author: SHARP, Judge. CURETON, Chief Justice.

text:
    AMERICAN CENTRAL LIFE INS. CO. v. ALEXANDER.
    No. 1618-6035.
    Commission of Appeals of Texas, Section A.
    Feb. 15, 1933.
    Douglas & Spiller, of Lubbock, and' Hamp-den Spiller, of Fort Worth, for plaintiff ⅛ error.
    R. A. Baldwin, of Slaton, for defendant in error.
   SHARP, Judge.

Mrs. Lorine M. Alexander sued the American Central Life Insurance Company on a life insurance policy issued by that company upon the life of- her husband, Chester Lloyd Alexander, for $1,000 face of the policy, $1,-000 under the double indemnity clause contained therein, interest, 12 per cent, penalty,- and reasonable attorney’s fees.

The defendant denied its liability on the following grounds: (1) That the insured committed suicide; and (2) that the insured in his signed application made misrepresentations in answer to certain questions ashed. The trial court sustained special exceptions to the second ground, and defendant having declined to amend its pleadings, the court proceeded to trial upon the issues raised by the pleadings. The case was submitted to the jury upon special issues, and the jury found ■that the insured did not intentionally kill himself and that $750 was a reasonable attorney’s fee. Judgment was entered in favor of the plaintiff for $3,067. From this judgment an appeal was made to the Court of Civil Appeals and the judgment of the trial court was affirmed. 39 S.W.(2d) 86.

It is contended that the Court of Civil Appeals erred in holding that defendant’s answer was insufficient to present a defense of misrepresentations in the application for the policy of insurance signed by the insured, in that the answer did not allege that the misrepresentations were intentionally made by the insured for the purpose of misleading the insurance company and inducing it to issue the policy sued on.

The parts of the answer pertinent to the issues presented read as follows:

“5. The defendant would' show that it is not liable on said policy because of the following facts: Prior to the issuance of the same the said Chester Lloyd Alexander submitted to the plaintiff, through its duly authorized agent, G. W. Bounds, an application for the issuance of the policy sued upon, which application was duly signed by the said Alexander, and among other things contained the following:
“ ‘Declarations of Applicant in Lieu of Medical Examination:
“ ‘In continuation of and forming a part of my application to the American Central Life Insurance Company, I declare that the statements and answers herein are complete and true without exception. * * *
“ T9, (a) To what extent do you use alcoholic beverages?
“ ‘None.
“ ‘Have you ever used them to intoxication? No.’
“6. That the said application containing the above language and representations by the said Alexander was presented to the defendant herein and was^the basis of the issuance of the policy to the said Alexander, and that the declarations hereinabove quoted and alleged were believed by the defendant herein and relied upon by it in the issuance of said policy; the defendant would show that said answers are false, and especially the answer to the question ‘To what extent do you use alcoholic beverages?’; for the reason that the said Alexander for a long time prior to and after the making of said representations did use alcoholic beverages, and the answer to said question ‘none’ was false; and the defendant further says that the said Alexander for a long time prior to and after the making of said representations habitually used alcoholic beverages and that he was often under the influence of alcoholic beverages and drinks and was often intoxicated before and after the making of said representations, and that his answer to the question,. ‘Have you ever used them to intoxication?’ was false and untrue.
“7. The defendant would show that had the said Alexander not answered said questions falsely, but had truly stated the facts in answer thereto, the defendant would not have issued the said policy to him, and the defendant says that the aforesaid misrepresentations in the said application were of a material fact which affected the risk assumed by the defendant herein. In this connection the defendant would show that the said policy was a policy of life insurance and it com tained a provision which was as follows: ‘Incontestability. After this policy shall have been in force during the lifetime of the insured for two years from its date, it shall be incontestable except for non-phyment of premium,’ and that the said Chester Lloyd Alexander killed himself within the first year after said policy was issued and within the contestable period under the terms of the same, and that the defendant is not liable for any amount under the same except the first year’s premium which has heretofore been tendered to the Beneficiary under said policy as hereinabove alleged.”

The plaintiff,’ in addition to a general de-’ murrer, directed many special .exceptions to defendant’s answer. Those pertinent to the issues presented are as follows: ’

(1) That no date or place is alleged when insured was supposed to be intoxicated and the allegations are' insufficient to apprise the plaintiff of the testimony that she will be required to meet.

(2) Because no fact is alleged showing that such representation, if made, actually contributed to bring about the event that matured said policy.

(3) Because no fact is alleged showing that such representation, if made, was a warranty, or that it was made fraudulently with intent on part of the insured to deceive the defendant.

(4) Because the allegations to the effect that the alleged misrepresentations were material and affected the risk were insufficient, in that no facts are alleged showing how or in what way the answers of the insured were material or affected the risk.

(5) Said allegations do not plead facts but conclusions.

The trial court sustained, among others, the foregoing special exceptions, and defendant having failed to amend its pleadings, the case proceeded to ■ trial upon the pleadings against which special exceptions had not been sustained.

Certain fundamental rules defining the burdens placed upon the insured and insurer with respect to life insurance policies are well established.. The law places the burden upon the insured of alleging and proving a compliance with all the conditions precedent provided for in the policy on which the right of recovery rests before a recovery can be had thereon. Cooley’s Briefs on Insurance, vol. 3, •p. 1964.

The statutes of this state provide what provisions the policies shall contain and what provisions they shall not contain. Articles 4732 and 4733, R. S. 1925.

Subdivision 4 of article 4732 reads as follows: “That all statements made by the insured shall, in the absence of fraud be deemed representations and hot warranties.”

The great weight of authority sustains the rule that under the provisions of these statutes a misrepresentation, or breach of warranty, by the insured, to avoid the policy, must be willful, or made fraudulently with intent to deceive. Cooley’s Briefs on Insurance, vol. 3, p. 1988.

Likewise, the authorities hold that to be available as- a defense to thé policy, a breach of warranty or misrepresentation must be specially pleaded by the insurer. Cooley’s Briefs on Insurance, vol. 3, p. 1966; 33 C. J. pp. 88 and 89, § 802.

It is a settled rule in this state that false statements to avoid a policy must have been willful and made with a design to deceive or defraud. Westchester Fire Insurance Co. v. Wagner, 24 Tex. Civ. App. 140, 57 S. W. 876 (writ denied).

Article 5043; R. S. 1925 reads: “Any provision in any contract or policy of insurance issued or contracted for in this State, which provides that the answers or statements made in the application for such contract or in the contract of insurance, if untrue or false, shall render the contract or policy void or voidable, shall be of no effect, and shall not constitute any defense to any suit brought upon such contract, unless it he shown upon the trial thereof that the matter or thing misrepresent- ■ ed was material to the risk or actually con trihuted to the contingency or event on which said policy became due and payable, and whether it was material and so contributed in any case shall be a question of fact to be determined by the court or jury trying such case.”

Where the insurer, in order to avoid the policy, contends that the insured failed to disclose certain facts deemed material to the risk, the burden rests upon the insurer to allege and prove the facts sustaining this contention. Furthermore, if the evidence raises the question, it becomes an issue of fact to be determined as to whether or not the misrepresentations in the application for insurance, pleaded by the insurer as a defense against liability upon the policy, were material to the risk, or were made with intent to deceive. If it is determined that the misrepresentations made by the insured do not relate to a matter or thing material to the risk, or which contributed to the maturity of the policy, the question of intent of the insured in making them is immaterial. Southland Life Insurance Co. v. Norton (Tex. Civ. App.) 297 S. W. 1083; Id. (Tex. Com. App.) 5 S.W.(2d) 767.

It is also true that if the misrepresentations made by the insured were not intentionally made for the purpose of deceiving the company in obtaining the policy, such misrepresentations offer no legal defense upon the ground of fraud. It is not alleged in the-answer of the insurance company to avoid the policy that the misrepresentations contained in the insured’s answers were intentionally-made for the purpose of misleading the insurance company and inducing it to issue the policy in question. Therefore, it appearing from this record that the foregoing defensive matters not being properly pleaded, the answer failed do meet the burden imposed by law upon the insurer. The special exceptions specifically pointed out those defects and the trial court correctly sustained them. The insurance company, having failed to amend its pleadings to cure the defects pointed out and sustained by the trial court, is not now in position to complain of the action of the trial court in not submitting issues not raised by the pleadings.

We recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, Chief Justice.

The judgments of the district court and of the Court of Civil Appeals are affirmed, as recommended by the Commission of Appeals.


source: Caselaw Access Project

author: CALHOUN, J. •

license: Public Domain

text:
    OWENS v. STATE.
    No. 15536.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    H. H. Wellborn and Clifford B. Stone, both of Henderson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J. •

Conviction is for murder; punishment, 20 years in the penitentiary.

Appellant killed two brothers, Bube Barker and Melt Barker. This conviction is for the murder of Bube Barker. There were no eyewitnesses from the state’s standpoint. The state’s case is made to depend upon the admissions and statements of the appellant that he killed the deceased, together with other surrounding facts, the testimony showing antecedent animosities and threats made by appellant against deceased. Several deputy sheriffs testified for the state to the effect that they were informed of the killing and went to the place where the two Barker brothers were lying. They searched the bodies of the deceased brothers, and found no weapon of any kind on or near the bodies.

Appellant’s defense was that of self-defense from an actual attack claimed to have been jointly and severally, made upon him by the Barker brothers. He also offered testi- • mony showing threats on the part of the deceased, Bube Barker, against him, and that said threats were communicated to appellant prior to the killing.

By bill of exception No. 6 appellant, complains of the testimony brought out on cross-examination of the appellant’s witness Ger-tha Owens to the effect that the appellant, Baseom Owens, had been sentenced to the penitentiary and served a.term for cutting Porter Williams. The bill shows that the testimony was objected to by appellant at the time it was offered on the following grounds: Defendant had not at that time, and never did, put his reputation in issue; the testimony was not pertinent to any issue in the case at bar. The court qualified the bill by referring to the statement of facts as to what occurred on the occasion in question. The statement of facts shows that the witness Gertha Owens, while testifying for the appellant, testified on direct examination that on an occasion some time prior to the homicide 'Melt Barker had shot at Jeff Owens, the father of the appellant. On cross-examination she testified that the shooting at Jeff Owens was in 1929 on the 11th day of December, and the appellant, was in the penitentiary at the time.' The appellant’s' counsel stated that they would reserve an exception to that, and the court stated that he would give them their bill. The record further shows that the state’s attorney then asked the witness what did he go to the penitentiary for, and upon the objection of appellant’s counsel, the court sustained the objection. On redirect examination the witness testified that it was a fact that the Governor paroled the appellant, and he did not have to serve his sentence, whereupon the state’s counsel again asked the witness what the appellant went to the penitentiary for, to which appellant objected because it was not in any way connected with, the present case and in no manner shed light upon it. The court overruled appellant’s objection and permitted the witness to answer that the appellant went to the penitentiary for cutting Porter Williams.

The general rule is that, on a prosecution for a particular- crime accused is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that evidence tending to- show that he committed other offenses wholly disconnected with that for which he is on trial must be excluded. In other words, evidence of the commission of independent crimes by the accused is irrelevant, where it has no tendency to prove some material fact in connection with the crime charged or where it merely tends to show that accused is a criminal generally. Texas Jurisprudence, vol. 18, § 31. The testimony had no tendency to prove any material fact in connection with the crime charged. This evidence was especially harmful to the appellant because it showed that the appellant had formerly been sent to the penitentiary for an assault upon another person. There were no eyewitnesses to the killing. Appellant pleaded self-defense. The evidence, therefore, was reasonably calculated to cause the jury to believe, because of a former assault upon an entirely different person, that the appellant would likely be guilty in the matter under investigation.

Bill of exception No. 1 complains of the admission of testimony by the witness Homer Pound of a conversation purporting to have been made with the defendant’s father, Jeff Owens, concerning the killing of the deceased. The court qualifies said bill to show that the conversation complained of was with the appellant. As qualified, no error is shown.

There are several bills of exception complaining of the admission in evidence of the testimony of witnesses to the effect that, when they searched the body of deceased, and his brother after the homicide, no weapon of any kind was found upon either of them. In this, there was no error. The state may show that the deceased was unarmed at the time of the homicide, and may even prove that fact circumstantially as by showing that no weapon was found on him. See Starland v. State, 116 Tex. Cr. R. 423, 32 S.W.(2d) 657; Hillen v. State, 108 Tex. Cr. R. 516, 1 S.W.(2d) 883; Hanners v. State, 108 Tex. Cr. R. 302, 300 S. W. 71.

By several bills of exception appellant also complains of the admission in evidence of proof to the effect that the appellant stated that he was going to kill the deceased and other threats made against deceased by the appellant. Antecedent threats made by a defendant against the deceased may be shown by proper evidence, and the fact that the threats were remote in point of time goes rather to their weight than to their admissibility, and is not ground for excluding them except under certain circumstances. See Texas Jurisprudence, vol. 22, § 189; Martin v. State, 107 Tex. Cr. R. 151, 295 S. W. 1098. These bills, as presented, complaining of this matter, show no reversible error.

There is also a bill of exception to the refusal of the trial court to hear appellant’s application for a writ of habeas corpus. Another bill of exception complains of the trial court overruling appellant’s application for a continuance. As these matters are not likely to occur upon another trial and the case will have to be reversed on another issue, we deem it unnecessary to discuss them.

For the error pointed out in admitting the testimony, over the objection of the appellant, as to appellant’s having been sentenced to the -penitentiary and serving his term for cutting another person, the judgment is reversed and the ca.use 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: CHRISTIAN, J.

text:
    HOLLINGSWORTH v. STATE.
    No. 15506.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    R. T. Correll, of Perryton, and Hoover, Hoover & Cussen, of Canadian, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

' Upon conviction for driving a motor vehicle upon a street in an incorporated city while intoxicated, appellant wás prohibited from driving any motor vehicle on the highways of this state for a period of two years, and a fine of $25 was assessed against him.

It was charged in the indictment, in substance, that appellant, while under the influence of'intoxicating liquor, drove an automobile on Main street within the limits of the incorporated city of Perryton. The testimony of the state was to the effect that appellant, while intoxicated, drove his automobile on Main street in the city of Perryton. Appellant did not testify in his own behalf, but introduced witnesses who testified that they saw appellant shortly before he drove the car, and that he was not in any degree intoxicated. Johnson, who was in the automobile with appellant, testified that he did not smell liquor on appellant’s breath, and declared that appellant was not under the influence of intoxicating liquor. For the purpose of impeaching Johnson, the state proved that he had made a written statement in which he had declared that appellant was drunk at the time he drove the car. A small bottle of whisi-ky was found in appellant’s automobile when he was arrested.

It is shown in bill of exception No. 17 that after Johnson had testified that the statement he made prior to the trial to the effect that appellant was drunk was untrue, and that appellant was not intoxicated, the court retired the jury and called for the sheriff. ' When the sheriff approached, the court stated: “I want you to stay here until the witness leaves the stand.” Further, the court stated, in the absence of the jury, “It is very apparent that some improper influence is acting upon this witness right now.” Moreover, the court instructed the sheriff to arrest the witness after he had left the stand. These proceedings took place in the absence ■of the jury. The witness was arrested after he left the stand; but the jury were apparently not aware of this fact. Appellant objected to the state being permitted to further examine the witness on the ground that the action of the court had unduly intimidated the witness, and was calculated to prevent him from giving testimony favorable to appellant. The objection was overruled, and the district attorney proceeded to further examine the witness. In view of the fact that the bill of exception fails to show that the witness gave different testimony more favorable to the state, we deem it unnecessary to determine whether the matter presents reversible error. A similar situation was presented in Hampton v. State (Tex. Cr. App.) 46 S.W.(2d) 314, and held to present reversible error. However, the statement is made in the opinion in Hampton’s Case that the bill of exception suggested that, after the occurrence, the witness gave different testimony, more favorable to the state.

Bill of exception No. 22 reflects that appellant’s witness Lackey was asked by the district attorney if it were not a fact that he (the witness)-or his partner at one time had reguested appellant not to come into their place of business any more, and if it was not a fact that the witness had been having some trouble with appellant. The court sustained the objection to the Question and instructed the jury not to consider such question for any purpose; but appellant reserved his bill to the asking of the question. Thereafter, as shown in bill, of exception No. 24, the district attorney, upon cross-examination, asked appellant’s mother the following question: “Is it not a fact that one day a week or two ago when Carl Donley and Doyle Hollings-worth (the defendant) went to Canadian to meet you that you did not have trouble with your son on that occasion?” Appellant objected, and the court sustained the objection and instructed the jury not to consider the question for any purpose. Nevertheless, appellant took his exception to the asking of the question. The questions carried the imputation that appellant’s character was bad. The fact that appellant was forced to object placed him in a bad light before the jury. The jury would naturally have concluded that the witnesses would have answered that they had had trouble with appellant. Moreover, in view of all the facts and circumstances in evidence, it cannot be said that the conclusion would not have been drawn from the questions that the trouble to which the district attorney referred involved the drinking of intoxicating liquor. Under the circumstances, we think the questions were obviously prejudicial. We are unable to reach the conclusion that the instructions of the court saved appellant from injury. See Childress v. State, 92 Tex. Cr. R. 215, 241 S. W. 1029; Coon v. State, 117 Tex. Cr. R. 158, 35 S.W.(2d) 419; Hunter v. State, 113 Tex. Cr. R. 90, 18 S.W.(2d) 1084. Appellant was prohibited from driving an automobile on the public highways for two years, which is the maximum fixed by the statute.

The county attorney argued to the jury, as shown by bill of exception No. 25, that Johnson's statement made prior to the trial that appellant was drunk was evidence of appellant’s guilt. He said: “I might say if there are any better facts to show that Doyle Hollingsworth (appellant) was there drunk at the time he backed out from Palace Drug Store up here in Perryton and drove by the Champlain Filling Station and drove over to the J. I. Case place, there is nothing more fundamental than that affidavit that he (the witness) signed before the district clerk of this county.” Johnson stated on the trial that his affidavit was untrue, and that .appellant was not drunk at the time he drove the automobile. The court instructed the jury not to consider the argument. The former statement that the witness made could not be used by the jury to prove the guilt of appellant. Thomas v. State, 101 Tex. Cr. R. 144, 274 S. W. 577. However, under the circumstances, the prior statement out of court might properly be used by the state for the purpose of impeaching the witness. The matter presents error, but whether the court’s action in instructing the jury not to consider the argument cured the error, it is not necessary to decide.

Bill of exception No. 27 presents the following occurrence: In argument, in referring to the testimony of Johnson, the district attorney stated that Johnson had testified that he took the steering wheel, and that appellant got out of the car and staggered around on the other side. It appears that this statement was contained in the affidavit made by the witness prior to the trial. Pie made no such statement as a witness during the trial, but on the contrary, declared that appellant was not drunk. The court overruled appellant’s objection to the argument. The district attorney was not warranted in misquoting the record, and the objection should have been sustained. The argument was calculated to impress the jury with the view that they might use the affidavit as proof of appellant’s guilt. Thomas v. State,supra.

Appellant contends that the state failed to prove that Perryton was an incorporated city. It was necessary to make this proof in view of the allegation in the indictment. The state’s attorney before this court expresses. the view that the state failed to support the allegation as to the incorporation of Perryton. Unless the statement of one witness, to the effect that appellant drove the car on Main street in the corporate limits of Perryton on or about the 16th of February, 1932, is sufficient proof of the fact of incorporation, the ease would -have to be reversed on this point. Akin v. State, 114 Tex. Cr. R. 343, 23 S.W.(2d) 379. It does not appear that Perryton has a charter on file in the office of the secretary of state. No condition is present which would warrant this court in taking judicial notice that Perryton was incorporated at the time in question. In Fuller v. State, 116 Tex. Cr. R. 310, 32 S.W.(2d) 358, it was intimated that proof to the effect that the street in question was within the corporate limits of the city of Waco would suffice. However, in Fuller’s Case, it appeared that Waco was incorporated under the Enabling Act to the Home Rule Amendment to the Constitution (Const, art. 11, § 5). A charter was on file in the office of the secretary of state. It was held that the court would take judicial notice of the fact that Waco was incorporated. It is not clear that the statement in the present record is sufficient to show that Per-ryton was an incorporated city on the very day that appellant drove his car on Main street. However, in view of the fact that the case must be reversed on other grounds, we pretermit further discussion of the question. If another trial be had, definite proof of the fact of incorporation should be made.

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

PER CURIAM.

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


author: MORROW, P. J.

text:
    HODGE v. STATE.
    No. 15580.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    H. B-. Birmingham and R. E. Eubank, both of Paris, for appellant.
    Lloyd W. Davidson, state’s Atty., of Austin, for the State.
   MORROW, P. J.

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

The indictment charged the sale of intoxicating liquor to Willard Parker, who testified that he purchased whisky from the appellant and drank it. His . testimony was Supported by that of Armstead Williams. The appellant testified and denied the sale. Several other witnesses introduced by the appellant testified to circumstances tending to controvert the testimony of Parker. In some particulars the testimony of the witnesses mentioned tends to corroborate the witness Parker. They did support his testimony to the extent of showing that he was at the appellant’s place and that he was intoxicated. However, it is not deemed desirable nor necessary to quote or analyze the testimony further than to say that, in our opinion, it presents a typical ease for the jury to solve, and the solution by the jury upon conflict of evidence is necessarily binding upon, this court.

There are no complaints of the ruling of the court nor of the manner in which the case was submitted to the jury.

The judgment is affirmed.


author: LATTIMORE, J.

text:
    CHATHAM v. STATE.
    No. 15596.
    Court of Criminal Appeals of Texas
    Feb. 1, 1933.
    Rowell & Rowell, of Jefferson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for child desertion; punishment, a fine of $100 and three months in the county jail.

We find in the record no statement of facts, .in the absence of which it is impossible for us to appraise the matters complained of in bills of exception 1, 2, and 3, and the applicability of requested charges, the complaints set forth being dependent on the facts which might have appeared in the case.

In bis amended motion for new trial appellant set up that the testimony of his daughter Imogene, one of the children alleged to be deserted, was newly discovered. It further appears from said motion that Imogene was present at court at the time of appellant’s trial, and hence necessarily subject to the jurisdiction of the court, and usable as a witness for appellant had he desired and made reasonable effort to obtain said testimony. It is stated in the motion that her mother was unwilling for her to testify, and that said mother would not permit the witness to talk to appellant’s attorney. It was wholly within the power of the trial court, upon a sufficient showing, to compel the mother of Imogene to permit her to talk to said attorney, and also her use in appellant’s behalf as a witness. We are thus led to believe the testimony referred to not newly discovered within the meaning of that term as used in our statutes referring to the granting of a new trial. It should also be stated that, in the absence of a statement of facts, the materiality of the testimony attributed to such witness does not sufficiently appear. The facts before the trial court and the jury, even when viewed in the light of said alleged newly discovered evidence, might have been entirely sufficient. Many things appear in appellant’s brief which are appealing, but, in so far as they relate to the movements of appellant, or his condition at the time, or the circumstances surrounding appellant at the time of the alleged desertion, we cannot consider them in the absence of a statement of facts.

The judgment of the trial court will be affirmed.


text:
    CASTANEDA v. STATE.
    No. 15566.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    McConnell & Moore, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed.

PER CURIAM. '

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


author: HAWKINS, J.

text:
    MIDDLEBROOK v. STATE.
    No. 15602.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    R. G. Allen, Jr., of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft, punishment being two years in the penitentiary.

On the night of March 18th, two eases containing medical instruments were stolen out of an automobile belonging to Dr. Nichols, while the car was parked in his garage in Richmond, Port Bend county, Tes. Five days later this property was found in Houston, Harris county, Tex., at the home of Mrs. S. R. Middlebrook, appellant’s mother. The property was found by officers in a cedar chest belonging to Mrs. Middlebrook, and which she testified was in a room which had been rented to and occupied by a man named Dailey. Appellant was never shown to have been in Richmond about the time of the theft, and was never shown to have been in the actual possession and control of the property in question. The state was compelled to rely on the possession of recently stolen property to make out the semblance of a ease.

“To warrant an inference or presumption of guilt from the circumstance alone of possession, such possession must • be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.” Branch’s Ann. Tex. P. C. § 2463, p. 1332. Among many cases annotated is Lehman v. State, 18 Tex. App. 174, 51 Am. Rep. 298. The search of Mrs. Middlebrook’s home occurred late at night. Appellant was not present. His wife was there. Appellant had been there earlier in the night. This was explained by appel'lant’s witnesses. They claimed that his mother was sick and appellant early in the evening had gone by to see how she was; that he had gone home and. his wife was spending the night there to wait on Mrs. Middlebrook. Appellant was arrested at his sister’s residence the next morning, which place was claimed to be the home of appellant and his wife. The nearest approach by the state to meeting the requirements of the law is found in Officer Harper’s evidence. On direct examination he testified that he knew where- appellant lived and recovered the property, at that place. On cross-examination he testified that he had seen appellant at his mother’s home only once in the last three months, and that was early in the evening of the same night the property was found. We gather from the officer's testimony that appellant had been frequently arrested, the officer testifying “every time we caught him” it was at his mother’s house. The officer said appellant-at one time told him that he (appellant) lived at his mother’s, but further said he could not say whether it was “three months, a year, or two years” before he was arrested on the present charge. The officer further testified: “I know I saw this defendant there some few hours before I found the goods there. I know further that that is the place the defendant’s mother resides, and so far as I know that is the only connection of the defendant with this charge.” As we understand the law the. state failed to make out a case. If we go to the evidence introduced from appellant’s witnesses, it shows that he and his wife lived with his sister, some distance from his mother, and had been living there several months; that none of his clothes or personal belongings were at his mother’s place. The latter testified that she had rented a room to Dailey, and that he kept some of his things in a cedar chest belonging to witness, and that Dailey had brought the stolen articles to the house and placed them in the chest where the officers found them; that the articles were wrapped up at the time he brought them there and she did not know at that time what they were. Upon the facts this present case is similar to those in Lemon v. State, 89 Tex. Cr. R. 361, 231 S. W. 388, where the evidence was held insufficient. See, also, the authorities cited in the opinion in Lemon’s Case.

We would, also call attention that this ease depends on circumstantial evidence alone. The facts present the hypothesis of Dailey’s guilt more strongly perhaps than that of appellant’s, if credence can be placed on the evidence of Mrs. Middlebrook. It at least furnishes application of the rule that “where the evidence is quite as cogent in support of the guilt of another person known or unknown, to the exclusion of the defendant, it is not sufficient.” Texas Jurisprudence, vol. 18, § 322, p. 446; Yarbrough v. State, 69 Tex. Cr. R. 150, 151 S. W. 545; Tomlin v. State, 115 Tex. Cr. R. 307, 29 S.W.(2d) 767; Lowe v. State (Tex. Cr. App.) 77 S. W. 220.

The judgment is reversed, and the cause remanded.


text:
    KINARD v. STATE.
    No. 15576.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    E. C. Stovall, of Canton, and E. M. Greer, of Wills Point, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for assault to murder; punishment, two years in the penitentiary.

The bills of exception and statement of facts in this case were filed after the expiration of the statutory limit fixed for such filing, which is ninety days from the overruling of the motion for new trial. The order overruling the motion for new trial does not appear in the record, but from the order extending the time for filing the statement of facts, etc., it appears that the motion for new trial was overruled on May .3, 1932. Computation shows that ninety days from this date expired on August 1, 1932. The bills of exception and statement of facts were filed the following day, which was one day too late. See Jarrott v. State, 84 Tex. Cr. R. 544, 209 S. W. 663. Hence we cannot consider the statement of facts or bills of exception.

No error appearing, the judgment will be affirmed.


text:
    Ex parte SMITH.
    No. 15794.
    Court of Criminal Appeals of Texas.
    Jan. 25, 1933.
    J. A. Collier and M. L. Pepper, both of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

This is an appeal from an order refusing to discharge the appellant upon a writ of habe-as corpus.

The statement of facts before this court consists wholly of a transcription of the stenographer’s notes in question and answer form. This is not in accord with the statutory requirements. Ex parte Bailey, 106 Tex. Cr. R. 649, 294 S. W. 213. However, we have read the document before us, and are unable to reach the conclusion that appellant is illegally restrained of his liberty. It appears that appellant was convicted in 1923 of the offense of burglary. He was not represented by counsel. Immediately upon his conviction sentence was pronounced. The day after sentence was pronounced, appellant escaped from jail and remained at large until August, 1932. The indictment charged in one count burglary of a private residence, and, in another, ordinary burglary. Following the court’s charge, it was under the count charging ordinary burglary that the jury convicted. The judgment of conviction and sentence recite that appellant was adjudged to be guilty of the offense of burglary and burglary of a private residence. Upon the hearing in the present case, appellant testified that he was without counsel; that he had never before been convicted of a felony; that he would have made application for a suspended sentence had he been aware that he was entitled to file such application; that the trial court did not advise Mm that he had the right to prepare and file his application for a suspended sentence ; that, if he had been aware of his rights under the law, he would have requested that an attorney be appointed to prepare, file, and present his' application; that after conviction he did not waive the time allowed by law to file a motion for new trial; .that, notwithstanding such fact, the court sentenced him prior to the expiration of the statutory time. The trial judge testified that at the time of appellant’s trial he was aware of the statute (Vernon’s Ann. O. O. P. art. 770) requiring that the appellant be advised as to his right to file an application for a suspended sentence; that he was cognizant at the time that, if appellant desired to file an application for a suspended sentence, it was the duty of the court to appoint counsel to prepare, file, and present the application; that it was his custom to comply with the statute; that, as he had no independent recollection relative to the matter, he would not undertake to say more that that it was his custom to comply with the law relating to the right of the accused to be. represented by counsel appointed by the court in the preparation and filing of an application for a suspended sentence; that, when sentence was pronounced, appellant waived the time allowed by law.

We deem it unnecessary to determine whether the failure of the court to comply with the statute in question would have the effect of rendering the judgment void. The opinion is expressed that the trial judge was warranted in finding that at the time of the trial the court advised appellant as to his right to file his application for a suspended sentence. This being a collateral attack upon the judgment of conviction, the presumption of validity is to be indulged in favor of the judgment. Ex parte McKay, 82 Tex. Cr. R. 221, 199 S. W. 637, Ex parte Adlof, 86 Tex. Cr. R. 13, 215 S. W. 222. This rule is well established. It is only a void judgment that may be so attacked. If it should be conceded that appellant is in a position to collaterally attack the judgment 'of conviction (and this is not conceded), the evidence heard by the trial court is ■ insufficient, in our opinion, to overcome the presumption to be indulged in favor of the judgment.

The fact that the judgment and sentence condemn appellant to confinement in the penitentiary for burglary and burglary of a private residence does not render the judgment void. The court submitted to the jury in the charge only the offense of ordinary burglary. The jury found appellant guilty as charged. If appellant had appealed from the judgment of conviction, this court would have reformed the judgment and sentence to show that appellant had been eon victed of the offense of burglary. See Ex parte Cross, 105 Tex. Cr. R. 52, 284 S. W. 584.

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:
    WELLBORN v. STATE.
    No. 15563.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    R. N. Templeton, of Wellington, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft of cattle; punishment, ¡ three years in the penitentiary.

Appellant asked for a continuance. No exception was taken to its refusal, if in fact it was ever presented to the court. In the absence of a bill of exception complaining of such refusal, the matter is not properly before us. Martin v. State, 92 Tex. Cr. R. 124, 242 S. W. 234; Miller v. State, 93 Tex. Cr. R. 163, 246 S. W. 87.

Appellant made a motion for new trial complaining of various matters. He took a general bill of exception to the refusal of the motion. Such a bill brings nothing before us for review. Holt v. State, 98 Tex. Cr. R. 248, 265 S. W. 394. In such case wa can only consider the sufficiency of the testimony. Modest v. State, 94 Tex. Cr. R. 470, 251 S. W. 1061.

The testimony sufficiently shows appellant’s guilt. He hilled a yearling in the nighttime somewhere after 1 o’clock a. m. He cut it up and put the meat in the hack of Hollingsworth’s car, and the head in one sack and the hide in another, which were put on the running hoard of said car. Without going into unnecessary details, this head and hide were identified as that of a calf belonging to the owner, who testified to his loss of a Jersey heifer calf about this time. The record presents no., error. The evidence is sufficient.

The judgment will be affirmed.


author: CALHOUN, J.

text:
    LITTLEJOHN v. STATE.
    No. 15437.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Marshall & King, of Graham, for appellant.
    Dloyd W. Davidson, State’s Atly., of Austin, for the State.
   CALHOUN, J.

Receiving and concealing stolen property is the offense; punishment, two years in the penitentiary.

The bill of indictment contained two counts; the first charging theft of an automobile belonging to one J. T. Reece, and the other charging receiving and concealing said automobile knowing it to be stolen. The court in his charge submitted alone the count charging receiving and concealing stolen property.

The facts in brief are as follows: A Ford coupé, 1929 model, belonging to J. T. Reece, was stolen from his private garage at his home in Post, Tex., some time during the first part of April, 1931. Some months thereafter he identified his car, which was then in the possession of the Shamrock Motor Company at Graham, Tex. He was able to identify it by reason of certain peculiarities thereon. It further appears from the evidence that on the 22d day of April, 1931, the appellant sold the automobile to the Nehls Motor Company of Graham, Tex., for the sum of $160. He executed to the said motor company a transfer and bill of sale therefor. Two days thereafter the Nehls Motor Company sold the automobile to a man by the name of Askew. The automobile was taken from the possession of the said Askew some time in June, 1931, by W. L. Bartlett, a representative of the insurance company which carried the insurance on the car. Bartlett returned the car to Reece. A witness by the name of Gormley testified that he made an examination of the stolen automobile on May 28, 1931, and was able to determine that the motor number on the car had been changed and he was also able to determine the car number of the car.

Appellant did not testify as a witness in his own behalf. He introduced evidence to show that he had made no concealment whatsoever of the car while it was in his possession and he made several attempts to sell the automobile before he finally sold it to the Nehls Motor Company. He introduced in evidence a bill of sale showing that he had purchased the automobile from one V. G. Turman and described the car by the same motor number as the number shown on the transfer he gave to the Nehls Motor Company.

By bill of exception 3A, appellant complains of the failure of the court to sustain his objection to the testimony of the state’s witness F. ,T. Littlejohn to the effect that he had purchased a car some time about the 22d day of April from one J. E. Lattimore, who had been introduced to him by the appellant, which car was afterwards taken from the witness’ possession by a man by the name of Schmidt. The appellant objected to said testimony on the ground that it does not in any way connect or tend to connect the appellant with the crime testified about; that said testimony does not prove or tend to prove any motive, system, or intent or guilty knowledge on the part of the defendant; that the same was not in any way connected with the offense for which the appellant was then on trial. Appellant also by bill of exception 3B objected to the introduction in evidence of a bill of sale from J. E. Latti-more to the said witness F. T. Littlejohn for the same reason. By bill of exception 3D, appellant also objected to the testimony of one J. E. Lattimore, pertaining to the same subject. The court overruled appellant’s objections to all of said testimony, and permitted said testimony to go to the jury unlimited, to which appellant duly excepted.

In the admission of said evidence, we are of the opinion that the court was in error. There was no evidence offered to show any connection between the car alleged to have been sold by Lattimore to the brother of the appellant, F. T. Littlejohn, tending to connect the appellant with said car, except for the fact that he introduced a man to his brother as J. E. Lattimore. It has been held by this court that evidence of extraneous crimes may be admitted to develop the res gestse, to connect the defendant with the case on trial, or to show intent; also it is asserted as a general proposition that such evidence may be introduced when it tended to show system, but the authorities draw a distinction between the doctrine of system and systematic crimes. The question of system will not apply unless it is for some of the purposes cited. See Cone v. State, 86 Tex. Cr. R. 291, 216 S. W. 190; Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501; Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869. The evidence admitted of which complaint is made was a transaction that was inder pendent of the one for which this conviction was obtained. The evidence admitted was of a material character, and in our opinion prejudicial to the accused.

We quote from the case of Smith v. State, supra: “Where evidence of an extraneous crime is admitted, it must be.to show intent to develop the res gestse, identity of the defendant, or show system. That a party may be systematically a thief, or destroyer of houses by burning, or in the participancy or execution of a crime, does not necessarily come within the exceptions above mentioned. To prove system in order to identify a party, or to show intent, is one thing, but to prove systematic crime, or that an accused is a confirmed violator of the law, is a very different proposition.' And extraneous crimes are not admissible, even under the exception to the rule, unless the testimony comes within one of the exceptions, and this to connect the defendant with the crime for which he is being tried.”

By proper bill of exception, appellant complains of the refusal of the trial court to give a special charge requested by the appellant to the effect that, if they believed that the defendant, Olay Littlejohn, bought the automobile in question in good faith, they would acquit the defendant and say by their verdict not guilty. The appellant offered in evidence a bill of sale from one V. G. Turman to the ear which appellant is alleged to have had possession of and to have sold and which is claimed to have been stolen ¡from one J. T. Reece, dated the ,20th day of April, 1931, signed by the said V. G. Turman, and sworn to before Doris Henderson, notary public in and for Dallas county, Tex. 1-Ie also proved by a witness that the witness knew the said Y. G. Turman and the said Turman sold the car in controversy to the appellant in Malone, Tex., in April, 1931, and the said Turman offered to sell said car to the witness, and he heard the appellant make- the said Turman an offer for said -car of $135. This raised a defensive issue in behalf of the appellant. It has been uniformly held tha$ • an affirmative charge should be given presenting the defensive theory if supported by any-testimony. See Hoyt v. State, 88 Tex. Cr. R. 612, 228 S. W. 936. No such charge was given notwithstanding the special instruction asked by appellant upon this issue. This was error. Grande v. State, 37 Tex. Cr. R. 54, 38 S. W. 613; Stanfield v. State, 73 Tex. Cr. R. 290, 165 S. W. 216, 217; Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869. The jury should have been charged in substance that, if they believed appellant bought the car in question from Turman or had a reasonT able doubt upon that issue, they should acquit.

The trial court charged- the jury as follows: “You are charged as part of the main charge in this case that under our-law a person charged with the offense of receiving and concealing stolen property may be prosecuted in the same county in which he received same, or in any other county in which he is found in possession of said property or through which he transported same.” Appellant excepted to said charge as not announcing the law under article 200, O. O. P. 1925, which article reads as follows: “Receiving and concealing stolen property may be prosecuted in the county where the theft was committed, or in any other county through or into which the property may have been carried by the person stealing the same, or in any county where the same may have been received or concealed by the offender.” The charge of the court upon this issue was error. Upon another trial of this case, the court should instruct the jury in accordance with the article above stated.

For the errors pointed out, 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:
    JOHNSON v. STATE.
    No. 15554.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Huson & Huson, Whitaker & Whitaker, and Phil Robertson, all of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is robbery with firearms; the punishment, confinement in the penitentiary for fourteen years.

On the 4th day of February, 1932, two men entered the First National Bank of Woodsboro and at the point of a pistol took from George Dahse, assistant cashier, approximately $2,-100. Mr. Dahse testified that he was of the opinion that appellant was one of -the robbers. He said, however, that the person whom he took to be appellant had his back to him at the time the robbery was perpetrated, and that he would not say positively that appellant was one of his assailants. On February 15, 1932, officers went to the home of appellant’s father and searched the room where appellant and 'his wife lived. In this room they found a tin box containing about $1,100 in silver and currency. Some of this money was identified by Mr. Dahse as having been taken from the bank on the occasion of the robbery. Witnesses for the state testified to having seen appellant and another man carry a box into appellant’s home on the day of the robbery. Appellant’s mother testified that on the day in question a stranger came to her home with appellant. She said appellant did not introduce him, and she did not know who he was. The officers also found in appellant’s room a pistol. Appellant relied upon an alibi and many witnesses gave' testimony supporting the theory that appellant was not at the scene of the robbery at any time.

The affidavit-for the search warrant was based on information and belief. The facts and circumstances upon which the belief was founded were not set forth in the affidavit. Hence the search warrant was invalid. Standard v. State, 113 Tex. Cr. R. 600, 21 S.W.(2d) 1066; Sirman v. State (Tex. Cr. App.) 55 S.W.(2d) 92. There is nothing in the record to bring into operation article 325, C. C. P. The search was made approximately ten days after the robbery had been committed. See Davis v. State, 113 Tex. Cr. R. 421, 21 S.W.(2d) 509. Appellant timely and properly objected to the testimony of the officers touching the result of the search. The search was illegal. Hence, under the provisions of article 727a, C. C. P. (amended by Acts 1929 2d Called Sess., c. 45, § 1 [Vernon’s Ann. C. C. P. art. 727a]), the court committed error in admitting the testimony. Sirman v. State, supra; Davis v. State, supra.

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:
    GONZALES v. STATE.
    No. 15574.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    W. Joe Bryan, of El Paso, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for assault with a prohibited weapon; punishment, six months in the county jail.

The indictment in this ease is insufficient. It fails to allege that the assault was “wil-fully” made. Such averment is necessary. Johnson v. State, 101 Tex. Cr. R. 217, 275 S. W. 714; Moore v. State, 112 Tex. Cr. R. 414, 16 S.W.(2d) 1089; Ham v. State, 118 Tex. Cr. R. 271, 40 S.W.(2d) 152.

The judgment will be reversed, and the prosecution ordered dismissed.


text:
    RAY v. STATE.
    No. 15591.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Gilbert Smith, of Anson, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for attempting to pass as true a forged instrument, punishment being five years in the penitentiary.

We observe no defect in the indictment. The record is before us without statement of .facts or bills of exception. In suoh condition nothing is presented for review.

The judgment is affirmed.


text:
    BRADY v. STATE.
    No. 15570.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    John L. Poulter, of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Conspiracy to commit theft is the offense; penalty assessed at confinement.in the penitentiary for two years.

It is charged that R. H. Masters and Joe Brady made a positive agreement with each other to unlawfully and fraudulently take from the possession of Roy Binyon, the owner, two cases of cigarettes of the value of $67.50.

From the testimony of Masters, it appears that he and Brady made an agreement to steal some ■ cigarettes; that Eollowell was taken into the agreement. Prom, the testimony of Masters we .quote: “As I stated, thei understanding that I had with Mr. Eollowell and Mr. Brady was, Mr. Eollowell was to haul the goods out and Mr. Brady was to take them from Mr. Eollowell and they were to split three ways — whatever they got out of it I got a third, Mr. Eollowell got a third and Mr. Brady got a third.”

According to the testimony of Eollowell, his understanding of the agreement was in accord with that mentioned above. He also testified that he notified the officers of the agreement. He said that it was understood that Masters Should notify the appellant when the cigarettes were on the truck and where to be taken. Two cases of cigarettes were taken from. Eollowell’s truck as he drove past Masters and the appellant. Fol-lowell gave them a signal which had been agreed upon, showing that he had the property which was to be stolen. Appellant acknowledged the signal and followed the truck, which stopped at a suburban store. Folio-well got out and went into the store. Appellant got out of the automobile in which he had followed the truck and took the cigarettes therefrom. He was immediately placed under arrest by an officer. The cigarettes were worth more than $100.

An officer testified that he arrested the appellant and that he had been informed by Eollowell of the agreement mentioned above. Eollowell testified that he had no intention of profiting by the transaction and that he notified the officers of the agreement. Throughout the testimony, it is quite apparent that such agreement as was made contemplated taking the property from the Bin-yon-O'Keefe Company. There is no testimony to the effect that the agreement was to take property from Binyon as an individual. Bin-yon’s testimony is as follows: “If a conspiracy was entered into between this defendant and R. I-I. Masters and Mr. Eollowell or anybody else to take those cigarettes from me I knew nothing of the conspiracy, and don’t know anything about their agreement, if they had such an agreement. These cigarettes were in my care and custody and control. We had them over there for R. J. Allen Company and were responsible for them.”

The court instructed the jury that both Masters and Eollowell were accomplices, and that a conviction could not be had upon their testimony unless corroborated. Whether Fol-lowell was to be regarded by the jury as an accomplice might have beeh submitted to them as a question of fact. See Davis v. State, 70 Tex. Cr. R. 524, 158 S. W. 288; Smith v. State, 89 Tex. Cr. R. 145, 229 S. W. 523; Sowells v. State, 99 Tex. Cr. R. 465, 270 S. W. 558; Pauly v. State, 93 Tex. Cr. R. 183, 246 S. W. 375. The question before the Court was not the theft' of the property but a conspiracy to steal the property of Roy Binyon. We have perceived no testimony which would meet the measure of the law which forbids a conviction upon the uncorroborated testimony of an accomplice, as set out in article 718, C. C. P. 1925.

It seems apparent also that the agreement described in the evidence differs from that described in the indictment. The indictment charges that the agreement was to take property from Roy Binyon. The evidence shows that it was the Binyon-O’Keefe Company that was to be the victim.

For the reason stated, the judgment is reversed, and the cause remanded.


text:
    GILBERT v. STATE.
    No. 15593.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Lovett & Lovett and Davis, Jester & George, all of Corsicana, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Attempt to commit arson is the offense; penalty assessed at confinement in the penitentiary for one year.

The prosecution is for violation of article 1316, P. C., as it appears in chapter 82, Acts of the 42d Legislature, Regular Session, page 124 (Vernon’s Ann. P. C. art. 1316), which is an act to amend article 1316, as it appears in chapter 1, title 17, P. C. 1925. The penalty prescribed in article’ 1316, as it appears in the revision of the Penai Code of 1925, is not less thin two nor more than seven years. The penalty prescribed in chapter 82 amending article 1316 is confinement in the penitentiary for not less than one nor more than five years. The caption of chapter 82 is as follows: “An Act to amend Article 1316, Chapter 1, Title 17, of the Penal Code of 1925; further defining the offense of an attempt to commit arson; and declaring an emergency.”

The omission from the caption of any notice of an, intention to change the penalty renders the amending act inoperative. The subject is discussed at length in the case of Rotner v. State (Tex. Cr. App.) 55 S.W.(2d) 98. The invalidity of the amending act because of its failure to comply with the demand of the Constitution, art. 3, § 35, leaves in force article 1316, as it appears in the Penal Code, and the prosecution for the offense is permissible thereunder.

The judgment is reversed, and the cause remanded.


text:
    TURMAN v. STATE.
    No. 15411.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    John A. Erhard, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Theft of an automobile is the offense; punishment, three years in the penitentiary.

The state introduced in evidence the following facts: E. L. Steck, who lived at Mart, in McClellan county, Tex., owned a 1930 model four-door Ford sedan, the engine number of which was 3,148,142. This automobile was stolen from his garage in Mart, Tex., on or about the 21st day of April, 1931. On or about the 22d or 23d day of April, 1931, the state proved that, the appellant sold a four-door Ford sedan, 1930' model, to J. L. McMur-try. The sale took place in Breekenridge, Stephens county, Tex. This automobile had a highway license number A.38,403, on it, and the engine or motor number of said car appeared to be 2,689,346 when sold to McMur-try. Appellant executed the bill of sale in blank and delivered it, together with a receipt for duplicate plates dated 4-13-31, and a purported transfer of said automobile from Charles Catrone to appellant dated 4-13-31. McMurtry afterwards sold the same car on or about May 27, 1931; to one L. L. Davidson of the Street Motor Company of Graham, Tex., and delivered the bill of sale executed in blank by appellant, together with the other two instruments which were delivered to McMurtry by the appellant. On the same day said ear was sold by the said Davidson to one Jim Robinson, of Graham, Young county, Tex. The transfer given by the appellant for the transfer of said automobile from Catrone to the appellant shows that it had been transferred by the tax collector of Brazos county, and the duplicate plates were also obtained from the tax collector of Brazos county.

E. L. Steck, the person who lost said ear, testified that he afterwards received his car back, and he positively identified it as being his ear; that he could identify it not only by its looks and the color it was painted, but that it also had a few marks of identification when he recovered it; they were on it when it disappeared; that they were some paint marks.

The witness Edward A. Gormley testified that he had occasion to investigate with reference to the loss of an automobile by E. L. Steck about the 21st day of April, 1931, and he found the car at Graham, Tex.; that he investigated the numbers on the motor and the secret numbers on the frame; that he had been around where automobiles were manufactured and was familiar with the manner in which the motor numbers were put on the block of the Ford automobile, model 1930, and with the way the secret numbers are put on those cars; that the secret numbers are placed on the frame and correspond with, the motor number. When he examined this car at Graham, Tex., John McMurtry was with him, and the number that was on the motor was 2,689,-346, and the secret number was 3,148,142. He further testified that the cars are assembled and numbered at the factory, and the secret numbers are put on them at the assembly plant when assembled, after the motor is put on the frame that it is to be used in. When he examined the car at Graham, he was able to tell that the motor number had been hammered off and a new number put on.

The state also offered in evidence a purported certificate of transfer issued by the tax collector of Hill county, recognizing a transfer of a Ford sedan bearing the motor number 2,689,346, being the same as the engine number of the car sold by the appellant to McMurtry; the said transfer showing to have been made on April 24, 1931. ' The state also introduced in evidence the transfer certificate of the county tax collector in Hill county, showing that on April 6, 1931, he had recognized the transfer of the same automobile from Charles Catrone to the appellant; said papers being delivered by the appellant to the Hubbard Motor Company at the time of the sale to them of said car.

Appellant excepted to the court’s charge on the ground that the charge does not present properly the defense of the appellant as raised by the evidence, that is, the defense of ownership and purchase in good faith, and further that the charge did not present the question of the variance, that, if the state did not prove the purchase by John Mc-Murtry to be of the same car owned by the witness E. L. Steck, the jury should find the defendant not guilty. There was no dispute so far as the evidence was concerned or denial of the fact that the car sold by the appellant to J. L. McMurtry was the same car that was stolen from the witness E. L. Steck. The court in his main charge instructed the jury as follows: “You are instructed if you believe from the evidence that the automobile which the defendant sold to John McMurtry, as testified about in this case, was purchased by the defendant from some party, and the said purchase was in good faith, that then it would be your duty to find the defendant not guilty, or if you have a reasonable doubt whether such are the facts in the ease, you will find the defendant not guilty.”

We do not think said charge was upon the weight of the evidence, and the charge properly presented the defense presented by the appellant’s evidence. There was no charge requested by appellant upon this issue. The appellant did not testify as a witness in his own behalf, and the only evidence offered by him was evidence seeking to establish an alibi.

Appellant also objected to all the testimony pertaining to the sale by the appellant to the Hubbard Motor Company on the 24th day of April, 1931, of a four-door automobile, 1930 model, bearing the same engine number as that shown to be the engine number of the four-door Ford sedan, 1930 model, sold to J. L. McMurtry, because it was a transaction between the appellant and a third party not relating to the ease at bar and not admissible, for the further reason that it was an effort to impeach him by a separate transaction. The record shows that the state had offered in evidence a purported transfer from Charles Catrone to the appellant'of a four- ' door Ford sedan, 1930 model, of the same engine number as that sold to the witness Mc-Murtry by the appellant. Had this evidence been offered by appellant, it would raise the question of an explanation of the possession of recently stolen property, a defensive issue. See Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869. The contention of the state evidently was that the automobile sold to the witness McMurtry by appellant was not the automobile claimed to have been transferred by Catrone to appellant, because the certificate of transfer, the admission of which is complained of, is dated prior to the time the witness Steck lost his automobile. Upon this issue, we think the evidence complained of was admissible. The undisputed evidence was to the effect that the car sold by appellant to the Hubbard Motor Company on April 13, 1931, was a 1930 Ford sedan, and the engine number was identical as that of the Ford sedan sold by appellant to the witness McMurtry on the 22d or 23d day - of April, 1931, with the exception that the original motor number on the sedan sold to McMurtry had been hammered off and new numbers put on. We do not understand from the record that the state contended or attempted to prove that the ear sold to the Hubbard Motor Company was a stolen car, but its contention was that, if Catrone sold appellant a Ford sedan, it was the sedan sold by appellant to the Hubbard Motor Company and not the stolen car of the witness Steck.

The state relied upon circumstantial evidence to convict the appellant. If evidence ■is relevant upon the general issue of guilt or innocence, no valid reason exists for its rejection merely because it may prove, or may tend to prove, tbat the accused committed some other crime or may establish some collateral and unrelated facts. Underhill’s Criminal Evidence, § 154.

Appellant also contends that the evidence is insufficient to support the verdict. A careful consideration of all the evidence leads us to the belief that the evidence, although circumstantial, is sufficient to support the conviction. There are other bills of exception appearing in the record. We have carefully examined all of appellant’s contentions as presented by said bills, and fail to find reversible 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.


author: CALHOUN, J. LATTIMORE, .T.

text:
    CALDWELL v. STATE.
    No. 14833.
    Court of Criminal Appeals of Texas.
    Oct. 26, 1932.
    State’s Rehearing Denied Feb. 15, 1933.
    Lovett & Lovett, of Corsicana, Jed 0. Adams, of Dallas, and Richard & A. P. Mays, of Corsicana, for appellant.
    Cleo G. Miller, Crim. Dist. Atty., of Corsi-cana, Henry Tirey, of Dallas, J. S. Cailicutt, of Corsicana, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Appellant was convicted of assaulting and falsely imprisoning Robert Cerf, in concert with three others, while two of his (appellant’s) companions were masked. The punishment was assessed at confinement in the penitentiary for twelve years.

Robert Cerf, the injured party, was returning to his home when an automobile occupied by one Hassell stopped near him. Has-sell invited Cerf to* enter the car. 'After the car had proceeded for some distance, Jimmie Nash and Oliver Clapp, who were masked, jumped on the running board of the car and one of them directed a pistol at Cerf. They then carried the injured party to an apartment in Dallas, where he was detained until his father paid a ransom of $15,000 for his release.

Hassell testified that it was at the suggestion of appellant that the crime was perpetrated ; it being agreed that they would kidnap the injured party and hold him for ransom,- and, further, that a division of the money would be made by the perpetrators of the crime. The father of the injured party responded to an unsigned letter written to him by Hassell, advising him to deliver $15,000 to a certain place in Dallas if he desired the release of his son. This letter contained a threat to do violence to the son if the ransom was not paid. The agent of the father was taking the money to Dallas when he was held up and robbed. Later this money which came into the possession of appellant was divided between the parties, and the injured party was released from custody. The state introduced in evidence appellant’s written confession in which he admitted his guilt. Appellant did not testify. on the trial of the case.

Section 5 of chapter 63 of the Acts of the Thirty-Ninth Legislature, Regular Session (Vernon’s Ann. P. 0. art. 454e), reads as follows: “If any two or more persons acting in concert, or aiding and abetting each other, when either or all' of whom are masked, or in disguise, shall assault or shall falsely imprison any other person, each of such persons so offending shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for any term of years not less than five. The terms ‘masked’ or ‘in disguise' used in this article mean that such person by artificial means has so changed or obscured his usual appearance as to render his identification impossible, or more difficult than it would have been if such mask or disguise had not been used.” It was under the foregoing provision that the indictment was drawn. It is appellant’s conr tention that the statute above set out offends against the provisions of article 6 of our Penal Code; his position being that the mask or disguise is not described by any standard that is certain. The indictment alleges that appellant and his companions were masked and in disguise. The exact question presented here was before this court in Dellinger v. State, 115 Tex. Cr. R. 480, 28 S.W.(2d) 537, 539. In ruling adversely to the contentions of the appellant in Dellinger’s Case, we said: “In Anderson v. State, 113 Tex. Cr. R. 450, 21 S.W.(2d) 499, we upheld that part of section 3 of the act (Vernon’s Ann. P. C., 454c), which denounces as an bffense the disturbance of the inhabitants of a private residence by a masked person, and said that the term ‘masked’ has a well-defined and commonly understood meaning. Giving effect to such holding, we are of the opinion that that part of the statute which denounces an assault or false imprisonment while the offenders are masked definitely and clearly defines an offense. It is unnecessary to express an opinion as to the validity of the remainder of the section., The indictment charges that the offense was committed by the parties while they were masked, and the proof supports the allegation.”

The indictment charged that “Currie W. Caldwell * * * then and there acting in concert with Jimmie Nash, Oliver Clapp and Charles R. Hassell, and each of them, and the said Currie W. Caldwell', .Timmie Nash, Oliver Clapp and Charles R. Hassell, and each of them, then and there aiding and abetting each other, and the said Jimmie Nash and Oliver Clapp, and each of them, being then and there masked and in disguise, did then and there unlawfully assault and falsel'y imprison Robert Cerf, and by means of said assault and by means of actual violence to the person of the said Robert Cerf, and by the exhibition and use of, a pistol, did then and there wilfully and without authority of law, and against the consent of the said Robert Cerf, detain the said Robert Cerf, and did then and there and thereby, unlawfully and wilfully restrain the said Robert Cerf from removing from one place to another, as he, the said Robert Cerf, might see proper.” In his motion to quash, appellant averred that the indictment was duplicitous, in that two offenses were joined in the same count.

The opinion is expressed that the indictment charges two offenses in the same count. The indictment, however, is in substantially the same form as that found in the case of Dellinger v. State, supra. There a motion to quash the indictment on the ground that it was duplicitous was overruled by the trial court. Thereafter, in Dellinger’s Case, the court submitted in the charge the offense of assault while the offender was masked, thereby limiting the state to that offense for a conviction. It appeared in Dellinger’s Case that the transaction was continuous. There was no cessation in the assault from the moment it began until that of its termination. The blows that were inflicted upon the injured party and the seizure and detention of his person constituted an assault. The indictment in the form in which it was written was the means of bringing into the case no evidence that was not admissible under the averment charging an assault. While it was not conceded in the opinion of the court that the indictment was duplicitous, it was held that if the > indictment was duplicitous, the refusal of the court to quash, under the circumstances, was made harmless by the fact that the court, in submitting the case, elected to charge the jury only on the offense of assault while masked. In the opinion on motion for rehearing in Dellinger’s Case, Presiding Judge Morrow used language as follows: “The most that can be urged against the indictment in the present instance is that by the averments therein there was nominal; ly carved two offenses out of a single act or transaction, a fault (if it be a fault) which was corrected by the abandonment of that part of the. indictment which charged the alleged offense of imprisonment; and in the charge restricting the state’s right to a conviction to that part of the indictment alone which charged an assault. If there was error in refusing to quash the indictment (which is not conceded), it was made harmless by the forced election to rely upon the charge of assault.”

In the present case the transaction was continuous. There was no cessation in the assault from the moment it began until that of its termination. The exhibition of a pistol by one of appellant’s companions, and the seizure and detention of the injured party’s person constituted an assault. The indictment in the form in which it was written was the means of bringing into the case no evidence that was not admissible under the averments charging an assault, or that charging false imprisonment while masked. Under the circumstances, we are unable to reach the conclusion that the mere fact that the court failed to sustain a motion to quash would warrant a reversal of the judgment. However, appellant did not content himself with presenting a motion to quash, but followed the matter up by requesting the court, after the conclusion of the evidence, to require the state to elect as to the offense for which a conviction would be sought. This motion being overruled, appellant objected to the charge of the court on the ground that it submitted two offenses to the jury. After the jury had returned a general verdict finding him guilty as charged in the indictment, and assessing his punishment at twelve years’ confinement in the penitentiary, appellant, in his motion for a new trial, urged that he had been convicted of two offenses. In entering judgment the court applied the verdict of the jury to the single offense of assault by a person masked.

As we have heretofore stated, we are of the opinion that the section of the statute under which appellant was convicted defines two offenses, and that the indictment in a single count charges two offenses. At the time of the enactment of the statute under consideration, article 1138 of the Penal Code defined an assault. Article 1169 contained the definition of false imprisonment. In other words, two articles defined separate and distinct offenses. It might be that false imprisonment involves an assault; it being the announcement of the decisions that an illegal arrest is regarded in law as a continuous assault of an aggravated nature. Del-linger v. State, supra, and authorities cited. However, we do not think that an assault necessarily involves the commission of acts constituting false imprisonment. It is apparent that the statute condemns the commission of an assault upon another by two or more persons, acting together, while masked, and also that another distinct and complete offense is defined, that is, false imprisonment of another by two or more persons acting together while masked. Undoubtedly the Legislature, in passing article 454e, under which this prosecution proceeded, 'took as its basis the two separate and distinct misdemeanors heretofore named, to wit, assault and false imprisonment, and enhanced the penalty for the commission of such offenses when it was shown that the offender was masked.

In submitting the case to the jury, the court, in one paragraph of the charge, gave the statutory definition of assault, and subsequently, in another paragraph, set forth the statutory definition of false imprisonment. Thereafter, in applying the law to the facts, the court instructed the jury, in substance, to convict appellant if.they believed from the evidence beyond a reasonable doubt that he, acting with his companions, committed an assault, as that term had been defined in the charge, upon Robert Oerf, or if he falsely imprisoned the said Oerf, as false imprisonment had been defined in the charge, while appellant’s companions were masked. The court said in the charge: “Then if you do so believe beyond a reasonable doubt you will find the defendant Currie Caldwell guilty of committing an assault while masked or in disguise as charged in the indictment, or falsely imprisoning Robert Oerf, while masked or disguised, as charged in the indictment, and you will assess his punishment at confinement in the state penitentiary for any term of years not less than five.” The verdict was general, finding appellant guilty as charged in the indictment, and assessing the penalty at 12 years, which was more than double the minimum punishment.

It is the general rule that the accused cannot be convicted for two felonies on one trial under one indictment, and that it is a matter of such fundamental error as calls for a reversal. Knott v. State, 93 Tex. Cr. R. 239, 247 S. W. 520, and authorities cited. It is also the rule that a general verdict may be applied to whichever of plural counts in the indictment is supported by the proof. Knott v. State, supra. But in the present case the general verdict could not be applied to. the offense of assault because of the fact that appellant’s punishment was assessed at more than the minimum. Goldstone v. State, 114 Tex. Cr. R. 442, 25 S.W.(2d) 852; Knott v. State, supra; Horn v. State, 117 Tex. Cr. R. 22, 35 S.W.(2d) 145.

As heretofore pointed out, if the court had submitted one offense to the jury, the refusal to quash the indictment, under the circumstances, would not have brought about a reversal of the judgment. Upon another trial the court should submit only one offense in the charge to the jury.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, .T.

The offense created by section 5 of chapter. 63, of the General Laws of the 39th Legislature (Vernon’s Ann. P. C. art. 454e), makes penal him who, acting in concert with others, masked or in disguise, “shall assault or shall falsely imprison any other person.” Examination of article 1169, P. O., defining false ..imprisonment, reveals that One element of said offense is by an assault; and in Judge Willson’s Criminal Forms, 486, be lays down tbe making of an assault as one of tbe things to be alleged in charging tbe offense of false imprisonment. It seems clear to tbe writer that in drawing tbe indictment herein tbe intent of the pleader was to charge false imprisonment by this appellant and others acting in concert, some of whom were masked and in disguise.

Said indictment, omitting formal parts, charges that:

“Currie W. Caldwell, in the County of Navarro and State of Texas, then and there acting in concert with Jimmie Nash, Oliver Clapp and Chas. R. Hassell, and each of them, and the said Currie W. Caldwell, Jimmie Nash, Oliver Clapp and Chas. R. Hassell, and each of them, then and there aiding and abetting each other, and the said Jimmie Nash and Oliver Clapp, and each of them, being then and there masked and in disguise, did then and there unlawfully assault and falsely imprison Robert Cerf; and by means of said assault and by means of actual violence to the person of the said Robert Cerf, and by the exhibition and úse of a pistol, did then and there wilfully and without authority of law, and against the consent of the said Robert Cerf, detain the said Robert Cerf, and did then and there and thereby unlawfully and wilfully restrain the said Robert Cerf from removing from one place to another, as he, the said Robert *Cerf, might see proper, contrary to the forms of the statute in such cases made and provided, and against the peace and dignity of the State.
“S. B. Jordan, Foreman of the Grand Jury.”
There is no duplicity in said indictment, when considered as has just been indicated. True, under the terms of said section 5, chapter 63, supra, an offense would be charged if the pleader had omitted from the indictment everything except the averment of an assault, but he saw fit apparently to allege the more comprehensive charge of false imprisonment ; and the fact that therein appears the element of an assault pleaded furnishes no reason for an exception to the indictment on the ground of duplicity.

The charge of the triál court was excepted to because it, in effect, told the jury that appellant "was charged with two felonies; also because it authorized the jury to convict appellant of two felonies, and failed to require them to elect upon which offense they would base a conviction.

Examining the charge, we note that the court in paragraph four gave an extended definition of assault; and also of false imprisonment. In paragraph six the jury were instructed that if they found and believed from the evidence beyond a reasonable doubt that appellant, acting in concert with others-named, some, one or more of whom were-masked or in disguise, “did commit an assault, as heretofore defined, upon C by the use of a pistol or actual violence as alleged, or did falsely imprison said G, as that term has been defined to you, — then if you so believe beyond a reasonable doubt, you should find appellant guilty, — ‘of committing an assault while masked or in disguise,’ as charged in the indictment, or falsely imprisoning O while masked or in disguise, as charged in. the indictment, and you should assess his punishment at confinement in the penitentiary for any term of years not less than five.” The verdict returned found appellant guilty “as charged in the indictment,” and fixed his punishment at twelve years in the penitentiary. In his judgment on said verdict the trial court adjudged that appellant had been found guilty of an assault on G while masked, etc.

In Goldstone v. State, 114 Tex. Cr. R. 446, 25 S.W.(2d) 852, we discussed an almost identical point. In that case there were two counts, and the charge was excepted to because it did 'not tell the jury they could not convict of but one count, and because it did not tell the jury to state in their verdict of which count,-if any, they found the accused guilty. The verdict in that case was general and in terms like that here.

The case at bar differs from the Goldstone Case, supra, in this: That here, while there was but one count in the indictment, still, as clearly evidenced by the charge and the court’s application of the verdict to the offense of an assault, it was regarded that two offenses were charged in the indictment, and same were accordingly so submitted in the • charge in which the jury were told to find the accused guilty of the one offense, if they found the facts so and so, but of the other if they reached a different conclusion. In the face of this express instruction by the court, he received from the jury a verdict not specifying of which offense they found the accused guilty; but on the contrary find him guilty generally “as charged in the indictment,” and fixing a penalty at more than double the minimum penalty for either offense, or either phase of the offense submitted.

After having given the charge above set out, it appears clear that the learned trial judge in the instant case should not have received the verdict returned, and should have called the jury’s attention to their failure to specify of which offense or phase of the offense they found appellant guilty. They may have intended to find him guilty of only one offense, in which event their attention being thus challenged, their subsequent verdict ■would have expressed their intention; but this was not done, and we cannot tell, nor under facts like those in this ease when considered in tlie light of the charge given can we indulge speculation.

So believing, we are constrained to overrule the state’s motion for rehearing, and it is accordingly so ordered.


author: CHRISTIAN, Judge.

text:
    OWENS v. STATE.
    No. 15601.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1933.
    Newman & McCollum, of Brady, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

Under indictment charging him with murder, appellant was convicted of assault with intent to murder, and his punishment assessed at confinement in the penitentiary for two years. •

Deceased, Ed Smith, was appellant’s tenant. Apparently the relations of the parties had been unfriendly; it appearing that appellant had given deceased notice to surrender possession of his farm. Shortly prior to the homicide appellant had advised Mr. Peel that he had a landlord’s lien on certain crops raised by deceased. On the day of the homicide deceased’s son, Ernest Smith, hauled a load of milo maize to Mr. Peel’s place of business and offered it for sale. Upon being advised by Mr. Peel that appellant was asserting that he had a landlord’s lien on the maize, deceased’s son returned home and reported the matter to deceased. Whereupon, deceased procured his rifle, and, accompanied by his wife and Ernest Smith, drove to town. Upon reaching town deceased stopped his car in front of Mr. Peel’s place of business. Appellant was across the street, sitting in his automobile. Leaving deceased in his car, Mrs. Smith and her son, Ernest Smith, walked across the street to appellant’s car. A .difficulty ensued between Ernest Smith and appellant. According to the testimony of the state, after some words had passed between the parties, appellant attacked Ernest Smith with a piece of iron. . Appellant’s version was to the effect that Ernest Smith made an unprovoked attack upon him. In any event, the parties engaged in a fight in which Ernest Smith was the victor. During the difficulty deceased came from his car with his Winchester in his hand.- According to some of the witnesses, deceased ordered the spectators to remain away while his son was engaged fn whipping appellant. After appellant had been badly beaten by Ernest Smith, deceased and his wife and son went back to Mr. Peel’s place of business. According to the testimony of witnesses for the state, deceased put his Winchester down, but later he picked it up and started to his automobile. Placing the gun on the seat, he was in the act of getting into the car when appellant fired on' him twice. One shot inflicted a superficial wound which was not sufficient within itself to have caused death. The other shot failed to take effect. Deceased died shortly' after being wounded. It appears that deceased was suffering from Bright’s disease. The testimony was to the effect that he probably died as the result of a heart attack.

Appellant’s version of the transaction, given support in his testimony and that of his son and other witnesses, was to the effect that, after deceased had gone across the street, he faced appellant and presented his Winchester in his direction; that appellant’s son stated to appellant that deceased was going to shoot him; that he immediately secured his Winchester from his car and fired two shots in rapid succession at deceased. Appellant testified that he believed that his life was in danger at the time he fired upon deceased. Further, lie testified that Ernest Smith had made an unprovoked attack, on him, and that the unmerciful beating he had .received at his hands had gi-eatly excited him.

In the charge the court, among other things, instructed the jury that, before they could c'onvict for murder, they must believe beyond a reasonable doubt that the gunshot wound caused the death of deceased. Following the charge on murder the jury were instructed on self-defense, as follows: “If you believe from the evidence beyond a reasonable doubt that the defendant Tom Owens, at the time and place alleged shot Ed Smith with a gun, and if you further believe beyond a reasonable doubt that such gun shot wound, if any, was the cause of the death of the said Ed Smith, yet if you further believe that at the time of such shooting, if any, from all of the facts and circumstances that there was created in the mind of the defendant a reasonable apprehension that he was in danger of losing his life or suffering serious bodily injury at the hands of the said- Ed Smith, and that he shot to defend himself from such danger or apparent danger, he would not be guilty of any crime and in determining this you will view the situation from the standpoint of the defendant, under all the facts and circumstances, and in the event you so believe, or if you have a reasonable doubt thereof you will find the defendant not guilty and so say by your verdict.”

After setting forth the ingredients of assault with fntent to fnurder, the court instructed the jury, in substance, that if they had a reasonable doubt as to whether the gunshot wound caused the death of deceased, and if they did not believe that appellant was acting in self-defense, a conviction for assault with intent to murder should follow. The term “self-defense” as employed in the charge on assault with intent to murder was not • defined, unless the instruction covering self-defense hereinbefore quoted was sufficient to guide the jury in passing upon the question as to whether appellant’s version of the transaction exculpated him when the state sought to hold him for assault with intent to murder. Considering the charge in its entirety, the opinion is expressed that appellant’s exception was well taken. The instruction on self-defense is susceptible of the construction that the right to defend would not be present unless the jury believed that the gunshot wound was the cause of deceased’s death. Bearing in mind that the court predicated the charge covering the law of assault with intent to murder upon testimony to the effect that the wound was not the proximate cause of deceased’s death, it is apparent that the instruction on self-defense would furnish no adequate guide for determining whether appellant’s version of the transaction raised the issue of self-defense when the state sought to hold him on a charge Of assault with intent to murder. Booking to the charge, the jury might have concluded that if the wohnds were the proximate cause of deceased’s death, appellant Would be excusable if he acted in self-defense, but otherwise, if the wounds were not-the proximate cause of death, and that, in the latter event, the fact that appellant acted in self-defense would not preclude his conviction for assault with intent to murder. In short, the charge on self-defense, as applicable to murder, was so drawn as to be inapplicable to assault with intent to murder. A charge substantially the same as the one in question here was considered by this court in Jackson v. State, 118 Tex. Cr. R. 448, 39 S.W.(2d) 63, and the conclusion reached that the matter presented reversible error.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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