author: CHRISTIAN, Judge. MORROW, Presiding Judge. LATTIMORE, Judge.

text:
    SPEER v. STATE.
    No. 15335.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Rehearing Denied March 15, 1933.
    Earle Adams, Jr., of Houston, E. L. Henderson and Lamar Bethea, both of Bryan, M. L. Bennett, of Normangee, A, T. McKinney and M. E. Gates, both of Huntsville, and Warrdn W. Moore, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft; the punishment, confinement in the penitentiary for three years.

The conviction was under an ordinary indictment for theft as defined in article 1410, Penal Code.

Appellant was sheriff of Walker county. On May 31, 1929, he sent his account to the comptroller, showing that the state owed him fees amounting to $1,626.95. On the same date the comptroller issued a warrant, payable to appellant, in the sum of $2,626.95. This warrant was mailed to appellant, and he received it in WalL'er county. It appears that the excess of a thousand dollars was due to an error on the part of the employee issuing the warrant. On June 3, 1929, appellant indorsed the warrant and deposited it in the Huntsville .State Bank, in Walker county, receiving a general deposit slip showing that his account was credited with the. sum of $2,626.95. On June 5, 1929, the warrant was cleared in Austin, Travis county; $2,626.95 being paid to the Austin National Bank by the state treasurer. This amount was later transmitted to the Huntsville State Bank. The officers of the Huntsville State Bank testified that they did not accept the warrant for collection, but stated in substance that they bought it from appellant. Appellant did not testify.

It is insisted that, under the provisions of article' 197, Code of Criminal Procedure, the venue was in Walker county. We quote: “Where property is stolen in one county and carried off by the offender to another, he may be prosecuted either in the county where he took the property or in any other county through or into which he may have carried it.”

It appears that the holding in Townsend v. State (Tex. Cr. App.) 51 S.W.(2d) 696, 701, is applicable here. In that ease, in the opinion on the motion for rehearing, this court said:

“We have carefully considered appellant’s argument in this regard, and are still of opinion that the venue was properly laid in Travis county, and wish to say, in addition to what we said originally, that since fees payable by the state are payable by and out of the state treasury, which is located in Austin, Travis county, Tex., the venue of every illegal collection and receipt of state-owed fees prosecuted under article 365, P. C., would appear in every case conceivable by us at this time to properly be laid in Travis county, únless otherwise fixed by statute. The question of demand aside, the state parts with no fees, and is not deprived of any money as fees; nor does the officer or other person authorized to demand and receive fees, who holds fraudulent warrants or evidences of indebtedness against the state treasury, receive the money thereby or therein illegally called for, in so far as receipt thereof is made illegal by article 365, P. O., until same has been paid by or from the state treasury. The officer or other person authorized by law to demand or receive fees from the state of Texas, who willfully uses an innocent agent, or willfully sets in motion the machinery through whose operations, without knowledge of the wrong, the money is taken from the state and out of its treasury, no matter where he starts his machinery or procures his agent, must be held triable at the place where the money is gotten from the state, i. e., the place where the offense of reception of state funds is consummated or effected, and where the state parts with its money upon the false warrant or account. * * *

“The same matter is discussed and authorities cited in Houston v. State, 98 Tex. Cr. R. 284, 285, 265 S. W. 585. The fact that the officer or other person whose account, warrant, etc., was the basis of the prosecution, and who inaugurated the movement whose consummation took the money out of the treasury, may have deposited such warrant or sold it outright in Bastrop, Tex., or Washington, D. G., would not seem in the least to affect the question of venue of the prosecution; nor would the fact that such warrant had to or did pass through various innocent hands' or channels before it came to the state treasury in Travis county, where the state is by such means induced to part with its money, alter the principle or affect the question of venue, under a proper application of article 68, P. C. The presence in our statute of this article and its interpretation by our courts makes inapplicable authorities cited by appellant. By what we have above said we do not wish to be understood as holding that one who, by the use of a false warrant or evidence of indebtedness against the state, defrauds some private person, may not be tried for such act in the county where it takes place.”

From Branch’s Annotated Penal Code, § 2428, the following is taken: “If defendant fraudulently procured a person innocent of any fraudulent intent to take the property for him, it is a taking through an innocent agent, and a taking by an innocent agent is a taking by defendant. In a legal sense, defendant was present when the act was done if he fraudulently caused that act to be done by an innocent agent although in fact he was in a different .county or state.”

In support of the text, the following authorities are cited: Madison v. State, 16 Tex. App. 442; Doss v. State, 21 Tex. App. 509, 2 S. W. 814, 57 Am. Rep. 618; Dale v. State, 32 Tex. Cr. R. 78, 22 S. W. 49; Sikes v. State (Tex. Cr. App.) 28 S. W. 688; Lane v. State, 41 Tex. Cr. R. 559, 55 S. W. 831; Walls v. State, 43 Tex. Cr. R. 70, 63 S. W. 328; Jessup v. State, 44 Tex. Cr. R. 83, 68 S. W. 988; Farris v. State, 55 Tex. Cr. R. 481, 117 S. W. 798, 131 Am. St. Rep. 824.

In applying the law to the facts, the court instructed the jury as follows: “Bearing in mind the foregoing instructions, I charge you -that if from the evidence in this ease you are satisfied beyond a reasonable doubt that the defendant, N. L. Speer, on or about the 31st day of May, 1929, obtained from the possession of the State of Texas with the consent of an agent or employee of the State of Texas a treasury warrant dated May 31, 1929, for the sum of $2626.95, payable to the order of N. L. Speer, Huntsville, signed W. Gregory Hatcher, State Treasurer and countersigned S. H. Terrell, State Comptroller of Public Accounts, and the said warrant called for the payment of $1,000.00 in excess of the amount actually due the defendant, N. L. Speer, from the State of Texas at said time and the said $1,000.00 excess was the property of the State of Texas; and if you further find from the evidence in this case beyond a reasonable doubt that upon the receipt of such warrant the said N. D. Speer deposited the same in the Huntsville State Bank in Huntsville, Texas, for the purpose of obtaining said $1,000.00 excess and with the intent of appropriating the same to his own use and benefit and as a result of such deposit did take, or cause to be taken, from the State of Texas the $1,000.00 excess in Travis county, Texas, and appropriate the same to his own use and benefit with the intent to deprive the said owner of the value thereof you will find the defendant guilty of theft as charged in the indictment and assess his punishment at confinement in the State penitentiary for not less than two nor more than ten years as you may determine and state in your verdict.”

Appellant excepted to the foregoing charge on the ground that it did not require the jury to find that he had the intention of appropriating the money at the time of the reception of the warrant, but authorized a conviction if he formed the intent to appropriate the money at the time he deposited the warrant in the Huntsville State Bank, which was after he had come into possession of the same. The opinion is expressed that, under the facts reflected by the record, the exception was not well taken. Appellant was charged with appropriating a thousand dollars in money. The warrant he received from the comptroller’s office was the means by which he secured this sum of money. If appellant formed the intent to appropriate the money at the time he used the bank as an innocent agent for obtaining the money by placing the warrant in the bank, and receiving credit for -the amount thereof, and did appropriate the money, it would appear that the act becomes criminal under the terms of article 1413, P. O., which provides: “The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete.”

In Hedge v. State, 89 Tex. Cr. R. 236, 229 S. W. 862, 865, 14 A. L. R. 889, this court, speaking through Judge Lattimore, said: “If A. owes B. $7.50, and by mistake gives in settlement a cheek for $.75, which B. accepts, places in his pocket, and presents at the bank, and, upon payment to him by the bank of the $75 called for by said check conceives the intent to appropriate the $67.50 excess, he would be guilty of theft of such excess.”

A careful examination of appellant’s contentions leads us to the conclusion that reversible error is not presented.

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.

MORROW, Presiding Judge.

Supplementing the foregoing opinion of the commission, the following observations are made concerning venue by the Court of Criminal Appeals:

The warrant issued by the state for $2,626.95 was not a negotiable instrument in the sense that it would have entitled an innocent purchaser of the warrant to acquire from the state the amount stated on the face of -the warrant, but such purchaser would acquire no more than a right to collect from the state the amount that it owed the appellant, namely, $1,626.95. No authority for the issuance of the warrant for the amount stated in its face or to- pay the full amount of such warrant existed. No purchaser of the warrant, whether in good faith or not, could legally demand from the state the payment of more than the amount which was owing. See Ency. of Law Proe., vol. 11, p. 531; volume 7, p. 818; volume 36, p. S9o; Corpus Juris, vol. 59, p. 269, § 406; Tex Jur. vol. 11, p. 665, § 118.

Speaking of the negotiability of a warrant, in the section of Corpus Juris mentioned above it is said: “It is not, however, a negotiable instrument in the sense of the law merchant so as to shut out as against a bona fide purchaser .inquiries as to its validity or preclude defenses or set-offs which could be asserted as against the original payee. * * * As against the state the assignee acquires no greater rights than the party to whom the warrant was originally issued.”

From the section of Texas Jurisprudence mentioned, the following is quoted: “While warrants are in the ordinary form of commercial paper,- they do not possess the qualities of such paper; they are not negotiable instruments.”

See Scott County v. Advance-Rumley Thresher Company (C. C. A.) 288 F. 739, 36 A. L. R. 937, in the syllabus of which it is said: “One taking a county warrant takes it subject to defenses that might be interposed were it held by the original payee.”

Many authorities are cited, including 2 R. C. L. 629; 1 R. C. L. Supp. 596; 4 R. C. L. Supp. 121.

At page 951 of the American Law Report, vol. 36, supra, are collated a number of decisions of this and other states affirming the principle last stated.

Predicated upon the foregoing remarks and authorities, the opinion is entertained that, if Speer, with knowledge of the fact that there was a mistake in the issuance of the warrant to the extent of $1,000, concealed the vice in the warrant and sold it to the bank with fraudulent intent and acquired the funds of the bank, he apparently might have been prosecuted for swindling at the place where the swindling occurred, In the transaction as it appears here, however, it seems that, as Speer, knowing the vice in the warrant, withheld such knowledge from the bank, and used the managers of the bank and their correspondents as innocent agents to fraudulently obtain from the treasurer of the state a thousand dollars, his offense is theft, with the venue at Austin, where the money was fraudulently acquired for his benefit.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant urges that the court below erred in his charge in that part of his definition of theft which says: “If the taking, though originally lawful and with the consent of the owner, was obtained with an intent to deprive the owner of the value thereof and to appropriate the said property to the use and benefit of the person taking, and same is so appropriated, the offense of theft' is complete.” As wo understand it, appellant’s position is that, since he came into possession, by mistake, but without illegal act on his part — of a warrant which called for $1,000 more than he was entitled to, which warrant was thereafter the means of obtaining a thousand dollars from the state — and since his indictment was for theft not of the warrant, but of the money, the above definition would not be applicable to the facts, and would be confusing to the jury, and an attempt to apply a charge submitting such theory would necessarily be on the weight of the evidence. There can be no question of the correctness of the abstract proposition of law contained in the definition above set forth, nor do we think there can be any as to its application to the facts in this case when we keep' before us the idea that the subject of the theft charged here is not the warrant, but $1,000 in money, and that in applying the law to the facts the jury were told in the charge that, if appellant obtained from an agent of the state a warrant which called for $1,000 in money in excess of the amount due appellant, and that he deposited said warrant in a hank for the purpose of getting from the state said thousand dollars, and that as a result of his act such thousand dollars was gotten from the state in Travis county, Tex., and so appropriated, appellant would be guilty of theft, etc. We do not think it possible for the jury to have been misled by the definition complained of, nor that it burdened the record with any matter adverse to appellant as was the situation in Bow’s Case, 34 Tex. Cr. R. 481, 31 S. W. 170, cited by appellant.

Nor do we think complaint of paragraph 2 of the charge, to which we have just referred, well taken. Certainly there is nothing therein which would cause the jury to convict for the mere getting of the warrant, even though same called for an amount in excess of that due appellant. Hie court in his charge, after setting out what he deemed to be a statement concerning the receipt of the warrant, further said: “If you further find * * * that upon the receipt of such warrant * * * Speer deposited it * * * for the purpose of obtaining said $1,000.00 excess and with the intent of appropriating the same * * * and as a result of such deposit did take, or cause to be taken, from the State of Texas the $1,000.00 excess,” etc.

Further criticizing paragraph 2 of said charge, and our statement in the original opinion that, “If appellant formed the intent to appropriate the money at the time he used tlie bank as an innocent agent for obtaining the money * * * the act becomes criminal under the terms of article 1413, P. C.,” appellant urges the law to be that, when one receives some check, warrant, etc., calling for more than is due him, and entertains no intent at the time of such reception to appropriate same, he would not be guilty of theft, and further urges that the case of Hedge v. State, 89 Tex. Cr. R. 236, 229 S. W. 862, 865, 14 A. L. R. 889, sustains this position. The case mentioned is misapprehended by appellant. We observe that in any ease one who receives a check, warrant, etc., calling for more than is due, becomes punishable for the theft of the excess when he has appropriated same in pursuance of an intent to deprive the owner, etc. If such person be unaware when the check first reaches him, as in the illustration used in the Hedge Case, supra, that there is any excess in its amount, the keeping of the check in liis pocket for any length of time before cashing or depositing same, or becoming aware of such excess, would not amount to an appropriation, in the absence of other testimony of such intent, but such person would be guilty when, having discovered the mistake, he appropriates the excess. It seems correct, as contended by appellant, that the intent to deprive would ordinarily be inferred when deposit is made, if made by the payee in person, of the whole amount, including the excess, but the actual appropriation of the state’s money in a ease like this could not take place until such money has been paid out by the state.

Appellant did not testify, or offer any testimony, suggesting 'that he did not know of the excess at the time he deposited the warrant in question in the bank, and thus set in motion the chain of events which led to the getting of the thousand dollars excess from the state. There was some such suggestion like this in the Hedge Case, supra, in which we said: “We think at the time appellant acquired said money if his acquisition was accompanied wtih the intent at the time to appropriate said excess, it made him guilty of theft of the money.” It will be noted that what we said had reference to the acquisition of the money — not the check.

We do not find any exception to the charge in this case for failure to tell the jury that appellant must have known that the warrant received contained an amount in excess of what was due him before any criminality would appear. Probably appellant did not take such exception because of the fact that it was in evidence that his claim and account sent from his office to the comptroller’s office, upon which the warrant was issued, was for $1,626.95 — and the warrant which came in response was for $2,626.95, and this latter amount was deposited by appellant in a bank soon afterward.

We have carefully considered the well-prepared motion and argument in support thereof, but think the case was properly disposed óf originally.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: LATTIMOBE, Judge.

license: Public Domain

text:
    RICE v. STATE.
    No. 15581.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Rehearing Denied March 22, 1933.

      B. E. Eubank, of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMOBE, Judge.

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

The facts in this case are brief. A banker testified that appellant wanted to borrow some money from him and was informed that the money would be lent if the signature of appellant’s father-in-law, Mr. A. L. Gunter, could be obtained to the note. When the note was brought back to the bank the name of Mr. Gunter appeared on same in addition to that of appellant. The note was not paid at maturity. Suit was brought upon same.

Mr. A. L. Gunter testified that he did not sign his name on the note shown him, being the note in question, and that he did not authorize any one else to sign his name to it. He further testified that he knew nothing about the note until he came to the bank a year or more after same was given. He testified that on one occasion he had signed a note for appellant at the Lamar State Bank; that there was no suit brought on that note; that appellant took care of it himself. He further affirmed that he never at any time received a letter from appellant inclosing the alleged forged note and requesting his signature thereon. On cross-examination he was asked if he did not state to his daughter, appellant’s wife, that the signature on the note looked like his signature. To this he replied that it did favor it, that it looked somewhat like his signature, but it was not his. Appellant took the witness stand and testified that on the day he made the arrangement with the banker first mentioned herein he received from him a note and mailed it to Mr. Gunter, got it back the next day, and took it to the bank the following day. He said the signature of Mr. Gunter was on the note when it came back. He affirmed that Mr. Gunter had signed several notes for him at the Lamar State Bank, but that the last one so signed was seven or eight years prior to the instant transaction. Appellant introduced one witness who testified to appellant’s good reputation as a peaceable, law-abiding citizen.

We find in the transcript four bills of exception. The first complains of the refusal of appellant’s application for continuance based on the absence of his wife. The expected testimony from appellant’s wife, as set up in the application, does not appear to us to be of materiality such as would call for a new trial. Mr. Gunter himself testified that the name written on the alleged forged note looked much like his signature, and that of his daughter to the same effect, could not have helped appellant.’ Nor would her further testimony that she was acquainted with the signature of her father, and that the name A. L. Gunter signed to the alleged forged note resembled the signature of her father, add any weight to that fact, inasmuch as it was admitted by Mr. Gunter.

Bill of exception No. 2 complains of a variance between the instrument pleaded and that offered in evidence. The alleged variance consisted of certain figures in the corner of the note which appear to have been placed there by the bank after the note was returned to it signed. Such variance is wholly immaterial.

Bill of exception No. 3 sets up that appellant had discovered two witnesses who would testify that the signature on the note in question, and the signature of Mr. Gunter on a plea of non est factum filed by him when sued, bore some resemblance. We fail to see how this testimony would add anything to the admission of Mr. Gunter 'which was to the same effect and was before the jury.

•In the same bill of exception appears complaint based on the refusal of the court to grant a new trial in order that appellant might procure the newly discovered testimony of Morris Eleming, whose affidavit is attached to and made a part of the bill. Mr. Fleming says in said affidavit that a number of years before, appellant executed a note to the Lamar State Bank for which witness worked at that time, and that Mr. Gunter signed the note as surety; that part payments were made on the note from time to time and the note was renewed; that when the last renewal note came due the signature of Mr. Gunter was on the note, and was the same signature as had been on the other notes. He affirms that Mr. Gunter came to his desk and discussed with him the signature to the last renewal, and denied same being his signature and said it was a forgery, and that the bank would have to sue on the note. Witness said he told Mr. Gunter they would try the issue out as to whether or not he signed the note, but before suit was filed this appellant came in and paid the note off. We cannot agree with appellant that this testimony was either admissible or material. Appellant was not offering to prove by Mr. Fleming that he had examined the signature on the alleged forged note in question here, and that in his judgment it was that of Mr. Gunter, but was merely seeking to prove that six or seven years prior to the time of the instant trial appellant carried a note in the bank with which witness was connected, which, according to witness, had been signed by Mr. Gunter. Witness did not affirm that he ever saw Mr. Gunter sign any note, or that Mr. Gunter ever admitted to him that he signed any note, but on the contrary testified that the first time lie saw Mr. Gunter in connection with the note Mr. Gunter denied the signature. Evidence of separate, disconnected, though similar transactions, would hardly be admissible to show that Gunter signed the note in question. We do not think the facts before the trial court, in connection with the motion for new trial, evidence any abuse of discretion of the court in the matter of the refusal to grant a new trial on the ground of newly discovered evidence.

The judgment will be affirmed.


author: CHRISTIAN, Judge.

text:
    NORWOOD v. STATE.
    No. 15658.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Oscar Callaway, of Comanche, for appellant;
    Lloyd W. Davidson, State’s Atty,, of Austin, for the State.
   CHRISTIAN, Judge.

The offense is rape; the punishment, confinement in the penitentiary for 9 years.

It was charged in the indictment, in substance, that appellant had carnal knowledge of Ruby Mae Davis, a female- under the age of 18 years, she not being the wife of appellant. The testimony in support of the charge is substantially the same as that disclosed in the opinion on a former' appeal. See Norwood v. State (Tex. Cr. App.) 48 S.W.(2d) 270.

Appellant and prosecutrix were cousins. At the time of the alleged offense, prosecutrix was approximately 16 years of age, and appellant, 19. Prosecutrix testified, in substance, as follows: She, appellant, and her small brother were working in her father's field. Appellant sent her brother to the house for some water, and while he was gone she and appellant had an act of sexual intercourse, with her consent. She did not report the matter to her parents. She gave birth to a baby, which died before a physician arrived. Prior to the birth of the child, her mother had asked her if she was pregnant. She had answered in the negative, although she was aware of her condition. The one act of intercourse with appellant was her only transgression. Appellant made no effort to have further acts of intercourse with her.

Appellant admitted that he was in the field with prosecutrix, but denied that he had an act of sexual intercourse with her. He declared that he looked upon prosecutrix as a sister.

Many witnesses testified that appellant’s general reputation for being peaceable and law-abiding was good. The state made no effort to rebut the testimony of these witnesses.

In his motion for a new trial, appellant alleged that he was deprived of a trial by an impartial jury. Without setting out the specific allegations embraced in the motion, it is observed that bill of exception Ño. 3 shows that one of the jurors who sat in appellant’s trial was asked “if anything had. ever occurred iq his family, or, if anything had ever come to him personally of the kind and character charged to the defendant in this case that might in any way whatsoever influence and prejudice him ii accepted as a juror.” In answer to the question the juror said that “nothing of this kind or character had ever come to him directly or to his family so that it might in any way whatsoever influence him if accepted as a juror.” Appellant relied upon the statement of the juror. Otherwise he would have excused him. Upon the first ballot as to the penalty, the juror in question voted for 25 years. Some of the jury stood for 5 years. Thereafter the juror in question and others voted for 10 years, while others on the jury stood for 5 years. Finally the juror stated he would agree to 9 years, but would not go under that number. The other jurors would have assessed a lower penalty had it not been for the attitude of the juror. They finally agreed to assess the penalty at 9 years. On the hearing of the motion for new trial, the juror admitted that when he was 12 or 13 years of age a “sexual outrage” occurred in his family. The juror’s brother testified that their sister was involved. The juror declared that he did not have the matter in mind when he answered the question propounded by appellant’s counsel. He testified that he had no prejudice at the time he entered the jury box. He stated, however, that he was determined that he would not assess a lower penalty than 9 years, and that he insisted that he would go no lower.

In the former trial, in addition to the testimony embraced in the present record, there were some inflammatory matters relative to the details of the birth and death of the baby of prosecutrix. ' On the present trial such details, which had been held improper by this court, were not introduced. Notwithstanding the inflammatory matter referred to was before the jury on the former trial, appellant received the minimum penalty of 5 years. In the present case he received 9 years. That this penalty was due to the fact that the juror in question served on the jury is made plain by the testimony heard on the motion for new trial. It appears that appellant used due diligence. He was misled by the responses of the juror. Had the juror revealed the fact that his sister had suffered an experience similar to that of prosecutrix, appellant would not have accepted him. Relying upon the answer of the juror, appellant was deprived of his right to peremptorily challenge him. In the state of the record, we are unable to reach the conclusion that the ti’ial court was warranted in overruling the motion for a new trial.

In Bolt v. State, 112 Tex. Cr. R. 267, 16 S.W.(2d) 235, which was a liquor case, it developed on the motion for new trial that one of the jurors had, prior to the appellant’s trial, aided the officers in raiding some parties who had been engaged in violating the liquor laws. One of the parties arrested had been placed in the custody of this juror, where he remained until he made bond. Neither the appellant nor his counsel knew of this fact until after the verdict had been returned. The juror had been asked by the appellant’s counsel on voir dire examination if he had at any time, as a witness or otherwise, been in any manner interested in the prosecution of any person for a violation of the liquor laws of the state. He gave a negative answer. The conclusion was reached by this court that, under the circumstances, the appellant was deprived of an impartial jury.

In the case of Adams v. State, 92 Tex. Cr. R. 264, 243 S. W. 474, 475, it appeared that a juror had knowledge that the accused had been convicted of an offense in another place. Although questioned by counsel for the accused touching his knowledge of the parties and of any fact which might militate against the accused, he suppressed the facts he knew and misled the accused. In reaching the conclusion that the appellant had been deprived of a trial by an impartial jury, Presiding Judge Morrow said: “The Legislature is commanded to pass laws making effective the provision of the Constitution that the right of trial by jury shall remain inviolate. Following the procedure enacted in obedience to this constitutional provision, the appellant examined the juror on his voir dire under the eye of, the court and under oath, and the juror failed to disclose the knowledge which he then possessed that the appellant, in a different city, on a former occasion, had been convicted of an offense like that for which he was' to be tried. It has often been held that, when a partial juror or biased juror or prejudiced juror is selected without fault or lack of diligence on the part of the accused or his counsel, they acting in good faith upon his responses to questions upon his voir dire and having no knowledge of their inaccuracy, there exists good ground for a new trial. Long v. State, 10 Tex. App. 198; Sewell v. State, 15 Tex. App. 62; Graham v. State, 28 Tex. App. 582, 13 S. W. 1010; McWilliams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970. We think the juror’s conduct characterizes him as other than an impartial juror. Long v. State, 32 Tex. Cr. R. 140, 145, 22 S. W. 409; Long v. State, 10 Tex. App. 198; Hughes v. State (Tex. Cr. App.) 60 S. W. 563; Hopkins v. State (Tex. Cr. App.) 68 S. W. 986.

“We think that the record reveals that the appellant was without laches or lack of diligence and was misled by the response of the juror into selecting him, and that, he not being an impartial juror, it was incumbent upon the trial court to grant the motion for new trial. The jury acts as a unit, and the disqualification or prejudice of one of its members is sufficient, upon motion for new trial, to vitiate the verdict. McWilliams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970; Long v. State, 32 Tex. Cr. R. 140, 145, 22 S. W. 409; Graham v. State, 28 Tex. App. 583, 13 S. W. 1010; Ruling Case Law, vol. 16, p. 312, § 120. The fault was not cured by the verdict, which assessed against the appellant the extreme penalty allowed by law for the offense with which he was charged.”

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:
    BECKHAM v. STATE.
    No. 15611.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Early & Johnson, of Brownwood, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is possession of a still for the manufacture of intoxicating liquor; the punishment, confinement in the penitentiary for one year and six months.

Officers waited near a still which was located on a place adjoining appellant’s farm. In a few minutes Ered Sullivan came to the still. A little later appellant appeared. The officers testified that appellant had some wood in his arms, a part of which he used to build a fire under the still. One of the officers testified that appellant poured some mash into the still, and that he also stirred the mash in one of the barrels. When the officers made their presence known, appellant ran away. It appears that Sullivan stayed at appellant's home. Appellant did not own or control the property on which the still was located.

. Sullivan testified that the still belonged to him, and that appellant had no interest in it and had not aided him in any way in manufacturing intoxicating liquor. In short, his testimony, if believed by the jury, would have exonerated appellant. Appellant declared that he went to the still for the purpose of getting some whisky. He denied that he had any interest in the still and said that he was not in any way connected with Sullivan in the possession of the still or the manufacture of whisky. He admitted that he might have placed a stick of wood in the fire, but denied that he placed any mash in the still. It appears that Hershel Ives was also connected in some manner with the still, Sullivan’s testimony being to the effect that Ives had helped him run some of the whisky, in consideration of receiving a part of it. Sullivan testified that appellant had come with Ives for the purpose of getting a gallon of whisky.

Bills of exception 17 and 18 will be considered together. As disclosed by bill of exception 17, appellant lived on a place adjoining the property where the still was located. There was no evidence that any intoxicating, liquor had ever been seen at appellant’s home or that he had ever stored any intoxicating liquor there. There was no fact in evidence from which the inference might be drawn. In his closing argument, the district attorney used language as follows: “The truth is every gallon of whisky made at that still was stored in Tol Beckham’s (appellant’s) house.”

Appellant timely and properly objected to the argument, and the court instructed the jury not to consider it for any purpose. Further, appellant’s written requested instruction on the subject was given to the jury.

In bill of exception No. 18 it is shown there was no proof that appellant had ever been convicted of a felony in this or any other state. His general reputation for being peaceable and law-abiding was not in issue. He did not file an application for a suspended sentence, although there was nothing in the evidence showing that he could not have filed such application had he so desired. In his closing argument to the jury, the district attorney used language as follows: “The defendant in this ease did not file an application for a suspended sentence and I could tell you why he did not, but I won’t.”

This argument was timely and properly objected to and the court instructed the jury not to consider it, and gave appellant’s written instruction on the subject.

It is clear that the remarks embraced in the first bill of exception constitute a statement of fact by the district attorney. Testimony to the effect that appellant was storing whisky in his house would have greatly strengthened the state’s case. In his remarks, the district attorney, although un-sworn as a witness, supplied testimony obviously calculated to destroy appellant’s defense. There being nothing in the evidence to support the statement, it was clearly unwarranted.

As to the second bill of exception, appellant could not have received a suspended sentence if he had theretofore been convicted of a felony in this or in any other state. The jury did not know from the evidence in the case why appellant had not filed an application for a suspended sentence. The district attorney evidently knew for he told the jury that he did. It is true that he’ stated to the jury that he would not tell them. Nevertheless. his statement was susceptible of 'the construction that appellant had theretofore been convicted of a felony-and was precluded by the statute from receiving a suspended sentence. In any event, it cannot he said that •the statement of the district attorney might not have led the jury to the conclusion that there had been some misconduct on the part of appellant which prevented him from seeking a suspended sentence.

The issue of guilt was closely contested. Appellant received six months above the minimum penalty. Considering the two bills of exception together, we are unable to reach the conclusion that the withdrawal of the remarks of the district attorney saved appellant from harm. It is the rule that, if the argument is of such nature as to be obviously hurtful and prejudicial, it will call for reversal notwithstanding the fact the court instructed the jury to disregard such argument. Branch’s Annotated Penal Code, § 362; Miller v. State, 117 Tex. Cr. R. 247, 36 S.W.(2d) 158; Smith v. State, 44 Tex. Cr. R. 137, 68 S. W. 995, 100 Am. St. Rep. 849; McKinley v. State, 52 Tex. Cr. R. 182, 106 S. W. 342; Boyd v. State, 108 Tex. Cr. R. 221, 299 S. W. 645.

The judgment is reversed and the cause remanded.

PER CURIAM.

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


author: CALHOUN, Judge.

text:
    MELTON v. STATE.
    No. 15314.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Baker & Baker and Critz & Woodward, all of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

Felony theft is the offense; punishment, three years in the penitentiary.

Appellant was indicted as a principal for the theft of one thousand feet of ten-inch' pipe. The evidence showed that the pipe was worth several hundred dollars. The pipe belonged to the Reiter-Foster Oil Corporation, of which one Joe McIntosh had charge, and was taken without their consent or knowledge. It is necessary for us to make a sufficient statement of the evidence to illustrate the point discussed. Appellant was the owner of three trucks. For some time prior to the date of the alleged offense, these trucks were in Longview in the East Texas oil field. The state’s witness, W. G. Carriger, was in charge of the trucks, and had supervision thereof to the extent of doing general, as well as contract, hauling. A few days prior to the date of the alleged offense, Carriger received a long-distance telephone call from one Milton Thompson, a nephew of the appellant, directing Carriger to take the trucks to Hallas and there report to the appellant at the Hilton Hotel. Carriger testified that he-followed these instructions, and, when he reached Hallas, he went to the Hilton Hotel, and there met the appellant, who told him they were going hack up, near Oplin to get some pipe, to which remark the witness replied, “What you mean, go back up there to get some pipe, what are you trying to do. We are going to get in the penitentiary doing that,” to which he testified the appellant replied, “Well, I am paying you and when I send you to get anything you go ahead and don’t ask any questions. I have made arrangements for the pipe; I paid for it.” The witness Carriger further testified that at the time he knew he was going to steal the pipe. The evidence further showed that, together with other parties, Carriger went to Oplin out to what was known as the Johnson well, and there loaded about eleven hundred feet of ten-inch pipe on the trucks. He further testified that, before they got to the well from which the pipe was taken, they met Milton Thompson and Andy Craig with two other trucks. After loading the trucks, they went to Hallas, Tex., after traveling approximately a day and a night. When they arrived at Balias, they parked their trucks near the place of the Indiana Truck Company, and the pipe was carried to the Standard Pipe & Supply Company and there unloaded, and the appellant was there at the time. The pipe was sold to the said Standard Pipe & Supply Company by the appellant; that they received at the time of the sale a check for $140, and two days thereafter received a check for the balance of $700. Both of the checks were made payable to W. E. Carter and were indorsed' by him.

The young lady who issued the checks did-not identify the payee of the checks, and could not testify as to whom the checks were delivered. The witness Carriger said that the appellant got the checks, but there was no other evidénee to that effect.

The effect of the testimony of the witness Satterwhite was that he was one of the drivers of the trucks that hauled the pipe. Car-riger employed him to do this work, and the appellant accompanied them to the yard where the pipe was sold.

The state offered in evidence the testimony of the witness Craig, who testified that he was one of the drivers of the two trucks. He met the trucks of the appellant near Coleman, and he was driving his own truck, and his employment or connection with the transaction was by virtue of direction on the part of Milton Thompson. He denied that the appellant had ever paid him for making the trip or for the use of his truck.

Appellant, testifying in his own behalf, denied any guilty knowledge or connection with the offense, and denied that he participated in the sale of the pipe or that he received the checks therefor, and the witness Carriger had charge of his truck and had been doing promiscuous and independent hauling without direction or knowledge on the part of the appellant; that, if he committed the offense by using the appellant’s truck, it was without his (appellant’s) knowledge or consent.

Appellant advances the contention that his conviction as a principal was unauthorized and not sustained by the evidence, for the reason that the evidence showed that his connection, if any, with the offense was that of an accomplice and not as a principal. The uncontradicted evidence showed that the appellant was not present at the time the pipe was stolen. There was no evidence that appellant was doing anything at the time the offense was committed in aid of the common design. There was no evidence to show that the witness Carriger, who testified that the appellant told him to go get the pipe, was an innocent agent of the appellant, because he himself testified that he knew the pipe was to be stolen at the time he claimed that the appellant told him to take the trucks and get it. We quote from the opinion of Presiding Judge Morrow in the case of Cisneros v. State, 113 Tex. Cr. R. 352, 22 S.W.(2d) 661, 662: “An accomplice is one who is not present at the commission of the offense, but, before the act is done, advises, commands, or encourages another to commit the offense, or one who prepares arms or aid of any kind, prior to the commission of an offense, for the purpose of assisting the principal in the execution of the same. Article 70, Pen. Code 1925. The prime distinction between a principal and an accomplice, as defined in title 3, chapters 1 and 2, Pen. Code 1925 (articles 65-76), is that the law requires a principal to be present at the commission of the offense, while one may be an accomplice without his. presence.”

We quote from the case of Stringfellow v. State, 111 Tex. Cr. R. 504, 14 S.W.(2d) 1031, 1032: “The rule has been stated as follows: ‘If the defendant on trial was not present when the offense was committed and was doing nothing in aid of the common design when the offense was committed, he would not be a principal although the facts support the theory that he was both an accomplice and accessory, or a receiver of stolen property, or either.’ Bean v. State, 17 Tex. App. 60; Silvas v. State, 71 Tex. Cr. R. 213, 159 S. W. 223; Branch’s P. C. p. 348.”

Among other cases on the subject, see Benavides v. State, 85 Tex. Cr. R. 375, 212 S. W. 658; Williams v. State, 82 Tex. Cr. R. 215, 199 S. W. 296; Smith v. State, 192 Tex. Cr. R. 139, 277 S. W. 666; Burow v. State, 85 Tex. Cr. R. 133, 210 S. W. 805; Ross v. State, 104 Tex. Cr. R. 601, 286 S. W. 221.

If any offense was committed by the appellant, he is guilty as an accomplice, and under no phase of the evidence do we (believe that he could be held as a principal. We think the court erred in not so treating the case and instructing the jury to that effect.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

PER CURIAM.

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


text:
    BLACKSHEAR v. STATE.
    No. 15649.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    J. R. Warren, Z. J. Spruiell, Jr., and D. M. Maynor, all of Tyler, for appellant.
    Nat Gentry, Jr., Co. Atty., of Tyler, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, death.

Viola Brimberry, deceased, and her husband, George Brimberry, lived in a log cabin of two rooms in the East Texas oil fields. On March 21, 1982, deceased was found lying on the floor in a pool of blood. In her left hand was a magazine, and in right hand was a pencil. Written on the magazine were the words “A negro kill me.” Near the body was a smoothing iron. George Brimberry was found dead 35 or 40 feet from the house. There were some tracks about 100 feet from his body. These tracks showed to have been made by badly worn shoes which made a peculiar print on the ground. There was a place on the left-hand side of the left shoe that was run over, and there was a small place on the shoe that made each track look like the wearer of the shoe had stepped on a small weed. The tracks led in the direction of the Arp-Henderson highway. Following the tracks, officers found a wrench which was covered with sand and dirt. After following the tracks to the highway, the officers went to Lewistown, where appellant’s brother lived. The officers found appellant in his 'brother’s home. He was lying on a pallet asleep. Arousing appellant, the officers found that he had on a shirt, a pair of trousers, and a pair of shoes. The shoes and clothing had splotches of blood on them. The shoes appellant was wearing fitted the tracks the officers had found. The officers testified that the shoes made the same size and kind of tracks they had traced from George Brim-berry’s body to the highway. The wrench the officers had discovered had hair and blood on it.

In his written statement, appellant declared that he went to the home of the Brim-berrys for the purpose of committing robbery ; that he enticed George Brimberry away from the cabin and killed him by hitting him over the head with an iron wrench; that he then returned to the cabin and killed deceased by striking her over the head with a smoothing iron; that he took money from the parties amounting to $17; that he secured an old magazine and wrote Upon it “Á. negro kill me,” and placed the magazine in the left hand of deceased, and the pencil in her right hand. Further, it was stated in the confession that he (appellant) had become infatuated with a married woman, with whom he had lived for some time; that he had left her, but she had insisted that he come back to her; that he had no money, and committed the murder and robbery for the purpose of securing money.

Appellant did not testify in his own behalf’. Some of his witnesses testified that' the splotches on the clothing and shoes resulted from the bleeding of appellant’s nose. Many witnesses for appellant testified that, in their opinion, he was insane. Other witnesses testified that appellant had made several efforts to take his own life. A mental expert expressed the opinion that appellant was mentally deficient, saying that in his opinion appellant was insane. The state made no effort to controvert the testimony touching appellant’s mental condition.

Appellant assailed the confession on the ground that it was involuntary. It appears that appellant had been confined in a dark cell for several days before he made a statement. The only ventilation in the cell came from a small crack under the door. There was no light in the cell. There were no chairs in it, and no bed. A mattress and blanket were on the floor. The cell was in the basement under the steps of the courthouse. There was no way by which appellant could get a drink of water unless it was carried to him by the jailer. There was no commode, and, in order to answer a call of nature, one had to be carried from the cell. One of the officers said: “I suppose you would call it a dungeon. That is what it looks like to me. They have not been two in there since I ¡have been in here. Yes, this man went through solitary confinement for several days and nights. To get water and assistance for calls of nature, the only way he can get assistance is to get in touch with the jailer upstairs with the keys. They work one jailer in the day time and one at night. That building-has four stories. The jailer has to attend the whole jail.”

After appellant had been confined in this cell for several days and nights, he made a written statement. The officer taking the statement testified that they had to talk to appellant .for two hours before he would make a statement. However, he said he did not “put any pressure” on appellant, and that he told appellant he did not have to make a statement. This officer said: “We stayed there talking with him two hours before he was ready to make it. He would not tell it for some time. Yes, he told us time and again he was innocent. I did not believe it. I don’t know what Mr. Turner believed. We stayed there for two hours yes, until he told us he would make a statement.” Based on the testimony adduced from the officers, the court submitted to the jury the issue as to whether appellant’s confession was voluntary.

The court declined to approve appellant’s bill of exception No. 12, with the statement, over the court’s signature, that the bill was refused for the reason that it was incorrect. No bill by the court appears in the record. The procedure to be followed by the trial judge when a bill of exception is prepared and presented to him within the time allowed by law for filing it is provided J>y statute. Where a bill is prepared by the appellant and presented to the trial judge in time, it is his duty, if he does not agree with the correctness of the bill, to file with it a bill which presents the true ’ record. This affords the appellant the opportunity to prepare and file a bystanders’ bill. When the trial judge fails to adopt such procedure and files a bill marked “refused,” the appellant is entitled to either have the bill considered or have a reversal because it is denied him. It has been the practice of this court under such circumstances to consider the bill. See Rosa v. State, 86 Tex. Cr. R. 646, 218 S. W. 1056, and authorities cited.

Considering the bill of exception, it appears therefrom that officers found in one hand of deceased a magazine on which was written the words “A negro kill me.” In the other hand of deceased they found a lead pencil. An official of Smith county went to the jail while appellant was under arrest and in custody, and, without warning appellant, had appellant write several specimens of his signature. There was also introduced in evidence appellant’s written statement, in which he confessed his guilt. The prosecuting attorney had in his possession a poem written iii longhand, entitled “Twenty One Years.” This poem was never introduced in evidence and the record is silent as to who wrote it or as to how the state obtained possession of it. The state called and used as a witness one Weaver, a handwriting expert. This witness examined the magazine found in the hand of deceased, the signature to appellant’s written statement, the specimens of handwriting taken from appellant without warning, and the poem entitled “Twenty One Years.” After his examination of these writings, he testified that the same person who wrote the words on the magazine, “A negro kill me,” signed appellant’s written statement, wrote the poem entitled “Twenty One Years,” and signed the specimens of handwriting obtained from appellant while he was in jail. The bill of exception manifests error. In securing the specimens of handwriting from appellant, there was a violation of the provisions of article 727, C. C. P., which forbids the use of a confession against an accused unless voluntarily made in writing and signed, after a proper warning. Kennison v. State, 97 Tex. Cr. R. 154, 260 S. W. 174. The voluntary character of appellant’s confession was attacked. If the jury had reached the conclusion that it was involuntary, they were not warranted in considering it for any purpose. Eliminating the confession, the state would have relied entirely upon circumstantial evidence. It was not shown who wrote the poem “Twenty One Years,” and it was not introduced in evidence. The proof touching the specimens of handwriting obtained in the jail might alone have driven the jury to the conclusion that appellant wrote the words on the magazine found in deceased’s hand. The extreme penalty having been assessed, we would not feel warranted in speculating as to tbe harmful effect of the illegal testimony.

The judgment is reversed, and the cause remanded.

PER CURIAM..

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


author: LATTIMORE, Judge.

text:
    SMITH v. STATE.
    No. 14927.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    V. L. Shurtleff, of Tyler, for appellant,
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

We have spent much time on this case, but have become convinced that it must be reversed, because the officers failed to give testimony which they probably could have given, showing the legality of the arrest of appellant prior to the finding on his person of whisky. Article 212, C. C. P., provides for the arrest of persons in certain cases without warrant, and article 215, C. C. P. authorizes an arrest without warrant by an officer to whom representations have been made by a credible person that a felony has been committed and the offender is about to escape. The facts in this case show that Stribling (house detective for the Blackstone Hotel in Tyler, Tex.) saw appellant deliver whisky to room 404 of said hotel on the night before his arrest in this case. Stribling talked to Wade, a policeman of Tyler. Wade had information that appellant could be communicated with over a private phone whose number could be gotten from a Mrs. Young. He called Mrs. Young and she gave him appellant’s number as 2777, which he called and asked for Smith (appellant). The party answering said he was Smith. Wade said he knew appellant and had talked to him, and that in his best judgment the voice at the other end of the telephonic communication was that of appellant. He asked the party representing himself to be Smith to bring a couple of bottles of whisky to room 404 at said hotel.

Evidently Wade then went at once back to the hotel, and must have told Stribling or Elliott, another policeman, of hi§ conversation with Smith, and further that Smith was going to bring the whisky to the hotel — though this record fails to set out either in the preliminary hearing had before the court alone in order that he might be satisfied as to the admissibility of the testimony concerning the arrest and finding of the whisky, or in the presence of the jury, that Wade so told either Stribling or Elliott. The facts do, however, further show that when Wade got back to the hotel he went to the mezzanine floor while the other officers remained on the ground floor of said hotel. In a few minutes appellant appeared at the hotel, and seeing the officers started out as though to escape, whereupon they arrested him and upon search found on his pei’son two bottles of whisky and in .his car other quantities of the same liquid. It would not seem difficult to have filled in these gaps so as to make plain in the preliminary hearing, out of the presence of the jury, the fact that appellant’s arrest was upon information communicated to the arresting officer by a credible person of the fact that appellant, if he came to said hotel, wasl transporting intoxicating liquor.

It is to be regretted that in the preliminary hearing the court was not apprised of the “information from a credible person that a felony had been committed, or was about to be committed,” so that such officer’s testimony as to the fact that appellant was about to make his escape when arrested would satisfy the demand of the law and make the arrest legal, and consequently the testimony as to what appellant had on his person admissible.

In the condition of the record we are constrained to hold that the requirements of the law were not met, and that the judgment must be reversed and remanded, and it is so ordered.


author: MORROW, Presiding Judge.

text:
    ARGON v. STATE.
    No. 15749.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    Fletcher S. Jones, of Beaumont, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

On the 21st of May, 1929, the appellant was convicted in Hardin county and a penalty assessed against him at confinement in the penitentiary for five years. He was given, a suspended sentence by the verdict of the jury. On the 1st day of September, 1932, there was filed in Hardin county a motion to revoke the suspension of the sentence, which motion was granted over the objection of the appellant. It appears that subsequently, on the 9th day of April, 1930, the appellant was convicted in Harris county of a felony theft. On the 12th day of May, 1931, the-appellant was given a general parole by the proclamation of the Governor. His term expired and final discharge was given him by the prison authorities on November 18,1931. ' ''

Reliance is had upon the case of Sanders v. State, 108 Tex. Cr. R. 467, 1 S.W.(2d) 901, 57 A. L. R. 440, in which the accused was convicted of a felony in 1922 and a five-year suspended sentence was given him. In 1927, he was convicted of another felony. In the latter case, he was given a full pardon by Governor Ferguson. It was the position taken by Sanders that the full pardon in the subsequent case having been granted, the case could not be made the basis for setting aside the suspended sentence ifi the previous case. This conviction was suspended upon the fact that the full pardon granted in the second case was an insurmountable obstacle to using that case as a basis for the reopening of the previous case, as provided by article 779, O. O. P. 1925.

In the present appeal, no full pardon was granted, hut merely a parole carrying with it certain conditions, as follows: “Now, therefore, I, R. S. Sterling * * * do hereby grant unto the said A. G. Orbregon a general parole conditioned upon his good and lawful behavior. It is provided that he shall keep employed and be of actual assistance to his mother.”

A general parole does not possess the finality which is attached to a pardon. A parole is a release of a convict from imprisonment, on specified conditions to be observed by him, and a suspension of his sentence during the liberty thus granted. See Ex parte Ridley, 3 Okl. Cr. 350, 106 P. 549, 551, 26 L. R. A. (N. S.) 110. See, also, 5 Words and Phrases, Third Series, 817; Ex parte Mason, 29 Okl. Cr. 297, 233 P. 785; In re Eddinger, 236 Mich. 668, 211 N.W. 54. Numerous other cases are cited in the volume of Words & Phrases mentioned above.

It is the appellant’s contention that the verdict of the jury in the case in Hardin county is void for the reason that it contained the following language: “ * * * and assess his penalty at five (5) years in the ‘Pen’, and recommend the sentence be suspended,” and'that a judgment entered upon the sentence cannot be made the basis of the present prosecution. We are not able to bring ourselves in accord with the appellant’s contention that the use of the word “pen” vitiated the verdict. Many cases are cited in Branch’s Ann. Tex. P. C., pp. 332, 333, §§ 647, 648, which are regarded as being in opposition to the contention of the appellant.

The case of Keeller v. State, 4 Tex. App. 527, is relied upon. In that case, the opinion of the Court of Criminal Appeals, written by Judge Winkler, is as follows:

“The verdict is defective in that the punishment is assessed ‘at two years in the state penty.’ The judgment is defective in that it does not adjudge the accused guilty, and name the offense of which he is adjudged guilty. The proof is defective in that it tends rather to show that the money charged to have been misapplied was an advance payment made to the accused, rather than money of another, or others, intrusted to him.
“It is questionable whether the indictment is sufficient to admit such proof of the identity of the money as would warrant a conviction. For these errors, apparent on the face of the transcript, the judgment must be reversed and the cause remanded.’’

In the case of Evans v. State, 35 Tex. Cr. R. 487, 34 S. W. 285,’ it was indicated that the word “penty” might be regarded as an abbreviation for the word “penitentiary.” Other illustrative eases touching the designation of the place of imprisonment are the following:

In the case of McCoy v. State, 7 Tex. App. 379, the verdict contained the following language: “We, the jury, find the defendant guilty, and assess his punishment a five years in the State prisin.”

In the case of Taylor v. State, 5 Tex. App. 569, it was held that the word “guity” in the verdict was synonymous with “guilty.”

In the case of Krebs v. State, 3 Tex. App. 348, this court held that the following: “We, the juror, find the defendant guilty, and sess his punishment deth,” was an intelligible verdict in a murder case.

See, also, McMillan v. State, 7 Tex. App. 100; Hoy v. State, 11 Tex. App. 32; Garcia v. State, 48 Tex. Cr. R. 528, 89 S. W. 647, and many other cases cited in Branch’s Ann. Tex. P. O., p. 333, § 648.

, There appearing no error authorizing a reversal, the judgment is affirmed.


author: MOKKOW, Presiding Judge. LATTIMORE, Judge.

text:
    WHITLOCK v. STATE.
    No. 15578.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Rehearing Denied March 22, 1933.
    E. E. Eubank, of Paris, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MOKKOW, Presiding Judge.

The possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for two years.

Possessed of a search warrant to search the private dwelling of Mrs. Ida Prichard, located at 100 South Eighteenth street in the city of Paris, Lamar county, Tex,, Officers Biard, Collins, and Hargrove entered the residence occupied by Mrs. Prichard.

The testimony of one of the officers was to the effect that upon entering the bathroom he saw the appellant, Whitlock, with a half gallon of whisky in his hand, stooping over the commode. The officer took the whis-ky from the appellant. There were two more half gallons. The officer asked the appellant where the balance was, and he replied: “This is all I have got.” The officer got three half gallons of whisky, one from the arms of the appellant and two half gallons which were sitting in a carton down by the side of the commode. All of this whisky was gotten out of the bathroom of Mrs. Ida Prichard’s house.

Mrs. Ida Prichard testified that she and her boys lived at 100 South Eighteenth street, Paris, Tex., and had lived there for three years. She remembered the search of the premises by Biard, Oollins, and Har-grove and the finding of whisky. She had known Whitlock for about a year, and he had two rooms which she had rented to him for light housekeeping, namely, the two front rooms. The rest of the house was occupied by the witness. She had charge of the bathroom. It was used by others but was in her charge and possession. All she rented to the appellant was two rooms. The whisky found by the officers was not gotten out of the two rooms rented to the appellant but was gotten out of the bathroom. It seems that no search was made of these two rooms. At all events, no intoxicating liquor was found in them. The only intoxicating liquor that was found was in the personal possession of the appellant while he was in the bathroom attached to the premises.

The appellant having filed an application for a suspended sentence and no withdrawal thereof having been made, it was deemed proper for the court to sanction the statement of the state’s attorney in his address to the jury to the effect that the state expected to show that the appellant had been previously convicted of a felony and also to show that his reputation as a peaceable^ law-abiding citizen was bad. That a conviction of a felony in which a suspended sentence is awarded is a “conviction of a felony” within the meaning of the Suspended Sentence Law (article 776, O. C. P.) has been announced by this court in the case of Hill v. State, 92 Tex. Cr. R. 312, 243 S. W. 982; McBride v. State, 103 Tex. Cr. R. 583, 281 S. W. 1074. By entering the plea seeking a suspended sentence and submitting it to the court, notice was given to the state that it was the intention of the appellant to introduce evidence to show that he had not been convicted of a felony. Such notice would embrace any available means to combat the claim of the previous conviction. Under the plea it would have been competent for the appellant to prove that any judgment against him had been set aside, or he might have controverted his identity as the person against whom such judgment was rendered, or that there stood against him no such judgment of conviction. That an application for a suspended sentence puts in issue the general reputation of the accused as a peaceable law-abiding citizen and permits the state to make proof thereof is a part of the statute, article 778, O. O. P. See Vernon’s Ann. Tex. O. C. P. 1925, vol. 3, p. 164, note 4; Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 349, and many other cases; also Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360; Bryant v. State, 106 Tex. Cr. R. 442, 292 S. W. 882; Page v. State, 114 Tex. Cr. R. 431, 25 S.W.(2d) 840. In receiving evidence that the appellant had been convicted of a felony and given a suspended sentence and that his reputation as a law-abiding citizen was bad, the court was not in error. See Martoni v. State, supra, and Williamson v. State, supra. If the appellant had at the proper time withdrawn his plea for a suspended sentence, a different rule would have controlled. Harmon v. State, 119 Tex. Cr. R. 426, 45 S.W.(2d) 583.

It was specifically in evidence and not controverted that the bathroom was not a part of the premises rented to the appellant. The search of that part of the Prichard house which was not rented to the appellant was a matter of which he is not in a position to complain. Objection to the search of that part of the house which was under her control and which was not rented to the appellant was a privilege personal to Mrs. Prichard. See Craft v. State, 107 Tex. Cr. R. 130, 295 S. W. 617, and collation of authorities; also, Comeaux v. State, 118 Tex. Cr. R. 223, 42 S.W.(2d) 255. The result of the search was admissible in evidence against the appellant. See authorities cited above.

The case was submitted to the jury on the law of circumstantial evidence. -The statutory law with reference to prima facie evidence, as embraced in article 671, P. 0., was given to the jury. We think no error was committed in the refusal of the court to instruct the jury that there was an absence of proof that the appellant possessed intoxicating liquor for the purpose of sale.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, Judge.

We do not think the fact that appellant' was given the right to’ use the bathroom on the premises, of which the two rooms rented by him were a part, would give him any such right of control, care, and management as would justify this court in holding it a violation of law for the officers, under a search warrant directing them to' search the property of his landlady, to have searched said bathroom in which was found a quantity of liquor in the personal possession of appellant at the time of the search. Appellant did not testify to and assert his ownership or control of said bathroom, and Mrs. Prichard, his landlady, testified repeatedly that all she rented to this appellant was two rooms, into which she never entered, and with which she had nothing to do. She testified in regard to the bathroom as follows: “He had nothing to do with the bathroom at all, only going in and ont, he had the privilege of that just like the rest of us had, the other roomers.” In another place she testified: “I had charge and possession of the bathroom, they used it the same as I did, we both used it, but it was in my charge and possession. All I rented to Whitlock was the two rooms.”

The accused having requested the state’s attorney to make a statement in the presence of the jury, in advance of the trial, as to what the state expected to prove, we see no ground for his objection as to what appears in said statement so made in response to said request.

We believe the case w?is correctly decided in the former opinion, and the motion for rehearing will be overruled.


author: HAWKINS, Judge. BATTIMORE, Judge.

text:
    O’BURKE v. STATE.
    No. 15299.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Rehearing Denied March 29, 1933.
    James A. Harrison, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for the transportation of intoxicating liquor; punishment being two years in the penitentiary.

Appellant did not testify. The only witnesses introduced by him' gave evidence to the effect that appellant had never been convicted of a felony. The evidence for the state shows the following: Peace officers had reason to suspect that a certain house situated on Fifth street in the city of Port Arthur was a place where intoxicating liquors were either being sold or orders were taken therein for the delivery of intoxicating liquor. Some two weeks prior to the transaction upon which this prosecution rests officers, acting under a search warrant, searched the house in question. They found there appellant and one Pendergrass. No intoxicating liquor was found. The house contained two telephones, a table, some chairs, a lamp, and an ice box. While the search was in progress, the telephone rang. An officer answered, and a voice said, “Bring me five gallons to —” At this point Pendergrass took the telephone from the officer and said, “I can’t do anything for you now, the officers are here.” On this same occasion the officers saw near the house a car which they had frequently seen parked at the house on previous occasions. On the night of the transaction under investigation, the officers were again in the vicinity of this same house and saw the same car driven by appellant coming out of an alley at the side of the house. After having turned out the lights on their own car, the officers followed appellant for some distance, but finally lost trace of his car. They circled the block, and discovered parked in an alley near a vacant house on Nederland street the car they had been following. Appellant and his companion were not then in the car. It was searched, and no intoxicating liquor was found in it at that time. The officers watched, and soon appellant and his companion passed driving the same car. After chasing the car five or six blocks, it was crowded into a ditch. There was found in the car something like a gallon and a half of intoxicating liquor.

One of the officers testifying regarding the. stopping and search of the automobile at that time said that with a flash-light he was able to see that appellant was driving the car with Pendergrass beside him, and in the car were a jug of whisky and another jug half full of gin; that he could see these articles when he threw the light in the car; that they were right under the feet of appellant and Pender-grass in the car, and that one of the parties made the statement to the officer, “You have got us.” It was also in evidence that the officers knew appellant as a “whisky runner.” As touching the direct search of the automobile at the time the liquor was found, one of the officers testified that he searched ⅛ «* ⅜ * because I saw the whisky * * * I had information that the car was running whisky * * * because Jack O’Burke was driving it was part of the reason I stopped it to search it, but I saw the whisky in the car before the car quit rolling. It had not stopped rolling when I saw the whisky.”.

After finding the liquor in the car, appellant and Pendergrass were taken to jail. The officers returned to the house on Nederland street and found therein a large quantity of whisky and beer.

Several bills of exception are found in the record. None of them may be considered. The court allowed fifty days after notice of appeal in which to file bills. All of them were filed two days after the expiration of the time granted. Appellant seeks to he relieved of this situation, and has presented an affidavit to the effect that the delay in filing the bills was attributable to the mistake of the clerk of the court in calculating the expiration date. It is clear from the affidavit that appellant’s counsel was relying upon the clerk to keep him advised upon that point, and that the clerk made a mistake in the matter. This constitutes no valid excuse. Appellant was charged with notice that the court had allowed fifty days. If he relied on the clerk to calculate the expiration date, appellant is in no better position than if he himself had made the error. Under the circumstances, the clerk became the agent of appellant for the purpose mentioned. Morris v. State, 115 Tex. Cr. R. 503, 28 S.W.(2d) 155; Moreno v. State, 112 Tex. Cr. R. 598, 17 S.W.(2d) 1062. See, also, volume 4, Texas Jurisprudence, §§ 305-309, and authorities annotated thereunder.

A number of exceptions to the charge were reserved seeking to have the question of probable cause for the search of appellant’s car submitted to the jury as an issue of fact, and embracing instructions to acquit appellant in the event the jury found probable cause did not exist. No fact issue was raised as to the existence or nonexistence of probable cause. No fact testified to by the officers bearing upon that matter was controverted. . Under such circumstances the question of probable cause was a matter of law to be determined by the court.

It is thought that no question as to the existence of probable cause as a matter of law arises. Bee'ause of the presence in the record of the special charges heretofore referred to on that subject, we were at some pains in this opinion to set out the facts at length. It is not necessary’ to “repeat them. They -are thought sufficient to bring this case within the rule announced in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Brasselton v. State, 112 Tex. Cr. R. 615, 18 S.W.(2d) 168; Bullock v. State, 112 Tex. Cr. R. 313, 16 S.W.(2d) 1077; and McPherson v. State, 111 Tex. Cr. R. 558, 15 S.W.(2d) 633, in both of which last-cited' cases many authorities are collated. See, also, Husty v. U. S., 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A. L. R. 1407.

There is also found in the record a special charge in which the court is requested to instruct the jury “not to consider for any purpose the evidence of the search made of the residence in Port Arthur after the arrest of defendant.” It is necessary to deal with this special charge standing alone, in view of what has been heretofore said with regard to the delayed filing of the bills of exception. It will be observed that in the special charge no evidence sought to be withdrawn is pointed out, and, if the special charge should be regarded as a motion to withdraw evidence, it would not be sufficient, as being entirely too general. It would necessitate going to other parts of the record to determine the basis for such special charge. This we are not required :to do. We do not discuss the question at length, but refer to Green v. State, 108 Tex. Cr. R. 664, 2 S.W.(2d) 274, in which the general principles controlling are discussed in some detail.

The judgment is affirmeef.

On Motion for Rehearing.

BATTIMORE, Judge.

In Byrd v. State, 113 Tex. Cr. R. 5, 18 S.W.(2d) 624, upon authority of many, cases cited, also in Webb v. State, 109 Tex. Cr. R. 311, 4 S.W.(2d) 45, upon discussion of various cases, also in Walkup v. State, 114 Tex. Cr. R. 152, 25 S.W.(2d) 864, and in other cases, we have affirmed the rule that the attorney for the accused cannot rely on mere statements or promises of officers of the court, or even of the judge himself, in regard to matters aside from their official duties, such as the computation of time within which bills of exception must be filed, as is here involved. The district clerk is under no duty to compute the time at the request of appellant or his attorney and inform them how long before the time expires within which bills of exception or statements of facts must be filed. When the accused or his attorney asks some officer of .the court to do this for hiiii, he thereby makes such party his agent, aiid errors in the calculation made by such party cannot be complained of by the accused. In Walkup v. State, supra, the attorney claimed to have been misinformed by the trial judge himself.

In Davis v. State (Tex. Cr. App.) 28 S.W.(2d) 794, 798, cited by appellant in his motion as supporting his right to have his bills considered, we observe that the failure of the officer in that case was to do a thing which it was his statutory duty to do. Not so here.

The motion for rehearing will be' overruled.


author: CALHOUN, Judge. MORROW, Presiding Judge.

text:
    HUFF v. STATE.
    No. 15662.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Rehearing Denied March 22, 1933.
    Percy Foreman, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The conviction is for aggravated assault; punishment fixed at a fine of $25.

The information charges an aggravated assault under article 1149, Penal Code, in which it is declared: “The driver or operator of a motor vehicle upon the public highway who shall wilfully, or with negligence, collide with, or cause injury less than death to any other person upon such highway, shall be guilty of aggravated assault.”

The injured party, Mrs. Leigh Dunn, testified that on the morning of January 15,1932, on Main street of the city of Houston, she was in a ear with her husband, and her husband had stopped the car at a corner because of a red traffic signal, which was burning at the time. She got out of the car with her baby in her arms to go over to the sidewalk, and, after she got out of the ear, another car, which was parked at a 45 degree angle, backed out of its parking place and caught, her between some portion of the car which backed out and the running board of the car from which she had alighted. The automobile which backed into her did not go over three or four feet approximately from the time it started until it first struck her. She further testified that "she was struck by the car two times, and the first time she was struck she cried out, and was then struck again. There was no object to prevent the appellant from seeing her as she stood by the car from which she alighted, and it was also a clear bright day. As a result of being struck by appellant’s car, her leg was severely bruised, and, after spending one day in the hospital, she spent some 12 days at home in bed.

E. L. Dunn, husband of Mrs. Dunn, testified substantially to the same facts.

The appellant, I-I. P. Huff, testified that he had driven trucks for the American Railway Express Company in the city of Houston for 12 years, and had never had an accident during said time, and was familiar with all the traffic signals and customs and practice of automobile drivers in the downtown district of- the city of Houston. On the day of the accident he was driving his brother-in-law’s automobile and parked on the west side of Main street in the regular 45 degree parking place. His wife was with him at the time. Before backing out of said parking place, he looked through the rear glass of the automobile, and did not see the complaining witness or the automobile in which she had been riding. He then slowly backed his automobile out of said parking place, and, when he had moved not more than two feet, his left rear fender caught the complaining witness, but that be did not strike tibe witness twice as testified to by ber. He further testified that be did not see tbe complaining witness, and that there was nothing to prevent him from seeing ber when be looked back. He further testified that it was not usual or customary for an automobile to stop in traffic lanes for the purpose of discharging passengers at the point where the automobile of the complaining witness was stopped.

Appellant’s wife corroborated her husband, the appellant, as to what happened at the time of the accident. Another witness corroborated the appellant as to what'happened, and also testified that, when appellant’s automobile caught the limb of Mrs. Leigh Dunn, she did not cry out.

The term of the county court at which appellant was convicted adjourned on the 2d day of April, 1932. No extension of time for filing bills of exceptions appears to have been granted. Hence appellant was entitled to 30 days after the expiration of the term within which to file his bills of exception. Article 760, C. O. P.; McCloude v. State (Tex. Cr. App.) 10 S.W.(2d) 85; Walkup v. State, 114 Tex. Cr. R. 151, 25 S.W.(2d) 864. The bills of exception were filed on June 29, 1932, which was more than 30 days after the expiration of the trial term. The bills having been filed too late, we are compelled to sustain the state’s motion that said bills be not considered.

The evidence renders the nature and cause of the collision a question of fact. On the whole ease we do not feel warranted in overturning the judgment of the trial court.

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.

MORROW, Presiding Judge.

Upon the original hearing the two bills of exception found in the record were not considered for the reason that they were filed too late. Attached to the motion for rehearing is a document showing that, according to the extension of time entered in the trial court, the bills were filed in time.

In the light of the amended record, as shown in the motion for rehearing, we have examined the bills of exception.

Bill No. 1 questions the jurisdiction of the court, for the reason that, on its presentation to the court, the informatipn was indorsed “in and to the County Court at Law of Harris County, Texas.” The court permitted the amendment of the information by adding to the words “Court at Law” the words “No. 2.” The action seems to be within the purview of the statute, article 533, C. C. P., permitting amendment of an indictment or information in the matter of form. See, also, James v. State, 44 Tex. 314; Weaver v. State, 96 Tex. Cr. R. 363, 257 S. W. 246.

Bill No. 2 challenges the sufficiency of the complaint and information, for the reason that they omit a substantive averment in alleging the offense of aggravated assault. The pleading charges that: “ * * * Did wilfully and \vith negligence cause an automobile to collide with -and cause injury less than death to Leigh Dunn, who was then and there upon a public highway, to-wit - Main Street in the City of Houston, Harris County, Texas, the said H. P. Huff being then and there the driver and operator of said automobile then and there upon said Highway, against the peace and dignity of the State.”

The prosecution is for an assault with a motor vehicle as denounced in article 1149, P. C. 1925. The averments conform to the requirements of that statute. See Ratliff v. State, 95 Tex. Cr. R. 511, 254 S. W. 965; Young v. State (Tex. Cr. App.) 47 S.W.(2d) 320; Curtis v. State, 104 Tex. Cr. R, 473, 284 S. W. 950; Hernandez v. State, 112 Tex. Cr. R. 363, 16 S.W.(2d) 817.

The motion for rehearing is overruled.


author: CALHOUN, Judge. HAWKINS, Judge.

text:
    WEBB v. STATE.
    No. 15805.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1933.
    Rehearing Denied March 22, 1933.

      R. L. Buford, of Yan Alstyne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

The offense, unlawful transportation of intoxicating liquor; the punishment, one year in the penitentiary.

The record is- before us without a statement of facts. In a supplemental transcript filed in this court, there appears what purports to be appellant’s bills of exception Nos. 1 and 2. What purports to he hill of exception No. 1 complains of the admission of certain testimony over the objection of the appellant. Said hill of exception is marked “Refused” on the grounds that the appellant never objected to the introduction of the evidence, and the appellant went on the stand and testified voluntarily on his direct examination to the same facts.

What purports to be bill of exception No. 2 purports to be an exception to the court’s charge. This hill is also marked “Refused” because incorrect, and no such facts as asserted by the bill are shown by the record.

There are no exceptions to either of said statements of the trial judge appended to said purported bills. Where there are qualifications or explanations of the trial court appended to refused bills to the efteet that no such proceedings as therein referred to were had, or that no objection or bills of exception were taken, and no exceptions to such qualifications ar,e taken or resefved in any way, the appellate court will- be governed by the explanations or qualifications in its consideration of the matters referred to in the bill. See Donohue v. State, 90 Tex. Cr. R. 541, 236 S. W. 86; Wilson v. State, 87 Tex. Cr. R. 625, 224 S. W. 772.

The trial court having stated upon said bills that no such exceptions were taken and no such bills reserved, and since the contrary is not made to appear by any bystander’s bill, or other character of attack, we cannot consider same.

The judgment, is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, Judge.

In an unsworn motion for rehearing, appellant avers that he requested of the court a statement of facts, and was assured that one would be furnished him; that appellant was not able financially to procure a statement of facts. No effort has been made to show that appellant availed himself of the provisions of subdivision 6, art. 760, C. C. P. (1925).

The motion for rehearing is overruled.