author: BROCK, Judge.

text:
    STATE of Tennessee, Petitioner, v. Keith CAMPBELL, Alias Batman, Respondent.
    Supreme Court of Tennessee.
    April 25, 1977.

      David L. Raybin, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    Joe W. Henry, Jr., Henry & Henry, Pulaski, for respondent.
   OPINION

BROCK, Judge.

The defendant, Keith Campbell, was convicted in the Circuit Court of Giles County of selling amphetamines, a Schedule II controlled substance, and ethchlorvynol, a Schedule IV controlled substance. See T.C.A. § 52 — 1432 and subsections 52— 1432(a)(1)(B) and (D). The defendant was sentenced to not less than four nor more than five years in the penitentiary and fined $5,000 for selling the amphetamines and to not less than two nor more than three years in the penitentiary and fined $2,000 for selling ethchlorvynol. The penitentiary sentences were ordered to be served concurrently. The Court of Criminal Appeals reversed the judgment of the trial court in each case. The State petitioned this Court for review by certiorari alleging that the appellate court erred in two respects.

An undercover agent of the Tennessee Bureau of Investigation, Carpenter, was the only witness for the State. He testified that he was with an unnamed “confidential informant” at the Pioneer Club in Pulaski when the defendant arrived and joined them in a booth. Carpenter testified that his unnamed companion asked the defendant if he had “anything for the head,” that a conversation relative to a drug purchase ensued, and that the defendant left with the understanding that he would return shortly. After waiting for some time, Carpenter and his companion left the club and drove around until they spotted the defendant in his car and hailed him. The three then went to a private residence where Carpenter paid a total of thirty dollars ($30.00) for twenty capsules, twenty dollars ($20.00) for one substance and ten dollars ($10.00) for the other. Laboratory analysis proved that ten capsules were a Schedule II amphetamine and that the other ten were ethchlorvynol, a Schedule IV controlled substance.

The defendant testified at trial and completely denied the transaction.

I

The evidence of the State, therefore, reflected that three people actively participated in the drug transaction. The State refused to disclose the name of the “confidential informant,” insisting that the informant participated only in the preliminary stage of the transaction and, thus, was not actually a participant in the sale itself. The trial court agreed. Upon the authority of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and Roberts v. State, 489 S.W.2d 263 (Tenn.Cr.App.1972), the Court of Criminal Appeals reversed the convictions holding that, under the circumstances, the State did not have a “confidential witness” but, rather, a third participant in the sale and, thus, had wrongfully withheld his identity, despite the defendant’s timely motions seeking that identity. We concur in this holding of the Court of Criminal Appeals.

Nevertheless, we granted certiorari to consider another question that may arise upon the new trial; viz., whether the sale of two separately classified controlled substances under the circumstances and in the manner here shown constitutes two separate and distinct offenses that permit separate convictions and separate sentences, or only a single offense. The Court of Criminal Appeals observed that if two convictions resulted upon retrial, only the conviction of the “greater offense” should be permitted to stand because there was but one sale of mixed controlled substances, relying upon Wells v. State, 509 S.W.2d 520 (Tenn. Cr.App.1973), which was subsequently affirmed by this Court in Wells v. State, 517 S.W.2d 755 (Tenn.1974). In Wells this Court held that possession at one time of different classes of controlled substances, when not acquired by separate acts, is but a single possession and,- therefore, should result in only a single conviction and punishment.

However, the continued validity of the Wells decision was drawn into question by our subsequent decision in State v. Black, 524 S.W.2d 913 (Tenn.1975), wherein we rejected the “same transaction” test for determining identity of offenses. See also State v. Briggs, 533 S.W.2d 290 (Tenn.1976). In State v. Black, supra, the defendant was convicted of robbery by use of a deadly weapon and of assault with intent to commit murder. After robbing the victim, the defendant stepped back and shot him in the leg. The Court of Criminal Appeals, relying on the “same transaction” rule of Acres v. State, 484 S.W.2d 534 (Tenn.1972), held that the two offenses were susceptible of only one punishment and that conviction of one was a bar to conviction of the other. This Court reversed, rejecting the “same transaction” rule. We declined, however, in Black, “to attempt to formulate a rule to fit all possible situations,” not finding the “formulation of the various ‘tests’ into catch words, such as ‘same transaction’ or ‘same evidence’ . . . particularly helpful." Rather, we held that:

“The cases, from their nature, have to be dealt with by analysis of the particular situations as they arise.
******
“Each ease requires close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances.” 524 S.W.2d at 914, 919.

In the course of our analysis of the armed robbery-aggravated assault situation presented by Black, we quoted with approval the test for determining the identity of offenses articulated in Blockburger v. Unit ed States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

“Each of the offenses created requires proof of a different element. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” 284 U.S. at 304, 52 S.Ct. at 182.

We noted that, although the armed robbery-aggravated assault in question occurred at substantially the same time and in the course of a single “criminal episode,” or “transaction,” under the Blockburger test — as well as under the principles announced by this Court in Duchac v. State, 505 S.W.2d 237 (Tenn.1973)—the offenses were not “identical” and, therefore, that they were punishable by separate sentences.

Because of the nature of the offenses presented by Black, supra, we were able to determine, without further inquiry, that the armed robbery and aggravated assault were two separate and distinct offenses. Crimes at common law and long a part of our statutory law, robbery and assault, even when committed in the course of a “single transaction,” do not present the questions of legislative intent which are here presented by the sale of controlled substances.

We now consider the element of legislative intent here presented. In 1971, our legislature passed a model act, the “Tennessee Drug Control Act,” now T.C.A. §§ 52— 1408 — 52-1448, “to provide for a comprehensive system of drug and drug abuse control for Tennessee . . . .” Public Acts of 1971, ch. 163. The Drug Control Act established a classification of controlled substances into different “schedules,” based upon the relative potential of each substance for abuse, the degree of physical'or psychological dependence its use might engender, and its acceptability for medical use in treatment. T.C.A. §§ 52-1412, 52-1414, 52-1416, 52-1418, 52-1420.

A “controlled substance” is defined by the Drug Control Act as “a drug, substance, or immediate precursor” of such drug or substance included in the schedules established by the Drug Control Act. T.C.A. § 52-1409(d). Except as specifically authorized by the Act, the manufacture, delivery, sale, or possession with intent to manufacture, deliver, or sell a controlled substance is made unlawful by T.C.A. § 52-1432. Subsections of § 52-1432 set out varying penalties, corresponding with the stratified schedules of §§ 52-1413 — 52-1422, for violations of the general prohibitory statute. The Act does not expressly state whether or not the penalty subsections are intended to be additive when different scheduled substances are involved in a sales transaction or other act prohibited by T.C.A. § 52-1432.

Applying the analytical approach we adopted in Black, supra, we note that, although the sale of mixed controlled substances in the present case was committed in a single sales transaction, between the same principals at the same time and place, the sale may be sectored by acknowledging that two different schedule substances were sold, each of which has been, by statute, separately classified and penalized by separate subsections of the general prohibitory statute. See T.C.A. §§ 52-1415 and 52-1419; §§ 52-1432(a)(l)(B) and 52-1432(a)(1)(D). Thus, under the Blockburger test, we hold that two distinct offenses were committed since the sale of each controlled substance “requires proof of an additional fact which the other does not,” viz., the particular “schedule” identity of the controlled substance sold. The Court of Criminal Appeals erred in holding to the contrary.

A similar problem was posed in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). There the United States Supreme Court reaffirmed its decision in Blockburger, supra, observing that the three separate federal statutes violated by the two separate drug sales in question had “different origins both in time and in design,” indicating “the determination of Congress to turn the screw of the criminal machinery . . . tighter and tighter.” To the defendant’s urging that the Court reconsider Blockburger by reading the various specific enactments of Congress as “reflecting a unitary congressional purpose to outlaw nonmedicinal sales of narcotics,” the Court responded:

“It seems more daring than convincing to suggest that three different enactments, each relating to a separate way of closing in on illicit distribution of narcotics, passed at three different periods, for each of which a separate punishment was declared by Congress, somehow or other ought to have carried with them an implied indication by Congress that if all three different restrictions were disregarded but, forsooth, in the course of one transaction, the defendant should be treated as though he committed only one of these offenses.” 357 U.S. at 390-91, 78 S.Ct. at 1283.

Considering the statutory scheme and legislative history of the Tennessee Drug Control Act, we are convinced that our legislature intended that a sale of two or more controlled substances, classified separately in the schedules of the Act, should constitute separate and distinct offenses.

We have examined decisions from other jurisdictions concerning the allowable unit in the prosecution of narcotics cases. In our opinion, these decisions — whether for the transportation, distribution, possession, or sale of controlled substances — present no discernible pattern. Consequently, nothing would be gained by discussing them here.

Wells v. State, supra, should no longer be considered authority in light of this opinion and our opinion in State v. Black, supra.

The judgments of the Court of Criminal Appeals are affirmed and the cases remanded to the trial court for a new trial in conformance with the conclusions reached herein.

Costs are taxed against the State.

COOPER, C. J., and FONES and HARBI-SON, JJ., concur. ■

HENRY, J., not participating.


source: Caselaw Access Project

author: TATUM, Judge.

license: Public Domain

text:
    Ronnie Keith BRYANT, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 12, 1977.

      Jay Fred Friedman, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, John L. Williams, Dist. Atty. Gen., Huntingdon, for appellee.
   OPINION

TATUM, Judge.

The appellant was convicted in Hardin County of selling lysergic acid diethylamide (LSD) and his punishment was fixed at 5 years imprisonment in the State Penitentiary. We affirm the conviction.

The evidence accredited by the jury reflected that a Criminal Investigator of the Tennessee Bureau of Identification, working “undercover”, went to the appellant’s home in Hardin County and purchased 50 LSD tablets for the sum of $65.00. A toxicologist testified that the tablets contained LSD.

The appellant testified in his own behalf in which he admitted selling the tablets to the undercover agent, but denied receiving $65.00 for them. (He said that the sale price was $50.00). He was not personally acquainted with the undercover agent but stated that he made the sale because two friends of his told him that this individual was from Memphis and needed some drugs. The appellant said that he went to Memphis and got the tablets only to help out his friends.

In his first assignment, the appellant says that the Court erred in allowing the State’s toxicologist to testify as an expert. When this witness testified as a toxicologist, the appellant made no objection and we could not consider this assignment, even if it had merit. Tenn.Sup.Ct.R. 14(4); Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678 (1967). However, the witness received a B.S. Degree in Chemistry and has been working for the Toxicology Laboratory at the University of Tennessee for two years. She previously worked as a toxicologist in Missouri. The determination of who is an expert witness is within the sound discretion of the Trial Court. Wade v. State, 529 S.W.2d 739 (Tenn.Cr.App.1975). We find no abuse of that discretion here, and this assignment is overruled.

The appellant next says that the verdict was contrary to the evidence and the law. There is no merit in this assignment. The appellant was guilty by his own testimony. The appellant says that the proof established only a “casual exchange”, citing State v. Helton, 507 S.W.2d 117 (Tenn.1974). In Helton, the Supreme Court applied subsection (a)(2) of T.C.A. § 52-1432 to the selling of controlled substances and held that a “casual transaction” sale should be treated as a simple possession without intent to sell, a misdemeanor under T.C.A. § 52-1432(b)(l)(2). The sale of a controlled substance is a felony, T.C.A. § 52-1432(a), except for the sale of one-half ounce or less of marijuana or tetrahydrocannabinols, T.C.A. § 52-1432(a)(3).

The Trial Judge instructed the jury relative to the “casual transaction” holding of the Supreme Court in State v. Helton, supra. The jury found the issue in favor of the State and against the defendant, and returned a verdict finding the defendant guilty of selling a Schedule I drug and sentencing him to the minimum imprisonment allowable for that offense. T.C.A. § 52-1432(a)(l)(A). This verdict was approved by the Trial Judge and we will not disturb it unless the defendant shows that the preponderance of the evidence is against the verdict. Martin v. State, 542 S.W.2d 638 (Tenn.Cr.App.1976). We do not find that the evidence preponderates against the verdict and Assignment II is overruled.

The appellant next says that, “he did not possess the mens rea to commit this offense due to the creative activity of the undercover officer and his agents”. The appellant concedes in his brief that entrapment is not recognized in Tennessee as a defense in a criminal case. Halquist v. State, 489 S.W.2d 88 (Tenn.Cr.App.1972). He asserts that the conduct of the police officers was such as to eliminate criminal intent, one of the essential elements of the crime, citing Williams v. State, 218 Tenn. 359, 403 S.W.2d 319 (1966); and Hagemaker v. State, 208 Tenn. 565, 347 S.W.2d 488 (1961). By the appellant’s own testimony, he possessed the necessary mens rea (criminal intent). He testified that he went to Memphis and procured the drugs for the purpose of selling them “to his friends”. He admitted selling them to the undercover agent and acquiring them for the purpose of resale to “friends”. The fact that the vendee of drugs is a “friend” of the vendor will neither excuse the sale nor lessen the degree of this offense. The Trial Judge instructed the jury fully with regard to the requirement that “intent” is an essential element to a criminal offense. The jury found this issue against the appellant and the finding of the jury is supported by overwhelming evidence. We will not disturb the jury verdict approved by the Trial Judge, it not being against the preponderance of the evidence. Martin v. State, supra; Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976). Assignment III is overruled.

The appellant next says that the LSD tablets were improperly admitted into evidence. He bases this assignment upon the allegation that there was a break in the chain of custody.

The agent placed the small plastic bag in which the tablets were delivered to him inside a larger plastic bag with an index card. He kept this evidence in a filing cabinet from April 10, 1975, until May 16, 1975, when he personally delivered it to the toxicologist who testified in the case. The toxicologist testified that after the testing was completed, she mailed the evidence by certified mail in a sealed container to the undercover agent. It was received by a secretary at the Tennessee Highway Patrol office and handed to the undercover agent unopened. The undercover agent brought the evidence to court and it was admitted as an exhibit to his testimony.

The appellant cites Ritter v. State, 3 Tenn.Cr.App. 372, 462 S.W.2d 247, 249 (1970), which holds:

“Whether the requisite chain of possession has been sufficiently established to justify admission of the exhibit is a matter committed to the discretion of the trial judge and his determination will not be overturned in the absence of a clearly mistaken exercise thereof. [citation omitted].”

Also see Wade v. State, 529 S.W.2d 739 (Tenn.Cr.App.1975). We find no mistaken exercise of the Trial Judge’s discretion in admitting this evidence and we overrule Assignment V.

The appellant next assigns as error the refusal of the Trial Judge to grant the appellant’s motion to allow independent testing of the tablets alleged to be LSD.

On November 28,1975, the appellant filed a motion in the Trial Court for an independent testing of the tablets involved in the case. The motion specified that Expertise Institute Academy Laboratories of Miami, Florida be allowed to make tests on behalf of the defendant. The Court had previously advised the appellant’s attorney at the appellant’s arraignment on November 20, 1975, that he could not send the tablets to Expertise Institute Academy for the purpose of testing. This company was not qualified to receive the drugs under Federal law and to send them to that company would be a violation of the Federal Criminal Laws. The Court offered, at that time, to send the drugs to anyone designated by the appellant who qualified under Federal law to receive them. The appellant, through his attorney, took the position that Expertise Institute Academy was authorized to receive the drugs and the Court then offered to send the drugs to this particular laboratory if the appellant’s counsel furnished him evidence that this would be legal. The Court again offered to have the drugs sent to any independent toxicologist qualified under law to receive them. The appellant took no further action in the matter, but after the verdict of the jury, the Court again told the appellant’s counsel that he could send the alleged LSD to any independent toxicologist he desired as long as no State or Federal law was violated. The Court gave the appellant additional time in which to take action. On January 9, 1976, the appellant’s counsel advised the Trial Judge by telephone that there was no other toxicologist to whom he would agree to send the LSD for testing, but requested further time. The Court granted him additional time and did not act on the Motion for a New Trial until March 4, 1976. The case was tried on December 17, 1975.

The appellant filed a letter from Expertise Institute dated January 28, 1976, advising that they had “decided on advice of Counsel to take out a Drug permit as a laboratory”. The letter did not state that a drug permit had been granted or actually applied for. There is a letter in the record from the Drug Enforcement Administration of the United States Department of Justice advising that Expertise Institute Academy was not registered with the Drug Enforcement Administration and that there was no application on file which would permit the Expertise Institute Academy to possess any controlled substances.

In State v. Gaddis, 530 S.W.2d 64, 69 (Tenn.1975), the Supreme Court held:

“We hold that it was the legislative intent in the enactment of § 40-2044 T.C.A. to permit a criminal defendant to demand and receive a sample or specimen of a controlled substance in order to have an independent analysis made by an expert of his own selection, and at his own expense, but under such conditions as the trial judge may impose.” (Emphasis supplied).

We think that the condition imposed by the Trial Judge in this case was certainly reasonable and was in fact, mandatory. The Trial Judge offered the appellant an opportunity to have the alleged LSD examined by any concern so long as no State or Federal law would be violated. The Supreme Court, in State v. Gaddis, supra, certainly did not intend that the Trial Judge commit an act or cause officials to commit an act that might be a violation of the laws of the United States. Assignment VI is overruled.

The appellant next complains that the Trial Judge charged parole and good time statutes pursuant to T.C.A. § 40 — 2707, and cites Farris v. State, 535 S.W.2d 608 (Tenn.1976), which holds T.C.A. § 40-2707 to be unconstitutional. The sentence imposed upon the appellant was the minimum punishment which the jury could impose for the violation of T.C.A. § 52 — 1432(a)(1)(A). Therefore, the appellant could not have been prejudiced by the Trial Judge’s instruction of these statutes and we overrule this assignment. T.C.A. § 27 — 117; Farris v. State, supra.

Finding no error, we affirm the judgment of the Trial Court.

WALKER, P. J., and RUSSELL, J., concur.


author: CHRISTIAN, J.

text:
    SIRMAN v. STATE.
    No. 15403.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    J. J. Collins and R. W. Eairchild, both of Dufkin, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is possessing a still for the purpose of manufacturing intoxicating liquor ; the punishment, confinement in the penitentiary for one year.

Peace officers secured a search warrant purporting to authorize a search of appellant’s premises for stolen goats. They went to the home of appellant, and there instituted a search. Coming to an outhouse which was situated about thirty steps from appellant’s residence, they found that the door was locked. Looking through the cracks in the door, they saw a complete still and some barrels. They then placed appellant under arrest, and he was left in charge of one of the officers while the other returned to town to secure a warrant authorizing a search for intoxicating liquor. When the officer returned with this warrant, appellant was required to unlock the door to the outhouse. The officers discovered therein a quantity of whisky and a complete still and equipment for manufacturing intoxicating liquor. Appellant did not testify in his own behalf. The state relied entirely upon the testimony of the officers to establish the fact that the still and whisky was in the outhouse on appellant’s premises.

The affidavit for the warrant authorizing a search for stolen goats was based upon information and belief. The facts and circumstances upon which the belief was founded were not set forth in the affidavit. Hence the search warrant was invalid. Standard v. State, 113 Tex. Cr. R. 600, 21 S.W.(2d) 1066. Further, the affidavit is silent as to the place to be searched; it not being shown that the stolen goats were concealed in any described place. This rendered the affidavit insufficient. Chapin v. State, 107 Tex. Cr. R. 477, 296 S. W. 1095; Dupree v. State, 102 Tex. 455, 119 S. W. 301. The warrant issued upon this affidavit describes the premises to be searched as “the range, farm or pasture of Joe Sirman situated in said county.” This description is manifestly insufficient. Smith v. State, 117 Tex. Cr. R. 303, 36 S.W.(2d) 532. Moreover, the description of the place in the affidavit limits and controls the description in the search warrant. McTyre v. State, 113 Tex. Cr. R. 31, 19 S.W.(2d) 49. The search warrant being invalid, the officers were without authority to enter upon appellant’s premises and make a search fori stolen goats.

The affidavit for a warrant to search for intoxicating liquor was also based upon information and belief. The facts and circumstances upon which the belief was founded were not set forth in the affidavit. Hence the search warrant based upon the affidavit was invalid. Standard v. State, supra. The only description of the premises in the affidavit is as follows: “In a house in said Sir-man’s yard near his private residence.” This description is insufficient. Smith v. State, supra.

Appellant timely and. properly objected to the testimony of the officers touching the result of the search, and specified the defects in the affidavits and search warrants we have heretofore pointed out. The search was illegal. Hence, under the provisions of article 727a, 0. O. P., the court committed error in admitting the testimony.

The judgment is reversed, and the cause remanded.

PER OURIAM.

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


author: HAWKINS, J;

text:
    REED v. STATE.
    No. 15466.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    Tom Garrard and Lockhart & Brown, all of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J;

Conviction is for theft of property over the value of $50, punishment being assessed at two years in the penitentiary.

We find no complaint of the court’s instructions to the jury, and no bills of exception challenging any ruling of the court during the trial. The case is presented here on the sole claim that the evidence is not sufficient to support the judgment.

In February, 1930, Jim Burleson was engaged in the business of selling farm implements in Tahoka, Lynn county, Tex.- About the middle of February he had stolen from his place of business at night a two-row Rock Island planter. Some one had wanted some extras, and the boxing had been taken from the front, or guide, wheel of this planter, to supply the extras, which had been replaced by other unpainted boxing. When the new boxing was replaced in the wheel, a bolt instead of a cotter pin was used in one place, and other bolts, which were unusu'al in some particulars, were also used. Arthur Hodge was employed by Burleson and aided in installing the new boxing, and described in detail the boxing and bolts used in doing the work. About the middle of September, 1931, eighteen months after the planter had been stolen, officers found in the possession of Henry Fortenberry a planter which was claimed by Burleson as the stolen implement, and identified positively and with much particularity by him and Hodge by means of the substitute boxing and the manner of its installation. Henry Fortenberry had been using the planter for some time, it having been loaned to him by his brother Ernest Forten-berry. The latter testified that in February, 1930, he was on his way.to town for the purpose of buying a planter and met appellant {I-Ienry Reed), who, after learning what witness wanted, said he had a planter which he would sell witness; that later appellant brought the planter to witness’ place and witness bought it for $50, giving his check therefor. The date of the purchase was fixed by the date of the check which was the 24th day of February, 1930. The witness said when he bought the planter from appellant it was in good shape, not worn to amount to anything, but appeared to have been used some. Appellant admitted selling the planter in question to Ernest Fortenberry, and testified that about ten days before selling it to Forten-berry he (appellant) had gotten it from Joe Inmon, trading him two single-row planters for it. Appellant claimed that Fred Dawson and one of Joe Inmon’s sons were present when the conversation was had about trading planters. Joe Inmon was dead at the time of the trial. Dawson supported appellant’s testimony. Inmon’s son was not used as a witness. Henry Fortenberry testified that he had put the boxing in the guide wheel of the planter found in his possession and also claimed to have put in the bolts which Bur-leson and Hodge were positive they had put therein.

The foregoing recital of the facts shows that the case is peculiarly one which the jury was called upon to settle where the issues were closely drawn, and the evidence thereon in conflict. If the planter recovered by the officers from Henry Fortenberry was not the one stolen from Burleson, appellant could not be convicted; likewise, if appellant got the planter from Inmon by purchase or trade, appellant could not toe convicted. The learned trial .judge recognized these as the pivotal fact issues and pointedly told the jury that if appellant acquired the two-row planter from Inmon, or they had a reasonable doubt thereof, to acquit him; also, that if the jury believed from the evidence that the •planter taken from Henry Fortenberry by the officers was a different planter than that taken from Burleson, or if they had a reasonable doubt as to this, they must acquit.

The jury found against appellant on both defensive issues, and while the evidence is conflicting we cannot say that the finding of the jury is without support. It is a case where the jury gave credence to the state’s testimony in preference to that of appellant and his witnesses.

The judgment is affirmed.


author: LATTIMORE, J.

text:
    FORD v. STATE.
    No. 15435.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    Jesse Owens, of Yernon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for seduction; punishment, two years in the penitentiary.

At a former term of this court a prior conviction was reversed. See Ford v. State, 119 Tex. Cr. R. 569, 45 S.W.(2d) 213.

In making out its case the state introduced three witnesses. Wilma Maroney, the injured female, was eighteen years of age at the time of the alleged seduction; appellant was seventeen. She claimed to have had intercourse with appellant in the latter part of May, 1930. She said she 'began going with appellant about the first of said month. Asked about what was said between her and appellant on which she relied as his promise to marry her, she said that he asked her if she loved him, and she told him she did; she asked him if he loved her, and he said he did ; and he said, “Let’s get married”; she asked him when, and he said, “Most any time when I get my voucher cashed.” Appellant was the janitor at the school building. Asked to tell what took place at the time of the alleged intercourse, she replied: “This is what was said about it: T told him I didn’t want to do that,’ and he said, ‘Well, hell, what difference does it make if we are going to get married?’ ” She further testified as follows: “I had an intercourse with the defendant at that time because I loved him enough and thought he did me and I thought I would become his wife.” She further testified that at other times when she had intercourse with appellant, “nearly all the time I would ask him if he still intended to marry me, and he promised, he said ‘Sure, I’ll stick to you through thick and thin.’ ”

It might be regarded as somewhat doubtful if the above can be deemed a sufficient promise of marriage on which -to base reliance in a ease of seduction. Passing that, however, we observe that our statutes require, before a conviction will be sustained for seduction, that the injured female must be corroborated both upon the fact that the accused promised to marry her, and also upon the fact that he had carnal knowledge of her. The state introduced Leonard Mills, who testified that he was going with a sister of prosecutrix in May, 1930, and had a conversation with appellant in which the latter asked witness if he had had intercourse with the other Maro-ney girl, and witness told him, “No.” He said that appellant asked him why, to which witness replied that he did not want to. We quote witness’ testimony at this point: “He then told me: ‘Why don’t you promise them any damn thing and they will do anything.’ ” The witness testified nothing that shed any light upon the proposition of a promise to marry. This witness was later recalled and testified that appellant told him that he had had intercourse with Wilma Maroney, and that appellant said that about the only way he could see out of it was to marry. The state introduced also the father of the girl who testified only that she was about twenty years old and unmarried. We find nothing in the testimony for the defendant which corroborated in any way the proposition that the intercourse, if any, was obtained upon appellant’s promise to marry prosecutrix. In its rebuttal the state introduced a number of grand jurors whose testimony was confined to what was ■ said before them by a witness named Harrell who was offered by the defendant but claimed his privilege to decline to testify. In Brewer v. State, 93 Tex. Or. R. 213, 246 S. W. 663, we reaffirmed what has been often said by this court to the effect that the corroborating evidence must go both to the act of intercourse and to the promise of marriage.

Finding in the record before' ns no testimony corroborating in any way the testimony of Wilma Maroney that she yielded her person to appellant upon his promise to marry her, or corroborating her in the proposition that at any time prior to the alleged act of intercourse this appellant had promised to marry her, the judgment will be reversed, and the cause remanded.


author: MORROW, P. J.

text:
    MILTON v. STATE.
    No. 15468.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    M. G. Hansbro, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is murder; penalty assessed at confinement in the penitentiary for five years.

The appellant shot and killed Oscar Finley. The appellant is a negro woman and the deceased was a negro man. The evidence sugests that prior to the homicide they had been residing at a lumber camp at or near Groveton. Finley was a workman in the employ of the Rock Creek Lumber Company. While he was away at work, the appellant went to Camp Hoover and engaged in cooking for some hands that were working there. She went to Camp Hoover about one or two days prior to the day on which the homicide took place. When the deceased returned to his place of abode and learned that the appellant had gone to Camp Hoover, he went there, carrying with him a Winchester rifle, stating (according to some of the testimony) that he would bring the appellant back with him or kill her. Upon his arrival at Camp Hoover the deceased and appellant engaged in a conversation.

The appellant did not testify, .but introduced witnesses tending to advance and support the theory that the deceased, by threats to do her personal injury and having a gun in his hand, coerced her to return with him to their former place of abode; that, influenced by fear of the deceased the appellant prepared to accompany him. He walked in front, carrying his gun. She followed, leaving the room in which she had her belongings. After going a short distance, she retraced her steps, went into the room and got a pistol with which she shot the deceased. The bullet entered the back near the neck.

There was conflict of evidence, that of the state showing that the appellant’s Winchester had two cartridges in the magazine and none in the barrel. The testimony in behalf of the appellant indicated that the gun was loaded, that is, it had a cartridge in the barrel, and that the deceased was apparently in the act of shooting the appellant.

The court instructed the jury on the law of self-defense based upon both real and apparent danger. The manner in which the issues were submitted is not assailed by exceptions to the charge or otherwise. The position taken by the appellant is that the evidence is insufficient to support the verdict. It is thought, however, that the conflict in the testimony presents a question of fact for the jury, and that this court would not be authorized upon the supposed insufficient evidence to annul the verdict.

Four bills of exception are found in the record. They are not artfully drawn. Three of them are founded upon the theory that the rights of the appellant were transgressed by the ruling of the court in receiving in evidence testimony tending to show that the appellant and deceased had been unlawfully living together. The court explains the bills with the statement that the evidence was received as bearing upon the previous relations of the appellant and the deceased.

Article 1257a, Vernon's A.nn. P. C., which is a part of the murder statute passed in 1927, contains the following: “In all prosecutions for felonious homicide the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and eircumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed.”

Manifestly the evidence showing the previous relations of the parties was relevant.

Bill No. 4 relates to the asking by state’s counsel of an improper question of a character witness for the defendant. The question was calculated to elicit testimony adverse to the reputation of the appellant. The court sustained the objection to the question, and no answer appears to have been made. The transaction is not one that would require a reversal of the judgment.

Finding no reversible error presented for review, the judgment is affirmed.


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    MIRES v. STATE.
    No. 15475.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    A. C. Chrisman and Gean B. Turner, both of Cleburne, for appellant.
    Lloyd W. Davidson, State’s, Atty., of Austin, for the State.
   MORROW, P. J.

Theft of chickens is the offense; .penalty assessed at confinement in the penitentiary for one year.

From the record it appears that the appellant is at large by virtue of an appeal bond. The bond is defective in that it fails to show that it was approved by the sheriff. See article 818, O. O. P. 1925. In the absence of a sufficient bond, it is the duty of this court to dismiss the appeal, which is accordingly done, with the statement, however, that the appeal will.be reinstated upon the filing in the court below, a bond in compliance with the statute, article 835, C. O. P., and a eer-tilled copy thereof in this court within fifteen days,

The appeal is dismissed,


text:
    WELLS v. STATE.
    No. 15440.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    S. F. Rose, of Amarillo, for appellant
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, three years in the penitentiary.

A freight house was broken open and sixteen cases of cigarettes taken therefrom. A witness testified for the state that about 9 o’clock that night appellant came to'him inquiring about where he could get a truck, saying that he wanted to use same in hauling citrus fruit from the valley. This witness also testified that about 2 o’clock that night appellant again came to his house and told him he wanted to borrow witness’ truck to haul some cigarettes. He told witness he had about twelve cases of cigarettes. Witness lent appellant his truck. Next morning about 7 o’clock he saw appellant, who told him that he had moved the cigarettes, and that he wanted to sell them at $35 a case. Witness appears to have said that he might sell some of them for appellant. The Sunday following the burglary, this witness,- in company with two other men who seemed to have had some connection with the cigarettes, went to Lubbock and there saw appellant who, upon inquiry, stated that the cigarettes could toe found on Amarillo creek at a point described.

Appellant excepted to the failure of the court to instruct the jury that this witness was an accomplice; also excepted to the charge for its failure to submit to the jury the issue as to whether such witness was an accomplice. In failing to submit said issue to the jury we believe the learned trial judge fell into error. To say the least, the circumstance of appellant going to this witness at 9 o’clock inquiring about a truck for use in hauling citrus fruit, and his return to the same witness at 2 a. m. and borrowing a truck for the purpose of hauling twelve cases of cigarettes from out in the country, and that the witness actually loaned the truck for that purpose, and later suggested that he might assist in the sale of the cigarettes, and that he was several times in.company with other parties who seemed to be engaged in the cigarette transaction in a way not developed in this case, might have been deemed sufficient by the jury to justify a conclusion that said witness had furnished transportation or aid to the appellant in committing the offense.

The sufficiency of the evidence is vigorously assailed. In view of the fact that we think the case must be reversed for the error just discussed, we omit extended discussion on the point last mentioned. We might observe that there appears very little in the case to connect appellant with the cigarettes which were found by the officers. Of the two men in whose possession they were found, it might be said that one of them refused to testify on the ground that he might incriminate himself, and the other affirmed positively that he did not get those cigarettes from appellant. The state may be able to strengthen its ease upon another trial.

For the error complained of the judgment will be reversed, and the cause remanded.


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    DUCKWORTH v. STATE.
    No. 15436.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    B. B. Kirk, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for child desertion; punishment two years in the penitentiary.

The law under which appellant was convicted was passed and became effective August 21, 1931 (Vernon’s Ann. P. C. art. 602). In order to sustain this conviction it would have to be shown that since said'time, the accused, had willfully failed to support, etc., his minor children. Elms v. State, 99 Tex. Cr. R. 500, 270 S. W. 856. The burden is on the state to make such showing. The mere fact, in proof, that the accused did not support- or contribute to the support of his children after August 21, 1931, would not suffice to show that his failure or refusal was willful. He may not have been able.

As we understand this record, there is not a word of testimony establishing that since August 21, 1931, appellant has had any money to contribute to the support of his children, or any work from which he might receive money, or any property which might be converted into money. The statement that at some indefinite time since June, 1930, appellant received as much as ⅞400 soldier bonus furnishes no such proof. He may have received this amount in July -or August, 1930, or at any time prior to August 21, 1931, and may have lost same or paid it out on other obligations prior to the taking effect of this law. This’ court cannot let a conviction stand unless and until same be supported by some proof justifying the conclusion of guilt.

If this case should be tried again, testimony as to the kind of people who lived in the house occupied by appellant should- be omitted, as well as testimony of the conduct of persons at the house to which appellant went on one occasion with his little son. Such testimony has no bearing on the issue of willful desertion, etc., and is capable of creating prejudice against the accused and thereby doing him much harm.

The judgment is reversed, and the cause remanded.


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    ROTNER v. STATE.
    No. 15429.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    Thompson & Barber, of Colorado, Tex., for appellant.
    Lloyd W. Davidson, State’s Atty., of Aus>-tin, for the State.
   CHRISTIAN, J.

The offense is attempt at arson; the punishment, confinement in the penitentiary for two years.

Appellant was convicted under the provisions of chapter 82, Acts of the Regular Session of the 42d Legislature (Vernon’s Ann. P. C. art. 1316). He contends that the act is unconstitutional ; the ground of the attack being that the penalty for attempt to commit arson, as set forth in article 1316, P. C., was changed, notwithstanding such change was not within the scope of the caption of chapter 82. We quote the caption of the act as follows : “An Act to amend Article 1316, Chapter 1,. Title 17, of the Penal Code of 1925; further defining the offense of an attempt to commit arson; and'declaring an emergency.”

The body of the hill reads:

“Section 1. "That Article 1316, Chapter 1, Title 17, of the Penal Code of 1925 be and the same is hereby amended so as hereafter to be and read as follows:
“ ‘Article 1316. Any person who wilfully attempts to set fire to or attempts to burn or-to aid, counsel, or procure the burning of the buildings or property mentioned in Title 17, of the Penal Code of 1925, shall be guilty of an attempt to commit the offense of arson, and shall upon conviction be sentenced to the penitentiary for not less than one nor more than five years. The placing or distributing of any inflamable; explosive, or combustible material, or any substance, of whatever character or kind, or any article or device in any building or property mentioned in the foregoing Article in an arrangement or preparation with intent to eventually, wilfully set fire to or bum said building or property, or cause said property or building to be burned, shall for the purpose of this act constitute an attempt to commit the offense of arson, and shall be punishable as provided.’ ”

Article Í316, Penal Code of 1925, reads as follows: “Whoever, by any means calculated to effect the object, attempts to commit the offense of arson, shall be confined in the penitentiary not less than two nor more than seven years.”

It is observed that the penalty provided in chapter 82, supra, is not less than one nor more than five years, whereas, in article 1316, Penal Code, the penalty provided is not less than two nor more than seven years. There was a material change in the penalty. The caption of the amendatory act restricted the purpose of the bill to a change in the definition of the offense. The framers of the bill thus informed the public and their fellow legislators that the purpose of the bill was to change the definition. In changing the penalty, the bill went beyond the express limitation of its caption, and, under section 35 of article 3 of our Constitution and authorities, this destroyed its effectiveness as a law. Ex parte Heartsill, 118 Tex. Cr. R. 157, 38 S.W.(2d) 803, and authorities cited; Ex parte Faison, 93 Tex. Cr. R. 408, 248 S. W. 343. We quote from Ex parte Heartsill, supra, as follows: “It has been held by the courts that when the express verbiage of such title limits and 'restricts the purpose of the bill, any attempt to legislate otherwise in such bill variant from the purpose prescribed, is in excess of tho legislative power, and that a law subject to this complaint is unconstitutional.”

In his charge the court submitted the provisions of the amendatory act, which are materially different from the old law.

The law in effect prior to' the enactment of chapter 82 will be again recognized as the law of this state; there being nothing in said chapter expressly repealing article 1316, Penal Code. The indictment appears to be sufficient, under the provisions of article 1316, Penal Code. Hence, instead of reversing the judgment and ordering the prosecution dismissed, it becomes proper to reverse the judgment and remand the cause.

We deem the evidence insufficient to support the conviction. See Pozil v. State, 104 Tex. Cr. R. 244, 283 S. W. 846. However, in view of the fact that the evidence may not be the same on another trial, we pretermit a discussion of the question.

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.


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    COOPER et al. v. STATE.
    No. 15464.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.
    See, also, 46 S.W.(2d) 696.
    Baskett & DeEee, of Dallas, for appellants.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The case is before us on a writ of error. Review of a final judgment forfeiting an appearance bond is sought.

Y. E. Cooper entered into bond in the sum of $750, after an examining trial before a justice of the'peace, on a charge of forgery. Appellants A. S. Mayr and R. J. O’Connor signed the bond as sureties. We quote from the bond as follows: “Conditioned that, whereas, the said V. E. Cooper who is now in the legal custody of H. A. Hood, Sheriff of Dallas County Texas, charged in due form of law; before E. John Baldwin, a Magistrate of said County, sitting as an Examining Court, with the offense of a felony (Forgery), and who. by the order of said Magistrate has been required to give bail in the sum of Seven Hundred Fifty Dollars, conditioned for his personal appearance before the Criminal District Court of said County, to answer the said charge.”

The bond is described in the scire facias writ as follows: “Whereas, in a certain criminal cause pending in the Criminal District Court No. Two of Dallas County Texas, entitled the State of Texas versus V. E. Cooper, No. 2130, wherein the said V. E. Cooper is charged by Indictment with the offense of Forgery and Passing Fprged Instruments, on the 17th day of May, A. D. 1930, the said defendant V. E. Cooper did enter into a Bond with A. S. Mays and R. J. O’Connor, his sureties, jointly and severally, in the penal sum of Seven Hundred Fifty Dollars, conditioned that the said Y. E. Cooper would make his personal appearance before the Criminal District Court No. .Two of Dallas County, Texas, instanter, to answer said Indictment and there remain from day to day and from term to term of said Court until legally discharged.”

The judgment nisi describes the bond as follows: “And it appearing to the court that the defendant Y. E. Cooper as principal, together with A. S. Mays and R. J. O’Connor as sureties did, to-wit, on the 17th day of May A. D. 1930 enter into a'bond payable to The State of Texas in the penal sum of Seven Hundred and Eifty Dollars conditioned that the defendant, as principal, should well and truly make hisv personal appearance before the Honorable Criminal District Court No. 2 of Dallas County, Texas, at the Court House of said County, in the City of Dallas, on the instanter, and there remain from day to day and term to term of said Court, until discharged by due course of law, -then and there to answer The State of Texas upon a charge by complaint therein filed, accusing him of the offense of Forgery and Passing Forged Instrument (a felony).”

It is observed that the scire facias recites that Cooper entered into the bond before the district court after an indictment had been returned against him. The bond admitted in evidence was entered into before the justice of the peace after an examining trial. Notwithstanding the variance -was pointed out to the trial court in appellants’ objections, the bond was received in evidence. The point was well taken. The scire facias writ serves a dual purpose in forfeiture cases: (a) Citation to the sureties; (b) the state’s pleadings. Uppenkamp v. State, 89 Tex. Cr. R. 131, 229 S. W. 544. In so far as it performs the office of a petition, the state is bound by the rule that, in establishing the essential matters therein stated, the allegation and proof must substantially correspond. Uppenkamp v. State, supra, and authorities cited. Under the decisions, the variance is fatal. Frost v. State, 33 Tex. Cr. R. 347, 26 S. W. 412; Brown et al. v. State, 28 Tex. App. 297, 12 S. W. 1101.

The bond was executed by V. E. Cooper, as principal, and A. S. Mayr and R. J. O’Con-nor, as sureties. The judgment nisi recites that the bond was executed by V. E. Cooper, A. S. Mays, and R. J. O’Connor-, and orders a recovery against said parties. The final judgment recites that the bond was executed by V. E. Cooper, A. S. Mayr, and R. J. O’Con-nor, and orders a recovery against them. The scire facias writ names the parties Y. E. Cooper, A. S. Mays, and R. J. O’Connor. We do not understand that “Mayr” and “Mays” are idem sonans. The opinion is expressed that appellants’ objection to the introduction of the bond on the ground that there was a variance in the respect mentioned should have been sustained.. Under the decisions, the variance is fatal. Uppenkamp v. State, supra; Brown v. State, 28 Tex. App. 65, 11 S. W. 1022.

.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, J.

text:
    McCRANIE v. STATE.
    No. 15445.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    McGaw, Mitchell & Erisman, of Bongview (Fred Erisman, of Longview, of counsel), for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant was convicted for driving a car upon the public streets in the city of Long-view, Tex., at a time when appellant was under the influence of intoxicating liquor. Punishment was assessed at one year in the penitentiary.

Appellant filed an application for suspended sentence. It was alleged in the indictment that the offense was committed on January 11, 1931, but the case was not tried until about a year later, in February, 1932. No evidence was introduced as to appellant’s conduct between the return of the indictment and the trial.

In (his amended motion for new trial, appellant set up misconduct of the jury in that after retirement they received other evidence. Article 753, subd. 7, C. O. P. Only two jurors testified upon the hearing of the motion- for new trial. From their evidence it appears the jurors without difficulty reached the conclusion that appellant was guilty of driving a car at the time and place charged in the indictment at a time when he was intoxicated. Upon the issue of suspended sentence they were divided six and six. One juror, Mr. Dean, asked if any one knew what the conduct of appellant had been since the indictment was returned against him. Mr. Heitt, another juror, replied that he knew what appellant’s conduct had been; that he was* at his (Heitt’s) house Sunday a week ago trying to get the juror Heitt to pull his car out of the ditch, and was so drunk at the time he did not know where his ear was. Immediately after this statement was made, the jury brought in the verdict of guilty deelin-ing to recommend a suspension of the sentence. A reversal must be ordered upon the undisputed facts shown by the evidence heard upon the motion for new trial. There are so many cases upon the subject it is scarcely necessary to cite them. Subdivision 7, art. 753, O. O. P., provides that a new trial shall be granted where the jury, after retiring to deliberate on their verdict, receives other testimony. It has been held that information given by one of the jurors is “other evidence” within the meaning of the statute, and that, where one of the jurors after retirement gave information to the jury which is damaging to accused, a reversal will follow. Moore v. State (Tex. Cr. App.) 47 S.W.(2d) 619; Durbin v. State, 117 Tex. Cr. R. 177, 36 S.W.(2d) 730; Spangenberg v. State, 117 Tex. Cr. R. 304, 36 S.W.(2d) 1023. A new trial should have been granted on the evidence presented upon hearing of the motion for new trial and the expense and delay incident to an appeal avoided.

The judgment is reversed, and the cause remanded.


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    REINHARDT v. STATE.
    No. 15401.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.
    J. J. Collins and R. W. Eairehild, both of Lufkin, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

We quote the charging part of the indictment, as follows: “C. H. Reinhardt on or about the 10th day of November A. D. One Thousand Nine Hundred and Twenty Eight and anterior to the presentment of this indictment, in the County of Polk and State of Texas, did then and there unlawfully and when he was then and there the agent and employee of the copartnership known as Josey and Adams, composed of John Josey and S. E. Adams and the said C. H. Reinhardt did then and there fraudulently embezzle, misapply, and convert to his own use, without the consent of the said Josey and Adams, or either of them, 2442 pounds of seed cotton.of said Josey and Adams, to-wit, 2442 pounds of seed cotton of the value of One Hundred Forty Six & 52/100 dollars which said property had come into the possession and was under the care of the said C. H. Reinhardt by virtue of his said agency and employment.”

Appellant predicated a motion to quash the indictment, upon the ground that it was averred that he (appellant) was a member of the copartnership known as Josey & Adams; his position being that that part of the in-'dietment reading, “composed of John Josey and S. F. Adams and the said C. H. Reinhardt,” constitutes an allegation that the three parties named composed the copartnership. It is observed that immediately following the words, “the said O. H. Reinhardt,” the indictment reads, “did then and there fraudulently embezzle,” etc. We think it is manifest that it is not charged that appellant was a member of the copartnership. The opinion is expressed that the motion to quash was properly overruled.

The transaction alleged in the indictment rwas positively identified in the evidence. Appellant was the manager of a gin owned by John Josey and S. F. Adams. I-Ie had authority to buy seed cotton, issue receipts, and handle funds of the business. On November 10, 1928, appellant ginned 2 hales of cotton in his own name. The bales were numbered 725 and 729. The seed cotton going into these bales aggregated 2,442 pounds and was oí the value of $146.52. Appellant sold these 2 bales of cotton on the following day to J. W. Cobb. A witness for the state testified that the seed cotton mating up the bales belonged to the partnership of Josey & Adams. Appellant's brother testified that the cotton belonged to appellant, having been raised by appellant on his father’s land. He testified further that he hauled the cotton to the gin for appellant, saw it ginned, and thereafter carried the two bales of cotton to Mr. Cobb’s place, where it was sold. Mr, Cobb testified that this witness in fact delivered the cotton to him. Appellant’s brother said, further, that appellant raised 5½ bales of cotton, but gave his father ?½ bales for rent, keeping for himself 3 bales. Appellant did not testify.

In addition to the testimony relative to.the cotton charged in the indictment to have been embezzled by appellant, it was shown by the state that more than $200 worth of seed cotton had been bought by appellant with funds belonging to Josey & Adams, and that the firm had never received any credit for cotton ginned at the gin that year. Several employees of the gin had authority to issue checks and buy seed cotton. On certain occasions extra men were employed. The record appears to be silent as to whether there was any seed cotton on hand at the time appellant’s employment ceased. J. P. Chadwick, who worked at the gin, and who had authority to issue checks, testified for the state that during the time appellant worked at the gin he did not see appellant gin any cotton that belonged to Josey & Adams, except that which went into the bales Nos. 725 and 729, the two bales sold by appellant to Mr. Cobb. The gin frequently sold seed cotton to farmers.

If the testimony relative to bales 725 and 729 should be eliminated, the evidence would be insufficient to support the conviction. Hence the court erred in declining to instruct, the jury to acquit appellant if they believed the 2 bales of cotton sold to J. W. Oobb were the property of appellant. Timely and proper objection to the charge, calling attention to the defect mentioned, was interposed by appellant. Also appellant presented a requested instruction covering the subject. As heretofore pointed out, the transaction alleged in the indictment was positively identified in the evidence. The evidence, however, was sharply conflicting, as above shown, upon the issue as to whether the two bales of cotton numbered 725 and 729 belonged to Josey & Adams or to appellant. Manifestly, under the circumstances, the court was in error in declining to submit affirmatively the question as to whether said cotton belonged to appellant. Katz v. State, 92 Tex. Cr. R. 629, 245 S. W. 242.

The testimony shown in bill of exception No. 5, relating to a separate and distinct offense, should not be admitted upon another trial. No conditions are present warranting its reception. It sheds no light upon any issue in the case.

The judgment is reversed, and the cause ■ remanded.

PER OUBIAM.

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.


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    BRANNAN v. STATE.
    No. 15454.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1932.

      Baker & Baker, of Coleman, 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.

Officers went to the home of appellant for the purpose of executing a warrant of arrest. Appellant invited them to enter the house. While the parties were engaged in conversation, one of the officers, according to his testimony, observed appellant’s wife in the kitchen, and saw appellant look at her and nod. At this juncture, appellant’s wife picked up a fruit jar and threw it through the window. Going to the kitchen, the officers discovered four broken half-gallon fruit jars. Approximately two gallons of whisky was running on the floor. There was testimony on the part of the state that some time prior to the search appellant had sold whisky to a Mexican. Appellant testified that physicians had advised his wife to use whisky as a medicine. In this appellant was corroborated by two physicians. Further, appellant testified that he had from time to time bought whisky for his wife; that some four or five days prior to the search he had some whisky in the house for his wife’s use; that he did not know that there was any whisky in the house at the time the officers made the search. Appellant declared that he had been advised by his wife’s uncle, Mack Elliott, that he (Elliott) had placed the whisky in the kitchen, in order to replace some of the medicinal whisky he (Elliott) had borrowed from appellant’s wife. It appears to have been uncontroverted that appellant’s wife had been in bad health for several years and had been under the care and observation of physicians. Appellant expressly denied that he possessed any whisky for the purpose of sale.

Appellant’s first application for a continuance was predicated upon the absence of his wife, who was unable to be present in court at the time of the trial on account of the fact that she was pregnant and threatened with miscarriage. The fact of illness and inability to attend court was supported by proper certificates on the part of attending physicians, and no contention was made on the part of the state that the diligence was not sufficient. The indictment was returned on January 5, 1932, and the trial held at the same term of court on January 26, 1932. The witness was under process. It was alleged in the application for continuance, in substance, that the witness would testify that the whisky discovered by the officers was being used by her for medicinal purposes, and not for sale; that she was in bad health and physicians had advised her to use whisky as a medicine; that she knew of her own knowledge that the whisky found by the officers was not possessed by appellant for the purpose of sale. In an effort to defeat the granting of the application, the district attorney made the following statement to the court: “The state agrees that a practicing physician had, prior to the date alleged in the indictment, prescribed whisky as a medieine for the witness, Mrs. Henry Brannan, and that she was taking whisky as a medicine at the date of the alleged offense. We admit this as a fact.” This admission went to the jury. Attached to the motion for new trial is the affidavit of the witness in which it is shown that she would have testified as alleged by appellant in his application.

It is obvious that the admission by the district attorney did not embrace all of the facts proposed to be proved by the absent witness. Not only would the witness have testified, as heretofore pointed out, that a practicing physician had prescribed whisky for her, but also that the whisky the officers found in the house was used by her for medicinal purposes, and not possessed by appellant for the purpose of sale. It is only when state’s counsel admits that the facts proposed to be proved ■by the absent witness are true, and such facts go to the jury as evidence in the case, that the court is warranted in denying the continuance. Branch’s Annotated Penal Oode, § 325; Phipps v. State, 36 Tex. Cr. R. 216, 36 S. W. 753.

It is clear that the absent testimony was material. The charge of the court was expressly predicated upon the possession' by appellant of the whisky found by the officers in appellant’s kitchen. The separate and distinct transaction involving the alleged sale to the Mexican was not submitted. It is the rule that if diligence is shown and the absent testimony appears material and probably true, and is of such character as that a different result might be produced thereby on another trial, that the new trial should be granted. Tubb v. State, 109 Tex. Cr. R. 455, 5 S.W.(2d) 152, and authorities cited. The judicial discretion rests with the trial judge in determining, in passing on the motion for a new trial, whether or not the absent testimony is probably true in view of all the evidence heard during the trial. However, if the absent witness makes affidavit that, if present, he would have sworn to the facts stated in the application for continuance, and such affidavit be attached to the motion for a new trial, then' the discretion of the trial judge to determine the probable truth of such testimony does not operate. Tubb v. State, supra; Kellar v. State, 111 Tex. Cr. R. 75,11 S.W.(2d) 512. In the light of the record, we are unable to reach the conclusion that the trial court was not in error in overruling appellant’s motion for a new trial. Tubb v. State, supra; Kellar v. State, supra.

Bill of exception No. 2 recites that appellant offered to prove by a named pharmacist that he had talked to appellant about the physical condition of his wife, and advised him that whisky would be good for her. The district attorney objected because the witness was not a physician. The objection was sustained by the court. The qualification appended to the bill of exception was properly excepted' to by appellant and cannot be considered. As presented in the bill of exception, the matter presents error. This court has expressly held that, notwithstanding a witness is not shown to be qualified to give advice as a physician, he should be permitted to give testimony of the character under consideration here. Floyd v. State, 10-1 Tex. Cr. R. 1, 282 S. W. 218.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


text:
    BRADY v. STATE.
    No. 15127.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.

      Snell & Aynesworth, of Houston, for appellant.
    O’Brien Stevens, Or. Dist. Atty., and E. T. Branch, both of Houston, and Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Appellant, Bill Hensley, and G. E. Collier were jointly indicted for robbery. Appellant was alone upon trial. What became of the case against Collier is not shown from the record. Presumptive!y, it had been disposed of in his favor as he was used as a witness by appellant.

The evidence for the state shows that appellant and Hensley robbed S. M. Baucom and W. Santell in an upstairs room in an apartment house in the city of Houston, taking $50 from Baucom and $120 from Santell; that appellant used two pistols during the robbery, and Hensley used one; that Baucom and Santell had come to the house at the invitation of Collier, expecting him to be there; that they waited for him about fifteen minutes, and, when he did not come, they started to leave, and the robbery occurred, after which appellant and Hensley tied the hands of Baucom and Santell behind them with rope and left them in the room. The'evidence for appellant was to the effect that Baucom and Santell had come to the room to engage in a game of cards with Hensley; that Santell had made a prior visit to the room, arranging with Hensley to so conduct the game as to beat Baucom out of his money; that during the course of the game it was discovered that Baucom and Santell were cheating Hensley; that appellant and Hensley, by insisting firmly, but without any force or violence, obtained back from iSantell the money which belonged to Hensley. Appellant, Hensley, and Collier were arrested several hours after the robbery; they were in Collier’s car, which he was 'driving. Two pistols were in the car which officers claimed appellant and Hensley reached for when the car was stopped. This was denied by appellant. Appellant’s testimony was that one of the pistols belonged to him and the other to Hensley. Officers testified that an automatic pistol was found in a suitcase which had Hensley’s address and clothes in it. This suitcase was in another car in which appellant and Hensley had come from Oklahoma a few days before the robbery. Appellant denied that the automatic pistol belonged to either him or Hensley, or that it was taken out of a suitcase belonging to either of them. He claimed he had never seen this pistol before, but said perhaps it belonged to a man by the name of Watson, who had come with them from Oklahoma, and claimed it must have been taken out of Watson’s suitcase by the officers. Appellant testified that he understood the car in which he and Hensley came from Oklahoma belonged to Hensley; that he did not know whether or not it was a stolen car; that he had come at Hensley’s invitation.

Bill of exception No. 2 raises a question as to the presentment of the indictment. It is recited in the indictment that “the Grand Jury of Harris County, State of Texas, duly organized at the May Term, A. D. 1931 of the Criminal District Court of said county in said court, at said term, do present,” etc. The position taken by appellant is that the indictment was not presented in the proper court.

The case was tried in criminal district court of Harris county of which the Honorable Whit Boyd .was presiding judge. The fourth ground of exception to the substance of an indictment under article 511, O. C. P., is “that it shows upon its face that the court trying the case has no jurisdiction thereof.” Such an exception to the substance of the present indictment was untenable, because upon its face the indictment affirmatively showed that the court in which the case was tried did have jurisdiction. An exception to the form of an indictment, article 512, subd. 1, may be based upon the ground “that it does not appear to have been presented in the proper court, as required by law.” An exception on that ground was untenable in so far as the face of the indictment was concerned. However, it is recited in the bill of exception which, brings the question forward that “the 'Grand Jury presented the indictment in Criminal District Court No. 2 of Harris County, Texas, while Judge Langston G. King, who is Judge of that court, was presiding, and in the regular court room of said court.”

From the recitals in the indictment it appears that the grand jury must have been organized by the Honorable Whit Boyd, judge of the criminal district court of Harris county. The ,bill of exception complaining of the return of the indictment is meager, and throws no light on why the grand jury reported to Judge King of criminal district court No. 2. By Act of the Regular Session of the 40th Legislature (1927) c. 24, p. 33 (Vernon’s Ann. C. C. P. art. 52 — 158, § 1 et seq.), criminal district court No. 2 of Harris county was created. Section 2 of said act (Vernon’s Ann. O. O. P. art. 52 — 158, § 2) provides that, after it 'became effective, all felony cases of even numbers should be filed by the clerk in criminal district court No. 2, and felony cases of odd numbers should be filed in the criminal district court of Harris county. This seems to be a positive direction as to where the odd and even numbered cases shall be lodged, regardless of which court organized the grand jury, and regardless'of which judge may have received the report of the grand jury. We observe that the number of the indictment in the lower court was 35483, an odd number, which, under the terms of section 2 of the act of the Legislature just referred to, lodged the indictment in the criminal district court in any event. In section 3 of said act (Vernon’s Ann. O. O. P. art. 52 — 158, § 3) it is provided that: “ * Either of the judges of said criminal district courts may, in his discretion, in the absence of the judge of the other criminal district court from his court room or from the County of Harris, Texas, try and dispose of any cause or causes that may be pending in such criminal district court as fully as could such absent judge were he personally present ánd presiding. And either of said judges may receive in open court from- the foreman of the grand jury any bill or bills of indictment in the court to which such bill or bills of indictment may be returnable, ⅜ * ⅜ and •⅜ ⅜ * make any other order or orders in such courts respecting the cause therein pending or the procedure pertaining thereto as the regular judge of said criminal district court could make if personally present and presiding.”

The bill of exception being silent as to why the judge of criminal district^eourt No. 2 received the report of the grand jury, we must assume that he was acting within his authority under the terms of the statute just quoted, and that Judge Boyd was absent from his courtroom or from the county of Harris, at the time the grand jury made its report. When reduced to its last.analysis, it appears that appellant’s complaint is based upon the fact that Judge King received the report of the grand jury in his own courtroom, that is, the courtroom of criminal district court No. 2, instead of stepping across the hall into the courtroom of the criminal district court, and there receiving the report of the grand jury. We fail to see the. merit in the contention thus presented, and the same will not be sustained.

Bills of exception 8 and 8a will be considered together. The indictment charged the injured party’s name to be S. M. Balcón. ■Bill of exception 8a recites that, while the prosecuting witness was testifying, it was developed that he spelled his name “Baucom” and not “Balcón” as charged in the indictment. However the name may have been spelled, he testified that he was the person upon whom the alleged offense was committed. The bill further recites that, when it developed that the witness spelled his name “Baucom,” the court stated that he held the names “Baucom” and “Balcón” to be idem sonans, and ordered the trial to proceed, to which ruling of the court appellant excepted. The bill is meager, in that no effort appears to have been made to advise this court as to the pronunciation of the two names as nearly as that information might have been brought to us, or upon what facts the court based its ruling. There is no rule controlling the spelling or pronunciation of proper names, and what the trial court heard with reference to the names may have been entirely satisfactory to him, as a predicate for the holding complained of, and yet furnish this court no information in regard to the matter. Denning-ton v. State, 98 Tex. Or. R. 332, 265 S. W. 698. In Corpus Juris, vol. 45, § 19, on page 389, it is said: “ * * The doctrine of idem sonans has been much enlarged by modern decisions to conform to the growing rule that a variance in name, to be material, must be such a one as has misled a party to his prejudice.”

See Jones v. State, 115 Tex. Cr. R, 418, 27 S.W.(2d) 653; Chilla v. State, 115 Tex. Cr. R. 193, 28 S.W.(2d) 541.

From section 20, page 389, vol. 45, Corpus-Juris, it appears that in some instances the question of variance in name may be properly settled by the court, but, when turning upon an issue of fact, sometimes it is necessary to submit the question to the jury. In the present instance the trial court settled the matter. If appellant was not satisfied therewith he might have requested that the issue be submitted to the jury if the question of variance really turned upon an issue of fact, but he simply contented himself with a request that the court direct a verdict of acquittal because of the alleged variance upon which point the ruling of the court had been adverse to him. The matter might be presented in such form as to raise serious question upon another trial, if one should be had. If the state desires to eliminate that question, it can easily be done by securing the return of a new indictment. We mention this in view of the fact that it will be necessary to-reverse the judgment upon other grounds.

Upon cross-examination appellant had testified that, if the automobile in which they had come from Oklahoma was a stolen car, he knew nothing about it; that he had come at the invitation of Hensley, and supposed the car belonged to him. Bill No. 4 shows that, after the officer had testified about finding the automatic pistol in the car in which appellant and Hensley came from Oklahoma, he was asked upon cross-examination if he had a search warrant to search the ear. He replied in the negative, and said the ear was reported as a stolen car. Counsel for appellant requested the latter part of the answer stricken out as not responsive to the question. This the court declined to do. Bill of exception No. 10 reveals that during the argument of the district attorney he said the appellant was “up here in a stolen car,” and further recites that the only evidence in the record with reference to the car being stolen was the testimony of the arresting officer Holland, which appellant had asked to he stricken out as unresponsive, as shown by bill of exception 4; the objection to the argument being that there was no evidence properly in the record upon which to base such an argument. We understand from bill of exception 10 that the court declined to instruct the jury at the time the argument was made that it was improper, but later on gave a special charge at the request of appellant directing the jury to disregard the argument complained of. That part of the answer of the officer which was objected to as being unresponsive should' have been stricken from the record at the request of appellant, and the court was in error in not having responded to the request. It left in the record evidence which formed the basis for the argument later made, placing before the jury the theory of the state that appellant had come from Oklahoma in, and was connected with, a stolen car, when in fact there was no legal basis for such argument. The penalty assessed against appellant was ten years in the penitentiary. Notwithstanding the court gave the special charge requested by appellant directing the jury not to consider the argument objected to,he left in the case the evidence which formed the basis for such argument. We have been unable to reach the conclusion that under the circumstances the two incidents shown in bills of exception 4 and 10 were other than harmful to appellant, and operated against him both upon the question of guilt and punishment imposed.

At the request of appellant, the court gave a special charge telling them, if they found from the evidence that appellant was acting for himself or jointly with some other person in regaining money which had been obtained by Baueom by the use of some crooked or cheating gambling device or scheme, that appellant would not be guilty. Bill of exception No. 9 shows that in the argument of the assistant district attorney he stated to the jury that they should find appellant not guilty if he recovered the money from San-tell while the card game was in progress, but in connection with that argument made this statement: “It is not the law that he could use a gun to get the money after the game was over, even if it was obtained by cheating.” At the time this argument was made counsel for appellant objected to it on the ground that it was a misstatement of the law, and requested the court to direct the jury not to consider the argument for any purpose, but the court refused to give such instruction. The argument objected to was a statement of the law in direct opposition to that contained in the special charge given át the instance of appellant. The refusal of the court to instruct the jury not to consider the argument left the jury in a position where they might well have understood that the court sanctioned the objectionable argument as being correct, although antagonistic to the special charge. It was calculated to work injury to appellant. For expressions of this court on similar occurrences, we refer to Rodriquez v. State, 100 Tex. Cr. R. 11, 271 S. W. 380; Funderburk v. State, 117 Tex. Cr. R. 182, 35 S.W.(2d) 417; Williams v. State, 117 Tex. Cr. R. 356, 35 S.W. (2d) 726.

We are of opinion that bills of exception 3, 5, and 7 .present no error, and therefore refrain from a discussion of them.

For the errors shown in bills 4, 9, and 10, the judgment is reversed and the cause re>-manded.


text:
    DE LONG v. STATE.
    No. 15442.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1932.

      Reynold M. Gardner, of Amarillo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is rape; the punishment, confinement in the penitentiary for ten years.

The indictment charges rape by force, threats, and fraud. Appellant contends that the evidence is insufficient to support the charge. '

Prosecutrix, Ruth Beams, who is a young married woman about IS years of age, had been living in lama, Ariz., with her husband. Prior to the alleged assault, her husband had gone to Waurika, Okl., in search of work. She remained in Turna. After securing employment in Waurika, prosecutrix’ husband, on November 2, 1931, wrote her a letter in which he advised her he had secured work, and requested that she come to him as soon as she could, as he needed her help. At the time she received this letter, pros-ecutrix had no money. Her friends, Mr. and Mrs. Prate Chesney and Joe Carlton decided to accompany her from Turna to Waurika. None of the parties having any money, they traveled on freight trains, hid'ing in box cars to avoid detection. Reaching Dalhart, they went to a place known as the “jungles.” There, while making some coffee, they met three young men, Pat Warren, Hughie Murphy, and Lawson Mardis. Prate Chesney agreed to let those young men travel with his party. After dark, pros-ecutrix and her six companions boarded a freight train going toward Amarillo and entered a compartment of a refrigerator car. Before the train reached Amarillo, appellant and Jack Behr came to the compartment occupied by the parties. According to the version of prosecutrix, when appellant came to the opening in the top of the car he said that his name was “Denver Bob,” and ordered all of the parties to come out on top of the ear. It appears that the party known as “Denver Bob” was special agent of the railroad; it being the state’s theory that appellant impersonated him in order to intimidate prosecutrix and her companions. Pat Warren was the first to obey appellant’s command. At the point of a pistol appellant forced him into another refrigerator car and locked him up. Finally appellant required prosecutrix to come on top of the car. Locking the others in the compartment, he forced prosecutrix to accompany him along the top to the other end of the car. At this juncture we quote from the testimony of prosecutrix, as follows: “When he got me to the other end of the car he said he was the ‘law’; he said he was ‘Denver Bob’; he said he was the ‘law’ and that he didn’t want to cause us any trouble, if I would have intercourse with him he would let me go, and I asked him if I would have intercourse with him if he would let my friends go too, and he said ‘yes,’ and I said ‘on your word of honor’ and he said ‘yes’ and I told him I had not been touched since I had gotten married and I wasn’t going to do it. He didn’t say anything then, but he threw me down on the walk and got my right arm behind me, and his left shoulder on my right shoulder, and he held the gun in his left hand and in my ribs. When the conversation took place both of us were standing up, and the defendant grabbed me and threw me down on the walk of the car, and I had my right hand back under me. I had my right arm behind my back like that (illustrating), and he had his left shoulder on my right shoulder, and he took the gun from his pocket and put it in his left hand, and held it here in my ribs (illustrating)— in my right side. I could feel the barrel of the gun there in my side. After the defendant had me in that position he took my overalls off of me, down to my ankles. In taking those overalls off some buttons were torn off. I am married and understand what is meant by the term ‘intercourse,’ and things of that kind. After he had taken my overalls down he had an intercourse with me. During that time the defendant continuously kept that pistol in my side there. The reason I let the defendant, H. R. De Long, have intercourse with me like I have told about here on that occasion was because I was afraid if I resisted he would shoot me.”

Prosecutrix testified further that after appellant had completed the act of intercourse he carried her back to the compartment and forced her to enter; that she immediately told Mrs. Cfiesney what had happened; that after appellant put her back into the compartment he locked them all in; that at the time she first came out of the car at appellant’s command he asked her if she was married, and she replied in the affirmative; that he asked her for proof and she gave him her birth certificate and a letter from her husband, which appellant at no time returned to her. Prosecutrix’ companions testified that after appellant returned her to the compartment she was agitated and crying. They said she came down in the, ear buttoning her -overalls. Further, they testified that while in this agitated condition she told them of appellant’s conduct toward her. Upon the arrival of the parties in Amarillo, they kicked on the side of the ear and were released by a switchman. Shortly thereafter complaint was filed against appellant charging him with the offense of rape. Appellant and Jack Behr were arrested in what is known as the “jungles” in Amarillo. A search of appellant disclosed a birth certificate belonging to prosecutrix and a letter written to her by her husband, in which he requested her to come to him at once. These instruments were introduced in evidence upon the trial of the ease without objection. Appellant had no pistol on his person at the time he was arrested. Shortly thereafter the officers found near the place, hidden in some weeds, a .38 caliber pistol. Neither appellant nor Behr wore a pistol scabbard.

Appellant testified, in substance, as follows: He saw prosecutrix and her companions in the refrigerator car as testified to by them. At the time Jack Behr was with him. Behr had a pistol; he had none. He asked Behr if he knew where there was an empty refrigerator car, as it was too cold to stay on top of the train. He and Behr went together to the car occupied by prosecutrix and her companions. Behr pulled his pistol and ordered them out. Behr ordered the first one out into another refrigerator car, and locked him in. He (Behr) asked the women if they .were married and demanded that they produce the evidence, telling them that he, was “Denver Bob.” Finally he suggested that he and appellant have sexual intercourse with prosecutrix. He demurred, but finally agreed. When prosecutrix came out of the ear, Behr asked him if he wanted to have the first act, and he replied it did not make any difference. Prosecutrix said that she would let them have intercourse with her if they would let her “gang by.” He and prosecutrix went to the other end of the car and had sexual intercourse, she lying down on the car and willingly submitting to the act. She removed one leg of her overalls in order to accommodate her person to him. He did not have a gun and used no force or threats in accomplishing the act. After they had completed the act, prosecu-trix got up and went back to the compartment occupied by her companions. , On the way back she told him if he did not give her $25 ,she was going to “turn him in.” Behr did not have an act of intercourse with her. After she had gotten back into the compartment of the refrigerator car, Behr, over his protest, locked the parties in. The pistol found by the officers in Amarillo did not belong to him, but to Behr. He had never had it in his possession. The birth certificate and letter of prosecutrix had never been in his possession until he had exchanged clothes with Behr in Amarillo. He did not know it was in the shirt he had gotten from Behr at the time the officers arrested him. The officers assaulted and abused him in an effort to force him to confess, but he refused to sign a confession.

In his application for a continuance, appellant alleged that one Bill Roberts was on the train with him and that he would swear that appellant did not have a gun on the occasion in question and that the act of intercourse appellant had with prosecu-trix was with her consent; no force or threats being used by appellant. Appellant, upon cross-examination, testified that there was no man by the name of Roberts on the train on the occasion in question, and stated that he did not know at the time he signed and swore to the application that his counsel had alleged therein that one Roberts was on the train and would give the testimony set forth in the application. In short, he admitted that the averments relative to the witness Roberts were false.

Except as to the act of intercourse, prosecutrix’ companions corroborated her testimony in its entirety. At that time they were locked in the compartment of the refrigerator car. Considering the corroborative testimony, appellant’s own version of the transaction, the false statement embraced in the application for continuance, the possession by appellant at the time of his arrest of the birth certificate and letter belonging to prosecutrix, and the finding of the pistol in some weeds at the place of appellant’s arrest, the jury accepted prosecutrix’ version of the transaction as true. Under the circumstances, we are unable to reach the conclusion that the verdict should be disturbed.

In his brief, appellant urges that the state failed to prove venue. Article 847, C. C. P., requires this court to presume that venue was proven unless a bill of exception appears in the record showing that an issue was made upon that point in the trial court. Green v. State, 116 Tex. Cr. R. 2, 32 S.W.(2d) 650; Guidry v. State, 116 Tex. Cr. R. 294, 31 S.W.(2d) 633; Berry v. State, 111 Tex. Cr. R. 611, 13 S.W.(2d) 697; Lawrence v. State, 117 Tex. Cr. R. 228, 36 S.W.(2d) 1018; Brady v. State, 108 Tex. Cr. R. 606, 2 S.W.(2d) 261. We find in the record a bill of exception embracing appellant’s motion for a new trial. This motion contains several paragraphs. In one paragraph it is alleged that venue was not proven. This is not sufficient to authorize this court to review the question. In Lawrence v. State, supra, it was said that, unless the issue of venue was raised prior to the filing of the motion for a new trial, the presumption in favor of proof of venue will be indulged. In any event, an examination of the statement of facts convinces us that it was sufficiently proven that the offense occurred in Potter county, as alleged in the indictment.

Appellant filed a motion for a new trial, which he neither signed nor swore to. In this motion he alleged that he had disbov-ered new evidence since his trial. Attached to the motion is the affidavit of one Ted Daniels, in which it is averred that he had talked-to prosecutrix several times after the alléged commission of the offense and that she had stated to him that the reason she allowed appellant to have sexual intercourse with -her was because she understood him to be “Denver Bob,” an official of the Denver Railroad, and thát he had told her that, if she would permit an act of intercourse, he would let her and her companions go on to Amarillo unmolested.. It is alleged in the affidavit that he told appellant’s attorney of the conversation a day or two after the case was tried. It is unnecessary to discuss the materiality of the testimony alleged to have been newly discovered, or to determine whether the fact that such testimony is merely impeaching in character would have warranted the overruling of the motion. The court does not appear to have heard evidence on the motion for a new trial. No affidavit on the part of appellant’s counsel showing when he learned of the new testimony and the efforts he used to obtain it before the trial is attached; nor was it shown that appellant used diligence. In short, the record fails to show the use of any diligence on the part of either appellant or his counsel. It is the rule that the accused'must satisfy the court that the new testimony has come to his knowledge since the trial, and that it was not owing to the want of due diligence that it was not discovered sooner. Branch’s Annotated Penal Code, § 198; Dansby v. State (Tex. Cr. App.) 53 S. W. 105; Kent v. State (Tex. Cr. App.) 50 S.W.(2d) SIT.

It appears from bill of exception No. 2 that a juror testified on the motion for a new trial that it was generally discussed by the jury that prosecutrix and her companions would have smothered in the refrigerator car had they .not been released in Amarillo by a switchman. Further, this juror testified that the fact that the parties would have smothered was largely responsible for his action in voting to convict, as otherwise he did not believe he would have convicted. It was in evidence that the compartment was not ventilated, and that, if the parties had not been released, they would have smothered. This fact the jury were warranted in discussing'.- It was not permissible to impeach the verdict of the jury by testimony of jurors showing what use was made of testimony legally before them. Such an inquiry is not within the scope of the statute on misconduct of the jury. Sims v. State, 96 Tex. Cr. R. 519, 258 S. W. 165.

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.