author:
MOBBOW, Presiding Judge.
      LATTIMORE, Judge

text:
    WILSON v. STATE.
    No. 14755.
    Court of Criminal Appeals of Texas.
    April 12, 1933.
    Gentry & Gray, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MOBBOW, Presiding Judge.

The offense is that defined in article 802, P. C. 1925, from which the following is quoted: “Any person who drives or operates an automobile * * * upon any public road or highway in this State while such person is intoxicated or in <my degree under the influence of intoxicating liquor," etc.

The sole question involved in this appeal is whether the indictment charges an offense. The part of the indictment which is relevant is in the following words; “* * * Did then and there unlawfully drive and operate a motor vehicle, to-wit, an automobile upon a public street within the limits of an incorporated city in this state, to-wit, upon North Fannin Street in the city of Tyler, Smith County, Texas, while he, tine said Loys WUson, was then and there to some extent under the influence of intoxioating liquor."

The charge of the court followed the language of the indictment; that is to- say, the jury was instructed to convict the accused if, while driving an automobile upon the highway, he was “to some extent!’ under the influence of intoxicating liquor.

In no previous case since the statute was enacted has this court found it necessary to pass directly upon the sufficiency of the averment in question.

In the case of Williams v. State, 100 Tex. Cr. R. 50, 271 S. W. 628, the words “in any degree” were not used in the indictment, but the statute was attacked. It was held that their presence in the statute did not render it void. A like attack was made upon the statute with.the same result in Nelson’s Case, 97 Tex. Cr. R. 210, 261 S. W. 1046; likewise in Nunn’s Case, 114 Tex. Cr. R. 487, 26 S.W.(2d) 648.

An indictment charging that the accused was intoxicated or under the influence of intoxicating liquor has been upheld although it contained an averment using the words “in any degree” under the influence of intoxicating liquor. See Wimberly v. State, 109 Tex. Cr. R. 581, 6 S.W.(2d) 120; Stewart v. State, 108 Tex. Cr. R. 199, 299 S. W. 646. Brown v. State, 108 Tex. Cr. R. 360, 300 S. W. 81; Rodriguez v. State, 104 Tex. Cr. R. 7, 282 S. W. 225; Boyd v. State, 106 Tex. Cr. R. 492, 292 S. W. 1112.

In the concurring opinion in Fuller v. State, 116 Tex. Cr. R. 310, 32 S.W.(2d) 358, 359, it is said: “The words, ‘or in any degree under the influence of intoxicating liquor,’ as contained in article 802, P. C., are too indefinite to define a criminal offense. The appearance of the words in the statute, however, does not vitiate it. * * * In the indictment it is charged that he drove an automobile upon a public street while he was mtoxi-cateá,, and the jury was instructed in language to the same effect. Therefore the use of the words ‘in any degree under the influence of intoxicating liquor,’ so far as they affect the present case, is merely sur-plusage, and could not affect the verdict.”

A like case is Herring v. State, 117 Tex. Cr. R. 211, 35 S.W.(2d) 737.

The conviction in the present case is based solely upon the pirase of the statute italicized above, and is assailed upon the proposition that the words “in any degree under the influence of intoxicating Uquor,” as they appear in the act of the Legislature, do not create a crime. Our statute, art. 6, P. C., declares inoperative an unintelligible law. Instances in which statutes or parts of statutes have been condemned as obnoxious to the statute mentioned are numerous. The rule is fundamental through the American and English jurisdictions. It was said by Lord Coke: “The acts of parliament ought to be plainly and clearly, and not cunningly and darkly, penned, especially in legal matters.”

The interpretation of statutes is approached upon the presumption of their validity. They are not to be held invalid capriciously nor merely because of difficulty in ascertaining their meaning, but a statute cannot be enforced where its meaning- cannot be determined by any known rules of construction. See Lewis’ Sutherland on Statutory Construction (2d Ed.) Vol. 2, § 86, and notes. Among the specific instances in which statutes or parts of statutes have been declared void, the. following are mentioned, together with .the language held indefinite: Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 80, 96 Am. St. Rep. 765, “murder by mob violence”; Russell v. State, 88 Tex. Cr. R. 512, 228 S. W. 566, “operating a motor vehicle upon the highway in a careless manner”; Griffin v. State, 86 Tex. Cr. R. 498, 218 S. W. 494, “seriously interfere with the sight of or temporarily blind the vision of a driver of a vehicle approaching from an opposite direction”; Cinadr v. State, 108 Tex. Cr. R. 147, 300 S. W. 64, “needlestsly killing -a hog”; Tozer v. United States (C. C.) 52 F. 917, 919, “undue and unreasonable advantage”; Ex parte Jackson, 45 Ark. 158, “injurious to the public health, or public morals, or to the perversion or obstruction of public justice, or the due administration of the laws”; Chicago & N. W. Railway Co. v. Dey (C. O.) 35 F. 866, 1 L. R. A. 744, “unreasonable rate”; Ex parte Slaughter, 92 Tex. Cr. R. 212, 243 S. W. 478, 479, 26 A. L. R. 891, “closely built up.”

In addition to the opinions of this court that have been cited, there are many others which give effect to the principle. Among them may be mentioned the following: Dockery v. State, 93 Tex. Cr. R. 220, 247 S. W. 508; Overt v. State, 97 Tex. Cr. R. 202, 260 S. W. 856; Ex parte Montgomery, 86 Tex. Cr. R. 636, 218 S. W. 1042. It is an unnecessary, useless, and confusing part of a statute which is otherwise sound. It is in conflict with the statutory declaration requiring certainty in the formation of statutes, and of article 1, § 10, of the Constitution of the state guaranteeing to one accused of crime information as to the nature and cause of the accusation against him.

The words “in any degree” in the statute are useless for the reason that the other terms therein, namely, “intoxicated” or “under the influence of intoxicating liquor,” have often been defined in judicial decisions and are well understood in legal parlance. See 68 A. L. R. page 1360, note 4. The use of the words “in any degree” as used in the statute, if recognized as charging an offense, are capable of mischief in making an opening for expert testimony touching the quantity of intoxicating liquor that may or may not produce the effect contemplated in the statute. What is required to bring one “in any degree” under the influence of intoxicating Uq-uor? The statute does not declare. Who then must determine what are the essential elements of the offense which the act attempts to denounce? What standard would make uniform and stable the criminal denunciation? The peculiar fancy of the individuals who compose the jury is the sole guide. In the books are standards by which it may be declared that one is intoxicated. The terms “intoxicated” and “under the influence of intoxicating liquor” are found in the dictionaries and in the law books. The term “to any degree under the influence of intoxicating liquor” is an innovation. No attempt to define it is made by the law-making power. No criterion can be found in the books by which the trial court can define it in instructing the jury. It is denounced as a felony, but no information is given, either to the individual charged or to the jury by which to determine what is meant by the term. That as in the statute it does not mean “intoxicated” is manifest from the verbiage of the statute itself, wherein it says, “while such person is intoxicated or in any degree under the influence of intoxicating liquor.” It recognizes the distinction between intoxicated and “in any degree” under the influence of intoxicating liquor, but fails to locate the point of distinction and leaves it purely to the imagination or volition of the jurors who happen to be trying the particular case. It is upon a parity with many of the cases-decided by this court holding statutes invalid for uncertainty which are cited above, and offends against the principle controlling in all of them.

Eor the reason that the indictment does not charge an offense, the judgment is reversed and the prosecution ordered dismissed.

LATTIMORE, Judge

(dissenting).

I regret the necessity for this dissent. The indictment herein charged appellant with driving a motor vehicle on North Fannin street of the city of Tyler while he was “to some extent” under the influence of intoxicating liquor. In fact, he was admittedly drunk, and the only defense interposed on the trial was that there was no such street in Tyler as North Fannin street. No issue was made as to the extent or degree of appellant’s drunkenness. No motion was made to quash the indictment. On appeal appellant raises in his brief the question that the indictment herein charges no violation of the law because it contains the averment that he was “to some extent” under the influence of intoxicating liquor, but no authorities are cited and no argument apparently made in support of the position. My associates are of opinion that the allegation “to some extent” makes the indictment bad, and that for this reason the judgment must be reversed and the prosecution ordered dismissed. It seems difficult to me to understand how such conclusion can be reached.

Article 802, P. 0., under which this conviction was had, has been on o.ur statute books for ten years, and every phase of it has apparently been -considered and construed by this court as now constituted. The exact language of the statute forbids that any person shall drive a motor vehicle on a public highway while intoxicated or “in any degree under the influence of intoxicating liquor.”

This court is thoroughly committed to the proposition that the indictment is sufficient for this offense if it charges that the accused was “under the influence of intoxicating liquor” at the time complained of Williams v. State, 100 Tex. Cr. R. 51, 271 S. W. 628; Jones v. State, 101 Tex. Cr. R. 71, 274 S. W. 566; Boyd v. State, 106 Tex. Cr. R. 494, 292 S. W. 1112; Stewart v. State, 108 Tex. Cr. R. 202, 299 S. W. 646; Nunn v. State, 114 Tex. Cr. R. 487, 26 S.W.(2d) 648; Fuller v. State, 116 Tex. Cr. R. 312, 32 S.W.(2d) 358; Farmer v. State, 119 Tex. Cr. R. 213, 43 S.W.(2d) 588; Herring v. State, 117 Tex. Cr. R. 211, 35 S.W.(2d) 737, 739. In the last case cited the indictment charged that the accused was “under the influence of intoxicating liquor” when he drove the car in question. In the original opinion we said the motion to quash the indictment was properly overruled. In the opinion on rehearing, it is said: “The indictment is attacked as being based upon an invalid statute * * * based upon the verbiage of article 802, P. C. 1925, wherein the following words appear; ‘Or in any degree under the influence of intoxicating liquor.’ The validity of the statute has been upheld, though the words * * * ‘in any degree,’ have been regarded as surplusage.” We expressly held that said words furnish no ground for a reversal of the case. In the Williams Case, supra, we wrote that the theory that in charging that one was intoxicated —and under the influence of intoxicating liquor — charged two. offenses, was untenable inasmuch as to charge that one was intoxicated, was but a different way of alleging that he was under the influence of intoxicating liquor.

Surplusage — under all the authorities in reference to indictments — is something written therein which may be discarded, leaving the offense fully charged. Warrington v. State, 1 Tex. App. 168; Mayo v. State, 7 Tex. App. 342; Rivers v. State, 10 Tex. App. 177; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110; Goodwin v. State, 70 Tex. Cr. R. 600, 158 S. W. 274, 275; Jennings v. State, 88 Tex. Cr. R. 639, 220 S. W. 525; Seebold v. State, 89 Tex. Cr. R. 563, 232 S. W. 328; Shroeder v. State, 92 Tex. Cr. R. 7, 241 S. W. 169; Harvey v. State, 92 Tex. Cr. R. 645, 244 S. W. 1004; Martin v. State, 95 Tex. Cr.. R. 401, 254 S. W. 971.

To undertake to demonstrate by argument or illustration that the words “to some extent,” which are used in the indictment in the instant case, are the exact equivalent of the words “in any degree,” or “to some degree,” which are used in article 802, P. C., would be like arguing that two and two make four, or that, a straight line is the shortest distance between two points. If — as Judge Morrow says in the Herring Case, supra, and as we have substantially held in numerous cases — the words “in any degree” are sur-plusage, they may be stricken out of the indictment, or omitted in its consideration, and, if that which is left sufficiently charges the offense, the indictment would unquestionably still be good.

Applying what we have said in so many cases to the instant case, we should merely hold- the words “to some extent” to be sur-plusage, and omitting same we would have here an indictment fully charging that the accused drove his car on a public street in the city of Tyler while under the influence of intoxicating liquor, which is in exact accord with what we upheld in the Williams Case, supra, and which we have upheld in other cases.

In apparently the first considered case under article 802, supra, Nelson v. State, 97 Tex. Cr. R. 210, 261 S. W. 1046, the original opinion by Morrow, P. J., and by the writer on rehearing, the offense is stated in the original opinion as unlawfully operating a car on a public street while under the influence of intoxicating liquor. On rehearing, article 802, supra, was quoted in full and the statement plainly made that same does not attempt to fix any limit as to the amount of intoxicating liquor that will be permitted in the driver of a vehicle on a public street, but on the contrary it prohibits his being under the influence of intoxicating liquor “to any extent.” In Scoggins v. State, 98 Tex. Cr. R. 546, 547, 266 S. W. 513, opinion by Judge Morrow, the holding in Nelson’s Case, supra, is expressly approved, and we there hold that when the proof showed the accused to be drunk, there could be no complaint of failure on the part of the trial court to attempt to define the term “intoxicated.” The Nelson Case was again approved in Stewart v. State, 108 Tex. Cr. R. 200, 299 S. W. 646. In the concurring opinion in Fuller v. State, 116 Tex. Cr. R. 312, 32 S.W.(2d) 358, it is expressly admitted, as in the opinion in the Herring Case, supra, that the expression “in any degree” is surplusage.

I have never been able to agree that the language used by the Legislature in defining this offense is such as that when followed in an indictment the indictment should be held had and the case reversed for that reason. I have agreed to the holding that certain words used by the Legislature might be held surplusage, and that the word “intoxicated,” .and the expression “under the influence of intoxicating liquor,” meant the same thing, but I cannot now agree that the insertion into this indictment of words whose equivalent 'has often been held to be mere surplusage, viz., “to some extent,” would warrant this court in reversing the case of a man who was shown to be, as a witness said, limber dr.unk.

As far as the writer knows it has never been held in any other state of this Union that such expressions as “to any degree” or “to any extent,” vitiate the indictment, and it occurs to me that this court is now embarking upon an entire departure. As illuminating we call attention to the language of similar statutes in other states. The following states have statutes punishing him who drives a car “while under the influence of intoxicating liquor”: Arizona, California, Georgia, Rhode Island, Maryland, Massachusetts, Montana, West Virginia, Utah, Pennsylvania, Connecticut, Washington, Oregon, Oklahoma, Delaware, Tennessee, Idaho, Michigan, Florida, Vermont, New Hampshire, South Dakota, Virginia, North Carolina, Iowa, Maine, New Jersey, and possibly others. Some states punish him who so drives “while intoxicated,” or “in an intoxicated condition.” ’These are Kansas, Louisiana, Nebraska, North Dakota, ' Wisconsin, Alabama, Kentucky, New York, Indiana, Ohio, Arkansas, Minnesota, and Illinois. The Missouri statute forbids such action “while in an intoxicated condition, or under the influence of drugs,” the principle involved in the last clause of the statute being similar to the one here under consideration. Colorado forbids such driving “while in any degree under the influence of any intoxicants.” Mississippi prohibits such driving “while in a state of intoxication, or in any other respect incapable of properly and safely operating,” etc. .Many of the states first named, in varying terms, make it penal to operate such car “while intoxicated, or under the influence of intoxicating liquor.”

The expressions from the courts of last resort in other states in some instances are interesting. State v. Dudley, 159 La. 872, 106 So. 364, 365, holds the words “under the influence of [intoxicating] liquor,” to be exactly synonymous with the expression “in an intoxicated condition.” In State ex rel. Sellers v. Parker, 87 Fla. 181, 100 So. 260, 263, the terms “under the influence of intoxicating liquor” were held not lacking in definiteness or intelligibility. In Commonwealth v. Lyseth, 250 Mass. 555, 146 N. E. 18, it seems held sufficient to uphold a conviction, to prove that the driver of the car was under the influence of liquor rather than intoxicated, although the statute of Massachusetts penalizes him in specific terms who is “intoxicated.” In People v. Ekstromer, 71 Cal. App. 239, 235 P. 69, the Court of Appeals of California held that the law prohibiting the driving of a motor vehicle by a person under the influence of intoxicants was designed to protect the public from the menace of automobiles operated on public highways with inadequate or inefficient control in a world of traffic difficult of management under normal conditions, and that the law should be liberally construed to effect its purpose. In State v. Giles, 200 Iowa, 1232, 206 N. W. 133, 42 A. L. R. 1496, the Iowa Supreme Court affirmed a judgmenl inflicting punishment at a year in the penitentiary of a car driver whose condition was such as that he could guide his car through traffic, but was shown to be under the influence of intoxicants, saying that the circumstances of the particular case were not aggravated, but that the very nature of the offense was such as that aggravation inheres in it; that the peril threatened by such an offense was so great and imminent that only severe punishment could be deemed adequate to restrain it. In People v. Weaver, 188 App. Div. 395, 177 N. Y. S. 71, 37 N. Y. Cr. R. 566, the court said that for the purposes of a statute forbidding the operation of a car by one intoxicated, the accused was in such condition when he had imbibed enough liquor to render him incapable of giving that attention and care to the operation of his car that a man of reasonable prudence and intelligence would give, and the opinion is expressed that under said statute the jury should have been instructed that “intoxication” within the meaning of the statute, meant such condition (resulting from the use of intoxicants) as impairs to some extent, however slight it may be, the ability of such person to operate such car. So in State v. Rodgers, 91 N. J. Law, 212, 102 A. 433, 434, the court says that “under the influence of intoxicating liquor,” covers. all conditions and degrees of intoxication, as well as any abnormal, mental, or physical condition which results from indulging in any degree in intoxicating liquor, and Which tends to deprive such operator of clearness of intellect and self control which he otherwise would possess.

Believing that at most the .use in the indictment of the words “to some extent” amounts to but surplusage, and that with this stricken out the indictment fully charges the accused with operating his automobile on a public street while under the influence of intoxicating liquor, which this court has expressly held to be a good indictment, I cannot bring myself to agree to the holding of the majority, and hence this dissent.


source: Caselaw Access Project

author: CHRISTIAN, Judge. LATTIMOEE, Judge.

license: Public Domain

text:
    MILES v. STATE.
    No. 15654.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Rehearing Denied April 26, 1933.
    Moore & Wilson, of Amarillo, for appel- . Iant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The prosecution is under article 1150, P. O., which denounces as an offense the failure of one driving or controlling an automobile which comes in collision with another to stop and render aid. The punishment was assessed at confinement in the penitentiary for a period of thirty months.

It was charged in the indictment that appellant, while operating his automobile, struck and injured Pat Hooker, but failed to stop and render aid, etc. Pat Hooker, who was killed in the accident referred to in the indictment, and two others were leaving a dance hall between 12 and 1 o’clock at night. While walking along the Panhandle Highway, the parties were run over and deceased was killed. The woman companion of deceased screamed. The ear striking the parties did not stop, and the driver did not return and render aid. Deceased was carried to a hospital in an ambulance. After the accident appellant’s car was found in a garage at his brother’s home. An examination disclosed that the radiator was practically demolished. There was blood on the fender. Several hours after the accident appellant made a voluntary statement, which we quote as follows: “My name is Horace Miles. I live with my brother in law, Lee Wamike, when I am in Amarillo, Texas. I was out at the dance at the Radio rink last, night. I had taken my girl, Loraine Taylor, home from the dance. She lives at 602 East Second Street. I was going back to the dance hall to get my brother and my sister and as I turned off of Buchanan onto North East Eighth, the Panhandle highway, I met a car coming toward town and as I passed this automobile I felt my car jar and heard somebody yell. I knew that I had struck someone just after I turned the corner onto- North Bast Eighth Street, but I did not stop. I did not stop at the dance hall for my brother and sister, but turned off just the street the other side of the dance hall and went on out to my brother in law’s place at 1312 East Eifth-Street and put my car in the garage and went to bed. The radiator on my car, a Ford Roadster, was caved in. I noticed this when I got to my brother in law’s house. I did not feel the car run over anything, but did feel it hit something.”

A witness for the state testified that appellant came to his boarding house between 12 and 1 o’clock on the night of the accident and stated to one Billie Taylor, in the presence of the witness, that he had had a wreck. We quote from the testimony of this witness as follows: “He came to the door and knocked on the door, and wanted Miss Taylor to take him home, and she called Bill Oarlton, her brother, and they wanted to know what-was the matter, and he said he had had a wreck; I heard him tell them about a wreck, and they wanted to know whether anyone was hurt, and he said, Tes, I am sure there is someone hurt and bad hurt, too, and he got Billie and they went out to take him home — went off somewhere. He wanted them to take him home.”

There was testimony to the effect that appellant had stated to the district attorney on the night of the accident that he had had a drink or two of whisky.

Testifying in his own behalf, appellant denied that he ran over deceased, saying that he had no accident at all on the night in question. He testified that the condition of his car was not due to the accident in question, saying that it had been injured in an accident in East Texas, and, further, that on the day before the accident he had run into another car downtown, further bending his radiator. Appellant denied that he made the statement to Billie Taylor attributed to him by the state’s witness. Pie declared that he had hauled some hogs on his car and that the blood on his fender was probably the blood of the hogs. Appellant’s testimony as to the cause of the bent and broken radiator was supported by testimony of other witnesses. A witness for appellant testified on direct examination that appellant did not make the statement at the boarding house attributed to him by the state’s witness. This witness stated, on cross-examination, however, that he believed appellant said that he was blinded by a light and that a car “side-swiped” him.

As shown in bill of exception No. 1, the state was permitted to prove the nature of deceasect's injuries. For example, it was shown that deceased’s legs were broken below the knees; that the bones came through the flesh; and that deceased’s face was mutilated. We deem the objection not to have been well taken. Deceased did not die until he was taken from the scene of the accident. The nature of the injuries showed that the automobile struck deceased with great force. The proof in question tended bo establish •that the driver of the car knew that he had struck some one, and should have stopped and rendered aid, as required by the statute. Again, such proof tended to show that the bent and wrecked radiator of appellant’s car resulted from the striking of deceased. Moreover, it established the allegation in the indictment that deceased was in need of medical and surgical treatment.

In his voluntary written statement appellant stated, in effect, that he struck some one with his car as he turned off of Buchanan street into Northeast Eighth street (Panhandle Highway). Deceased was run over in front of the warehouse of the Borger Truck Lines, located at 701 East Eighth street (Panhandle Highway), which is on the east side of the intersection of the Panhandle Highway with Johnson street, and two full blocks from the intersection of Panhandle Highway with Buchanan street, referred to in appellant’s written statement. There is an intervening street between Buchanan and Johnson streets. An objection to the introduction of the statement, as shown in bill of exception No. 2, was predicated upon the ground that the transaction referred to in the statement was separate and distinct from that relied upon by the state. The opinion is expressed that the bill of exception fails to manifest reversible errors In his testimony in the presence of the jury, the district attorney said: “I told him that he didn’t have to make any statement at all about th,e matter that was under investigation, which was the death of some people out here on the Panhandle Highway that had been killed by an automobile and told him if he did make any it could be used against him and not for him. * * * and he said he would tell me about it, and thereafter he did make a statement to me.” Other than in appellant’s written statement therS is no suggestion in the testimony that any person was struck, killed, or injured on Panhandle Highway at the time in question, except at the place established in the proof by the state. All of the testimony leads to the conclusion that appellant’s statement related to the transaction established in the testimony of the state. As pointed out, the place referred to in appellant’s statement was only two and one-half blocks from that established in the state’s testimony. In his statement, appellant said that he heard somebody yell. Witnesses for the state testified that deceased’s woman companion screamed at the time of the accident. The accident established in the testimony of the state occurred between 12 and 1 o’clock. Between 12 and 1 o’clock, according to the state’s testimony, ai>pellant stated in the presence of a witness that he had had a wreck and that he believed somebody had been hurt. Thus, the time appellant referred to was shown to be the same as that established by the testimony of the state. The rule appears to be that if, from the contents of the statement itself, or from other evidence in the case, it reasonably appears that same relates to the transaction or person involved with any degree of probative force, it is admissible; its weight being for the jury. Moss v. State, 96 Tex. Cr. R. 198, 256 S. W. 916. Under this rule we are unable to reach the conclusion that the trial judge was not warranted in overruling appellant’s objection.

While it is true that the state offered the written statement in the development of its case in chief, yet nevertheless the declarations embraced in the statement contradicted appellant’s testimony given on the trial as to the cause of the bent and'wrecked radiator of his car. It is fairly inferable from the statement that appellant attributed the condition of his car to the accident he referred to in the statement; whereas, on the trial of the case appellant declared that the radiator had been wrecked in an accident in East Texas and had been further injured in a collision between his car and another prior to the night of the accident in question. If it should be conceded that the statement was erroneously received in evidence in the development of the state’s case in chief (and this is not conceded), it would appear that it would have been proper for the state to introduce such statement to rebut appellant’s claim that his car was not injured in a collision on the night in question. The statement having become material in view of appellant’s testimony, the fact that it might have been introduced out of order manifests no such error as would warrant a reversal. Mirales v. State, 112 Tex. Cr. R. 67, 13 S.W.(2d) 868; Gregory v. State, 92 Tex. Cr. R. 574, 244 S. W. 615.

One of the persons who was injured on the night of the accident was brought into court on.a stretcher. She testified that she was walking with deceased and another person on the Panhandle Highway when the accident occurred. She said she did not see the car which struck her and deceased, and knew nothing of the identity or appearance of the driver. In short, she testified that she knew nothing except that she and her companions were struck by the car. Appellant objected to this witness being brought into the room on a stretcher on the ground that the condition in which she appeared would prejudice the jury against him, and, further, on the ground that the witness could not give any testimony which would shed any light on the transaction' out of which the prosecution grew. The bill of exception (No. 4) is qualified by the court with the -statement that the case had been continued on one occasion because of the serious injuries of the witness and her inability to attend court; that her condition was such that it could not be ascertained when, if ever, she would be fully recovered and able to walk into the courtroom and appear as a witness. Further, it was recited in the qualification that the court was of the opinion that inasmuch as the witness was the only living eyewitness to the collision it was proper that she appear and testify. We think the bill of exception fails to reflect error.

The judgment is affirmed.

PEE CUEIAM.

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 Eehearing.

LATTIMOEE, Judge.

Appellant moves for rehearing, and makes an able argument in support thereof. We still think it not erroneous for the state to introduce appellant’s written statement made by him within three or four hours after the occurrence forming the basis for this prosecution, to an officer who, in his warning to appellant, directed Ms attention to the particular matter under investigation, viz., the death of some people on the Panhandle Highway, resulting from an automobile accident or collision, and who in his warning told appellant that he did not have to make any statement about the matter, and that if he did make any it could be used in evidence against him. The principle involved, as well as the facts calling for application thereof, are wholly different from those exhibited in Judge Davidson’s dissenting- opinion in Knight v. State, 64 Tex. Cr. E. 541, 144 S. W. 967, a case in which statements of the accused, apparently relative only to a then course of conduct being indulged in, were admitted as shedding light on the relations of the accused with some woman at a time nine or ten months removed—no woman being described in the statements, or named, or remotely designated either by the accused or the party to whom he made the remarks testimony concerning which was regarded as inadmissible by Judge Davidson. In tbe instant case appellant was told by tbe officer in bis warning that people bad been billed that very night, and tbe place where they were killed, to wit, on tbe Panhandle Highway, and the means by which they were killed, to wit, an automobile accident, and with full understanding, as far as tbe law of confessions is concerned, that what he said about it would be used as evidence against him, he made the statement introduced in evidence.

It was a case of circumstantial evidence. 1-Iis statement was offered as a link in tbe state’s chain of testimony. Said statement showed that on that very night, at an hour practically identical, he was on the highway named, in an automobile; that he struck some one, and did not stop there nor at the dance hall t6 which he said he was going pri- or to the time he struck such person; also, that as a result of the striking of such person his radiator was caved in. The fact that in such statement he said the accident occurred on said highway near a named street, some two, blocks distant from the actual place of collision as shown by other testimony, would not suffice to render such statement inadmissible.

Nor are we able to agree with appellant that the facts are not sufficient to justify the conviction. The rather incredible story told by appellant’s witness Carlton, his own testimony on this trial wholly contradictory of the statements made by him the night of the accident, the fact that he was overheard to say that night, and evidently shortly after this collision, that he had had an accident, and had hurt some one, and hurt them bad, taken with the other facts, seem ample to support the judgment.

The motion for rehearing will be overruled.


author: CALHOUN, Judge. MORROW, Presiding Judge.

text:
    ARCHEY v. STATE.
    No. 15549.
    Court of Criminal Appeals of Texas.
    March 1, 1933.
    Rehearing Denied April 26, 1933.

      Wayne Somerville, of Wichita Falls, for •appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

This conviction is under art. 1339a, Vernon’s Ann. P. C., chapter 167, Acts of the Eegular Session of the 42d Legislature; punishment assessed at a fine of $200 and 30 'days in jail.

The charging part of the count in the information upon which the jury convicted, -omitting the formal parts, reads as follows: * * * did then and there unlawfully open a stinking offensive substance in the Gem Theatre in Wichita Falls, Wichita County, Texas, with a malicious intent wrongfully to injure the business of A. A. Mellbearn.”

Appellant contends that the act of the Legislature under which the conviction was obtained is invalid as being violative of section 35, art. 3, of our Constitution. This section is as follows: “No bill, (except general appropriation bills, which may embrace the various subjects and accounts, fo-r 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 no-t be so expressed.”

The contention of the appellant is that the caption to said act is insufficient to cover section 2 of such article, which makes it unlawful for a person to have in his possession stink bombs, etc. The caption reads as follows: “An Act to prohibit the use, manufacture, sale, and other disposition, of stink bombs and stinking, offensive smelling or injurious bombs or substances as herein defined for the purpose of injuring, molesting, or coercing another, or for the injuring of property of -another as provided herein; providing exceptions; proscribing offenses and penalties; a,nd declaring an emergency.,”

The prosecution in this case is based under section 1 of said Act (Vernon’s Ann. P. G. art. 1339a, § 1), which provides that: “It shall be unlawful to break, open, or explode, or to abet in the breaking, opening, or exploding of any stink bomb or any stinking, offensive smelling, or injurious bomb or substance with a malicious intent wrongfully to injure, molest or coerce another, or to injure the property or business of another, or to molest another in the use, management, conduct or control of his business or property.”

As we understand appellant’s contention, there is no contention that the caption to said bill is insufficient to cover section 1 of said act but is insufficient to cover section 2 of said act (Vernon’s Ann. P. C. art. 1339a, § 2). As said in Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176, 177: “It has been held uniformly in this state that a liberal construction will be applied to an act o-f the Legislature in determining whether or not it violates this section of our Constitution.” Even if it should be conceded that there may be some doubt as to whether certain provisions in section 2 of said act are included within the title of the act in question, upon which we are expressing no opinion, it is, however, unnecessary to decide this question. The act upon which the prosecution is predicated is denounced as an offense in section 1. The definition contained in the section last mentioned is covered by tbe caption of the act. Hence, if it should be held that section 2 of said act is not germane or fairly embraced within the title of the act, it is easily separable from the other matters and things named in the title and its inclusion would not have the effect of voiding the subject properly embraced in the first section. See Ex parte Abrams, 56 Tex. Cr. R. 465, 120 S. W. 883, 18 Ann. Cas. 45, also Joliff v. State, supra.

It will be noted that sections 3 and 4 of the act (Vernon’s Ann. P. C. art. 1339a, §§ 3, 4) make provisions for excepting peace officers, physicians, nurses and pharmaceu-tists, and other persons licensed under the laws of this state from the provisions of the statute. The information did not allege that the appellant is not within the excepted classes. Appellant attacks the information in his motion to quash for the want of such an allegation. The exceptions are not a part of the definition of the'offense but are in a distinct section of said act. We quote from Branch’s Ann. P. O. § 510: “When the exceptions to the operation of a penal statute are in a distinct article or section from the' one defining the offense and are not a part of the definition of the offense nor descriptive of it, and the exception is not the gist of the offense, it is not necessary, to negative such exceptions.” Milling v. State, 67 Tex. Cr. R. 551, 150 S. W. 434, 435; Newman v. State, 58 Tex. Cr. R. 223, 124 S. W. 956.

Appellant, also moved to quash the information because it was too general, indefinite, and insufficient to put the appellant on notice as to what he was charged with. The-information followed the language of the statute. We think the language of section 1 of said article is itself completely descriptive of the offense, and it is well established that where the language of the statute is itself completely descriptive of the offense, the indictment will be sufficient if it follows the language of the statute and expressly charges the described offense committed by defendant.

Bill of exception No. 5 complains that while the appellant was on the witness stand testifying in his own behalf, the state, over his objection, required him to testify that when he was at the police station on the 14th, a day or two before the offense was alleged to have been committed, that he told them his name was John Franklin and he took a car the police had picked up and which belonged to John Franklin out of the possession of the police, to which the appellant objected on the ground that it was inflammatory, irrelevant, and prejudicial to the rights of the defendant, which objection was overruled by the court.

The facts in evidence showed that one Mc-llhearn operated the Gem Theater in Wichita Falls. On the night of the alleged offense appellant was identified as being seated in the theater. There was no one near him for three rows in front or back of him. After noticing the appellant sitting there, the state’s witness Buster Scott testified that he smelled an odor and at the time the appellant was coming back toward the door. The witness ran down to where appellant had been sitting and found a bottle sitting there with some strong stinking liquid in it. About half of it was spilled on the floor. At the time he first saw the bottle, the witness did not pick it up but ran out in front and saw the appellant standing out there between two cars, and he pointed him out to the manager and told him to follow the appellant and watch him. The manager, A. A. Mcllhearn, testified positively that the appellant was the man pointed out to him by the witness Buster Scott, and he followed him for about 20 minutes and during that time he got several good looks at him. After he had followed him for about 20 minutes, an automobile came along. The witness got the number of the car, and he then watched the appellant until he got in the rumble seat of the car and left. The evidence further showed that the car, the number of which the witness Mcll-hearn had taken and in which he saw the appellant drive off. had been found by the police a few days prior to that time sitting on the street and had been taken to the police station, and thereafter the police had turned the car over to the appellant, when he stated to them that his name was John Franklin, which said car had been registered in the name of John Franklin.

The evidence complained of was on cross-examination of the appellant and was material testimony going to the identity of the appellant as being the person whom the witness Mcllhearn had seen getting into said car on the night of the alleged offense. The bill is also qualified by the court to the effect that the witness R. D. Morris testified without objection by appellant that the appellant came to the police station and received the ear in question and gave the name of John Franklin, and the appellant cross-examined said R. D. Morris on this point. No reversible error is shown by this bill.

By bill of exception No. 2 appellant complains of the fact that while the witness Buster Scott was testifying in'behalf of the state on direct examination, said witness was permitted to testify in answer to questions propounded to him that a certain bottle introduced in evidence, together with its contents, was the same bottle and had the same odor which said witness smelt on the night in question in the Gem Theater; that immediately thereafter the state introduced said bottle and said contents in evidence and handed same to the jury and permitted them to smell of same, to which action appellant objected for the reason that such action on the part of the state was prejudicial and injurious to the rights of the appellant and was in fact making witnesses of the jurors as to said smells being offensive or inoffensive, pleasant or unpleasant, and made of said jurors witnesses and experts by submitting to them directly matters which did not come to them from the witness stand.

Bill of exception No. 3 complains of the court, over the appellant’s objection, permitting the witness Buster Scott, while testifying in behalf of the state, being asked the question as to whether or not said container contained an offensive substance and permitting the said witness, over the objection of the appellant, to answer in the presence of the jury that it was offensive.

While it was improper for the court to permit the state’s attorney to pass around to the members of the jury the container which-was found and identified as being one containing the obnoxious smelling stuff and have-them smell it, .we do not believe that it constituted reversible error under the issues involved in this case. There was no contention on the part of the appellant that the contents of said container was not of -an offensive substance. Whether or not the substance in the bottle was offensive to the smell was not a contested issue in the case, the appellant’s defense being solely that of an alibi. If the information gotten by the jury from smelling the contents of the bottle found in the theater could be appropriated by them to any controverted question, the conviction would be jeopardized; but no proof was offered at any time of the fact that the jury were influenced thereby or relied upon their own judgment in determining the question. The fact that the jury was permitted to smell the contents of the bottle, while useless and improper as stated above, could not be regarded as harmful under the circumstances. No witness was introduced who aserted or claimed in any way that the contents of the bottle was not of an offensive stinking substance. The witness P. W. Mitchell testified without any objection that he was in the theater on the night the alleged offense was committed and he smelled something in there that had an awful offensive stinking odor. Under all the facts and circumstances, we do not believe the matters complained of by appellant consti-tuted reversible error. See Reid v. State, 100 Tex. Cr. R. 512, 271 S. W. 625; Lerma v. State, 81 Tex. Cr. R. 109, 191 S. W. 167; Cook v. State, 96 Tex. Cr. R. 586, 258 S. W. 1058.

We are unable to reach the conclusion that the evidence is insufficient to support the conviction.

Being unable to agree that any of the contentions made by appellant call for reversal o-f this case, the judgment is affirmed.

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 Rehe.arin-g.

MORROW, Presiding Judge.

In his' motion for rehearing, appellant, through his counsel, refers the court to various decisions and makes’an interesting argument in support of his contention that the pleading, that is, the complaint and information, does not sufficiently describe the offense. The phase of the information upon which the conviction rests reads as follows: “Frank Archey * * . * did then ,and there unlawfully open a stinking offensive substance in the Gem Theater in the City of Wichita Falls, Wichita County, Texas, with a malicious intent wrongfully to injure the business of A. A. Mcllhearn.”

Appellant contends that the failure to designate the -substance by name, or to aver that the substance was unknown, vitiates the pleading. We -are unable to bring ourselves in accord with that view. Ordinarily, but not in every case, a pleading is sufficient which describes the offense in the language of the statute. An exception arises when the language of the statute alone would not be sufficient to set out the offense in compliance with the 1-aw. Additional averments are then required. See Kennedy v. State, 86 Tex. Cr. R. 450, 216 S. W. 1086. It is thought that the present matter does not, come within the exception mentioned.

The motion for rehearing is overruled.


author: MORROW, Presiding Judge. HAWKINS, Judge.

text:
    MARTINEZ v. STATE.
    No. 15705.
    Court of Criminal Appeals of Texas.
    March 15, 1933.
    State’s Rehearing Denied May 3, 1933.
    James A. Harrison, of Beaumont, and R. G. Robertson, of Port Arthur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is rape; penalty assessed at confinement in the penitentiary for a period of ten years.

The prosecution is under that phase of article 1183, P. O., 1925, defining rape as carnal knowledge of a female under eighteen years of age, with or without consent and with or without the use of force, threats, oar fraud; provided that if the female is fifteen years of age or over, or if consent is shown, proof that the female was not of previous chaste character may be a defense.

The prosecutrix testified that on the night of September 4, 1931, she had sexual intercourse with the appellant; that she had previously had sexual intercourse with him four times; that she never disclosed the conduct of the appellant until she was discovered.

The age of the prosecutrix was declared by her mother to be fourteen years on June 10, 1932. According to the mother of the prose-cutrix, appellant offered to give her husband employment if he would refrain from prosecuting him. There was corroborative testimony given by the officers as well as circumstantially by the mother of the prosecutrix.

Appellant was an employee of the Texas Company at Port Arthur, Tex. The superintendent of that company testified that the appellant bore a good reputation; that the mother of the prosecutrix had had preliminary negotiations with reference to effecting a settlement and preventing the prosecution of the appellant; at least such proposals were made to the witness.

A number of witnesses supported the good reputation of the appellant.

The doctor who examined the prosecutrix testified that she exhibited attributes of a mature woman; that she appeared fully developed ; and that in his judgment she was about eighteen years of age. She was neither pregnant nor diseased. ■ The examination which he made exhibited no indication of force. There were no lacerations or anything that would indicate force. In a conversation with the doctor, the prosecutrix indicated that she had entered fully into the acts of intercourse with the appellant.

Appellant testified that he was a native of Mexico; that he had frequented the home of the prosecutrix, where he bought beer from her parents, paying them for it at regular prices. He said he would go to the house about 9:30 or 10 o’clock at night and that the girls (the prosecutrix and her sister) i urged him to stay until after midnight; that he, the mother, and the girls would go out at night to lunches; that the prosecutrix slipped out of the house four times and met him. 1-Ie had learned from both the father and mother of the prosecutrix that she was over seventeen years of age; that she appeared' to be between seventeen and eighteen years of age; that his first act of intercourse with her indicated that it was not her first act; that the intimacy was started by the conduct and request of the prosecutrix.

Another doctor who examined the girl testified that in his opinion she was between thirteen and fifteen years of age; that she was very fully developed for a child her age.

Several bills of exception, notably Nos. 3, 4, and 5, complain of the refusal of the court to receive evidence proffered by the appellant’s witnesses going to show that the prosecutrix, prior to the time of the beginning of the appellant’s illicit relations with her, had been seen by the witnesses to engage in lascivious conduct with men who frequented her mother’s home. Such testimony, in many details, was of a nature to bear upon the want of chastity of the alleged injured female at the time her relations with the appellant began. This testimony, especially in the light of other testimony in the record throwing light upon the character of the prosecu-trix and her age, is deemed to have been admissible on the issue presented to the jury as to whether she was of previous chaste character at the time she began her relations with the appellant. The admissibility of circumstantial evidence 'bearing upon the previous character of the prosecutrix has been sanctioned in many eases. Among them are the following: Norman v. State, 89 Tex. Cr. R. 330, 230 S. W. 991; Simpson v. State, 93 Tex. Cr. R. 303, 247 S. W. 548; Miller v. State, 98 Tex. Cr. R. 525, 256 S. W. 598. Other references will be found in Shepard’s Texas Citations.

Due to the error committed in rejecting the testimony mentioned, the judgment is reversed and the cause remanded.

On Motion for Eehearing.

HAWKINS, Judge.

The state has filed a motion for rehearing insisting that in view of a special charge given at appellant’s request the evidence for the exclusion of which the judgment was reversed became immaterial.

The indictment averred that prosecutrix was under eighteen years of age, and that the act of intercourse upon which prosecution was based occurred o.n the 4th day of September, 1931. Prosecutrix in the beginning of her testimony swore, “I had never had sexual intercourse with any man before that night” (referring to September 4th). Later she testified that appellant had had four other acts of intercourse with her before September 4th, the first one being on August 4th.

In paragraph 4 of the main charge the jury was told to convict appellant if he had intercourse with prosecutrix on September 4th, and she was at that time under fifteen years of age. In paragraph 5 the jury was told that if appellant had intercourse with prose-eutrix on September 4th, and she was then between fifteen and eighteen years of age, and had not theretofore had intercourse with appellant or any other man, they would convict. In paragraph 7 the jury was instructed that if prosecutrix was between fifteen and eighteen years of age on September 4th and had theretofore had intercourse with appellant or any other person, they should acquit. At the instance of appellant the special charge adverted to in the beginning of this opinion was given; it told the jury to acquit appellant if prosecutrix was over fifteen years of age on September 4th. However, paragraph 5 of the main charge was not withdrawn from the jury. There seems to be a clear conflict between, it and thq special charge. It is impossible to know which instruction the jury followed. Paragraphs 5 and 7 of the charge rendered the issues of prosecu-trix’ age and previous chastity vital, and the excluded evidence bore upon, the latter issue.

Believing our original opinion made proper disposition of the case, the state’s motion for rehearing is overruled.


author: LATTIMORE, Judge. HAWKINS, Judge.

text:
    HILL v. STATE.
    No. 15669.
    Court of Criminal Appeals of Texas.
    March 22, 1933.
    Rehearing Denied May 3, 1933.

      W. A. Anderson, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty.; of Austin, for the State.
   LATTIMORE, Judge.

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

We do not see any good to come from setting out the facts at any length. Deceased was engaged in running- a dairy, and permitted some of his cows to run on the commons without being as carefully herded as they might be, and, in an altercation arising out of this situation, he was killed. The cuts and bruises on his body were described by several witnesses.

The chief complaint in this ease seems to relate to supposed errors connected with the change of venue. The venue was changed from Tom Green county, where the killing occurred, to Taylor county. No bill of exception was taken to the court’s action in ordering such change, but a motion was made in Taylor county to dismiss the case for want of jurisdiction. We do not think the act contained in chapter 8, Acts of First Called Session (1926) 39th Legislature, p. 12 (sections 1, 2 [Vernon’s Ann. O. G. P. arts. 760a, 760b]), one clause of which (section 3) repealed article 568, 1925 O. C. P., obviates the necessity for the taking of a bill of exception to the action of the court in ordering a change of venue, when deemed objectionable. All through said act it- is manifest that its purpose was to give more time for the preparation of bills of exception-in certain cases than had been theretofore allowed. Referring to bills of exception regarding change of venue, and other matters occurring before the actual trial, and to misconduct of the jury, and to other matters arising after such trial but probably out of the presence of the court, it is said: “All such statements of facts and bills of exception pertaining to any and all of such matters, shall be filed within the same time as is prescribed for bills of exception, etc., occurring during the actual trial of such causes.” Article 760a. The wisdom and necessity for holding it necessary to take such bills of exception is here exhibited. In the qualification to the bill of exception taken to the action of the judge in Taylor county in refusing to dismiss the case, there appears a statement certified to by the district judge of Tom Green county, made a part of such qualification, setting out that appellant wanted the venue changed from Tom Green county, and informed said judge that he purposed asking therefor, but was told by said judge that he was going to change the venue of the case of his own motion, and that in trying to agree on a county to which the case should be sent, appellant objected to certain counties in the same district, and to the county-seat of Runnels county, an adjoining county, and asked that the venue be changed to Tar-rant county, but the court refused this because of distance, expense, etc., and of his own motion changed the venue to Taylor county, distant from Tom Green county only about twenty-five miles at nearest points, and whose county seat had direct railway connections with that of Tom Green county. Without discussing the impropriety of putting into a qualification such matters as are above referred to, it is manifest that opportunity ought to be afforded the trial court of the county from which the venue is changed of stating, in qualifications to a bill of exception, if necessary, the facts and surroundings attending and pertinent to such change of venue. We are of opinion that one desiring to make complaint of a change of venue in his case should be required to take his bill of exception in the court a quo, and that he should have same approved within the statutory time for the approval of such bills, and that he cannot resort to a plea to the jurisdiction of the court to which the case is sent in lieu of such bill of exception. Appellant complains in his brief of the insertion in the qualification to his bill No. 5, which presents the objection to the overruling of his plea to the jurisdiction, of the statement made by the judge of the Tom Green district court, but we find no exceptions to such qualifications.

Another complaint is set out in the same bill of exception, viz. that the original transcript of the proceedings had in Tom Green county, which- was sent by the clerk of the district court of said county to the clerk of the district court of Taylor county, contained no certified copy of the order of the judge of the district court of Tom Green county convening a special term of his court on July 18, 1931, at which time a judgment was entered directing a nunc pro tunc entry upon the minutes of said court as of date July 4, 1931, at which time it appeared that the case was actually transferred on change of venue to Taylor county, as shown by a docket entry of date July 4, 1931. Suffice it to say that article 570, O. O. P. (as amended by Acts 1929, 2d Called Sess., c. 8, § 1 [Vernon’s Ann. C. C. P. art. 570]), contains specific directions as to what should be sent in such case by the clerk of the court from which venue is changed to the clerk of the court to which the case is sent, and nothing therein set forth seems to include or make necessary a certified copy of any order calling such special term. However, a duly certified copy of such order does appear, and is in the bill of exception under discussion.

Appellant’s bill of exception No. 7 sets out three pages of questions and answers with no certificate of the trial judge that there was any necessity for the preparation of a bill in such fashion. Said bill recites that the state’s objection to the above testimony was sustained. Citation of authorities is not deemed necessary to show that such a bill cannot be considered. It is in violation of the statute. Article 760, subd. 1, C. C. P. (as amended by Acts 1931,1st Called Sess., c. 34, § 7 [Vernon’s Ann. C. C. P. art. 760, § 1]).

Bill of exception No. 8 complains that a state witness in rebuttal was allowed to describe the many cuts on the body of deceased. When asked to so describe them, the bill states that appellant objected on the ground that this was not in rebuttal; that this would be inflammatory and prejudicial. Neither ground of objection is supported -by any recital of facts in the bill. To entitle such bill to consideration, it should in and of itself manifest the .error complained of.

Bill of exception No. 1 complains of the fact that a daughter of deceased was allowed to testify that she witnessed part of the difficulty in which her father was killed, and that, as she was going toward the place where it occurred, she met appellant and his son, both of whom participated in the affray, and both of whom were indicted for this murder, coming down a road which she was crossing. She was asked if they said anything to her. This was objected to as irrelevant and prejudicial. We doubt the sufficiency of the objections, but the witness testified that either appellant or his son stated to her, “Get out of the way or we will run over you.” The trial judge certifies that this was admitted as part of the res geste, that it occurred within one hundred and fifty yards of where the killing had taken place and within a few moments after same. We perceive no error in the ruling.

If there was any doubt as to the propriety of allowing the widow of deceased to testify to the number and ages of her children, it would not appear of sufficient weight or materiality to call for a reversal of the case, especially in view of the fact that four of said children testified, and reference was made by witnesses, without objection, to several smaller ones.

Bill of exception No. 3 sets out objection to the testimony of the wife of deceased that shortly before the killing deceased left her to go to the place where the difficulty occurred, and that she remonstrated with him for going, and that he replied to her, “Can’t men talk anything over reasonably, without making a fuss,” and left her. The bill of exception reveals that this was part of a conversation first gone into by appellant in his cross-examination of this witness. Such being the case, he has no right to complain. See article 728, C. C. P.

Bill of exception No. 4 presents complaint that a witness was allowed to say that, in talking to appellant prior to this homicide, in which appellant was describing the actions of deceased in permitting his cattle to run at large and of his purpose of filing a complaint against deceased for such conduct, appellant’s face was flushed with anger, and he was very bitter in his attitude toward deceased. We think this testimony was admissible.

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

On Motion for Rehearing.

HAWKINS, Judge.

Appellant cites article 2210, R. C. S., Walsh et al. v. Methodist Episcopal Church South et al. (Tex. Civ. App.) 173 S. W. 241, and Reed v. Murphy (Tex. Civ. App.) 276 S. W. 951, as supporting the proposition that, if there is included in the judgment of which complaint is urged a recital that the complaining party excepted thereto, it is not necessary to bring the complaint forward by bill of exception. As we understand the record the order changing the venue was actually máde by the court in Tom Green county on the 4th day of July, 1931, but was not carried forward in the minutes; that a special term of the court was called at which, on the 18th day of July, 1931, a nunc pro tunc judgment was entered carrying into the minutes the judgment of July 4th. In the nunc pro tunc judgment there is no recital showing that the order of July 4th changing the venue was excepted to. In the order granting the state’s motion to have the nunc pro tunc judgment entered, it is recited that appellant excepted to the action of the court in acting favorably on the state’s motion. We call attention to such matter because, if appellant’s position be sound, which is not thought to be true, it is not believed that an exception noted to the court’s action on the motion would take the place of an exception to the order actually changing the venue.

Adverting to the main question in issue, we adhere to the announcement in our original opinion that the Acts 1st O. S., 39th Leg. (1926), c. 8, p. 12 (sections 1, 2 [Vernon’s Ann. O. O. P. arts. 760a, 760b]), which (section 3) repealed article 568, G. O. P. (1925), did not relieve one complaining of the action of the court in granting or refusing a change of ven-nue of the necessity of bringing such complaint forward by proper bill of exception taken in the court whose action is challenged. The act of the Legislature in question only changes the time in which may be filed such bill of exception or statement of fact reflecting the circumstances under which the court acted.

Appellant urges that this court should not consider the qualification to his bill of exception No. 5 in which is incorporated by the trial judge of Taylor county the certificate furnished him by the judge of Tom Green county explaining the circumstances regarding the change of venue. As stated in our original opinion, we doubt the propriety of such a qualification. The circumstances under which it was made emphasizes the necessity of a bill of exception to the action of the court in changing the venue taken at the time and in the court making the order. If the attack may be delayed until venue is challenged in the court to which the case has been sent, the trial judge of that court has no knowledge of the facts and circumstances under which the judge who changed the venue acted.

The previous holdings of this court, which we regard as unaffected by the act of the Thirty-Ninth Legislature in question save as to the time in which bills of exception and statements of facts relating to change of venue may be filed, are reflected by the following text from Texas Jurisprudence, vol. 4, § 152: “An order granting or refusing a change of venue is not reviewable in the absence of a bill of exception reserved to the action of the court; and this is true though the record shows that the ruling would have been reversible error had a proper objection been interposed, where the matter is not jurisdictional. Nor will pleas to the jurisdiction in cases in which the venue has been changed be entertained by the court to which the cause was sent, nor by the appellate court, unless the matter complained of was preserved by proper bill of exceptions taken in the court a quo.” In support of the text many cases are cited, including Parker v. State, 91 Tex. Cr. R. 68, 238 S. W. 943; Baker v. State, 87 Tex. Cr. R. 213, 220 S. W. 326; Haley v. State, 87 Tex. Cr. R. 519, 223 S. W. 202; Ex parte Haley, 88 Tex. Cr. R. 649, 228 S. W. 208; Wilson v. State, 87 Tex. Cr. R. 538, 223 S. W. 217. See, also, Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597.

When this case was called for trial in Taylor county on the 22d day of February, 1932, appellant moved to dismiss it because the transcript on file from the court of Tom Green county failed to show an order calling a special term of court in that county at which special term the nunc pro tunc order changing the venue was entered. There appears in the record the order of the district judge of Tom Green county calling a special term of court in that county, but the certified copy thereof was not filed in Taylor county until the 23d day of February, 1932. Appellant objected to the court considering such order because it was not on file when the case was called for trial and when appellant was required to plead to the indictment. The nunc pro tunc order recited that it was made at a special term of court, and presumptively the special term was in session under authority of law. The fact that the certified copy of the order calling the special term was not filed until after appellant had entered his plea, and was not incorporated in the original transcript from Tom Green county did not in our opinion prevent the court in Taylor county from proceeding in the ease. See Delaney v. State, 48 Tex. Cr. R. 595, 90 S. W. 642; Biggerstaff v. State, 59 Tex. Cr. R. 575, 129 S. W. 840. It was the order of transfer in fact made on the 4th day of July, 1931, by the court in Tom Green county, which fixed the new venue in Taylor county. Ex parte Haley, 88 Tex. Cr. R. 649, 228 S. W. 208. The subsequent proceedings in the court of original venue were for the purpose of completing the record in order that the court of the new venue might be apprised of its authority. It had sufficient information from the recital in the nunc pro tunc order which was before it that such order had been made at a special term of court, unless and until in fact it was made known that such order had been made at a time when the court was not in session.

The motion for rehearing is overruled.


text:
    FORTNER v. STATE.
    No. 15630.
    Court of Criminal Appeals of Texas.
    March 8, 1933.
    Rehearing Denied April 26, 1933.
    W. L. McConnell, of Panhandle, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, Judge.

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

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

The appeal is dismissed. •

PER CURIAM.

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

On Motion to Reinstate Appeal.

MORROW, Presiding Judge.

On March 8, 1933, a dismissal was ordered for want of jurisdiction, there appearing in the record no noti6e of appeal. A motion to reinstate the appeal was filed, accompanied by a copy from the judge’s trial docket stating that notice of appeal was given as indicated in the original opinion. The matter is controlled by article 827, C. C. P. 1925, in which it is said in substance that if notice of appeal is given but not entered of record, then by making proof of such fact, the judge trying the case shall cause the notice to be entered in the minutes of the court, and “said entry when so made shall bear date as of date when notice of appeal was actually given in open court.” By following the.direction in the statute, the appellant would be entitled to have'notice of appeal entered. See Vernon’s Ann. Tex. C. C. P. 1925, vol. 3, p. 197; Bryson v. State (Tex. Cr. App.) 20 S.W.(2d) 1047. Copy of docket entry in record on appeal has been declared insufficient notice of appeal. See Casey v. State. 116 Tex. Cr. R. 111, 32 S.W.(2d) 461; Ex parte Maple, 116 Tex. Cr. R. 383, 33 S.W.(2d) 734; Wheeler v. State, 118 Tex. Cr. R. 358, 42 S.W.(2d) 69. This court is without jurisdiction in the absence of proper notice of appeal. See Stewart v. State, 113 Tex. Cr. R. 182, 18 S.W.(2d) 629; Bales v. State (Tex. Cr. App.) 18 S.W.(2d) 1086.

The motion to reinstate the appeal is overruled.


author: MORROW, Presiding Judge. BATTIMORE, Judge.

text:
    RENFRO v. STATE.
    No. 15743.
    Court of Criminal Appeals of Texas.
    March 29, 1933.
    Rehearing Denied April 26, 1933.
    A. T. Blaekshear, of Jasper, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

The affidavit for the search warrant contains the following: “Before me, the undersigned authority, on this day personally appeared A. O. Maxwell, and R. J. Damrel, v'ho, after being duly sworn on oath deposes and says: That within a certain house or outhouse, located in Jasper, Jasper County, Texas, and particularly described as follows: Being an unpainted dwelling-house located about 1¼ miles Northeast of the Jasper County Court House being the 5th house on left side of Burch Avenue going North from what is generally known as Depot Road which said place one Pete Renfro who has charge and control of, there is located certain property and implements described as follows; to wit: spirituous, vinous and malt liquor, capable of producing intoxication, kept for the purpose of sale.”

The recitals in the search warrant follow the affidavit.

Opposition to the proof of the result of the search is made upon the ground that the affidavit fails to state the facts upon which the warrant for the search of a private residence may be obtained, as provided by article 691, P. C. 1925, in that the affidavit omits that part of the statute upon which the right to search a private residence is predicated, namely: “* * * No warrant shall be issued to search a private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence, or unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured in violation of the terms of this act.”

Upon the premises of the appellant, the officers found whisky, wine,.home-brew, brandy, and beer, all of which were of an intoxicating nature; also a number of jugs and beer bottles.

There were four rooms in the appellant’s house. In one room he had a counter “or what they call an ‘eating joint’ and a dance hall.” There were four bedrooms and a dining room. In the dining room was an ice box containing the home-brew mentioned. From the testimony we quote: “The (front) room was used for cooking purposes. I would call it a restaurant room.”

The witness testified that on a former occasion he had seen meals served to people; that at one time of a recent date he had seen a number of boys sitting on eight stools at the counter eating and drinking.

The evidence characterizes the place as one “used for purposes other than a private residence,” and therefore not within the restrictions applicable to a private residence as set forth in article 691, supra. Under such conditions as the evidence reveals, the absence of an averment in the affidavit for the search warrant that it was a place where intoxicating liquors were sold did not vitiate the warrant or render the search illegal. See Ruhmann v. State, 113 Tex. Cr. R. 527, 22 S.W.(2d) 1069.

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

On Motion for Rehearing.

BATTIMORE, Judge.

Article 691, P. C., relating to search warrants in liquor cases, provides that a search warrant in the ordinary form may issue to search a private residence if any “part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence.” The testimony in this case shows without contradiction that appellant had been serving meals in the room of his house in which the intoxicating liquor was found; also without contradiction that it contained a counter at which were seven or eight stools, and that parties had seen groups at this counter eating barbecue. It was referred to as a sort of restaurant by one witness, and by another as an eating place. Neither appellant nor any member of his family took the witness stand or attempted to dispute the proposition that this characterization of this room was correct or to show that it was used only as a private residence. We still think the trial court not in error in his failure, under the facts of this case, to define a private residence.

The motion for rehearing will be overruled.


author: HAWKINS, Judge.

text:
    KUGLE v. STATE.
    No. 15787.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    E. T. Adams, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for misdemeanor embezzlement ; punishment being assessed at 20 days’ imprisonment in the county jail.

Appellant was indicted under the general embezzlement statute, which is article 1534, P. C. It was alleged that he was the agent of the Glen Rose Independent School District, Incorporated, and that he converted to his own use without the consent of said school district $5 which had come into his possession by virtue of his agency. '

Motion was made to quash the indictment upon various grounds, but we fail to discover any vice in it.

The evidence shows that appellant had received the nomination as tax collector of Som-ervell county, and that officers of the independent school district had made arrangements with him to collect the school tax due for the district, believing that it would be ⅛-sier to collect it in that way than to have an independent collector. The proof shows that the Southwestern Bell Telephone Company sent appellant a check for $46.97, included in which was $5 for the school district in question. It was the contention of the state that appellant passed said check to his credit and failed to account to the school district for the $5 due it.

We think it necessary to discuss but one question. In the charge the jury was authorized, if they found appellant guilty, to assess his punishment at imprisonment in the county jail not exceeding 2 years, and by a fine not exceeding $500, or by such imprisonment without fine. The penalty assessed was 20 days’ imprisonment in the county jail. The general embezzlement statute (article 1534) provides that the punishment for embezzlement shall be the same as if the accused had committed theft. By Acts of the 40th Legislature (1927), chapter 157, page 232, punishment for theft of property of the value of $5 or under was fixed at a fine not to exceed $200. See article 1422, as amended (Yernon’s Ann. P. C. art. 1422). The provisions of article 1534 fixes the penalty for embezzlement the same as if for theft. The undisputed evidence shows that the amount claimed to have been embezzled was only $5, the same as charged in the indictment. The penalty which the jury was authorized and. did assess is not permitted by the law.

The county court had jurisdiction to try the case. Patterson v. State (Tex. Cr. App.) 56 S.W.(2d) 458. But the jury was misdirected as to the penalty, to appellant’s injury. Hall v. State, 111 Tex. Cr. R. 381, 12 S.W.(2d) 1024; Keenan v. State, 120 Tex. Cr. R. 616, 48 S.W.(2d) 264; Lee v. State, 115 Tex. Cr. R. 429, 28 S.W.(2d) 559.

This was fundamental error, for which it becomes necessary to reverse and remand the judgment, and it is accordingly so ordered.


author: MORROW, Presiding Judge.

text:
    JONES v. STATE.
    No. 15871.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    Allen & Allen, of Hamilton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is swindling; penalty assessed at a fine of $10.

The prosecution is under subdivision 4 of article 1546, P. C. 1925. The basis of the charge is that F. G. Jones, on the Sth day of February, 1932, acquired from Jim McClellan, eleven, eases of eggs of the value of $24.80, executing therefor his check on the Hamilton National Bank, payable to Jim McClellan or order.

The evidence consisted of the introduction of the check and the testimony of McClellan to the effect that he received the check on February 8, 1932, and delivered it to his local bank for collection either upon the day he received it or the next day. A few days later, he received notice that the check was unpaid. McClellan was a merchant at Gatesvilie, Tex., and had sold appellant some merchandise for which the check was taken in payment. Upon receiving notification from the local bank that the check was returned unpaid, McClellan talked to the appellant over the telephone. Appellant told him to send the check back to the bank at Hamilton. This was done, but the check was not paid.

Holmes, a banker at Gatesvilie, testified that the check was received at the bank on February 9,1932, and went through the clearing house at Dallas on February 13th. It was later returned unpaid. If the check, instead of going to Dallas, had been sent direct to the Hamilton National Bank, it would have reached the Hamilton National Bank on which it was drawn, on the 10th day of February.

Appellant testified that he had gone in the produce business with a capital of $200; that he executed and delivered a check to McClellan, thinking that there was sufficient money in the Hamilton National Bank at Hamilton, Tex., with which to pay the check. 1-Ie had also been accorded the privilege of overdraft, of which privilege he had no notice of cancellation at the time the check was given. It appears that on the daté the check was drawn (February 8, 1932), there was to his credit in the bank at Hamilton, Tex., the sum of $174.19. A statement of his account from February 6th to March 3, 1932, was as follows:

Appellant was advised by McClellan over the telephone during the latter part of February that the check had been dishonored. McClellan was told to return the check; appellant thinking that it had been paid. McClellan had two checks at the time, both of which were returned. One was paid, and the other was not. Appellant testified that the failure to pay the check was due to the depression of his business affairs and the diminution in the price of produce, which caused him to lose his capital and forced him to cease business. Appellant disclaimed any intent to defraud in the issuance of the check.

It is apparent from the appellant’s account at the Hamilton National Bank that on the day the cheek in question was issued there was a balance to his credit of $174.19; that by deposits and withdrawals the amount to his credit fluctuated; that there was a balance to his credit every day between the 6th of February and the 5th of March which was more than enough to pay the cheek except four days, the amount varying from $26 on March 4th to $189 on February 23d. If promptly presented, the check would have reached the bank on the 10th of February. The evidence is not clear as to when it was presented, hut it is made manifest by the testimony that the check was sent to Dallas and went through the clearing house on the 13th of February. If the evidence is understood, it discloses an absence of criminal intent upon the part of the appellant.

It appears from bill of exception No. 1 that on the 6th of February, the appellant issued a check for six cases of eggs of the value of $18.60 to H. E. Moore, and that there was filed an information against the appellant growing out of the failure of Moore to collect the check at the time it was presented at the bank. The result of the prosecution is not disclosed, nor the circumstances attending the transaction, but the pleading charging the appellant with the offense was admitted in evidence and permitted to go before the jury. The court instructed the jury that it was for the purpose of showing the intent. The matter should not have been received in evidence. Its reception in evidence was obnoxious to the rule which forbids the use of extraneous offenses as a means of conviction, except under certain conditions not present in this record. The issuance of the check on the 6th of February on the bank in which the appellant kept his account and in which he continued to make deposits, as shown by the record,' was not receivable to impeach the appellant’s good faith in issuing the subsequent cheek for $24.80, which is the basis of this prosecution. Apparently the record shows that on the day that the check for $18.60 would, in due course of business, have reached the bank upon which it was drawn, the appellant had to his credit the sum of $174.19, and that he had sufficient money to pay the check during the following days for nearly a month. In receiving the testimony, there was error committed.

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


author: FLY, Chief Justice.

text:
    CARDWELL v. BELL et al.
    Motion No. 9300; No. 7736.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 6, 1926.
   FLY, Chief Justice.

Appellees, on October 4, 1926, filed their motion to affirm the judgment against appellant on certificate. Every requirement in the statutes in such cases has been complied with, and the facts have all been admitted in a motion denominated an “Answer to Ap-pellees’ Motion to Affirm on Certificate,” which was filed on October 9, 1926. In that pleading appellant seeks to excuse his failure to file the transcript and statement on the ground that his attorney had been promised by the district clerk of Wilson county that he would file the record, but had failed to do so. After ascertaining this failure to file the record of appeal, appellant applied for a writ of error, and on August 30, 1926, filed his writ of error bond. In other words, appellant abandoned his appeal and sought to bring his cause up by writ of error.

Appellant had filed his appeal bond, and if for any good reason he had .not filed his record in time he should have offered it for filing in this court and presented his excuse for failing to file in the time provided by statute. He did not follow that course, but simply abandoned his appeal and obtained a writ of error, and appellees applied for af-firmance of the judgment on certificate. The affirmance was refused by. this court at a former day of this term, but, in view of certain decisions of the Supreme Court, as well as of other Courts of Civil Appeals, we con-chide the motion to affirm should' have been granted. Scottish Union & National Ins. Co. v. Clancey, 91 Tex. 467, 44 S. W. 482; Welch v. Weiss, 99 Tex. 356, 90 S. W. 160; Id., 40 Tex. Civ. App. 257, 90 S. W. 160; Templeman v. Maas (Tex. Civ. App.) 286 S. W. 543, 544.

In the case last cited, Chief Justice Pleas-ants for the Galveston Court of Civil Appeals held: “It is well settled by our decisions that the right of an appellee to an af-firmance on certificate,. when the appellant has failed to file a transcript within the time prescribed by the statute and shows no valid excuse for such failure, is an absolute right, and not affected by the suing out of a writ of error and filing a transcript on such writ, if the motion for affirmance is filed during the term of court to which the appeal is returnable.”

Appellant herein has never presented to this court a record for filing on a showing that he had been prevented by circumstances over which he had no control from filing the record in time.

The former opinion is withdrawn, former judgment set aside, and the motion to affirm on certificate is granted.