author: CALHOUN, J. LATTIMORE, J.

text:
    BURTON v. STATE.
    No. 15159.
    Court of Criminal Appeals of Texas.
    Oct. 12, 1932.
    State’s Rehearing Denied Jan. 4, 1933.
    Clifford L. Stone, of Henderson, and Gentry & Gray, of Tyler, for appellant.
    V. W. MeDavid, 'Crim. Dist. Atty., and H. P. Weldon, Sp. Counsel, both of Henderson, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for murder; punishment assessed at 2 years in the penitentiary.

There is only one count in the indictment, which, omitting the formal parts, charged the appellant as follows: “That he did then and there unlawfully and voluntarily and with malice .aforethought kill Jerry Allen with an automobile, said murder 'being so committed by the said Langston Burton while he, the said Langston Burton, was then and there engaged in the perpetration of the crime of driving and operating a motor vehicle, to-wit, an automobile, while under the influence of intoxicating liquors, in, along and upon the public highway there situated leading from the town of Henderson to the town of alin-den.”

The evident intention of the indictment was to charge appellant, while intoxicated, with driving and operating an automobile on a public highway and while driving said automobile accidentally killed Jerry Allen by then and there striking and colliding with the said Jerry Allen.

The deceased was a child seven years of age and he and other companions were returning from school, traveling along the highway. At the time he was struck by the automobile, he was off the highway and in a ditch to the side of the highway. The state’s testimony further showed that the automobile of the appellant, with him driving, was seen approaching at a rapid rate of speed going at a rate of from 30 to 35 miles an hour, and, when nearing the place where the deceased was, the car ran off the roadway down the embankment, striking the deceased, and inflicting injuries as a result of which he later died. There was evidence that appellant drank some whisky a short tiifie before the accident and was under the influence of intoxicating liquor at the time of the accident. Immediately after the accident, the appellant took the child to the hospital.

The defensive theory was that a flat tire on the automobile caused it to swerve and go into the ditch and evidence was offered to the effect that there was a flat tire after the accident on the right-hand front wheel and the casing on that wheel had blown out, and that a blow-out on the right front wheel caused the car to swerve to the right, the direction it went when it left the road. Appellant also offered evidence to show that, at the time of the accident, he was not under the influence of intoxicating liquor. The appellant did not testify as a witness in the case.

The learned trial judge in his charge to the jury defined the word “voluntarily” as used in his charge and also “malice aforethought.” The trial judge also instructed the jury in paragraph 11 of his charge that, unless they believed from the facts and circumstances in the case that the appellant was prompted by and acted with malice aforethought at the time the offense was committed, if committed, they would not assess the punishment at a longer period of time than 5 years confinement in the penitentiary.

In paragraph 12 of said charge, he further instructed the jury that, if they 'believed beyond a reasonable doubt that the appellant did intentionally, willfully, and voluntarily, ■with malice aforethought, kill Jerry Allen by then and there striking and colliding with the said Jerry Allen with an automobile, and that they should further find and believe from the evidence beyond a reasonable doubt that the said Uangston Burton was then and there at the said time driving and operating a motor vehicle, to wit, an automobile, while under the influence of intoxicating liquor in and along a public highway there situated leading from the town of Henderson to the town of Minden with the specific intent then and there to kill the said Jerry Allen, said killing was done with malice aforethought, as that kind of malice has hereinbefore been defined, and that said automobile, considering the manner of its use, waS a'deadly weapon, and the said offense, if any', 'does not come within the definition of negligent or excusable homicide as will hereinafter be defined, then they would find the defendant guilty of murder and assess his punishment at death or by confinement in the penitentiary for life or any term of years you see proper not less than 2; if they do not so believe, then, if they have a reasonable doubt as to whether the defendant is guilty of murder, they would acquit him of that offense.

The court further charged in paragraph 13 that, if from the testimony in this case “you should have-a reasonable doubt as to whether the defendant at the time and place as charged in the indictment, while driving an autojpqbile down a public highway leading from Henderson to Minden was under the influence of intoxicating liquor at the time Jerry Allen was struck by said automobile, then you will acquit the defendant of mui'&er and consider whether the defendant is guilty of negligent homicide either in the first or second degree.” The court also charged upon negligent homicide, both in the first and second degree.

Appellant at the proper time directed a number of exceptions to the court’s charge. Under the evidence in this case, the judgment can be sustained only by virtue of article 802 of the Penal Code, which makes it a felony for any person to drive or operate an automobile on any public road or highway in this state, while such person is intoxicated or in any degree under the influence of intoxicating liquor, and by virtue of article 1242, which provides in substance that when one, in the execution of or in attempting to execute an act made a felony by law, shall kill another, though without an apparent intention to kill, the offense does not come within the definition of negligent homicide. Also by virtue of article 42, P. C., which in substance provides that, if any one executing a felony shall through acts alone do another act which is voluntarily done, he shall receive the punishment affixed for the felony actually committed.

If it should be conceded that the indictment in this case is sufficient and that the evidence introduced in this case against appellant was admissible thereunder, then does the charge of the court assume a charge on a theory not raised or embraced by the evidence, as contended for by the appellant? There is absolutely no evidence in this case which would directly or indirectly tend to show that the appellant drove the car against the deceased voluntarily or with malice aforethought. The mere fact that the appellant may have been intoxicated at the time of the accident cannot be taken alone as proof of the fact that he drove said car against the deceased voluntarily, much less with malice aforethought.

Article 658, Vernon’S' Ann. O. O. P., provides: “In each felony ease the Judge shall before ■ the argument begins, deliver to the Jury, except in pleas of guilty where a Jury has been waived, a written charge, distinctly setting forth the Law applicable to the case.”

In the case of Stewart v. State, 15 Tex. App. 598, in construing, article 677 of the O. O. P., which then provided that, after the argument of any criminal case is concluded, the judge shall deliver to the jury a written charge in which he shall distinctly set forth the law applicable to the case, Judge Hurt used the following language: “Applicable to what case? Any and every case which might be presented by any state of facts admissible under the indictment? Most evidently not. But clearly ‘applicable to the case’ charged in the indictment and presented by the evidence. By this article the charge of the court is rigidly restricted; first, to the allegations in the indictment; and second, to the case made by the evidence — that evidence which is admissible under the allegations of the indictment.”

We quote from Lynch v. State, 24 Tex. App. 350, 6 S. W. 190, 192, 5 Am. St. Rep. 888: “ ‘However correct the principle of law may be in the abstract, it is error to give it in charge when there is a total want of evidence to support the phase of the case to which it is applied.’ Conn v. State, 11 Tex. App. 390. ‘If the court assumes and charges upon a theory not raised or indicated by the evidence, it is radical error and fatal to the conviction.’ Ross v. State, 10 Tex. App. 455 [38 Am. Rep. 643]; Taylor v. State, 13 Tex. App. 184; Hardin v. State, 13 Tex. App. 192; Stewart v. State, 15 Tex. App. 598. ‘A charge should be confined to the facts in evidence.’ Boddy v. State, 14 Tex. App. 528; Mayfield v. State, 23 Tex. App. 645, 5 S. W. 161.” See, also, Scogin v. State, 100 Tex. Cr. R. 389, 273 S. W. 575.

The charge as we view it assumes a theory totally unsupported by the facts, is strongly adverse to appellant, and it burdens his case with a strongly criminative matter not connected or shown by the evidence and reasonably conveys to the minds of the jury the impression of the court that appellant voluntarily and with malice aforethought deliberately ran into the deceased. The defendant is always to be tried on the evidence adduced and not on facts not testified to, and the charge must conform to the proven facts. See Reeves v. State, 34 Tex. Cr. R. 483, 31 S. W. 382.

We do not mean to hold that, if the trial court assumes and charges on a theory not raised or indicated by the evidence, such charge would warrant a reversal in every case. In the present case, however, considering the evidence, the transgression of the rule was prejudicial to the appellant.

The judgment is reversed and the cause remanded.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, J.

Without reviewing seriatim the matters set up in the state’s motion for rehearing, we express the belief that the indictment in this case is sufficient on the theory that an averment of a killing upon malice aforethought includes -one without such malice, but it is difficult to see how the jury could have escaped confusion in their determination of the issues involved, in view of the way in which the case was submitted in the charge. There was no evidence supporting any conclusion that the killing was upon malice aforethought, or that appellant intentionally or willfully struck deceased with an automobile.

The killing was the result of an accident, and the real question involved is, was the accident caused by the appellant being under the influence of intoxicating liquor at the time, or did it result from some other cause which would or might reasonably have brought about said accident, independent of appellant’s condition, this being a fact issue for the jury upon proper submission by the court. In other words, the mere fact that a man is under the influence of intoxicating liquor while operating a car on a highway, this being in and of itself the commission of a felony, should not in reason and common sense make him guilty of murder, if he be operating the car correctly, and as a man should who was not under the influence of intoxicating liquor, and an axle break, or a cotter pin shear, or a wheel runs off, or a blow-out occur without any causal connection between these and the manner or means of operation of the car as a result of appellant’s condition, and in such case a death result. Illustrations might be multiplied of conditions in which death might occur from some accident not arising from or caused by the drunken condition of appellant or by the manner of his operation of the car.

The testimony in this case beyond question raised the issue as to whether the car operated by appellant left the pavement, went into a ditch and killed the child, as a result of his being under the influence of intoxicating liquor, or as the result of a blow-out of the right front casing, not caused by or brought about by the appellant being under the influence of liquor. The boys who witnessed the. accident said appellant was not driving over 35 miles an hour. Parties who were at the scene immediately after the accident said they observed where the car left the pavement and turned over into the ditch, and there was a broad flat track such as would be caused by a casing which had been blown out, Parties who saw appellant’s car immediately after the accident testified that the right front casing was blown out, and the man who was called upon to. fix the flat after the accident testified to the same thing.

There is no defense or excuse for the operation of a car upon a public highway by, one under the influence of intoxicating liquor, and the rights of all people to the. free. and safe use of public highways should be carefully observed and rigorously maintained,. but the highest and best guarantee of all- our rights and liberties is found in adherence to the requirements of the law. Safety and security do not dwell where the law is not faithfully, fairly, and impartially administered.The comprehension of article 42, P. C., is great and its terms might be made oppressive if its purpose and intent be.not safeguarded by proper construction. We think it worth while to again quote said article, which is as follows,: “One intending to commit a felony and who in the act of preparing for or executing the same shall through mistake or accident do another act which, if voluntarily done, would be a felony, shall receive the punishment affixed to the felony actually committed.”

We have carefully examined every ease governed by this article reported in the volumes of the opinions of this court and of the Supreme Court when it had criminal jurisdiction, and all down to the Norman Case, hereinafter referred to, seem to be cases in which the thing actually done by accident or mistake by the accused, were those like that which he had intended to do in the commission of a felony, or were those which might ordinarily result from the acts of the accused in furtherance of his original intent, or preparatory acts in the execution of such intent to commit a felony, such as a man shooting at one with intent to kill and killing another, or assaulting one with intent to murder and accidentally striking another, etc. Careful examination of the article above quoted makes plain that there must be in the jnind of the accused throughout the intent to commit a felony. “One intending to commit a felony, and who in the act of preparing for or executing the same,” is the language of said article. It might be admitted, for the sake of argument, that one intending to get drunk and thereafter enter an automobile and driye it on a public highway, which would thus become a felony, might have an accident causing death, which to characterize as murder would require a flight of imagination. Suppose A should propose to a group of his friends that they all drink some liquor and then drive to town in his car. They agree. A reaches up on a shelf to get a bottle of whisky, not knowing that some one had put poison in the liquor. He gives it to his friends. They drink it and die. While this might be characterized as the result of a mistake and in the course of preparation to execute a felony, it would hardly be contended that A was guilty of murder. Again suppose A and his friends after partaking of the liquor shoúld start down to the street where his automobile is awaiting to drive on a highway, and as 'they go downstairs A should stumble and fall against B, the latter hkving in his pocket a pistol which, as the result of the accidental fall, is discharged and kills O. Would it be contended that this by any kind of reasoning or logic should be called murder? We think not. Such conclusion seems incredible. As well say that, if the car of a man under the influence of liquor and in operation upon a highway be struck by lightning and as a result the car become unmanageable and the death of some party resulted, the driver could be held guilty of murder.

In Norman v. State, 52 S.W.(2d) 1051, 1052, we said: “It is not enough that he be intoxicated while driving his car on such highway, but his such driving must cause the death of the other party.”

In the Norman Case the accused claimed that, even though he might have been under the influence of intoxicating liquor, he was driving his car properly and on the proper side of the road when another car ran into his, causing the death of an occupant of said other car. We further said in that case: “It cannot be sound law that one who drives his car correctly, and on the proper side of the highway, and in a proper manner on such public highway, even though he be then intoxicated, shall be convicted for murder if death result wholly from the carelessness or negligence of the driver of another car which collides with that driven by the accused.”

In the case before us, and any such case, the trial court should submit to the jury the issue as to whether the accident or mistake resulted from the fact of the driver being under the influence of intoxicating liquor or from a cause or causes not reasonably growing out of or resulting from such condition, and the jury should be told to acquit if the latter condition be true. If because of a blowout the car leave the road and go into a ditch and strike some person and cause death, it would be a fact issue for the jury to pass upon as to whether the rate of speed or the manner of driving or handling the car, resulting from the fact that the driver was under the influence of intoxicating liquor, caused or contributed to cause the blow-out. So also of any kind of an accident resulting from the condition of the driver of a car by an intoxicated operator, when death results from an accident.

Also in a case such as the one before us, when the issue as to whether the accused was under the influence of intoxicating liquor was sharply contested, and where his intent would necessarily be involved, and the degree of his guilt, if any, be affected and measured by his intent, coupled with his act, the trial court should give to the jury some definition of the term, “under the influence of intoxicating liquor” such as that the jury must find and believe that the accused was under the influence of such liquor to an extent that it would impair his ability to care for himself, or to guard against harm to others, in order to make him criminally liable.

The state’s motion for rehearing will be overruled.


source: Caselaw Access Project

author: CALHOUN, J.

license: Public Domain

text:
    MOWREY v. STATE.
    No. 15298.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    Rehearing Denied Jan. 11, 1933.

      Williams & Bell, of Childress, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Misdemeanor swindling is the offense; •punishment, assessed at a fine of $2Q0.

The facts in brief are as follows: The county commissioners’ court of Childress county employed a committee composed of appellant and one Trueblood to purchase a right of way from Childress north to Col-lingsworth county. By an order of said commissioners’ court the appellant and the said Trueblood were instructed and authorized to secure the deeds for said right of way from the proper owners along same and report same to the court, and further provided that said right of way would be paid for by the court when the report of said committee had been approved. 'Subsequent to their appointment, the appellant and the said Trueblood made the following- report to the commissioners’ court: “We, your committee appointed by you to procure by purchase the right of way for state highway No. 4, beg to make this partial report: Deeds executed and delivered hereto: I. S. Heath and wife-Consideration $1020.00.” Said report was signed by the. appellant and Trueblood. It seems that a deed executed by I. S. Heath and wife conveying said right of way through their property to Childress county in a consideration of $1,020 accompanied said report. By an order of the commissioners’ court it is shown that the report was approved and affirmed by the court and the clerk of said court was directed to issue a warrant on the highway bond fund to the party above named for the amount above stated. Several commissioners testified that if they had known prior to the time that they ordered said warrant issued to the said Heath and wife that all of the $1,020 was not going to Heath for consideration of payment for his right of way and that this amount had been agreed upon between Heath and the highway committee, they would not have approved the report. It was shown by the witness I. S. Heath that he was approached by the appellant and Trueblood for the purchase of said right' of way, and it was finally agreed between them that he would receive for said right of way the sum of $1,000 and that he understood that the thousand dollars was to cover any damages that he should sustain by the right of way, and at the time he executed said deed he knew that the amount had been increased from $1,000 to $1,020 and ho did not remember just the words the appellant said with reference to what this extra $20 represented. He further testified that the $20 was not part of the amount he was to receive as consideration for the taking of the land and damages to his farm by the right of way. That the appellant told him that the $20 was for expenses and at the time the warrant for $1,020 was delivered to him he executed and delivered to the appellant his personal check in the sum o-f $20.

There was no issue made as to the fact that the appellant had cashed said $20 cheek received by him from Heath. The appellant did not testify or offer any evidence.

Appellant moved to quash the indictment upon a number of grounds. Among said grounds was that the indictment was insufficient in that it failed to allege that the land conveyed to the county of Childress by the deed of I. S. Heath and wife described in said indictment was of no value and was not of the value of $1,020, the consideration recited in said deed, and it does not in fact allege that the county of Childress did not receive full value for the warrant so issued to I. S. Heath; that said indictment was further insufficient in law, in that it wholly fails to inform the defendant in what particular he defrauded Childress county or •the commissioners’ court of said county; that said allegations are wholly insufficient to show any scheme or device perpetrated by the defendant against the said county or commissioners’ court; that said indictment is insufficient, in that it is contradictory in its statement and alleges that said sum of $20 was received by the defendant from Childress county, and also alleges that the said sum was received by the defendant from I. S. Heath.

As to the objection made that the indictment failed to allege that the land conveyed by Heath and wife to the county was not of the value of the consideration cited in said deed and that the county of Childress did not receive full value in property for its wari’ant so issued to I. S. Heath, ■ article 1548 of the Penal Code provides that it is not necessary, in order to constitute the offense of swindling, that any benefit shall accrue to the person guilty of the fraud or deceit, nor that any injury should result to the person intended to be defrauded, if it is sufficiently apparent that there vyas a willful design to receive benefit or cause an injury. It has been held by this court that it is immaterial that any benefit accrue to the person guilty of the fraud, or that any injury shall result to the person intended to be defrauded, the intent of the accused being shown. La Moyne v. State, 53 Tex. Cr. R. 221, 111 S. W. 950; Baxter v. State, 51 Tex. Cr. R. 576, 105 S. W. 195. We will now consider as to whether the indictment as a whole is sufficient to set out the offense of swindling. Our statute provides that the offense shall be set forth in plain and intelligible words. Article 396, C. C. P. Further, it is provided by statute that everything shall be stated in the indictment which is necessary to prove.. Article 397, C. C. P. Article 405, C. C. P., provides: “An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to eiiable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” In the case of Whitley v. State, 90 Tex. Cr. R. 503, 236 S. W. 470, 472, in an opinion by Judge Lattimore, the following was laid down as to' what is necessary to be proven to make out a case of swindling: “To make out a case of swindling tlie injured party must be induced to part with his property by false pretenses and representations made for such purpose. Blum v. State, 20 Tex. App. 592, 54 Am. Rep. 530; Allen v. State, 16 Tex. App. 150. It must be shown that the false pretense set out in the indictment was not only made, but that it was relied on by the injured party, and was the inducement that moved such person to part with his property. Thorpe v. State, 40 Tex. Cr. R. 346, 50 S. W. 383; Hunter v. State, 46 Tex. Cr. R. 498, 81 S. W. 730; Doxey v. State, 47 Tex. Cr. R. 503, 505, 84 S. W. 1061, 11 Ann. Cas. 830. The false pretense charged must also be proved as laid. Marwilsky v. State, 9 Tex. App. 377; Dechard v. State [Tex. Cr. App.] 57 S. W. 813, 814. It has also been held that not only must the injured party have been induced to part with his property by means of the alleged false pretense, but that such pretense must have been such as was reasonably calculated to induce the owner to part with such property. Cowan v. State, 41 Tex. Cr. R. 617, 56 S. W. 751; Peckham v. State [Tex. Cr. App.] 28 S. W. 532.”

The indictment occupies about seven pages of the transcript and its length precludes a verbatim reproduction here. It in effect alleges that the appellant, devising and intending to unlawfully acquire $20 in money of the value of $20, did then and there, with intent to defraud, obtain said money, the same being the personal property of Childress county, with the intent to appropriate the same when so acquired to the use and benefit of the appellant, and the same was so obtained and acquired from said Childress county, the owner of said money, by the means of false and fraudulent representations, pretenses, and devices, knowingly and fraudulently made by him to 'the commissioners’ court of Childress county, Tex., which said false and fraudulent representations, pretenses, and devices were calculated to and did induce the said Childress county to depart with the title and possession of said money and the appellant so acquired said money with the intent to deprive the said Childress county of the value of the same and said money was so acquired by said appellant by tbe means of said false representations, pretenses, and devices in tbe following manner: That tbe appellant bad theretofore been employed by the commissioners’ court of Child-ress county to enter into an oral agreement with I. S. Heath as to the purchase price of a certain piece of land described in a deed from I. S. Heath and wife to W. B. Howard, county judge of Childress county, Tex., said purchase price to be subject to the approval of the commissioners’ court, and the said appellant did falsely and fraudulently represent to the commissioners’ court that appellant had agreed with the said Heath upon the purchase price of $1,020 for said land and presented to said commissioners’ court the deed of the said I. S. Heath and wife to said land (said deed then follows in full), and by reason of said false and fraudulent representations did cause and induce the commissioners’ court to cause to be issued to said I. S. Heath a warrant on the county treasury for the sum of $1,020. (Said warrant then follows in full.) It further alleges that the said Heath did then and there deliver to the said appellant his personal check in the sum of $20, which said check represented $20 of the proceeds of the said $1,020 warrant received by the said Heath. (Said cheek from Heath to the appellant then follows in full.) It further alleges that the appellant acquired said money by the means aforesaid and by reason of his false and' fraudulent' representations, pretenses, and devices made to the commissioners’ court of Childress county, which were false, and the appellant knew the same to be false when he made same. The indictment further alleges the truth to be that the appellant had not agreed with the said Heath upon the purchase price of $1,020, but had agreed with the said Heath upon the purchase price of $1,000 for said land, and said false representations, pretenses, and devices were made by appellant for the purpose of obtaining possession and title to said $20, and said, false and fraudulent representations, pretenses, and devises did cause and induce said Childress county to part with the title and possession of said $20. The indictment further alleges that the said appellant appropriated same to his use and benefit.

We think the indictment sufficient under the authorities of this court, and the motion to quash same was properly overruled.

By bill of exception, it is shown that objection was made to questions propounded to the members of the commissioners’ court and their testimony to the effect that if they had known that all of the money paid out was not going to pay for the right of way and damages done to Heath that they would not have approved the report and issued an order directing the clerk to issue a warrant for the $1,020. The objection to this testimony was-that said report with the deed attached thereto had been approved by an order and judgment of the commissioners’ court of Childress county and said order had not been set aside, revoked, or repealed and was a valid and bind- - ing judgment of said court in connection with matters of which it had jurisdiction, and the, questions asked constituted an attack upon the validity of the judgment of the commissioners’ court upon a collateral proceeding, and a charge of swindling could not be predicated upon a judgment of a court of competent jurisdiction. In support of said contention, the appellant cites the case of Hunter v. State, 46 Tex. Cr. R. 498, 81 S. W. 730. We do not think the said case is in point under the facts of this case.

In this case, however, the false representations were made directly to- the commissioners’ court, and it was necessary to show that the false pretenses set out in the indictment were not only made but that they were relied-on by the commissioners’ court and were the inducement that moved the members of said court to order the warrant drawn for the sum of $1,020. It was so alleged in the indictment and it was necessary to prove the false pretenses charged as alleged in said indictment. It would be an anomalous position in law to hold that a person could by means of false representations made to a commissioners’ court of a county induce said court to pay out money, which must necessarily be done by an order of the court, with the intent to appropriate said, money to the use of the party making said false representation, and thereafter be allowed to successfully plead in bar of a prosecution an order of the commissioners’ court in payment of said false claim. Such contention, we believe, is unsound and cannot be upheld by this court.

Appellant insists that the trial court was in error in refusing to instruct the jury on the law of accomplice testimony as relating to the witness I. S. Heath. The appellant excepted to the charge of the court for the failure to so instruct the jury and also prepared a special charge upon said issue which the court refused to give. Taking the testimony of the witness Heath as a whole, we are inclined to the belief that his evidence raised an issue as to whether or not he was an accomplice witness. Such being the case, that' issue should have been submitted to the jury. We quote from the opinion of Presiding Judge Morrow in the case of Anderson v. State, 98 Tex. Cr. R. 449, 266 S. W. 159, 160, as follows: “It is a general rule that, where one is connected with a criminal transaction', and testifies to facts exculpating him, his explanation is not binding but, taken in connection with the circumstances attending the transaction, presents a question of fact which ought, on proper request, to be submitted to the jury for solution. See Smith v. State, 89 Tex. Cr. R. 145, 229 S. W. 523; 16 Corpus Juris, p. 678.”

Erom tlie testimony of the witness Heath we find the following facts: That he owned a farm in Childress county which was traversed by Highway No. 4; that he sold to Childress county a part of a right of way; that the appellant and another man talked to him with reference to purchasing said right of way for Childress county; that he understood that they were a committee to make the purchase; that subsequently it was agreed that he was to receive $1,000 for said right of way; that he and his wife executed a deed to Childress eounty-and the consideration expressed in the deed was $1,020; that he did not remember just the words the appellant said to him with reference to what this $20 in excess of $1,000 represented; that a warrant was issued to him for the amount stated in the deed, and at the time the warrant was delivered to him he executed and delivered to appellant his personal check in the amount of $20; he did not remember whether he or appellant wrote the check; that it was-not in his handwriting; that the reason he issued the check for $20 was because of what appellant told him; that H was expenses; that he supposed that was the way they were doing the matter and he gave him the cheek for $20 to offset the extra $20 in the other check. He further testified that the $20 was not a part of the amount that he was to receive as consideration for the taking of his land and damages done to his farm by the right of way.

This evidence shows that the witness Heath took part in the obtaining of the $20 over and above the amount agreed upon for the right of way. There is no other evidence in the record showing the innocent intent of the witness Heath in executing the deed or in receiving the money. We quote from the opinion of Presiding Judge Morrow in the case of Smith v. State, 89 Tex. Cr. R. 145, 229 S. W. 523, 524, in passing upon a similar question: “So far as we have observed cases in which the courts have held that one who took part in the commission of the offense was, as a matter of law, not an accomplice witness, they are those cases in which his innocent intent was established by testimony other than his own; cases in which he has in advance made known to others that he planned to act with the real offenders in order to entrap them. Chitister v. State, 33 Tex. Cr. R. 635, 28 S. W. 683; Sanchez v. State, 48 Tex. Cr. R. 591, 90 S. W. 641, 122 Am. St. Rep. 772; Wright v. State, 7 Tex. App. 574, 32 Am. Rep. 599; Johnson v. State, 3 Tex. App. 590; Clay v. State, 40 Tex. Cr. R. 560, 51 S. W. 212; Penn v. State, 43 Tex. Cr. R. 608, 68 S. W. 170; Minter v. State, 70 Tex. Cr. R. 644, 159 S. W. 286.”

In' view of the record and the decisions above quoted, we think the court was not warranted in refusing the request of appellant to submit to the jury the question of whether or not the witness Heath was an accomplice witness, and, in failing to do so, reversible error is shown.

In his motion for new trial appellant) also raises an issue as to the misconduct of the jury in discussing the failure of the appellant to testify as a witness in his own behalf, and also as- to the jury receiving other evidence not testified to on the trial of the case. Said matters are not likely to occur on another trial of this case, and for that reason we pre-termit discussion of same.

Because of the failure of the court to submit to the jury the question of whether or not the witness Heath was an accomplice, the judgment is reversed and the cause remanded.

PER CURIAM.

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


author: HAWKINS, X MORROW, P. J.

text:
    HAMILTON v. STATE.
    No. 15311.
    Court of Criminal Appeals of -Texas.
    Nov. 16, 1932.
    State’s Rehearing Denied Jan. 11, 1933.
    H. S. Beard and H. L. Heatly, both of Waco, for appellant.
    Willard McLaughlin, Cr. Dist. Atty., and Sam Dardnne, Asst. Cr. Dist. Atty., both of Waco, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, X

Appellant stands convicted of the burglary of a bouse belonging to J. W. Warwick; punishment haying been assessed at six years’ imprisonment in the penitentiary.

The only question presented is whether the evidence sufficiently corroborates that of the accomplice witness Cutler. This witness testified that he borrowed a car from his brother in Houston and left there with one McKag and Matthews; that they arrived in Mart about 4 o’clock in the afternoon of July 27, 1931; that they met appellant in Mart, never having known him prior to that time. Cutler said he had formerly lived at Axtell, knew Mr. Warwick and his place of business; that, after having met up with appellant, the four of them talked over a proposed burglary of Warwick’s place, and agreed to commit it; that about 12 o’clock that night they broke into Warwick’s place; that he and Matthews entered while appellant and McKag watched from the outside. The witness described a number of tubes for automobile casings and some casings they got from Warwick’s house, and also said they got about half a box of William Penn cigars and six or seven bars of peanut candy, which he thought were called “peanut, patties.” Cutler .said they returned to Mart and then started from there to Waco; that when about five miles from Waco they “ditched this tube and candy and cigars and stuff we had in the car.” It is not clear from the record what the witness had reference to by “this tube.” He further testified that, after they reached Waco, appellant suggested that they go to the Alamo tourist camp; that they did go there, and all of them registered and secured a room; that later on appellant and McKag left in the car, saying they were going back “out there and get that stuff and bring it to town and dispose of it.” He said they were gone six or seven hours; that when they returned they did not bring any of the stolen stuff back with them. Cutlei' said that, when they went into the room at the tourist camp, he thought they had with them some of the cigars and candy which were taken out of Warwick’s place. According to Cutler’s testimony, after appellant and McKag returned, Matthews drove away in the car, and, when Matthews returned, the officers were with him. It appears that all four were pht in jail at Waco.

On- cross-examination the accomplice witness Cutler was shown a written instrument which he admitted having sent to appellant while they were in jail, in which he told appellant that he (Cutler) was not going to cause appellant any trouble, and admitting that he and Matthews committed the burglary. Cutler undertook to explain this note by saying he was afraid of appellant, that they were about to move him (witness) from the third floor of the jail to the second floor, where the other three were confined, and that he sent the note to Hamilton in order to avoid trouble. Outside of the accomplice only two other witnesses testified. Mr. Warwick, the’ owner of the place burglarized, said that on the morning of July 28th he discovered his place had been burglarized during the night, and that a number of tubes and casings which he described had been taken; that he also missed approximately half a box of “William Penn” cigars and five or six bars of “peanut patties”; that the “peanut patties” were wrapped in waxed paper and had no brands on them. He further said that after the examining trial he got some tubes back, and that “they gave me about three pieces of candy,” evidently by “they” referring to the officers. He said he did not recover any of the cigars. He did not undertake to identify the candy returned to him as that which was taken out of his place. The identification, if any, depends upon other circumstances found in the record. The testimony of Officer McDonald was in substance that they arrested Matthews and made some inquiry of him regarding the ear he was driving, and then went with Matthews to the room in the Alamo Plaza to find the owner of the ear. When they arrived at the room, appellant was standing just inside the door; McKag and Cutler also being present. While the officer does not so testify, we conclude from his evidence that his investigation was not with reference to the burglary of Warwick’s place, but that they had some suspicion regarding the ownership of the car which was being driven by Matthews. They found in the car some tubes for automobile casings which presumably were those identified by and returned to Warwick. The officer says: “ * * * We found a sack with some candy and cigars in it in the room where Prank Hamilton, Delton Cutler and McKag were. They were William Penn cigars; I believe. The candy was round peanut bars, I suppose, approximately two inches in diameter.”

It will be observed from the recital of the evidence that no cigars were returned to Mr. Warwick, and that he made no effort to identify the candy which was returned to him, as a part of that which was taken out of his place of business at the time of the burglary. Assuming, however, that the cigars and candy found in the room at the tourist camp were part of the property stolen, we regard the evidence a's inadequate to meet the requirements of the law (article 718, C. C. P.), which demands that, before a conviction can be sustained upon the testimony of an accomplice witness, there must be other evidence in the record tending to connect accused with the commission of the offense. Outside of the testimony of the accomplice witness, there is nothing in the record to show that appellant had ever been associated with Cutler or any of the other parties, or that he had eyer been in the car in which some of the stolen property was found. At the time the officers made the inquiry with reference to the car and found a part of the stolen property in it, Matthews was in control of the car. Appellant was not even present. The only evidence, outside of that of the accomplice, which even squints at “tending to connect” appellant with anything connected with the burglary or the stolen property, is the fact that he was found standing inside the door of a room at a tourist camp, in which room there was found a sack in which were some candy bars and cigars which presumably were a part of those taken at the time the burglary was committed. Appellant was not shown to be exercising any control over them at the time they were found; so far as this record shows, outside of the testimony of the accomplice, appellant could have just stepped inside the room at the tourist camp. While the accomplice says they registered there, no other evidence was introduced showing who had registered or who had control of the room in which the candy and cigars were found. All that can be said in regard to the testimony outside of that given by the accomplice witness is that it raises a bare suspicion that appellant may have been connected with the burglary. It shows simply that he was present in a room with other parties, among them being the accomplice, at the time some of the supposed stolen property was found by the officers. We do not review the principle of law involved, but it will be found discussed in the cases cited by appellant in his brief, which are Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869, and Walker v. State, 94 Tex. Cr. R. 568, 252 S. W. 552. See, also, Minor v. State, 108 Tex. Cr. R. 1, 299 S. W. 422 ; Reid v. State, 111 Tex. Cr. R. 9, 10 S.W.(2d) 1004; Robertson v. State, 119 Tex. Cr. R. 122, 44 S.W.(2d) 688. For a case presenting facts very similar to those found in the instant case, we cite Rubio v. State (Tex. Cr. App.) 50 S.W.(2d) 294.

The judgment is reversed, and the cause remanded.

On State’s Motion for Rehearing.

MORROW, P. J.

Quite an elaborate motion for rehearing in behalf of the state is before the court. The principal contention advanced is that there was found in the possession of the appellant property which had been acquired in the commission of the offense; namely, some candy and cigars. The testimony relating to these articles is fully set forth in the original opinion. The conclusion there reached and stated in the opinion, namely, that the ■ candy and cigars were not sufficiently identified, and were not shown to have been in the possession of the appellant in such manner as to affect him as the possessor of recently stolen property, is correct. The articles were not in the personal possession of the appellant. They were in a room occupied by the appellant and others. See Rubio v. State (Tex. Cr. App.) 50 S.W.(2d) 294. Moreover, as stated above, the articles were not identified as part of the stolen property except through the testimony of parties who admittedly took part in the commission of the crime. See Zonora v. State (Tex. Cr. App.) 51 S.W.(2d) 724. We do not regard the precedents cited as supporting the contention of state’s counsel. They are cases in which the stolen property was shown to have been in the possession of the accused and to have been identified as the stolen property. See Colter v. State, 110 Tex. Cr. R. 12, 6 S.W.(2d) 769.

The motion for rehearing is overruled.


author: CHRISTIAN, J. LATTIMORE, J.

text:
    FLORES v. STATE.
    No. 15575.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1932.
    Rehearing Denied Jan. 11, 1933.

      Chas. Owen and Theodore Andress, both of El Paso, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed John H. James by shooting him with a pistol.

The homicide occurred about seven o’clock in the evening at the store of the deceased and his sons-in-law. On the day of the homicide Pino Moreno, Jose Leon, and appellant left Las Cruces, N. M., in a green Chrysler ■automobile owned by appellant, and drove to El Paso, which is approximately forty miles from Las Cruces. After eating supper in El Paso, appellant and his companions started ■on the return trip to Las Cruces. When they reached a point in the vicinity of deceased’s store they stopped the car. Immediately thereafter they drove to the front of deceased’s store, and stopped. Moreno and Leon went inside, and pretended to purchase a large amount of groceries, telling the proprietor that they were in charge of a ranch in the vicinity and needed supplies for their workmen. Most of the time appellant sat in his car in front of the store. A part of the time the motor was running. Deceased came outside and had a conversation with appellant regarding the purchase of gasoline and oil. He then re-entered the store. In the meantime Moreno and Leon carried some of the groceries to the automobile. Shortly thereafter they returned to the store with appellant. At this time deceased’s son-in-law was standing behind the counter a short distance from deceased, and Mr. Henley, who was also interested in the store, had entered the little post office on the opposite side of the store. When the parties entered the store, Moreno exhibited a pistol and ordered deceased’s son-in-law to “stick ’em up.” Leon directed a pistol at Mr. Henley, firing a shot at him after a scuffle between the parties and deceased. According to the witnesses for the state, appellant and his two companions had pistols out at the time they came into the store. Several shots were fired, and when the firing had ceased deceased was found to be mortally wounded. Appellant and his companions had guns of different makes and caliber. The evidence tended to show that the seven bullets accounted for were all from the same gun. Further, the physical facts tended to show that appellant’s gun was not fired. After the shooting, appellant and his companions left the scene of the homicide with the groceries they had placed in the car, and shortly thereafter were taken into custody near the town of Las Cruces by New Mexico officers. At the time the homicide was committed an automobile belonging to one of the parties in the store was parked near appellant’s car. The owner of the car had returned from El Paso about an hour before the shooting and left her car in front of the store. At the time she parked the car it was in good running order. About two hours after the homicide it was discovered that the car would not run; it appearing that it had been tampered with in such manner that the motor would not start. Appellant and his companions did not pay for the groceries they carried away.

Prior to appellant’s trial, Moreno and Leon had been convicted and condemned to confinement in the penitentiary for ten years and life, respectively. When appellant was placed on trial, both Moreno and Leon testified on behalf of the state. Their testimony was to the effect that the entire scheme of the robbery was concocted by appellant; that he furnished them with the guns that were used on the occasion of the homicide; and that they were at all times acting under appellant’s direction.

Testifying in his own behalf, appellant contended that he took no part in th§ attempted robbery and the resulting homicide. He testified, in substance: That he did not know that Moreno and Leon were armed with pistols on the night in question, and that he had no knowledge of their unlawful purpose when they entered the store; that on the evening of the homicide he had started to El Paso to get an ice box and had invited Leon to accompany him there to assist him in loading and handling the ice box; that as they were about to leave Las Cruces, Leon suggested that Moreno be permitted to accompany them ; that upon reaching El Paso they did not get the ice box for the reason that it could not be placed in the car; that he left the parties in the car in El Paso for the purpose of eating supper, and that when he returned he found Leon examining his (appellant’s) gun, which he had left in the pocket of his car after an unsuccessful attempt to exchange it with a friend in Las Cruces for a shotgun; that he had forgotten to remove the gun before coming to El Paso; that on The return trip towards Las Cruces one of his companions requested that he stop near the store where the homicide occurred; that after he stopped his car his companions went into the store on several occasions; that their peculiar actions aroused his suspicion; that they tried to borrow money from him or to get him to stand good for the groceries they had purchased ; that after they re-entered the store he followed them for the purpose of seeing what they were doing; that as he entered the store the shooting began; that he did not participate in the shooting in any way; that after deceased had been killed his (appellant’s) companions jumped in the car with guns in their hands and forced him to drive away.

Bill of exception No. 1 presents the following occurrence: Approximately an hour before the homicide one of the occupants of the store had driven her car from El Paso and parked it in front of the store, where it remained until about two hours after the homicide. When appellant drove to the store he stopped his car near this automobile. At the time the owner of the car had parked it there it was in good running order. About two hours after the homicide the car could not be moved into the garage because wires had been disconnected from the distributor. There was no witness, either for the state or appellant, who claimed to have observed either appellant or his companions working on or tampering with the car. Appellant objected to the proof touching the condition of the car on several grounds. The opinion is expressed that the objection was not well taken. In the light of all the evidence, appellant had a motive for tampering with the car. He was preparing to commit the offense of robbery, and it was to his advantage to escape without detection. He had the opportunity to tamper with the ear. He remained near it in his car while his companions entered the store. With an automobile in good running condition available, immediate pursuit and capture was probable. We quote from Branch’s Annotated Penal Code, § 97, as follows: “Testimony which isolated from the other facts in the ease would be irrelevant may become relevant when viewed in the light of and in connection with other testimony adduced on the trial.”

The fact that it was possible that the automobile had been tampered with by some other person would, under the circumstances, relate to the weight of the testimony, but would not be legal ground for its rejection. See Haley v. State, 84 Tex. Cr. R. 629, 209 S. W. 675, 3 A. L. R. 779; Baines v. State, 43 Tex. Cr. R. 490, 66 S. W. 847; Doss v. State, 50 Tex. Cr. R. 48, 95 S. W. 1040; Rucker v. State, 51 Tex. Cr. R. 222, 101 S. W. 804; Liles v. State, 58 Tex. Cr. R. 310, 125 S. W. 921; Liles v. State, 62 Tex. Cr. R. 32, 135 S. W. 1177; Pinkerton v. State, 71 Tex. Cr. R. 195, 160 S. W. 87; Michie on Homicide, vol. 1, page 819, § 170 (41).

Bill of exception No. 2 complains of the action of the court in refusing to give appellant’s special requested instruction to the effect that the evidence showing that appellant had been convicted of a liquor violation in New Mexico could only be considered for the purpose, if at all, of affecting appellant’s credibility as a witness. Prior to the time appellant took the witness stand, and while the state was introducing its testimony in chief, the accomplice witness Moreno was placed oh the witness stand by the district attorney. Upon the direct-examination of this witness, the state elicited from him, without objection on the part of appellant, that shortly before reaching the scene of the homicide appellant, Leon, and he drank the remainder of a pint of intoxicating liquor which appellant had procured in El Paso. Upon cross-examination of the witness appellant’s counsel asked the witness if*he did not know it was a fact that appellant had not been drinking for thirty days. The witness answered that he did not know. In response to appellant’s question, he then testified: “I know Plores (appellant) had been given a suspended sentence in Las Cruces about some liquor; I haven’t seen him drink since that time. But on this occasion he produced a bottle and says ‘Boys take a drink.’ It was a full bottle, pint bottle, white bottle.” Bearing in mind that the state had not questioned any witness concerning appellant’s conviction in New Mexico ip a liquor case, and that appellant brought the matter out in his cross-examination of the witness Moreno, it is observed that when appellant took the witness stand in his own behalf, he testified, in response to questions by his counsel as follows: “Before we got to Conutillo Pino Moreno passed me a bottle of sotol. I didn’t drink, at that time I had quit drinking, I had a suspended sentence at Las Cruces for ninety days. Before that I had been convicted on a liquor charge at Albuquerque and given eight months and a hundred dollar fine, that was liquor charge, that was in 1929, I think, I am not sure. It was in December I got a suspended sentence at Las Cruces, the judge asked me if I would quit drinking and he gave me ninety days suspended sentence and one hundred dollar fine. I told the judge I would quit and I did quit. Prom that time up till I was arrested I didn’t drink. Pino Moreno was the one that offered me liquor as we were going up the valley and I told him I do not want no sotol. I am not sure how much liquor they had, probably a pint, probably more, probably less, I saw the bottle, both Pino Moreno and Leon were drinking out of it. They killed the bottle over there before we got to the store, both of them, I mean they drank it up.”

Upon cross-examination, after appellant’s counsel had elicited the foregoing testimony, the district attorney asked appellant the following question: “Then you admit that you were convicted and sentenced to the peniten-. tiary in New Mexico for the violation of the liquor law?” Appellant replied that he had been convicted twice on liquor charges.

It was apparently the state’s theory that, in encouraging his coconspirators to commit the offense, appellant furnished them intoxicating' liquor immediately prior to the robbery and homicide. Appellant made no objection to this testimony. In order to meet the proof of the state touching the matter, appellant testified that he had not been drinking liquor for several months, and assigned as his reason the fact that he had already been convicted on liquor charges and had promised the judge sentencing him not to drink any more. Thus he sought to weaken the force of the testimony of the state touching the facts and circumstances tending to show a conspiracy to rob and that he was directing the movements of his coeonspirators. In other words, appellant sought by this testimony to show the falsity of the testimony of the accomplice witnesses touching the conspiracy and his (appellant’s) conduct in relation thereto. Manifestly appellant introduced the evidence in question under the general rule that whatever material facts are introduced which tend to affect the issue, the other side has the right to deny, contradict, or explain such testimony, showing its falsity,’ or breaking its force and effect in any legitimate way. Branch’s Annotated Penal Code, § 97; Roberts v. State, 48 Tex. Cr. R. 378, 88 S. W. 221. The opinion is expressed that, under the circumstances, the court was not in error in declining to limit the testimony as requested by appellant. In reaching this conclusion we have taken note of the general rule that when there is introduced evidence of another offense which might be improperly used against the accused, it is proper for the court to fore: stall such misuse by an appropriate charge limiting the testimony to the purpose for which it was admissible. Land v. State, 93 Tex. Cr. R. 470, 247 S. W. 554. Also we have taken note of the fact that the testimony was useable beyond the limitation appellant sought to have placed upon it.

Bill of exception No. 3 recites that Leon and Moreno, the accomplice witnesses, testified for the state, notwithstanding the fact that they had been convicted and sentenced to confinement in the penitentiary for the commission of the identical offense for which appellant was on trial; that after the conclusion of the evidence, and after the court had submitted his charge, appellant presented his written requested instruction in which the jury would have been advised that they could not consider the testimony of said witnesses for any purpose. The witnesses were competent. In Spann v. State, 116 Tex. Cr. R. 268, 32 S.W.(2d) 455, 457, in opinion on motion for rehearing, this court, speaking through Judge Lattimore, used language as follows: “The fact that state witness Wright was a convict did not disqualify him from giving testimony, chapter 13, § 1, Acts 39th Leg. (1926) First Called Sess:, p. 20 (Vernon’s Ann., C. C. P. art. 708) amending Acts 39th Leg. (1925) c. 27, § 1, unless it be made to appear affirmatively that such disability attached by virtue of a final conviction for a felony prior to the passage of said act above referred to.”

In the present case the conviction of the accomplice witnesses was subsequent to the taking effect of the act referred to in the above quotation. In Stanley v. State (Tex. Cr. App.) 48 S.W.(2d) 279, it was held that, under the act in question, only two classes of persons were excepted from those generally competent to testify; namely, insane persons and children, when shown to be comprehended by the terms of the exceptions. It was expressly held that persons convicted of felony and incarcerated in the penitentiary were competent to testify. In Fitzgerald v. State, 118 Tex. Cr. R. 64, 39 S.W.(2d) 47, the court approved the holding in Spann v. State, supra, and, speaking through Judge Lattimore, held that any convict is competent to testify as a witness, notwithstanding the fact that he has not been pardoned, provided he was convicted subsequent to the taking effect of the statute in question. Appellant urges that our reasoning in Fitzgerald v. State, 118 Tex. Cr. R. 61, 38 S.W.(2d) 329, is not sound, in that we assume in the opinion that the Legislature is without power to say that the disability shall attach for a limited time, and full competency be restored without executive intervention after the expiration of such time. We think appellant’s criticism well founded. However, we are of the opinion that our conclusion that convicts are competent witnesses was correct.

Failing to find error, the judgment is affirmed.

PER CURIAM.

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

HAWKINS, J., not sitting.

On Motion for Rehearing.

LATTIMORE, J.

It is insisted that we were in error in holding competent as witnesses two parties who were principal offenders with appellant in this case, and who had each pleaded guilty to the felony involved, and at the time used as witnesses were in the El Paso county jail waiting for some penitentiary agent to come for them. Appellant urges that the case of Jones v. State, 117 Tex. Cr. R. 8, 36 S.W.(2d) 736, holds contrary to the cases cited in mir opinion, as supporting the proposition that the convict witnesses were competent. We do not understand what was said in the Jones Case, supra, as does counsel for appellant. We there held that Jones, having admitted on the witness stand that he had been convicted of a felony thirty years prior, would ipso facto he an incompetent witness, unless a pardon had followed said conviction. A conviction of a felony thirty years ago would antedate the passage of the law by the Thirty-Ninth Legislature, 1st Called Sess. c. 13 (Vernon’s Ann. O. O. P. art. 70S) amending article 708, C. C. P. 1925, under which amending statute we held parties convicted since its enactment competent witnesses. In Underwood v. State, 111 Tex. Cr. R. 124, 12 S.W.(2d) 206, 63 A. L. R. 978, upon what we deemed sound reason, we held that the Legislature could not, by.the passage of such amending act, usurp executive function and thereby pardon and make a competent witness of one whose disability attached by reason of a felony conviction prior to the passage of such amendment; hence the lack of application here, of what we said in the Jones Case, supra.

We find no room for criticism of appellant’s attack on the form or verbiage of said amending act, and can ourselves see no reason "for the care shown in subdivision 3 of section 1 of said act, in setting forth specific instances in which convicts or persons in jail might testify; but since by such act old article 708, C. C. P., was repealed, upon which alone rested the incompetence of convicts as witnesses, we were thus left without any statute making such convicts incompetent. We are in the same condition now. In addition to the above, we observe that the emergency clause of said amending act specifically states that there is no - good reason why convicts might not testify. We see no escape from the conclusion announced in this and cited cases, that" these witnesses, and all others convicted since the passage of the amended act, are competent witnesses. With-the wisdom of the rule we have nothing to do. It is the law as now written.

The motion for rehearing will be overruled.


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

text:
    GRAHAM v. STATE.
    No. 15379.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    Rehearing Denied Jan. 11, 1933.
    L. G. Mathews, of Floydada, 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.

G. D. Lewis had been renting a house from E. C. King. On December 16, 1931, Mr. Lewis and his family moved to Johnson county. They ashed and received permission to leave some of their furniture in the house until they had the opportunity to move it to Johnson county. Some of the household goods had been moved by appellant in a truck to Mr. Lewis’ new home. The furniture remaining in the house was to be moved by appellant at a later date. On December 24th Mr. King found five gallons of whisky in ten half-gallon fruit jars in a carton in a side room leading off from the porch. According to his testimony, there were no household goods in this room, and the carton containing the whisky was the only box in it. The household goods Mr. Lewis had left were in the two front rooms. The walls between these rooms were solid. The doors were fastened and nailed The room in which the whisky was found was not closed. In some of the other rooms were boxes containing household effects which had been packed for the purpose of moving. The ■day after Mr. Lewis had left, the owner, Mr. King, went to his house, but did not see any liquor there. He again visited the place two or three times before December 24th, hut saw no whisky. On December 24th — the date he discovered the whisky — Mr. King notified the officers. The sheriff and one of his deputies went to the house before dark, and waited. After dark appellant, O. B. Jones, and some other men came toward the house in a truck. The lights on the truck were not on. They drove within fifteen feet of the house, and appellant got out. The truck was owned by appellant’s brother. Although it was dark, appellant walked into the shed room 'and went directly to the carton containing the whisky. .Picking it up, he took about three steps to leave the room when he was arrested by thei officers. O. B. Jones, who had also gotten out of the truck, started toward the henhouse, which was near the house, but was stopped by one of the officers. On the following day the officers found in the henhouse five kegs' ■with “Cleburne, Texas,’’ written on them. These kegs had had whisky in them. Some of the kegs showed that they had been buried in the ground. After arresting appellant and his companions, the officers placed the whisky in the back end of the truck, and started to town. The lights on the truck were in good condition, and were switched on and used in returning to town.

Testifying for appellant, Mr. Lewis stated that he had hired appellant to move his furniture to Johnson county. He said that appellant had lived in Cleburne, Tex., before coming to Floydada. He testified, on cross-examination, that-he had left no whisky in the place, and declared that neither the whisky nor kegs found by the officers belonged to him. Mr. Lewis’ son gave substantially the same testimony. He denied that the liquor belonged to him, saying that no whisky or kegs were left at the place when they moved. He said he helped catch the chickens in the henhouse and that there were no kegs there on that occasion. Mrs. Lewis testified that appellant was to bring the balance of their furniture to Johnson county before January 1st. She said that appellant wired them on December 24th that he would load the balance of the furniture. She further testified that no member of her family left any liquor at the place. Appellant’s companions testified that they had gone with appellant to get a load of furniture to move to Johnson county. They said that they did not know that there was any whisky in the place and did not go there to get whisky. Appellant’s wife testified that she was at Mr. Lewis’ house when the first load of furniture was carried away on the 16th, and that she helped Mrs. Lewis pack some of the household effects. She said that on December 24th she sent a telegram to Mrs. Lewis advising her that appellant was moving the balance of her furniture.

Testifying in his own behalf, appellant denied that the whisky belonged to him, and stated that he had gone to the place for the purpose of getting a load of furniture. He said he did not know when he went into the> shed room that the whisky was there. At this point we quote from appellant’s testimony, ■on cross-examination, as follows: “No, sir, it isn’t a fact that we went down there after liquor. I knew what we were going after. It was liquor. He (his brother) hadn’t turned the lights off when we turned in at the gate. I know because I showed him where to turn in. I got right out of the car as soon as I got there. Tes, I went right in the house. I did not have any matches to strike. I don’t know as to whether I just accidently got hold of the liquor first. I didn’t even feel to see what it was. I didn’t know what it was. No, sir, it isn’t a fact that I knew it was liquor. I never did have any liquor around me.”

The party in charge of the Western Union telegraph office at Floydada testified that the files of the office disclosed no telegram from either appellant or his wife to Mrs. Lewis, on the 24th of December, 1931. This witness said she found a telegram had been sent to Mr. Lewis on December 25, 1931. As to the name of the party sending this telegram, the record is silent.

Bill of exception No. 1 shows that the district attorney, on cross-examination, propounded to appellant the following question: “Isn’t it a further fact that you have been bragging the officers could not catch you?” The bill recites that appellant objected on the ground that a predicate had not been laid for the question, and further that it was irrelevant and immaterial. The objection being overruled, appellant. answered in the negative. Bill of exception No. 2 recites that the district attorney asked appellant the following question: “Mr. Graham, isn’t it a fact you have been bootlegging ever since you have been in Floydada?” Appellant objected on the ground that no predicate had been laid, and, further, that the question was irrelevant, immaterial, and prejudicial. The objection being overruled, appellant answered, “No, it isn’t a fact.” If the question constituted an inquiry by the district attorney as to whether appellant had been selling whisky in Floyda-da, it would not have been improper. Appellant being charged with possession of intoxicating liquor for the purpose of sale, the state could properly have shown that he had made sales of liquor at a time not too remote, as throwing light upon the purpose-for which the liquor was possessed. Hood v. State, 111 Tex. Cr. R. 95, 10 S.W.(2d) 94. Again, if appellant had made declarations to the effect that he was selling intoxicating liquor, or possessing it for the purpose of sale, and at the same time had stated that the officers could not catch him, proof of such fact would have been admissible. In any event, if the questions were improper — and this is not conceded —a reversal would not necessarily follow. In Booth v. State, 90 Tex. Cr. R. 240, 234 S. W. 888, 889, this court, speaking through Judge Hawkins, said: ' “It is in exceedingly rare instances where this court would feel called upon to reverse a case solely because counsel may have propounded an improper question.” We quote from Ard v. State, 101 Tex. Cr. R. 545, 276 S. W. 263, 265, as follows: “The'asking of a question whose affirmative answer might be hurtful to the accused would ordinarily present no error when complained of in a bill of exceptions unless the answer is given, and, if given and answered in the negative, as is the case in appellant’s bill of exceptions No. 5, no error would be made to appear.”

Bill of exception No. 3 presents the following occurrence: The sheriff testified that, after arresting appellant, he went back the following day and found in a henhouse several kegs that had whisky in them. I-Ie said these kegs had the name of a hardware store in Cleburne stamped on them. Appellant objected to this testimony on the ground that he had never been in the henhouse where the kegs were found, that there was no testimony that he had been there, and that said testimony was irrelevant, immaterial, and prejudicial. It is observed that the bill of exception contains no recitals supporting the grounds of objection. It has been frequently held by this court that a mere statement of a ground of objection in a bill of exception is not a certificate on the part of the trial judge that the facts which form the basis of the ob-' jection are true; it merely shows that such an objection was made. Branch’s Annotated Penal Code, § 209; Edelen v. State, 103 Tex. Cr. R. 562, 281 S. W. 1078. If the statement of facts should be consulted, it is observed that the officers testified that, at the time they arrested appellant, one of appellant’s companions started toward the henhouse, which appears to have been not far removed from the place where appellant was arrested with whisky in his possession. Under the circumstances, the opinion is expressed that appellant’s objection was not well taken. See Hildebrand v. State, 115 Tex. Cr. R. 245, 29 S.W.(2d) 774.

Bill of exception No. 4 recites that the Sheriff testified that Mr. King, the owner of the house, told him that there was whisky in the shed room. Appellant objected on the ground that the testimony was hearsay. The objection was well taken. However, there was no controversy about there being whisky in the shed room. Appellant, as well as the sheriff and other witnesses, testified that the whisky in question was in the shed room. Hence the admission of the hearsay declaration would not constitute reversible error.

Bill of exception No. 5 presents substantially the same matter as mentioned in bill of exception No. 4.

Appellant objected to the charge of the court because of its failure to submit an instruction covering the law of circumstantial evidence. In his charge, the court defined “possession.” Further, the jury were instructed as follows: “Xou are instructed that if you find and believe from the evidence that defendant Emit Graham at the time he was arrested thought that the box introduced in evidence was a part of the household goods belonging to the Lewis family or if you have a reasonable doubt as to whether or not such were the facts then you will find the defendant not guilty.”

Further, the court instructed the jury to acquit if they believed that the liquor in question was the property of some person other than appellant, and was not possessed by appellant as the term “possession” had been defined, or if they had a reasonable doubt of such fact. The proof on the part of the state was direct to the effect that appellant had five gallons of whisky in his hand and was leaving the room at the time the officers arrested him. This was prima facie evidence that he possessed it for the purpose of sale. Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569; carrell v. State, 109 Tex. Cr. R. 177, 3 S.W.(2d) 435; Davis v. State, 107 Tex. Cr. R. 134, 295 S. W. 608; Bloxom v. State, 112 Tex. Cr. R. 341, 16 S.W.(2d) 1098; Terry v. State, 101 Tex. Cr. R. 267, 275 S. W. 837. A charge on circumstantial evidence is not required where the testimony is not wholly circumstantial. Branch’s Annotated Penal Code, § 1874; Lawler v. State, 110 Tex. Cr. R. 460, 9 S.W.(2d) 259.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing, appellant reiterates in substance his contention upon the original hearing. After a careful re-examination of the record in the light of the motion, and the opinion upon the original hearing, we are constrained to conclude that the judgment heretofore rendered reflects the proper disposition of the appeal.

The motion for rehearing is overruled.


text:
    RYAN v. STATE.
    No. 15418.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    Rehearing Denied Jan. 11, 1933.
    P. R. Rowe, of Livingston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

The offense, murder; the punishment, 8 years in the penitentiary.

This is the second appeal of this case. The former appeal will be found reported in 114 Tex. Cr. R. 12, 23 S.W.(2d) 375.

The actors in this tragedy were all negroes. It seems that a supper and dance had been given at the home of one L. T. Gray. U. L. Hobbs, a witness for the state, testified that he had gone to said dance and supper and the car in which he drove there went close up to the porch and the man who was with him went in the house and he remained in tlie car; that the deceased, L. E. Henderson, was standing Just outside of the house on the porch talking to a girl named Polly and appellant’s wife walked out and put her arms around the girl Polly; that about that time appellant came out on the gallery and hit his wife with a soda water bottle and then ran in the house; that the deceased left the porch and went out of the yard gate, and the appellant then came out of the house with a shotgun and shot the deceased in the back as deceased was going away from the house. The deceased died from the effects of said wounds a few hours later. The witness further testified that he could not tell what the appellant’s wife and deceased were talking about while they were on the gallery.

The appellant testified that he had gone to the party about 6 o’clock that night with his wife and the deceased came to the party about 8:30 that night; that there was a report made to him that night about the deceased and his wife and he was told that the deceased and his wife and Polly Franklin were trying to go to Swartstown to a supper and he did not pay much attention to it at that time. When he first saw the deceased come in the house his wife popped her fingers and hollered “Oh, Daddy, he is here now,” and said to appellant that her Daddy was here now, and she talked to deceased and tried to get him to dance with her and deceased told her he did not have any change; that Polly Franklin and his wife went out of the house and came back in about 5 or 10 minutes and he then went to deceased and told him, “I married this woman and I don’t want her to be caught with you,” and deceased said, “All right, I won’t,” and he, appellant, went back in and started dancing, and he then saw his wife and deceased going out of the house on the gallery and he then quit dancing and went out to the gallery and saw deceased and his wife standing on the far end of the gallery and just about that time somebody stepped up and he walked up and said, “What does this mean,” but not one of them said anything, and he then got a soda water bottle and hit the deceased and his wife, and deceased ran, and he went back to the door and grabbed a shotgun and at the. time he stepped off the doorstep deceased went out of the gate, and he then shot him. At the time he went out on the' gallery, deceased had his arms around appellant’s wife and it had been) reported to him that he was trying to get her to go to Goodrich with. him. When he went out on the gallery and saw deceased with his arms around his wife, he believed he wanted to have her and he believed the reports that had come to him were true and he Believed deceased was trying to get his wife to go with him for the purposé of having intercourse with her.

There was considerable testimony offered pro and con, and a sharp issue was made as to the existence of the above insulting conduct alleged to have happened at the dance and which appellant claimed was the sole cause" of the killing.

Bill of exception No. 1 complains of the following portion of the district attorney’s closing argument, “Rowe, counsel for defendant, knew that ‘Lucky Boy’ Johnson was telling the truth, and he, Rowe, went out and consulted with Brock and dared not put him on the stand to show that ‘Lucky Boy’ Johnson did not tell the truth about it,” and, in the presence and hearing of the jury, turned to appellant’s counsel, shaking his finger at him, and, in a loud voice and excited manner, exclaimed, “You can put Jett Brock on .the stand right now. I dare you to put him on. the stand.” Objection was made that the argument and challenge were not authorized by any evidence or any matters connected with the case, and for the further reason that the words and the manner and the tone of the challenges made by the district attorney were irrelevant, improper, inflammatory, and highly prejudicial to the rights of the defendant. It appears from the bill of exception that no objection was made by the appellant- to the remarks of the district attorney in his opening argument to the jury relating to the same matter. It also appears from the bill that appellant’s counsel, in his argument to the jury, replied to the argument of the district attorney relating to the witness Johnson. We do not think the language, complained of, under the circumstances, was obviously of a nature to impair the rights of the appellant or to improperly prejudice his case before the jury. No charge was requested to instruct the jury to disregard said remarks. The defendant is not entitled to complain of improper argument of state’s counsel which is occasioned' and justified by the argument of -his own counsel. Branch’s Ann. P. C., § 364; Moore v. State, 65 Tex. Cr. R. 453, 144 S. W. 598, 603 ; Ray v. State, 35 Tex. Cr. R. 354, 33 S. W. 869.

Bill of exception No. 2 complains of the following questions and answers of the witness Octavia Ryan, the wife of appellant: “I will ask you if you told me (county attorney) T am absolutely positive that I never talked to my husband at all that night when he shot L. E. Henderson,’ ” and thereupon the witness answered: “I had spoken to my husband that night before he shot L. E. Henderson. I told you that I was absolutely positive that I had never talked to my husband at all that night when he shot L. E. Henderson.” The objection was because the witness was the wife of the defendant and the question was taken from a purported statement taken ex parte from her by ’the county attorney prior to the trial without defendant’s knowledge and consent; because the matter inquired about was not brought out by defendant on the direct examination of the witness and was an attempt to impeach the witness, the wife of the defendant, on matters not brought out on direct examination, and was an impeachment of the witness by an ex parte statement made by her to the county attorney; because the evidence was injurious and prejudicial to the rights of the defendant and was inadmissible for any purpose.

Bill of exception No. 3 complains that, while the defendant’s wife was on the witness stand as a witness for the defendant, on cross-examination, she was asked the following question: “I will ask you if you told me (county attorney) ‘after I got in the house my husband came in there and this was the first tíme I seen him after supper,’ ” and over the objection of the defendant the witness was required to answer and did answer “Yes, sir.”

The wife of a defendant may be impeached by proof of contradictory statements as to material matters inquired about on her examination in chief. Branch’s Ann. P. C., § 153; Red v. State, 39 Tex. Cr. R. 414, 422, 46 S. W. 408; Link v. State, 73 Tex. Cr. R. 82, 164 S. W. 987, 994. This evidence was not patently and obviously inadmissible per se and under certain circumstances would ba admissible. Said bill does not show the surrounding antecedent testimony, on direct examination, or other matters from which we might detect error. A bill of exception to be considered must sufficiently set out the proceedings and attending circumstances below to enable the appellate court to know certainly that error was committed. A bill of exception to the admission or rejection of testimony should be sufficiently explicit to enable this court to fully understand and know all the facts on which the correctness or error of the ruling depends. Ortiz v. State, 68 Tex. Cr. R. 608, 151 S. W. 1059; Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. 1074; Livar v. State, 26 Tex. App. 115, 9 S. W. 552; Black v. State, 68 Tex. Cr. R. 151, 151 S. W. 1053.

Bill of exception No. 4 complains that, while the witness Octavia Ryan, the wife of defendant, was on the witness stand as a witness in behalf of defendant and was being cross-examined by the county attorney, the comity attorney asked her the following question: “Had you been having anything to do with him” (referring to deceased and meaning to ask if 'the witness had been having intercourse with him). The bill shows that, before defendant’s counsel could object, the witness answered, “Not since I have been married,” and thereupon defendant’s counsel objected. The bill shows that the court sustained the objection and instructed the county attorney not to ask her about that question and also instructed the jury not to consider it. This bill is subject to the same criticisms as that of bills 2 and 3, and shows no reversible error.

Bill of exception No. 5 complains that, while the state’s witness I. U. Henderson, was on the stand and testifying in behalf of the state concerning the sweater and belt worn by the deceased, L. E. Henderson, at the time of the shooting and after testifying that the sweater had been washed since the killing, the witness was permitted to testify, over, defendant’s objection, as follows: “I have with me some clothes L. E. Henderson had on when he was shot. It is a sweater and belt; that sweater and belt have been at home in the trunk since he was shot. I have been in possession of it all the time since it was taken off of him and nobody has worn the clothes since then and neither one of them have been worn since then.” The bill further shows that the witness testified that the trunk in which the sweater and belt had been was his mother’s trunk. The bill further shows that the witness lived with his mother and his mother was still living and she was then present in court. The bill further shows that the witness identified the sweater and belt, and, on offer of the state, they were admitted in evidence. The appellant objected to the admission in evidence of the sweater and belt because they were not in the same condition as when taken off of deceased, having gone through the wash, and the witness had not had custody of the clothing, but another and different person had had custody thereof; that such person being in attendance upon the court, was not used to identify .the clothes. Before the sweater and belt were offered in evidence they were positively iden-tifid by the witness as being the same belt and sweater worn by deceased at the time he was shot. In this instance, it is not made to appear by defendant’s bill of exception or otherwise that the exhibition of the sweater and belt to the jury was improper and inadmissible. The mere fact that they had been kept in the witness’ mother’s trunk would not in itself be sufficient to reject said sweater and belt. It is disclosed by the evidence that the position of the appellant, when he fired the fatal shot, was a material inquiry on the trial. Viewing the matter as presented by the record, we are not prepared to say that the court erred in admitting the sweater and belt before the jury. “It is permissible to introduce clothing in evidence when the introduction serves t<J illustrate some point or solve some question, or serves to throw light on the matter connected with the proper solution of the ease, and under no other circumstances, but whenever the introduction of such clothing would, in the light of the whole cáse, aid the jury in arriving at the very truth of the matter, the court should not hesitate to admit its production and exhibition.” Branch’s Ann. P. O., § 1855; Johnson v. State, 74 Tex. Cr. R. 179, 167 S. W. 733, 737; Adams v. State, 48 Tex. Cr. R. 452, 460, 93 S. W. 116.

By special requested charges in the case, as well as by exceptions and objections to the court’s charge, it seems to be the appellant’s contention that he was entitled to have the jury told in effect that, if the deceased was trying to get the appellant’s wife to go to another place with him for the purpose of having carnal intercourse with him, and, if deceased had followed her out of the house for the purpose of inducing her to have intercourse with him, appellant would not be guilty of any offense. It seems, further, that it Is appellant’s contention that he was entitled to have the charge in keeping v^ith article 1220 of the Penal Code, justifying a homicide when committed by a husband upon taking the wife in an act of adultery. We think the facts are entirely insufficient to raise this issue. According to appellant’s own testimony and that of his witnesses, the deceased was talking to appellant’s wife on a gallery where there were a number of people and, in the presence of at least one other person; that he threw a bottle at deceased and also struck his wife with a bottle and then ran into the house, obtained a shotgun, and shot the deceased in the back while he was fleeing from him. We do not think the trial court erred in refusing to charge the jury that appellant should be acquitted if he reasonably believed that his wife and deceased were about to engage in adulterous intercourse, or that they had engaged in such act. It is not within the contemplation of article 1220, P. C., which justifies a homicide by the husband when the deceased is taken in the act of adultery with his wife, if such killing takes place before the parties separate that one may justify a homicide upon such ground when the testimony goes no further than to place the wife and the deceased together where others were present at the time, and merely because the appellant was told that the deceased had invited his wife to go with him to another place and because of the fact that deceased had his arm around appellant’s wife at the time. See Holman v. State, 92 Tex. Cr. R. 364, 243 S. W. 1093.

Other charges requested by appellant were either covered by the main charge of the court or are plainly on the weight of the evidence. We do not think that there is any merit in appellant’s exception to the court’s charge.

Appellant also raises the question as to the sufficiency of the evidence to support the conviction that the killing was done with malice aforethought. The prime defensive theory through the trial of this case was that, when appellant came upon his wife and found her and deceased and another party present on the porch at the house where the dancé was being held and saw the deceased with his arms around his wife, this infuriated appellant, and, in connection with the previous information he had received to the effect that the deceased was trying to get his wife to go with him to Goodrich, that this conduct was such as to render the killing one without malice aforethought. The court gave a special requested charge in line with this testimony and told the jury, in effect, that, “if you believe from the evidence that the acts or con. duct or language of the deceased, L. E. Henderson, or his acts and conduct and language coupled together towards the wife of the defendant just at and before the time the defendant shot and killed him, the said deceased, viewed from defendant’s standpoint at the time, were of such a nature as to arouse in the mind of the defendant and did arouse in the mind of the defendant such a condition or feeling of anger, rage and resentment or either as to render his mind incapable of cool reflection, then and in such event the killing would not be upon malice aforethought.” The evidence of the state’s witnesses in this case, if true, was sufficient to establish the guilt of the appellant of a killing with malice aforethought. This court has never assumed the right to set aside a verdict because there might be evidence offered by appellant conflicting therewith. See Lockhart v. State, 3 Tex. App. 567; Turner v. State, 37 Tex. Cr. R. 451, 36 S. W. 87; Ray v. State, 84 Tex. Cr. R. 262, 207 S. W. 990; Johnson .v. State, 83 Tex. Cr. R. 61, 200 S. W. 832.

Believing the evidence sufficient to support the verdict and no reversible error appearing in the record, 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 testified that the t witness Johnson told him shortly before the shooting that deceased was trying to get the wife of appellant to go with him to Goodrich where another party was in progress. Erom the statement of facts we observe that Johnson did not deny this; in fact gave no testimony on this point. Bill of exception No. 1, however, states that Johnson did deny making this statement. This error In the bill of exception must have arisen from the fact that Johnson did deny going into the room and telling Octavia Ryan to come out where deceased was. During argument a controversy arose between counsel for the state and the appellant over whether Johnson told the truth when he made such denial as is set out in said bill of exception. The .proposition would become purely a moot question if witness made no such denial. There were other questions of contradiction between Johnson and other witnesses. The dare given to appellant’s counsel to put on the witness stand a Mr. Brock “to show that Johnson did not tell the truth about it,” was evidently the result of some kind of misunderstanding, mixed with a little heat of argument which the court properly settled by telling the jury not to pay any attention to it. Brock was not present at the killing, and knew nothing about whether Johnson was telling the truth or not, and at most could have but expressed his opinion, if he had one, as to Johnson’s reputation for truth and veracity, which had not been attacked in any such way as to make admissible such testimony.

A review of the record leaves us still of opinion that no error was committed in the cross-examination of appellant’s wife, and that the facts support the jury’s conclusion that the killing was upon malice.

The motion for rehearing will be overruled.