author: HAWKINS, J. LATTIMORE, J.

text:
    CORLEY v. STATE.
    No. 14795.
    Court of Criminal Appeals of Texas.
    June 8, 1932.
    Rehearing Denied Oct. 12, 1932.
    Bishop & Holland, óf Athens, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for transporting intoxicating liquor; the punishment being one 'year in the penitentiary.

The main contention is that the evidence does not support the verdict and judgment. Eor this reason we are at some pains to set out the evidence in detail. The state used only two witnesses, Ball and Sweeten. We conclude that Ball must have been -under indictment for the same offense as appellant. They were arrested at the same time, and the trial judge charged that Ball was an'accomplice witness. Sweeten was a deputy constable. He had information that a Chevrolet car had been stolen, and had the numbers on it. On the night appellant and Ball were arrested Sweeten was on the road abou,t two and one-half miles from Athens when he saw two cars coming toward him. They were running slowly when he first saw them, and then stopped. It was a minute and a half or two minutes from the time they stopped until Sweeten got to them and stopped his car. One of the cars was a Chevrolet, and witness stopped to examine the numbers and make some inquiry about it. The other was a Ford car. When Sweeten got to them, a man whom the witness did not know was down on his knees looking under the Ford, and, in response to a question from Sweeten as to what the trouble was, said his radiator had been leaking. He then got in the F'ord and drove away. Sweeten approached the Chevrolet car, and, in answer to his inquiry, the parties in it told him their names and where they lived. They were Ball and appellant. Ball was under the steering wheel, and appellant was sitting on the right side. Sweeten glanced in the back of the car and discovered some whisky in cartons. Between appellant’s feet was a half-gallon jar with a little more than a quart of whisky in it. Altogether there were five and one-half gallons of whisky in the car. Sweeten said he detected the smell of whisky on appellant’s breath, but that Ball did not appear to have been drinking. If any conversation occurred between the officer and appellant or Ball regarding the whisky or where they got it, the record does not show it. Ball was a brother-in-law of appellant. Ball testified that he had been with appellant from 11 or 12 o’clock up until about 9 o’clock that night, when the arrest took place; that he met appellant in Brownsboro, and appellant said: “Let’s ride around a little”; that they got in appellant’s car and drove down below Palestine about seven or eight miles; that after they “got down there he stopped over there at a house. I got out and went to get a drink of water. He talked to this fellow a little bit and we turned around and come back”; that they left there about 3:30 o’clock; that a few minutes before they were arrested appellant said he wanted to see “this fellow” — presumably referring to the man in the Ford car; that witness got out and walked around their car and got in under the steering wheel; that appellant was talking to “this fellow”; that the officer arrived on the scene about that time and the fellow got in his car and left. Ball said they did not stop between Brownsboro and the point they went to below Palestine, nor between that point and where they were arrested. Although the state put Ball on the witness stand, he never mentioned “whisky” during the whole of his testimony, nor does it appear that he was asked how or when the whisky got in the car, whether they left Brownsboro with it, whether they got it below Palestine, or at the point where the arrest occurred; neither was he asked if he knew what appellant’s business or conversation was with the party below Palestine, nor with the man present where they stopped oh the road just before the officer came up. Appellant did not testify.

As supporting appellant’s claim that the evidence is not sufficient to support a conviction for transporting the whisky, reliance is had on West v. State, 93 Tex. Cr. R. 370, 248 S. W. 371; Walling v. State, 94 Tex. Cr. R. 147, 250 S. W. 167; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613; Conner v. State, 118 Tex. Cr. R. 230, 38 S.W.(2d) 84. It would extend this opinion unnecessarily to here point out the facts which distinguish those eases from the present one. Appellant’s contention seems to be that it was possible the whisky might have been transferred from the Ford car to appellant’s car at the place of arrest, and, if so, there would have been no transportation on appellant’s part. It is sufficient answer to such contention to say that the officer’s testimony practically excluded the idea that the whisky found in appellant’s ear was obtained at the place where the arrest occurred. The circumstances rather cogently support the conclusion that it was in appellant’s car as he was seen by the officer driving along the road. Appellant requested the court to instruct the jury that there was no evidence showing that he had transported whisky, and to return a verdict of . “not guilty.” Such instruction was properly refused.

Appellant requested the court to instruct the jury, if they believed, or entertained a reasonable doubt, that the whisky was placed in appellant’s automobile at the place where the arrest took place, they would find appellant not guilty. Appellant complains that the refusal of this charge was error. There was no affirmative testimony raising the issue sought to be presented in the requested charge. Although Ball, who was appellant’s companion on the trip which culminated in the arrest, was a witness, it was not developed from him that the whisky found in appellant’s car was transferred from the Ford car at the place of the arrest. This' might easily have been shown. Neither did appellant testify that such was a fact. It occurs to us that the requested charge is based wholly upon a surmise that the transfer of the liquor might have been made from one car to the other at such place, rather than upon any tangible evidence that it did so occur. With the dearth of testimony found in the record upon the point at issue we are not prepared to say that the requested charge contained a.correct proposition: .of law. If the transfer of the whisky was-:made from, the Ford car to appellant’s (far about the time of the arrest, it was not in contemplation of appellant that his car would remain on the road, but that it would procefed to its destination. As to whether it could properly be held that a transfer of the liquor from the Ford car to appellant’s car, if it occurred, was a beginning, or a continuation of the transportation of liquor on appellant’s part, would depend upon his previous relation, if any, with the movement of the liquor in the. Ford ear, and his connection with the transfer of it from that car to his own. The record is silent upon all of these points, and we think, under the circumstances, the court was warranted in refusing the charge requested.

The following special charge was requested by appellant and refused: “You are instructed that the testimony of the witness Shirley Ball to the effect that he and the defendant went in an automobile to a place South of Palestine and returned, can and must not be considered by you for any purpose, it being shown that said Ball is an accomplice and there, being no testimony to corroborate him as to whether he and the defendant went to and returned from a place South of Palestine.”

We are cited to no authority by appellant supporting the proposition contained in the refused charge, and are aware of none. Witness Ball was treated as an accomplice witness and an instruction given that a conviction could not be had upon his testimony unless corroborated as required by the law. Thus appellant appears to have been given the benefit of all he was entitled to with reference to a direction from the court as to how Ball’s testimony should be regarded.

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

On Motion for Rehearing.

LATTIMORE, J.

The facts of this case are short and without " contradiction. Appellant and one Ball were in a car. At some distance in front of them, but how far is not shown, was another car going in the same direction as the ear of appellant. The two cars were met by an officer who testified that he got to the cars within “a minute or two” from the time he sighted them. Both cars had stopped. The man in the front car was down on his knees, looking under his car when the officer drove up. The man said his radiator was leaking. No one else was out on the ground. The appellant and Ball were in their car. Not a word of testimony suggested that ony one was moving anything from one car to the other. The officer said there were two cases of whisky in the back of appellant’s car, one of them full and the other not full. Appellant did not testify, but introduced a doctor who testified that the wife of appellant was using whisky upon his advice for various ailments. Said wife also swore that she used whisky for medicinal purposes on the advice of a doctor. The court submitted to the jury the defensive theory that, if appellant had the whisky or was transporting it for medicinal use for his wife, the jury should acquit.

On this rehearing the only contention is that the court erred in refusing to submit to the jury the theory that the whisky was placed in the car of appellant after it stopped and before the officer got there, and that there was, if this be true, no transportation. We might add that the man in the car with appellant testified, and did not make any sort of claim that the whisky was put in the car while it was stopped at said place. He said their car had been stopped about a minute when the officer came up.

It is a well-settled principle of law that the charge need not submit to the jury issues not supported by testimony. Smith v. State, 79 Tex. Cr. R. 468, 185 S. W. 576; Stephens v. State, 80 Tex. Cr. R. 74, 188 S. W. 976; Merritt v. State, 85 Tex. Cr. R. 565, 213 S. W. 941; Green v. State, 84 Tex. Cr. R. 162, 205 S. W. 988; Barrett v. State, 86 Tex. Cr. R. 101, 215 S. W. 858; Rodriguez v. State, 89 Tex. Cr. R. 373, 232 S. W. 512; Grissom v. State, 87 Tex. Cr. R. 465, 222 S. W. 237; Bohne v. State, 98 Tex. Cr. R. 388, 265 S. W. 1031. There was no error committed by the trial court in failing or in refusing to ■ submit the issue referred to. There was no evidence calling for its submission.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: CALHOUN, J. LATTIMORE, J.

license: Public Domain

text:
    HARRIS v. STATE.
    No. 14450.
    Court of Criminal Appeals of Texas.
    June 15, 1932.
    Rehearing Denied Oct 12, 1932.
    E. T. Miller, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State. ■ .
   CALHOUN, J.

The offense, possession of intoxicating liquor for the purpose of sale; the punishment, three years in the penitentiary.

The appellant was jointly indicted with one J. R. Schwartz. There were three counts in the indictment, the first count charging the appellant and J. R. Schwartz with the unlawful possession and having in their possession for the purpose of sale intoxicating liquor ; the second count charged the appellant and Schwartz with the unlawful possession and having in their possession a certain still, mash, material, and equipment and supplies for the manufacture of intoxicating liquor; the third count charged appellant and the said Schwartz with the unlawful manufacture of liquor capable of producing intoxication. A severance was granted and the appellant was put upon trial alone. All three of said counts were submitted to the jury,' and the jury found the appellant, S. A. Harris, guilty as charged in the first count in the indictment.

Peace officers had a search warrant to search the residence and premises of the said J. R, Schwartz. As they drove up to the premises, they saw appellant coming away from the house and going in the direction of the barn. He was wearing some dirty, smutty overalls. A search of the premises revealed in the house a complete still in operation, several barrels of mash, and three or four gallons of whisky. There was no one else found in the house or on the premises except the appellant.

Appellant testified at considerable length explaining his presence at the time and place and said that he. was there working for Schwartz doing some-plowing and had previ; ously been engaged and been working for á man by the name of Schwab who lived in that vicinity; that he completed the work for Schwab and had gone over to work for Schwartz on the premises where the whisky and still were found. He further testified that Schwab and his family had left to go to Oklahoma and had made arrangements with him to look after some hogs, chickens, and some cows; that they had to be looked after both in the morning and in the afternoon; that he would go to Schwab’s house to do the chores at night and stay there at night and come back in the morning to work for Schwartz. He further testified that he did not operate and was not in any way interested in any still or mash or the manufacture of any whisky on Schwartz’s premises; that he was not interested directly or indirectly with the still in any way; that he had no possession or control of the same or of the premises.

One of the officers testified that the appellant told him that he would watch the still once in a while himself.

There were no exception's or objections tó the court’s main charge nor any special requested charges. The case is presented here on three bills of exception, all of which relate to the same matter. ■

Bill of exception No. 1 complains of the action of the trial court in refusing to instruct the jurp not to consider the testimony of the state’s witnesses, Bob Barnett, O. T. Vanderpool, and John Fry, to the effect that the defendant was requested to and did .light the still that was found in the house owned by J. K. Schwartz, for the reason that said testimony was illegal, incompetent, and irrelevant, immaterial, and highly prejudicial to the rights of the defendant and were acts and things done under the direction of the officers after he was under arrest. There is nothing in this bill showing that the appellant was under arrest at the time he lit the still. There is nothing in the bill to verify the truth of the objection, and a mere statement of a ground of objection in a bill of exception is not a certificate of the judge that the facts which formed the basis of the objection are true. It merely shows that such objection was made, and the appellant did not incorporate so much of the evidence in the bill as would verify the truth of his objections. Therefore, .it is not subject to consideration under the authorities. See Coleman v. State, 110 Tex. Cr. R, 409, 10 S.W.(2d) 559; Arnold v. State, 74 Tex. Cr. R. 269, 168 S. W. 122, 125; Fisher v. State, 107 Tex. Cr. R. 383, 296 S. W. 545; Stanford v. State, 103 Tex. Cr. R. 182, 286 S. W. 798.

Bills of exception Nos. 2 and 3 relate to the same incident complained of in bill No. 1, and the same ruling was made. The bills., last mentioned are subject to the same defect pointed out in the discussion of bill No. 1. There is.nothing in either one of said bills that shows appellant had been arrested at the time of the alleged act by him. There ap? pears nowhere in any of said bills the certification of the trial court as to the truth or merit of any of these objections.

We note that the verdict of the jury found the appellant guilty as charged in the first count in the indictment, while the judgment of the court, after setting out- said verdict of the jury, finds .that the appellant was found guilty of the offense as charged in the second count of the indictment, and the sentence states that the appellant has been convicted of the offense of unlawfully possessing a still, mash, material, equipment and supplies for the manufacture of intoxicating liq.uor. The judgment and the sentence will therefore be reformed to conform with the verdict of -the jury finding the defendant guilty under the first count,in the indictment of the offense ¡of unlawfully possessing intoxicating liquor for the purpose of sale, and as so reformed the judgment will be affirmed. ,

Reformed and affirmed.

PER CURIAM.

The foregoing-opinion of the Commission of Appeals, has been; examined by the -ju.dges;\oi; the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant complains of the fact that we.- .reformed' the judgment and sentence, in this case to make them conform, to the verdict of the jury. There were three counts in the indictment, ail of which were submitted to the jury, and they found appellant guilty under count No. 1, which charged him with possession- of intoxicating liquor for purposes of sale. The judgment entered and the sentence following same adjudged appellant guilty of possessing a still, etc. That this court may reform a judgment or sentence or both which adjudge and sentence the accused for guilt of an offense different from that embraced by the verdict, is settled law in this state. Mány cases will be found collated under subdivision 14 of the notes of article 847, Vernon’s Annotated G. O. P., covering the exact contention of appellant in this -casé and holding adversely, to him. W.e call attention to Sterling v. State, 103 Tex. Cr. R. 151, 280 S. W. 777, and Rape v. State (Tex. Cr. App.) 286 S. W. 1090.

We have again examined appellant’s three bills of exception in the light of his able motion for rehearing, and the authorities cited! A statement in one of said bills, emphasis upon which is laid in appellant’s motion, to the effect that “it clearly appears,” etc.-, is not any statement of fact made by the court', but is merely a part of appellant’s statement of his objection, and was properly so regarded by us in the original opinion;

The motion for rehearing will be overruled.


author: CHRISTIAN, J.

text:
    REED v. STATE.
    No. 15225.
    Court of Criminal Appeals of Texas.
    June 15, 1932.
    Rehearing Denied Oct. 12, 1932.
    Lockhart, Garrard & Brown, of Lubbock, for appellant.
    T. L. Price, Dist.- Atty., of Post, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for six years.

The sufficiency of the corroboration of the accomplice witness is vigorously assailed. On the night of the 17th of June, 1931, the store of W. M. Yates was burglarized, and some merchandise and a .22 target gun were taken from the building. Appellant, Otto Knight, and Johnnie Kerns were jointly indicted for the offense. The state introduced as a witness Johnnie Kerns, an admitted accomplice,- who"testified,-in substance, that the burglary- of the store was committed by himself, Otto Knight, and appellant on the night in question; that before sundown he, appellant, and a woman by the name-of Billie Vanderbilt went to the store together, and while there worked on a casing on their- automobile; that they went from the store' to a place not far away" to see about buying some hogs; that they returned to appellant’s home, reaching there shortly before sundown; that that night he, Knight, and appellant-went back to Mr. Yates’ store, prized a window open, and took some merchandise and a .22 target rifle; that they had left the automobile 150 yards south of the store; that after burglarizing the store they carried the stolen goods to the automobile and drove to appellant’s home, where they unloaded the stolen property; that appellant received the .22 target rifle (which the witness identified on the trial of the case as having come from the burglarized store) in the division of the spoils. The accomplice witness testified further that he and Otto Knight had spent a month and a half or two months on appellant’s farm in his home prior to the day the store, was burglarized, and that appellant had been in, the house with him and Knight during .the time. Approximately two months after, the burglary, appellant’s home was searched and a .22 target rifle, which Mr. Yates, the injured party, identified as being his property, was taken therefrom. Appellant was not in his home at the time the search was made. Otto Knight, appellant’s codefendant, was at appellant's home at the time the search was made, and was arrested. Also there were living in appellant’s home at the time a man whom he had employed to work on his farm, and two women who were doing the housework. The injured party testified that appellant came to his store on the evening before the burglary, in company with a man and a woman, came inside and purchased some gasoline from him, and that while there appellant talked to him quite a while. Other witnesses testified to having seen appellant in the store of the injured party the evening before the burglary in company with other parties.

Appellant testified, in substance, as follows: The accomplice witness Johnnie Kerns, and Otto Knight came to his farm about the 22d of June, 1931, and remained there two nights and a day. At the time there lived in his home a man by the name of Shelborn and two women, who were doing the housework. His family lived in town. He spent most of his time in the house on the farm with Shelborn. He was not at the store of the injured party in company with Johnnie Kerns, the accomplice witness, and Billie Vanderbilt on June 17, 1931. He did go to the store on June 14, 1931, with M. O. ■ Sanders and his wife. On June 14, 1931, he left for Pampa, Tex., and remained there until the 21st of June. He was not in the vicinity of the store on the occasion of the burglary, and had nothing to do with it. The morning after he returned to his home from Pampa, Otto Knight and Johnnie Kerns came to his farm early in the morning, and remained there that day and the next night. Prom that time until some time in August these parties came back to his farm two or three different times. He had seen the target gun introduced in evidence, or one like it, in Otto Knight’s car. He had never had the gun in his possession or claimed • it, and knew nothing about where Knight got the gun.

On cross-examination, appellant testified as follows: “I saw a gun similar to this one in Otto Knight’s car. I did not know that the officers got this gun out of my home. I made a statement along soon after this to B. M. Parker that the gun they took out of my home my boy had bought it. His gun was missing about that time. If that was the boy’s gun then it could not have been this gun. I did not say that the one that the officers got out of my home was the gun my boy bought; I said that the boy’s gun, the one he had is gone and is still gone. It was gone along about the time the officers made the search. As to how it got away, I guess they carried it off. They carried off a lot of stuff. * * * My boy got the gun from Ben Bar-rington. There was no target gun on the place that I know of except the gun my boy had. * * * It stayed on my place part of the time. I think it was there when the officers made the raid. It was a .22 target gun.”

On redirect examination, appellant testified that he was present when Otto Knight tried to sell a similar gun to the one introduced in evidence to a man by the name of Luallin. Further, he testified that the gun introduced in evidence was not the gun his boy owned. Appellant’s witness Luallin testified that he was at appellant’s home two or three days before the officers made the search; that Otto Knight was there and tried to trade him a gun similar to the one introduced in evidence. He testified, further, that, at the time Knight approached him, Johnnie Kerns was also present. Appellant did not call his son to testify as to the loss of a gun.

In rebuttal, the state introduced witnesses who testified that they saw appellant at the store of the injured party on the evening of June 17th. Further, a witness for the state testified that appellant came to her house on the day before the burglary that night with a man and a woman in an automobile, and that appellant said to her he wanted to see her husband about some hogs and cows.. She said that she lived two and one-half miles from the store of the injured party. A second witness testified that he saw appellant at the store of the injured party on the evening^ before the burglary that night, and spoke to appellant.

We are unable to reach the conclusion that the accomplice witness was not sufficiently corroborated. The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be other evidence tending to connect the accused with the offense committed. Article 718, C. C. P.; Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422, 429. We quote from Minor v. State, supra, as follows: “Circumstances proved by credible witnesses may be as potent as direct testimony in tending to connect the accused with the commission of the offense. The state is not called upon to point to some single or isolated fact which in itself, unrelated to other proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by nonaccomplice witnesses which supply the test. If by this rule it appears on appeal that before the jury there was proof confirming the testimony of the accomplice to material facts tending to connect the accused with the commission of the offense, the law is satisfied.”

We observe from the testimony, aside from that of the accomplice witness, that the store was burglarized on the night of June 17, 1931; that appellant, a man, and a woman were at the store on the evening before the night of the burglary, in an automobile; that approximately two months after the burglary a .22 target rifle was found in appellant’s residence on his farm, and positively identified by the injured party as being his property; that the accomplice witness Kerns, and Knight, spent some time in appellant’s home, although they did not work there; that appellant stated shortly after the search that the gun taken from the house by the officers belonged to his son. In connection with these facts and circumstances, it is observed that, if the state’s testimony was to be believed, appellant’s statement to the effect that he was in Pampa on the night the offense was committed was fabricated. Again, appellant did not call his son to substantiate his claim that shortly after the search had been made his son had missed a .22 target rifle. If the jury believed the testimony to the-effect that the alibi of appellant was fabricated, that is, that he was not in Pampa on the occasion in question, they were authorized to conclude that the evidence touching the alibi showed an effort and scheme on his part to shield himself from the force and effect of the testimony tending to connect him-with the burglary. Viewed in such light, the testimony destructive of the truth of, the defense of alibi presented a crim-inative circumstance against appellant. See West et al. v. State, 116 Tex. Cr. R. 468, 34 S. W. (2d) 253. Considering the combined and cumulative weight of the evidence furnished by nonaccomplice witnesses, the opinion is expressed that there was before the jury proof confirming the testimony of the accomplice to material facts tending to connect appellant with the commission of the offense. See Fetters v. State, 108 Tex. Cr. R. 282,1 S. W.(2d) 312.

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: LATTIMORE, J. HAWKINS, J.

text:
    CLARK v. STATE.
    No. 14630.
    Court of Criminal Appeals of Texas.
    Jan. 20, 1932.
    Rehearing Denied Oct. 12, 1932.
    Roger Lewis, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for operating a pool hall; punishment, a fine of $25.

We find no brief on file for appellant.

The court properly overruled appellant’s motion to quash the second count of the information. The table, etc., described therein all appear in accord with the description of what constitutes a pool hall as set out in article 4668, Rev. Civ. Stats. 1925.

Appellant has a bill of exception to the action of the state’s attorney in reading to the jury panel article 4668, Rev. Oiv. Stats. The bill is qualified by the learned trial judge, with the statement that the district attorney was permitted to read to the jury the definition of a pool hall, as contained in said article, in order that he might examine the veniremen as to their qualifications. We see no injury possible from such course.

There is also a bill of exception to the definition of a pool hall as given in the court’s charge, the objection, as far as we can understand same, being that such definition was taken from our civil statutes and not from any part of our Penal Code. Our view of this, briefly expressed, is that the language of the general repealing clause at the end of the act adopting the Revised Criminal Statutes of 1925 (see Vernon’s Ann. G. C. P., vol. 3, p. 396 and Vernon’s Ann. P. C., vol. 3, p. 369) is broad enough to exempt from repeal the Revised Civil Statutes enacted in the same year by the same Legislature; the criminal statutes enacted at the same session of the Legislature, and all other laws enacted at such time. It is evident that in too many matters to be here enumerated we have to constantly look to our civil statutes to understand and decide matters which are pertinent in criminal cases such, for instance, as those relating to juries, grand juries, terms of court, etc. In our opinion, the action of the court below in giving the charge referred to was not in violation of any law, or of appellant’s rights. The facts seem fully to justify the conclusion reached.

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

On Motion for Rehearing.

HAWKINS, J.

Prom the agreed statement of facts, we copy the following:

“The alleged pool table (see exhibit ‘a’ attached) is known as a Ten-Ball-Table, or Miniature Pool-Table. It is similar to the regulation Pool Table in the following respects: Shape and design in that it is an upright structure, mounted on four legs, upon which a game is played with balls and cues. The' surface of the table is covered with felt; pockets are placed in the corners and along the sides of the table. The four sides of the surface of the table have cushions. The table is equipped with a ‘rack’ for placing the balls in position to start the game. The balls are made of a similar substance to those used on regulation pool tables, and besides the ten (10) playing balls, a cue ball is included in the equipment. The cues are tipped with leather the same as a regulation pool cue, and the table is supplied With chalk of the same nature as used on a regulation pool table. A string of wooden beads, or counters, is affixed on a slide to the side of the table for the purpose of adding the score.
“The game played upon the ten ball table is similar to the game of pool in this, to-wit: The ten balls are first ‘racked,’ the player then ‘breaks’ the balls with a cue ball and endeavors to knock the balls into the pockets, in the process of doing which similar shots, such as straight and bank shots which are used in the game of pool, are made.
“The ten ball or miniature pool table is dissimilar to the regulation pool table in that it is of miniature design, being 48 inches long, 26 inches wide, and 33 inches high; in that the cues and balls are proportionate in size; that the ten balls beat no numbers; that the miniature table ha's eight instead of six pockets; and the pool table of regulation size being 4½ feet wide, 9 feet long, having 15 balls numbered from 1 to 15.
“The most commonly played game of pool is played with fifteen balls, such game being known as pyramid, or rotation pool; that other games of pool may be played with two, three, five and more than fifteen balls. That said miniature table was exhibited for hire, revenue and gain in a drug store where goods and merchandise, of value were sold, the table being displayed on the open floor of the drug store where persons of all ages, both men and women, were eligible to play and did play this game on the particular table at the place ■ of. business.
“To operate the table the balls were obtained by placing a nickel in a ‘slot,’ where they were returned from the inside of the table. When the balls were shot into the pockets they were deposited in a container on the inside of the table and were recovered at the beginning of a new game by again inserting a nickle in said slot.’’

It was appellant’s contention on original submission, and is now, that the pool table in question is only a miniature, or toy pool table, and that a distinction should be drawn between it and the ordinary pool table to which it is claimed our statutes relate. It is further urged that the definition of pool hall contained in article 4668, R. O. S. (1925), has no application in the present ease. The law relating to pool halls and their suppression was passed by the 36th Legislature (1919), chapter 14, p. 18. The definition ol a pool hall is contained in section 1 of said act which is brought forward in the R. O. S. as said article 4668. The second section of said act prescribes the penalty for operating or maintaining a pool hall “as described herein,” and is brought forward as article 653, P. C., in the revision of 1925. The language of article 653 is identical with that found in section 2 of the original act, except that instead of using the words “as described herein,” found in the original act; and which was there appropriate, is changed in article 653 to read: “Whoever shall operate * * * a pool hall, as that term is defined lyy the laws of this State,” etc. Under the circumstances stated we feel justified in going to the Civil Statutes, the only place in the “laws of this State” where we find the definition sought.

Article 653, P. C., reads: “Whoever shall operate or maintain a pool hall, as that term is defined by the laws of this State, shall be fined not less than twenty-five nor more than one hundred dollars or be confined in jail not less than one month nor more than one year. Each day of such violation shall be a separate offense.”

Article 4668, R. C. S., in so far as applicable, reads: “No person acting for himself or others shall maintain or operate a pool hall within this State. The term ‘Pool Hall,’ as used herein, includes any room, hall, building or part thereof, tent or enclosure of any kind similar to those named, or any inclosed open space, in which are exhibited for hire, revenue, fees or gain of any kind, or for advertising purposes of any k&d, any pool or billiard table or stand or structure of any kind or character on which may be played pool or billiards, or any game similar to pool or Milliards played with halls, cues or pins or any similar device. Any such table, stand or structure of any kind used or exhibited in connection with any place where goods, wares or merchandise or other things of value are sold or given away or where or upon which any money or thing of value is paid or exchanged shall be regarded as a place where is exhibited the same for hire, revenue or gain. * * ⅜ ” (The italics are ours.)

Under the admited facts .heretofore stated, we are not able to escape the conclusion that the table in question, though smaller than the standard pool table, furnished the opportunity of playing thereon a “game similar to pool,” which was played with balls and cués. Neither do we think that, because the table was exhibited in a drug store, it would take away from it the character of a pool table, or prevent a conviction for operating a pool hall. The fact that the table was maintained in a drug store brings it directly under that part of article 4668, R. O. S., which states the effect of maintaining the table in connection with a place where goods are sold, etc. The nearest case in point- which we have discovered is Commonwealth v. Nance, 158 Ky. 444, 165 S. W. 423; 17 A. L. R. 102, note. The prosecution was under a statute relating to the playing by minors on a pigeon hole table “or any table similar thereto.” We quote from the opinion:

“The evidence * * * showed that ‘pigeonhole tables’ are tables not so wide as pool tables, and longer, but with four legs, and with rubber cushions on the sides, ¡and ends, and covered with cloth, and, instead of having pockets at each corner and on the sides, had a number of holes in the table at one end and certain pegs at or near these holes; that the game was played with balls and a cue, and, instead of the balls being numbered as in the other game,' the holes or pockets into which the balls rolled through the holes are numbered. It appears in the evidence that in playing pool the player may shoot from any side or end of the table where the cue ball may happen to be in his effort to put the numbered balls into the pockets, while in playing on the pigeonhole table he is required to shoot altogether from one end of the table, hn each game it is the purpose to put the balls either into the pockets or the holes. Each table is constructed along the same general lines. While the dimensions of the tables are different, they are each covered with a cloth, and they are each surrounded by rubber cushions to give life to the balls when they strike them; it requires in each game the same skill and practice to put the balls in the pockets on the one table as to put them into the holes on the other table; and in a general way it may be said not only that the tables are constructed along the same general lines, but that games played upon the tables require, in a general way, the same sort of skill, the same kind of practice, and a knowledge of the same character. Manifestly it Was the purpose of this enactment to discourage minors from frequenting such places, and to protect them from the evil habits which may be so easily contracted in such surroundings. With this purpose of the statute in view, and considering the general similarity between the two games of pool and pigeonhole, it cannot be said with any degree of reason that it was the purpose of the statute to protect them from the playing of pigeonhole pool and not to protect them from the playing of ordinary 15-ball pool. Statutes must be given a reasonable interpretation, and must always be construed so as to effectuate the purpose of their enactment when it can be done without doing violence to the language itself.”

Giving effect to what we understand to Be the legislative will jna,hes necessary the overruling of the motion for rehearing, and it is so ordered.


author: LATTIMORE, J. ' HAWKINS, J.

text:
    FOSTER v. STATE.
    No. 15363.
    Court of Criminal Appeals of Texas.
    June 24, 1932.

      Bert Edw. Derden, of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for rape; punishment twenty years in the penitentiary.

Mrs. Yallie Smith, a young and comparatively uneducated and ignorant widow, in destitute circumstances, put an ad in the paper asking for some kind of employment. It was answered by appellant, and in response thereto she came to work in appellant’s home for her board and keep. At a time only a little over a month after she came, appellant is charged with having ravished her. Her testimony made out a complete case against him of rape by threats; this being the only method of committing the offense submitted in the charge. The young woman testified, in substance, that by tbe exhibition of a pistol and threats to kill her appellant foreed her to submit to his desires. Appellant’s wife and daughter had left the place, which ’ was located out in the country, the day preceding the night of the alleged assault, and' no'-one was on the premises save appellant and prosecutrix. She reported the occurrence, and was examined by two doctors, who testified that she was bruised in various places on her body. The testimony showed that her husband had been dead aboutt a year, and that she had no one to whom she could look for support, and that she was a comparative stranger in the community. Appellant did not testify. He introduced his wife and daughter, who testified.'

Bills of exception A to G, inclusive, complain of argument oí the prosecuting attorney. We regret to pass by bills of exception without discussion, but manifestly complaint of a statement by the state’s attorney that “Her mother and his daughter knew she should not stay there”; that appellant has a beastly desire in his heart -for womanhood; that this young lady has the mentality of a 12 year old girl; mature judgment, this woman does not have it, as set out in the first four of said bills — cannot be appraised by us in the absence of facts set out in such bills from which we might be able to determine the merit of the objections, or the possible harmful character of the argument. Mere 'statements of grounds of objection are not certificates of fact, and we are always compelled to hold such bills of exception without merit. The jury saw and heard prosecutrix! testify, and heard appellant’s wife and daughter describe her conduct, and the remarks complained of in said bills, as far as we can tell, were fair discussions of what had been thus seen and heard by the jury.

The arguments set out in bills of exception H, I, and J aTe complained of as comments on the failure of the defendant to testify, to wit: “If you try to view this from defendant’s standpoint you run into a brick wall as to his defense;” “Where is there a'defense in this case? I thought they Would show she tried to get some money out of him but they didn’t;” “There is no evidence in here as a defense that she wanted any money. No evidence that she knew he owned the farm down there.” There were witnesses who took the stand in behalf of appellant, and a number of witnesses who testified for the state. In considering complaints such as those last referred to, we uniformly decline to hold them references to the failure of the defendant to testify, unless the language used or the circumstances be such as that from said language or circumstances there must arise the necessary inference that same called attention to the failure of the accused to take the stand. We do not think that such a situation is here presented. To say that one runs into a brick wall as to what is the defense in a given case is no more than to. say that, when you look at the testimony from a defensive standpoint, it presents nothing upon which a defense to the charge could be predicated. ,

There was no evidence of consent on the part of prosecutrix to the assault, and no error in refusing special charges seeking to have a defense based on such theory submitted to the jury.

Appellant’s bill of exception No. 1 complains of the failure of. the court to apply the doctrine of reasonable doubt directly to the question of penetration. As we understand paragraph .4 of the court’s charge, it made such direct application.

Bill of exception No. 2 complains of the fact that the state asked prosecutrix if she was raised bn a farm, and how long she had been to school. She answered that she was raised on. a farm, and that she had been to school but six years. We fail to see any erroneous, element in this. Bill of exception No. .3 complains of the refusal of a special charge, based on the proposition that the intercourse was with consent. As above stated, there was no testimony supporting' such idea. , .

Bill of exception No. 4 complains of ■refusal to charge that, if from the acts and conduct of Mrs. Smith appellant was induced to believe that she would consent to have intercourse with him, and if this caused him to so ¡believe, and if so believing he had intercourse .with her, he should be found not guilty. Manifestly as a purportedly correct legal proposition this would have no. place in the instructions given the jury.

Bill of exception No. 5.complains of the admission of testimony showing in effect that prosecutrix had no friends in the community, or relatives or persons to whom she could go with complaint of such treatment as that accorded her by appellant. In a case like this, such testimony is competent. The young woman had testified that appellant tried to have intercourse with her on a previous occasion without success, and she had admitted that she did not tell his wife or daughter of such conduct and did not leave the place.

■[7] Bill of exception No. 6 sets out a number of objections that were made tó the introduction in evidence of a dress. There is nothing in the bill of exception from which we might get information that would lead us to believe the testimony inadmissible. The setting out of a number of questions, and the grounds of objection advanced, brings nothing before this court.

Bill of exception No. 7 is to the refusal of a special charge seeking to have the jury told that they could not convict upon any other act than the one 'as of the date alleged in the indictment.' The record is bare of any testimony supporting the idea that there-was any other act of intercourse save the one involved in the instant case. , Bill of exception No. 9 complains of the .refusal of a special charge which was entirely covered by the main charge. There was. no testimony supporting the .proposition contained in bill of exception No. 8. , ..

In his motion for new trial appellant alleged misconduct of the jury; in that they had arrived at their verdict .by lot; that is, that they had agreed among themselves that each juryman should' set down on a piece of paper the penalty which he thought. "Should be inflicted, and that these figures; should be added or totaled, and that' their verdict Would be the quotient obtained by ’dividing this aggregate by twelve. He supported his averment by the 'affidavits of a nuffibérof the'jurors. When the motion was presented the court heard the testimony of all the jurors who were unanimous in their dénial thát such were the facts and the motion was' properly overruled.

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

On Motion for Rehearing.

' HAWKINS, J.

Appellant complains in his motion for rehearing, which covers eighteen pages closely typewritten, that .we,, were in- error in. our original opinion upon practically every conclusion stated. We ¡have carefully examined his motion and'the huffierous authorities cited therein. Such authorities unquestionably announce correct rules of law, but, their application in the present cáse is not thought pertinent.' In our' original opinion all of appellant’s bills of exception were given consideration. However, in view of the motion now before us,: they have been scrutinized again to ascertain if any matter .had been overlooked which would lead to a conclusion different' from that already expressed. After mature deliberation, the opinion still remains that, nothing appears from the record which justifies this court in disturbing the verdict.

The motion for rehearing is overruled:

Rehearing Denied Oct. 12, 1932.

      Rehearing Denied Oct. 12, 1932.


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

text:
    RUPARD v. STATE.
    No. 14792.
    Court of Criminal Appeals of Texas.
    June 8, 1932.
    Rehearing Denied Oct. 12, 1932.
    . Baskett & DeLee, of Dallas, for appellant.
    ■ Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

1Roy. Chick testified that on December 14, ■1930,- he owned 52 head of sheep; that on December 15 following he counted his sheep and found 4 of them missing; that about four days _ after he missed, his 4 sheep he found them at the place of business of Max Hahn packing Company; that he identified his kheep from general appearance, size, and marks; that he lived about three miles from the pasture in which he kept the sheep, and was in the pasture “around the sheep nearly every day.” J. D. De Fries testified, in part, on direct-examination, as follows: “I am acquainted with some sheep that he (Roy Chick) owned back in December. On the 14th of December we owned 50 ewes and two bucks : — 52 all told. I counted them on the 14th; in fact, I made a habit of counting them about every three days. On the following Monday Roy counted them, I didn’t. I was plough-ing. I was with Mr. Chick when he got his .sheep back. I was able to identify three of them positively as being the same sheep that I knew myself.”

On cross-examination the witness De Fries testified, in part, as follows: “Xes, sir, I worked for Mr. Chick. I am working his farm. I had charge of the stock. I was there on the pasture — on the farm that I was working. Mr. Chick was not living there. He lived in town, in Richardson, about two and one-half miles away. I was taking care of the sheep for him. * * * The sheep were turned over to me for attention and care. My duties with reference' to taking care of the sheep were I got a third of them for taking care of them. And they were turned over to me on the 8th of December. There were 52 head turned over to me at that time.”

Max Hahn, who owned the Max Hahn Packing Company, testified that he bought the sheep in question from appellant on the 15th of December, 1930. Appellant offered no testimony.

Appellant raises the question of variance between the allegation as to possession and ownership' in the indictment and the proof. The allegation in the indictment is that the sheep were taken from the possession of Roy Chick. Appellant maintains that the proof shows that the sheep were taken from the possession of J. D. De Fries. He not only raises the question of variance as to testimony, but contends that the court should have ‘instructed the jury, in effect, that, if they believed the animals were taken from the possession of De Fries and not Chick, to acquit him. The opinion is expressed that the proof showed that the sheep belonged to Roy Chick; that De Fries was his tenant and the animals were, kept on the place and were looked after by De Fries; that the owner, Roy Chick, also looked after the sheep. Roy Chick lived two and. one-half miles or three miles from his farm, and, according to his testimony, went to the pasture nearly every day and saw his sheep. There was nothing in the testimony of De Fries to negative joint possession of himself and Roy Chick. Article 402, O. C. P., reads, in part, as follows: “Where one person owns the property, and another person has the possession of the same, the Ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them.”

In Bailey v. State, 50 Tex. Cr. R. 398, 97 S. W. 694, 696, a question similar to that found in the present record was discussed. In that case possession was alleged in S. C. Fain. The proof showed that Fain had a farm some six or seven miles from Hillsboro, where his tenant Mitchell lived. Fain spent a good deal of his time on his farm with his tenant. The animal alleged to have been stolen was kept on the farm and was looked after by Mitchell. Not only did the appellant contend that there was a variance, but he requested the court to instruct the jury that, if they believed the animal was taken from the possession of Mitchell and not Fain, to acquit him. This instruction the court refused to give. In concluding that there was no variance, and that the court correctly refused to give the requested instruction,. this court, speaking .through- Judge Henderson, used language as follows: “In our opinion, the proof showed that the animal belonged to prosecutor Fain; that Mitchell was his tenant, and the animal was kept on the place and was looked after by Mitchell; that the owner, Fain, also looked after the animal. Fain lived on the place about half his time. In Duncan v. State, 49 Tex. Cr. R. 150, 91 S. W. 572, we held that article 445, Code Cr. Proc. 1895, did not relate alone to a technical joint ownership or joint possession, but referred as well to a case where the parties exercised a joint or common possession of the property. This case appears to have followed Cogshall v. State (Tex. Cr. App.) 58 S. W. 1011; Tidwell v. State (Tex. Cr. App.) 45 S. W. 1015; Coates v. State, 31 Tex. Cr. R. 257, 20 S. W. 585; Scoville v. State (Tex. Cr. App.) 81 S. W. 717. We do not believe there is any variance, nor do we regard the court’s charge as erroneous. We do not believe that the court was called on to give appellant’s special requested instruction on the subject of possession. Duncan’s Case, supra, was decided since the case of Long v. State, 39 Tex. Cr. R. 461, 46 S. W. 821, 73 Am. St. Rep. 954, and reviews the authorities on the subject of joint ownership, and construes article 445. Under that construction we hold that, where the fee of an animal alleged to have been sold is in A., and B. is a tenant of A., and both exercise care, control, and management of said animal, that they are in effect joint possessors of said property, and the possession can be alleged in either.”

In Hartman v. State, 85 Tex. Cr. R. 582, 213 S. W. 936, a situation similar to the one presented here was considered by this court. The holding in Bailey v. State, supra, was approved and the opinion quoted from at length. See, also, Haney v. State, 117 Tex. Cr. R. 560, 36, S.W.(2d) 1033; Yarbrough v. State, 107 Tex. Cr. R. 127, 295 S. W. 927.

We are constrained to overrule appellant’s contention that there is a variance. Further, the opinion is expressed that the court properly refused to give appellant’s requested charge on the subject of variance.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

Citing various decisions of this court, the appellant assails as incorrect the conclusion stated in the original opinion, and contends that there is a variance in the allegation and proof with reference to the ownership of the alleged stolen ship; at least, that there is an issue of fact upon the subject of possession which was erroneously withheld from the jury. We are constrained to conclude that the proper disposition of the case was made upon the original hearing.

The motion is overruled.


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

text:
    ORTIZ v. STATE.
    No. 15294.
    Court of Criminal Appeals of Texas.
    June 1, 1932.
    Rehearing Denied June 22, 1932. Further Rehearing Denied Oct. 12, 1932.

      Jno. T. Spann, of Crystal City, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for murder; punishment, five years in the penitentiary.

This record is in a peculiar condition. The case went to trial on November 16, 1931. The charge of the court and requested charges were filed November 18th, on which date also the verdict was returned. The motion for new trial was filed November 20th, and on the same day overruled, and sixty days granted appellant for filing his bills of exception and statement of facts. This time would have ended January 19,1932. On this date, however, the court granted an extension of time to February 19th, which Would have been one day beyond the full ninety days allowed by the terms of article 760, subd. 5, C. C. P., for filing bills of exception and statement of facts. Manifestly the trial court has no power to grant longer than ninety days after the overruling of the motion for new trial and the giving of notice of appeal. Appellant’s request for this latter extension recites specifically that he had, up to then, been unable to prepare his bills of exception because he had not gotten a transcript of the testimony. Notwithstanding the above, the court on February 16, 1932, attempted to grant appellant ten days additional from and after February 19th in which to file statement of facts and bills of exception. This was a matter ultra vires, and such attempt could convey no right to have considered such documents when filed after the ninety days allowed by statute.

Notwithstanding the facts recited and dates shown as above set out, we find in this transcript eight bills of exception, each certified by the clerk of the trial court as having been filed herein on November 16, 1931, or four days before the conclusion of the trial in the district court, and nearly ninety days prior to the date when appellant, in an application for extension, set up that he had not yet prepared any bills of exception. It, becomes a matter of some gravity when the clerk of a court violates the terms of articles 358, 359, P. C., but we are persuaded that the certificate of said clerk was so affixed through mistake or lack of information. Clerks of trial courts are without power to antedate or attempt to file back bills of exception, even though ordered so to do by trial courts, which latter does not appear . in the instant case. We cannot consider said bills of exception. Nor can we consider the statement of facts herein which should have been filed prior to February 18, 1932, but shows to have been filed on February 29, 1932. The fundamental matters of procedure appear to be regular.

No error being shown, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

In view of the affidavit explaining the delay in filing the statement of facts, we have concluded to consider the statement.

That there was an altercation in which the appellant, Leopoldo Ortiz, and the deceased, Luis Reyes, were participants is shown without conflict of evidence. It was the appellant’s theory that the conflict went but little further than the exchange of words. The testimony from the confession of the appellant, corroborated by that of bystanders, is to the effect that the deceased was stabbed by the appellant. Touching the immediate incidents of the transaction and the voluntary nature of the confession, there is some conflict of evidence. That the wound received by Reyes at the time of the altercation resulted in his death within a short time is not controverted. It follows from what has been said that the evidence is such as. to support the verdict of the jury finding the appellant guilty.

A number of bills of exception are found in the record, but in some unexplained manner they appear to have been filed two days before the trial began. The verdict was returned. on the 18th day of November, 1931. The bills bear the file mark of the 16th of November. From other parts of the record, there appear several requests for an extension of the time within which to prepare and file bills of exception and statement of facts. On the 20th of November there was an allowance of sixty days within which to file the bills of exception and statement of facts. On the 19th of February, 1932, there was an extension of time, and another extension of time on the 30th of January, 1931. In the cohdition of the record, this court would not be authorized to reverse the case because of any.matter pointed out in the bills of exception which did not otherwise appear from the record. However, we have examined each of the bills of exception and are convinced that, even if they might be considered, they present no , error which would justify this court in reversing the judgment.

No exception to the court’s charge is brought forward for review.

There was raised upon the hearing of the motion for new trial an issue of fact touching the alleged remark made by one of the jurors to the effect that the appellant was a bootlegger. The evidence was conflicting upon that subject, and the finding Of the trial judge is conclusive upon this court. See Scrivnor v. State, 50 S.W.(2d) 329, not yet reported [in State report], and cases therein collated.

The motion for rehearing is overruled.

On Application to Pile Second Motion for Rehearing.

MORROW, P. J.

The motion for rehearing was overruled on the 22d day of June, 1932, and the term closed on the 25th day of that month. The second motion for rehearing was filed on June 30, 1932. Therefore this court is without power to consider or grant the second motion for rehearing filed after the term has closed. See Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 9 S.W.(2d) 358, 60 A. L. R. 290. However, the matters presented in the motion have been considered in the original opinion and in the motion for rehearing. The bills were not discussed in detail, but were fully considered together with the record. We are constrained to regard the conclusions stated in the original opinion and in the opinion on motion for rehearing as properly disposing of the ease.

The application to file a second motion for rehearing is overruled.


author: CALHOUN, J. BATTIMORE, J.

text:
    GILLEAN v. STATE.
    No. 14324.
    Court of Criminal Appeals of Texas.
    June 8, 1932.
    Rehearing Denied Oct. 12, 1932.
    McKinney & Berry, of Cooper, and W. B. Collie and Grisham, Patterson & Grisham, all of Eastland, for appellant.
    Lloyd TV. Davidson, State’s Atty.', of Austin, for the State. ,
   CALHOUN, J.

The offense, murder; the punishment, 2 years in the penitentiary.

The facts in brief are as follows; The appellant and deceased were neighbors and had known each other for some years. Several years prior to the homicide the appellant had purchased a tract of land from the deceased in Lamar county, the consideration being $500 cash, with the remainder in vendor lien- notes. The land was afterwards turned back to the • deceased by appellant, and there seems to have grown up, at least on the part of the deceased, some ill feeling towards the appellant by reason thereof, and appellant offered evidence tending to show that deceased had used epithets towards the appellant, and there was evidence to show that the wife of appellant and a man by the name of Delaney had communicated the fact of deceased’s ill feeling towards the appellant to him prior to the homicide. The evidence showed that the appellant had been carrying his gun with him when he was around his premises, and it was also the contention of the appellant that his wife accompanied him because of fear of violence from the hands of the deceased.

The killing occurred about 11 o’clock on Sunday morning. The testimony showed that a pathway led by the barn of appellant, and was used customarily in going from the home of the deceased to church. The state’s witness, Mrs. Gaines, testified that on the morning of the homicide deceased left her house, starting to go to church, and she saw the deceased traveling along the pathway, and was able to see him as he neared and got to the barn of the appellant, and she heard a shot fired and saw the deceased stagger. Her testimony was to the effect that, so far as she could see, the deceased was doing n'othing at the time except traveling up that pathway on his way to church.

The body of the deceased was found by some children, lying right in the pathway about 85 or 90 steps from the barn of the appellant. No weapon was found upon the body of the deceased. The children who found the body ran to appellant’s house and informed him of the fact, and his only reply was, “He is?”

Appellant admitted the killing, and stated that he killed the deceased in self-defense; his contention being that, at the time the deceased approached the barn, appellant was putting some water under the barn for his chickens, and, when he first saw the deceased, he was coming towards him, and deceased said to him, “You God d- old Holiness son of a b-, I guess I’ve got you this time”; that he had his right hand behind him, and appellant did not know whether he had anything in it or not. The appellant then moved back into the hallway of the barn to a trough in which was lying his .38 Winchester rifle, and he grabbed it and fired one shot, which struck the deceased in the right side, and from the effect of which deceased died.

There are several bills of exception reserved to the receipt of the testimony of the sheriff and others to the effect that appellant stated to them just before his arrest that he had shot the deceased and showed them the gun with which the shooting was done. The bills complaining of the admission of said testimony are not before us in proper form, but, assuming that said bills one sufficient to require a review of the action of the court in admitting the declaration in question, we note the qualification of the trial judge to said bills to the effect, that the appellant went on the stand and testified that he shot the deceased and testified to the manner of the shooting and identified the gun shown the witness while on the stand as being the gun that he shot the deceased with, and that appellant’s wife also testified to the same facts. Ordinarily, the receipt of improper testimony will not bring about a reversal when the same.evidence from another source is before the jury without objection. This principle is applicable here. Rogers v. State, 26 Tex. App. 404, 9 S. W. 762; Walker v. State, 17 Tex. App. 16; Johnson v. State (Tex. Cr. App.) 26 S. W. 504; McLaughlin v. State, 109 Tex. Cr. R. 307, 4 S.W.(2d) 54; Upton v. State (Tex. Cr. App.) 20 S.W.(2d) 794.

Complaint is also made by bill of exception to the action of the trial court on motion of the state’s attorney in instructing the jury to disregard certain testimony sought to be offered by the appellant by the witness Kerbow, who, after testifying that he was a son-in-law of the appellant and intimately knew the deceased, testified that just prior to the homicide he had heard the deceased make a statement at the church house near the appellant’s farm to the effect that, if “the old son of a b-got anything off of him he would have to take a gun and get it.” The witness on further examination by the state stated that he did not know what he meant at the time; that there was not any impression created on the witness’ mind that in using the language the deceased had any reference to the appellant, and appellant’s name was not mentioned in that connection. The court permitted the appellant to prove all threats, acts, or demonstrations on the part of the deceased which had been communicated to appellant or of which he had knowledge or information. It occurs to us that the question and the evidence excluded in answer thereto would have called for an opinion and conclusion on the part of the witness as to who the deceased meant when he used the language testified to, and was therefore not admissible. See Mercer v. State, 111 Tex. Cr. R. 657, 13 S.W.(2d) 689; Crockett v. State, 45 Tex. Cr. R. 276, 77 S. W. 4; Britton v. State, 107 Tex. Cr. R. 32, 294 S. W. 541.

A number of bills of exception pertain to the testimony of the wife of the appellant on cross-examination, and all of said bills, as qualified by the trial judge, show that the testimony and questions complained of were germane and pertinent to the testimony given on her direct examination. As so qualified, they show no reversible error. “The wife of defendant may be cross-examined as to the matters testified to by her on direct examination, and the State is entitled to ask her who was present, as to their equipment, her opportunity for observation, and other questions as tending to show the ' accuracy of her direct testimony, and may apply the usual tests of cross-examination as to all matters germane and pertinent to her testimony given on her direct examination.” Branch’s Ann. Penal Code, § 162. See, also, Taylor v. State, 74 Tex. Cr. R. 3, 167 S. W. 56, 59; Roberts v. State, 74 Tex. Cr. R. 160, 168 S. W. 100, 113; Hampton v. State, 45 Tex. 154.

Bill of exception No. 23 complains that, while the appellant was testifying on cross-examination, after he had testified with reference to a conversation he had with one L. F. Delaney a short time before the killing, state’s counsel, over the objection of appellant, asked appellant whether Mr. Delaney on that occasion told him that the deceased had tqld him about his relationship with Mr. and Mrs. Gaines. The bill shows that the appellant objected to the question and the court sustained appellant’s objection, whereupon the following question was asked, “On Wednesday of this week before Jim Hill was killed, on Sunday, that is on Wednesday of the week before that, which would be the second Wednesday before Jim Hill was killed on Sunday, did Mr. Delaney come to your barn and did Mr. Delaney tell you on that occasion that Jim Hill was the first man who told him of your relationship with Mr. and Mrs. Joe Gaines?” to which the appellant answered, “No sir.” Appellant objected to the question and asked that the answer be excluded because it was immaterial, irrelevant, and not pertinent to the offense for which the defendant was being tried, and same was inflammatory and prejudicial, which objection was overruled by the court.

This bill of exception does not set out such facts or so much of the evidence as verifies the truth of the objection interposed and enough of the surrounding facts and circumstances are not stated to enable this court to determine the merits of the bill and the correctness of the ruling involved and to show that the evidence was inadmissible and the ruling was erroneous and hurtful to the cause of the appellant. See Holliman v. State, 108 Tex. Cr. R. 92, 299 S. W. 249; McDaniel v. State, 112 Tex. Cr. R. 498, 17 S.W.(2d) 821; Moore v. State, 111 Tex. Cr. R. 63, 11 S.W.(2d) 322.

The appellant complains that, while the court charged on the law of communicated threats, he did not charge on uncom-municated threats. There was no necessity for the court to charge on uncommunicated threats. This has been the holding since the decision in Dunne v. State, 98 Tex. Cr. R. 7, 263 S. W. 608-615. See, also, Emmons v. State, 100 Tex. Cr. R. 264, 273 S. W. 253; McRoberson v. State, 117 Tex. Cr. R. 405, 38 S.W.(2d) 82.

The record before us discloses that 19 special charges were requested by the appellant, one or two of which were given by the court and the others refused. There also appears in the record some 46 bills of exception and also some 18 general objections to the court’s charge. The majority of said bills of exception are in question and answer form, and are unaccompanied by the certificate of the trial judge showing the necessity therefor in order to elucidate the facts or questions involved. Other of said bills of exception complaining of the admission of testimony do not set out such facts or so much of the evidence as would verify the truth of the objection interposed, and enough of the surrounding facts and circumstances are not stated to enable this court to determine the merits of the bills and the correctness of the rulings involved and to show that the evidence was inadmissible and the rulings were erroneous and hurtful to the cause of the appellant. The main charge of the court, considered together with the special charges given, appears to have fairly presented the law of the case, and no error is perceived which in our opinion is so prejudicial to the rights of the appellant as would call for a reversal.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

BATTIMORE, J.

Appellant renews his objection to the indictment upon the ground that it recited that the indictment was returned by the “Grand jurors” of Delta county instead of saying the “Grand jury” of Delta county. The question has been before this court in other cases, many of which will be found collated in the latest opinión written by us holding against appellant’s contention. See Davis v. State (Tex. Cr. App.) 49 S.W.(2d) 805, 807, and authorities cited.

The conclusion that admitting the testimony of the sheriff and others as to what appellant said after being arrested, to the effect "that he shot deceased and shot him with a gun, was rendered harmless, if error, by the fact that when appellant took the stand as a witness in his own behalf he affirmatively testified to the same things, is supported by too many cases to need citation of authorities.

It is manifest that a bill of exception complaining that a-, witness was ngt permitted to say why he did not communicate “those vile epithets to your uncle” is insufficient ' when the bill does not set out the epithets, nor any fact or facts showing the materiality of admitting the reason why the witness did not so communicate same to appellant.

There are several bills complaining of the rejection by the trial court of indefinite threats made by deceased, in each instance it appearing that no one was referred to in same, and that the witness by whom appellant offered to prove same did not know to whom reference was made, and the bills presenting the complaints set out no state of facts from which the trial court or this court could conclude that the threat was directed toward appellant.

We have gone over each complaint renewed by appellant in his motion, and are more fully convinced, after such consideration than before, that the ease was properly disposed of in our original opinion. The testimony seems sufficient to support the conclusion that, because of differences and ill feeling arising from a land trade, appellant shot and killed deceased while the latter was passing his barn, and that the killing was because of a prior difficulty. The jury have seen fit to give appellant the lowest term for murder. He was ably defended by counsel who seem to have tried to save and present every point.

Finding no error in the. original disposition of the case, the motion for rehearing will be overruled.


text:
    PATE v. STATE.
    No. 15250.
    Court of Criminal Appeals of Texas.
    June 1, 1932.
    Rehearing Denied Oct. 12, 1932.
    W. B. Thomas, of Groveton, and G. C. Lowe, of Woodville, for appellant.
    Lloyd W. Davidson, State’s' Atty., of Austin, for the State.
   CALHOUN, J.

The offense, cattle theft; the punishment, two years in the penitentiary.

Appellant’s motion for new trial in this case was overruled on November 6,1931, and at this time notice of appeal was given, at which time appellant was allowed 50 days in which to prepare and file a statement of facts and bills of exception. The statement of facts was no.t filed in the trial court until February 23, 1932, which was 109 days after notice of appeal had been given. On the 28th day of December, 1931, .the trial court made an order extending the time in which to file a statement of facts and bills of exception and allowed 90 days from the date of adjournment of court on December 5,1931. The statement of facts was filed within 90 days from the adjournment of court. The time for filing bills of exception and statement of facts may not be extended by the trial court beyond the 90-day period provided by statute. Article 760, C. C. P.; Tillar v. State, 111 Tex Cr. 410, 13 S.W.(2d) 368. So far as the court’s order giving 90 days from adjournment had the effect of extending the time beyond that permitted by law, it was unauthorized. Simpson v. State, 110 Tex. Cr. 399, 10 S.W.(2d) 567 and cases therein cited; Finley v. State, 115 Tex. Cr. R. 240, 29 S.W.(2d) 346. The statement of facts was filed too late to be entitled to consideration by this court. See Simmons v. State, 116 Tex. Cr. R. 68, 28 S.W.(2d) 1084; Steelman v. State, 106 Tex. Cr. 214, 291 S. W. 549. We also note that the statement of facts does not show to have been approved by the trial judge.

No bills of exception appear in the record. Other complaints are made in appellant’s brief of the overruling of a motion for a continuance and also overruling appellant’s application for a change of venue. These are not brought forward by bills of exception, and cannot be considered in the absence of bills of exception.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Appellant’s motion for rehearing proceeds upon a misapprehension. His statement of facts was duly signed by the trial judge. We did not decline to consider same upon the ground that it was not signed, but expressly stated that the said statement of facts was filed too late for our consideration, which was a correct conclusion.

The other ground of complaint is the refusal of the trial court to grant appellant’s application for change of venue. We have no right to consider as error the refusal of a change of venue when no exception to such action was taken by the appellant. There is no bill of exception in this record making such claim.

■ There are no other compláints in the motion for rehearing, and same will be overruled.


author: CALHOUN, J. HAWKINS, J.

text:
    TYLER v. STATE.
    No. 14848.
    Court of Criminal Appeals of Texas.
    June 22, 1932.
    State’s Rehearing Denied Oct. 12, 1932.
    T. R. Mears, of' Gatesville, and A. R. Eid-son, of Hamilton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, assault to murder; the punishment, two years in the penitentiary.

The difficulty took place at night at a dance, but outside of the house and at a place where it was comparatively dark. Appellant’s brother, G. W. Tyler, referred to by the witnesses as “G. W.,” and the injured party got into an argument and during this argument the injured party, Lester Dollins, was stabbed in the side or back and from the effects of this stabbing the injured party was confined in the hospital some ten or twelve days.

Appellant complains by a proper bill of exception of the failure of the trial court to charge on the law of circumstantial evidence, claiming that the state’s case is based solely on circumstantial evidence.

The injured party, Lester Dollins, testified that he did not know who stabbed him; that he was stabbed from the back at the time he was engaged in a dispute with G. W. Tyler.

Paul Young, a witness for the state, testified that he did not remember seeing the appellant near the difficulty.

Rube Myers, another state’s witness, testified that he saw the appellant just outside of the house and he did not see his face, but that the person he saw fitted the description of the appellant; that he did not recognize the appellant and could not testify that it was he except that it fitted his description. He saw the person stab Lester Dollins but that he just came up and struck him like he was punching him; that he just struck him once, and when Dollins was stabbed he’ jumped backwards and the man who looked like the appellant stood there a few minutes and then he ran; that he saw Less Whatley come out and hit one or the other of the Tyler boys right after the injured ■party was stabbed; that to the best of his opinion, Whatley struck G. W. Tyler, the brother of the appellant. The witness further testified that he did not positively know the Tyler boys apart and he was with them more at the dance than any other time before or since.

Less Whatley testified for- the state that Lester Dollins and G. W. Tyler, appellant’s brother, were having an argument, and he, the witness, walked up pretty close and the appellant came along and hit Lester Dollins In the side with a knife, and then after a while he, the witness, hit the appellant on the head. On cross-examination, the witness was asked, “At the time of this stabbing, you didn’t recognize who did the stabbing at that time?” and he answered, “I think so. I believe I did.” When asked the question, “Didn’t you arrive at that by inference and argument; at the time the party did the stabbing you at that time didn’t recognize who it was?” the witness answered, “Not right at that time.” When asked the question, “And since then you have decided that it was Elmo?” he answered, “Yes, sir.” The witness also testified that the party he hit on the head or about the face was the party who did the stabbing. In answer to the question, “If you should be mistaken as to who you hit on the head you would then be mistaken as to who did the stabbing?” the witness answered, “I don’t know whether I would or not.” In answer to the question, “If it is a fact that you did not hit Elmo on the head but hit somebody else, then Elmo didn’t do that stabbing?” the witness answered, “I would be mistaken about it then.”

The state introduced one or two witnesses to the effect that the next morning after the difficulty, the appellant in discussing the case said, “I don’t know who did it but as I stepped outside of the house somebody hit me and went back into the house.”

The appellant denied doing- the cutting. He also denied making the statement alleged to have been made by him the next morning, and testified that what he did say was, “I would hate to have gotten out there and got hit and gotten a knot on my head.” The .appellant was corroborated in his testimony by several witnesses.

It is a well-established principle of law that, if the main fact in the case is proven as a matter of inference from other facts in evidence, the case rests wholly, in a legal sense, upon circumstantial evidence. Branch’s Ann. P. C., § 2478; Goode v. State, 56 Tex. Cr. R. 418, 120 S. W. 199; Stewart v. State, 71 Tex. Cr. R. 480, 160 S. W. 381. The question to be considered is: Have we in this case any direct testimony of appellant being the person doing the stabbing of the witness Dollins? As we consider the testimony of the witness What-ley, he did not positively identify the appellant as the person who did the cutting. In other words, his identification of the appellant, as it appears from the whole of his testimony taken together; is based upon inference from the facts in evidence that •occurred at the time of the cutting. If we accept as true the proof of witnesses for the' state that the next morning the appellant admitted that he was struck upon the head by some one, but denied stabbing the witness Dollins, it is only by process of inference that it can be considered as a confession or admission of the stabbing of the witness Dollins. We are of the opinion that the facts of the case call for a charge on circumstantial evidence, and the-failure of the court to so charge is reversible error.

Appellant, by bill of exception, also complains of the failure of the trial judge to submit to the jury a charge covering the exculpatory statements of appellant made to the witness Arthur Edwards and testified to by him. We do not consider that this shows reversible error. The state did not rely for conviction alone upon the admission of the appellant. “If the state does not rely for a conviction alone upon the admission or confession of defendant, but introduces evidence in rebuttal of the confession and admission, it is not error to refuse to charge that the state is bound by the whole of an admission or confession containing exculpatory statements.” Branch’s Ann. P. C., § 73; Slade v. State, 29 Tex. App. 392, 16 S. W. 253; McKinney v. State, 48 Tex. Cr. R. 404, 88 S. W. 1012; Whorton v. State, 69 Tex. Cr. R. 1, 152 S. W. 1082; Loan v. State, 69 Tex. Cr. R. 221, 153 S. W. 305, 43 L. R. A. (N. S.) 844; Powdrill v. State, 69 Tex. Cr. R. 340, 155 S. W. 231.

For the failure, of the court to charge on circumstantial evidence, 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.

HAWKINS, J.

The state has filed a motion for .rehearing insisting that we were in error in holding that appellant was entitled to an instruction upon the law of circumstantial evidence. A further review of the testimony does not lead us to believe we were mistaken in the conclusion announced in the original opinion. In the case of Johnson v. State (Tex. Cr. App.) 43 S.W.(2d) 263, the same principle of - law was considered, although the facts are somewhat different.

The motion for rehearing is overruled.


text:
    TINDALE v. STATE.
    No. 15248.
    Court of Criminal Appeals of Texas.
    June 8, 1932.
    Rehearing Denied Oct. 12, 1932.
    W. B. Thomas, of Groveton, and G. C. Lowe, of Woodville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, theft of a hog; the punishment, two years in the penitentiary.

The testimony in brief was as follows: The testimony of the state showed that Jim Bendy, the alleged owner of the hog stolen, had some hogs ranging in and around his place, among which was a small, white hog. The appellant lived some two miles away, and Bendy testified that for some time he had been missing some of his hogs and had been unable to find them. A witness by the name of Sweetser testified that on the day of the alleged offense he was out hunting, and he saw the appellant about a mile from Bendy’s place in a clearing in possession of a small, white hog weighing about 65 or 70 pounds. Appellant was carrying said hog in his arms, and he saw the appellant put the hog down and go away in another direction. He, the witness, then went up close to the hog, and identified it as being a hog belonging to Bendy because he was acquainted with Bendy’s mark, that is, the earmarks, and it was Bendy’s hog and had been recently killed. He reported the matter to Bendy, who reported it to the sheriff’s department. The evidence further showed that the appellant and two of his brothers resided together. The sheriff got a search warrant to search their premises, and, with the consent of one of the brothers, who was present at the time, he searched the premises, and he found where hogs had been recently slaughtered, and found some white hair and also some red and black hair at that place.

The appellant did not deny killing some hogs at the place alleged, but claimed that the five hogs so killed belonged to either him or his two brothers, and denied that it was Bendy’s hog he killed that the witness Sweet-ser saw in his possession. Appellant’s brothers testified to the same effect.

There was no exception to the court’s main charge, but several special requested charges appear in the record. There is no bill of exception in the record complaining of the refusal of the trial cou,rt to give any of said special instructions. While the special requested charges show that they were refused by the court, the record does not show that any exception was taken to the action of the court in refusing to give same. It has been repeatedly held that the appellate court will not ordinarily review the refusal of the special charges when no exceptions are reserved to such refusal. Cadena v. State, 109 Tex. Cr. R. 589, 6 S.W.(2d) 768; Arriola v. State, 108 Tex. Cr. R. 270, 1 S.W.(2d) 287. See, also, Cunningham v. State, 97 Tex. Cr. R. 624, 262 S. W. 491; Ashlock v. State, 106 Tex. Cr. R. 167, 291 S. W. 249.

Only one bill of exception appears in the record. This bill complains of' the evidence claimed to have been introduced showing a conversation that Jess Tindale, one of appellant’s brothers, had with the witness E. J. Shepherd to the effect that the said Jess Tindale had shown him some ears and some meat and told him what marks the five hogs were in. It is recited in the bill as the ground of objection that the said witness was under arrest at the time said witness made said statement, and that he was now under indictment charged with the same offense as that for which the defendant was then on trial. None of the surrounding facts or circumstances under which said statements were made are set out in said bill.

When the ruling of the trial court upon the receipt or exclusion of evidence is attacked, the correctness of the ruling will be presumed, in the absence of a showing in the bill of exception to the contrary, and the presumption in favor of the ruling will not be overcome by a mere recital in the bill of the grounds assigned for opposing the ruling. See Moore v. State. 7 Tex. App. 14: Douglas v. State. 58 Tex. Cr. R. 122, 124 S. W. 933, 137 Am. St. Rep. 930; Morgan v. State, 82 Tex. Cr. R. 615, 201 S. W. 654; Cavanar v. State, 99 Tex. Cr. E. 446, 269 S. W. 1053. However, should-we assume that the bill of exception is sufficient to require a review of the action of the court in admitting the testimony in question, we note that the appellant offered his brother, Jess Tindale, as a witness, and elicited from him the fact that he had a conversation with the witness Shepherd, and proved by him without objection substantially the same facts as testified to by the witness Shepherd complained of. Ordinarily, the receipt of improper testimony will not bring about a reversal, when the same evidence from another source is before the jury without objection. Rogers v. State, 26 Tex. App. 404, 9 S. W. 762; Snow v. State, 91 Tex. Cr. R. 1, 237 S. W. 563, 20 A. L. R. 1180; Nichols v. State, 91 Tex. Cr. E. 277, 238 S. W. 232.

In his amended motion for new trial, one of the grounds set up for new trial is that of newly discovered evidence, and attached to said motion for new trial is the affidavit of one S. J. Turpin. No evidence on the question of newly discovered evidence is brought before this court either by bill of exception or statement of facts. The order of the court overruling the motion for new trial recites that evidence was heard. It will not be presumed on appeal that the affidavits attached to the motion were not considered, or that they were alone considered. Where the record indicates that the court heard evidence upon the issue, this court must presume that the court’s action in overruling the motion was correct, and that the trial court acted on evidence that was sufficient to justify his action. Sykes v. State, 109 Tex. Cr. R. 39, 2 S.W.(2d) 863; Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99; Hughey v. State, 98 Tex. Cr. R. 413, 265 S. W. 1047. Applying this rule to the instant case, we must presume that the court’s action in overruling the motion for new trial on account of newly discovered evidence was correct.

Another ground of the motion for new trial is that the prosecuting attorney in his closing argument made statements inflammatory in their nature and which were without basis in the evidence. There is nothing in the record that shows that the appellant excepted to said remarks of the district attorney complained of or that any special instruction was requested asking that said remarks be disregarded by the jury, nor is this matter brought before this court by any bill of exception, and for that reason cannot be considered by the court.

Finding no reversible error as presented by the record, the judgment is affirmed.

PEE. CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that, because he complained of the refusal of the court to give his requested charges 1 and 5 in his motion for new trial, this should be held by us tantamount to an exception taken at the proper time to the refusal to give such special charges. The law seems well settled against appellant on this proposition. We think the complaint at our upholding the action of the court in admitting the evidence made the subject of bill of exception No. 1 was properly disposed of in our original opinion.

The motion for rehearing will be overruled.