author: HAWKINS, J.

text:
    Ex parte TURNER.
    No. 15752.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    J. O. Duvall and A. W. Dawson, both of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Relator was arrested upon a charge of operating a coin vending machine for selling cigarettes without having paid the occupation tax provided for in chápter 212, Acts Regular Session 42nd Legislature (1931) p. 355 (see Vernon’s Ann. Civ. St. art. 7047). The prosecution was lodged under the provisions of subdivision 23 of the act in ciuestion (Vernon’s Ann. Civ. St. art. 7047, subd. 23). By habeas corpus proceeding before the Honorable David McGee, judge of the county court at law No. 1 of Tarrant county, Tex., relator sought release from arrest, attacking subdivision 23 of the act in question on the ground that it violated section 35, of article 3 of the Constitution of the State of Texas. Upon a hearing, relator was remanded by order of the trial judge, and presents the question here by appeal.

This same subdivision 23 of the act in question was before this court in Ex parte Walker, 52 S.W.(2d) 266; and was sustained against an attack on the ground that it was rendered inoperative by reason of excepting from the provision of said subdivision pay telephones and gas meters which were operated with coins. The point now presented for consideration was not raised in Walker’s Case, nor was it in any way called to the attention of the court.

Section 35, article 3, of our state Constitution reads as follows: “No bill (except general, appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall-not be expressed in the title, such act shall' be void only as to so much thereof as shall not be so expressed.”

The act of the Regular Session of the 42d Legislature (chapter 212, p. 355) purports to amend certain subdivisions (designating them by numbers) of article 7047 of the Revised Civil Statutes of 1925, one of such designated subdivisions being 23. When we go to the Revised Civil Statutes of 1925, we find that subdivision 23 of article 7047 relates to an occupation tax on certain kinds of shows and reads as follows: “Prom each owner, manager or keeper of every panorama or view show, used for profit, exhibiting in a wagon, room, tent or elsewhere, an annual occupation tax of ten dollars and a county occupation tax of two dollars per annum. A panorama or view show is a show exhibiting pictures, statuary or other works of art which are to be viewed through stereoscopic or magnifying lenses.”

It will be noted that nothing appears in the quoted subdivision with reference to coin rending machines or the operators thereof. It deals with an entirely different subject. Subdivision 23 of the amendatory act (chapter 212 of the Acts 42nd Legislature (1931) makes no reference to anything contained in original subdivision 23 of article 7047, and is in no way germane to anything contained in said subdivision but relates to . an entirely different matter. The amended subdivision 23 (Vernon’s Ann. Oiv. St. art. 7047, subd. 23), reads as follows: “Erom every owner, manager, or exhibitor of every coin operated phonograph, electrical piano, electrical battery, graphO'phone, weighing machines, target pistol, miniature golf machine, miniature baseball machine, miniature race track stereoscopic machine, gum machine, candy machine, cigarette machine, handkerchief machine, sandwich machine, or any other class or kind of machine, whether enumerated or not, where a fee is charged, which is used for the purpose of amusement, entertainment or for vending commodities, merchandise, confections, or service of any kind and which is operated by coins or metal slugs or tokens similar to coins, where such fee is in excess of Five (5) Cents, an annual tax of Ten Dollars ($10.00), on each machine; where such fee is Five (5) Cents, an annual tax of Five Dollars ($5.00), on each machine; and where such fee is One (1) Cent, an annual occupation tax of One ($1.00) Dollar for each machine ; provided that the provisions of this subdivision shall not apply to pay telephones and gas meters which are operated with coins. It shall be unlawful to operate, show or exhibit any of the machines or instruments covered by this subdivision without having annexed or attached thereto where same is plainly visible, the tax receipt covering such machine or instrument for the current year for which same is operated, shown or exhibited.”

The caption of chapter 212, Acts 42d Legislature, is as follows: “An Act amending Subdivisions 4, 6, 7, 8, 9, 10, 12, 15, 23, 24, 25, 26, 27, 31, 32, 35, and 37 of Article 7047, of the Revised Civil Statutes of 1925; and adding Subdivisions 39, 40a, 41, 42, 43, and 44, to Article 7047, the latter imposing occupation taxes on certain persons who are dealers in cigarettes, who produce sulphur, who distribute, sell and/or use cement as herein provided, and who engage in the other occupations enumerated herein; and providing for the time and manner of collection thereof; providing for the issuance and display of receipts, and for forfeiture thereof; providing for the adoption of rules and regulations, and generally for the enforcement hereof; making exceptions; prescribing offenses, finés, penalties and punishment; providing for the making of reports and keeping of records and fixing of liens; and making an appropriation; allocating certain funds; and declaring an emergency.”

That portion of the caption reading, “the latter imposing occupation taxes on certain persons who are dealers in cigarettes,” appears to have reference to subdivision 39 of article 7047, Revised Civil Statutes of 1925, which deals with occupation taxes on cigarette dealers, and which subdivision 39 seems to have been re-enacted in chapter 212, Acts 42nd Legislature, 1931 (Yernon’s Ann. Civ. St. art. 7047, subd. 39). There is no mention in the caption of a purpose to impose an occupation tax on operators of coin vending machines generally including those. for selling cigarettes. One reading the caption and observing that it purports to amend subdivision 23 would, by reference to that subdivision of article 7047, be led to believe that the proposed amendment related to occupation taxes on “panorama or view shows,” which subjects are nowhere mentioned in either the amended subdivision 23 or elsewhere in said chapter 212, Acts 42d Legislature.

The identical question here presented, but regarding another statute, was before this court in the case of Katz v. State, 54 S.W.(2d) 130, original opinion delivered October 19, 1932, motion for rehearing overruled November 23, 1932, in which the contention of relator here made was upheld. The subject was exhaustively treated in tlie original opinion in the Katz Case and the authorities supporting the conclusion there reached were cited and reviewed. We feel that it is unnecessary to again go into the subject at length, but content ourselves with a statement of what occurred in the attempted 'legislation in the present instance.

Giving application to the principles recognized as controlling in Katz v. State, supra, we are forced here to hold that subdivision 23, as found in chapter 212, Acts 42d Legislature, Regular Session (1931), contained new substantive matter not germane or pertinent to that contained in subdivision 23 of article 7047, Revised Civil Statutes of 1925, and that said amended subdivision is legislation upon a subject not expressed in the caption to the act, and therefore void.

The judgment remanding relator is reversed, and the prosecution ordered dismissed.


source: Caselaw Access Project

author: CHRISTIAN, J.

license: Public Domain

text:
    MARISCAL v. STATE.
    No. 15765.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Chaney & De Graffenreid, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

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

The judgment is affirmed.

PER CURIAM.

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


author: LATTIMORE, J.

text:
    Alcadio MARISCAL v. STATE.
    No. 15766.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Chaney & De Graffenreid, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The record is here without statement of facts or bills of exception. The indictment, the charge of the court, the judgment and sentence appear to ¡be regular.

The judgment will be affirmed.


author: CALHOUN, J.

text:
    HILL v. STATE.
    No. 15333.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1932.
    Rehearing Denied Jan. 11, 1933.
    Alexander Gullett, of Denison, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, possessing intoxicating liquor for the purpose of sale; the punishment, 18 months in the penitentiary.

The state’s attorney before this court moves to strike out the statement of facts because not approved by the trial judge. Ic is made to appear by a statement of the trial judge that the original statement of facts was prepared within the 90 days allowed by law and the original question and answer statement of facts was presented to him for his approval, and he approved the same and intended to sign it but due to some oversight on his part failed to sign it after it had been presented to him. A mere failure to sign the statement of facts by the trial judge after it had .been presented to him. and otherwise approved by him would not in itself be sufficient .to deprive the appellant of a statement of facts. The statement of the trial judge, we think, .would be sufficient to meet the motion to strike out the statement of facts had it been filed in narrative form as required by statute, but this original statement of facts was in question' and answer form. This -case was tried in January, 1932, and the original statement of facts in question and answer form was filed in the trial court on April 2, 1932. Some confusion arose regarding the preparation of the statement of facts under the provision of chapter 135, 42d Legislature (1931), Regular Session, p. 228, but that was cleared up by chapter 34, First Called Session, 42d Legislature, 1931, p. 75, making it plain that a statement of facts in criminal cases should be in narrative form. The act of the special session mentioned became effective August 17, 1931. See Strickel v. State (Tex. Cr. App.) 49 S.W.(2d) 797. The statement of facts in question was filed more than seven months after said act became effective and for that reason said statement of facts cannot be considered.

There appears in the record another statement of facts filed in thé trial court on November 2, 1932, which appears to be in narrative form, signed and approved on November 2, 1932, by the parties and the* trial judge. This statement of facts was filed some ten months from the date notice of appeal was given on February 4, 1932. Article 760, subdivision 5, C. C. P., provides that the time for filing a statement of facts and bills of exception “shall not be so extended as to delay the filing thereof within ninety days from the date the notice of appeal is given.” Smith v. State, 115 Tex. Cr. R. 549, 27 S.W.(2d) 217, and authorities there cited. For the reason stated, the second statement of facts, although in narrative form, duly agreed to and approved, cannot be considered.

We are unable to say, in the absence of a statement of facts, that the matters complained of in the bills of exception were calculated to injure the appellant. In the absence of a statement of facts the presumption is in favor of the legality of the conviction. The presence of a statement of facts might reveal that the matters complained of were entirely harmless and the law, as we understand it, has laid upon us the duty of so presuming in the absence of a showing to the contrary in bills of exception and in the absence of a statement of facts. Smith v. State, 89 Tex. Cr. R. 225, 230 S. W. 161; Hinton v. State, 95 Tex. Cr. R. 3, 252 S. W. 525; Maddox v. State, 108 Tex. Cr. R. 90, 299 S. W. 246.

We note that the verdict of the jury finding the appellant guilty assessed his punishment at eighteen months in the penitentiary and the sentence fixed his punishment at confinement in the penitentiary for a straight term of eighteen months. The sentence will therefore be reformed so as to assess appellant’s punishment at confinement in the penitentiary for an indeterminate period of not less than one year nor more than eighteen months, and, as so reformed, the judgment is affirmed.

Reformed and affirmed.

PER CURIAM.

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


text:
    MERSHON v. STATE.
    No. 15758.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Norton Fox, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary; the punishment being assessed at 9 years in the penitentiary.

The record is before this court without a statement of facts or bills of exception. In appellant’s amended motion for new trial lie sets up misconduct of the jury in certain particulars. If the averments in the motion were supported by any evidence, the same is not brought forward by a statement of facts or bills of exception. Although the amended motion for new trial was sworn to by appellant and contained the averment of misconduct, it amounted only to a pleading. Johnson v. State, 111 Tex. Cr. R. 395, 13 S.W.(2d) 114; Rollins v. State (Tex. Cr. App.) 53 S.W. (2d) 786.

The judgment is affirmed.


author: MORROW, f>. J.

text:
    STEVENSON v. STATE.
    No. 15767.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    A. C. Buckner, of Houston, and Robert W. Dean, of Navasota, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, f>. J.

Transporting material and supplies for the manufacture of intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for three years.

The facts heard in the trial court are not brought to this court for review. There are no bills of exception in the record.

The motion for new trial challenges the sufficiency of the evidence and asserts misconduct of' the jury; 'also the rulings of the court on other matters of procedure. The motion is supported alone by the affidavit of the appellant. In the absence of the facts on the merits of the case and on the motion for new trial, this court has no data upon which to measure the soundness of the appellant’s contention, and under the circumstances is bound by the conclusion of the trial judge in overruling the motion. Especially is this true since the order overruling the motion recites that in passing thereon evidence was heard.

The sentence is' incorrect, in that it fails to follow the law as set forth in article 775, G. C. P., governing the indeterminate sentence. The judgment and sentence will be reformed so as to condemn the appellant to confinement in the state penitentiary for a period of not less than one nor more than-three years.

As reformed, the judgment is affirmed.


author: BATTIMORE, J. MORROW, P. J.

text:
    HINTON v. STATE.
    No. 15432.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    Rehearing Withdrawn Jan. 11, 1933.
    Keeney & Moseley, of Texarkana, for appellant.
    - Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BATTIMORE, J.

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

There are two complaints; one of the reception of testimony of the officers who followed appellant several blocks, overtook him, searched his car, and found ten gallons of whisky. We note that appellant took the witness stand in his own behalf and swore that the officers found the whisky in the car. This testimony in the record without objection renders of no avail appellant’s complaint that the officers searched his ear without warrant and without probable cause. As decisive we cite Reusch v. State, 119 Tex. Cr. R. 112, 45 S.W.(2d) 209, and the authorities therein cited. Both appellant and the officers testified to the driving of the car before it was searched. The other complaint was of the refusal of the court to charge on circumstantial evidence. The facts are such as to establish this as a case of direct testimony.

No error appearing, the judgment will be . affirmed.

On Rehearing.

MORROW, P. J.

Since the affirmance of the case and the filing of the motion for rehearing, appellant has filed his written request, duly verified, asking that said motion be withdrawn.

The request is granted, the motion for rehearing will be withdrawn, and the mandate issued at once.


author: CABHOUN, J. PER CURIAM. MORROW, P. J.

text:
    HOWLE v. STATE.
    No. 15369.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1932.
    Rehearing Denied Jan. 11, 1933.
    Jones & Jones, of Mineóla, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin-, for the State.
   CABHOUN, J.

The offense, transporting intoxicating liquor ; the punishment, 2 years in the penitentiary.

There are no bills of exception in the record. The ease is submitted here upon the sufficiency of the evidence to support the conviction. The testimony for the state came from two witnesses. Wesley Taylor, sheriff of Wood county, testified that he knew the appellant and had occasion to see the appellant on or about the 5th day of December, 1931, out by a truck parked on the side of the road and he took out after him and he threw down approximately a quart of whisky - in a half-gallon fruit jar; that this happened east of Mineóla, 8 or 9 miles; that he ran after appellant about 30 or 40 steps and at the time he first saw the appellant he was on the side of a truck and there were others with the appellant at the time but he did not know who they were; that he arrested the appellant and recovered, the whisky.

The witness T. H. Faulk, county attorney of Wood county, testified for the state that he was with Sheriff Taylor on the occasion when he arrested the appellant and there was no one else with them; that they were coming from the east and the truck was parked on the right-hand side of the road and the first thing he observed was that he saw some one jump from under the steering wheel of the truck and Taylor turned his car and threw his lights in a northwesternly direction and appellant was going down the dump and as he got down the dump he threw a fruit jar down and he'turned around to see what had become of the rest and Taylor chased appellant and caught him, and came back and picked up the whisky; that he saw the appellant throw it down and he did not know where the other persons went. He further testified that he was about 10 or 12 steps from the appellant when-he saw him throw the jar down; that the appellant was in the gleam of Mr. Taylor’s headlights.

The appellant did not testify as a witness in his own behalf but he offered testimony to the effect, that others had been with him and were with him at the time and they saw no whisky around or in the ear or on appellant’s person prior to the time he fled from the officer.

The issue of whether or not the appellant unlawfully transported intoxicating liquor was fairly submitted to the jury in the court’s charge, and the jury haying decided said issue against the appellant,’ we see no reason under the facts in this case to disturb the yerdict.

We note that the verdict of the jury finding the appellant guilty assessed his punishment at 2 years in the penitentiary and the sentence fixed his punishment at confinement in the penitentiary for a straight term of two years. The sentence will therefore he reformed so as to assess appellant’s punishment at confinement in the penitentiary for an indeterminate period of not less than one year nor more than two years, and, as so reformed, no reversible error appearing, the judgment is affirmed.

Reformed and affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

The evidence is accurately and fully set out in the original opinion. Appellant contends that the evidence does not show the commission of an offense. That the appellant was in possession of a jar of whisky; that upon the approach of the officer’s car the appellant fled, taking with him the whisky; that he abandoned it when the officers pursued him, were undisputed facts before the jury. The distance which the intoxicating liquor was moved has not been regarded as the sole test, hut the circumstances surrounding the transaction are important in interpreting the conduct of the accused. See Tullos v. State, 99 Tex. Cr. R. 122, 268 S. W. 174. See, also, precedents cited therein, including Lamb v. State, 95 Tex. Cr. R. 457, 255 S. W. 424; Finley v. State, 96 Tex. Cr. R. 542, 258 S. W. 1062; Lee v. State, 95 Tex. Cr. R. 654, 255 S. W. 425; Coburn v. State, 96 Tex. Cr. R. 25, 255 S. W. 613; Black v. State, 96 Tex. Cr. R. 56, 255 S. W. 731. See, also, Riddle v. State, 109 Tex. Cr. R. 258, 4 S.W.(2d) 56. The cases of Murphey v. State, 109 Tex. Cr. R. 524, 5 S.W.(2d) 988, and West v. State, 93 Tex. Cr. R. 370, 248 S. W. 371, to which the appellant refers, are not regarded as controlling. The possession or movement of the whisky in question by West was supported ,by very meager circumstances which on the whole, in view of the other testimony adduced upon the trial, are deemed insufficient to support the state’s contention of guilt. Likewise, in Mur-phey’s Case, supra, there was testimony adduced explanatory of the facts relied upon by the state, which testimony was deemed such as to negative the intent of the accused to transport the whisky in question.

The facts in the present instance are deemed such as to justify the jury in concluding that the appellant was transporting the whisky found in his possession.

The motion for rehearing is overruled.


author: CHRISTIAN, J. LATTIMORE, J. HAWKINS, J.

text:
    HENDRICKS v. STATE.
    No. 15197.
    Court of Criminal Appeals of Texas.
    June 15, 1932.
    Appeal Reinstated Nov. 2, 1932.
    Rehearing Denied Jan. 11, 1933.

      Baskett & DeDee, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

The recognizance recites that appellant “stands charged with the offense of embezzlement of $50.00 or over,” but fails to show that appellant has been convicted. It is necessary that the recognizance' or appeal bond show that the axipellant has been convicted. Article 817, C. C. P.; Wilmering v. State, 100 Tex. Cr. R. 169, 272 S. W. 463; Wall v. State, 110 Tex. Cr. R. 116, 7 S.W.(2d) 958. Appellant being enlarged under a defective recognizance, this court is without jurisdiction. Rhea v. State, 101 Tex. Cr. R. 298, 275 S. W. 1021; Wall v. State, supra.

The appeal is dismissed.

PER CURIAM.

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

On Motion to Reinstate Appeal.

LATTIMORE, J.

At a former term of this court this appeal was dismissed because of a defective recognizance. This defect having been remedied, the case will be considered upon its merits.

A statement of 'all the facts in this case would be of interest, but no more of them will appear than is deemed necessary to make plain the reasons for our opinion. Mrs. Biel-man was the injured party, and will he referred to herein as Mrs. B. I-Ier husband had been killed in an accident. Appellant himself testified that he was at the time an adjuster, and went to see Mrs. B. about the matter of her claim against the railway company, and took her to a lawyer who filed suit, after having been given by her a contract to pay him one-third of the amount recovered. She testified that she turned her claim over to appellant for him to collect samel Appellant said he was actively engaged for months in working on the case. This accords with all the testimony. Shortly before the matter was settled, the attorney first engaged was discharged, and another contract was made and signed by Mrs. B. with a different attorney, agreeing to give him one-third of the amount recovered. The case was settled without trial. The railway company paid $2,500; same being in the form of a draft payable to Mrs. B. and the second attorney referred to. Appellant was present when this draft was delivered, and it was given to him by the attorney for the railway company. Appellant went with Mrs. B. to a bank. The draft had been indorsed by the attorney and Mrs. B., and, upon presentation of same by appellant to the bank, the $2,500 called for therein was paid to appellant. He put one-third of it in one pocket and the other two-thirds in another pocket. He and Mrs. B. then went to the office of a building and loan company, the methods and manner of whose’ business had been previously investigated by appellant. At the office of this concern appellant purchased three stock certificates of $500 each and received also a passbook showing a deposit of $166.67. The three stock certificates and the passbook were made out to “R. L. Hendricks, Agent.” There were no dealings and no conversation between Mrs. ’ B. and the officers of the building and loan company. This transaction was in January, 1931. In April following appellant cashed the three stock certificate's and the passbook deposit, getting $1,690 plus some cents. This money he appropriated to his own use, according to his own testimony. Between the time of the settlement of the claim and the return of the indictment herein, appellant had paid to Mrs. B. at different times sums amounting to about $200. 1-Ie was indicted for embezzling $1,473.39, • the property of Mrs. B.

While on the witness stand, appellant was asked on cross-examination, as appears from bill of exception No. 1, where this money was, and whether he was trying to keep it hid where Mrs. B. could not get her hands on it. Objection being overruled, appellant replied that he had used some of it, and some he had not. He was then asked how much of it he had, and, objection to this being overruled, replied that he had about twelve or thirteen hundred dollars that he could get hold of that day. Appellant cites no authority in support of his contention that the admission of this testimony was erroneous and hurtful. The state’s claim being that of a wrongful conversion ■ of this money by appellant, we cannot say they had no right to trace the money, if they could,' and to try to find out where it was or to what use appellant had put same; nor can we find reason for believing appellant could be improperly hurt by proof that he had used or invested part of said money in his business and had the remainder. If the jury believed the transaction a loan, as contended by appellant, such use of the money would have been proper.

Appellant asked a peremptory instruction for acquittal and another special charge which was tantamount to a peremptory instruction in his favor. We believe the applicable parts of this last-mentioned charge were given in other special charges hereafter noted.

In special charge No. 3, given by the court, the jury were told that, unless the money in question came into the possession of appellant by virtue of his being the agent of Mrs. B., and that it was his duty by .reason of such agency, to receive such money, then its receipt and conversion by appellant would not be embezzlement. In the same charge the jury were further told that, if they found from the evidence, or had a reasonable doubt thereof, that it was not appellant’s duty to cash the draft mentioned in this case, then they should acquit him. Also in same they were further told that, even though they found that appellant cashed the draft, obtained the money, and converted same to his own use, if they further found from the evidence, or had a reasonable doubt thereof, that in so doing he went beyond the scope of his employment, then said money did not come into his possession by reason of his agency, and he should be found not guilty.

In special charge No. 4, also given, the jury were told that, if appellant got the money in question from Mrs. B. as a loan, he would have the right to use it as he pleased, and such acquisition would not he embezzlement; also that, in order to make of the transaction a loan, it was not necessary that any promissory note or other written instrument be given, hut the transaction might be entirely oral. The jury were also told in this charge that, if Mrs. B. delivered said money to appellant, or permitted him to retain it as a loan to be used in his business and be repaid at some future date, it would not be embezzlement even though he had not repaid same and did not intend to repay it when he got it, and in any such case the jury should acquit appellant.

As we understand this record, these charges so given covered affirmatively, as well as in a negative way,.every issue raised by the testimony. The jury having decided each of these issues against appellant, the only question left to ns is that of the sufficiency of the testimony. Without stating our views on this matter as strongly as the testimony would seem to warrant, we are of opinion that the testimony supports the conclusion reached by the jury.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

.Appellant urges on rehearing as he did on original submission that, if guilty of any offense, it was theft by conversion, and not embezzlement. We are unable to agree with such contention. There is no question but that appellant was Mrs. Bielman’s agent In effecting a settlement of her claim for damages against the railroad. When the draft in payment of such damages was cashed, both appellant and Mrs. Bielman were present, and the money was turned over to appellant. Apparently he put his part of the money in one pocket and her part in another. I-Ie did not hand it over to her, but accompanied by her went to the office of a building and loan company where he purchased three stock certificates of .$505 each and received a passbook showing a deposit of $106.67. He had the certificates issued in his .name as “agent” and made the deposit and took the passbook therefor in his name as “agent.” In this transaction he acknowledged that he was acting as “agent” for Mrs. Bielman. He could have been acting in that capacity for no one else. When would this agency cease? By his act in taking the certificates and deposit in his name as “agent” he made it possible in the same capacity to cash the certificates and withdraw the proceeds. Certainly so far as the embezzlement statute is concerned he could not terminate his agency by converting the proceeds to his own use without his principal’s consent. If .such were true, there would never be an embezzlement. Certain affidavits are attached to appellant’s motion for rehearing which we are asked to regard as a part of the application for writ of coram nobis. Such proceeding has not been recognized in this state as having application to criminal cases. Ex parte Minor, 115 Tex. Cr. R. 634, 27 S. W.(2d) 805; Ex parte McKenzie, 115 Tex. Cr. R. 315, 29 S.W.(2d) 771. It is not necessary to discuss other questions suggested in the motion for rehearing.

The motion for rehearing is overruled.


author: CHRISTIAN, J. CHRISTIAN, J. LATTIMORE, J.

text:
    FAGGETT v. STATE.
    No. 15597.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1932.
    Appeal Reinstated Nov. 23, 1932.
    Rehearing Denied Jan. 11, 1933.
    W. A, McIntosh and Milton Greer Mell, both of Gilmer, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

The recognizance on appeal is fatally defective in that it 'binds appellant to appear in the district court of Upshur county from day to day and term to term in order to “abide the decision of the Court of Civil Appeals of the State of Texas.” Appellant being enlarged upon an invalid recognizance, this court is without jurisdiction.

The appeal is dismissed.

PER CURIAM.

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

On the Merits.

CHRISTIAN, J.

The record having been perfected, the appeal is reinstated, and the case considered on its merits.

No statement of facts is brought forward. The judgment recites, in substance, that appellant and his counsel appeared in open court, and that 'both parties announced ready for trial. Further, it recites that appellant pleaded guilty to the charge contained in the indictment, and, although admonished by the court of the consequences of his plea, persisted in making such plea. Again, it is recited in the judgment that it appeared to the court that appellant was sane and that he was uninfluenced in entering a plea of guilty by any consideration of fear,- or by any persuasion or delusive hope of pardon prompting him to confess his guilt. At the time of entering his plea of guilty, appellant presented through counsel appointed by the court his application for a suspended sentence. The verdict of the jury found appellant guilty of possessing intoxicating liquor for the purpose of sale, as charged in the indictment, and assessed his punishment at confinement in the penitentiary for one year, but expressly stated that it was not recommended that sentence be suspended.

In his first amended motion for a new trial, appellant -alleged that he was an unlettered and untutored negro more than 50 years of age; that he could only write to the extent of signing his name; that he had never before been charged with a criminal offense; that he had not been arrested on the indictment until the fifth day of May, 1932, on which day he learned for the first time that an indictment had been returned; that he had no witnesses present in court at the time his case was called ior trial, and had no attorney to represent him, except counsel appointed toy the court to present his application for a suspended sentence; that the reason he had no counsel was that the officer who arrested him stated to him in the presence of his bondsman that he did not need a lawyer, hut that it would only be necessary for him to come to the county seat with his bondsman on May 9, 1932; that he understood from this statement that his case would not be tried on May '9th, but would be-set for trial on a later date; that the state relied for a conviction upon the fact that officers discovered in his home three pints of intoxicating liquor; that, if it had not been for the words and acts of the arresting ■officer, he would have explained on the trial' of his case the presence of the liquor in his home; that on the day preceding the discovery of the whisky a white man whose name he did not know came to his home and requested his (appellant’s) wife to permit him to leave a package with her; that, permission being granted, this man left a paper sack, which later was found to contain the whisky discovered by the officers in his home; that, at the time this man came to his home, he (appellant) was a short distance away in his field; that he did not give this man permission to leave the package in his home and did not know he was leaving it there; that one Babe Hanson was present and saw the package left in his home; that this witness told him about the transaction shortly after its occurrence and promised to be present on his trial, saying it was not necessary to issue a subpoena for him ; that his (appellant’s) wife could not testify in his behalf on the trial because of the fact that she had been indicted for an offense growing out of the same transaction; that the case against his wife had not been tried, and that, if he had been represented toy counsel, he would have filed an application for a severance requesting that his wife be tried first; that; if he had known that his case was to be tried on May 9th, he would have been represented by counsel and would have had in court the witness Babe Hanson, who would have testified in his behalf; that his (appellant’s) wife would have testified that the mash found in his home was “chicken feed in soak” and was the kind and character of feed she was in the habit of feeding to her flock of chickens, and that same was not mash for use in making whisky; that he was entirely ignorant of the methods of court procedure and his rights and duties 'in the case; that relying upon the statement and instructions of the deputy sheriff, he did not employ an attorney to represent him and did not have his witnesses in court when his case was called for trial; that, being suddenly confronted with the necessity of going to trial without an attorney and witnesses and being frightened by the strange surroundings, and not knowing what to do, he entered a plea óf guilty through counsel appointed for him- by the court for the purpose of filing and presenting his application for a suspended sentence; that the attorney appointed by the court did not go beyond the duties imposed upon him in presenting hfs application, and knew nothing of his case; that, immediately after the return of the verdict of the jury finding him guilty and refusing to suspend his sentence, he employed counsel of his own choice to present his motion for a new trial; that there were a largo number of witnesses who would testify to his previous good, character and reputation as a peaceable and law-abiding citizen; that, if granted a new trial, these witnesses would appear and testify.

Attached to the motion was the affidavit of E. R. Bradley, in which it was, in substance, averred that he had known appellant for many years and that he bore a good reputation for being peaceable and law-abiding; that he heard the arresting officer tell appellant at the time he (affiant) signed appellant’s bond that he did not need a lawyer; that nothing was said about the ease being tried on May 9th at that time; that he understood from the conversation that the case would be set on May 9th but not tried; that he had also advised appellant not to employ a lawyer before May 9th; that appellant was an ignorant negro about 50 years of age. In the affidavit of Babe Hanson, which was also attached to the motion, it was averred that he was present and saw an unknown white man deliver a paper sack to appellant’s wife, which she carried into the house; that appellant was not present at the time, but was in his field a short distance away; that he told appellant he would testify to such fact, and agreed to come to court without the service of a subpoena ; that he did not know appellant’s case would be tried on May 9th.

Aside from appellant’s plea of guilty, witnesses for the state, as well as appellant, might have detailed facts showing overwhelmingly that appellant was guilty. Convincing testimony might have militated against the granting of a suspended sentence. If appellant should have before another jury the testimony of the witnesses he seeks, such testimony might, as far as the record reflects the matter, be contradictory of appellant’s own testimony given on the trial of the present ease. Whether this is true, we are unable to determine in the absence of a statement of facts. In Guillen v. State, 104 Tex. Cr. R. 471, 284 S. W. 584, 585, Judge Lattimore, speaking for the court, used language as follows ; “A verdict upon a plea of guilty in any event would not be set aside upon the insufficiency of the testimony, or the lack of an attorney to represent the accused, unless it be shown that through no fault on the part of the accused he was prevented from making some defense, or otherwise suffered some tangible injury.”

In any event, consideration of the motion for new trial and affidavits attached thereto fails to convince us that the trial court was not warranted in reaching the con--elusion that appellant, toy his own negligence, failed in advance to make arrangements with attorneys to represent him,, and failed to make application for his witnesses. In a felony ease less than capital, the law does not make the presence of an attorney essential. It recognizes the right of the accused to be represented by counsel, but imposes upon him the duty of using diligence in securing representation. Fuller v. State, 117 Tex. Cr. R. 558, 37 S.W.(2d) 156; Sowells v. State, 99 Tex. Cr. R. 465, 270 S. W. 558.

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 makes a motion persuasive and appealing, but we hardly see how it could be granted without a departure and the setting of a precedent whose logical result would be exceedingly hurtful. He was tried on May 9, 1932, and pleaded guilty. The judgment fully recited all those conditions required by statute, such as that he was admonished by the court, and persisted, that he was sane and uninfluenced, etc. He was given the lowest penalty. Under the law there had to be testimony introduced, and we must presume that this was done. His motion for new trial was filed May 13, 1932, and was supported by affidavits prepared and sworn to on May 10th, the next day after he pleaded guilty, showing fully that he procured legal assistance' either the day of his trial or the next day; yet this case was brought here on appeal without any statement of its facts, notwithstanding the law gave appellant ninety days after the overruling of his motion for new trial in which to prepare and file such statement of facts. We have, as said substantially in the original opinion, no means of knowing what the state’s case was or is. The record shows enough to make us know that officers searched appellant’s house and found a quantity of whisky and mash. Appellant has a sworn motion for new trial which, under the authorities, is but a pleading, but statements therein are interesting. It appears therefrom that the ubiquitous stranger who has so maliciously inveigled many of our innocent citizens into trouble — a white man in this case — came to the home of appellant, who was a negro, in his absence, and left a paper sack containing three pints of whisky. The very next day this whisky was found in appellant’s house by searching officers. 1-Ie sets out in said motion that, after the search and finding of this whis-ky, and before he was arrested on this indictment, he had a conversation with one Babe Hanson, who told him he was present when this whisky was left at his house and knew it was left there by this white man and would testify for him on his trial to this fact. It would appear a little unusual for one so ignorant of how to prepare for an approaching trial, as to furnish ground for this court setting aside his conviction upon a plea of guilty, when the record shows that he was preparing for trial by talking to witnesses before he was arrested. One deputy sheriff told him to get ready for trial; another, that he need not do so. This would not justify no preparation.

Appellant cites two cases as authority for requesting us to grant him a new trial, in one of which it appears that the accused had hired and paid an attorney who was sick at the time of trial and therefore could not appear and represent him. In the other case the accused had hired a lawyer to represent him upon his preliminary trial, and he thought the same lawyer would represent him upon the trial in chief. We do not think these cases furnish justifiable precedent for any grant of the rehearing in this case.

The motion for rehearing will be overruled.


text:
    McFARLIN v. STATE.
    No. 15477.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Ivan Irwin and Taylor & Irwin, all of Dallas, for appellant.

      Lloyd W. Dayidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for theft from the person; punishment, five years in the penitentiary.

We find in the record no bill of exception complaining of any proceeding in the trial court. The facts before us make out a case of theft from the person, and are somewhat like those in Harris v. State, 118 Tex. Cr. R. 597, 39 S.W.(2d) 888, save that in the case at bar the testimony does not show any assault, but the taking into her manual possession by appellant of the property of the prosecuting witness, without his knowledge or consent until he discovered her in the act of withdrawing the hand containing his money from his pocket, at which time he says he caught her hand, and there ensued a struggle in the course of which he concluded to relinquish his hold upon her hand. The taking of the money of prosecuting witness into the hand of appellant while in his pocket, would be such taking as constitutes theft. Other points are raised and discussed for the first time in the well prepared brief filed by the attorney for appellant, but, in the absence of some complaint thereof in the trial court preserved by hills of exception, we are without power to consider these questions, which are not fundamental in nature.

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


text:
    WATKINS v. STATE.
    No. 15748.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Fred Erisman, of Longview, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

. Conviction is for possessing intoxicating liquor for the purpose of sale, the punishment being one year in the penitentiary.

The record is before this court without a statement of facts. Only one bill of exception appears in the record. Appellant waived a jury and entered a plea of guilty before the court, having filed an application for suspended sentence. Upon the plea of guilty the court assessed appellant’s punishment at one year in the penitentiary but denied his request for a suspended sentence. The only bill of exception brought forward complains of the action of the court in refusing to grant the suspended sentence. This court is in no position to pass upon that matter in the absence of a statement of facts.

The judgment is affirmed.


author: MORROW, P. J. HAWKINS, J.

text:
    McClelland v. State.
    No. 15441.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    State’s Rehearing Denied Jan. 11, 1933.
    E. T. Miller, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

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

Appellant occupied a building about 32 feet long, divided by a partition. The front room was about 20 feet long and 18 feet wide, and the back room was about 18 feet long and 12 feet wide. The front room was used as a grocery store. The rear room was used as a place in which the appellant lived; that is, he slept there but did not take his meals there. An officer, accompanied by two other persons, entered the building without a search warrant and without the consent of the appellant. They entered at the back door which opened into the rear room (which was the small room) and which, according to the testimony, was vused by the appellant as a living room. At the time the officer entered, the appellant was in .the front room or the grocery store. In the partition separating the two rooms was a door. The officer observed a container in which there was a half-gallon of whisky upon the table in the back room. There was a woman lying upon a mattress in the room. The officer started to arrest her, when the appellant came and said that the whisky belonged to him. All of the foregoing testimony comes from the state’s witnesses except the specific fact that the appellant used the back room as a living and sleeping room. . The fact that there was a mattress and table and that there were no groceries or anything pertaining to the grocery store in the back room comes from the state’s testimony.

It is claimed that the entry and search of the back room where the whisky was found was contrary to article 1, § 9, of the state Constitution, and therefore illegal. Based upon that contention, he invokes the provision of article 727a, C. C. P., in which it is declared that evidence acquired through an illegal search is not admissible against a person in possession of property in the place where the search was made. The appellant’s contention must be sustained. The court was in error in receiving the testimony showing the result of the search. Its reception was opposed by appropriate objection. The complaint of the court’s ruling is brought forward by adequate bills, of exception.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

HAWKINS, J.

In a motion for rehearing by the state attention is called to the following statement in our original opinion: “They [the officers] entered at the back door which opened into the rear room ⅜ * ⅜ which, according to the testimony, was used by the appellant as a living room.”

The representatives of the state construe the quoted language as meaning that the officers entered the living room through the back door to said room. This room was separated from the store by a partition wall in which was a door. The officers entered the store, which, of course, they had a right to do, but passed- back through the open door in the partition wall into the living room. Here they had no right to go without a search warrant under the circumstances presented in the record. They saw no whisky or containers until after they had improperly .entered the living quarters.

The motion for rehearing is overruled.


author: MORROW, P. J.

text:
    LINDLEY v. STATE.
    No. 15762.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The prosecution is apparently based upon article 1056, P. C. 1925, and charges that the appellant unlawfully and intentionally diverted natural gas from the pipe lines of R. L. Pearcy.

The penalty allowed by statute is not less than $25 nor more than $100. The penalty assessed in the present instance is a fine of $25. The prosecution originated in the justice court and was appealed' to the county court. Therefore, this court has no jurisdiction of the appeal. Such is the declaration of article 53, C. C. P. 1925. See, also, Ragsdale v. State (Tex. Cr. App.) 47 S.W.(2d) 278.

The appeal is dismissed.


author: CHRISTIAN, J. HAWKINS, J.

text:
    BENNETT v. STATE.
    No. 15424.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    Rehearing Denied Jan. 11, 1933.
    Kirby, King & Overshiner, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

The Merkel Motor Company’s place of business was burglarized at night. The property taken from the building was money, automobile casings, and tubes. The money consisted of nickels, quarters, and. half dollars. On the same night appellant and Raymond L. Smith were arrested in the vicinity of the building.. Near them were the automobile casings belonging to Merkel Motor Company. Upon being taken into custody, appellant and Smith were searched. They had in their possession a number of nickels, quarters, and half dollars, and two screwdrivers. An examination of the building showed that an instrument of some character had been used to open the window. The screwdrivers found in the possession of appellant and Smith fitted the prints where the window was opened.

Appellant objected to the testimony of the arresting officer touching the finding of the money and screwdrivers in his possession on the ground that the arrest was illegal. The officer had no warrant of arrest. The municipal authorities had enacted no ordinance under the provisions of article 214, O. C. P., authorizing the arrest without warrant of persons found in suspicious places, etc. In ■holding the arrest legal, the trial court made application of the provisions of article 325, C. O. P., reading as follows: “All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bringing it, with the supposed offender, if he can be taken, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there must, however, be reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay.”

The testimony of the arresting officer was, in substance, as follows: In performing his duties as night watchman, he was walking down an alley near the place of business of the Merkel Motor Company between 1 and 2 o’clock in the morning. Hearing a noise, he went toward a vacant lot near the building of the Merkel Motor Company. He could see something in the dark about 18 feet from the building. Turning on his flash-light, he saw two men on the vacant lot within 18 feet of the business house of the Merkel Motor ‘Company. Appellant was within one and one-half feet of some unwrapped automobile casings, stooping over them. Neither appellant nor his companion had created any disturbance in, his presence prior to their arrest. He did not know the building had been burglarized.' No person had notified him that a felony had been committed. At this point we quote from the testimony of the officer as follows: “I threw my pistol on them and arrested them because they were in the dark and in a suspicious place and I did not know but what they were armed. I did not want them to have any advantage over me because I was alone. The large man, Bennett, was standing in the back of a short building by some automobile casings, that I presumed w.ere stolen, and I did not want to take any chances on it. I threw my light on these two men at the same time. I saw the casings when I threw the light on them. They were new casings. When I threw my light on them, I could not see what Bennett was doing. He was in a foot or two of these casings. The other man was standing • about six feet from them, Mr. Smith. When I threw my light on these two men, I told them to put up their hands and they did so. They had made no move before I told them to put up their hands. I do not think they had ever seen me until I flashed the light on them and he, Bennett, raised up.”

The facts and circumstances related by the officer are deemed sufficient to support the conclusion that he had reasonable ground to suppose that appellant and his companion had stolen the automobile casings. It follows that we are of the opinion the trial court was not ip error in making application of the provisions of article 325, supra. See Hammond v. State (Tex. Cr. App.) 49 S.W.(2d) 779. The case of Woods v. State, 119 Tex. Cr. R. 43, 46 S.W.(2d) 704, is now deemed to support appellant’s contention. There the arrest was made solely because the officer discovered the appellant at night in an alley in the town of Whitesboro. The officer saw no property in Woods’ possession or near him. There was no reasonable ground to suppose that Woods had stolen any property. The municipal authorities had enacted no ordinance under the provisions of article 214, C. O. P.,' warranting an arrest without warrant of persons found in suspicious places, etc.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, J.

Appellant insists that the arrest of him and his companion was illegal, and therefore their search unauthorized, and the evidence as to the result of the search inadmissible, and that our holding to the contrary in the original opinion was erroneous.

As we understand the motion, appellant bases his contention largely on the case of Woods v. State, 119 Tex. Cr. R. 43, 46 S.W. (2d) 704, which he claims is controlling here. Article 214, C. C. P. provides: “The municipal authorities of towns and cities may establish rules authorizing the arrest, without warrant, of persons found in suspicious places, and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

Woods was arrested in the city of Whites-boro, which at the time had not adopted an ordinance embracing the provisions of article 214. The arrest there was held illegal because Woods was simply strolling about the city at night in suspicious places. The arrest in this case was made in the city of Merkel, which had not adopted the provisions of article 214. If there were no facts bringing into operation other articles of our statute, the Woods Case would be controlling, but we think the facts make applicable article 325, C. C. P., which we again Quote, italicizing that part which we think particularly pertinent: “All persons have a right to prevent the consequences of theft by seizing any personal property which has been stolen, and bring it, with the supposed offender, if he can be falten, before a magistrate for examination, or delivering the same to a peace officer for that purpose. To justify such seizure, there muse, however, he reasonable ground to suppose the property to be stolen, and the seizure must be openly made and the proceedings had without delay."

Between 1 and 2 o’clock at night the arresting officer heard noises which caused him to discover appellant and his companion in the dark in the rear of some buildings, one of them stooping over some automobile casings which still had the wrappings on them, and which the officer said he “presumed were stolen.” We cannot escape the conclusion that the facts made pertinent the italicized part of article 325, and that the officer had “reasonable grounds to suppose the property to be stolen,” and also that appellant and his companion were the thieves. We are not quite sure that it is the purpose of appellant to insist that, before the officer would be authorized to arrest under article 325, O. G. P., it would be necessary for him to have had information that a felony had been committed, and the property discovered by him stolen, and that the offender was about to escape. If such is the position of appellant, then we are not in accord therewith. If the information mentioned had been given the officer, then both article 325 and article 215, O. C. P., might have been operative; the latter article reading as follows: “Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace of-cer may, without warrant, pursue and arrest the accused.”

Under the facts of many of the reported cases, both articles are operative, but it is not our understanding that, before an officer may proceed under article 325, O. O. P., he must have information 'that a “felony” had been committed, and that the offender was about to escape. This article is found under the title of search warrants. It was evidently designed to prevent the consequences of theft by clothing private persons with authority, in the absence of a warrant to seize property where there was reasonable ■ ground to suppose it to have been stolen, and to bring it, with the supposed offender, before the proper magistrate. Certainly the rights of an officer, when acting under the provisions of said article, would be no more limited or restricted than those of ordinary citizens.

The officer testified as follows: “I threw my pistol on them and arrested them because they were in the dark and in a suspicious place, and I did not know but what they were armed. I did not want them to have any advantage of me because I was alone.”

It is urged that this statement from the officer shows that he simply arrested the parties on suspicion, without authority by ordinance of the city to so do. The state should not be bound by a portion of what the officer said, but his entire statement should be considered. In connection with the part of his testimony above quoted, and immediately following it, he testified: “The large man, Bennett, was standing in the back of a short building by some automobile casings, that I presumed were stolen, and I did not want to take any chances on it.”

In addition to the authorities cited in our original opinion, and as supporting the conclusion reached, we cite Childress v. State, 107 Tex. Cr. R. 10, 294 S. W. 586; English v. State, 34 Tex. Cr. R. 194, 30 S. W. 233; Porez v. State, 29 Tex. App. 618, 16 S. W. 750; Luera v. State, 12 Tex. App. 257.

The motion for rehearing is overruled.


text:
    Raymond L. SMITH v. STATE.
    No. 15425.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    Rehearing Denied Jan. 11, 1933.
    Kirby, King & Overshiner, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

C. P. Bennett and appellant acted together in the commission of the offense. The question involved is the same as that discussed in the case of C. P. Bennett v. State (Tex. Cr. App.) 55 S.W.(2d) 847, delivered December 7, 1932.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

HAWKINS, J.

This is a companion case to that of C. P. Bennett v. State, 55 S.W. (2d) 847, in which a motion for rehearing has this day been overruled.

The facts are the same; the questions of law identical; and the same reason that led to overruling the motion for rehearing in the Bennett Case is operative here.

The motion for rehearing is overruled.


text:
    ERVIN v. STATE.
    No. 15711.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Rehearing Denied Jan. 11, 1933.
    See, also, 119 Tex. Cr. R. 204, 44 S.W.(2d) 380.
    J. C. Shipman and R. O. Winters, both of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

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

The indictment charges the offense. The record contains neither statement of facts nor bills of exception. In such condition no matter is presented to this court for review.

The judgment is affirmed.


text:
    ANDERSON v. STATE.
    No. 15764.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1932.
    J. P. Coon, of Terrell, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Burglary is the offense; penalty assessed at confinement in the penitentiary for two years.

A motion to quash the indictment because of the absence of the signature of the foreman of the grand jury was overruled. From the record it appears that the foreman’s name was signed to the indictment. However, the indictment appearing otherwise regular, it is not essential that it bear the signature of the foreman of the grand jury. See Branch’s Ann. Tex. P. C., p. 264, § 513, citing numerous cases, including Hannah v. State, 1 Tex. App. 578. See, also, Tex. Jur., vol. 23, p. 616, § 21.

Neither statement of facts nor bills of exception are found in the record.

Appraisement of the special charges found in the record will be impracticable in the absence of the facts heard in the trial court.

In the motion for new trial, there is complaint of matters of procedure, but as to that, as well as to the judgment mentioned, this court is without jurisdiction to make any other order than to dismiss the appeal, for the reason that it appears from the record that the appellant is at large upon an appeal bond, which does not bear the approval of the trial judge. See article 835, C. C. P. 1925.

For the reason last stated, the appeal is dismissed.


author: CALHOUN, J. LATTIMORE, J.

text:
    DAVIS v. STATE.
    No. 15367.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1932.
    Rehearing Denied Jan. 11, 1933.
    Jones & Jones, of Mineóla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Possession of intoxicating liquor for the purpose of sale is the offense; the punishment assessed at 2 years in the penitentiary.

Peace officers secured a search warrant and searched the residence of the appellant. The witness Wesley Taylor, sheriff of Wood county, testified that he made a search of the premises of appellant on or about June 19, 1931, and at the time he made the search he had a search warrant. At the time he made the search a Mr. Douglas and Floyd Pope were with him; one was his deputy and the other was a constable. In a closet of appellant’s house in a grip or hand hag they found four half gallons of whisky.

The defendant did not testify, hut placed his wife upon tne stand, ardong other witnesses, and she testified that she remembered the occasion when the officers searched the house and found the whisky in a grip. She further testified that one Jack Boyd put the hand bag there, and she didn’t know what was in it at the time; that he had been sleeping in said room and staying in the house for about a month and had been using the closet in his room; that up to the time the search was made she didn’t know what was in the grip. She further testified that Jack Boyd stated to her while he was staying at the house that he was waiting for his papers to go to the penitentiary; that he was now in the penitentiary; that he was just staying at their house, as he had no other place to stay.

Several other witnesses testified that the hand bag was brought to said house by the said Jack Boyd.

There are two bills of exception in the record complaining of the introduction of the evidence showing the search and what was found by virtue thereof on account of claimed defects in the affidavit for the search warrant. We do not deem it necessary to disquss as to whether or not the affidavit for the search warrant is sufficient to justify the search of appellant’s premises by the officers, because in this case the appellant placed his wife on the stand as a witness for him and she testified substantially to the same effect as did the officers making the search as to the finding of the whisky in appellant’s house. The appellant having proven by his wife that there was whisky on his premises in accordance with the testimony of the officers, he cannot claim to have been injured by the testimony objected to, even if such testimony was improperly admitted. Burdett v. State, 116 Tex. Cr. R. 264, 32 S.W. (2d) 360; Kelsey v. State, 109 Tex. Cr. R. 275, 4 S.W.(2d) 548; Stockton v. State, 112 Tex. Cr. R. 188,15 S.W. (2d) 640: Spain v. State, 111 Tex. Cr. R. 552, 15 S.W.(2d) 646.

Bill of exception No. 3 complains that while the defendant’s wife was testifying in his behalf and after she had testified that Jack Boyd had been staying at her house for some days prior to June 19,1931, and she had seen him bring to her home the grip in which the four half gallon jars of whisky were found by the sheriff, and had testified that the grip belonged to Jack Boyd and not to the defendant or any one of his family, and that she had had a conversation with Boyd at the time he left the grip in her home, she was then asked by appellant’s counsel, “Did Jack Boyd tell you what was in his handbag?” to which question the district attorney objected, and said objection was sustained by the court. The bill further shows that if said witness had been permitted to answer said question she would have testified that said Jack Boyd told her that he had his clothes in said grip. There is nothing pointed out or shown in the bill of exception as to how this testimony would have been material on the issue in the case. It was not shown in said bill that the appellant was present at the time of said conversation, or that said statement as to what Boyd had told the witness was ever communicated to the appellant

‘.‘A bill of exception taken to the exclusion of evidence should disclose the relevancy and materiality of the proposed evidence. Inferences will not be indulged to explain the omission of such essentials.” Branch’s Ann. P. C., § 212; Walker v. State, 9 Tex. App. 200; Davis v. State, 14 Tex. App. 645; Brown v. State, 43 Tex. Cr. R. 293, 65 S. W. 529; Roberts v. State, 64 Tex. Cr. R. 135, 141 S. W. 235.

By bill of exception No. 5 appellant complains of the district attorney, in making his closing argument to the jury, using the following language: “This man is as guilty a man as I have ever tried.” The qualification of the judge to this bill shows that upon exception to said argument, the exception was sustained, and upon a written request of defendant’s counsel the trial judge instructed the jury in writing not to consider said remarks of the district attorney.

Bill of exception No. 6 also complains of the remarks of the district attorney in his closing argument to the jury to the following effect: “This defendant was in 1932 as much of a traitor to his country as was Benedict Arnold in his day and time.” The bill of exception shows that when appellant’s counsel excepted to said argument, the exception was sustained, and the court also gave the appellant’s special charge in writing instructing the jury not to consider said remark.

There is nothing in either one of the bills which shows the connection in which these arguments were made. Under the record as it appears, we cannot say that the matters complained of were of that character which were clearly calculated to prejudice the rights of the appellant or to prejudice him in the eyes of the jury. “If improper remarks of counsel are by the court withdrawn and the jury instructed not to consider them, ordinarily the injury, if any, has been cured.” Branch’s Ann. P. C., § 362; Miller v. State, 27 Tex. App. 63, 10 S. W. 445; Leech v. State, 63 Tex. Cr. R. 339, 139 S. W. 1147.

We note that the verdict of the jury finding the appellant guilty assessed his punishment at 2 years in the penitentiary and the sentence fixed his punishment at confinement in the penitentiary for a straight term of 2 years. The sentence will therefore be reformed so as to assess appellant’s punishment at confinement in the penitentiary for an indeterminate period of not less than one year nor more than two years, and as so reformed, no reversible error appearing, the judgment is affirmed.

Reformed and affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Objections to testimony of what was found by officers upon a Search; made upon questionable authority, such as a defective affidavit, would be of no avail to the accused when the same evidence, in substance, is properly before the jury from some other source. Stone v. State, 113 Tex. Cr. R. 371, 22 S.W.(2d) 140, and authorities cited.

Without debating the sufficiency of the affidavit, we observe that the sheriff testified that his search of appellant’s house resulted in finding four half gallons of whisky in a black suitcase or hand bag in a closet. Appellant’s wife testified for the defense that she was present when the officers found the whisky in the hand bag in the closet mentioned. The above case and those therein cited and many others are pointedly decisive against appellant’s contention. The Kelsey Case, 109 Tex. Cr. R. 275, 4 S.W.(2d) 548, does not hold otherwise. In that case there was a defective affidavit. The searching officers testified to finding two batches of whisky; one in the house, •the other in the yard. The wife of the accused swore to being present at the finding of the whisky in the house, but knew nothing of the finding of the .whisky in the yard. The jury in that case may have based their verdict on the testimony of the finding of the whisky in the yard, relative to which the wife gave no testimony, and in support of the finding of which the state had only the testimony of the officer as to the search made by him under a defective warrant. The error of the admission of testimony of the finding of the whisky in the house was cured by the testimony of the wife; not so as to the whisky found in the yard.

We see nothing calling for discussion of the other two points made in appellant’s motion. The evidence supported the judgment, and the court correctly rejected the testimony of the wife of appellant as to what Jack Boyd told her he hád in his grip.

The motion for rehearing will be overruled.


text:
    FLEWELLEN v. STATE.
    No. 15706.
    Court Of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Rehearing Denied Jan. 11, 1933.
    Gentry & Gray, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary; punishment, two years’ confinement in the penitentiary.

The ’ indictment is in proper form. The record contains neither statement of facts nor bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.