Attorney General, and R. B. Gragg, as state commissioner of labor, are seeking and threatening to enforce against her the provisions of an Act of the 38th Legislature of the state of Texas (chapter 41), relating to employment agents, and that such a state law is invalid and unconstitutional, in that its provisions and requirements, when asserted against the plaintiff, are in violation of the Fourteenth Amendment to the Constitution, in that it deprives her of her property without due process of law.
“That the defendant McCraw, district attorney, declared in a public radio address that he would enforce the act and prosecute all employment agencies that were violating the same, and that on February 17, 1932, the complainant was arrested on a complaint issued out of the defendant Baldwin’s court, charging her with violation of said act. That the defendants are threatening to file and preparing to file other charges against her, and that such threatened numerous prosecutions will cause her great damage and injury. That a portion of the press of the city of Dallas has, in connection with such charges, made vicious and unwarranted assaults upon her and her business. Jurisdictional allegations of amount are made. She charges that' these prosecutions will force her out of business and that her damages are incapable of measurement at law, and that she has no other method for the preservation of her business from destruction than the protection of a court of equity.”

The United States District Court sustained the constitutionality of each of the provisions of the “employment agency” act, save and except that defendants were perpetually enjoined from prosecuting or interfering in any way with the right of complainant to disregard the article of the statute fixing the amount of fees that she might charge. The court refused to interfere with the present prosecution on the ground that there was a plain and adequate remedy at law. In concluding that article 1589, Penal Code, under which the present prosecution proceeded, is invalid, the court said: “No valid law can be ■passed which denies the employment agency and the citizen the right to make a contract for such fee as they may see fit. The provisions, therefore, in article 1589 and article 5215, are invalid. The right of the citizen to contract for services performed, or to be performed, when there is no disability, is highly valuable and may not be invaded by the lawmaking power.”

In Ribnik v. McBride, 277 U. S. 350, 48 S. Ct. 545, 72 L. Ed. 913, 56 A. L. R. 1327, the Supreme Court of the United States had under consideration a statute of the state of Ñew Jersey regulating employment agencies. It was provided that every person operating an “employment agency” as defined in the statute must procure a license from the commissioner of labor. The applicant for a license was required to file with the commissioner of labor for his approval a schedule of fees proposed to be charged for any services rendered to employers seeking employees and persons seeking employment. Further, it was provided that all charges should conform to the schedule. The schedule of fees could not be changed except with the approval of the commissioner-of labor. The commissioner of labor had the authority to refuse to issue, or to revoke, any license for any good cause shown within the meaning and purpose of the act. It was shown in the opinion of the court that Ribnik complied with the conditions of the statute, but that his application was refused solely on the ground that in the opinion of the commissioner of labor the fees proposed to be charged in respect to certain permanent positions were excessive and unreasonable. In concluding that that part of the statute relating to the schedule of fees was unconstitutional under the due process of law clause of the Fourteenth Amendment, the court said:

“That the state has power to require a license and regulate the business of an employment agent does not admit of doubt. But the question here presented is whether the due process of law clause is contravened by the legislation attempting to confer upon the commissioner of labor power to fix the prices which the employment agent shall charge for his services. The question calls for an answer under the last of the three categories set forth by this court in Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 535, 43 S. Ct. 630, 67 L. Ed. 1103, 1108, 27 A. L. R. 1280; that is to say, Has the business in question been devoted to the public use and an interest in effect granted to the public in that use? Or, in other words, is the business one ‘affected with a public interest,’ within the meaning of that phrase as heretofore defined by this court? As was recently pointed out in Tyson & Bro.-United Theatre Ticket Offices v. Banton, 273 U. S. 418, 430, 47 S. Ct. 426, 71 L. Ed. 718, 722 [58 A. L. R. 1236], the phrase is not capable of exact definition; but, nevertheless, under all the decisions of this court from Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77,. it is the standard by which the validity of price-fixing legislation, in respect of a business like that here under consideration, must be tested.
“In the Tyson & Bro.-United Theatre Ticket Offices Case it was said (page 430 [(of 273 U. S.), 47 S. Ct. 426, 428 (71 L. Ed. 718, 58 A. L. R. 1236)]) that the interest meant was not ‘such as arises from the mere fact that the public derives benefit, accommodation, ease, or enjoyment from the existence or operation of the business; and while the word has not always been limited narrowly as strictly denoting “a right,” that synonym more nearly than any other expresses the sense in which it is to be understood.’ The business must be such (page 434 [(of 273 U. S.), 47 S. Ct. 426, 429 (71 L. Ed. 718, 58 A. L. R. 1236)]) ‘as to justify the conclusion that it has been devoted to a public use and its use thereby, in effect, granted to the public.’ And again (page 438 [(of 273 U. S.), 47 S. Ct. 426, 431 (71 L. Ed. 718, 58 A. L. R. 1236)]), after reviewing former decisions, it was said that: ‘Each of the decisions of this court upholding governmental price regulation, aside from cases involving legislation to tide over temporary emergencies, has turned upon the existence of conditions, peculiar to the business under consideration, which bore such a substantial hnd definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use.’
“In Chas. Wolff Packing Co. v. Court of Industrial Relations, supra, page 537 [of 262 U. S.] (43 S. Ct. 630, 633 [67 L. Ed. 1103, 1109, 27 A. L. R. 1280]), it was said: ‘It 'has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, the mining operator or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by state regulation. * * ⅜ One does not devote one’s property or business to the public use or clothe it with a public interest merely because one'makes commodities for, and sells to, the public in the common callings of which those above mentioned are instances.’
“In Adkins v. Children’s Hospital, 261 U. S. 525, 43 S. Ct. 394, 67 U. Ed. 785, 24 A. L. R. 1238, this court had under consideration an act of Congress fixing minimum wages for women and children in the District of Columbia. The legislation, so far as it affected women, was held invalid as contravening the due process Of law clause of the Fifth Amendment, because it was an arbitrary interference with the right to contract in respect of terms of private employment. It was said (page 546 [(of 261 U. S.), 43 S. Ct. 394, 397 (67 L. Ed. 785,-24 A. L. R. 1238)]) that while there was ho such thing as absolute freedom of contract, nevertheless, freedom of contract was the general rule and restraint the exception, and that ‘the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.’
“The business of securing employment for those seeking work and employees for those seeking workers is essentially that of a broker; that is, of an intermediary. While we do not undertake to say that there may not be a deeper concern on the part of the public in the business of an employment agency, that business does not differ in substantial character from the business of a real estate broker, ship broker, merchandise broker or ticket broker. In the Tyson & Bro.-United Theatre Ticket Offices Case, supra,, we declared unconstitutional an act of the New York Legislature which sought to fix the price at which theater tickets should be sold by a ticket broker, and it is not easy to see how, without disregarding that decision, price-fixing legislation in respect of other brokers of like character can be upheld.
“An employment agency is essentially a private business. True, it deals with the public, but so do the druggist, the butcher, the baker, the grocer, and the apartment or tenement house owner, and the broker who acts as intermediary between such owner and his tenants. Of course, anything which substantially interferes with employment is a matter of public concern, but in the same sense that interference with the procurement of food and housing and fuel are of public concern. The public is deeply interested in all these things. The welfare of its constituent members depends upon them. The interest of the public in the matter of employment is not different in quality or character from its interest in the other things enumerated; but in none of them is the interest that'‘public interest’ which the law contemplates as the basis for legislative price control. Qhas. Wolff Packing Co. v. Court of Industrial Relations, supra, page 536 [of 262 U. S.] (43 S. Ct. 630 [67 L. Ed. 1108, 27 A. L. R. 1280]). Under the decisions of this court it is no longer fairly open to 'question that, at least in the absence of a grave-emergency (Tyson & Bro.-United Theatre Ticket Offices v. Banton, supra, pages 431, 437 [of 273 U. S.] [47 S. Ct. 426] 71 L. Ed. 723, 725, 58 A. L. R. 1236), the fixing of prices fdr food or clothing, of house rental or of wages to be paid, whether minimum or maximum, is beyond the legislative power. And we perceive no reason for applying a different rule in the case of legislation controlling prices to be paid for services rendered in securing a place for an employee or an employee for a place.
“Brazee v. Michigan, 241 U. S. 340, 36 S. Ct. 561, 60 L. Ed. 1034 [Ann. Cas. 1917C, 522], cited by defendant in error lends no support to the judgment below. That case involved the validity of a Michigan statute in respect of employment agencies. Section 5 of the act [1913, Act No. 301] attempted to limit the fees which should be charged. The state Supreme Court held that the business was one properly subject to police regulation and control, but did not rule concerning the validity of section 5. This court held that it was within the power of the state to require licenses for employment agencies and prescribe reasonable regulations to be enforced by the commissioner of labor. But it was said (page 344 [(of 241 U. S.), 36 S. Ct. 561, 562 (60 L. Ed. 1034, Ann. Cas. 19170, 522)]):
“ ‘Provisions of section 5 in respect of fees to be demanded or retained are severable from other portions of the act, and, we think, might be eliminated without destroying it. Their validity was not passed upon by the Supreme Court of the state and has not been considered b^ us.’
“And we since have held definitely that the power to require a license for and to regulate the conduct of a business is distinct from the power to fix prices. ‘The latter power is not only a more definite and serious invasion of the rights of property and the freedom of contract, but its exercise cannot always be justified by circumstances which have been held to justify legislative regulation of the manner in which a business shall be carried on.’ Tyson & Bro.-TJnited Theatre Ticket Offices v. Banton, supra, page 431 [of 273 U. S.] (47 S. Ct. 426, 428 [71 L. Ed. 723, 58 A. L. R. 1236]). And see pages 440, 441 [of 273 U. S. (47 S. Ct. 426), 71 L. Ed. 723, 58 A. L. R. 1236].
“To urge that extortion, fraud, imposition, discrimination, and the like have been practiced to some, or to a great, extent in connection with the business here under consideration, or that the business is one lending itself peculiarly to such evils, is simply to restate grounds already fully considered by this court. These are grounds for regulation, but not for price fixing as we have already definitely decided. Tyson & Bro.-United Theatre Ticket Offices v. Banton, supra, [pages] 442-445 [of 273 U. S. (47 S. Cf. 426), 71 L. Ed. 718, 58 A. L. R. 1236].
“There are á number'of states which have statutes like that now under consideration, and we are asked to give weight to that circumstance. It is to be observed, however, that with the exception of the decision now under review none of these statutes has been judicially considered, except in the state of California, where the legislation was declared unconstitutional. Ex parte Dickey, 144 Cal. 234, 77 P. 924, 66 L. R. A. 928, 103 Am. St. Rep. 82, 1 Ann. Cas. 428; Re Smith, 193 Cal. 337, 223 P. 971. And it was said in oral argument, and not disputed, that, while legislation of this character existed in several states, generally, it was not enforced, in some instances because the state’s Attorney General had advised that the legislation was unconstitutional. In any event, under all the circumstances, and in the face of our prior decisions, we do not regard the mere existence in other states of statutory provisions like the one now under review as entitled to persuasive force.”

The following is taken from Texas Jurisprudence, vol. 11, p. 855: “The decisions of the United States Supreme Court on federal questions are conclusive on the courts of Texas ; indeed, in such cases they are said to be as binding as a mandate of the constitution.”

In support of the text we find cited many cases, among them being Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; Ex parte Lewis, 75 Tex. Cr. R. 320, 170 S. W. 1098.

The decision by the Supreme Court of the United States in Ribnik v. McBride, supra, touching the power of the state to regulate fees that may be charged by employment agents, is binding upon this court. Giving it effect in the present ease, it becomes our duty to order a reversal.

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.


source: Caselaw Access Project

author: CALHOUN, J.

license: Public Domain

text:
    HENSON v. STATE.
    No. 15671.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    R. H. Templeton, of Wellington, 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.

HAWKINS, J., not sitting.


author: HAWKINS, J.

text:
    McINNIS v. STATE.
    No. 15338.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    Earl Shelton, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for receiving stolen property, punishment being assessed at five years in the penitentiary. ■

The indictment contained two counts, the first charging by proper averments that appellant received from Russell Haskett diamond rings and a watch which had been stolen from J. A. Jackson. The second count charged appellant with the theft from Jackson of the property mentioned. The case was submitted on the first count.

Appellant presents his appeal on two propositions: First, that under the evidence, if appellant could be convicted at all, it would be as a principal to tbe theft and not as a receiver of stolen property. Our state’s attorney admits tbe soundness of this contention. Second, that there is no such corroboration -of the accomplice witnesses as is demanded by the statute. Article 718, O. O. P. Both propositions demand an analysis of the evidence.

Among witnesses for the state were Russell Haskett and Jake Alterman. The trial judge correctly treated them as accomplices as a matter of law, and properly instructed the jury of the necessity of their corroboration.

The testimony of J. A. Jackson was that he was in the jewelry business in the city of Austin ; that shortly after 9 o’clock on the night of September 27, 1931, he discovered that 'his store had been entered through the skylight and property of the value of $5,000, consisting of ten diamond rings, a watch, chain, and a knife, were stolen. Nine of the rings and the watch were returned by Mr. Thorp, chief of police of the city of Austin. Mr. Jackson knew nothing of the parties committing the burglary, nor where Mr. Thorp obtained the returned property.

According to Haskett’s testimony, he, appellant, and Bourland, before the burglary and theft, had an understanding — or stated otherwise — had entered into a conspiracy, regarding the burglary of the Jackson store. Haskett was to actually enter the store and secure the property and turn it over to appellant and Bourland, who would dispose of it and give to Haskett a certain per cent, of what was received from it. Haskett admitted that, in carrying out his part of the conspiracy, he entered the store through a skylight, stole the property, went out the back door, and hid the property back of the Bon Ton café; that a few minutes before he entered the store he saw appellant, who said to him, “Go ahead and get it, you haven’t got so much time”; that after he hid the property behind the café he met appellant and Bourland who asked him where the “stuff”, was; that they went and looked at the property and Haskett-was directed by appellant and Bourland to meet them at the park on Fifth street, which he did; that the three of them got in a car which one Johnson was driving and went to San Antonio, where they went to a hotel operated 'by Alterman. Haskett said he did not know Alterman and had never seen him. They were assigned to rooms by a negro porter. Haskett testified that, before they got to San Antonio, the property was hidden under a) bridge, and that he had nothing further to do with the property, and had never received from appellant or Bourland anything for his part of the job.

Hilario Carter and Henry Hines were negro porters working at the hotel in San Antonio operated by Alterman. From the testimony of these two porters we learn only that Haskett, appellant, Bourland, and Johnson, came to the hotel about 3 or 3:30 in the morning of September 28, 1931, and registered under assumed names and were assigned by one of the porters to two rooms in the hotel. One of the porters said he had never seen the parties before then, but that some two or three days later they again registered at the hotel for one night. One porter testified that appellant inquired of him twice for Mr. Alterman. These porters evidently knew nothing about ■the stolen property as they gave no testimony whatever in regard to it. Alterman testified that he saw appellant in San Antonio on September 28th and 29th! and that Bourland was with him; that he had a conversation with ■them in regard to some jewelry; that they did not have the jewelry with them the first time he talked to them; that they wanted him to get some money for them on the jewelry; that they later brought the jewelry to him. He claims they only had eight rings and a watch and chain. He said appellant and Bourland were present at the time the jewelry was turned over to him, and that he gave them $350, claiming to have pawned three of the rings. This witness said he did not remember who he borrowed the money from, but that it was “some fellow in San Antonio.” Alterman seems not to have known Haskett in the! transaction at all, at least, he makes no mention of ever having seen Has-kett, either alone or in company with appellant and Bourland. Alterman said he turned all the property he got from appellant and Bourland over to Chief of Police Thorp. The ■testimony of the officers throws very little light on the transaction. Mr. Thorp testified that, as chief of police of the City of Austin, he made a personal investigation in regard to the 'burglary of the Jackson store; that in some dust on top of a dresser he found the heel mark of a shoe which had the name “Mohican” on it; and that later they took a shoe off of Haskett that corresponded with this heel mark in name and other particulars. He further said he got the property which he turned back to Mr. Jackson from Alterman in San Antonio. The sum total of his testimony amounts only, to the discovery of circumstances which pointed to Haskett as the thief, and which added nothing to the record in so far as the connection of this appellant with it was concerned, because Haskett already had admitted upon the witness stand his connection with the transaction. One Margos testified that he operated a domino hall in Austin, not very far from the Jackson store; that he recalled having seen Bourland and appellant on the sidewalk in front of his place on the night of the burglary; that Bourland came into his place and asked permission to leave a package there, and returned in about twenty minutes and got the package, saying lie liad a “black-jack” in it. If Haskett was with appellant and Bourland, the witness fails to make mention of it. The testimony of Detective Forwler developed only the fact that, after he heard of the burglary of the Jackson store, he went to Mar-gos’ domino hall, 'but failed to find Bourland or appellant and did not see them in Austin that night, although he looked for them.

If Haskett’s testimony alone could establish appellant’s connection with the transaction, it showed a conspiracy between him, appellant, and Bourland which contemplated the theft of the property from Jackson’s, the sale of it, and the division of the proceeds. Haskett was to do the actual stealing, but the conspiracy was not yet ended; appellant and Bourland were to dispose of the property, in which they acted for Haskett as well as themselves, as Haskett was to receive a percentage of the proceeds. Appellant, while not present when the theft was committed, subsequently performed his part under the conspiracy agreement. The fact that he may have failed to pay over to Haskett his part of the money received from Alterman would be immaterial so far as the law is concerned. Under similar facts it has been held many times that accused was guilty as a principal in the theft of the property, and could not be guilty as a receiver of the property. Smith v. State, 21 Tex. App. 107, 17 S. W. 552; Simpson v. State, 81 Tex. Cr. R. 380, 196 S. W. 835; Burow v. State, 85 Tex. Cr. R. 133, 210 S. W. 805; Kolb v. State, 88 Tex. Cr. R. 593, 228 S. W. 210; Walker v. State, 94 Tex. Cr. R. 568, 252 S. W. 552; Snider v. State (Tex. Cr. App.) 44 S.W.(2d) 997; Byrd v. State, 117 Tex. Cr. R. 489, 38 S.W.(2d) 332.

We now advert to appellant’s second proposition, viz., his claim that the testimony of the accomplice witnesses was not sufficiently corroborated. Article 718, C. O. B., forbids a conviction upon the testimony of accomplices unless corroborated by other evidence tending to connect accused with the offense com-rhitted. That accomplice witnesses cannot corroborate each other is so well settled it needs no discussion. Haskett could not corroborate Alterman. Neither could Alterman corroborate Haskett. It therefore becomes necessary to look to other witnesses in search of evidence to discover if any may be found which tends to connect appellant with the offense of which he was convicted. Evidence Which corroborates the accomplice witnesses only on immaterial facts is not sufficient. To meet the requirements, of the statute it must be as to some criminative fact which tends to connect accused with the commission of the offense charged. Welden v. State, 10 Tex. App. 400; Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580; Durham v. State, 106 Tex. Cr. R. 85, 290 S. W. 1092; Turner v. State, 108 Tex. Cr. R. 486, 1 S.W.(2d) 642. The corroboration may, of course, consist of proven circumstances, as well as direct evidence, and. where the state relies upon circumstances proven by various nonaccomplice witnesses, the rule has been stated in Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422, 429, as follows: “It is the combined and cumulative weight of the evidence furnished by non-accomplice witnesses which supply the test. If by this rule it appears on appeal that before the jury there was proof confirming the testimony of the accomplice [witness] to material facts tending to connect the accused with the * * * offense, the law is satisfied.”

Of course, it must be understood in this connection that the combined and cumulative testimony of the nonaceomplice witnesses would not be as to material facts, unless the facts established by this combined and cumulative testimony were of a criminative character, that is, such as tended to connect accused with the commission of the offense charged.

Hooking to the testimony of the nonac-complice witnesses, we confess our inability to find evidence which measures up to the demand of the law with reference to corroboration. The combined testimony of all the non-accomplice witnesses established the following facts and circumstances only: First, that appellant and Bourland were seen in Austin on the night of the burglary at about 9 o’clock; second, that about 3 o’clock the next morning Haskett, appellant, Bourland, and Johnson registered under assumed names at a hotel in San Antonio operated by Alter-man ; third, that the next day or the day following appellant made inquiry of one of the porters for Alterman; fourth, that the officers recovered the stolen property from Al-terman; fifth, that marks of a shoe track were found in dust in the. Jackson store which were circumstantially shown to have been made by a shoe worn by Haskett. Outside of registering in San Antonio under an assumed name, and that appellant and others were in company with lÉaskett in S.an Antonio, and that appellant made some inquiry concerning Alterman, we find no evidence from nonac-complice witnesses which could be said to raise a suspicion against appellant of wrongdoing of any kind; to our minds it falls far short of establishing any criminative or material fact which tends to connect appellant with the offense committed. Weatherred v. State, 100 Tex. Cr. R. 199, 272 S. W. 471; McClure v. State, 89 Tex. Cr. R. 407, 231 S. W. 774; Johnson v. State, 84 Tex. Cr. R. 400, 208 S. W. 170. The state is necessarily thrown back on the evidence alone of the two accomplice witnesses, Haskett and Alterman, to show any connection of appellant with the crime. This being true, the mandate of article 718, C. C. P., prohibits tbis court from permitting the conviction to stand. Both propositions advanced by appellant appear to be sound.

The judgment is reversed and the cause remanded.


author: LATTIMORE, J. MORROW, P. J.

text:
    HADNOT v. STATE.
    No. 15274.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.
    Adams & Hamilton, of Jasper, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

Our attention is called by the state’s attorney with this court to the fact that the bills of exception and statement of facts are filed too late for our consideration. The limit of the time within which same may be filed, as fixed by statute, is ninety days after the giving of notice of appeal. From this record we observe that notice of appeal was given December 5, 1931. The statement of facts and bills of exception were filed on March 10, 1932. Computation shows this to be ninety-six days after the date of the notice of appeal. We are not allowed, under the statute, to consider either the bills of exception or the statement of facts. The charge of the court, the judgment, and sentence are in proper form.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

Due to the statement of the trial judge, the bills of exception and statement of facts have been considered.

The indictment charges the theft of property from O. O. Brown, manager of the Jasper Wholesale Grocery Company. Brown testified to the loss of a quantity of cigarettes and some bacon of the value of over $59. The loss occurred on the 4th day of July, 1931. Appellant was an employee in the store of which Brown was manager. Of the 11,000 cigarettes stolen, 3,000 were returned by the appellant, also one side of the bacon and the wrapper of another. The business house mentioned was closed on the day on which the offense was charged to have taken place. Other parts of the stolen property were found in the possession of Charlie Johnson.

Oarlis Moye testified in behalf of the state that on the night of the 3d of July, 1931, the appellant and Buster Johnson went in an automobile driven by the witness to the back of the wholesale grocery store. Appellant left the ear, directing that it remain there until he returned and that no one should tell that he was going to his sister’s house. After some twenty minutes he returned with a big box of cigarettes and some bacon. Part of the articles were carried to Buster Johnson’s house and the remainder to the appellant’s house. On cross-examination, the witness said that it was dark, and that he could not swear that it was cigarettes and bacon, but that he saw packages and cartons in possession of the appellant.

The voluntary statement of the appellant made before the justice of the peace was introduced, in which it was stated in effect that the appellant and his half-brother, Buster Johnson, and Oarlis Moye) went together about 9 o’clock at night to a wholesale house and got four sides of bacon and fifteen cartons of cigarettes; that they hid the stuff, and during the day appellant carried half of the cigarettes to his house and the other half went to John Parsons; that John Parsons got one side of the bacon, Buster Johnson got one, and Pete Adams got the other two sides. Appellant testified that he had never been convicted of a felony.

Exception was reserved to the introduction of the voluntary statement. The statement appears to be in accord with the statute, and &< introduction in evidence is sanctioned by article 248, C. C. P. 1925.

The charge is assailed upon the ground that it failed to charge on the law of circumstantial evidence; also that it failed to charge on consent to the taking of the property;' and; further, that it contained an inaccurate charge on the issue of value. However, the criticisms of the charge are not deemed tenable.

The evidence is deemed quite sufficient to support the verdict.

The motion for rehearing is overruled.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    CHANDLER v. STATE.
    No. 15357.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    Rehearing Denied Nov. 23, 1932.
    Crawford & Fletcher, of Grand Saline, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

Armed with a search warrant, officers went to appellant’s residence in the early morning for the purpose of searching for intoxicating liquor. As one of the officers went into the house, appellant’s wife jumped out of bed and ran to the kitchen, followed by the officer. She grabbed a half-gallon jar and began pouring whisky out of it. The officer finally got possession of the jar before the contents h'ad been entirely emptied. He did not know how much whisky was in the container at the time appellant’s wife started pouring it out. In the meantime appellant was found by the other officer in possession of a pint of whis-ky. The state proved by this officer that appellant stated to him at the time he took possession of the pint of whisky that he had it for his own use as a beverage. Going to appellant’s smokehouse, which was about thirty or forty feet behind the residence, the officers discovered under one of the corners of the smokehouse part of the top of a tomato crate or bushel basket carefully laid up against the house. Under this there was a “eroeker” sack rolled up and in the sack was a half-gallon jar of whisky. The officers said that the whisky was stuck up under the eaves of the smokehouse. The officers testified that there was not a dwelling house within two hundred yards of appellant’s residence. Back of appellant’s house was a ravine, and beyond this ravine about four or five acres of land. No person was present at the time the search was made other than the officers, appellant, his wife and children. The state introduced in evidence appellant’s voluntary statement, wherein it was declared that appellant purchased a quart of whisky from two bootleggers whom he did not know on the evening before the search. Further, it was stated in this instrument that appellant took the whis-ky into the house, filled a pint bottle out of it, and placed the rest of the whisky in the kitchen; that on the occasion the raid was made the pint of whisky found in his possession was that which he had poured out of the quart jar; that the whisky his wife was pouring out was the remainder of the whisky he had bought from the bootleggers. Again, it was declared in the statement that one of the officers told him he had found a half-gallon Jar of whisky under the hack of his smokehouse, which was fen or twelve steps from ■the 'house. Appellant introduced in evidence the following statement which had been omitted by the state: “Mr. Robinson told me that he found a half-gallon jar of whisky under the back of my smokehouse, about ten or twelve steps from my house; but I did not put this whisky there.”

Appellant’s wife testified that she had been out to the smokehouse the evening before the search at the very place the officers declared they had gotten the whisky, and that there was no whisky there at that time. She said she did not see the whisky until one of the officers came out from behind the smokehouse with it under his arm. Further, she testified that she saw the officers take the pint of whis-ky from appellant. She said there had been some whisky in the house the evening before in a jar, which she had seen her husband take a drink out of, and that on the occasion of the raid she had poured this whisky out. She testified, further, without any objection on appellant’s part, that whisky had been found on appellant’s premises two or three times prior to the raid in question. Testifying in his own behalf, appellant admitted that he had a quart of whisky in the house, saying that he had bought it from a bootlegger whom he did not know. He said that he poured a pint out of the jar, and that that was the pint the officers took off of him. He said he drank whisky. Appellant did not state whether or not he possessed the whisky for the purpose of sale. He denied that he knew anything about the half-gallon of whisky found under his smokehouse, saying that he had never laid eyes on it until he saw it in the possession of the officers. Appellant admitted that on previous-occasions officers had found whisky in his house. Appellant introduced a witness who testified that he had some time before the raid, at night, seen some person between the smokehouse and appellant’s residence whom he did not believe to be appellant.

On the question as to whether sentence should be suspended, the state introduced witnesses who testified that appellant’s general reputation for being peaceable and law-abiding was bad. Appellant made no effort to controvert the testimony of these witnesses.

Appellant objected to the testimony of the officers touching the result of the search on the ground that the search warrant was invalid. We deem it unnecessary to determine whether the warrant was sufficient. Appellant and his wife testified to substantially the same criminative facts embraced in the testimony of the officers relative to the finding of the whisky. Hence, if the testimony of the officers was erroneously received, and this is not conceded,, appellant is in no position to complain. Jones v. State, 115 Tex. Cr. R, 643, 27 S.W.(2d) 180, and authorities cited.

Bill of exception No. 4 presents the following occurrence: One of the officers testified that he followed appellant’s wife into the kitchen, where she poured some whisky out of a half-gallon jar. Appellant objected to this testimony on the ground that it was not shown that he was present. It is unnecessary to decide whether the testimony of the officer would have been admissible if it had been shown that appellant was not in the kitchen at the time the liquor was poured out. Appellant gave substantially the same testimony relative to the transaction, stating that his wife poured the whisky out.

Appellant brings forward a bill of exception in which he complains of the argument of the district attorney. It appears that the district attorney stated that the whisky, in question was intoxicating and would burn, and challenged appellant’s counsel to make a test. The bill contains an objection to the effect that the argument was improper and inflammatory. The- court qualified the bill to the effect that the statement was made in response to appellant’s argument that the whisky offered in evidence would-not burn. Appellant took no exception to the qualification. The hill fails to present error.

Appellant excepted to the charge of the court on the ground that it failed to instruct the jury on the law relating to exculpatory statements. In connection with the exception, appellant presented a requested instruction which would have advised the jury that, if they found that the State introduced no evidence to controvert the exculpatory statement that appellant did not put the whisky under the smokehouse, and there was no evidence controverting such statement, such statement should be taken to be true. There was no necessity for instructing the jury as requested by appellant. Without determining whether such a charge is called for in a case where the accused introduces an exculpatory statement embraced in a confession used by the state,, it is observed that in the present case the state was not relying wholly, or even in most part, on such statement for a conviction. Under this state of facts, the charge was not required. Tate v. State, 116 Tex. Cr. R. 340, 31 S.W.(2d) 453, and authorities cited; Casey v. State, 54 Tex. Cr. R. 584, 113 S. W. 534.

In his motion for a new trial, appellant set up newly discovered evidence. In his order overruling the motion, the court recites that evidence was heard. The evidence is not brought forward. We must therefore indulge the presumption that the court's action in overruling the motion, in so far as it was based on newly discovered evidence, was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Russell v. State (Tex. Cr. App.) 45 S.W. (2d) 622, and authorities cited.

The judgment is affirmed.

PER OURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

The motion for rehearing rests on two grounds: Eirst, that we erred in holding the reception of testimony from the officers not so erroneous as to cause reversal because appellant and his wife gave substantially the same testimony; second, in holding that the state did not rely in whole or for the most part for conviction on statements of the accused.

Appellant testified: “The first time I saw that half gallon of whisky was when Mr. Vick and Mr. Robinson came around the corner of my house with it.” Appellant’s wife swore: “I know where the officers claim to have found some whisky out there; they showed Steve, and I watched them, where they said they found it. * * * As to this half gallon jar — I did not see that until I saw Mr. Vick come out with it under his arm.” Mr. Vick swore that he found a half gallon of whis-ky under the edge of the smokehouse, some twenty or thirty feet from the dwelling house. These quotations seem amply sufficient to obviate need for discussion, and to make plain that both appellant and his wife affirm the finding by the officers of this half gallon of whisky, testimony to the finding of which was objected to. Appellant and his wife substantiate what the officers testified in this regard. If we understand the record, the state fully made out its case independent of the statements of the accused, referred to in the second ground of this motion.

The motion for rehearing will he overruled.


author: CHRISTIAN, J.

text:
    JENNINGS v. STATE.
    No. 15355.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    W. W. Kirk, of Plainview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

It was charged in the indictment that appellant sold intoxicating liquor to Harley Ward. It appears that appellant’s friends called him “Fat.” Ward testified that he went to appellant’s home on the nigfit of November 1, 1930, with Leslie Green, for the purpose of getting some whisky. On direct examination he said: “Me and Leslie Green went in and Leslie asked him if he had any whisky; he said ‘Yes,’ and we told him we wanted some and ‘Fat’ went in and got the whisky and I gave him a check for one dollar and fifty cents on the Petersburg bank. I do not know where the check is now. We got a pint of whisky. ‘Fat’ brought back about one-half gallon. We got the whisky in a pint bottle.”

The witness testified on. cross-examination that he did not tell appellant he wanted to buy the whisky, and that appellant made no ■inquiry of him as to what he wanted. He said appellant did not tell him he wanted to sell him any whisky nor what he charged for whisky. He testified, further, that when he wrote the cheek he had no money in the bank. He said: “I did not put any name on the check showing to whom it was paid, and I never told him to write his name in the check. I just wrote out the check without any name in it, and laid it on the table. I never asked him if he wanted to sell any whisky, and never told him I wanted to 'buy any whisky. * * * I don’t remember whether the defendant said he would give us some whisky.”

Upon being further questioned by the district attorney on redirect examination, the witness testified that he wrote out the check and told appellant he would give it to him. He said he wrote the check for a dollar and a half because he knew that was the usual and customary price for a pint of whisky. He said, further, he did not see what became of the check. Further, the witness testified as follows: “I stated that at the time I gave the check that I knew I had no money in the bank. The defendant never after that mentioned the cheek to me. Hubert Jennings never after that said that he had presented the check at the bank for payment and that it was no account. The defendant never after that asked me for any pay fdr the liquor. The reason I wrote a dollar and a half in the check shows that that was the price around Petersburg and in that neighborhood.”

Again the witness testified that he had no money in the bank at the time he wrote the check and had had none since writing it. The purchaser’s companion, Leslie Green, testified, in substance, that he and Ward went to appellant’s house on the occasion in question for the purpose of getting some whisky; that he told appellant he and Ward wanted a pint ■of whisky; that appellant replied, “This is the) life of a bootlegger,” and went out of the house and brought back two jars of whisky; that appellant delivered a pint of whisky to them, and Ward wrote a check for a dollar and a half, and asked appellant what to do with the check; that appellant replied, “Lay it on the organ there in the house” ; that appellant fold Ward not to make the check payable to him, tiut to leave the name in the check blank.

Appellant testified that the parties came to his house on the occasion in question and asked for a drink of whisky. He said that Leslie Green said something about wanting to buy the whisky, but he told him he did not want to sell it, but would give it to him. Further, appellant testified as follows: “Harley Ward said he wanted to give me a check and I t-old him I did not want his check. I tore the check up. I looked at the check next morning. My name was not in the check. He did not tell me to write any name in the check. I never did mention the check to him. I never did ask him for any pay for the whisky. ⅜ ⅜ » i did not tell him I wanted to sell it to him. There was no price made, and none mentioned. . Leslie said he wanted to buy it, but I told 'him I would give it to him. Harley Ward never said he wanted to buy any liquor. ' I did not price him any. There was nothing said about any pay by him, only Leslie.”-

On cross-examination, appellant admitted that Ward wrote out a cheek for $1.50, but declared that he (appellant) never presented the check for payment. He said that he did not know whether Ward had any money in the 'bank or not. Appellant introduced a witness who was present in the house with him. This witness gave testimony corroborative of that of appellant.

The court defined the term “sale.” In applying the law to the facts, the jury were instructed that, if they 'believed that appellant gave the liquor in question to Harley Ward and Leslie Green, or either of them, or if they had a reasonable doubt thereof, to acquit appellant. Further, the court expressly advised the jury in the charge that they must find from the evidence beyond a reasonable doubt that appellant sold the liquor to Ward before they could convict.

Appellant contends that the testimony is insufficient to show that he made a sale. He insists that the fact that Ward gave a check when he had no money in the bank and knew that the check would not be honored, and the further fact that the check was not presented by appellant for payment, would militate against the finding that ithe transaction constituted a sale. We are constrained to overrule appellant’s contention. In Hays v. State, 102 Tex. Or. R. 584, 279 S. W. 469, this court declined to sustain a contention based on facts substantially the samé as those in the present case.

Appellant objected to that part of the charge of the court defining the term “sale,” and offered certain special charges embracing the proposition that in order to constitute a sale it was necessary that Ward made a proposition to appellant to buy intoxicating liquor from him, and that appellant accepted such proposition and delivered to Ward the liquor, for which Ward paid him. Further, these special charges embodied the proposition that a sale was also constituted by an offer to sell by the defendant and an acceptance by Ward, provided the whisky was delivered to Ward and he paid the defendant therefor. Under -the facts reflected by the record, these charges were properly refused. It has long been the holding of this court that a sale need not be founded on a money consideration. Branch’s Annotated Penal Code, § 1242; Ford v. State, 45 Tex. Cr. R. 288, 77 S. W. 800. The only -objection to the court’s charge defining sale was that it was insufficient. .This objection was too general. In any event, we understand that the court’s definition was correct.

Appellant! alleged in his motion for a new trial that the jury were guilty of misconduct in that some- of the jurors misstated the testimony of Ward, the alleged purchaser. The specific complaint was that the district attorney, in his closing argument, had stated that Ward had asked appellant where to put the check and appellant had told him to put it on the table, and that, after the jury retired, some of the jurors stated that Ward’s testimony was as the district attorney had understood it. In ithe motion for a new trial, appellant averred that he had objected to the statement of the district attorney at the time it was made on the ground that he was misquoting the testimony, and had réquested the ■court to permit him to have the stenographer read his notes; that he had left the courtroom for the purpose of getting the testimony transcribed, and before he returned the jury had retired. Appellant took no bill of exception to the remarks of the district attorney. He predicates his motion entirely on the proposition that, under the circumstances, some of the jurors were guilty of misconduct in erroneously stating, while the case ,was being considered, that the testimony in question had been given by Ward as vouched for by the district attorney. His position is that the record did not bear out the interpretation the district attorney placed on Ward’s testimony, and that the jurors, in accepting the district attorney’s statement, did not understand the testimony of the witness. The opinion is expressed that the discussion had by the jury touching the testimony of Ward presents a matter that cannot be reviewed by this court. A juror is not permitted to impeach his verdict 'by attempting to say he did not understand the testimony of a witness. Blonk v. State, 93 Tex. Cr. R. 638, 248 S. W. 375.

Failing to find error, 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:
    RANDOLPH v. STATE.
    No. 14985.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    See, also, 117 Tex. Or. R. ,80, 36 S.W. (2d) 484.
    J. J. Collins and R. W. Fairchild, both of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for burglary; punishment, 7 years in the penitentiary.

The testimony offered by the state in brief was as follows: The witness, J.' D. Mc-Cardell,. the person alleged in the indictment to be the person who owned and occupied the house alleged to have been burglarized, testified that he had lived in Camden about 16 or 17 years and had charge of the store at Camden which was alleged to ■have been burglarized; that he was the store manager during the entire year 1929. He further testified that he had missed goods out of the store during the fall and summer of 1929, and the kind of goods he missed during said time were groceries, dry goods, clothing, and shoes. He further testified that either L. M. Phillips or himself closed the store at night, and when he was not there Phillips superintended the closing of the store. He, the witness, always saw that the store was closed before leaving when he was there. When he missed the articles out of the store, he did not find any evidence of the building having been entered. The evidence further showed that on the night of October 14, 1929, the store was broken into and articles taken therefrom, and on the morning after the robbery goods were found that had come out of the store and he identified them by their cost mark. The goods found were new goods, and had never been used. They were found right back of the house of J. Randolph, the father of Houston Randolph, the appellant, who was living with his father. It is further shown by the evidence that the appellant was employed in said store as a porter during the daytime and had access to the keys of the store during the daytime but not after the store had closed at night.

Another witness testified that she knew the appellant, Houston Randolph, and she saw him during the summer of 1929 in Carmona and he was there selling goods, and he sold her husband some things; that the things he brought there for sale were some bacon, lard, sugar, coffee, rice, and also some hose; that she did not know exactly how many times he came to Carmona and sold stuff there, but it was four or five times; that her husband at one time bought from the appellant a pair of silk hose for the witness. She further testified that her husband would tell appellant and Farris King what he wanted from them, and sometimes they would bring some of the things he had ordered and sometimes they would not; that some of the things they bought from the appellant and King were sold very cheap; that it was cheaper than they could buy them at other places.

The state also offered in evidence a purported written confession of the appellant. The confession itself shows that it was in conformity with the statutory requirements to entitle the confession to be offered in evidence. Omitting the formal parts, the confession is as follows:

“My name is Houston Randolph. I am 21 years old. My birthday is Jan. 10th. I am at present living in Houston, Harris County, Texas. I have worked in the store at Camden;- Polk County, Texas, for about 7 years. I was called ‘Porter’ in the store. I went into the store at Camden during the year 1929 altogether between 15 and 20 times. I always went in there at night. Each time that I went in the store I got some merchandise out of there. No one gave me permission to gb ■ in there and take this stuff. I knew it was wrong every time that I went in there and stole this stuff. I would get groceries and dry goods whenever I wanted them. I got several men’s leather coats out of there and would sell them to different parties. I got numerous articles of ladies silk underwear, including teddies, etc. I also got a number of pair of shoes and would sell them to different parties.

“Every time that I went in the store tó take this stuff, Farris King would go with me. We would go over to Carmona and there take orders for what our customers wanted, and then go back, and when convenient steal it out of the store, and fill the orders and collect our money. People at Carmona have also written us letters, telling us what they wanted, and we would go to the store and steal it and take it over there and sell it to them. We have also carried some stuff to Diboll. We have carried some stuff to Pearl Tolston and sold it to her, this stuff being out of the store at Camden also. Tommy Sholars went with me on this last trip to carry groceries to Pearl. Tommy knew that this was stuff that was stolen out of the store at Camden at that time. We were in Tommy Sholar’s car that last trip and had used his car numbers and numbers of times in delivering this stuff to our different customers. Tommy Sholars went with us a number of times to deliver this stuff to different places. I believe that I gave Tommy two dollars of the money that I got from Pearl. I would always give Tommy money on every trip that he went with us to deliver stuff. We also gave Tommy and his wife a number of different articles of clothing and shoes that we had taken out of the store. This went on between Tommy and. his wife and us for a number of months. Ozay Boatright went with us on several of these trips. Farris and I had bought a new Chevrolet, that is, traded an old one in, and we had a note coming due about a week after Mr. Holliday arrested all of us. We would keep a considerable amount of this stuff that we got out of the store locked, up in a little house in my father’s back: yard.”

Z. L. Foreman, the county attorney before whom the alleged confession was made;, testified before the introduction of said purported confession of the circumstances under-which the confession was taken. Said testimony showed that appellant had been properly warned before said confession was taken, and that it was freely and voluntarily-made and signed by appellant. Said witness also testified to a verbal statement made by appellant to him, while not under arrest, as to how he got in the store; that he would get the key in the daytime and unlock the door, push the door to so he could go back there at night and get in.

The state in its election stated that it did not rely upon the alleged burglary on the night of October 14, 1931, but elected to rely upon the date between June 7 and! October 14, 1929. The appellant did not testify and offered no testimony.

Appellant made a motion to quash the-indictment, claiming that it was duplicitous-in charging in the same count a burglary-committed in the daytime and at night. The-indictment specifically averred that the- burglary was committed by force, threats, and fraud, and also that appellant did break and enter a house without the consent of the owner, and with the intent then and there to fraudulently commit the offense of theft. In the case of Young v. State, 84 Tex. Cr. R. 232, 206 S. W. 529, the appellant made a motion to quash the indictment, claiming that it was duplicitous in charging in the same count a burglary both in the daytime and at night. The indictment specifically averred also that the burglary was committed by force, threats, and fraud, and also that he did break and enter a house with the intent to commit the offense of theft. In passing upon said question, this court used the following language:

“It has been the settled law of this state, since the decision of this court in the Carr Case, 19 Tex. App. 635, 53 Am. Rep. 395, that in an indictment for burglary, other than the burglary of a private residence at night, if .it alleges that the accused ‘did break and enter,’ it need not be alleged whether the entry was in the daytime or at night; that under such an allegation, when the proof shows the entry by force applied to the house, which is a ‘breaking,’ with the intent to commit felony or theft alleged, it is immaterial whether the house was entered in the daytime or at night. In other words, when an indictment alleges, as stated above, that he ‘did break and enter,’ and by force, a house, with the intent to commit theft, such an indictment charges both a nighttime burglary and a daytime burglary. For some of the cases so holding, see 2 Branch’s Ann. P. C. § 2327.’’

Appellant claims that there is a fatal variance between the allegation of the indictment and the proof as to the ownership of the alleged burglarized house. The proof showed that J. D. McCardell did not in fact own the business or the store alleged to have been burglarized, but he had complete charge of the mercantile establishment and a control over the employees in said store. Under the record before us, the ownership and possession of the house alleged to have been burglarized and the property therein was properly alleged to- be in the said McCardell. His relation to the property was not that of a mere servant whose possession is confined to custody without right of disposition. See Ratcliff v. State, 89 Tex. Cr. R. 176, 229 S. W. 857; Daggett v. State, 39 Tex. Cr. R. 7, 44 S. W. 148, 842.

. [3] Through requested charges, the appellant attempted to have submitted to the jury the necessity for corroboration of an extrajudicial confession which was refused and exception reserved and brought forward by bill of exception. The main charge is silent upon the subject, and, in our opinion,- the failure to supply the omission could be raised by complaint of the refusal of the special charges. See Parker v. State, 98 Tex. Cr. 216, 261 S. W. 782; Boaz v. State, 89 Tex. Cr. 515, 231 S. W. 790. The requested charges refused were sufficient to call the court’s attention to the omission and to make it incumbent upon the trial court to give said special charge or one in his own language covering the subject.

One of the issues submitted by the trial judge to the jury was the issue of whether or not the appellant had entered into a- conspiracy or agreement with one Parris King to enter the building alleged to have been robbed by pushing open a closed door thereto at night, which had been left unlocked by the appellant during the daytime for the purpose of committing the crime of theft, and did then and there get the goods therein, Parris King being present at the time of such entry into said building. This could not be shown by the confession alone nor was it required that under the law the proof come wholly from evidence independent of the confession. The evidence aside from the confession is not deemed sufficient alone to show that the offense of burglary was committed as alleged in the indidtment. Omitting the confession, it is not shown that the appellant had ever entered said store building after it had been closed, either by himself or with any other person. These were essential elements of the crime. The mere fact that the appellant may have sold some sugar, coffee, bacon, and clothes in another town from the one in which the store was located did not in itself show that he obtained them by burglary rather than by theft.

In this state of the record, the corroborating evidence adduced upon the trial is not of such cogency in our opinion as to dispense with the necessity of having a charge upon that subject to the end that the jury might know that under the law of the land a confession made by an accused out of court would not alone establish his guilt. As said by Judge Morrow in the case of Silva v. State, 102 Tex. Cr. R, 415, 278 S. W. 216, 219, in passing upon a similar question-: “Such a charge is held necessary * » ⅜ because it is hard for the jury to grasp the fact that one who admits his commission of the criminal act is not perforce of- this admission alone to be convicted. That such a confession ,is not always reliable, experience teaches and all courts recognize.”

The failure to instruct the jury under the facts of this case upon the necessity for corroboration of the confession was sufficiently raised, and, in refusing to give a charge upon this subject to the jury, the learned trial judge, in the opinion of this court, committed error which requires reversal of the judgment.

Reversed and remanded.

PER CURIAM.

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

HAWKINS, J., not sitting.


text:
    MITCHELL v. STATE.
    No. 15297.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    Rehearing Denied Nov. 23, 1932.
    R. G. Robertson, of Port Arthur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for unlawfully carrying a pistol ; punishment, confinement in the county jail for ninety days.

There is no contention but that appellant when arrested for a violation of a traffic ordinance had in his possession a pistol. The statement of facts is entirely in question and answer form. Chapter 34 of the Acts of the First Called Session of the 42d Legislature (Vernon’s Ann. Civ. St. arts. 2237-2239 and Note, and Vernon’s Ann. C. C. P. art. 760) permits the preparation of statements of facts in question and answer form in civil cases, but by the terms of section 5 of said act it is especially provided that same is not intended to and shall not be construed as repealing, modifying, or amending article 760 of the Code of Criminal Procedure. Section 7 of said act (Vernon’s Ann. C. C. P. art. 760) provides, in so many words, a change in subdivision 1 of said article 760, in reference to a statement of facts in criminal cases, and states as follows; .“Provided that said statement of facts shall be in narrative form.” We cannot consider said statement of facts. We find in the record no bills of exception. The proceedings appear in all things to be regular.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

In his motion for rehearing, appellant complains that we overlooked his defense, namely, his contention that he was a traveler, and did not therefore violate the- law m carrying a pistol.

In the original opinion it was pointed out that the purported statement of facts was in such condition that this court is not authorized to consider it; that is to say, it is entirely in question and answer form. The statute demands that it be in narrative form. See article 760, C. C. P. 1925; also, chapter 34, Acts of 42d Legislature, First Called Session (Vernon’s Ann. C. C. P. art. 760). In the condition in which the record is found, this court has no official knowledge of the facts, and consequently must assume that the evidence is sufficient to support the verdict.

The motion is overruled.


author: LATTIMORE, J. HAWKINS, J.

text:
    SIRAGUSA v. STATE.
    No. 15270.
    Court of Criminal Appeals of Texas.
    Oct. 5, 1932.
    Rehearing Denied Nov. 23, 1932.

      James A. Harrison, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

We find in the record four bills of exception. The first complained of the reception of testimony showing appellant in possession of intoxicating liquor, on the ground that the affidavit upon which the search warrant was based was insufficient, in that it stated that the premises were occupied and used by “parties unknown to the affiants,” It is-insisted that the averment should have been that the names of the parties were unknown, if such was the fact, and, if their names were unknown; then, it should have .been stated .that a description of such persons could hot be given. An affidavit similar in this regard to the one under discussion was held sufficient in Naulls v. State, 115 Tex. Cr. R. 44, 27 S.W.(2d) 180, and this was approved in Denzlinger v. State, 116 Tex. Cr. R. 158, 28 S.W.(2d) 160. We cannot uphold - appellant’s contention.

Nor do we think the affidavit defective by' reason of the fact that in same, after the positive statement therein 'that the premises were being used for manufacturing and selling intoxicating liquors, it was further stated that the affiants’ knowledge was based on the fact that reputable people had made to them complaints and reports that intoxicating liquors were kept and sold on said premises. A positive averment of either the manufacture or the sale of intoxicating liquors upon homestead premises would be sufficient to'justify "the issuance of search warrant. We see no reason for discussing the proposition that the warrant was defective because it went further than to direct search for liquors being sold.

We see no reasonable ground for objection to the testimony of the searching officer that before he went to the place he had procured a search warrant. The search warrant was not before the jury, nor was the officer asked anything as to the contents thereof.

Bill of exception No. 4 shows that the state asked appellant’s wife on cross-examination if she did not know that appellant was convicted in the federal court for selling whisky and served a term in jail. Upon objection by appellant, the question was changed, and witness was asked if she did not know appellant was convicted and served a ‘term in jail for selling whisky. If any objection was made to her answer to this question, it is not set out. The bill of exception shows that, when asked this last question, she said “When was that?” and was informed that it was in 1928, whereupon she replied that she did not know appellant in 1928. We see no reversible error in this, but note that, •when the witness was turned back to appellant’s counsel for redirect examination, she testified, in response to his question, that appellant was convicted of some liquor charge and got a seventy-five day sentence. We also note that appellant’s wife testified that the liquor was found by the officers on the premises.

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

On Motion for Rehearing.

HAWKINS, J.

Appellant calls attention to a question which arises because the search warrant was executed at night. It appears from bill of exception No. 2 that, when the state tendered testimony of the searching officer, appellant objected upon the ground that the search warrant was void; the third ground of such claim being, as stated in the bill, that “said search warrant was executed at night about eleven o’clock p. m., and does not authorize a search to be made of said premises.” In connection with said objection, it is certified in the bill, and borne out by the statement of facts, that the search was made about 11 o’clock at night. It is rather difficult to determine from the bill whether appellant was urging that the warrant was void because it omitted express, authority directing the officer to execute it at night, or whether he was opposing the admission of evidence because in fact the warrant was executed at night without express authority in the warrant- directing that it might be executed at that time. In either event, we think appellant’s contention cannot be sustained. The holdings of other courts turn upon the statutory provisions in the different jurisdictions. In some of them, the execution of a search warrant at night is by statute expressly prohibited, unless direct authority to so execute it has been granted by the issuing magistrate, evidenced by such recital in the warrant. Many authorities both state and federal will be found collated in the notes under texts appearing in Ruling Case Law, vol. 24, pp. 708 and 709; Corpus Juris, vol. 56, § 159, p. 1240; ■Cornelius on Search and Seizure (2d Ed.), § 229, p. 535.

Our own statute upon the subject provides as follows:

Article 317, C. C. P. reads: “Any peace officer to whom a search warrant is delivered shall execute it without delay and forthwith return it to the proper magistrate. It must be executed within three days from the time of its issuance, and shall be executed within a shorter period if so directed in the warrant by the magistrate.”
Article 318, C. C. P. reads: “The time allowed for the execution of a search warrant shall be- three whole days, exclusive of the day of its issuance and of the day of its execution.”
Article 319, C. C. P. reads: “The officer shall, upon going to the place ordered to be searched, or before seizing any property for which he is ordered to make search, give notice of his purpose to the person who has charge of, or is an inmate of, the place, or who has possession of the property described in the warrant.”

It will be observed that in our statutes there is found no such limitation or restriction as appears in other jurisdictions where there would be some basis for the objection urged by appellant, but, in the absence of such limitation or restriction in our statute, we find no support for the objection urged.

It appears from the case of Montalbano v. State, 116 Tex. Or. R. 242, 34 S.W.(2d) 1100, as reported, that accused was complaining that the search warrant was invalid because it did not contain certain things which it was claimed were required to be in warrants issued out of federal courts. It was held, if such things omitted were not commanded to be in such warrants by the laws of this state, the warrant could not for such omission be attacked, but no statement is found in the -opinion naming the things which were omitted. An examination of the original record in Montalbano’s Case reveals that one ground of attack made upon the search warrant was that it did not include a direction in the same to the officer executing it telling him whether to serve said warrant in the daytime or night-time. ’ So, when the exact point then before the court is made clear, the ease mentioned is direct authority against appellant’s contention on the question under discussion.

We think there is no basis for appellant’s contention that he was entitled to a charge on circumstantial evidence. On direct examination, the officer making the search testified as follows: “I spoke to Sam, told him I had a search warrant for his place. He said, ‘All right,’ and he got up and started walking through the front part of the house, through an open door there. I asked him if he had any whisky there. He said, ‘Some’ or ‘a little bit,’ and we got to the door looking in'the room. There was a big sack setting right by the door, tow sack, I believe, with five-gallon glass jugs of whisky in new paper sacks. We continued our search of that room. Meantime, Mr. Swanzy came in from the back, and we found a gallon jug in a new paper bag in the closet, found six gallons altogether. There were five gallons of whisky in new paper sacks in his house in a tow sack, I think, some kind of heavy sack. Each one of these jugs was in a new paper sack.”

On cross-examination the officer said: “At the time we went there with this search warrant and were admitted, Mr. Siragusa was sitting in the front room. 1-Ie had his baby in his arms, sitting there with his baby. I told him I had a search warrant and began to search. He told me he had *a little whisky there about the same time I saw those sacks. We were standing right in' the door and I saw a sack and he said, T have got some whisky,’ I don’t know whether he said ‘some’ or ‘a little,’ one or the other. Then I went in and examined these sacks and it was whisky, five gallons in a sack and one in a closet.”

It seems clear from the officer’s testimony that appellant himself led the way to the room where the whisky was found, and that he had reference to that whisky in answering the officer’s question. The mere fact that the room in which the whisky was found may have been occupied by a brother who was living there with appellant would not, under the circumstances, we think, raise :'an issue of whether appellant possessed the whisky. There was no claim made by appellant at the time of the search nor at the trial that the whisky belonged to appellant’s brother, save as Such issue might have been barely hinted at from the fact that it was found in the room occupied by the brother.

We think the questions of law-considered in the original opinion were properly decided.

The motion for rehearing is overruled.


text:
    PUNCHARD v. STATE.
    No. 15349.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    O’Brien Stevens, Dist. Atty., and E, T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State,
   CHRISTIAN, J.

The offense is negligent homicide of the second degree; the punishment, confinement in jail for one year and one day.

Omitting the formal averments, it is charged in the information that appellant “did then and there while operating and driving an automobile upon a public highway of Harris County, State of Texas, to-wit, on Dennis Avenue, a public street in the city of Houston, in said county and state, at a point near the intersection of Nettleton Street, also a public street in the city of Houston, Harris County, Texas, negligently and carelessly cause the death of Matthews Provenzano, a person who was then and there upon said highway, by causing said automobile to strike and kill the said Matthews Provenzano, the death of the said Matthews Provenzano being the proximate consequences and result of the negligence of the said J. C. Punchard, who then and there was driving the said automobile at a dangerous, excessive and unlawful rate of speed, and who was not then and there keeping and maintaining a proper lookout for the presence of persons and vehicles then and there upon said highway, and particularly the person whose death he caused, and the said J. C. Punchard was negligent because he failed to apply the brakes in time prior to striking the said Matthews Provenzano, and the said J. C. Punchard then and there failed to use that degree of care which a man of ordinary prudence would have used under like and similar circumstances, there being then and there an apparent danger of causing the death of the said Matthews Provenzano, but no intent on the part of said J. C. Pun-chard to cause said death.”

The proof on the part of the state was to the effect that Matthews Provenzano, a child about five years of age, was near the street named in the information; that appellant drove his automobile down the street at approximately 45 miles an hour and at the time, instead of watching the road, was looking back, waving to some person; that appellant struck the child, carrying him approximately. 72 feet; that appellant did not put his brakes on until he had hit the child; that the child was unconscious from the time it was hit by the automobile until its death two or three days later. Appellant’s testimony was to the effect that ¡he was driving less than 20 miles an hour; that an automobile was parked in front of the place of business of the child’s father; that without warning deceased came into the road from behind the parked automobile and he had no opportunity to stop his car; that he immediately applied his brakes anfl carried tlie child only a few feet; that he was looking down the road at the time, and driving carefully. Appellant’s testimony was corroborated by that of other witnesses.,

In submitting the case to the jury the court defined negligent homicide of the second degree as meaning such as is committed in the prosecution of an unlawful act. Thereafter the jury were instructed as follows: “By an unlawful act is meant such an act as by the penal law is called a misdemeanor or such an act, not being a penal offense, as would give just occasion for a civil action.” Further, the charge read: “You are charged, that our statutes further provide that whoever shall drive or operate a motor vehicle in this state within the limits of an incorporated city or town in excess of 20 miles per hour is guilty of a misdemeanor.”

Again, we quote from the charge:

“The punishment for negligent homicide in the second degree, committed in the performance of an unlawful act attempted or executed, known as a misdemeanor, is by imprisonment in jail not exceeding three years or by fine not exceeding three thousand dollars.
“The punishment for negligent homicide in the second degree, when the act complained of is not a misdemeanor and is not a violation of the penal law but is one for which a civil action would lie, is by fine not exceeding one thousand dollars or by imprisonment in jail not exceeding one year,”
In applying the law to the facts, th,e court, in a single paragraph, set put the allegations embraced in the information. The penalty was not mentioned in this paragraph, but after requiring the jury to believe beyond a reasonable doubt the matters set forth in said paragraph, the court said: “Then you will find the defendant guilty and assess his punishment as above provided.” The punishment “above provided” was set forth in the two paragraphs of the charge hereinbefore quoted.

The verdict of the jury, which was followed in the judgment of the court, read as follows:

“We, the jury find the defendant guilty of negligent homicide in the second degree and assess iris punishment at One Year and one day in Jail.
“J. M. Dunnington, Foreman.”
Article 1239, Penal Code, reads as follows: “Negligent homicide of the second degree can only be committed when the person guilty thereof is in the act of committing or attempting the commission of an unlawful act.”

Article 1240, Penal Code, provides: “Within the meaning of an ‘unlawful act’ as used in this chapter are included: 1. Such acts as by the penal law are called misdemeanors; and 2. Such acts, not being penal offenses, as would give just occasion for a civil action.”

Article 1242, Penal Code, reads thus: “When the unlawful act attempted or executed is known as a misdemeanor, the punishment of negligent homicide committed in the execution of such unlawful act shall be imprisonment in jail not exceeding three years, or by fine not exceeding three thousand dollars.”
Article 1243, Penal Code, reads as follows: “If the act intended is one for which an action would lie, but not an offense against the penal law, the homicide resulting therefrom is a misdemeanor, and may be punished by fine not exceeding one thousand dollars, and .by imprisonment in jail not exceeding one year.”

The opinion is expressed that the information is not sufficient to support a conviction for negligent homicide of the second degree based on an act denounced by the penal law as a misdemeanor. Nowhere in the information is it charged that appellant operated the automobile on the designated street in the city of Houston in excess of 20 miles an hour, the pleader contenting himself with averring that appellant drove the automobile at “a dangerous, excessive and unlawful rate‘s of speed.” Under the provisions of article' 1240, Penal Code, an unlawful act is such as by penal law is called a misdemeanor, and also such an act, not being a penal offense, as would give just occasion for a civil action. It is conceivable that one might drive an automobile on a street in an incorporated city at not over 20 miles an hour and yet, in contemplation of the statute denouncing negligent homicide, execute an unlawful act. For example, driving an automobile along a street crowded with pedestrians at a rate of speed of 20 miles an hour might, under the circumstances, constitute an excessive and unlawful rate of speed, notwithstanding the act in driving at such rate was not made penal by law and denounced as a misdemeanor. Such conduct might involve, in a case of negligent homicide, a violation of the rule of ordinary care, which would apply in the absence of a statute. See West Texas Coaches v. Madi et al. (Tex. Com. App.) 26 S.W.(2d) 199. Aside from the fact that the statute denouncing negligent homicide of the second degree provides that “unlawful act” includes certain acts not made penal by law, it is observed that generally it is held by the courts that the term “unlawful” does • not necessarily mean contrary to some statute. We quote from State v. Dorsey, 118 Ind. 167, 20 N. E. 777, 778, 10 Am. St. Rep. Ill, as follows: “The words ‘unlawful act,’ as used in' the section of the statute relating to involuntary manslaughter, are not technical words, therefore they are to have their plain or usual meaning. Webster defines the word ‘unlawful’ as follows: ‘Not lawful; contrary to law; illegal; not permitted by law»’ * * * The word ‘unlawful’ as defined by Bouvier in his Law Dictionary is ‘That which is contrary to law.’ Another definition is: ‘Unlawful implies that an act is done or not done as the law allows or requires.’ Abb. Law Diet. ‘Lawful, unlawful, and illegal refer to that which, in its substance is sanctioned or prohibited by law.’ Anderson, Law Diet. ‘The reader should bear in mind that ‘unlawful’ signifies contrary to law, and many things are contrary to law while not subjecting the doer to a criminal prosecution.’ 2 Bish. Crim. Law, § 178. ‘A lawful act done in an unlawful or negligent manner is in law an unlawful act. Com. v. Hunt, 4 Metc. (Mass.) Ill, 38 Am. Dec. 346.’ * * * ” For other decisions on the subject, see State v. Sanders, 136 La. 1059, 68 So. 125, Ann. Cas. 1916E, 105, and State v. Frazier, 54 Kan. 719, 39 P. 819.

Article 414,-C. C. P., requires that the offense be set forth in the information in plain and intelligible words. The rules relating to allegations, in indictments and the certainty required are applicable to informa-tions. State v. Elliott, 41 Tex. 224; Calvert v. State, 8 Tex. App. 538; Rasberry v. State, 1 Tex. App. 664. All that is essential to constitute the offense must be explicitly charged and cannot be aided by intendmpnt. Middleton v. State, 114 Tex. Cr. R. 263, 25 S.W.(2d) 614, and authorities cited. To reach the conclusion that the information charges negligent homicide of the second degree under that provision of the statute relating to the execution of an act made penal by law and denounced as a misdemeanor, it would be necessary to hold that the allegation that appellant drove the automobile at an unlawful rate of speed is tantamount to an averment that he drove at a rate of speed in excess of 20 miles an hour. Looking to the meaning of the word “unlawful” as used in the statute defining negligent homicide and as generally defined in the decisions to which reference has been made, we are. unable to reach the conclusion that the averments mentioned are equivalent. It follows that, in our opinion, the information fails to charge that appellant negligently caused the death of deceased, while he (the appellant) was executing an act that was a misdemeanor. We disclaim any intention of holding that the information fails to charge that phase of negligent homicide of the second degree involving the execution of such acts, not being penal offenses, as would give just occasion for a civil action.

The district attorney trying the case suggests in his brief that the allegations in question should be treated as surplusage, both as to the information and charge of the court. If this suggestion should 'be followed, we would have left negligent homicide predicated upon an act not denounced as a misdemeanor by the penal law, but such an act as would give just occasion for" a civil action. The punishment for negligent homicide committed under the conditions last stated is fixed by the statute at a fine of not exceeding $1,000 and imprisonment in jail not exceeding one year. Looking to the charge of the court relating to the punishment for this phase of negligent homicide, it is observed that the jury were instructed that such punishment was a fine not exceeding $1,000 or imprisonment in jail not exceeding one year. This was manifestly erroneous. The matter was not called to the attention of the trial court by exception to the charge of the court. The matter was, however, set up in appellant’s motion for a new trial and is urged in this court as an error of a fundamental nature, which, under the circumstances reflected by the record, is prejudicial to appellant’s rights. It was stated by this court in Thompson v. State, 91 Tex. Cr. R. 234, 237 S. W. 926, that a mistake in the charge as to the penalty was such an error as that, no matter when raised, we should consider it. In the same connection, however, it was said that the spirit of article 666, C. C. P., should control in determining whether any injury could or did result from the error. See, also, Sulak v. State, 118 Tex. Cr. R. 112, 40 S.W.(2d) 157. The punishment assessed by the jury was confinement in jail for one year and one day, without a fine. If the allegations, as suggested by the district attorney, bo treated as surplusage in the charge and in the information, and it should bo presumed that the jury found appellant guilty of negligent homicide of the second degree predicated upon an act not made penal, but giving just occasion for a civil action, we find ourselves confronted with a situation in which the jury assessed a penalty not authorized by article 1243, Penal Code. Hence the verdict would be void. Fowler v. State, 9 Tex. App. 149; Sager v. State, 11 Tex. App. 110; Johnson v. State, 18 Tex. App. 7; Coleman v. State, 75 Tex. Cr. R. 66, 170’ S. W. 150. In any event, the jury were-advised in the erroneous charge in question that the jail penalty could not be more than one year. This was correct. The error was in stating the punishment to be either a fine or imprisonment, when the statute provides for a fine and imprisonment. Inasmuch as the jury assessed the punishment at confinement in jail for more than One year, which was-properly authorized in the charge of the court for that phase of negligent homicide involving an act made penal by statute and denounced as a misdemeanor, we are unable to say it was-not for such phase of the offense appellant was convicted. In such event, the conviction, could not stand for the reason that, as heretofore pointed out, the information is not sufficient to support the verdict. On the other hand, if it should be concluded that appellant, was convicted of that phase of negligent homicide predicated upon an act, not being a penal offense, but such as would give just occasion for a civil action, the verdict of the jury would be void, for the reason that, as heretofore pointed out, the punishment assessed therein was net authorized by the statute. In either event, the conviction can not stand.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


text:
    LLOYD v. STATE.
    No. 15707.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    H. L. Tooker, of Stanton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for receiving and concealing stolen property; punishment being assessed at two years’ confinement in the penitentiary.

The indictment properly charges the offense. The record contains neither statement of facts nor bills of exception. "In such condition nothing is presented for review.

The judgment is affirmed.


text:
    CAMPBELL v. STATE.
    No. 15639.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Rehearing Denied Nov. 23, 1932.
    A. C.. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, possessing equipment for the manufacture of 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 procedure has been pointed out or has been perceived. No question is presented for review.

The judgment is affirmed.

PER CURIAM.

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


text:
    RICHARDSON v. STATE.
    No. 15612.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Jake Newberry, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, violating the speed law; the punishment, confinement in the county jail for 90 days.

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.

HAWKINS, J., not sitting.'


text:
    FUTRELL v. STATE.
    No. 15561.
    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.
   CHRISTIAN, J.

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

No statement of facts is brought forward. Appellant brings forward two bills of exception in which he complains of the fact that the searching officer was permitted to testify touching the result of the search of his car. As far as the record reflects the matter, other testimony might have been given upon the trial of the case embracing the same crim-inative facts testified to by the officer. If the conclusion should be reached from an examination of the bills of exception that the testimony of the officer was erroneously received, we would be unable to say, in the absence of a statement of facts, that the error in receiving the testimony was harmful. If appellant, or,some other witness, testified without objection to the same criminative facts detailed by the officer, we would not reverse the judgment.

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:
    WILLIAMS v. STATE (2 cases).
    Nos. 15695, 15696.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

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

The record fails to show that any notice of appeal was given, without proper notice Of appeal, this court is without jurisdiction. Article 827, C. O. P. 1925; Hollifield v. State, 111 Tex. Cr. R. 93, 10 S.W.(2d) 101; Sandoval v. State, 106 Tex. Cr. R. 468, 293 S. W. 168.

The appeal is dismissed.

PER CURIAM.

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

HAWKINS, J., not sitting.


text:
    PROCTOR v. STATE.
    No. 15666.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Russel A. Bonham, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for unlawfully carrying a pistol; punishment thirty days’ confinement in the county jail.

No hills of exception or statement of facts are found in the record. The information is in proper form. There is nothing before this court for review.

The judgment is affirmed.


author: LATTIMORE, J.

text:
    PARKER v. STATE.
    No. 15665.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Thos. C. Turnley, of Houston, for appellant.
    O’Brien Stevens, Dist. Atty., and E. T. Branch, both of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

It is alleged in the indictment that, on a day named, appellant by an assault and by violence robbed a certain person. It is further alleged in said indictment that at a time and place prior to the date of the robbery alleged herein appellant was indicted, tried and finally convicted for a similar offense, that is, for the offense of robbery. We held in Gerard v. State, 91 Tex. Cr. R. 374, 238 S. W. 924, that for a second conviction of a felony of the same character the punishment is fixed by statute and need not be set out in the verdict of the jury (Pen. Code 1925, art. 62). This was the practice in the case before us. There is no statement of facts, nor are there any bills of exception.

The judgment will be affirmed.

HAWKINS, J., not sitting.