author: KRUEGER, Judge. LATTIMORÉ, Judge.

text:
    BRATCHER v. STATE.
    No. 16159.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1934.
    Rehearing Denied March 14, 1934.
    McLean, Scott & Sayers, of Port Worth, for-appellant.

      Uloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of the offense of robbery, and his punishment assessed at confinement in the state penitentiai-y for a term of eight years.

The testimony adduced upon the trial reveals the fact that the appellant and his nephew, Olin Bratcher, on the 20th day of October, 1932, robbed the Bryson State Bank. The appellant testified in his own behalf admitting his participation in the robbery of said bank, but asserted that he did so under duress in that his nephew with a pistol threatened him and forced him to assist in the robbery. The nephew, Olin Bratcher, testified that he did not threaten or coerce the appellant and that he did not stick a pistol in the ribs of his uncle, the appellant, and threaten to kill him if he did not assist in the robbery.

By bill of exception No. 1 the appellant complains of the action of the trial court in overruling his application for a continuance by reason of the absence of W. S. Eant, president of the First National Bank of Weather-ford, Tex., by whom the appellant expected to prove that said witness' was personally' acquainted with the defendant, that defendant’s credit was good for $750 to $1,000, and that his reputation for truth, veracity, and honest dealings was good. He ayerred that said witness was ill and confined to his bed as disclosed by a doctor’s certificate under whose care he' (the said witness) was, and which is attached to the application. The court’s qualification to said bill discloses the fact that one of appellant’s attorneys on Sunday afternoon, the day prior to the day of the trial, called the trial judge over the telephone and advised the judge of Mr. Fant’s condition, whereupon the court suggested that the defendant use Mr. George Fant, the active vice president of said bank, or the cashier or any of the other eight or ten employees of said bank. The qualification further shows that when the motion for the continuance was presented the county attorney agreed in open court that defendant could get a written statement from Mr. Fant, whether sworn to or not, and use it at the trial and that he (the county attorney) would admit as true the statements so made by Mr. W. S. Fant, but defendant declined to avail himself of the proposed agreement, insisting upon the presence of the witness at the trial. The court overruled said motion for continuance, and appellant excepted. It has been held by this court in the cases of Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491, Benson v. State, 38 Tex. Cr. R. 487, 43 S. W. 527, Hogue v. State, 65 Tex. Cr. R. 539, 146 S. W. 905, and Yarborough v. State, 66 Tex. Cr. R. 324, 147 S. W. 270, that the absence of character witnesses is no ground for a continuance.

By bill of exception No. 2 appellant complains of the" action of the trial court in permitting the state, after both the state and defendant had rested and before argument began, to reopen the case and place Olin Brat-cher on the stand and who denied having-threatened and coerced the appellant into assisting in the robbery of said bank. The court in his qualification to said bill states that the defendant’s counsel asked a reasonable time in which to reassemble his witnesses, which was granted by the court, but in a few minutes the defendant announced that he would not attempt to do so, and then filed his motion for a continuance. Article 643, C. C. P., provides for the introduction of testimony before the argument is concluded, gee, also, Cole v. State, 70 Tex. Cr. R. 459, 156 S. W. 929; Fluewellian v. State, 59 Tex. Cr. R. 334, 128 S. W. 621.

By bill of exception No. 4 appellant complains of the action of the trial court in interrogating the witness T. L. Stewart and developing the fact that Mr. Stewart was in charge of all the money in the Bryson Bank and that the same was taken without his consent, to which appellant objected for the reason that it was a comment by the court upon the weight of the evidence. As we view the bill of exception it fails to show any comment on the evidence by the court, but does disclose the fact that the court interrogated the witness and elicited from said witness the facts shown in the bill of exception, but this, to our view, does not disclose any error. However, we do believe it would be the better practice for the trial court to permit the district attorney to develop the state’s case and thereby avoid any possible impression of the court’s opinion of any testimony adduced by either the state or the defendant. Being of the opinion that the bill does not disclose any error, the same is overruled. See Milo v. State, 59 Tex. Cr. R. 196, 127 S. W. 1025, 1026; Drake v. State, 65 Tex. Cr. R. 282, 143 S. W. 1157.

Bills of exception 5 and 6 relate to the same matter as disdosed in bill of exception No. 4 and advance the same legal proposition, and are therefore overruled for the same reason. Bill of exception No. 7 is without merit and is overruled.

By bill of exception No. 8 the appellant complains of the action of the trial court in permitting the district attorney, over appellant’s objection, to ask the defendant on cross-examination if he had been indicted for forgery in Young county in the'year 1912. The court in his qualification to said bill states that the testimony was admitted because counsel for defendant on direct, examination asked the defendant whether he had ever been indicted for a 'felony during his lifetime, to which the defendant replied, “No/’ whereupon the district attorney on cross-examination asked the question objected to and to which appellant replied: “I was arrested there about 1912. I had forgotten about that matter. They arrested me for giving a check with my brother’s name signed to it by me.” If the state had originally elicited this evidence for the purpose of impeaching the defendant, it would not have been admissible because it was too remote, but the defendant voluntarily in his own behalf testified that he had never been charged with a felony in his lifetime ; that he was past 60 years of age and thereby sought to convey the idea that it was improbable and urireasonable to assume that he, at such an advanced age, would voluntarily and without being forced so to do depart from the straight and narrow path and engage in a bank robbery. It has been held by this court that, whenever material facts, are introduced which tend to affect the issue, the other side has a right to deny, contradict, or explain that testimony, showing its falsity or breaking its force and effect in any legitimate way. See Branch’s Ann. P. C. p. 62, and Gross v. State, 61 Tex. Cr. R. 176, 135 S. W. 373, 375, 33 L. R. A. (N. S.) 477. It was the appellant’s contention that he was forced by his nephew to assist in robbing the Bryson Bank, and to sustain his contention he testified on direct examination that he was past 60 years of age’ and had never been charged with a felony in his lifetime. If true, it would be unreasonable to assume that a man at his advanced age would voluntarily engage in violating the law. We 'believe that under such state of facts the state was well within its legal right in asking him the question and eliciting the testimony objected to.

By bill of'exception No: 9 appellant complains of the action of the trial court in asking the defendant, after the defendant’s counsel and the state had completed the examination of him, if he (the defendant) and Olin Bratcher, the codefendant, were still on friendly terms, to which appellant replied that they were. This bill of exception embraces in substance the same subject-matter and the same legal proposition embraced in bill of exception No. 4 and is here disposed of in the same maimer and for the same reason that we dispose of bill of exception No. 4.

Bills of exception 10 and 11 seem to be without merit and do not disclose any error whatever and are therefore overruled.

By bill of exception No. 12 appellant complains of the action of the trial court in refusing to permit him to file an application for a suspended sentence. There is no merit in this bill because the suspended sentence law does not apply to robbery cases. Article 776, C. C. P. See, also, Garreon v. State, 90 Tex. Cr. R. 572, 236 S. W. 985.

Bill of exception No. 13 relates to and embraces substantially the same subject-matter and the same legal proposition as disclosed by bill of exception No. 2, and is therefore overruled for the same reason as assigned under said bill.

By bill of exception No. 14 appellant complains of the action of the trial court in overruling his motion for new trial. It appears from the order overruling the motion for new trial that the court heard evidence upon the matters urged in said motion for new trial and after mature consideration of all the testimony adduced in support of said motion overruled the same. The testimony adduced upon the hearing of the motion for new trial is not made a part of the record in this case, and, not being before us, we cannot intelligently determine whether the court abused his discretion in overruling the same. It has been uniformly held by this court that the granting or refusing of a motion for new trial is within the sound discretion of the trial court, and,, in the absence of any showing that the trial court abused his discretion, no reversible error is shown.

No errors otherwise appearing from the record before us, the judgment of the trial court is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORÉ, Judge.

We have examined appellant’s renewed complaints in bills of exception 4, 5, 6, and 7 presenting objections to certain questions pro-1 pounded to witnesses by the court himselfi We observe nothing in any of the questions indicating any partisanship or hostile 'attitude on the part of the court. We would not feel inclined to reverse because in some case the trial court may have been of opinion that some point was not properly developed, or may not have himself understood what had taken place, and had asked a question or questions of witnesses.

As for the matter complained of in bill of exceptions 8, said bill does not show what answer, if any, was made to the question deemed objectionable. At least a hundred cases are cited under note 31, art. 667, Vernon’s Ann. C. C. P., holding that the bill itself must disclose facts showing the error in the proceeding complained of. Kalsky v. State, 37 Tex. Cr. R. 247, 39 S. W. 362; Dement v. State, 39 Tex. Cr. R. 271, 45 S. W. 917; Coffey v. State, 82 Tex. Cr. R. 57, 198 S. W. 326; Robinson v. State, 82 Tex. Cr. R. 570, 200 S. W. 162; Lowe v. State, 88 Tex. Cr. R. 316, 226 S. W. 674; Lane v. State, 89 Tex. Cr. R. 140, 229 S. W. 547. For this reason the bill is not sufficient to disclose reversible error. If, however, we look to the statement of facts, as appears was done formerly, we note that appellant was permitted to fully explain the matter asked about, and that same constituted no reflection upon him. This in addition to what we said in our original opinion. We are not able to persuade ourselves that in any of the matters brought forward there is ground for reversal, and the motion for rehearing is overruled.


source: Caselaw Access Project

author: KRUEGER, Judge. LATTIMORE, Judge.

license: Public Domain

text:
    GALLOWAY v. STATE.
    No. 16063.
    Court of Criminal Appeals of Texas.
    Nov. 1, 1933.
    Rehearing Denied March 14, 1934.

      Goodhue Weatherly, of Edinburg, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for- the State.
   KRUEGER, Judge.

Appellant was convicted in the county court of Jim Wells county for violating the game law, and his punishment assessed at a fine of $50.

The appellant was charged by an information that on or about the 1st day of July, 1932, in the county of Jim Wells and state of Texas, he, with others, did then and there unlawfully hunt wild deer by the aid of an artificial light, to wit, by the aid of a flashlight and spotlight, against the peace and dignity of the state.

By bill of exception No. 1 the appellant complains of the action of the trial court in declining to sustain his motion to dismiss the case because the court has not jurisdiction inasmuch as a conviction of said offense carries with it a forfeiture of his right to hunt for a period of 12 months and because it is an infringement of his constitutional right to bear arms (Const, art 1, § 23). Article 893 of the Penal Code provides as follows:

“Any person convicted of violating any provision of the game laws of this State shall thereby automatically forfeit his license for said season. Any such person so convicted of violating the game laws shall not be entitled to receive from the State a license to hunt for one year immediately following the date of his conviction; and it shall be unlawful for any person who is convicted of violating any of the provisions of the game laws of this State to purchase or possess a hunting license for a period of one year immediately following date of such conviction; and it shall also be unlawful for any person convicted of violating any of the game laws of this State to hunt with a gun in this State for a period of one year immediately following date of such conviction.
“Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred ($100.09) dollars, nor more than two hundred ($209.09) dollars.”

The statute does not confer upon the court the authority to forfeit defendant’s right to hunt. The right to hunt was automatically forfeited by a violation of the law and a conviction of defendant under said law. Now, does the law infringe the defendant’s constitutional right to bear arms? Although the defendant may be convicted of violating the game laws, he would still have his constitutional right to bear such arms as are not prohibited by the statute provided he did not employ said arms to engage in hunting.

By bills of exception Nos. 2 and 3, appellant complains of the action of the trial court in permitting the state to prove by the witness Trammel that he went out the next morning to where the appellant shot at a deer and found lots of deer tracks, to which appellant objected for the reason that it was too remote. • We do not believe the objection' is well taken, and therefore overrule same.

By bill of exception No. 4, appellant complains of the action of the trial court in refusing to instruct a verdict for the defendant. We do not believe the court committed any error in this respect, inasmuch as there was sufficient evidence to warrant a conviction.

The disposition we have made of bill of exception No. 1 necessarily disposes of bill of exception No. 5. Bills of exception Nos. 6, 7, and 8 are without merit and are overruled.

By bill of exception No. 9 appellant complains of the action of the trial court in permitting the county attorney to propound' the following question to the state’s witness-Phillip Trammel, to' wit: “Have you been in the habit of making unfounded charges that you could not back up with evidence?” To-which the defendant objected for the following reasons, to wit: “Because the question is leading' and suggestive of the desired answer to such question.and that said question calls, for a self-serving declaration of said witness,” which objections were by the court overruled, and the witness answered, “No.”" We do not believe the question and answer was subject to the objections leveled against the same.

By bill of exception No. 10, appellant complains of improper conduct on the part of the jury in receiving other evidence other than that introduced upon the trial and submitted to them under the ruling of the court. The trial court heard evidence upon the motion for new trial as to the matters complained of and qualified said bill of exception in the following manner: “The juror Balzer on being examined by the court stated that after hearing all the evidence from the witnesses, the argument of attorneys, and reading of the court’s charge, they believed the defendant was guilty as charged.” From the bill of exception it seems that the appellant complained that the jury in their deliberation "discussed whether an animal’s eyes could be seen by a person with the aid of an artificial light at night; that one of the jurors said that he had so- seen an animal’s eyes at night; and that the juror Balzer stated that he wondered why the other two men (meaning Burdett and Borman) were not called by the defendant as witnesses in the trial of ¡said cause, whereupon another juror, Mr. Gladney, warned said jury not to consider the same in arriving at the verdict. We do not believe the matter complained of was ■other and additional evidence, but was merely the discussion of the evidence introduced upon the trial. The fact that appellant was ■charged with using an artificial light to hunt with ánd the fact that the testimony showed that he used an artificial light would naturally cause the jury to discuss the question of whether an animal’s eyes could be seen by the use of an artificial light. The question raised by Mr. Balzer as to why the other parties with the appellant at the time he was alleged to have committed the offense were not called by the defendant to testify was not considered by the jury in reaching their verdict, inasmuch as the foreman of the jury, when the matter was spoken of by the juror Balzer, instructed the jury that they could not take such matter into consideration in arriving at their verdict. We do not believe that under the circumstances the court erred in refusing to set aside the verdict of the jury.

By bill of exception No. 11, appellant ■complains of the action of the trial court in not giving him sufficient time to examine the ■court’s main charge and present his objections thereto and thereby the court infringed upon his legal rights, but the court’s qualification to said bill of exception is as follows: “All the evidence in the cause was completed about 4:30 P. M., September 27, 1933. The jury was excused until 10 A. .M., September 28, 1933. Meanwhile the court prepared its ■charge and on the 28th day of September at 0 A. M. the court gave defendant’s counsel the charge. The counsel had said charge until lie voluntarily returned same to the court and at no time did he indicate that he had any objection.” We believe that with the court’s qualification to said bill it shows no reversible error.

The appellant for the first time in his amended motion for new trial attacks the sufficiency of the complaint and the information, in this, that the complaint and information ■do not charge the defendant with hunting with an artificial light in the nighttime. This necessarily requires a construction of article 802 of the Penal Code of this state, which-article reads as follows: “It shall be unlawful for any person at any time of the year to hunt deer or any other animal or bird protected by this chapter, by the aid of what is commonly known as a headlight or hunting-lamp, or by artificial light attached to an automobile, or by the means of any form of artificial light. Any person violating any of the provisions of this article shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum of not less than fifty ($50.00) dollars nor more than two hundred ($200.00) dollars, or by confinement in the county jail for not less than thirty (30) days nor more than ninety (90) days, or by both such fine and imprisonment. The possession of a headlight, or any other hunting light used on or about the head when hunting at night, between sunset and one-half hour before sunrise, by any persoh bruiting in a .community where deer are known to range, shall be prima facie evidence that the person found in possession of said headlight, or other hunting light, is violating the provisions of this article.”

Article 887 of the Penal Code provides as follows: “It shall be unlawful to kill, hunt or shoot at any wild bird, wild game bird, wild fowl, or wild game animal protected by this chapter at any season of the year, between one-half hour after sunset and one-half hour before sunrise in. any county in this State. Any person violating any provision of this chapter shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than twenty-five ($25.00) dollars, nor more than one hundred ($100.00) dollars, and each bird or animal so killed shall constitute a separate offense.”

It will be observed that article 887 prohibits hunting between-one-half hour after sunset and one-half hour before sunrise, and article 902 prohibits the' hunting at any time of the year by the aid of what is commonly known as a headlight or hunting lamp or by artificial light attached to an automobile or by means of any form of artificial light. It seems that the gist of the offense under article 902 is not the time’of hunting, but in the means employed, because article 887 prohibits the hunting at any time between one-half hour after sunset and one-half hour before sunrise, while article 902 prohibits the hunting with an artificial light. Manifestly the intention of the Legislature was to prevent the hunting by means of artificial light at any time because article 887 prevents the hunting at nighttime, that is, between one-half hour after sunset and one-half hour before sunrise. Hence we conclude that it was not necessary to allege in the complaint or information that defendant was hunting deer at nighttime by the use of an artificial light.

The appellant also complains that the evi-deneé is wholly insufficient to warrant the conviction. We have carefully reviewed the statement of facts and conclude that the evidence was such as to justify the jury finding the defendant guilty as charged.

Finding no error that would justify a reversal of this cause,' it is therefore ordered that the judgment of the trial court be, and the same is, in all things affirmed.

Affirmed.

PER CURIAM.

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

On Motion for Rehearing,

LATTIMORE, Judge.

Appellant has filed a motion for rehearing evidencing much research and care on the part of hi-s counsel, hut we find ourselves unable to agree with the propositions advanced. It appears to be conceded in the motion that the offense of appellant, if any, was a misdemeanor.

The jurisdictions of the state courts of Texas are defined in various sections of our Constitution. Original jurisdiction of felony cases is alone in district courts. See section S, art. 5, of our Constitution, which by express provision also confers on such courts original jurisdiction of misdemeanors involving official misconduct, but makes no mention of jurisdiction over any other misdemeanor cases than those involved in said exception. Section 16, art 5, of the Constitution confers original jurisdiction of all misdemeanor cases of which justice courts are not by. law given exclusive jurisdiction, and whose fines may exceed $200, upon county courts. This constitutional provision is also embodied in article 56, C. C. P. Section 17 of said article of the Constitution states' that prosecutions in county courts may be begun by affidavit or information, as may be provided by law. Articles 413, 414, and 415, C. C. P., by enactment of our Legislature provide for procedure for beginning prosecutions in the county courts by affidavit and information, as was done in the case before us.

We have again reviewed the record in the light of appellant’s motion, and his renewed insistence that the forfeiture of his hunting license and the consequent deprivation of his right to get a new license, or to hunt without one, would necessarily be part of and involved in the punishment inflicted, pursuant to conviction herein, and that as a result of such fact, it would be necessary that he be proceeded against by indictment —which he claims to be a logical inference from the terms of section 10, art. 1, of our Constitution. We cannot agree that the plain provisions of the Constitution above set out, relative to procedure in cases of prosecution in county courts, can be overridden by what at most is but a somewhat intangible inference arising from the language of said section 10, supra. While the trial court in this case, for reasons best known to himself, saw fit to incorporate in his judgment a statement that the right of the defendant to hunt with a gun in this state be and the same is hereby forfeited for one year from this date, we observe that no such issue was submitted in the charge to the jury, nor passed upon by the verdict of the jury, and in our opinion such statement in the judgment was clearly ultra vires and of no effect, and we so hold, and reform the judgment accordingly. Article 893, P. O., specifically provides that a conviction for violating any of the game laws of this state automatically forfeits the license of such party for such hunting .season, and forbids that such party shall get from the state any license to hunt for one year next following the date of such conviction. It follows that the license of appellant to hunt was or is forfeited by final conviction herein, and no need exists for the attempted insertion, as a part of the judgment herein, of any declaration that appellant’s license is hereby declared void or his right to hunt forfeited. We note that said article 893 specifically penalizes him who has been so convicted, who within said year thereafter purchases or is found in possession of a hunting licensé issued by the state, or who hunts with a gun in this state within such year; it being apparent that such provision has reference to a new and different offense from the one here charged against appellant, and for which he has been convicted.

Being -unable to agree with appellant’s contention, his motion for rehearing will be overruled.


author: KRUEGER, Judge.

text:
    BROWN v. STATE.
    No. 16489.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1934.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of selling intoxicating liquor, and his punishment assessed at confinement in the state penitentiary for a term of one year.

The testimony adduced upon the trial, briefly stated, is as follows: On the night of the 20th day of May, 1933,. Bill Hardy and R. W. Haynes were in the town of Lubbock-, Tex. During the time they were in the town they visited the pool hall together, and while there decided that they would like to have a drink of whisky. They saw the appellant out on the street and R. W. Haynes informed the appellant of his desire to buy some whisky. The appellant told Haynes that he had no whisky but thought that ¡he knew where they might get some, and walked away, but some time later came back and told them where he thought they could find whisky. He told them it was down at the ball park in the southeast corner of a little patch. They, the said Hardy and Haynes, went to that place and loohed for it and found one pint bottle in a Post Toasties box under a piece of tin. Haynes testified that he paid appellant $1 for the whisky, but Hardy testified that he did not see money paid nor did he pay a cent for the whisky which they found in the box under a piece of tin. The testimony further shows that the sheriff a few minutes later arrested Har* dy and Haynes and searched them apparently without any reason or probable cause and' took a pint bottle about two-thirds full of liquor from Mr. Haynes. The appellant testified in his own behalf, denying that Haynes paid him ⅞1 or any other amount, and denied placing the whisky at the place where Haynes and Hardy testified they found it.

There are no bills of exception to the reception of testimony, no objection to the court’s charge, and not even a motion for new trial in the record. We have examined the indictment and it appears to be in due form, and the testimony, although weak, seems to be sufficient to sustain the verdict of the jury.

No error appearing in the record, the judg-' ment of the trial court is in all things affirmed. ''

PER CURIAM.

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


author: CHRISTIAN, Judge. LATTIMORE, Judge.

text:
    ROLLINS v. STATE.
    No. 16282.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1934.
    Rehearing Denied March 14, 1934.

      H. A. Cline, of Wharton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

• It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Steve Lipkin by shooting him with a gun.

The parties involved were negroes. Deceased and appellant had been living together in appellant’s home. Shortly prior to the homicide a difficulty had arisen between the parties, in which deceased had attempted' to üjrow a lamp at appellant. The result was that appellant ordered deceased to leave her home. Taking his clothing with him, deceased went to a neighbor’s. As to the immediate circumstances surrounding the homicide,' the ■state’s testimony was, in substance,' as follows: Appellant drove to the neighbor’s house in her automobile and, upon entering the house, stated that she wanted a shirt deceased had carried away from her house. She said: “I am going to get the shirt because I bought it.” Deceased, who was in another room taking a bath, told her not to take the shirt. Appellant then took the shirt and started away, but before leaving the house, fired a ■shot from a pistol into the room where deceased was bathing. Entering her automobile, appellant started home. Deceased came out of the house dressed in his undershirt and trousers and followed appellant down to the road. He stated that he was going to get his shirt or die. Appellant told deceased not to come to her house. As she reached home appellant ■got out of her car and stepped upon the porch. Deceased came on toward her. At this juncture we quote from the testimony of one of the witnesses for the state as follows: “I watched him (deceased) go on down there then, and I couldn’t understand what they were saying, after he got to her house, but I saw Leona ■(appellant) laying off her hands to him like this (indicating) and he just kept coming on, and I said to myself that I wasn’t far enough, and I believe I will walk down the road a little closer, and I did and I seen her make a shot and when she made the first shot, he •broke and run right on to her, reaching out after her all the time, and when he finally fell, he was almost close enough to her to catch ■her; he just backed her back up on the gallery, and he was going full speed right in after her. I saw her shoot him four times, with ■a pistol. He fell at the last shot she made, •and died where he fell.”

Appellant testified that''she went to the neighbor’s house for the purpose of getting the shirt; that she did' not take a pistol with her; that she found when she reached the house that deceased had taken her pistol away and had it ,in his coat pocket; that when she got the shirt she also took possession of her pistol; that while in the neighbor’s house deceased attacked her with an axe, and she fired at him for the purpose of making him desist; that when he followed her to her home she told him to keep out; that deceased said he was going into the house or die; that he had one hand behind him and was coming toward her when she fired upon him the first time; that she believed he was going to kill her; that after she shot the first time he continued to advance until she had fired several shots;

Appellant insists that the evidence is insufficient to support the conviction; her position being that the proof on the part of the state discloses that she acted in self-defense when she fired the fatal shots. Wo are unable to agree with this contention. The question for the jury was whether appellant believed that she was in danger of death or serious bodily injury at the hands of deceased. Forrester v. State, 109 Tex. Cr. R. 361, 4 S.W.(2d) 966. The circumstances warranted the conclusion that the fatal «hots were fired because deceased had come to the home of appellant when she had commanded him to remain away.

Bill of exception No. 1 complains of the refusal of the trial court to permit appellant to prove by a bystander that he thought when deceased was going down the road behind appellant’s car that he intended to get killed or kill somebody. This testimony was inadmissible. Hanners v. State, 284 S. W. 554, and authorities cited.

In bill of exception No. 2 it is shown that appellant, for the first time in her motion for new trial, made complaint of certain argument of the district attorney. It is shown in the hill that no objection was made to the argument at the time it was made. Manifestly, the matter is not subject to review by this court.

Failing to find error, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant urges that regardless of the fact that she made no complaint by exception, of the argument of the state’s attorney, referred to in our former opinion, that its character was such as to be obviously harmful, and hence this court should take cognizance of same in the absence of an exception. Article 667, C. C. P., makes it obligatory upon one who wishes to complain of any procedure in the trial of a case, to take his proper exception, and if it be a matter relating to testimony, to tender his bill of exceptions “In order that such decision, etc., may be, revised upon appeal.” We are still of opinion, after again reviewing the facts, that same are sufficient to support the verdict.

The motion for rehearing will be overruled.


text:
    CAMERON v. STATE.
    No. 16420.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1934.
    Rehearing Denied March 14, 1934.
    See, also, 68 S.W.(2d) 499.
    R. O. Cameron, in pro. per.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of the offense of possessing a forged instrument with the intent to pass the same, and his punishment assessed at confinement in the state penitentiary for a term of three years.

The testimony adduced upon the trial shows that on or about the 25th day of March, A. D. 1933, the defendant entered the store of Brookshire Bros, at Mineóla, Tex., at night, and undertook to cash a check which read as follows, to wit: “Mineóla, Texas. March 25, 1933. First National Bank of Mineóla. Pay to order of R. C. Cameron Twenty-five and 35/100 Dollars $25.35. Mrs. Paul C. Smith.” The testimony .further shows that, after the defendant was arrested, there was. found in his possession another check which read as follows: “Mineóla, Texas. March 25, 1933. First National Bank of Mineóla. Pay to the order of R. C. Cameron Twenty-five and 35/100 Dollars $25.35. Mrs. Paul Smith.” Mrs. Paul D. Smith testified that about the last of March, 1933, on a Saturday, the defendant came to her home selling hosiery for the Real Silk Company. He had samples. She did not purchase any hosiery from him. He came there twice; the first time about 9 o’clock in the morning and then he came back at noon. She did not execute-a check to him for $25.35 or any other amount; that she did not sign and deliver to him a check signed Mrs. Paul C. Smith for $25.35, nor did she execute and deliver to him a check dated March 25, 1933, drawn against the First National Bank.of Mineóla, Tex., payable to R. C. Cameron in the sum of $25.35 and signed Mrs. Paul Smith, noi-did she authorize anybody to execute such check or checks. By the cashier of the First National Bank of Mineóla the state proved, that no person by the name of Mrs. Paul C. Smith carried an account with said bank. Ifr was further proven by the state by several witnesses that to their knowledge there was no person living in Mineóla by the name of Mrs. Paul C. Smith. The appellant did not testify.

There are no bills of exception in the record. The indictment seems to be sufficient, under the authority of Verner v. State, 117 Tex. Cr. R. 112, 35 S.W.(2d) 428, and the evidence seems to support the verdict of conviction.

It is therefore ordered that the judgment of the trial court be, and the same is, in all things affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant has filed in his own behalf a well written motion for rehearing, accompanied by copies of documents which have been examined and their contents noted. We are not led, however, to believe from any of them that the opinion of affirmance in this case was not fully sustained. We think to the contrary.

The motion for rehearing will be overruled.


author: LATTIMORE, Judge.

text:
    MOORE v. STATE.
    No. 16491.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    Bozeman & Cathey, of Quitman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for assault to murder; punishment, two and one-half years in the penitentiary.

We see no reason for discussing the facts in this case further than may be necessary to set forth our reasons for our decision. The fourth paragraph of the charge of the court below is as follows:

“Serious bodily injury is such an injury as causes apprehension of death.”

Appellant excepted to the giving of such charge. This charge clearly gave an incorrect definition of “serious bodily injury” as has been often held by this court. See Bruce v. State, 41 Tex. Cr. R. 27, 51 S. W. 954; McKee v. State, 93 Tex. Cr. R. 217, 246 S. W. 1035; Schutz v. State, 96 Tex. Cr. R. 287, 257 S. W. 880; Maynard v. State, 98 Tex. Cr. R. 204, 265 S. W. 167; Holcomb v. State, 98 Tex. Cr. R. 456, 265 S. W. 1039; Vega v. State, 102 Tex. Cr. R. 37, 276 S. W. 1104. “Serious bodily injury,” in our legal nomenclature, means, the injury must be grave, not trivial, such an injury as gives rise to apprehension of danger to life, health, or limb. Section 1583 of Mr. Branch’s Annotated P. C. cites numerous decisions upholding this definition. Throughout his charge the court based appellant’s right to act in self-defense upon an attack made by Fammell which threatened the life or to do serious bodily injury to this appellant. Such a charge might not be cause for reversal if the facts showed without dispute that the claim of self-defense was against such an attack as would reasonably cause death or apprehension thereof, but we have here no suoh case. Under the testimony of the state, Fammell was making no attack upon appellant when the latter shot him. Under appellant’s testimony Fammell drew a knife and advanced upon him, and continued to advance after being warned not to come any further, and while so advancing appellant says he shot. The size of the knife or its kind or character was not inquired into; nor did appellant say he shot to keep Fammell from killing him, or because he thought Fammell was going to maim or kill him. He merely said Fammell was coming on him with a knife. It must be reasonably apparent that under such circumstances a charge restricting appellant’s right to defend himself to a situation in which he was attacked, or believed himself to be attacked in such manner as to threaten his life or to do him serious bodily injury, was more onerous' than required by law and placed a greater burden .upon appellant than he was required to bear.

For the error in giving the charge mentioned, the judgment will be reversed and the cause remandéd.


author: HAWKINS, Judge.

text:
    HUDGINS v. STATE.
    No. 16393.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    Sam H. Townsend, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State;
   HAWKINS, Judge.

Conviction is for rape; the punishment, ten years in the penitentiary.

Appellant was charged with rape on Edna Earl Alexander, who was under the age of consent, the proof showing that she was thirteen years of age at the time of the alleged offense. In the indictment it was averred that the offense was committed on or about the 27th day of May, 1932.

Prosecutrix testified to three acts of intercourse with appellant, one occurring in the latter part of May or the first of June, another in August and still another in November, all in the year 1932. After the evidence was all in, appellant, by written motion, called the court’s attention to the fact that prosecutrix had testified to the three acts mentioned, and that each act was a separate offense, and requested the court to require the state to elect upon which act it would rely for a conviction. The court overruled the motion, giving as his reason that all three acts occurred within one year prior to the date upon which the indictment was returned.

The court fell into error in refusing to require an election by the state. This may have been caused by confusing the principle controlling elections with that regarding the reception of evidence showing more than one transaction if all occurred within the period of limitation. It is unnecessary to discuss or restate the rule of election. It has been written on many times. See Branch’s Ann. Tex. P. C., § 444; Crosslin v. State, 90 Tex. Cr. R. 467, 235 S. W. 905; Turner v. State (Tex. Cr. App.) 20 S.W.(2d) 764; Stone v. State, 45 Tex. Cr. R. 91, 73 S. W. 956; Cloninger v. State, 101 Tex. Cr. R. 1, 274 S. W. 596; Johnson v. State, 110 Tex. Cr. R. 292, 8 S.W.(2d) 121; Banks v. State, 93 Tex. Cr. R. 117, 246 S. W. 377. It cannot be held that the error was harmless in view of the penalty assessed.

The judgment is reversed and the cause remanded.


text:
    DAVIDSON v. STATE.
    No. 16214.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1934.
    Rehearing Denied March 14, 1934.

      Wiley L. Caffey, of Abilene, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is-theft of cattle; the punishment, confinement in the penitentiary for two years.

R. M. Waggoner owned a ranch in Stonewall county on which he had about four hundred head of cattle. Travis Parnell looked after the cattle. He testified that the animals alleged to have been stolen were last seen by him in September, 1932. In the latter part of October, 1932, the sheriff found four head of cattle in the pasture of J. M. Golston. These cattle had been freshly branded over some old brands. On making an inspection of the animals, Mr. Waggoner identified them as his property. It appears that the old brands belonged to Mr. Waggoner. Mr. Golston testified that appellant had stayed at his place from time to time, but had left some time in August, 1932, for the purpose of working on a road at Guthrie. He said that, when the sheriff discovered Mr. Waggoner’s cattle in his pasture, he told him that he thought they were appellant’s cattle. The sheriff testified that ■upon-finding the cattle in Mr. Golston’s pasture he'had a conversation with appellant concerning the ownership of the animals. He said appellant told him that they were his cattle and that he had bought them from Henry Coody of Knox City; that he had changed •the brands and had' taken the cattle to the •Bingham pasture; that the last time he saw them they were on the river; that he had bought the cattle about the 6th of July; that he did, not see them any more until they were found in the Golston pasture; .that he branded the cattle some time in September. The sheriff further testified that Henry Coody died July 15, 1932.

Appellant did not testify in his own behalf. His witness Hill testified that appellant had advised him that he had an opportunity to trade for some cattle that Henry Coody had; and that he told appellant he could trade some of his stock in if he desired. The proof was further to the effect that appellant made no effort to hide the cattle during the time' they were in Golston’s pasture.

Appellant contends that the falsity of the explanation he made to the sheriff concerning his purchase of the cattle is not shown. We are unable to agree with this contention. It is observed that appellant stated that he bought the cattle from Coody. Coody died July 15, 1932. Further, ⅛ is observed that Travis Parnell, who took care of Mr. Waggoner’s cattle, testified that the animals alleged to have been stolen were in Mr. Waggoner’s pasture on September 26, 1932. He said: “I remember the 26th of September because I was rounding up cattle and doctoring screw worms, and I remember seeing these two identical cattle on the 26th of September. I do not recall ever seeing them on the ranch between that time and the time I saw them in the Golston pasture.” The jury were warranted in concluding that the cattle were in Mr. Waggoner’s pasture on the 26th of September, as testified to by the witness Parnell. Manifestly, the testimony mentioned directly contradicted the statement appellant made to the sheriff concerning his purchase of the cattle from Coody. There could not have been a purchase from Coody after July, 1932, as Cody died during that month. In connection with this testimony, the jury were warranted in considering appellant’s action in changing the brands on the cattle. A further circumstance tending to show the falsity of appellant’s explanation was the fact that he branded the cattle during the month of September, 1932, that being the month they were apparently taken from the possession of Mr. Waggoner.

Bill of exception No. 1 relates to the action of the trial judge in overruling the application for a continuance. In the qualification to the bill it is recited that at the time the application was presented to the court it contained no averment that appellant expected to procure the attendance of the witnesses at the next term of the court, and contained no averment that the witnesses were not absent by the procurement or consent of appellant; and, further, that it was not stated therein that there was no reasonable expeetation that the attendance of the witnesses could be secured during- the term of the court by postponement of the trial to some future day of the term. Manifestly, as qualified, the bill of exception fails to reflect error. The application for continuance was fatally defective.

We do not think appellant’s contention that there is a variance between the allegation and proof as to possession should be sustained. Possession was alleged in R. M. Waggoner. He testified that the ranch from which the cattle were taken was in his charge and under his control. Further, he said that the cattle were taken from his care and control. He said: “Yes, sir, I ¡had these cows under my care and control.” He stated that Travis Parnell had charge of the ranch and looked after the cattle, being in his employ. Mr. Parnell testified that he looked after Mr. Waggoner’s cattle. If appellant had developed the matter, he might have shown that possession should properly have been alleged in Parnell. However, under the circumstances, we think Mr. Waggoner’s testimony to the effect that the animals were under his care and control supports the allegation in the indictment. See Haney v. State, 117 Tex. Cr. R. 560, 36 S.W.(2d) 1033.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant insists that the proof does not make out a case of guilt. The facts are set out in our former opinion. Mr. Parnell swore that the alleged stolen cattle were in Waggoner’s pasture on September 26, 1932, and that they bore Mr. Waggoner’s brand. The same cattle were found the latter part of October in Mr. Golston’s pasture with their brands changed. Appellant admitted changing the brands of the cattle, and explained his possession of said cattle, and his claim that they were his, and that he had a right to change their brand, by saying that he bought the cattle in question from Henry Coody. The state replied by proof that Mr. .Coody was killed in an automobile accident in July, 1932. This sufficiently showed the falsity of appellant’s claim of purchase. This court has held in authorities too numerous to mention that the possession of recently stolen property is a sufficient circumstance to justify the conclusion of guilt of the possessor, of the theft of such property. It seems well established also that, when the state relies upon proof of such fact to make out guilt, the proof must further show that, if the accused, when his possession of such property was first challenged, made an explanation which was natural and reasonable, and probably true, which might operate to rebut the inference of theft based on the proposition of recent possession, that such explanation was in fact false. We think the state’s proof in this case entirely negatives the possibility of appellant having bought the animals in question from Mr. Coody in July.

The motion for rehearing will be overruled.


text:
    BROOKS v. STATE.
    No. 16462.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1934.
    Rehearing Denied March 14, 1934.
    Frank M. Tinkham, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of the offense of murder, and his punishment assessed at death.

The testimony adduced upon the trial is substantially as follows: The appellant and deceased, Ollie Bee Morris, are negroes and had lived together as husband and wife, although not legally married, for about five or six years up to within about a month prior to the time the appellant is alleged to have killed deceased. On the 5th day of May, 1933, deceased was employed by Mrs. McKenzie and that morning while en route to her work she boarded a street car. The appellant also boarded' said car at Travis street and Franklin avenue and took his seat just to the rear of the seat occupied by deceased and another woman. He tapped deceased on. the shoulder and asked her to come and sit by him as he wanted to talk to her, whereupon the woman who occupied the seat beside deceased moved over to a seat across the aisle and just a little to the rear, and the appellant went'over and took the seat by the side of deceased. After riding some distance, the street car stopped and both the appellant and deceased started towards the front of the car apparently with the view of dismounting. In going to the front of the car deceased was ahead and the appellant was in the rear of her shoving her along in the aisle. When they reached the front of the car, deceased begged the operator of the street car not to let appellant take her off of the car. The operator then took his controller key and asked appellant to leave her alone, at which time deceased turned and started back down the aisle towards the rear of the ear.. The appellant immediately followed her, caught her, and stabbed her. The operator upon seeing what the appellant was doing rushed to the aid of deceased and struck appellant on the head with the controller key which apparently stunned him. Deceased then jumped from the car and ran. Appellant also jumped from the car and ran after her, overtaking her when she fell on the sidewalk, and while she was on the ground he bent over her and stabbed her several times, inflicting wounds upon her body which resulted in her death. After the appellant had stabbed her several times and after the operator of the car had struck him with the controller key and while she was lying on the sidewalk bleeding, the appellant left, going up the street. Mr. C. O. Cheshire, who was some short distance from the scene of the difficulty, saw appellant leave the girl lying on the ground and overtook him after he had walked about one' and one-half blocks, stopped him, and asked him if he was “the boy who hurt that girl,” to which the appellant replied, “Tes,” whereupon Mr. Cheshire said to him, “Come on back down there with me, you are liable to have hurt that girl,” whereupon the appellant replied, “I hope she is dead when we get back down there.”

The defendant interposed the plea of self-defense, claiming that the deceased at the time had a knife and endeavored to cut him. The testimony, however, further shows that deceased was a small woman weighing about 95 pounds and had no knife or weapon of any kind, while the appellant weighed about 140 to 150 pounds.

By bill of exception No. 1 the appellant complains of the action of the trial court in permitting the state to prove by Mr. Cheshire that he overtook the defendant about one and one-half blocks from the scene of the alleged homicide and asked him if he was the “boy who hurt that girl,” to which appellant replied, “Yes,” whereupon the witness fold the appellant, “You come back down there with me, you are liable to have hurt that girl,” whereupon the appellant replied, “I hope she is dead when we get back down there.” The bill of exception was prepared by the court and shows that the statement was made by the appellant to said witness within seven or eight minutes after the appellant had killed deceased and had walked a distance of one and one-half blocks. The court admitted said' testimony over the objection of the appellant upon the ground that it was res gestae of the arrest. The court’s statement that it was res gestae of the arrest is, to Our view, not exactly correct, but we do agree with the court that it was a res gestae statement and was admissible although the defendant was under arrest at the time, was not warned, and the statement was not reduced to writing and sworn to as required by statute. Judge White, in passing upon a similar question in the case of Powers v. State, 23 Tex. App. 42, 5 S. W. 153, 157, said: “To our minds this explanation is entirely satisfactory, and shows sufficient reason for the admission of the testimony, the object of which was to establish the probable feelings of defendant toward deceased, and to discover and illustrate the motive for his actions at the time of the homicide. * * * ‘Incidents which are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act. * * * Instinctiveness is the requisite; and when this obtains the declarations are admissible.’ ” Judge Davidson, speaking for this court in the case of Johnson v. State, 46 Tex. Cr. R. 291, 81 S. W. 945, 946, involving almost the identical question presented here, said: “Of course, this evidence was not admissible as a confession, because defendant was under arrest and liad not been warned. This is recognized by the court and therefore he certifies it was res geste. * * * It is not clear from the statements of the bill how long this occurred after the transaction, but if could not have been a very great while, for the court says, a very few minutes. We are of opinion the admission of this testimony was correct.” So in the case under consideration the testimony objected to was not admissible as a confession because the defendant was under arrest and had not been warned, but it is clear from the bill of exception that the defendant had only walked from the scene of the difficulty one and one-half blocks when he was overtaken by the witness and requested to return to the scene of the difficulty, whereupon he replied, “I hope she is dead when we get back down there.” This testimony tended to establish the feeling of the defendant toward the deceased and to illustrate the motive of his actions at the time of the homicide. Hence, we are of the opinion that the testimony was admissible as a part of the res geste, and in support of the views herein expressed we refer to the following authorities: Gantier v. State (Tex. Cr. App.) 21 S. W. 255; Weathersby v. State, 29 Tex. App. 278, 15 S. W. 823.

No reversible error appearing in the record, the judgment of the trial court is in all things affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant complains of our disposition of the only bill of exceptions appearing in the record. We have again gone over said complaint in connection with the motion. The bill of exceptions referred to is not very clear, and we have had some difficulty in determining therefrom just exactly the point of appellant’s complaint, but we take it that he is offended by the reception of testimony as to a statement made by him, in effect, that he hoped his wife would be dead when he got back to her. Mr. Crook testified that appellant was brought back by Mr. Cheshire, not an officer, who accompanied appellant back to the place where the stabbing occurred, some seven or eight minutes after the killing. Mr. Cheshire testified, that he met appellant about a block and a half from where the stabbing took place, and told him he had better go back with him down there and see about the woman’s condition. They had gone but a little way when appellant made the remark which seems to be the subject of this objection. Appellant had the bloody knife in his possession when he met Mr. Cheshire. He made the statement almost immediately after they started back to the scene of the killing. We think the conclusion, expressed in our original opinion, that this was part of the res gestas, is supported by the facts, and that the motion for rehearing should be overruled, and it is accordingly so ordered.


author: CHRISTIAN, Judge. DATTIMORE, Judge.

text:
    NOGUEIRA v. STATE.
    No. 16287.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1934.
    Rehearing Denied March 21, 1934.

      See, also, 59 S.W.(2d) 831.
    •Oren Parmeter, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is making a false entry in a book of accounts; the punishment, confinement in the penitentiary for two years.

The indictment follows the form embraced in Willson’s Texas Criminal Forms (4th Ed.) being form No. 450, found on page 235. The charging part of the indictment reads as follows; “M. V. Nogueira, on the 2nd day of January in the year of our Lord One Thousand, Nine Hundred and Thirty with force and arms, in the County and State aforesaid, did unlawfully and with the intent to defraud J. B. Finks, District Clerk in and for Pallas County, Texas, make and caused to be made a false entry in a certain book then and there kept as a book of accounts by the said M. V. Nogueira, said book of accounts, then and there belonging to and used in connection with the business of J. B. Finks, District Clerk in and for Dallas County, Texas, known as cash book Number 19, 1930, District Clerk, Dallas County, which said false entry was then and there and is to the tenor following: under date January 2, page 1, line 1, under the heading sundries, the figures '66497.04 (said figures 66497.04 being false) thereby meaning and intending that the cash account under the heading ‘sundries’ of the said J. B. Finks, District Clerk in and for Dallas County, Texas, on January 2nd, 1930, had only the sum of $66,497.04 Dollars, whereas in truth and in fact the said sundries account of the said J. B. Finks, District Clerk in and' for Dallas County, Texas, did on January 2, 1930, and at the time said entry 66497.04 was made as aforesaid have the sum of $67,497.04 cash and the said entry of 66497.04 was false, and the said M. V. No-' gueira knew said entry was false when he made and caused the same to be made.”

The motion to quash the indictment embraced several grounds, most of which involved the contention that the offense was not set forth in plain and intelligible words, as required by article 396, C. C. P. We think the motion was properly overruled, and express the opinion that the pleader explicitly charged all that was essential to constitute the offense. The law does not require minuteness of detail, but demands only that the particular offense be set out with such certainty that a presumptively innocent man seeking to know what he must meet may ascertain fully therefrom the matters charged against him. Middleton v. State, 114 Tex. Cr. R. 263, 25 S.W.(2d) 614, and authorities cited.

Appellant earnestly insists that the evidence is not sufficient to support the conviction. Looking to the testimony, it is observed that appellant, who- was chief deputy district clerk of Dallas county during the years 1929 and 1930, received and paid out money for the district clerk and kept the cash books. Cash book No. 18, which carried the cash account under the head of “Sundries” for the year 1929, showed an entry at the close of the year, in appellant’s handwriting, of $67,497.-04, representing that the account had in it the amount of money indicated. The first entry in cash book No. 19 for the year 1930 under the head of “Sundries” was in appellant’s handwriting, and indicated that the grand total of cash for the year 1929 was $66,497.04, which was at variance with the entry of December 31, 1929, in cash book No. 18, there being a discrepancy of $1,000. Upon being questioned by the district clerk, appellant stated to him that he (appellant) had been short in his accounts in the approximate sum of $1,300. The clerk testified that he could not say of his own knowledge that there was a shortage in the funds. He further testified that it was his recollection, that appellant stated to him that he had put the money back. One of the deputy clerks testified, in part, as follows: “When I noticed the shortage on the sundries account the next thing I did was to verify the totals on the 1930. When I noticed this discrepancy of ‘67’ against ‘66’ here, the next thing I did was to run these totals on the adding machine which are the only two totals and when I did I found it balanced. I was looking to see if there was any discrepancy in the figures and came back and checked those and found this total had been carried forward short one thousand dollars; this total is $142,958.89 in the bank. I checked this total and found it was short a like sum in the bank account column. This is cash book 18 and it is December 31, 1929 and it was $142,958.89. In cash book 19 it is $141,958.89. This is ‘142’ and this ‘141,’ a discrepancy of one thousand dollars.”

Referring to a conversation had with appellant concerning the entries, the witness testified as follows: “He (appellant) discussed those items in cash book 18 and cash book 19 under the sundries heading which we had been discussing and admitted they were wrong and said he had made them. He said that he made those entries so as to straighten up his account, the bank account with the cash book account. He said he was short approximately $1,300. He said these particular entries were made for the purpose of covering up the shortage, clear up and balance his cash books with his cash account, to cover up the shortages that had already been occasioned further back, and he admitted that this entry ‘66’ was false.”

On cross-examination the witness said: “I don’t know whether the sundries account balance, the balance of sundries account in cash book No. 18 is correct or not. I don’t know whether the opening entry in cash book 19 of the sundries account is correct or not. It isn’t the correct total that he wound up with in 1929. The entry in cash book 19, the first entry is not correct; according to my knowledge of the records it is 'not correct.”

The witness further testified on cross-examination that a complete audit of the books had been made by the county auditor, and that no discrepancy' had been found by him.

Appellant did not testify in his own behalf, and introduced no witnesses.

We are unable to reach the conclusion that the evidence is insufficient. Appellant’s admission that the entry was false and was made for the purpose of covering up a shortage due to his act in taking funds belonging to the account appears to be sufficiently corroborated by the other facts and circumstances in evidence.

Bill of exception No. 8 presents the following occurrence: Appellant did not testify in his own behalf. The district attorney, in his argument, displayed appellant’s .application for subpoenas for witnesses and stated to the jury that appellant had offered no testimony, notwithstanding the fact that he had witnesses in attendance upon court. The objection to the argument was that it constituted a comment on the failure of appellant to testify. The bill is qualified by the court with the statement that the district attorney made no reference to the failure of appellant to testify. The opinion is expressed that the bill fails to show that the district attorney commented on appellant’s failure to testify.

In bill of exception No. 9 it is recited that the district attorney stated in argument that, if the state had tried to show other shortages, such testimony would not have been admissible. The bill is qualified to the effect that the district attorney made no reference to any other shortage on the part of appellant. As qualified, the bill fails to reflect error.

We deem it unnecessary to discuss the other bills of exception found in the record. We have carefully examined all of appellant’s contentions.

Failing to- find reversible error, the judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

DATTIMORE, Judge.

Appellant insists that the record fails to show whether the last entry in the sundries account in cash book 18 is false, or the first entry in the same account in cash book 19. We are not concerned with the entry in book 18, save as it shed light on the averment in the indictment that appellant made and caused to be made a false entry in cash book 19 under date January 2,1930, by writing as follows: “Under the heading Sundries, the figures $66,497.04, (said figures $66,497.04 being false),” etc. It is true that the indictment does state that at the time of said last-mentioned entry the sundries account had $67.-497.04 cash, but such allegation would not of necessity compel proof thereof as a predicate to a finding by the jury of the falsity of the entry alleged to be false. We think the testimony does show that the first entry in .book 19 under the head of “Sundries” was false.

There were only two witnesses. Mr. Cloud swore that, from his knowledge of the records, the first entry in book 19 under the head of “Sundries” was not correct.- He also swore that appellant admitted to him that the first two figures, viz., the figures 66 in the entry of the item $66,497.04 in said book 19, were false. He testified that appellant said he was short approximately $1,300. The testimony shows that there were two entries of totals in the sundries account in books 18 and 19, book 18 being closing up entries for the year 1929, and book 19 containing the new entries carried forward- from 1929 into the new year, and that these two items each varied in the sum of $1,000. from the entries thereof in the old and new books. Speaking exactly, the last entry on cash book 18 in the sundries account was $67,497.04, and the last entry in said book in the bank account was $142,958.89. In book 19 the first entry in -the sundries account was $66,497.04 — $1,000. less than the last entry in the same account at the close of the. books in December; the first entry in the hank account in cash book 19 was $141,958.89 — $1,000 less than the entry made in the corresponding account in book 18 at the close up of the year 1929. We think these facts, coupled with appellant’s admissions, and the testimony of the two witnesses, show beyond question that the entry alleged herein to be false was in fact false.

I We have again reviewed the complaint in bill of exceptions 9, and are constrained to •hold that it was correctly disposed of in our former opinion. The court qualified said bill, and there was no exception to his qualification. Giving effect to same, this court must hold that what was said by the state’s attorney had no reference to any other shortage than that involved in the account whose entry was alleged to be false.

Being unable to agree with any of appellant’s contentions, the motion for rehearing will be overruled.


text:
    HOOVEL v. STATE.
    No. 16294.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1934.
    Rehearing Denied March 14, 1934.

      Hughes & Monroe, of Dallas, for appellant.
    W. C. Dowdy, Co. Atty., Leon O. Moses, Asst. Co. Atty., both of McKinney, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of the offense of theft of property over the value of $50, and his punishment assessed at confinement in the state penitentiary for a term of four years.

On the 10th day of January, 1933, and for some days prior thereto, the appellant and one Mark V. Packard, alias L. E. Hull, were stopping at the Hilton Hotel in the city of Dallas. During the time they were staying at said hotel, they learned from one Frank Thompson that Mr. Lawrence Holcomb was the owner of some common stock of Cities Service Company, and the said appellant and the said Packard, alias Hull, went to see Mr. Holcomb, who resided at Prosper in Collin county, Tex., with the view of obtaining said certificates of stock. Prior to the time they went to see Mr. Holcomb they made arrangements with one Mr. Schwartz, a stockbroker in the city of Dallas, to sell said certificates of stock for them in the event they succeeded in obtaining it. On the 10th day of January, 1933, they went to Prosper to see Mr. Holcomb, the owner of said certificates of common stock of the Cities Service Company. Mr. Packard introduced himself to Mr. Holcomb as Mr. Hull and introduced the appellant as Mr. Hoovel. After such introduction, Mr. Packard, alias Hull, stated his purpose in coming to see Mr. Holcomb, and Mi-. Packard contracted with Mr. Holcomb under the name of L. E. Hull in the presence of and with the knowledge and acquiescence of the appellant. They proposed to Mr. Holcomb that they would give him one hundred shares of preferred stock of said Cities Service Company for three hundred shares of his common stock, which was finally accepted by Mr. Holcomb, and their agreement, which was reduced to writing, reads as follows:

“Made in Duplicate
“Authorization to Effect an Exchange of , Securities of Cities Service Company.
“I, as the owner of Three Hundred (300) shares of Cities Service Common Stock certificate Number U. L. 173048 — 173040, U. H. 34131 — 33668 hereto attached, authorize ‘ the holder of this agreement to effect an exchange for me and to deliver to me, in lieu of same One Hundred (100) shares of Cities Service Preferred Stock, this exchange being on the basis of one (1) share of preferred stock for every Three (3) shares of Cities Service Common Stock.
“It shall be understood in the acceptance of this exchange that the signer agrees to give reasonable time for the delivery of the securities covered by this order. Such time not to exceed Sixty (60) Days and that there are not 'to be no accrued or cumulative dividends during such exchange.
“It shall be understood further that the basis of the acceptance of this order is solely as represented by this written agreement and no other conditions shall be binding on either party hereto.
“Lawrence Holcomb
"Signature of Person Authorizing Exchange.
“Prosper, Texas,
"City, State.
“Accepted by
“L. E. Hull
“January 10⅛ 1933.”

Upon the consummation of the agreement, Mr. Holcomb transferred said certificates in blank and appointed John T. Clark & Co., 27 William street, New York, attorney to transfer said certificates of stock on the books of the Cities Service Company, and delivered said certificates to Mr. Packard, alias Hull. After they (the appellant and Packard) had obtained possession of said certificates, they returned to Mr. Schwartz’ office in the city of Dallas the next morning and in accordance with their previous agreement with the said Schwartz delivered said certificates of stock to him for sale, and he, within a few minutes thereafter, sold said certificates of stock for the sum of $900. The proceeds of said sale were then divided as follows: $300 to Thompson and Schwartz and $300 each to the appellant-and Packard, alias Hull. Packard and the appellant then left Dallas and went to the state of Oklahoma where they were arrested on or about the 7th day of February, and at the time of their arrest there was found in their possession documents containing the names of owners of Cities Service stock throughout Oklahoma and Texas. The appellant, while testifying in his own behalf, on cross-examination admitted that at the time they offered Mr. Holcomb to exchange one hundred shares of preferred stock for three hundred shares of his common stock they told him (the said Holcomb) that they would have to send said certificates to New York for exchange.

The appellant’s first contention is that the evidence is insufficient to sustain a verdict of coifviction of theft by false pretext. The constituent elements of theft by false pretext consist, first, in the obtaining of property by means of a false pretext; second, that at the time the property is obtained the accused had the intent to deprive the owner of the value of the same and to appropriate it to his own use and benefit; and, third, that, pursuant to said intent said property was appropriated by the accused to his own use and •benefit without the consent of the owner.

Under article 1413 of our Penal Code, the offense of theft may be committed in cither of two ways; that is, by obtaining.property from another by the use of any false pretext, or by obtaining property with the intent to deprive the owner of the value thereof and to appropriate said property to the use and benefit of the person taking same, and, when so appropriated, the offense of theft is complete. When we analyze the testimony adduced upon the trial in order- to arrive at the intent of ,the appellant at the time that he and his coprincipal acquired the certificates of stock, we must look to all the facts and circumstances transpiring prior to, at fihe time of, and subsequent to the transaction. The testimony shows that the appellant and Packard, alias Hull, had, prior to the time of their visit to Mr. Holcomb, obtained information from one Frank Thompson that said Holcomb owned some Cities Service stock. The testimony also shows that they had made arrangements with one Schwartz, a stockbroker in the city of Dallas, to sell said stock for them in case they succeeded in obtaining it. The testimony further shows that Mr. Packard introduced himself to Mr. Holcomb as L. E. Hull. This was done in the presence of and with the acquiescence of the appellant. They further represented to Mr. Holcomb that they '-were representatives of Henry L. Doherty & Co. of New York and that they had to send said certificates of stock to New York for exchange, but the evidence shows that they did not intend to send same to New York for exchange inasmuch as they had made arrangements with Mr. Schwartz prior to meeting Mr. Holcomb to sell said certificates of stock in case they succeeded in getting possession of same. These representations were pretexts upon which they acquired the possession of said certificates. Now let us analyze the testimony and see what was the intention of the parties when they went to see Mr. Holcomb with the view of securing said certificates of stock. They proposed to Mr. Holcomb to exchange one hundred shares of preferred stock of the Cities Service Company for three hundred shares of common stock of said company, but after they acquired said stock they immediately returned to the city of Dallas and the next morning proceeded to the office of Mr. Schwartz and had him sell said certificates of stock for them. He sold said certificates of stock within a few minutes time for the total sum of $900, the market price for common stock of Cities Service Company at that time. Out of the proceeds of said sale they gave Mr. Frank Thompson and Mr. Schwartz approximately $300 and the appellant and Packard each took $300, and then the appellant and the said Packard left for the state of Oklahoma, and, so far as this record discloses, they never made any effort to exchange said certificates of common stock for any preferred stock and that they did not intend to do so, as they had made arrangements with Schwartz to sell said stock before they ever acquired it and had him sell it after they acquired it, which clearly shows that the representation made to Holcomb that they would have to send it to New York for exchange was false. Besides, they parted with one-third of the proceeds of the sale of said certificates by giving to Mr. 'Thompson, who informed them of the fact that Mr. Holcomb owned said certificates of stock, and to Mr. Schwartz, who merely sold the same on the open market for them, the sum of $300. From the facts and circumstances as detailed, the only reasonable conclusion to be drawn therefrom by any rational mind is that the appellant and Packard, alias Hull, at and before the time that they acquired said certificates of stock from Mr. Holcomb, had in their minds the specific intent to deprive the said Holcomb, the owner of said certificates of stock, of the value of same and to appropriate it to their own use and benefit without the consent of the owner, and did thereafter appropriate it. Of course, the appellant contends that their intentions were good and their motives pure, but the odor which emanates from their acts and conduct is not like that of a bouquet of carnations. We believe that from a brief analysis of the testimony it is quite apparent to any rational mind that the same is sufficient to support the verdict of conviction.

By bill of exception No. 1 appellant complains of the following proceedings, to wit: While Holcomb was being cross-examined by the appellant’s attorney and after the contract between Holcomb and appellant’s eoprineipal had been introduced, the appellant propounded to the said Holcomb the following question: “At the time you delivered the certificates to Mark Packard it was your intention, was it not, Mr. Holcomb, that he dispose of these certificates any way that he saw fit, your only expectation being to receive one hundred shares of preferred .stock in return therefor? ” to which the state objected on the ground that the contract which had been introduced in evidence speaks for itself, and the further ground that it was •repetition, which objections were by the court sustained, and the appellant excepted. It appears from the record that theretofore the appellant’s counsel had propounded the following questions to Mr. Holcomb and the following answers were made, to wit:

“Q. At the time you delivered the possession of the certificates Mr. Holcomb you did not expect ever to see those certificates again, you had already transferred them and assigned them over to him, you had already signed the transfer? A. I had signed them for exchange, yes.
“Q. You did not expect to - ever receive them again or did you intend to receive them again. You expected to receive in exchange for these certificates of common stock one hundred shares of preferred stock? A. Stock.
“Q. My question is with reference to this particular certificate that was delivered and transferred in blank by you to Hull on January 10 'With the intention on your part to part with that certificate and to part with the ownership of the certificate, that is whát you intended? A. I intended to exchange it f0.1-preferred stock, yes.”

It appears to us -that this was clearly a repetition and that the witness Holcomb had been fully interrogated upon that point and had theretofore answered it three times. Hence we believe that the court was clearly within his legal right when he sustained the objection.

Bill of exception No. 2 relates to and embraces similar matters as bill of exception No-1, and the same is disposed of in the same manner without entering into a detailed discussion thereof.

By bill of exception No. 3 the appellant complains of the action of the trial court in permitting the state to propound the following questions to the witness Morris G. Gordon r “Did you ever see a pink slip authorizing one to effect an exchange of securities of Cities: Service .Company and do you know about Henry L. Doherty of the Cities Service Company putting out any contract or exchange agreements of that nature?” to which the appellant objected as being immaterial and irrelevant, which objection was by the court-overruled, and the witness answered, after stating that he was manager for Henry L. Doherty & Co. at Dallas, Tex., and selling Cities Service Company stock for said company: “My office has never had anything like this. As to other offices I do not know Brat my office never had anything in the nature of a receipt like this.” We do not believe that the court committed’ any error in overruling the appellant’B objection. The pink slip which was objected to was found in the possession of the appellant and his eoprineipal at the time of their arrest in the state of Oklahoma, which tends to show that Henry L. Doherty & Co. did not use any such contracts of exchange as appeared from said .pink slip of paper, and it was a circumstance, no matter how meager, for the consideration of the jury-in connection with all other facts- and circumstances introduced in evidence under the-ruling of the court.

By bill of exception No..' 4 the- appellant complains of the action of the trial court, in instructing the jury in his main charge as, follows: “You are instructed as a matter of law that under the terms of the contract introduced in evidence and signed -by Lawrence Holcomb that the title to the shares of stock delivered by him to defendant Hoovel and Mark Y. Packard, or either of them, did not pass until the said Lawrence Holcomb had received in exchange therefor one ¡hundred shares of Cities Service Preferred Stock” —to which the defendant objected on the ground that the undisputed evidence showed that it was the intention of Lawrence Holcomb to pass title to said stock and that it was the intention of the said Holcomb and the defendant to accept title to said stock and for the further reason that the stock certificates in question being transferred in blank by the said Holcomb immediately after the execution of the contract in question not only evidenced the intention on the part of the said Holcomb to pass title to said certificates of stock, but said transfer in blank, as a matter of law, amounted to an absolute transfer of title of said certificates of stock, which objections were by the court overruled. The intention of the parties must be gathered from the instrument itself unless the instrument is ambiguous and uncertain or incomplete. The contract expressly provides for an exchange of three hundred shares of common stock of the Cities Service Company for one hundred shares of preferred stock of said company. The word “exchange” has a well-defined meaning and should be construed and given the usual and generally accepted meaning. The word “exchange” was construed in the case of U. S. v. Rodenbough" (D. C.) 2; E.(2d) 781, 782, as follows: “‘Exchange’ means the giving of one thing for another. To constitute an exchange in a legal sense, the mutual transfers must be in kind, and any transaction into which money enters, either as the consideration furnished by one party or as a basis” for measuring the value of the thing transferred, is excluded.” The contract did not provide, and the court’s instruction to the jury did not require, that an actual physical delivery of the preferred stock to Holcomb should be effected before title passed, but that delivery of the preferred stock to the medium through whom the exchange was to be consummated would be necessary, and such delivery seems to have been in contemplation of all the parties to the contract at the time it was made, and to hold otherwise would be destructive of the very terms of said contract. It has been held by this court in the case of Smith and Coker v. State, 24 Tex. App. 1, 5 S. W. 510; Broxton v. State, 9 Tex. App. 97; Darbyshire v. State, 36 Tex. Cr. R. 547, 38 S. W. 173; Overly v. State, 34 Tex. Cr. R. 500, 31 S. W. 377, that it is within the province of the trial court to construe the legal effect and meaning of documents and other written instruments and a charge on such legal effect and meaning would not be a charge on the weight of the evidence. In view of the decisions referred to, we are of the opinion that the matter complained of in bill of exception No. 4 presents no reversible error.

By bill of exception No. 5 appellant complains of the action of the trial court in refusing to give his requested special charge which reads as follows: “You are instructed as part of the law in this case to be considered by you of equal force and effect as the main charge of the court, that if you believe or have a reasonable doubt thereof that at the time such certificates of Cities Service common stock were delivered by the witness Lawrence Holcomb to the defendant, E. A. Hoovel, and Mark Y. Packard, or either of them, if you so find and believe that said certificates of stock were so delivered, that at the time it was the intention of the said witness Lawrence Holcomb to pass title as well as possession of said certificates of stock, then you will find the defendant not guilty, or if you have a reasonable doubt thereof you will acquit the defendant.” The court in his main charge charged the jury as follows: “If you find and believe from the evidence that at the time the prosecuting witness Lawrence Holcomb delivered three hundred shares of stock in question to the defendant, E. A. Hoovel, and Mark V. Packard, or either of them, that he intended that title to said shares of stock should pass at that time, then you will find the defendant not guilty, or if you have a reasonable doubt as to this matter, you will give him the benefit of the doubt and acquit him.” We do not believe that the court committed any error in declining to give, the appellant's requested special charge inasmuch as the court in his main charge fully covered the subject-matter set forth in appellant’s requested special charge, and the court’s charge was more favorable to him than he was really entitled to under the following authorities: Contreras v. State, 118 Tex. Cr. R. 626, 39 S.W.(2d) 62, 63; Sherman v. State (Tex. Cr. App.) 62 S.W.(2d) 146, 148, and authorities there cited.

By bill of exception No. 6 the appellant complains of the action of the trial court in declining to submit his requested special charge, which reads as follows: “You are charged as a part of the law in this case, to be considered by yon along with tbe main charge of the court, that if at the time said certificates of stock in question were delivered to defendant, Hoovel, or Packard, or either of them, that it was the intention of the said Hoovel to comply with the terms of the contract theretofore executed by the said Lawrence Holcomb and accepted by Hoovel as of date January 10th and to make delivery within 60 days of the one hundred shares of preferred stock of said Cities Service Company, then you will acquit the defendant and say by your verdict not guilty, or if you have a reasonable doubt thereof you will give the defendant the benefit of said doubt and acquit him.” We find that the court in his main charge instructed the jury as follows: “If you believe that at the time the contract in question was executed by Lawrence Holcomb and at the time the shares of stock in question were delivered by the said Holcomb to the said parties or either of them, that the defendant intended in good faith to carry out the terms of said contract, then you are instructed that the defendant would not be guilty of the crime of theft as charged in the indictment and in that event you will return a verdict of not guilty, or if you have a reasonable doubt thereof you will find the defendant not guilty.” We do not believe that the court committed any error, inasmuch as the court in his main charge had fully instructed the jury as to the law on that phase of the case.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant urges that the proof shows that Lawrence Holcomb, the owner of the alleged stolen property, intended to part with both title and possession of his stock certificates (the alleged stolen property), and hence the ease, if anything, would be swindling and not theft. In this connection he also insists that the court below erroneously sustained the state’s objection to his question to Holcomb, set out in his bill of exceptions No. 1, as to what his 'intention was when he parted with said certificates. We think the matter covered by this question had already been answered, and that the court’s action in sustaining the state’s objection to it as repetition was correct. We note, however, that said bill is fatally defective in that it does not set out the answer expected from the witness. Smith v. State, 90 Tex. Cr. R. 24, 232 S. W. 497; Smith v. State, 82 Tex. Cr. R. 158, 198 S. W. 298; Knight v. State, 87 Tex. Cr. R. 134, 220 S. W. 333; Perea v. State, 88 Tex. Cr. R. 382, 227 S. W. 305; Kalsky v. State, 37 Tex. Cr. R. 247, 39 S. W. 362; Stroube v. State, 40 Tex. Cr. R. 583, 51 S. W. 357; Ellis v. State, 59 Tex. Cr. R. 630, 130 S. W. 171.

Even if Holcomb had testified that he intended to part with his property in exchange for other like property, this in no sense would have made appellant and his companion in getting the property, the owners thereof, nor would such testimony have supported the conclusion that appellant was not guilty of appropriation of the property when he sold it at once after obtaining possession of it. The property was put into the hands of said parties to exchange for other stock certificates, and Clark & Co. in New York were made the agents for the transfer of the stock certificates. There was nothing about "the transaction to indicate that Holcomb intended an express parting with his title, as well as possession of his property. The law of such a case is discussed in the recent case of De Blanc v. State, 118 Tex. Cr. R. 628, 37 S.W.(2d) 1024, in which many cases are referred to, including Anderson v. State, 77 Tex. Cr. R. 31, 177 S. W. 85, which appellant thinks is not the law. An extended note in 26 A. L. R. 384, cites many Texas cases in support of the proposition that one is guilty of theft who by fraud or a trick obtains possession of the property of another, intending at. the time to convert it to his own use. We are still of opinion that there was no error in the way the case was submitted in the charge , of the court.

The motion for rehearing will be overruled.