author: KRUEGER, Judge. HAWKINS, Judge.

text:
    WALL v. STATE.
    No. 16293.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1934.
    Rehearing Denied March 14, 1934.
    G. R. Smith, of McKinney, for appellant.
    W. C. Dowdy, Co. Atty., and Lepn 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 theft of an automobile, and his punishment assessed at confinement in the state penitentiary for a term of two years.

The testimony adduced upon the trial of the case is in substance as follows: On the evening of March 8, 1933, Dr. W. C. Wright made a professional call at the home of Mr. Boss Jackson. He went there in his Ford coupé which he parke'd on the side of Main street, and within a few minutes after the doctor had entered the home of Boss Jackson he was notified by Mr. Faulconer that some one had taken his coupé and driven it away, whereupon the doctor made an investigation and found his Ford coupé was gone. The car was taken from his possession without his consent. Mr. Faulconer testified that 'he lived next door to Mr. Jackson, and on the eve.ning of March 8th he observed Dr. Wright when he parked his car and entered the home of Mr. Jackson, and within less than five minutes thereafter he noticed two men on a motorcycle across the street from the car; that he saw one of them get into the car and drive away, going north, and the 'other man following close behind on the motorcycle. The officers were immediately notified and went in pursuit, and when they . reached a point about 4 miles out from Farm- ; ersville they observed the car turning off of the highway into a side road, where they found the car abandoned by the driver. They also found the appellant on his motorcycle about 150 yards from the abandoned ear and arrested him. The officers then noticed a man in a field near where the car was abandoned, and one of them fired his pistol, and ' they saw the man in the field stoop down or fall down. Bowerman Hendricks was soon thereafter arrested within two or three miles from the place where the Ford coupé was abandoned, and he had mud on his hands and ,up on his legs. Mr. Terry testified that he 'ran a filling station at Blue Ridge, which is about 11 miles from Farmersville, and on the afternoon of March 8th, about 4:30 or 5 o’clock, the appellant and Bowerman Hendricks appeared at his filling station on a motorcycle and purchased some gasoline, and when they left they went south toward Farm-■ersville. Mr. Tip Horton testified that he was not acquainted with the defendant, but he saw two men on a motorcycle at Rike’s filling station, which is a few miles from Farmersville, and one of the men resembled the defendant, but he could not swear it was the defendant; that when the two men left Rike’s filling station on the motorcycle they went towards Farmersville. The testimony further shows that the appellant was frequently seen on the highway riding a motorcycle. Bowerman Hendricks, the accomplice, testified for the state that he and defendant came from the Donna community to Farmersville on a motorcycle on the afternoon of March 8, 1933, and on the way to Farmersville they stopped at Blue Ridge and purchased some gasoline, find when they got near Farmersville they again stopped at a filling station located in the forks of the road and again purchased some gasoline. When they reached Farmersville, it was dark, and, after driving around a little, they noticed a Ford coupé parked beside, the street, and the appellant told him (the said Hendricks) to get it; that he (the said Hendricks) got off of the motorcycle, went to the car, got into the car, and started driving north with the defendant following close behind him on the motorcycle. When Hendricks reached a point about 4 miles north of Farmersville he turned off west on a dirt road because he thought the law was behind him; that he went but a short distance on the dirt road when he abandoned the car and walked into the field, and whilé in the field he heard a shot fired and he fell down and got a little muddy; that the defendant was just a short distance behind him when he turned off west on the dirt road.

The appellant’s first contention is that the evidence is insufficient to sustain the conviction in that the accomplice, Hendricks, is not sufficiently corroborated. We have carefully reviewed the statement of facts and reach the conclusion that the corroboration of the accomplice is sufficient, since it tends to show the appellant’s connection with the commission of the offense charged in the indictment. The appellant and the accomplice were seen on the afternoon of March 8th at Blue Ridge, some 11 miles from the town of Farmersville, on a motorcycle going in the direction of Farmersville; they were again seen within less than 4 miles of the town of Farmersville at Rike’s filling station on a motorcycle going towards Farmersville, and two men were seen on á motorcycle in Farm-ersville that night near where the car was parked. Mr. Faulconer saw two men on a motorcycle, and he observed one of them get into the car of Dr. Wright and drive north, and he saw the person on a motorcycle following close behind. The proof further shows that the officers were immediately notified of the theft of the ear and went in pursuit of same, and when they reached a point about 4 miles north of Farmersville they observed a car turning off into a side road where they found the doctor’s car abandoned by the driver; they also found the appellant on his motorcycle within 150 yards from the abandoned car. Again, there is testimony by the officers that they saw some party in a field close to the abandoned car, and, when one of the officers fired ¡his gun, the man in the field fell or stooped down. Hendricks, the accomplice who drove Dr. Wright’s car and abandoned it, testified that he was in the field, and when the gun was fired he fell down and got muddy. The officers who subsequently arrested him within two miles of the abandoned car observed that he had mud on his hands and on his legs. We believe that the facts and circumstances testified to by the disinterested witnesses sufficiently corroborate the accomplice, Hendricks, and tend to connect the appellant with the commission of the offense charged.

By bill of exception No. 1 the appellant complains of the action of the trial court in refusing to submit to the jury 'his special requested charge, which reads as follows: “You are instructed that in passing upon any fact in evidence concerning which you have a reasonable doubt, it is your duty to resolve that doubt in favor of the defendant.” We do not believe that the court committed any error in refusing to submit to the jury the appellant’s special requested charge, for the reason that the court instructed the jury as follows: “If you should find or believe from the evidence that the automobile in question was driven away by Bowerman Hendricks on the occasion in question and that the defendant was not present, or, if he was, that he was not acting with the said Hendricks as a principal, as that term is hereinbefore defined, then it would be your duty to acquit the defendant, or if you 'have a reasonable doubt as to whether he was present at said time and place, or that he was acting with the said Hendricks as a principal, then, in either event, you will give the defendant the benefit of the doubt and acquit him.” The court also charged that “the defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt, and in case you have a reasonable doubt as to defendant’s guilt you must acquit and say by your verdict not guilty.” We believe that the court’s charge fully protected the defendant’s legal rights and adequately presented the same to the jury. We therefore overrule the appellant’s contention.

By bill of exception No. 2 the appellant complains of the action of the trial court in overruling his abjections and exceptions to the court’s main charge. The bill of exception fails to show that the appellant’s objection to the court’s charge was in writing, and therefore cannot be considered.

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.

HAWKINS, Judge.

It is urged in appellant’s motion for rehearing that we were in error in holding that the accomplice witness, Hendricks, was sufficiently corroborated. This has made it necessary to again examine the statement of facts. After having analyzed the testimony as best we are able, our views have not changed 'regarding the matter, but have rather been confirmed. We observe one very significant statement made by the witness Fauleoner to which we did not advert in our original opinion. .He was the witness who passed down the street upon which Dr. Wright’s car was parked and saw two men standing by a motorcycle across the street from the car. He saw one man go across the street and get in the doctor’s car and drive it away and saw the other man follow on the motorcycle. Fauleoner testified: “I said that at the time r did not recognize them by name. * * * I had never seen the defendant that I know of before that time. * * * * . I had seen the Hendricks boy a few times but did not know him by name. I am telling the jury now in my opinion and best judgment that he (referring to appellant) was ' the one that was with the Hendricks boy, and the one that stood at the side of the motorcycle.”

We have no doubt whatever as to the sufficiency of the corroborating testimony.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: CHRISTIAN, Judge. LATTIMORE, Judge.

license: Public Domain

text:
    KEITH v. STATE.
    No. 16302.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1934.
    Rehearing Denied March 21, 1934.
    Earl M. Greer, of Wills Point, for appellant.
    Lloyd W- Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

An officer observed appellant stop his automobile in front of a drug store. On searching the car, he found therein about ten gallons of liquor.

Appellant contends that the proof on the part of the state failed to show that the liquor was intoxicating. On this point the officer testified as follows: “Of the whisky we found in the defendant’s car, about three ounces were in a bottle in the pocket of the door and the three cases containing the twenty half-gallons were in the turtleback.” The liquor was produced in court and introduced in evidence by the state. The language of counsel was: “The state now introduces in evidence the 20 half-gallons of whisky, as testified to by the witness J. H. Harris, as having been taken from the automobile occupied by the defendant E. M. Keith.” The opinion is expressed that the testimony of the officer disclosed that the liquor was whisky. The courts judicially know that whisky is intoxicating. Proctor v. State, 114 Tex. Cr. R. 383, 25 S.W.(2d) 350. It follows that the proof that the liquor was intoxicating is deemed to have been sufficient.

State’s counsel before this court objects to the consideration of the bills of exception found in the record on the ground that they were filed too late. Appellant’s motion for rehearing was overruled on the 26th of April, 1933. No order was entered during the term at which the trial was had granting additional time in which to file bills of exception. The term of court adjourned on the 13th day of May, 1933. In the absence of an order of extension, appellant had thirty days after the day of adjournment within which to file his bills of exception. Article 760, subd. 5, C. C. P. On July 12,1933, the court entered an order granting appellant an additional thirty days within which to file his bills of exception. The time allowed by law for filing the bills of exception expired June 12, 1933. Thus it is seen that the order of extension was not entered until a month' after the time allowed by law expired. The uniform holding of this court is that an order of extension Which is entered after the expiration of the time allowed by law, or theretofore fixed by an order of the court, for filing bills of exception, is ultra vires. Mireles v. State, 98 Tex. Cr. R. 396, 266 S. W. 418. The bills of exception were filed July 25, 1933. It follows that the objection of the state must' be sustained.

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.

This motion for rehearing was submitted on March 7,1934, at which time we were informed that the record would be corrected so as to enable us to consider the bills of exception, which we declined to consider in our original opinion because same were filed too late. We delayed action on the motion for rehearing, but no correction of the record has been made. We are of opinion that the case was correctly decided upon the record before us, and the motion for rehearing is overruled.


author: CHRISTIAN, Judge.

text:
    SULLIVAN v. STATE.
    No. 16527.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    Vernon Goodall, of Waco, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is swindling; the punishment, a fine of $50 and confinement in jail for two days.

The complaint contains no jurat of the officer administering the oath. Notwithstanding appellant filed a motion to quash the complaint, the jurat was not amended. After verdict appellant filed a motion in arrest of judgment. Upon this motion the county attorney testified that he in fact administered the oath to the party making the complaint, but failed to complete the jurat by signing his name thereto. At no time was the jurat amended, and the complaint appears in this record without the. jurat of the county attorney. It is well settled that the complaint is incomplete and insufficient to authorize the information unless it is accompanied by a jurat of the officer administering the oath. Stacy v. State, 96 Tex. Cr. R. 499, 258 S. W. 475. An amendment of the complaint is permissible; but where the fault consists in the absence of the officer’s jurat, to authorize the amendment there must be proof that the oath was administered. Stacy v. State, supra. In the present case, as already pointed out, the jurat was at no time amended. It follows that a reversal of the judgment must he ordered. The state’s attorney before this court confesses error.

The judgment is reversed, and the cause remanded.

PER CURIAM!

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


author: CHRISTIAN, Judge. MORROW, Presiding Judge. HAWKINS, Judge.

text:
    JONES v. STATE.
    No. 15958.
    Court of Criminal Appeals of Texas.
    June 21. 1933.
    Rehearing Denied Nov. 15, 1933.
    Second Rehearing Denied March 7, 1934.

      John B. McNamara, of Waco, 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 five years.

The opinion on a former appeal is reported in 118 Tex. Cr. R. 458, 39 S.W.(2d), at page 76.

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

Appellant was employed as an automobile mechanic in a garage operated by his father.; He had sold an automobile to Jesse Cline and Clarence Cline on the deferred payment plan. At the request of the Cline boys appellant had come to the home of Ab. Cline, their uncle, where Jesse Cline and Clarence Cline resided, for the purpose of collecting a deferred payment on the car. Upon his arrival, appellant was invited into the house, where he drank some home-brew with the Cline boys. While in the house it was agreed between those present that Jessie Oline and Clarence Cline would deliver the automobile to appellant because they were unable to meet their payments. All of the discussion between the Cline boys and appellant about the car was good natured and amicable. The parties remained in the house from about 11:30 a. m., until 3 o’clock in the afternoon. It had been raining for several hours. After the rain stopped, appellant, Ah. Cline, Jessei Cline, and Clarence Cline left the house. Shortly after they had gone into the yard, Ab. Cline remonstrated with appellant and one of the Cline boys for urinating near the house. Appellant and the Cline boy immediately desisted and went to a nearby outhouse. The automobile which the Cline boys were delivering to appellant had to be pushed from the yard. Appellant and the Clines undertook to push the car into the road in order that appellant might tie it behind his truck. While the parties were engaged in pushing the car from the yard into the road, it became stuck in a small ditch. Jesse Cline then went to the home of Loyd McCollum, deceased, which was about 200 yards away. A few minutes after Jesse Cline went to Mc-Collum’s house, Ab. Cline stated that he would go to the home of deceased and get a chain to pull the car out of the ditch. Deceased and Mr. Chamberlain returned with Ab. Cline and Jesse Cline.

The community in which Cline lived was known as Bull Hide. As soon as deceased approached appellant, he said to appellant, in substance, that it looked like he had come down there to impose on the Cline boys and run Bull Hide. Appellant replied that he was not trying to run over anybody, but trying to push his automobile out of the ditch, and asked deceased if he would help push the car out. Deceased replied: “No, the law will have to push the ear out of the ditch. It is the law’s business to take the car.” Appellant said: “Well, if you feel that .way about it, you had better go back to your home.” Ah. Cline then asked deceased to assist in trying to get the car out of the ditch, and deceased replied: “Well, I will help you (meaning Ab. Cline) but I will not help him (meaning appellant).” After an unsuccessful effort to get the car out of the ditch, deceased walked to the automobile and began to clean his shoes off on the running hoard. Some of the witnesses said that deceased was using a stick; some said he was using Ms knife; and one witness said that he was scraping his foot on the running board of the car. While deceased was thus engaged, according to appellant’s testimony, Ah. Cline told appellant to get his car out of his yard, and undertook to pick up a piece of iron pipe three or four feet long, lying on the ground near the car. Appellant told him not to pick the piece of pipe up. Cline did not pick the pipe up, but said to deceased as he (Cline) approached appellant: “Mack,' must I hit him?” deceased replied: “I believe I would.” In the meantime one of the Cline boys talked behind appellant, and appellant said to him: “Now, don’t you all try-to gang on me.” State’s witnesses testified that Ab. Cline did not pick up the piece of iron pipe. According to their version, just as deceased told Cline that he believed he would hit appellant if he were Cline, appellant called deceased a dirty s-of a b-. Appellant testified that he did not use the epithet, but that it was used by deceased toward him. Deceased told appellant that nobody was afraid of him (appellant); that he might hare a gun, but he did not have the couragte- ' to use it. Deceased advanced rapidly toward appellant, with his hands clenched. Appellant testified that he thought deceased had a knife in his right hand. State’s witnesses testified that deceased’s hands were clenched but that he had no knife. As deceased advanced on appellant, appellant pulled his pistol and fired when deceased was within three or four steps of him. State’s witnesses testified that the pistol was elevated and the shot passed over deceased’s shoulder. Appellant testified that he fired for the purpose of trying to stop the advance of deceased, and that he had no intention of hit-tins him. Deceased continued to advance upon appellant. When appellant fired the second shot deceased was close to him. This shot took effect. Deceased turned and walked away, and appellant did not attempt to fire another shot. After walking some 15 or 20 steps, deceased fell to the ground and died in a short time. Deceased’s wife came running to the scene of the shooting and requested that some one get a doctor. Appellant testified that he told her he would get a doctor as soon as he could get his car cranked. State’s witnesses denied that appellant made this statement. There had been no previous trouble of any character between appellant and deceased; neither had there been any trouble between appellant and the Clines.

It is observed that the verdict of the jury expressly found appellant guilty of murder without malice. Appellant contends that the evidence is insufficient to support the conviction. Appellant admitted that when he fired the second shot he intended to hit deceased. He declared, however, that he fired the first shot over deceased’s shoulder in an effort to stop him. He said: “I shot Mr. McCollum because I thought he was going to come on to me with a knife in his hand; going to hurt me or maybe kill me. I saw what I took to be a knife in his hand. He was standing over at the car cleaning his feet off with something I took to be a knife. The first time I shot.I shot over him to see if it would stop him. I could have hit him the first time I shot. I was in about four steps of him. *' * * I intended to shoot him •the second time. He was mighty near in reaching distance when I shot. I might have stepped back one step. I don’t remember [whether I did or not.” As heretofore pointed out, the state’s testimony was to the effect that deceased had no knife in his hand, the state’s version being that deceased approached appellant with clenched fists. The .testimony of the state was to the further effect that at no time did deceased strike appellant with his fist or any character of weapon. Under the circumstances, we think the jury were warranted in concluding that, viewed from the standpoint of appellant at the time, appellant entertained no reasonable expectation or fear of death or serious bodily injury when he fired the fatal shot. The jury might have reached the conclusion that appellant believed that deceased was going to strike him with his fist, but this fact alone would not have warranted an acquittal of murder. See Bryant v. State, 51 Tex. Cr. B. 66, 100 S. W. 371. We deem the evidence, sufficient.

The court predicated appellant’s right of self-defense upon an apprehension or fear of death or serious bodily injury. Appellant objected to the charge because of its failure to embody an instruction covering his right to defend against any unlawful and violent attack. In the state of the record, the refusal to predicate a charge upon article 1224, P. C., relating to the right to defend against any unlawful and violent attack, would not call for a reversal. It appears from- appellant’s testimony that appellant based his right of self-defense on the necessity of protecting himself against an attack which threatened his life or threatened him with serious bodily injury. If the jury had believed that appellant did not apprehend death or serious bodily injury at the hands of deceased, but nevertheless had reached the conclusion that deceased was preparing to attack appellant with his fists, under the circumstances reflected by the record, the charge sought would have been of no benefit to appellant. Deceased had not hit appellant with his fists. At the time he was shot, he was not close enough to appellant to have hit him. In a homicide ease, in order to warrant a charge under the provisions of article 1224, P. C., the attack must be of a violent character. Bryant v. State, 51 Tex. Cr. R. 66, 100 S. W. 371, 372. In the present case there was no evidence raising the issue of a violent attack. We quote from Bryant v. State, supra, as follows: “Article 677 [now article 1224] authorizes self-defense as against a nonfelonious assault, and that is where the attack is of a violent character, and in such case self-defense is only allowable while the person killed is in the very act of. making such unlawful- and violent attack. As we understand by this, it does not authorize a killing when the party is about to attack, or; is doing some act preparatory to the attack, but he must be then making such unlawful and violent attack.”

Notwithstanding the attack may be violent, before the accused is warranted in killing his assailant, he must first resort to all other reasonable and available means of protection, save retreat. We quote the language of Judge Morrow in Andrews v. State, 101 Tex. Cr. R. 261, 275 S. W. 1024, 1026, as follows: “It seems obvious that the expressions in the case mentioned [Britton v. State, 95 Tex. Cr. R. 211, 253 S. W. 519] do not warrant the conclusion that an intentional homicide may be justified where it is intentionally inflicted in resisting an assault, the nature of which does not create in the mind of the accused an apprehension of either death or serious bodily injury, unless it appear that he had first used all other reasonable means, save retreat, to avert the injury. If the assault made by the deceased was not of a nature to create in the mind of the appellant, as viewed from his standpoint, an apprehension of death or serious bodily injury and did not create such apprehension, and in resisting such assault, appellant intentionally used a weapon which, in the manner of its use, was deadly, and killed the deceased without first resorting to other reasonable and available means of protection save retreat, the jury might .have been warranted in taking into account the assault made by the deceased to mitigate the offense or reduce its grade, but not to justify the homicide.”

We have carefully examined the bills of exception relating to argument on the part of counsel for the state. We deem it necessary to consider but one of these bills. It was in evidence, without objection, that appellant, before going to the scene of the difficulty, had bought a bottle of beer in Waco.' Appellant testified that he did not know where he bought the beer; that he bought it in Waco; that he did not know from whom he bought the beer; that he had never before seen the man from whom he bought the beer, and had not seen him since. ’ In his argument, counsel for the state referred to appellant’s testimony about buying the beer in Waco and ridiculed appellant’s testimony touching the fact that he did not remember where he bought the beer, and from whom he bought it. In connection with this argument, counsel stated that if appellant would tell a story in order to protect a bootlegger it was reasonable to conclude that he would give fabricated testimony to protect his own life, when he was upon trial for murder. The court overruled appellant’s objection to the argument. We are unable to reach the conclusion that the matter presents error. It is not shown in the bill of exception that the testimony upon which the argument was based was not material on the issue of guilt. The inferences counsel drew were from facts, testified to by appellant himself, which went into the record without objection. ■ ■

A careful examination of all of appellant’s contentions leads us to the conclusion that error is not presented.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

MORROW, Presiding Judge.

Appellant, through his counsel, in a mo-, tion for rehearing showing much research and presented in a forceful oral argument,’ renews his contention that the trial court was in error in not sustaining the appellant’s position touching the charge of the court on the law of self-defense. The trial court, in instructing the jury, protected the right of the appellant to an acquittal on the ground of self-defense upon the finding of. the jury from the evidence that he killed the deceased under an apprehension or fear of death or serious bodily injury. As viewed by the trial court and by this court, the facts in evidence fail to present a showing that at the time-the fatal shot was fired the deceased was making an unlawful and violent attack upon the appellant; and in the absence'of such showing, the instruction given to the jury was proper and adequate to present the appellant’s defensive theory. In the motion for rehearing we have been referred to many cases, among them the following:

The ease of McLendon v. State (Tex. Cr. App.) 66 S. W. 553, has no more than confirmed the concfeded principle that circumstances might arise in which one would be justified in taking the life of his adversary who, viewed from the standpoint of the appellant, was about to inflict upon him death or serious bodily injury.

Andrews v. State, 101 Tex. Cr. R. 261, 275 S. W. 1024, 1026, is not regarded as in any sense supporting the appellant’s contention, In the course of the opinion, the following remarks are made with reference to the case of Britton v. State, 95 Tex. Cr. R. 211, 253 S. W. 519: “It seems obvious that the expressions in the case mentioned do not warrant the conclusion that an intentional homicide may be justified where it is intentionally inflicted In resisting an assault, the nature of which does not create in the mind of the accused an apprehension of either death or serious bodily injury, unless it appear that he had first used all other reasonable means, save retreat, to avert the injury. If the assault made by the deceased was not of a nature to create in the mind of the appellant, ad Viewed from his standpoint, an apprehension of death or serious bodily injury and did not create such apprehension, and in resisting such assault, appellant intentionally used a weapon which, in the manner of its use, was deadly, and hilled the deceased without first resorting to other reasonable and available means of protection save retreat, the jury might have been warranted in taking into account the ássault made by the deceased to mitigate the offense or reduce its grade, but not to justify the homicide. See article 1107, P. C., also Branch’s Ann. Tex. P. C., § 1919.”

In the Hathcock Case, 103 Tex. Cr. R. 518, 281 S. W. 859, cited by the appellant, the facts are not sufficiently comprehensive for us to fully understand the state of the evidence upon which the court passed. However, in the opinion reference is made to the case of Holcomb v. State, 98 Tex. Cr. R. 456, 265 S. W. 1039, in which the facts are set out and in which the conclusion reached is deemed in accord with that reflected by the original opinion in the present appeal.

From the case of Schutz v. State, 96 Tex. Cr. R. 287, 257 S. W. 880, 881, the concluding paragraph is quoted as follows: “With uniformity, the decisions of this court affirm that the right of self-defense applies to any unlawful attack. See Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519, and eases collated. The nature of the assault against which the defense is made and the means used, as well as the character of the resistance made, are matters to be considered by the jury in determining the grade of the offense, if any, and the extent of the punishment.”

In the present instance, the appellant testified as follows: “I shot Mr. McCollum because I thought he was going to come on to me with a knife in his hand; going to hurt me or maybe kill me. I saw.what I took to be a knife in his hand. He was standing over at the ear cleaning his feet off with something I took to be a knife. The first time I shot, I shot over him to see if it would stop him. I could have hit him the first time I shot. I was in about four steps of him. I did not shoot any more after he turned and started to leave.”

On cross-examination appellant testified: “I intended to shoot him the second time. He was mighty near in reaching distance when I shot. I might have stepped back one step. I don’t remember whether X did or not.”

One may take the life of-his adversary in resisting an assault threatening death or1 serious bodily injury. See article 1222, P. C. 1925. Homicide is likewise justifiable in resisting a violent and unlawful attack upon a person, although death or serious bodily injury is not threatened, provided before taking life under such circumstances all other means must be resorted to for the prevention of the injury and the killing must take place while the person killed is in the very act of making the unlawful and violent attack. See article 1224, P. O. One is not bound to retreat to avoid the necessity of killing his assailant. Article 1225, P. O. But the attack upon the person of an individual in order to justify homicide must be such as produces a reasonable expectation or fear of death or some serious bodily injury. Article 1226, P. O.

In support of the original opinion, reference has been made to the following precedents: Forest v. State, 108 Tex. Cr. R. 159, 300 S. W. 51; Andrews v. State, 101 Tex. Cr. R. 261, 275 S. W. 1024; Davis v. State, 117 Tex. Cr. R. 377, 36 S.W.(2d) 744; Britton v. State, 95 Tex. Cr. R. 209, 253 S. W. 519; Bush v. State, 40 Tex. Cr. R. 539, 51 S. W. 238.

The various cases have been examined, but a further discussion of them is not deemed necessary. In this, as in all other eases, the evidence is of primary importance in exhibiting the issues of fact and law controlling the appeal. From the evidence no theory of defense other than that upon which the jury was instructed is perceived. Admittedly, the deceased was shot when he was not near enough to the appellant to touch him. No weapon was seen in the hands of the deceased at the time. No declaration or threat to use a weapon is imputed to the deceased by the testimony. The appellant was armed with a deadly firearm which was also usable as a bludgeon. From his testimony the appellant apparently concluded that from the acts of the deceased prior to the time he approached the appellant, and from his conduct while approaching him, the appellant regarded himself as subject to an attack threatening his death or serious bodily harm to his person. In an appropriate manner the court instructed the jury that if the deceased was making such attack, or if, viewed from his standpoint, appellant believed that he was in danger of life or serious bodily harm at the hands of the deceased, it was the right of the appellant to resist the attack even to the taking of the life of the deceased. The verdict of the jury implies that they did not believe that the appellant was justified under the circumstances to regard himself in danger of life or serious bodily harm at the hands of the deceased. The appellant contends that his rights were unduly restricted by the failure of the court to instruct the jury that the appellant had a right to use as much force as was necessary, viewed from his standpoint at the very time of the shooting, to repel any assault made by the deceased.

In the motion for rehearing, the view of the appellant is stated as follows: “It was not the contention of Appellant in the trial court, nor is it his proposition here, that he had a right to kill the deceased in the de-iense of himself against a simple assault and battery, but he does assert that he had a right to take' the life of the deceased in defending himself against such an attack when all other means, save retreat, had been resorted to by him for the prevention of the .assault and injury.”

The proposition of appellant’s counsel embraces all the elements of articles 1224 and 1226, supra, to which reference has been made above; but the evidence or circumstances which would make the proposition tenable upon this appeal, as we have attempted to demonstrate in the original opinion, are entirely lacking.

After the most careful examination of .the record of which we are capable, we are impressed with the view that the motion for rehearing should be overruled, which is aq-eordingly ordered

•On Second Motion for Rehearing;

HAWKINS, Judge.

Appellant asks leave to file, and requests us to consider, a second motion for rehearing. Regarding such second motions, we said in Hickman v. State, 93 Tex. Cr. R. 407, 247 S. W. 518, 520: “Second motions for rehearing will not be considered by this court, nor leave granted to file same, unless there be a sufficient showing in such application of the fact /that in its original opinion, or opinion upon /the motion for rehearing, the court has omit¡■ted to consider some matter, which, from the ■statement thereof in such application, is made ;to appear to this court so vital to the proper .disposition of the case as to lead us to conclude that we erred in failing to consider same, or else such application must present such facts, arguments, or citations in reference to some matter decided in the original opinion or that upon rehearing, as will lead this court from an examination of the application to conclude that our decision in such regard was so far wrong as that its correction would entitle the appellant to a second rehearing.”

This rule has been reiterated in Calley v. State, 103 Tex. Cr. R. 53, 279 S. W. 848; Webb v. State, 110 Tex. Cr. R. 503, 7 S.W.(2d) 562, 9 S.W.(2d) 335; Cotter v. State, 113 Tex. Cr. R. 535, 21 S.W(2d) 503, 22 S.W.(2d) 1071.

Appellant does not claim that we omitted the consideration of any matter regarded as material by him, hut thinks we reached an •erroneous conclusion upon the question which was discussed at length both in cut original .opinion and in the opinion on rehearing. Counsel for appellant urges his position most ■courteously, as he always does, but strongly .and persuasively. We think the difference between him and the court does not arise from any divergent views regarding the law, but from a different angle at which the evidence is seen.

In the argument in support of the second motion for rehearing, we are urged to regard the case in the light in which the conduct of deceased’s companions appeared to appellant in connection with the acts and words of the deceased. The trial judge seems to have submitted that issue properly in his instructions to the jury.

Believing proper disposition to have been made of the case, the second motion for rehearing is denied.


text:
    MOON v. STATE.
    No. 16298.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1934.
    Rehearing Denied March 14, 1934.

      Lackey & Lackey, of Stinnett, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

E. C. Immel, the owner, had in his tool-house two hydraulic jacks, a wire line, a casing line, and other property, which he used-in connection with his business of plugging oil and gas wells. All of this property was in the toolhouse on February 5, 1933. On the morning of February 6, 1933, he discovered that it had been taken. On the date last mentioned he found the two hydraulic jacks and some of his rope near the home of Herman Hoppe. At a later date he recovered his wire line. The aggregate value of the stolen property was in excess of $50.

Herman Hoppe testified, in substance, as follows: Early in the month of February, 1933, appellant came to witness’ house between 10 and 11 o’clock at night in a truck with another man. This man and appellant unloaded some hydraulic jacks and a rope line near the witness’ house. Thirty minutes after this occurrence the witness notified the officers. The following morning the officers came to his premises and told him to watch the property and keep any one from taking it away. Shortly thereafter appellant returned to the place where he had unloaded the property and expressed the desire to move it away. The witness would not permit him to do this. Mr. Immel later came to the witness’ home and took possession of the hydraulic jacks and rope line. Ab. Thomas,, a witness for the state, testified that during, the month of February appellant and John'. Cooper came to his house at night and tried to sell him a wire line; that he went to the-truck in which they had the line and looked' at it; that he told appellant and his companion that he did not desire to buy the line;: that after Mr. Immel recovered his property he saw the same line at Mr. Immel’s place.

The testimony of the witness Thomas was-corroborated by Miss Hazel- Minter, who testified that she was present when appellant', and Cooper came to Mr. Thomas’ house. She-testified, further, that prior to the trial appellant sought to prevail upon her to accept money in consideration of her not appearing as a witness against him.

Testifying in his own behalf, appellant denied that he was ever in possession of the stolen property. He declared that on the night of February 5,1933, he was in the home of Mr. Turner, and not at the scene of the theft.

Mr. Turner testified that he took appellant to his (the witness’) home during the day of February 5, 1933. He said that appellant spent the night with him and did not return to his own home until February 7. Other witnesses gave substantially the same testimony on the question of alibi. It appears that Mr. Turner’s home was some distance removed from the scene of the theft.

Appellant contends that the evidence is insufficient to support the conviction. We are unable to agree with this contention.

In his brief appellant contends that the court committed error in certain respects in his charge to the jury. Appellant interposed-no exceptions to the charge of the court, but waited until motion for new trial to point out matters in the charge which he contends were erroneous. Under the express provisions of the statute it was incumbent upon appellant, if he desired to have alleged errors in the charge reviewed by this court, to interpose written exceptions to the charge before it was read to the jury. Article 658, O. O. P., as amended by Acts 1931, c. 43, § 5 (Vernon’s Ann. O. C. P. art. 658) provides: “Before said charge is read to the Jury, the defendant or his Counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.” Article 666, O. O. P., in part, provides: “All- objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial.”

The indictment charged that the offense was committed on or about January 7, 1933. The indictment was returned by the grand jury on the 7th of April, 1933. The proof on the part of the state showed that the offense was committed on the 5th day of February, 1933, which was a date anterior to the return of the indictment. The state is not bound by the date alleged and may prove that the offense was committed before, on, or after the date alleged, if the date proven be a date anterior to the presentment of the indictment, and not so remote as to be barred by limitation. Branch’s Annotated Penal Code, § 439. It follows that appellant’s contention that there is a variance between the proof and the allegation as to the date of the commission of the offense cannot be sustained.

During the progress of the trial appellant presented a written application for a postponement based on the ground that he had expected the state to make proof of the fact that the offense was committed on the 7th of January, 1933, and was surprised when the proof showed that the offense was committed on the 5th of February of the same year. No bill of exception showing that the motion was ever presented to the court is brought forward. In the absence of a bill of exception, the matter is not subject to review.

In his motion for new trial appellant set up newly discovered evidence. The affidavits attached to the motion disclose that the witness Bails would testify he saw appellant at Ben Turner’s house at 10 o’clock at night on February 5, 1933. The affidavit of the witness Harris was to the effect that he would testify that he was at the home of Ben Turner on the occasion in question and saw appellant there. The testimony of these witnesses was cumulative of the testimony of Mr. Turner and others. It is the general rule that cumulative testimony affords no ground for granting a new trial as newly discovered evidence. Branch’s Annotated Penal Code, § 203; Hanna v. State, 48 Tex. Cr. R. 269, 87 S. W. 702. Again, if appellant saw the witnesses and talked to them on February 5 at Turner’s, he knew of their testimony prior to his trial. Under such circumstances, the testimony was not newly discovered.

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.

We notice each of the grounds of appellant’s motion for rehearing, in inverse order.

1. Newly discovered evidence: The property in question was stolen on the night of February 5, 1933. Appellant and his witnesses locate him at the residence of Mr. Turner that night, thus making out a defense of an alibi, if believed by the jury. The two newly discovered witnesses make affidavits that they knew appellant well, and that they saw and were with him at Turner’s residence' on the night of February 5, 1933. Being well known to and by appellant, such knowledge was necessarily known to appellant at the time of his trial, and hence cannot in any sense be said to be newly discovered. Aven V. State, 95 Tex. Cr. R. 155, 253 S. W. 521; Behrens v. State, 99 Tex. Cr. R. 56, 268 S. W. 172; Garlington v. State, 99 Tex. Cr. R. 331, 269 S. W. 791; White v. State, 94 Tex. Cr. R. 301, 250 S. W. 1028; Cooper v. State, 103 Tex. Cr. R. 226, 280 S. W. 597; Brady v. State, 119 Tex. Cr. R. 178, 44 S.W.(2d) 373; Jackson v. State, 115 Tex. Cr. R. 408, 28 S.W.(2d) 546.

2. The allegation of the date of the alleged theft as of January 7, 1933, is not fatally variant from proof of such theft on February 5, 1933; the indictment having been returned in April of said year. Article 396, subd. 6, C. C. P.; Rucas v. State, 27 Tex. App. 323, 11 S. W. 443; Cudd v. State, 28 Tex. App. 129, 12 S. W. 1010; Venn v. State, 85 Tex. Cr. R. 158, 210 S. W. 535; Daniel v. State, 90 Tex. Cr. R. 225, 234 S. W. 77; Guynes v. State, 96 Tex. Cr. R. 650, 260 S. W. 193; Mathis v. State, 97 Tex. Cr. R. 222, 260 S. W. 603.

3. The evidence appears to be entirely sufficient. The recitals of the facts herein in our original opinion are correct, and show ample testimony to support the verdict

Being unable to agree with any contention made by appellant, the motion for rehearing will be overruled.


author: LATTIMORE, Judge. MORROW, Presiding Judge.

text:
    GRAHAM v. STATE.
    No. 15556.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1933.
    Rehearing Denied March 14, 1934.

      J. D. Pickett, of Palestine, for appellant
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

There is much conflicting and confusing testimony in the record, and many supposed errors which are complained of in 43 bills of exception. The assault claimed by the state to have caused the death of deceased was made at a little store run by deceased, and was committed in the nighttime; there being no persons present except state witness Hogg, appellant, Howard Graham, appellant’s brother, and deceased. According to Hogg, the two Grahams and he went down to the store for the announced purpose on the part of appellant of getting some tobacco. Deceased slept in a bed on the porch. Howard Graham and Hogg stopped out in front. Appellant went and woke deceased up and the two went into the store where deceased lit a lamp. Presently the lamp was put out and deceased came out on the porch. Hogg testified that he heard appellant say he did not give a damn, and heard a lick struck. Appellant came presently to where witness and Howard were and said, “I did.” The question was asked him what he did, and appellant replied, “Get some tobacco.” Witness Hogg said at this Howard Graham laughed, and he asked Howard what made him laugh, and he said he got his tickle box turned over. The three returned to the home of Mrs. Jettie Brown where a party was in progress, and from which place they had gone to the store of deceased. Hogg testified that about an hour after they returned to this place Howard Graham informed him that he and appellant were going back to Smith’s and wanted him to go with them. ' He said he declined to go, and the others left together. When they returned together he said he saw them coming from the direction of Smith’s, and when they came up he asked Howard how Smith was and Howard told him that they put him on the bed. Smith was discovered later in the night on the bed in an unconscious condition. A bruised place was behind his ear. There was blood in various places. Deceased died the next day. The attending physician testified that the symptoms indicated concussion of the brain resulting from a blow.

The facts further show that there was an all night party on Saturday night at the home of Mrs. Jettie Brown. Most of the witnesses said they either left said place about or a little after day. That there was cpnsiderahle drinking of whisky and intoxicating liquor during the night at said place, was testified to by both defense and state witnesses. Defense witness Brown swore that he and appellant were drinking at about the same time; that the whisky was in a quart jar which, was not quite full. About this time he said appellant and others left to go to the store of deceased. Again at about X o’clock Brown said he and appellant were drinking of other whisky. This witness said he came away from Mrs. Brown’s about daybreak and went out in the field and went to sleep; not particularly to get sober, hut because he had been drinking heavily and was sleepy. Other witnesses swore to having whisky and drinking it, both men and women, at the well and at the mail box near Mrs. Brown’s place.

We will discuss the bills of exception in, inverse order. While the case was being argued by private prosecution, as set out in hill of exception 43, the statement was made, in substance, that while deceased was peacefully sleeping appellant and the other people at the party were having an all night party and were drinking whisky. The argument is set out in the hill at some length and embraced much of what was clearly proper, and the part objected to seems amply supported by facts in evidence as stated above. There was no question but that the party was an all night party, and that there was much drinking indrrlged in.

The argument set out in bill of exception 42, while presenting the belief of the state’s attorney that appellant should be convicted, does not support the inference that such belief rested on anything other than the .testimony. It appears, however, that the court told the jury not to consider said argument.

Dr. Lunsford swore that from his examination of deceased and his experience as a physician, he would say that the condition found indicated concussion of the brain. Thie testimony being before the jury, there was no error in allowing Dr. Speegle to testify that a blow on the head such as would cause a fracture or concussion behind the ear could cause rupture of a blood vessel in the brain. We think the same holding applies to. other questions to and answers by Dr. Sgeegle as appear in bills of exception 39 and 40.

Bills of exception 36, 37, and 38 set out objections to statements of three defense wift-nesses, made by them during the sitting of a court of. inquiry before which each of said parties appeared and was sworn and gave testimony the substance of which was introduced over objection. The state offered these statements so made as being at variance with-the testimony of each of said witnesses as given on this trial. The fact that said statements were not made, or claimed to have been-made, in the presence of appellant, would not in the least affect their admissibility for the-purpose intended, viz., the impeachment of said parties by proving statements at other times and places contradictory of their testimony as given in this case. Nor would their admissibility depend on whether they were-signed by the several parties; there being-proof aliunde that they made such statements-before said court of inquiry.

Bill of exception 34 sets out appellant’s objection to certain cross-examination of Howard Graham, appellant’s brother, who claimed to have been present at the time witness Hogg said that appellant made the assault which resulted in the death of deceased. • It appears that on cross-examination of said'', witness he was asked if he first took a drink' of whisky somewhere around 9 o’clock that-night, to which appellant objected for various-reasons set out in the bill. Looking to the-statement of facts, we note that on his direct-examination, and before being asked the question deemed objectionable by appellant -on-cross-examination, witness testified: “Yes sir, I was drinking that night I did not drink until I became intoxicated, until early the next morning. Yes sir, when I left the-party I was some what intoxicated. Yes sir, I stopped and slept it off before I got home.”' It hardly seems necessary to say that after-having given such testimony on direct examination, the state’s cross-examination was entirely permissible. The same ruling is made as to similar complaints in bill of exception 32.

We think no error appears in bills of exception 29, 30, and 31, which reflect the state’s effort to discredit defénse witness Howard Graham by asking him in slightly different ways as to his having been charged-with or arrested- for theft, and having been-told by deceased to stay away from his place • of business.

Manifestly what deceased had told' the mother of appellant, some time prior to-his death, and what she said to Howard Graham in consequence, would be subject to the objection of the state, as shown in bill of-exception 28. The questions asked Roy.; Graham, as appears in bill of exception 27, if lie could smell liquor on Howard, and also on appellant, not only are insufficient-in themselves to manifest error, in that they relate to no time or place or surrounding circumstance, but same seem to have been answered in the negative.

Bill of exception 26 sets out that over objection Roy Graham testified on cross-examination that he supposed Howard Graham was drinking the night of the alleged assault. The objection was not to the answer as being a supposition. There is nothing in the complaint. Howard Graham while a-witness for the defense swore on direct examination that he was drinking that night. The principle involved has many times been decided adversely to appellant; it being uniformly held that where testimony is before the jury without objection, similar testimony admitted over objection would not afford ground for reversal. Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169; Nichols v. State, 91 Tex. Cr. R, 277, 238 S. W. 232.

Bill of exception 25 brings forward complaint that Sehitoskey, a sixteen year old boy, first cousin of appellant, and witness for him, among other things, testified over objection that he drank whisky three times on the night of the alleged assault. The testimony was admissible. In Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465, Judge Davidson said: “The prosecution elicited from appellant, on cross-examination, the fact that he was drinking at the time he disturbed the congregation assembled for religious worship. We are unable to appreciate the force of the objections urged to the admission of this testimony. It threw light upon his mental condition, tended to affect the weight of his testimony, and was the proper subject-matter of legitimate inquiry.”

Judge Ramsey, in Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. al. (N. S.) 706, affirms the same rule. See, also, Wallace v. State, 65 Tex. Cr. R. 657, 145 S. W. 925, opinion by Judge Davidson; Ables v. State, 106 Tex. Cr. R. 173, 291 S. W. 554; McCarty v. State, 107 Tex. Cr. R. 589, 298 S. W. 575; Roberts v. State, 117 Tex. Cr. R. 418, 35 S.W.(2d) 175. What we have here said applies to bills of exception 19, 22, and 33.

Bill of exception 24 complains that the state was permitted to elicit from de-fensé witness Sehitoskey that Ruth Mc-Kinzie, a guest at Mrs. Brown’s party, drank some whisky on the night of the alleged assault. The objection was that the fact that witness’ female associate took a drink of whisky would inflame the minds of the jury and would prejudice the accused. It is not set up in the bill that either the witness or the accused had anything to do with the woman drinking whisky, and the inference drawn of injury seems too remote. However, we note that in another part of the testimony the witness said that he and a party, whose members he named, among them being Ruth McKinzie, went to a mail box and all of them drank whisky, save Mrs. Artis McKinzie. This testimony being before the jury without objection, we think would obviously remove any possible harm from the question complained of and under discussion, and the rule discussed in regard to bill of exception 26, supra, would apply.

Appellant has several bills complaining because the state, upon cross-examination of certain witnesses, elicited from them that at different times during the night of the alleged assault appellant was drinking whisky. Also that Oran Hogg was allowed, over objection, to testify that appellant began drinking whisky about 8:30 p. m., and that the last drink witness knew of his taking that night was just before day. Witness Hogg had testified, apparently without objection, that appellant was drinking on said night. The fact that this witness was asked about appellant drinking at a specific hour, and was permitted over objection to state that appellant was drinking at that specific hour, this being before the assault was committed, would seem admissible as affecting the mental and emotional status and attitude of appellant. We think further it would not be objectionable to ask him in reference to appellant drinking at 8:30; the witness having testified without objection that appellant “was drinking that night.” Appellant cites no authorities holding to the contrary. The fact that appellant drank that night being thus before the jury, we observe no support for the inference asserted in appellant’s bills and in his brief, viz., that testimony that he drank after the alleged assault would prejudice the minds of the jurors against him.

We fail to see the relevance of testimony offered by appellant and rejected, that his brother Howard had money in a bank; or that some two months prior to the alleged assault appellant had an interest of one-seventh in a joint account of $700 in such bank. The state made no effort to show as motive that appellant before the homicide was without money, or to identify the money found in appellant’s pocket upon liis arrest as that of deceased. Appellant was permitted to prove by his witnesses, as accounting for money found in his pocket when arrested, that he had drawn out of a bank $75 or $100 prior to the assault and was carrying it in his pocket at the time.

We see nothing of serious import in any of the bills complaining of questions answered negatively by witnesses, nor do we see any necessity for discussing them or setting them out at length.

State witness Hogg testified to being present and seeing the assault made; that it was made in the nighttime; that he was uncertain wfiether same was made with brass knucks, but was inclined to the view that it was. He detailed statements made on the way to the place by Howard Graham indicating his ill feeling toward deceased. We see no error in allowing witness to testify that on the way to the store of deceased he saw Howard with a pair of brass knucks. From the statement of facts it appears that the defense first drew out of said Hogg the fact that on their way to the store of deceased Howard Graham tried to hit him with a pair of brass knucks.

Bills 12 and IS set out appellant’s attempt to reflect upon Dr. Lunsford, state witness, by offering testimony that his place of business had been raided; also that Dr. Lunsford had been arrested for vagrancy. The state’s objections were properly sus-taihedl

It is impossible to appraise bill of exception 11, which merely shows that the defense objected to testimony as to the kind of shoes worn by Howard Graham when arrested, and that the objection was overruled, and that the officer “stated the kind of shoes Howard then had on.” What the officer stated, or its relevance, or otherwise, is not made to appear. This statement applies also to bill of exception 10 taken to the refusal of the court to allow appellant to prove that a brother of witness Hogg had been indicted and tried for assault to murder. The brother of Hogg thus referred to is not shown to have had any sort of connection with the case at bar.

If bills of exception 8 and 9 are correct, they show that the state asked, in one instance when the witness Hogg knew of appellant taking his last drink that night, and in the other when he last saw appellant take a drink that night. In each bill it is stated that before appellant had time to object, witness said “A little after day break,” and that appellant then moved to strike out the question and answer, which was refused. The bills set out no surrounding facts, and we are unable to say that either shows error.

According to witness Hogg, after the assault he, appellant, and Howard Graham went back to Mrs. Brown’s where the party was in progress. He testified that about two hours later appellant and Howard left the party. Before leaving Howard asked witness to go with him down to the place of deceased, but' witness declined to go, and Howard and appellant went away together going southeast. About an hour later they returned. Witness saw them at the fence coming from the direction of Smith’s place, and asked Howard, in appellant’s presence, how Mr. Smith was, and Howard replied that they had put him on the bed. Appellant reserved what may be termed a “blanket” bill of exception setting forth that he objected to all the testimony set out in said bill. We quote the testimony objected to, from bill of exception 6, as follows: “That about an hour after defendant and Howard Graham had left to go down to Mr. Smith’s the witness saw the defendant and Howard Graham at the yard fence in front of Mrs. Jettie Brown’s; that they were coming down the road from Mr. Smith’s place; that he asked Howard Graham how was Mr. Smith and Howard Graham said they had put him on the bed.”

Plainly there could be no question as to the admissibility of most of this quoted testimony, and for this Teason the bill is without merit. Appellant’s discussion of the bill in his brief is as though he was only objecting to the purported statement of Howard Graham that “They had put him on the bed.” This statement was made in the presence of appellant, who made no denial. The circumstances justified the trial court in concluding, as was said by Judge Hawkins in Powell v. State, 99 Tex. Cr. R. 284, 269 S. W. 443, that from the “proximity of the parties,” the testimony was admissible as in the nature of a confession inferable from silence. If appellant so desired he might have had the issue as to whether he did in fact hear what Howard said submitted to the jury under an instruction not to consider same if he did not hear it. This would have been proper practice as is suggested in Rhea v. State, 67 Tex. Cr. R. 197, 148 S. W. 578. No such, request was made and the bill reflects no error. What we have just said applies also to hill of exception 5.

Bills of exception 8 and 4 present objections to the following testimony: “That while said witness and Howard Graham and the defendant were on their way to purchase smoking tobacco at the Jasper Smith store on the night that Jasper Smith was alleged to have been assaulted by the defendant, and before the alleged assault had taken place, that Howard Graham called Jasper Smith a liar several times and said he was mad at him because Mr. Smith had accused him of stealing some money.”

The stated objections were that it was not shown that appellant heard these statements, or assented to them, or indorsed them, or that a conspiracy existed between appellant and his brother to injure deceased. Examining the record, we note that Hogg testified that just before these statements were made and while going to Smith’s store, all three, appellant, Howard, and himself, “went along right side by side”; that he talked to both of them on the way; that Howard called Smith a liar several times; said he could whip him; that Smith had accused him of stealing money. He testified that appellant was within four feet of Howard When these statements were made. On the conspiracy proposition, it appears that Howard remained near the front while appellant woke deceased, went in the store, and after the two' of them came back on the porch, where appellant struck deceased. Howard left when appellant said he got his tobacco, accompanied appellant away, and later went back with appellant to where the assault had been committed. We. see no error in the admission of the testimony. Appellant cites no authorities in support of his objection.

Witness Hogg was asked on direct examination, “Where did you and Monroe go,” and answered, “To get some whisky.” This answer was objected to as not responsive. The objection was sustained and the jury told not to consider the answer. The answer was erroneous, but not sufficient to cause reversal. This appears in bill of exception 2.

Bill of exception 1 seems based on a misapprehension. It complains of the refusal of the court to grant a motion made by appellant, which is set out in extenso. The qualification to bill of exception 1 contains the statement, of the court that he did sustain the motion made by appellant, and did instruct the prosecuting attorneys in accordance with appellant’s request.

Some of the bills of exception, whose failure to manifest error was apparent, we have not discussed. There were a number of complaints • made in the motion for new trial, all of which have been considered. We have examined them and are of opinion and believe them without merit and that a discussion of them would but lengthen this already too long opinion. We think the trial court was within his discretion in declining to grant the motion for new trial.

Finding no error in the case sufficient to call for a reversal, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, Presiding Judge.

In bill of exception No. 1 it is shown that the court instructed counsel for the state to refrain -from making reference to the previous conviction of the appellant for the possession or transportation of intoxicating liquor.

From bill No. 2 it appears that the witness Hogg was asked by the district attorney the following question: “Where did you and Monroe go? ” The witness replied: “To get some whisky.” Objection to the answer, because not responsive was sustained by the court and the statement of the witness was withdrawn from the jury.

Bill No. 7 shows that over the objection of the appellant evidence was adduced from the state’s witness Hogg as follows: “That the defendant began drinking about 8:30 P, M. on the night that the deceased was alleged to have been assaulted.”

According to bill No. 8, the witness Hogg was asked the following question: “About what time was the last time that you knew of his (the defendant) taking a drink? ” The Witness replied: “Just a little before the break of day.” The same subject is covered by bill of exception No. 9.

In bill No. 15 it appears that the witness, Mrs. Jettie Brown, was asked on cross-examination the following question: “Right smart drinking around your house that night, wasn’t there? ” The witness answered that she did not know. The court refused to exclude the question and answer.

In bill No. 16 it is shown that Mrs. Jettie Brown was asked the following question: “Did you see Monroe Graham drinking there (at the home of the Witness) that night? ” The witness replied that she did not sée the appellant drinking there that night.

Proof that a witness or the accused on trial was drunk has been received many times. The precedents on the exact question here presented are meager.

Reference is made to the case of Hodges v. State, 73 Tex. Cr. R. 378, 166 S. W. 512, in which the offense was aggravated assault. After announcing that a fault in the charge demanded a reversal, the court expressed the opinion that inquiry of each of the witnesses as to whether or not he had been drinking or was drunk on the day of the occurrence, or whether he had been drinking with the appellant, or whether the appellant had a bottle of whisky in his store that day and the fight did not take place in the store or near it, was, under the facts of the case, irrelevant and calculated to be prejudicial to the accused and upon another trial should be omitted.

In the case of Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465, Judge Davidson used the following language: “The prosecution elicited from appellant, on cross-examination, the fact that he was drinking at the time he disturbed the congregation assembled for religious worship. We are unable to appreciate the force of the objections urged to the admission of this testimony. It threw light upon his mental condition, tended to affect the weight of his testimony, and was the proper subject-matter of legitimate inquiry.”

The principle stated was approved in the opinion written by Judge Ramsey in the case of Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 923, 22 L. R. A. (N. S.) 706, from which we take the following: “We think the rule in any case should be, where a witness is produced and undertakes to give a statement of the facts coming under his observation, transactions to which he is a party and on which the guilt of a citizen is sought to be established, that with a view of testing the credibility of the witness, his opportunity for observation, the state of his memory, the condition of his mind, and all that, it should and would be proper to interrogate the witness as fully as might be necessary in respect to his condition of drunkenness or sobriety.”

In Wallace v. State, 65 Tex. Cr. R. 654, 145 S. W. 925, 926, Va case of homicide, the following testimony was so qualified by the court as to exclude it: “George Henry Scruggs was drunk at that time.”

Scruggs had testified that he was not drunk at the time of the homicide, which occurred about midnight, and was not drunk the next morning at about 8 o’clock. In writing the opinion, Presiding Judge Davidson said: “The witness had stated that he was not drunk, but had been drinking some the night before, and had denied being drunk on the following morning when the justice of the peace reached the scene of the trouble for the purpose of holding an inquiry. The justice of the peace would, have testified, had he been permitted to do so, that the Witness was drunk. • We are of opinion that this testimony was admissible under the authorities.”

In McCarty v. State, 107 Tex. Cr. R. 589, 298 S. W. 575, 577, the accused was on trial for the murder of Ernest Gibson. Appellant offered several witnesses to prove that Gibson was drunk at the time of the alleged offense, and that they had seen him drunk several times during the same afternoon. In dealing with the subject, the court used the following language:

“In our opinion Mr. Branch correctly states the rule to be that — •
“ ‘For the purpose of testing the memory of the witness and his capacity for correct observation, and to affect the weight of his testimony, it may be shown by the witness or by others if necessary that the witness was drunk when the matters about which he testified occurred.’ Branch’s Ann. P. O. § 43.”

The text is supported by Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465, and many other cases.

In the case of Roberts v. State, 117 Tex. Cr. R. 418, 35 S.W.(2d) 175, 177, the subject was dealt with in the following language: “That the accuracy of recollection of events or transactions is impaired by intoxication, or that it at least tends to impair it, is generally recognized. See Corpus Juris, vol. 23, § 1770. The impaired condition of the mind, either from a temporary cause, such as intoxication, excitement, fright, physical pain, or from the infirmities of old age or other infirmities, is deemed a proper subject of inquiry by the court for the consideration of the jury in weighing the testimony of individuals. It is not deemed sound to conclude that the temporary mental impairment which may confuse the mind of an individual would be an impeachment of moral integrity before or after the temporary impairment had ceased.”

As stated in the original opinion, at the residence of Mrs. Jettie Brown there was an all night party on the night of the tragedy. The appellant’s participation in the party and the drinking of intoxicants by him and his companions was thought by the trial court and by this court upon the original hearing to be a proper subject of disclosure to the jury to the end that they might intelligently weigh the evidence.

In Wharton’s Criminal Evidence (10th Ed.) vol. 2, p. 1722, § 917, the following statement is found: “Conduct, actions, and general behavior of the accused, immediately preceding the homicide, are relevant to show that he was armed and in a vicious humor.”

In the case of State v. Hill, 46 La. Ann. 27, 14 So. 294, 295, 49 Am. St. Rep. 316, the Supreme Court of Louisiana used the following language: “It was the duty of the state to establish the malicious homicide of the deceased, at the hands of the accused, beyond a reasonable doubt; and if, in making that proof, the drunkenness of the defendant was developed, it was a circumstance for the consideration of the jury, along with other proven facts of the case, in determining the felonious intent of the homicide. But it does not follow it was the duty of the state to; make proof of a negative, by showing beyond a reasonable doubt that the defendant’s state of intoxication was of a degree not to interfere with his judgment and intelligence, or preclude the possibility of his entertaining malice towards the deceased. The trial judge properly declined to give the requested special charge, and the accused is without grounds of complaint.”

. Many , decisions exhibit the disposition of the courts in the United States to take the view, opposed to that of the English courts on.the subject of persons charged with crimes who are shown to have been intoxicated at the time the offense was committed. The English courts have rejected such condition as a defense to the crime. In our country the .courts and the Legislatures have gone far in favor of making intoxication a mitigating circumstance, and most of the authorities deal with that phase of the law. See article 36, P. C. 1925. The facts in the instant pase present the question in á different angle, namely, the right of the state to prove as a circumstance bearing on the mental condition of one accused of crime the fact that at the time of the alleged crime he was under the influence of intoxicating liquor. There are many cases where the accused was a witness that proof that he had been drinking was received, and some as illustrated above where he was not a witness.

In the murder statute, article 1257a, Vernon’s Ann. P. C., it is stated in substance that the state and the defendant are privileged to introduce all relevant facts surrounding the killing, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, which may be considered by the jury in determining the punishment to be assessed. See Cyc. of Law & Proc., vol. 12, p. 618, § 5; Graham v. State (Tex. Cr. App.) 51 S.W.(2d) 401; Whatley v. State, 117 Tex. Cr. R. 447, 36 S.W.(2d) 751; McDaniel v. State, 119 Tex. Cr. R. 442, 42 S.W.(2d) 435. It is thought that the action of the accused approximately at the time of the homicide in drinking whisky would be a relevant fact as part of the res gestae. Whether so or not, it seems clearly to be a relevant fact which the jury might consider in determining the state of mind of the accused at the time the homicide took place. That the consumption of whisky has some effect upon the mind of the individual who drinks it is not only self-evident, but verified by text-writers upon the subject.' See Herzog’s Medical Jurisprudence, p. 528, § 720 et seq. It has a varying effect upon different persons, ranging from slight exhilaration to total loss of the faculties.

Conceding that the drinking of whisky occurred at a time practically coincident with the striking of the fatal blow according to the state’s testimony, it seems that perforce of the statute mentioned above, the use of whisky by the accused was one of the facts available to the jury in reaching a conclusion touching the state of mind of the appellant.

The motion for rehearing is overruled.


author: KRUEGER, Judge. DATTIMORE, Judge.

text:
    FITZPATRICK v. STATE.
    No. 16367.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1934.
    Rehearing Denied March 14, 1934.
    E. T. McCain, of Palestine, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

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

The testimony adduced upon the trial is in substance as follows: On forenoon of the 11th day of February, 1933, the officers, by virtue of a search warrant, searched the defendant’s place of business and found three pints of liquor. On the same day in the afternoon they procured another search warrant and again searched the defendant’s place of business and found two gallons of liquor in the possession of the defendant. The appellant testified in his own behalf admitting the two searches of his place of business by the officers and that the officers found three pints of whisky in his place of business in the forenoon, and that when they searched his place of business in the afternoon they found two gallons of whisky, but he contended that he had the liquor for beverage purposes and for his personal use and not for sale. The officers testified to procuring the 'search warrants and searching the appellant’s place of business and of the finding of the liquor. They further testified that at the time they found the liquor in the defendant’s place of business the defendant said he didn’t know whose liquor it was or how it came there.

The appellant’s only contention is that the evidence is insufficient to support the conviction. Article 671, P. C., provides that “proof of the possession of more than one quart of intoxicating liquors, shall be prima facie evidence of guilt; but the‘defendant shall have the right to introduce evidence showing the legality of such possession.” This raised the issue of whether appellant had the whisky for his own use and for beverage purposes, or whether he had it for sale. The issue was submitted to the jury under appropriate instructions, and the jury found against appellant’s contentions. The finding of a jury on a disputed issue is binding on this court.

Finding no reversible error, 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.

DATTIMORE, Judge.

Appellant urges the insufficiency of the testimony, in his motion for rehearing. The facts have been again reviewed. Officers, with a search warrant, searched appellant’s place of business in the morning and found three pints of whisky. They searched’ it again that afternoon, and on this occasion found two gallons of whisky. Appellant stated in the morning that he did not know the whisky then found was in his' place, and that he had nothing to do with it. He made the same statement as to the whisky found therein in the afternoon. It was ' in' testimony that he had been tried for possession of whisky found in his place at a former date, and that on said occasion he also said that he did not put the whisky there and knew nothing about it. On the trial hereof appellant took the witness stand and testified that the whisky found at his place in the morning, and that found tiheré in the afternoon, was his whisky, and that he had it for purely beverage purposes. On cross-examination he admitted that he had made the statements above referred to wben the whisky was found. The jury did not have to accept appellant’s testimony as true. Appellant had more whisky than was required by our statute to make out a prima facie case against him of possession for purposes of sale. He introduced no witnesses, except himself. We think the testimony amply sufficient.

The motion for rehearing will be overruled.


author: MORROW, Presiding Judge. HAWKINS, Judge.

text:
    SHELBY v. STATE.
    No. 16278.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1934.
    State’s Rehearing Denied March 14, 1934.
    J. A. Johnson, of Stephenville, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The unlawful possession of intoxicating liquor for the purpose of sale is the offense; penalty assessed at confinement in the penitentiary for two years.

The relevant facts, as shown by the evidence", are as follows: The appellant and his wife resided in a four-room house in the city of Stephenville. They owned a farm of 160 acres some distance in the country. There were two sons who were eighteen and twenty-five years of age respectively. The sons were arrested upon the farm mentioned while engaged in manufacturing whisky. They had in their possession .about a pint of whisky at the time of their arrest, which occurred some time before noon. After arresting the sons, the officers arrested the appellant. He was not at home at the time. The evidence is to the effect that he left home shortly after daylight and did not return. Possessed of a search warrant, the officers searched the residence of the appellant before his arrest. His wife was there at the time. She disclaimed any knowledge of the presence of any whisky upon the premises. ’ However, the officers found three gallons of whisky. Two gallons were in a keg and one gallon was in a, jar. She disclaimed any specific knowledge as to when and by whom the whisky was brought to her house. She stated, however, that the two sons sometimes stayed at the house but did not stay there on the night before the whisky was found. During the morning while the witness was about her work in the yard and garden, the sons came to her house and remained for some time. Some girls were with them. She did not know whether they brought any whisky to the house or not. . She knew of no other means by which it could have been brought there. Appellant had been told by one of his sons that they were going to make some whisky and sell it in Fort Worth; that they were going to make it out on the farm mentioned above. He at first remonstrated with them, but they told him they had to do something to get something to eat; that they were out of work and had no money. After that statement was made appellant did not further protest against their making whisky.

In a conversation with one of the officers while the search was being made, the appellant’s wife is quoted as saying: “I remember talking to Mr. John Wright up there; I said a few words to him. I stated to Mr. John Wright there they had that whisky there in order to get some money- — we had it there to get something to eat. That’s the reason we had it there. * * * I don’t know how long it has been there. I told you I never saw that stuff until they brought it out of the house. I never saw it in the house. * * * I stated to Mr. Wright that we had it there to get money to get something to eat! * * * I did not see my husband or anybody else put that whisky there. My husband did not sell any of that whisky. * * * I don’t know whether or not my husband knew that liquor was there.”

Appellant disclaimed any knowledge of the whisky found by the officers or of any whisky that was in his house.

The declaration of the wife of the appellant quoted above was not admissible as evidence against the appellant, but was admissible as a circumstance bearing upon the credibility of her own testimony that she did not know that there was any liquor in the house.

The evidence is not regarded as conclusive against the appellant to a degree necessary to sustain his conviction upon the law of circumstantial evidence. Touching the presence of the whisky in his home, his agency in placing it there or his knowledge of its being there was not established to a moral certainty. On the morning prior to his arrest, he was shown to have left home at an early hour. Later other persons, namely, his two sons and some girls, came to the residence during the absence of the appellant. The sons had been making whisky, and their company, whoever they may have been, might have been responsible for the presence of the whisky in the house. They might have brought it there during the appellant’s absence and without his knowledge. They were not called as witnesses, and no evidence is produced explanatory of the failure of the state to do so.

Viewed in the light of the record and having in mind the limitations upon the right to imprison one upon circumstantial evidence, this court would not be. justified in upholdihg the verdict

The judgment is therefore reversed, and the cause remanded.

On State’s Motion for Rehearing.

HAWKINS, Judge.

In his motion for rehearing the representative of the state, calls our attention to statements in our original opinion which resulted from a misconception of the facts leading us to say that some girls came to the appellant’s house with the sons of appellant. The officer testified that about the time the search was over the two daughters of Mr. and Mrs. Shelby came in. The original opinion has been corrected in the particular mentioned.

In passing upon the question of the sufficiency of the evidence to support the conviction, other cases are of little aid, as the facts in different cases are so variant. In some respects, however,, the present case is like Curry v. State, 102 Tex. Cr. R. 572, 278 S. W. 855, and Wooldridge v. State, 121 Tex. Cr. R. 255, 51 S.W(2d) 727, and the principle involved is precisely the same. We think proper application of such principle was made in disposing of the case originally.

, The motion is overruled.


author: KRUEGER, Judge.

text:
    KROLCZYK v. STATE.
    No. 16439.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1934.
    Julian E. Weisler, of Brenham, and Abner E. Lipscomb, of Waco, for appellant.

      ' Lloyd W. Davidson, State’s Atty., of Austin, for tlie State.
   KRUEGER, Judge.

Tlie appellant was tried and convicted of the offense of fornication, and his punishment ¿ssessed at a fine of $250.

The testimony adduced upon the trial, briefly stated, is as follows: Frances Steletski testified that she was 28 years of age and unmarried; that for a period of time covering approximately 18 months prior to the time of tlje trial of this case the defendant had had about 20 or SO acts of carnal intercourse with her at her father’s home near. Chapel Hill, in. Washington county, Tex. That as a result of said intercourse she had become prfegnant. She further testified that the reason she engaged in the acts of intercourse with defendant was that she thought he was going to marry her. Her sister testified that about a year prior to the trial the defendant came into the room one night where she and Frances were asleep in bed and got in bed with them, and on that occasion had two acts of intercourse with Frances. Dr. Becker testified to the pregnant condition of Frances. No other or further testimony was offered by the state in support of the testimony of Frances, who was an accomplice. Appellant testified in his own behalf, denying the acts of intercourse.

It would be contrary to the intent and spirit of the law (Vernon’s Ann. P. C. art. 503), which makes it an offense for an unmarried male and female person to habitually engage in acts of carnal intercourse, to hold that two acts on one occasion, would be proof of habitual acts of carnal intercourse between said parties, and in support of the views herein expressed we refer to the following authorities: Hilton v. State, 41 Tex. Cr. R. 190, 53 S. W. 113; Collins v. State, 46 Tex. Cr. R. 550, 80 S. W. 372; Wallace v. State, 63 Tex. Cr. R. 611, 141 S. W. 95. In.the case of Wallace v. State, supra, Judge Davidson, speaking for this court, said: “Charity Johnson being an accomplice, it was necessary to corroborate her as to the allegation that appellant was having habitual carnal intercourse with her without living with her. * * * Charity Johnson is not corroborated except as to one time,” and this was held not sufficient, to justify the conviction. So, in the case under consideration, there is no evidence, we think, corroborating the accomplice except as to two acts of carnal intercourse on one occasion, and this is clearly not sufficient, in that the law requires corroboration of the accomplice on proof of habitual carnal intercourse. The fact that the accomplice may have been pregnant, as testified to by herself and by Dr. Becker, does not corroborate her on the question of habitual carnal intercourse, because that may have resulted from one act, and whether that act was committed by the defendant or some other person is not disclosed by the testimony, except by the accomplice. Many other cases might be cited in support of this proposition, but we feel that the matter has been so well settled that further elaboration on the question would be but a useless consumption of time and would unnecessarily extend this opinion.

Because of the insufficiency of the testimony, as herein pointed out, to support the conviction, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM.

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


author: LATTIMORE, Judge.

text:
    CARLTON v. STATE.
    No. 16432.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1934.
    Rehearing Denied March 14, 1934.

      H. T. Brown, of Jacksonville, and Perkins & Perkins, of Busk, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for possessing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

Officers, having a search warrant, searched appellant’s place and found a quantity of beer and also a quantity of home-brew. Samples of both kinds of liquor were analyzed by a chemist who testified that the beer contained 3 per cent, of alcohol by volume, and' the home brew contained 8 per cent, of alcohol by volume. The charge against appellant was the possession of potable liquor containing in excess of 1 per cent, of alcohol by volume. We have no doubt as to the sufficiency of the facts to support the conclusion of guilt.

Four bills of exception are found in the record. Bill No. 1 complains of the lack of legal evidence to support the conviction; the. exact point being that the chemist who analyzed the samples of liquor was not sufficiently qualified. We think to the contrary. The witness had been a chemist and bacteriologist with thirteen years of actual experience and practice in Dallas and Tyler. He disclosed the extent of his study. We think the bill without merit.

Bill No. 2 discloses a general objection to the affidavit and search warrant as being insufficient in law to authorize a search of appellant’s premises. The affidavit and search warrant are not made a part of the bill, but we have examined same as they appear in the statement of facts. The building and premises to b© searched was a store and barbecue stand. The facts relied upon by the makers of the affidavit as basis for their belief that the law was being violated, as set forth in the affidavit and search warrant, appear to be sufficient. We think this bill without merit.

There is a bill complaining of the fact that the officers found a number of containers, bottles, and jars with some small quantity of whisky in them. We see no injury from this. Appellant was given the lowest penalty, and the evidence of his guilt appears to be not disputed.-

Finding no error in the record, the judg-meat is affirmed.


author: HAWKINS,' Judged

text:
    O’QUINN v. STATE.
    No. 16452.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1934.
    Edward Risinger, of Rosenberg, for appellant.1
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS,' Judged

Conviction is for passing as true a forged instrument; the punishment being two years in the penitentiary.

The instrument alleged to have been forged was a check payable to H. J. Turner and signed “Humble Pipe Line Company, Treasurer, Geo. W. Sears, — Assistant Treasurer, C. W. Tulles.” It was also averred in the indictment that the instrument was indorsed on the back “H. J. Turner.” We are at some loss to determine whether it was intended to charge the forgery of the indorsement, or to charge forgery in the execution of the check itself. If it was claimed that Turner’s indorsement was forged, and the purpose was to so charge, we refer to Cochran v. State, 115 Tex. Cr. R. 201, 30 S.W.(2d) 316; Landrum v. State, 118 Tex. Cr. R. 132, 42 S.W.(2d) 1026.

It is apparent from the record that appellant has no just ground to complain that he was not given a “speedy” trial guaranteed him by the Constitution. The indictment was returned into court on September 7th. Appellant was put to trial the same day, and on the same day the verdict was returned and the judgment of conviction entered. The motion for new trial was overruled on September 8th and sentence pronounced. Indeed it seems that justice was proceeding at such a pace that the necessity of proving that the instrument passed had been forged was entirely overlooked. We' discover no word of testimony in the record on that issue. Appellant does complain, and justly so, that the verdict is not supported by the evidence.

The judgment is reversed, and the cause remanded.