text:
    HOUSTON ELECTRIC CO. v. DE CUIR.
    No. 9916.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 31, 1934.
    Rehearing Denied Feb. 22, 1934.
    Baker, Botts, Andrews & Wharton, Gaius G. Gannon, and Dillon Anderson, all of Houston, 'for appellant.
    J. W. Lockett, of Houston, for appellee.
   GRAVES, Justice.

The Electric Company appeals from a $2,-500 judgment against it in favor of the ap-pellee, entered in response to a jury’s vetdict on special issues whereby they found he had suffered that much in damages as the result of personal injuries inflicted upon him by a collision between his automobile and the appellant’s bus at the junction of Caroline and Wheeler streets in the city of Houston, caused through the negligence of the bus driver in several particulars; there are no assignments to the effect that this verdict in any respect either lacks support in or is against the great weight of the evidence, unless one to the effect that it is excessive in amount is meant to he of that character.

The attack upon the judgment is wholly grounded upon the contentions: First, that the jury in its consideration leading to the rendition of the verdict was guilty of such misconduct as vitiated it. Second, that the trial court erred in these further particulars : (1) in refusing to submit appellant’s requested special issues relating to the claimed contributory negligence of the appellee; (2) in failing to give a proper specific charge on the burden of proof with regard to the issue of unavoidable accident; (3) in refusing to exclude from the jury’s consideration, on request, as elements of damage certain alleged disabilities in hearing and eyesight of the ap-pellee; (4) in instructing the jury to allow appellee damages for “physical pain” and “mental suffering,” in the absence of a proper definition of these legal terms; (5) in permitting the amount of the- award to stand, over the objection that it was excessive, the appellee having had only four fractured ribs and sundry bruises, from which he recovered normally and returned to work the month following, his injury.

In view of the decision made by this court through a majority holding (this member dissenting), to reverse the judgment solely on account of its conclusion that the jury misconduct charged did occur, it would be a work of supererogation to discuss at length these various other assignments presented, since the matters therein complained of may not so arise upon another trial, and since a majority further hold that none of them present prejudicial error in the state of the present record. In this connection, however, it is proper to state that the Chief Justice does not acquiesce in the particular holding that the special issues requested by appellant seeking to elicit findings on whether or not the appellee was guilty of contributory negligence in the way he approached and entered upon the intersection of the streets should not have been given; he concluding that they should have been submitted.

The gravamen of the misconduct charge was that on one or more occasions by one or more of the jurors it was stated in the presence of all the others during their deliberations that "in order for the plaintiff to recover anything at all against the defendant it would be necessary for the jury to find that he was not guilty of negligence in any of the respects inquired about in the main charge of the court; there being no charge of fraud, dishonesty, collusion, nor bribery made.

The learned trial court, on hearing the motion, went painstakingly and fully into an investigation of all that occurred concerning the matter, hearing in much detail the testimony of six of the jurors who returned the verdict, overruling it in this order:

“And the Court, after having heard the testimony of said jurors, found that there was no misconduct, and at the request of the defendant the Court finds and files the following findings of fact:
“1. The Court finds that the jury after retirement and before they undertook to answer any issue of contributory negligence on the part of the plaintiff, determined and decided that they would find a verdict for the plaintiff for some amount, such amount being at that time left open and undetermined. That during the time the jurors were discussing the issue as to the contributory negligence of plaintiff, one or more of the jurors stated that the plaintiff could not recover if the jury found that the plaintiff was guilty of contributory negligence. That the first ballot on the question of plaintiffs contributory negligence resulted in a vote of nine in favor of finding him not guilty of contributory negligence and three in favor of finding him guilty of contributory negligence. That the issue as to whether the plaintiff was guilty of contributory negligence was at that time and after some discussion answered to the effect that the plaintiff was not guilty of contributory negligence, and such ¿nswer to such issue was written in pencil upon the sheet which the jurors used in answering the special issues. That the jury thereupon left the courthouse in charge of the sheriff, going to supper, and after coming from supper again voted on the question of plaintiff’s contributory negligence and determined the plaintiff was not guilty of contributory negligence and wrote their answer to such special issue in ink.
“2• The Oourt finds that the discussion of the jurors as to the effect of the plaintiff being guilty of contributory negligence had no influence or effect in changing the three members of the jury who were at first in favor of finding him guilty of contributory negligence, such jurors having changed their opinion after a consideration of the evidence.
“The Oourt is of the opinion, therefore, that such discussion on the, effect of plaintiff’s contributory negligence, if any, did not influence the jury in arriving at their verdict, and is not misconduct, to which findings the defendant and plaintiff excepted.”

By a subsequent order, a request of appellant for these additional findings was denied: “The jurors were unable to agree upon the proper answer to be made to the special issues bearing upon plaintiff’s contributory negligence until after the statement by one or more of the jurors that the plaintiff could: not recover anything if the jury found he was= guilty of contributory negligence.”

The findings thus made below are thought by the full court here to have been supported by the testimony heard, the ultimate gist of which likewise appears to be fairly presented in this summary thereof in appellee’s brief: .

“The juror T. A. Legate testified that when they came to the question of whether or not DeC'uir had been negligent some wanted to say he was not negligent and some wanted to say that he was. That if he was negligent, they could not say both were negligent. That he did not remember whether any juror said what would be the effect if they found him guilty of negligence. That we did not feel like he was negligent. The juror was asked if there was any misunderstanding as a result of any remark made by one of the jurors if you did answer that he was negligent that would prevent him from getting anything, or did you have such an understanding or was such a remark made. The juror answered, I do not recall whether there was or not; we read the charge and got over that item all right, we were stuck several hours and could not come to that agreement and we put it down in pencil form so we could change it later provided we saw fit. It was decided at that time that everybody wanted to see him get some amount. After that the question was answered that he was not negligent. We never did agree he was negligent. We finally decided he was not negligent. We came down to the charge and we agreed he was not negligent. We agreed that accident happened by the negligence of the bus driver. We agreed among ourselves we wanted him to have something before we could agree if he was negligent or.not. We answered each question as we came to it. We answered the question that Mr. DeCuir was not negligent before we decided on any amount It was decided if we found he was negligent anywhere we could not give him anything. We decided he was not negligent ■before that. We all decided he was not negligent before that was mentioned. We figured the bus driver was going too fast and he was negligent, and the next question was whether or not Mr. DeCuir was negligent for not failing to stop or for failing to stop, and at that time we hitched up, and could not agree,, because we felt both were not negligent, .and he was entitled to some damages. W.e finally agreed he was not negligent before we went to another question. We never had agreed that Mr. DeCuir was negligent, but we spoke about it We felt that the negligence of the street car company was what caused the accident and injury, otherwise we would not have given him anything.
“Juror Louis George was asked if he recalled whether it was pointed out by some juror in order for plaintiff to recover they would have to answer the question of his negligence that he was not negligent, and whether he recalled anybody saying when they got to the issue of Mr. DeOuir’s negligence that you would have to find he was not negligent or he could not get anything out of the ease, and he answered that something was mentioned to that effect, I do not remember exactly what was said or wbo said it. That when they first got down to the issue when the first vote was taken there was nine that he was not negligent and three that he Was. There was some dispute on that issue before we took a vote on whether or not he should have anything. After the vote was taken we voted he was not negligent. He was asked if you found him guilty of negligence that would cut him off? He answered, No, not that, I think it was in the evidence what caused us to vote that way. Everybody voted that be was entitled to some amount. That was before we answered the issue whether he himself was guilty of negligence or not. The jury did not take a vote or anything except what was in the charger We took a vote as to whether he was entitled to damages. We voted unanimously that Houston Electric Company was negligent. We wrote our answers to each issue as we went down the line. On the issue as to whether Mr. DeCuir was negligent, we took a vote. The vote was nine to three, nine that he was not and three that he was. We had a discussion about it and voted again and twelve voted be was not negligent. We voted on whether we would give him damages or not. Q. Do you mean at the end of the issues how much he was damaged? A. Xes, sir. Q. In talking among each other you had decided among yourselves that the Houston Electric Company was negligent? A. Xes, sir. Q. And you thought Mr. DeCuir was not negligent, and you agreed to that before you answered any question? A. That is what we agreed to. Q. Did you base your verdict on any conversation in the jury room or on the evidence in the court room? A. From the evidence I heard. Q. Did the conversation in the jury room have any influence on your verdict? A. Not a bit in the world. Q. How did you take a vote on what you were going to allow? A. The question arose whether we would give him any damages. Q. When did that arise, before you answered any issue, or had you answered any of them? A. After we had answered all but the last one. Q. Xou finally took a vote and gave him $2500.00? A. Xes, sir. Q. How did you happen to vote whether he was to get anything, there was no issue on that? A. We wanted to arrive at some amount whether he was to get anything at all, there had not been any amount set. Q.. Xou took that vote in connection and just before you voted on the amount? A. Xes, sir. Q. Xou took a vote whether you wanted to give him anything, was that a vote or just an agreement? A. It was just a discussion. Q. After you voted, after you took the first vote on number 15, whether he was negligent, and you voted nine that be was not negligent, and three that be was, yon had a discussion, and that discussion is what you mean.when you say you voted you wanted to give him something? A. It was a discussion. Q. Xou decided among yourselves you wanted to give him something? A. Xes, sir. Q. And the other three also voted he was not negligent? A. After that. Q. There was not any votes taken, but you wanted to1 give him something? A. It was not an official vote like we had taken on the other issues.
“Juror George Courtney testified that the jury took up each issue in the order that they came and answered those issues. There was only one issue we had to argue on, or talked about any length of time, was about negligence in entering the street. He was asked whether they took more than one vote on whether plaintiff was negligent and he said the first time I understood it to be ten that he was not negligent and two that he was. We voted by raising our hands. It was asked: Had you all agreed in the beginning that the Houston Electric Company was negligent, and that was the cause of the injury, and he answered: No, not particularly, except that all voted the same way unanimously. Q. Had you all agreed or voted the plaintiff was not negligent? A. Yes, when we finally finished up we were all of the same opinion. Q. You all agreed on that unanimously? A. Yes, sir. The whole jury agreed the plaintiff was not negligent. Q. There was some discussion somebody mentioned that he was negligent, that if he was he could not get anything? A. I believe that was mentioned. Q. Was there any agreement of the jury on account of that? A. No, sir, I do not think there was any agreement.
“Juror H. A. Flaig, foreman of the jury, testified that they read the first issue and answered that and deliberated on that and when we reached the agreement we went on to the second and so on until we finished all of them. There were two issues we had some delay in answering. We put down the answers first in pencil and came bac-k later on and argued and discussed them freely and came back and put them down in pen and ink. We gave the same answers. Several votes were taken. They all agreed on it then, some of them had doubts whether he had stopped there or not when he got to the intersection, and after they reviewed the evidence on that, they switched over the other way. Q. Was there any agreement among the jurors that even if you agreed that M*. De-Cuir was negligent and his own negligence caused the injury that nevertheless you would return the verdict contrary to that, finding that he was not negligent, so he could get some verdict, did you agree on that? A. No, sir. We had some discussion as to whether the Houston Electric Company was negligent. All of the votes were unanimous but we ¡had a discussion. Q. Was there any agreement among the jurors, among all the jurors that those three should change the'ir opinion to give him something even though he was negligent? A. -No, sir, there was no agreement like that.
“Juror J. O. Gentry was asked if there’was any agreement among the jurors that they would find DeCuir was not negligent, even though they thought he was, or make that finding so they thought he could get a verdict, and he answered: Not that I know of. He testified that there was no vote taken. That he does not think any of the jury ever voted Mr. DeCuir was ever guilty of negligence in any respect in any issue.
- “Juror E. E. Stokes testified that when we first went into the jury room we elected- a foreman and he read the charge completely through and we had some discussion as we went through, but took no vote, and went back and started at number one and proceeded on through. We had quite a bit of discussion particularly on the negligence of the plaintiff DeCuir.
• “We had a discussion on several. Some had difficulty on how they wanted to answer them and we argued pretty near every question but did not come to a definite disagreement until we came to this question and the jury had quite an argument on that. I do not recall any definite vote taken until we reconciled ourselves. As I recall there was three, I was one that held out that I believed that Mr. DeCuir was negligent, and we argued,. I guess for a couple of hours, we went into it as fully as we could, finally I changed my vote because we went back to the interpretation of negligence which meant want of ordinary care, and the other jurors practically convinced me that I was expecting more than ordinary care, and I amended my vote because I thought pei’haps I was expecting more than ordinary care; In other words, I thought Mr. DeCuir possibly had been negligent according to my standard, but according to the interpretation’ of the court’s charge and what the other jurors felt about it, I thought possibly maybe I was expecting too much and amended my verdict. We talked until we finally agreed, practically all of us. we called for a vote arid it was unanimous. There was no agreement, I believe I made the remark while we were deliberating on it that I wanted this question thoroughly gone into, that the question in my mind, I thought if I could not be satisfied in my own mind that DeCuir had not been negligent, I did not think he had a right to any recovery, and I wanted this question thoroughly settled before we passed on it because it would have all the effect in my mind on voting on. the 'question. I did not base my verdict on anything other than the evidence and the charge of the court. I felt I wanted to be absolutely sure in my own mind from the evidence •that DeCuir was careful, because I felt like ■if lie was not I could not give him anything. -Q. Do you recall the jury agreed they thought that he ought to have something? A. I do not remember any agreement on that, -when we first read the charge we all felt De-(Ouir had established his case. Q. After you got down to special issue number 15 don’t you recall there was a discussion and they got an expression of opinion from everybody that everybody wanted him to get something? A. No, I was not in that frame of mind.”

To the majority of this court the vice in the refusal of a new trial inheres in the findings themselves, in that the facts therein recited on sufficient evidence affirmatively disclose that there was misconduct as a matter of law — the statement of one or more jurors to the others that plaintiff could not recover if they found him guilty of contributory negligence having been made, which left it at least reasonably doubtful whether that influenced some one of them in rendering their verdict — under such authorities in Texas as these: McFaddin v. Hebert, 118 Tex. 314, 15 S.W.(2d) 213; Simmonds v. St. L., B. & M. Ry. Co. (Tex. Com. App.) 29 S.W.(2d) 989; Gulf, C. & S. F. Ry. Co. v. Harvey (Tex. Com. App.) 278 S. W. 839; Walker v. Q. A. & P. Ry. Co. (Tex. Civ. App.) 41 S.W.(2d) 534; Moore v. Ivey (Tex. Com. App.) 277 S. W. 106; Bradshaw v. Abrams (Tex. Com. App.) 24 S.W.(2d) 372; Casstevens v. Ry. Co., 119 Tex. 456, 32 S.W.(2d) 637, 73 A. L. R. 89.

The pith of the dissenting view, on the other hand, is:

That this cause on its facts presents the legal equivalent of that very recently disposed of by our Supreme Court on certified question in Monkey Grip Rubber Company v. Walton, 53 S.W(2d) 770, where the Cole Case (Tex. Com. App.) 14 S.W.(2d) 1024, Id. (Tex. Com. App.) 16 S.W.(2d) 534, and Bradshaw, ■Casstevens, Simmonds, and Harvey Cases, et id genus omne, cited supra, were in effect distinguished ; that nothing further of substance occurred here than in that cause — where, along with the other things considered, the subject of insurance was brought up and discussed, as against the mention in this of the effect of a finding of contributory negligence. In both, however, the final effect of the whole testimony, whatever that first given imported, being to negative the occurrence of any actual misconduct, as this trial judge — in the exercise of the same authority as had a jury on original trial—expressly found. St. Louis, B. & M. Ry. Co. v. Cole (Tex. Com. App.) 14 S.W.(2d) 1024, and Id. (Tex. Com. App.) 16 S.W. (2d) 534. In other words, that this statement of facts as an entirety discloses: (1) Nothing more than a procedural inadvertence if that much on the jury’s part; (2) the removal of all reasonable doubt as to its having z-esulted in the prejudice of the appellant, especially by the obviously satisfactory explanation of the juror Stokes — one of the three who at first had thought the appellee negligent — that it had been caused by a misapprehension of the court’s charge as to the degree of care required. Further authorities supporting these individual conclusions are: Scottino v. Ledbetter (Tex. Civ. App.) 56 S.W.(2d) 282; Dallas Ry. & Terminal Co. v. Garner (Tex. Com. App.) 63 S.W.(2d) 542; Schoenfeld v. DePuy (Tex. Civ. App.) 58 S.W.(2d) 574, writ of error dismissed for want of jurisdiction; Earnhardt Co. v. Ray (Tex. Civ. App.) 51 S.W.(2d) 732; Barton v. Green (Tex. Civ. App.) ,62 S.W.(2d) 193, writ of error dismissed for want of jurisdiction; Wolfe & Co. v. Ry. Co. (Tex. Civ. App.) 144 S. W. 347, writ of error refused; Armstrong Co. v. Clem (Tex. Civ. App.) 151 S. W. 576, writ of error refused; International & G. N. R. R. Co. v. Jones (Tex. Civ. App.) 175 S. W. 488, writ of error refused; Weatherford Ry. Co. v. Thomas (Tex. Civ. App.) 175 S. W. 822, writ of error refused; James A. Dick Co. v. Yanez (Tex. Civ. App.) 55 S.W.(2d) 600, writ of error refused; Texas & P. Ry. Co. v. Foster (Tex. Civ. App.) 58 S.W.(2d) 557, writ of error dismissed.

Wherefore, in the phrase of the late Chief Justice Key, of Austin, it would" seem to amount to “the parsing of the appellee out of court” to deprive him of this verdict on nothing more substantial.

The judgment has been reversed, and the cause remanded.

Reversed and remanded.

GRAVES, J., dissenting.


source: Caselaw Access Project

author: PIERSON, Justice.

license: Public Domain

text:
    BURTTSCHELL v. SHEPPARD.
    No. 6102.
    Supreme Court of Texas.
    March 14, 1934.
    AVm. O. Bowers, Jr., of Beaumont, for relator.
    James' V. Allred, Atty. Gen., and T. S. Christopher and I-Iomer C. DeWolfe, Asst. Attys. Gen., for respondent.
   PIERSON, Justice.

This is an original petition for mandamus brought by John J. Burttsehell, sheriff of Lee county, Tex., to compel Hon. George H. Sheppard, comptroller of public accounts of the state of Texas, to issue a warrant or deficiency certificate to the relator for the amount of $775.40. It appears that the respondent had deducted this amount from relator’s bill of costs claimed to be due him by the state of Texas as sheriff in felony cases tried at the April, 1931, term of the district court of Lee county. Respondent alleges that this amount had been previously approved and paid to the relator under his bill of costs for the October, 1930, term of court, and that such payment was made without authority under the law, and that relator was indebted to.the state of Texas in this amount, and that under article 4350, Revised Civil Statutes 1925, he could not issue a warrant to relator as long as relator was indebted to the state.

This $775.40 represents claims for the summoning of witnesses in criminal cases who had been summoned at a previous term of court, but who were excused by the court and ordered resummoned at the October, 1930, term.

This case presents only two issues: First, whether the district judge has authority to excuse witnesses and order the district clerk to reissue additional subpoenas for the same witnesses in the same case for a later date during the same term or for the next term of the court, and whether the sheriff is entitled to his fees for serving such duplicate process; and, second, whether the state, having paid the fees for service of such duplicate process, unaware of the procedure followed by the officers, has a right to deduct the amount overpaid to the officer from a later account submitted by him.

It is contended by the respondent that the district judge, sitting as the district court, has no authority to discharge a witness and order him resubpoenaed for the same case at another term of the court; and hence, such imrported process being void, that the sheriff is not entitled to collect fees Tor executing the second subpoena.

Article 103, Penal Code of Texas, reads as follows:

“Before the clerk or his deputy shall be required or permitted to issue a subpoena in any felony case pending in any district or criminal district court of this State of which he is clerk or deputy, the defendant or his attorney or the State’s attorney shall make written sworn application to such clerk of each witness desired. Such application shall state the name of each witness desired, the location and avocation, if known, and that. the testimony of said witness is believed to be material to tbe State or the defense. As far as practicable such clerk shall include in one subpoena the names of all witnesses for the State and the defendant and such process shall show that the witnesses are summoned for the State or defendant. If any such clerk or his deputy shall issue any subpoena for any witness in a felony ease without complying with this article, or shall issue an attachment without an order of court, he shall be fined not less than twenty-five nor more than two, hundred dollars. (Acts 1889, p. 145; Acts 1st C. S. 1897, p. 5; Acts 1913, p. 319.)”

See, also, article 463, Code of Criminal Procedure, as amended by Acts 1931, c. 143, § 4 (Vernon’s Ann. C. C. P. art. 463).

It is the argument of the respondent that since the statutes do not expresly authorize the district judge to order subpoenas issued to compel the attendance of witnesses, he is without such power, and that subpoenas can issue only after sworn statements are filed with the clerk by attorneys in the case.

By .the Constitution of the state of Texas the district judges are empowered “to issue * ⅜ * all writs necessary to enforce-their jurisdiction.” Const, art. 5, § 8.

Article 1914, Revised Civil Statutes, 1925, provides that “judges of the district courts may either in term time or in vacation, grant * * ⅜ all * ⅜ * writs necessary to the enforcement of the jurisdiction of the court.”

The power to summon witnesses, and compel their attendance upon the court, to the end that justice may be administered, is inherent in the court, or implied from the act creating the court and vesting therein judicial powers. 7 R. C. L. 1033; 15 Corpus Juris 732, § 30; Hale v. State, 55 Ohio St. 210, 45 N. E. 199, 36 L. R. A. 254, 60 Am. St. Rep. 691; State ex rel. Rudolph v. Ryan, 327 Mo. 728, 38 S.W.(2d) 717.

In the case of Hale v. State, 55 Ohio St. 210, 45 N. E. 199, 200, 36 L. R. A. 254, 60 Am. St. Rep. 691, the Ohio Supreme Court had under consideration a statute which it was contended abridged the power of the court to punish summarily for a contempt. In the course of the opinion, Judge Shauck for the court used the following language:

“The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the orderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will. The power to maintain order, to secure the attendance of witnesses to the end that the rights of parties may b.e ascertained, and to enforce process to the end that effect may be given to judgments, must inhere in every court, or the purpose of its creation fails. Without such power, no other could be exercised.”

See 7 R. C. L., at pp. 1033, 1034.

The rule as formulated by Corpus Juris, vol. 15, at page 732, reads:

“While courts may have implied and resulting powers from a general grant of jurisdiction they have no powers which are inherent in the sense of appertaining to them without any express or implied grant, although powers granted to them by the Constitution become inherent in the sense that they cannot be abridged or taken away by ■the legislature. It has also been said that the inherent powers of courts are those which are essential to their existence and to the ■due administration of justice.”

In the case of State ex rel. Rudolph v. Ryan, 327 Mo. 728, 38 S.W.(2d) 717, the Supreme Court of Missouri had under consideration the validity of a writ of habeas corpus ad testificandum issued by the circuit court and served on a warden of the penitentiary, commanding him to produce in said court a prisoner in the penitentiary to testify as a witness in a certain case. In upholding the validity of the writ, the court said:

“The warden questions the authority of the circuit court to issue the writ. Circuit courts have jurisdiction over criminal cases, Section 22, art.. 6, Const. They are authorized by the Constitution to try such cases. They cannot do so without witnesses. Authority to compel the attendance or production of witnesses is an element of jurisdiction. It is essential to the existence of said courts and to the due administration of justice. 15 C. J. 732. Without such authority, there is no jurisdiction. In other words, said courts have the inherent power to compel the attendance or production of witnesses. Having such power, they are authorized to issue process, ‘according to the principles and usages of law,’ for that purpose. Yeoman v. Younger, 83 Mo. 424, loc. cit. 429. Furthermore, by statute, declaratory of the common law, ‘all courts shall have power to issue all writs which may be necessary in the exercise of their respective jurisdictions, according to the principles and usages of law.’ Section 1844, Rev. St. 1929 [Mo. St. Ann. § 1S44, p. 2565]. The writ under consideration is of ancient origin, and has been available at all times to compel the custodian to produce a prisoner in court to give testimony. We have no doubt of the full and complete authority of the circuit court of the city of St Louis to issue the writ.”

By the Constitution and statutes of this state district judges are expressly given the power to issue all writs necessary to the enforcement of their jurisdiction. The power to compel attendance of witnesses is one of the most vital necessities to a court in order for it to carry out the purposes for which it is created.

A careful reading of the statutes, both criminal and civil, fails to disclose any express prohibition against the issuing of a second subpoena for the same witness in the same case. By article 3707, Revised Civil Statutes, the authority of the court to discharge witnesses is affirmatively recognized, and, after his discharge, the witness is under no further compulsion to attend the sitting of the court The article provides:

“Every witness summoned in any suit shall attend the court from day to day, and from term to term, until discharged by the court or party summoning 'him. If any witness, after being duly summoned, shall fail to attend, he may be fined by the court as for a coptempt of court, and an attachment may issue against the body of such witness to 'compel his attendance,”

It is true that a witness may be compelled to attend the court from day to day and from term to term after he has been summoned, and the writ of attachment is available to compel such attendance; but if the court has discharged the witness and he is under no further compulsion, the writ of attachment would not lie.

We will not assume that a district judge would have a witness, or witnesses, unnecessarily or wantonly resummoned. He is acting as a court and in his judicial capacity. The resummoning of witnesses should occur only in exceptional cases, and under circumstances which in the mind of the court would create a necessity therefor. The better practice from the standpoint of economy and efficiency. would be for the court to refrain from discharging a witness before the end of the case, and to compel his attendance under the one subpoena; but where the judge has seen fit to discharge a witness, in the exercise of a sound discretion, or even arbitrarily and wrongly, and later such witness is needed to give testimony, it must be held that the court has the power to have the witness re-summoned. Authority so essential to the operation of courts will not be denied. The possibility of abuse of authority is no argument against its existence.

These principles are so fundamental and have been so often and so universally announced that we deem further citations find further discussion unnecessary.

We have reached the conclusion that the comptroller was not justified in refusing to approve the bill of costs as presented. Having reached this conclusion, the second question stated above does not arise in this case.

The writ of mandamus is, therefore, granted.


author: CHRISTIAN, Judge. LATTIMORE, Judge.

text:
    KERSTETTER v. STATE.
    No. 16369.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1934.
    Rehearing Denied March 28, 1934.

      W. W, Ballard, of Wichita Falls, 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.

Appellant insists that the evidence is not sufficient to support the conviction.

The owner of the stolen property, T. E. Johnson, left his home on the morning of March 13, 1933, and returned the 16th day of the same month. Upon his arrival home on the date last mentioned he found that a quantity of his clothing had been taken from his residence. Among the articles stolen were three suits, two pairs of pants, a rain coat, five shirts, a baseball suit, a bath robe, a pair of slippers, and a sweater. The aggregate value of the clothing was in excess of fifty dollars. Appellant, Marvin Monroe, and Mr. Johnson lived in the same town. H. M. Murphy lived next door to Monroe. He testified that on the night of March 13, 1933, he saw appellant and Marvin Monroe together in Monroe’s house, and that later during the night he saw Monroe spreading some clothing down on the bed. Glenn Long, who was present in the house with Murphy, testified that he saw appellant and Monroe leave Monroe’s home about 8 o’clock with two girls; that they blew the light out when they left; and that he did not hear any voices in the house until about 11 o’clock the same night. He testified, however, that Monroe and appellant returned to the house about 9 o’clock that night. He testified, further, that about 11 o’clock he saw appellant and Monroe enter the house, and later saw Monroe wrapping up some clothing, which looked like two suits. Miss Bertha Monroe, sister of Marvin Monroe, testified that appellant came to their home about 8 o’clock on the night of March 13, 1933, and with Marvin Monroe took her and Miss Essie Patterson to a dance. She testified that the men did not go inside when they reached the dance, and that she did not see them any more until about 11:30 that night. She said when she reached home she was unable to find the oil lamp that she had left in the house. After she had been at home a little while appellant and Marvin Monroe came into the house. We quote from her testimony as follows: “No one came with them — they had a bundle — I did not look to see what was in it — not a very big bundle. They struck a match — they had the lamp with them. Byron (appellant) had the lamp — I don’t know which one had the bundle.” Again, she testified that Marvin Monroe was dressed in a pair of pants that she had never seen before. When she asked him in the presence of appellant where he got the pants, he replied that he had gotten them over at appellant’s home. She testified that appellant then stated that they were his pants, and that they had gone to his house and gotten them. Further, she testified that appellant and Marvin stated that they had gotten the bundle over at appellant’s home. She heard appellant and Marvin, leave the house early the following morning. Miss Christine Monroe, who was in the house on the occasion in question, corroborated the witness last mentioned.: She said that when appellant and Marvin entered the house appellant was carrying the lamp as well as the bundle.

On the 16th of March, 1933, the chief of police of Electra arrested Marvin Monroe. It was proven by the state, without objection, that Marvin took the officers in the country to a culvert which was near the home of Charlie Raznor, and that they there recovered a bundle of clothing consisting, among other things, of a baseball suit, a belt buckle, two or three shirts, and some neck ties. The belt buckle had the initials T. E. J. on it. In the home of E. J. Dobbins the officers found two suits, a pair of trousers, three shirts, and a sweater. All of this clothing was taken to the city hall, and immediately thereafter Mr. Johnson, the owner, was advised of its presence. He went to the city hall and got the property; the testimony being to. the effect that the clothing was. not at the city hall after Mr. Johnson went there in response to information from the officers. Charlie Raznor testified that appellant and Marvin Monroe came to his home in the early morning, and that Monroe was carrying a bundle. E. J. Dobbins testified that Marvin Monroe came to his home about 3 o’clock in the afternoon of March 10th, wearing a- light brown suit; that he stayed at his place until 6:30 in the morning and then went to work with him; that the clothing found in his home by the officers had been left there by Marvin Monroe. Mr. Johnson testified that he went to the city hall and took possession of his clothing and property.

Appellant admitted that he was at the borne of Marvin Monroe on the night of March 13, 1933. He testified that he went to the dance with Monroe and the two young ladies mentioned, but said that after reaching the dance he and Monroe separated, and that he went back to Monroe’s house some time before midnight, alone. He said he met Monroe as he came around the corner, and that he (Monroe) had a bundle and a lamp. He testified that Monroe carried the bundle into the house and he carried the lamp. He stated that Monroe told the young ladies that he had gotten the clothes at his (appellant’s) house; and that he laughed and said: ‘Wouknow I never had any clothes like that.” Again, he testified that he spent the night' with Monroe and in the early morning he and Monroe went to Charlie Raznor’s home, as he wanted to get a gun from him. He said that Monroe carried the bundle from his home to Raznor’s and had it under his arm while they were there, but did not put the bundle under a culvert. Also he testified that after leaving Raznor’s he came on to town and did not see Monroe again. He said that when he left him, Monroe still had the bundle under his arm.

The opinion is expressed that the evidence is sufficient.

Appellant brings forward several bills of exception. The motion for new trial was overr ruled June 9,1938, and notice of appeal given on the same date. Appellant was granted sixty days from the date last mentioned in which to file his bills of exception. We find in the record no order of extension. The bills of exception were not filed until September 7, 1933. Manifestly, they were filed too late.

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 declined originally to consider appellant’s bills of exception because not filed in time. By a supplemental transcript it is made to appear that within the time first allowed appellant for preparing' and filing bills of exception an extension order was made by the learned trial judge, and that within the time so granted in said extension three bills of exception were filed, which are now considered. We observe that said bills of exception were not included in the transcript originally sent to this court, and were themselves brought here by supplemental transcript. It would lighten the labors of this court if the prosecuting attorneys would exercise some degree of supervision over the transcripts that come here to the end that same may contain all matters properly pertaining to the appeal and presented in the court below.

Bill Of exceptions No. 1 complains of the refusal of a peremptory instruction based on the proposition that the testimony was not. sufficient to show appellant’s guilt and connect him with the stolen property. We concluded in our original opinion that the testimony was sufficient. This bill is without merit. Bill of exceptions No. 2 is, in substance, the same as bill No. 1.

Bill of exceptions No. 3 was first brought here without the signature of the trial judge and the qualification which he had put upon the bill. A corrected bill, however, is brought before us by another supplemental transcript. The bill complains of the reception of testimony of the owner of the alleged; stolen property, as to its value. The clothing; taken was a quantity of personal property, chiefly wearing' apparel of various kinds.. This bill is qualified by the statement of the-trial judge, in effect, that there was no market for property of this kind at Electra .where it was stolen, and, this fact being developed, he-permitted the testimony complained of in this-bill, which embodied, in substance, the original cost price of the articles so alleged to-have been stolen, the length of their use, and the proportionate valúe of the articles in, question at the time same were taken. Appellant cites no authorities in support of his objection to the reception of this character of' testimony as to value. While unquestionably not the most satisfactory proof as to the value-of the property, yet in view of the fact that the testimony showed that it had no market value in Electra, the decisions of this court seem to be that the state may then resort to-some other standard of value. See Martinez v. State, 16 Tex. App. 122; Saddler v. State, 20 Tex. App. 196; Cooksie v. State, 26 Tex. App. 72, 9 S. W. 58; Rollins v. State, 32 Tex. Cr. R. 566, 25 S. W. 125; Roberts v. State, 61 Tex. Cr. R. 434, 135 S. W. 144; Osborne v.. State (Tex. Cr. App.) 56 S. W. 53; Keipp v. State, 51 Tex. Cr. R. 419, 103 S. W. 392. The-value placed upon the property by its owner, seemed in each instance to be considerably be- - low its cost, and the aggregate' value of all, the articles taken appeared to be in the neigh- - borhood of $75. The court told the jury they must believe from the evidence, beyond a reasonable doubt, that its aggregate value exceed-r - ed $50 before they could convict him of a,, felony. We do not believe the bill, of exceptions under discussion shows reversible error..

The motion for rehearing will, be overruled..


author: HAWKINS, Judge.

text:
    CREAGER v. STATE.
    No. 16389.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1934.
    Rehearing Denied March 28, 1934.
    A. C. Chrisman, of Cleburne, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for arson; punishment being two years in the penitentiary.

The indictment charges the offense. No statement of fact or bills of exception are brought forward. In such condition nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, Judge.

text:
    SANDLIN v. STATE.
    No. 16504.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    W. J. Oxford, of Stephenville, and E. T. Adams, of Glen Rose, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for one year.

The injured party, Raymond Bunt, was at the time of the assault a single 'man and twenty-seven years of age. He had gone to school with Vivian Sandlin, who was a sister of appellant. About a year before the assault, when Vivian Sandlin was about twenty-one years of age, she and the injured party agreed to go away together. They traveled around for some time, stopping at tourist camps and other places. Finally he returned home. He testified that she had left him while on the trip and gone away with another man. He testified, further, that he had never at any time had improper relations with her. After returning home he met appellant on a road. According to his testimony, appellant exhibited a gun and ran him away. On the occasion of the assault, the injured party had gone with Frances Russell to the home of appellant’s father. While Mr. Russell was talking to appellant’s father, the injured party sat in.the car. Appellant, who was in the yard, went to a tent, secured a pistol, and, ■approaching the car, fired several shots at the injured party, who jumped out of the car and began to run. Appellant fired another shot at him while he was running. Two of the shots took effect, inflicting serious wounds. He (the injured party) was not armed.

■Appellant-testified that his mother called his attention to the fact that Bunt was sitting in the automobile and asked him to make him leave; that he secured a pistol and went to the car for the purpose of ordering him away; that when he told him to leave he stated that he would not leave until he got ready; that when he made this remark he (the injured party) placed his hand behind him as if to draw a weapon, and he (appellant) fired several shots into the car; that he believed Bunt was going to shoot him. Appellant testified, further, that on the occasion he met the injured party in the road pri- or to the assault he had told him (the .injured party) not to come upon his premises as he did not want to have anything to do with him. Appellant’s version of the transaction was supported by the testimony of his father, mother, and wife.

We find in the record several exceptions to the charge of the court. They do not appear to have been in any mariner authenticated by the trial judge, but merely bear the signature of appellant’s counsel. Hence they cannot be considered.

There are no bills of exception in the record.

Believing the evidence sufficient to support the conviction, 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.


author: MORROW, Presiding Judge.

text:
    MILNER v. STATE.
    No. 16502.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    R. L. Graves, of Brownfield, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

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

According to the state’s witness Morgan Shumake, he and his companion, Lee Stockton, had a conversation with the appellant in which he was asked if he could procure a quart of whisky for them, to which he replied in the affirmative. Shumake and Stockton were riding in an automobile. They permitted the appellant to enter the car, and the three drove to the appellant’s house. They received from him two pints of whisky for which Stockton paid appellant the sum of $1.50. While Stockton and Shumake were driving down the street, they observed the sheriff and broke the bottles. The witness testified that, while they drank none of the whisky, they knew from its odor and appearance and from the circumstances that it was whisky.

Lee Stockton testified that, after learning from the appellant that he had whisky, he and Shumake went to his house and entered the back room;' that appellant left the room and came back with two pints of whis-ky. The witness and Shumake each took a pint of whisky, for which the witness paid appellant $1.50. Stockton did not drink any of the whisky, but identified it as whisky from its odor, appearance, and the circumstances under which it was purchased. Stockton’s testimony-about breaking the bottles when they saw the sheriff is similar to that of Shumake.

The sheriff testified that he saw the witnesses Shumake and Stockton while they were conversing with the appellant; 'that he saw the three of them go off together. He later saw Shumake and Stockton driving the car. He followed them and observed that they were breaking some bottles. He reached them in time to see the liquid which was in the car.

The sheriff corroborated Shumake and Stockton to the extent of seeing them talk to the appellant upon the street and seeing him get in the car with them.

Appellant offered testimony from the witness Leo Travis tending, circumstantially to show that Stockton and Shumake did not go to his (appellant’s) house. Mrs. Travis gave testimony similar to that of her husband, which tended circumstantially to controvert the presence of the state’s witnesses at the home of the appellant

The appellant testified in his own behalf to the effect that he had been a resident of Brownfield for over two years; that he was at home on the 21st of April, 1933, and arrested at 8:30 o’clock that night; that two young men came to life house that night, whom he later learned were Stockton and Shumake. From the testimony we quote: “I know Morgan Shumake now just from him being pointed out to me. I do not know the other hoy at all. I never saw them before today. On the night of April 21st I did not sell Lee Stockton two pints of whis-ky. There were two boys at my house that evening. I do not know who they' were, but they were two-thirds drunk.”

Appellant said that Stockton and Shumake were not at his house on April 21st. He contradicted their testimony as to having had any transaction with them on the occasion mentioned. Appellant testified that he had never been indicted for any offense.

There are no bills of exception and no legal question raised save the sufficiency of the evidence.

' There are exceptions to the indictment upon the ground that the appellant’s name was not correctly spelled. However, the correction was made in the indictment.

The conflicting testimony touching the sale of the whisky presented a matter for the determination of the jury, and their decision upon the record before us is binding upon this court.

The judgment is affirmed.


author: LATTIMORE, Judge. HAAYICINS, Judge.

text:
    HILL v. STATE.
    No. 16211.
    Court of Criminal Appeals of Texas.
    Nov. 22, 1933.
    Appeal Reinstated Jan. 24, 1934.
    Rehearing Denied March 21, 1934.
    Application for Leave to File a Second Motion for Rehearing Denied April 4, 1934.
    See, also, 48 S.W.(2d) 269, 120 Tex. Cr. R. 364.
    W. A. Anderson, of San Angelo, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

The trial term of the court below ended on the 14th day of April, 1933. Thereafter appellant entered into an appeal bond¡ which is manifestly defective in two regards. The date of the appeal bond appears clearly to be the 17th of April, 1930., It appears to have been approved by the district judge before whom the case was tried on the 18th of April, 1933, but nowhere bears the approval of the sheriff of the county.- Appeal bonds entered into after the adjournment of the trial term must bear the approval both of the district judge before whom the case was tried and of the sheriff. Article 818, C. C. P. Manifestly a bond signed by the accused and his sureties three years before the case was tried would be erroneously dated.

Our attention is also attracted by the fact that the notice of appeal was entered on the docket of the court below, but does not seem to have been carried into the minutes. This is not sufficient, and such minute entry should be shown, if further action of this court, considering this appeal, is desired.-

This court being without jurisdiction because of the defective appeal bond, the appeal is dismissed.

On Motion to Reinstate the Appeal.

. It now appears from a supplemental transcript that the defects causing the dismissal of the appeal have been remedied. The appeal will be reinstated and the case considered on its merits.

.Upon a former appeal, reported in 120 Tex. Cr. R. 364, 48 S.W.(2d) 269, the judgment was reversed. AVe see no need for making a statement of the facts here, same being sufficiently set out upon the former appeal.

Appellant presents but one proposition, viz., that since he was expressly convicted of murder without malice upon his former trial, the learned trial judge in the instant case erred in ordering a special venire, and in refusing appellant’s motion to quash said venire, the ground of the motion being that this was not a capital case at the time it was called for trial after the reversal, the proposition being that murder without malice and murder upon malice aforethought constitute two different degrees of the offense of murder, and that both being involved and submitted on the former trial, a conviction of murder without malice, ipso facto acquitted of murder with malice.

The first expression of this court upon this question appears in Herrera v. State, 117 Tex. Cr. R. 389, 36 S.W.(2d) 515, 517, in which this court said:

“Nothing in the case mentioned holds or implies that in the enactment of article .1257a, the Legislature created two offenses. But one offense was created, namely, that of murder. The legai penalty is death or confinement in the state penitentiary for any term of years not less than two, dependent upon the proof. If, however, the jury finds that there is an absence of malice aforethought, they are privileged to assess no higher penalty' than confinement in the penitentiary for five years. In the present case, the indictment being irregular and the verdict having been set aside at the instance1 of the accused, cannot be regarded as a sound basis for the present claim of the appellant that by the verdict [on former trial] finding him guilty of murder and assessing the death penalty he was acquitted of the capital offense. Precedents illustrating the correctness of the conclusion stated are numerous. Among them the following are mentioned: Sterling v. State, 25 Tex. App. 716, 9 S. W. 45, 8 Am. St. Rep. 452; Garza v. State, 39 Tex. Cr. 358, 46 S. W. 242, 73 Am. St. Rep. 927; Marshall v. State, 73 Tex. Cr. R. 531, 166 S. W. 722, L. R. A. 1915A, 526; Amer. & Eng. Ency. of Law, vol. 17, p. 606; Huey v. State, 88 Tex. Cr. R. 377, 227 S. W. 186, 12 A. L. R. 1003.”

This was followed in Ex parte Conway, 118 Tex. Cr. R. 148, 37 S.W.(2d) 1017, and again upheld in Morgan v. State, 121 Tex. Cr. R. 424, 49 S.W.(2d) 788, in the opinion on rehearing, and was discussed at lenth in the opinion in Hunt v. State (Tex. Cr. App.) 59 S.W.(2d) 836, in which all of the judges particR pa ted,, which was decided adversely to appel-i lant’s contention.

Not being able to agree with appellant, the judgment will be affirmed. =

On Motion for Rehearing.

HAAYICINS, Judge.

In his motion for rehearing appellant says we overlooked the fact that he filed written objection to the charge because the court failed to instruct on aggravated assault. Such objection does appear from the record but the point was not urged or mentioned in the motion for new trial, nor-briefed by appellant, hence we failed to discuss it in our original opinion.

Appellant now contends such instruction was called for under the following authorities: Stroud v. State, 113 Tex. Cr. R. 621, 24 S.W.(2d) 52; Miller v. State, 112 Tex. Cr. R. 125, 13 S.W.(2d) 865; Shannon v. State, 117 Tex. Cr. 429, 36 S.W.2d) 521; Dawson v. State, 70 Tex. Cr. R. 8, 155 S. W. 266. AVe think the facts in the present case distinguish it from those mentioned. The knife found on appellant after the homicide is described as a poclcetknife with a blade three or three and ,one-half inches long. Some of the wounds on the body of the deceased, other than the wound which caused his death, were of a serious nature. From’ these the deadly character of the knife was shown. Appellant did not admit the infliction of the wounds and in connection therewith deny an intent to kill as was the case in the authorities mentioned. Appellant denied any participation in the fight between his father and deceased except an effort on appellant’s part to separate them. He specifically denied that he at any time cut deceased. The facts from appellant’s testimony bring the ease within the principle announced in Colbert v. State, 52 Tex. Cr. R. 486, 107 S. W. 1115.

The motion for rehearing is overruled.


author: LATTIMORE, Judge. HAWKINS, Judge.

text:
    BILLINGSLEA v. STATE.
    No. 16348.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1934.
    Rehearing Denied March 28, 1934.
    A. B. Haworth, of Comanche, 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, two years in the penitentiary.

A Mrs. Corbin lived in the little town of •Gustine, Comanche county, Tex. Appellant, who was her brother, lived there also. Mrs. •Corbin’s 18 year old son testified that on a ■certain occasion he helped appellant carry into a kind of blacksmith shop or toolhouse on said premises a tool box of whose contents witness was without knowledge. .Officers testified that on the occasion here in •question, armed, with a search warrant to ■search Mrs. Corbin’s premises, they went to the place, and, among others, searched this blacksmith shop or toolhouse, and observing the box and a number of empty whisky bottles' around it, they shook the box, then opened it, and found in it a considerable quantity of whisky. Each of the other persons who lived at said place was introduced as a witness, and all of them denied any knowledge of or ownership of, or connection with, said whisky. The record is here without any bills of exception. We deem the evidence sufficient.

The judgment will be affirmed.

On Appellant’s Motion for Rehearing.

HAWKINS, Judge.

The motion for rehearing was placed in the mail on February 21st. The 15 days in which the motion could be filed expired on February 22d. The motion was received by the clerk of this court and filed on February 24th. Notwithstanding its delayed reception, the motion has been considered, and the facts again reviewed. Our opinion remains the same that the evidence amply supports the verdict, and the motion is overruled.


text:
    BROWN v. STATE.
    No. 16436.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    M. E. Lawrence, of Eastland, for appellant
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

The offense is burglary; penalty assessed at confinement in the penitentiary for two years.

Appellant was indicted April 13, 1933, and a verdict of guilty returned on June 15th. The Court adjourned on July 1st. The motion for new trial was filed in the trial court and overruled on the same day, but by inadvertence was not copied into the minutes until, by a nunc pro tunc entry, it was recorded October 6, 1963. The statement of facts was not filed until October 20, 1933.

It appears that for the offense two were indicted besides the appellant. One of them was the appellant’s wife, and the other whs Chester White, who was charged by separate indictment

Bill No. 1 is in substance to the effect that Chester White had been charged by separate indictment for the same criminal act as the appellant, and appellant made a motion for a severance to the end that the testimony of White might be used in evidence in behalf of the appellant. Upon presentation of this motion, the, district attorney announced that the state would consent to Chester White’s testifying as a witness on the trial, and, according to the bill, White was tendered as a witness to the defendant by the state’s attorney. Upon the happening of his occurrence, the court overruled the appellant’s motion for a severance, to which exception was duly reserved. In qualifying the bill, the court states: “That the witness, Chester White, was sworn as a witness in behalf of the defendant upon the trial hereof and after giving certain testimony, as disclosed by the statement of facts, said witness declined to further testify on the ground that such testimony might incriminate him.”

It affirmatively appears from the recitals in the bill of exception, as qualified by the court, that appellant had complied with the law entitling him to a severance to the end that White might be tried first, and, if acquitted, his testimony made available to the appellant. In lieu of ordering a severance and the trial of White, the court denied the severance upon the suggestion of the district attorney that White be used as a witness for the appellant. It does not appear that appellant acquiesced to the use of White as a witness in lieu of the severance. It does appear that the court overruled the appellant’s motion for a severance. It further appears that White availed himself of his privilege to refuse to testify fully as a witness upon the trial of the appellant. As stated above, the statement of facts is not available to this court, for the reason that it was filed too late after the adjournment of court; nor is there in the record a formal motion for a severance. However, the bill of exception, approved by the court, recites, that the reason for overruling it was that the district attorney had tendered White as a witness in behalf of the appellant. The court’s action plainly implies that the application for a severance was in conformity with the law, and the only reason for overruling it was that stated above, which was not binding upon the accused in the absence of his acquiescence, which it appears from the record was wanting.

Another bill of exception reveals that upon the trial the appellant called his wife as a witness, when the district attorney stated: “I could prevent your using Mrs. Brown, wife of defendant, as a witness for the defendant, because she is under indictment for the same offense; but the State urges no objection to her testimony, and I am tendering her to you for what it is worth.”

Appellant objected to these remarks in the presence of the jury. The law disqualified Mrs. Brown as a witness under the circumstances stated. We are unable to state just what the legal effect of the statement of the district attorney to which exception was reserved may have been, but the statement made by him was not a proper one, and, for that matter, it was not proper for the appellant' to call his wife, as a witness, he knowing that she was indicted. Touching the other matter, however, the granting of a severance, properly sought and unopposed by the parties to the transaction and causing no delay of the trial, is understood to be a matter of right. See article 651, O. O. P. 1925. Upon the record here presented, the duty of the trial judge to order the severance was imperative. No examination or reference to the statement of facts was necessary. See King v. State, 35 Tex. Cr. R. 472, 34 S. W. 282; also Bryan v. State, 97 Tex. Cr. R. 79, 260 S. W. 846; Batchan v. State, 104 Tex. Cr. R. 228, 283 S. W. 507; Vargas v. State, 104 Tex. Cr. R. 283, 284 S. W. 564; Jackson v. State (Tex. Cr. App.) 58 S.W.(2d) 1014; McBride v. State, 121 Tex. Cr. R. 549, 51 S.W.(2d) 337.

Upon the record before us, we are constrained to order that the judgment be reversed and the cause remanded, which is accordingly done.


author: KRUEGER, Judge.

text:
    YOWELL v. STATE.
    No. 16387.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    W. O. Seale, of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of the offense of burglary, and his punishment assessed at confinement in the state penitentiary for a term of two years.

The testimony adduced by the state upon the trial shows that on the night of the 16th of February, 1933, the warehouse of Mr. L. J. Massengill was entered and a case of marshmallows was broken into and some two or three packages taken out. The marshmallows were of the Angelus brand. The appellant and one Scott were in the town of Lufkin on said night driving around the town and were arrested by the city marshal, who searched their car and found a pistol bn the floor of the ear near their feet. They were taken to jail, and their car was parked on the side of the street near the jail. The next morning about 8 or 8:30 o’clock, Mr. Massengill discovered that his warehouse had been broken into and that a case of marshmallows was broken and some two or three packages taken out. He also discovered some tracks in the flour bin, one of which showed that the shoe had a broken place about the ball of the foot. After he had notified the officers of the burglary, they again searched appellant’s car and found therein a package of marshmallows bearing the same brand as those carried by Mr. Massengill in his store. They also found a .38 Colt pistol under the seat, a pinch bar, and a hammer. They also discovered what appeared to be flour on the running board and top of the car. The officers then went to the jail and took a pair of shoes to the store and fitted same into the tracks, and the shoes apparently fitted the tracks perfectly.

The appellant’s first complaint is that the cfourt erred in overruling his first application for continuance based on the absence of Earl Ridgeway. In his application he established that he expected to prove that, on the morning when it was discovered that Mr. Massengill’s warehouse had been burglarized (with which offense the appellant is charged), he was in jail at Lufkin and so was Earl Ridgeway; that during said day a deputy sheriff took some shoes from the jail for the purpose of ascertaining if they would fit the tracks found in the warehouse; that the said Earl Ridgeway, if present, would testify that the shoes taken out of the jail by the officers were not the shoes of the appellant. The application further alleged: “That defendant does not know of any other witness by whom such proof can be made; that defendant had process issued for said witness and the witness had been duly summoned as shown by the officer’s return thereon; that said witness had been in attendance upon court at each and every term since Said time and that he was not absent with the consent or by procurement of defendant,” etc. Said motion was overruled, to which ruling appellant excepted and asked for an attachment for said witness. The attachment was immediately issued by the clerk of the court, but was n'ot served on said witness, although the witness at the time was staying with his grandmother in the eastern part of the town of Lufkin, Angelina county, Tex. It appears to us that this application for continuance should have been granted. There was no property found in appellant’s possession which was taken from the burglarized warehouse unless it was the package of marshmallows which were not identified as some of those taken from said warehouse. Hence the state had to rely upon comparison of the shoes with the tracks in the warehouse besides some other minor circumstances. It is true the county attorney testified upon the hearing of the m'otion for new trial that the shoes were taken off of the feet of the appellant and then taken to the warehouse and fitted into the tracks, but the witness Ridge-way, who also testified at the hearing of the motion for new trial, was just as positive that the shoes were not taken off of the feet of the appellant, but were shoes that were lying on the floor in the cell of the jail and were not the shoes of the appellant. This testimony, it appears to us, was very material to the appellant. It raised an issue of whether the shoes which were taken from the jail for comparison with the tracks in the warehouse were appellant’s shoes and were taken' from his feet 'or were shoes which belonged to some other prisoner. It raised an issue which the appellant had a right to have passed upon and determined by the jury, and in support of the views herein expressed we refer to the following cases: Eppison v. State, 82 Tex. Cr. R. 364, 198 S. W. 948; Thomas v. State, 51 Tex. Cr. R. 329, 101 S. W. 797; Wilson v. State, 80 Tex. Cr. R. 442, 190 S. W. 155; White et al. v. State, 90 Tex. Cr. R. 584, 236 S. W. 745; Mathason v. State; 89 Tex. Cr. R. 136, 229 S. W. 548.

By bill of exception No. 6 appellant Complains of the action of the trial court in permitting the witness R. 0. Ohancey to testify as follows: “I did not find anything in that car other than that little package of marshmallows that was stolen”- — to which the appellant objected because it was an opinion of the witness and it had not been shown that the package of marshmallows was stolen or that it came from the alleged burglarized store, which objection was by the court overruled, and the appellant excepted. It appears to us that this was clearly an opinion of the witness which was permitted to remain with and be éonsidered by the jury as a statement of a fact. It conveyed to the jury the judgment of the witness that the marshmallows were not 'only stolen, but were stolen by the appellant from the store of Mr. Massengill. That this testimony was prejudicial and harmful is obvious. In the case of Bennett v. State, 39 Tex. Cr. R. 639, 649, 48 S. W. 61, 67, the state was permitted to prove by the sheriff!, Tom Bell, that he had exercised every effort possible to ferret out the perpetrater of the homicide, and that he had stayed in the neighborhood several days investigating everybody he could. This was objected to because it was a conclusion of the witness, etc. This court, in passing upon the question, said: “It was certainly very commendable in the sheriff * ⅜ ⅜ to use every exertion possible to ferret out the guilty party. But that affords no reason why this matter should be paraded before the jury, and such testimony can never be admissible. ⅞ * * ⅞⅛ character of testimony could not fail to impress on the jury the fact that the sheriff had been diligent. He had exhausted every effort to hunt down the guilty party, and he had finally centered on the defendant, and had had him arrested and indicted.” The case under consideration is one of circumstantial evidence, and the testimony of the officer that he found a package of the stolen marshmallows in the automobile of the appellant was clearly an expression of an opinion of the guilt of the appellant, and was prejudicial and hurtful.

For the errors herein pointed out,-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.


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    STORY v. STATE.
    No. 16507.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    E. T. Adams, of Glen Rose, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is adultery; the punishment, a fine of $100.

It was charged in the complaint, in substance, that, appellant, a man, and Dollie Zanders, a woman, on or about the 10th day of February, A. D. 1033, in Somervell county, unlawfully lived together and had carnal intercourse with' each other; the said Dollie Zanders then and there being lawfully married to another person then living. The information failed to charge that appellant and Dollie Zanders unlawfully lived together. However, it was alleged in the information that appellant “did then and there have carnal intercourse with the said Dollie Zan-ders, she being then and there lawfully married to another person then living, towit: Alfred H. Zanders.”

Article 499, P. C., reads as follows: “ ‘Adultery’ is the living together and carnal intercourse. with each other, or habitual carnal intercourse with each other without living together, of a man and woman when either is lawfully married to some other person.”

The statute defines two phases of the offense, one of which is the living together and carnal intercourse with each other, and the other the habitual carnal intercourse with each other without living together. Of course, in each case one of the parties must be lawfully married to some other person. Manifestly, the complaint charges the phase first mentioned, that is, the living together and carnal intercourse with each other. To charge the second phase of the offense it must be alleged that the parties had habitual carnal intercourse with each other without living together. Branch’s Annotated Penal Code, § 1044. The information, in failing to charge that the parties lived together, is at variance with the complaint which, as already pointed out, charged the first phase of the offense. If the complaint had charged adultery by having habitual carnal intercourse, the allegations in the information before us would be insufficient to charge such phase of the offense, as there is no averment that the carnal intercourse was habitual, and no allegation that the parties did not live together.

In view of another trial, it is suggested that inasmuch as it is indicated in the present record that the county attorney was permitted to amend the complaint in a matter of substance, a new complaint should be filed. Manifestly, a new. information will be required.

The judgment is reversed, and the cause remanded.

PER CURIAM.

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


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    PHILLIPPS v. STATE.
    No. 16498.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    W. D. Justice, of Athens, and Alex P. Pope, of Tyler, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Theft of an automobile is the offense; penalty assessed at confinement in the penitentiary for two years.

The purported statement of facts is entirely in question and answer form. This court is not authorized to consider it for any purpose. See Acts of 42d Legislature, 1st Called Session, chapter 34, p. 75 (Vern'on’s Ann. Civ. St. arts. 2237-2239 and note, and Vernon’s Ann. C. C. P. art. 760, subd. 1, and note); also the application of the article in Wooten v. State, 121 Tex. Cr. R. 462, 50 S.W.(2d) 834; Olivares v. State, 121 Tex. Cr. R. 261, 53 S.W.(2d) 305; Hill v. State (Tex. Cr. App.) 55 S.W.(2d) 835; Turman v. State (Tex. Cr. App.) 60 S.W.(2d) 231; Oliver v. State (Tex. Cr. App.) 60 S.W.(2d) 234.

The record contains but one bill of exception, which complains of the argument of the attorney for the state. Without quoting the argument, we will state that its transcends the rule of legitimate debate and comments upon matters not open to discussion, unless invited by the opposing party. However, the absence of the statement of facts precludes the authority of the court to order a reversal =of the conviction because of the argument. Not having before us the evidence heard by the jury, we cannot be assured but that the evidence of guilt was conclusive and uneontroverted. Especially is this true in view of the approval of the verdict by the trial judge. Under the circumstances, we are constrained to affirm the judgment with the statement, th-at if there were before us evidence presenting a question touching the guilt of the accused, we would be disposed to order a reversal 'of the judgment because of the argument mentioned.

The judgment is affirmed.


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    KEILS v. STATE.
    No. 16493.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    A. B. Geppert, W. Y. Geppert, and Ellen Vietery, all of Teague, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is drifting cattle into quarantined territory; the punishment, a fine of $5.

A live stock sanitary inspector of Freestone county testified, in substance, as follows: One of the dipping vats in his charge was situated approximately a mile and a half from the line between Leon and Freestone counties. On the 7th of July, 1932, he saw at this vat a steer branded “Half Circle A” and marked “under slope” in each ear. This was the brand used by appellant. The regular range of appellant’s cattle was in Leon county. He did not know how the steer “came to be at the vat in Freestone County.” Edgar Conaway, a witness for the state, testified that he saw the steer in question at the dipping vat on the 7th of July, 1932. He testified further that appellant’s vat was located in Leon county. J. S. Ivy testified that appellant’s vat was situated in Leon county about a mile from the line of Freestone and Leon counties. He testified further that he did not know who owned the steer with the brand “Half Circle A” on it.

H. C. Gore, a witness for appellant, testified that appellant’s vat was about three miles from Brice Cunningham’s home and that the steer in question was driven by Brice Cunningham with his (Cunningham’s) cattle to the dipping vat in Freestone county on July 7, 1932. He testified that he saw the steer with Cunningham’s cattle. Again, his testimony was to the effect that cattle frequently drifted over the county line from Leon county to Freestone county and vice versa. He testified, further, that it was impossible to prevent cattle from going from one territory to another where the range was open, as it was in the vicinity of the county line. Brice Cunningham, testifying for appellant, corroborated the witness Gore as to driving the steer with his cattle to the dipping vat. He testified that the steer had taken up with his 'cattle, and that, as he was driving his own cattle to the vat for the purpose of dipping, he took the steer along. Appellant did not tell him to drive the steer to the dipping vat in Freestone county, and, as far as he knew, appellant did not know that the steer was with his cattle.

Under the charge in the complaint, it was incumbent upon the state to prove beyond a reasonable doubt that appellant permitted and allowed the steer to drift from Leon county into Freestone county. The state introduced no testimony as to any act or omission on the part of appellant indicating that he had anything to do with the drifting of said steer into Freestone county. The evidence was undisputed that said animal had taken up with the cattle of Mr. Cunningham, and that, without any suggestion upon the part of appellant, he (Cunningham) had driven the animal to the dipping vat with his own cattle. In the state of the record, we are unable to reach the conclusion that the evidence •is sufficient to support the conviction. 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.


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    COMOUCHE et al. v. STATE.
    No. 16438.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    R. G. Robertson, of Port Arthur, for appellants.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellants were charged with the offense of an assault with intent to murder, and convicted of an aggravated assault and battery; the punishment assessed being a fine of $25 and 90 days in jail.

The testimony on the part of the state shows that on January 22, 1933, Joe Coleman, the injured party, and Felix Comouche, one of the appellants, had been to a party. They returned to the home of Coleman about 7:15 p. m. Felix Comouche did not live at Coleman’s house, but spent the greater part of his time there. After reaching Coleman’s home, Felix inquired of Coleman about his, Felix’s, coat. Coleman told him he did not know where it was and for him to go home and come back the next morning for it. After this remark Felix struck Coleman and Coleman struck Felix with a heavy chair, whereupon Felix left, but soon thereafter returned with his son Horace, broke open the door of Coleman’s home, and began to throw rocks into his house. Coleman ran out of the house and as he did so Horace stabbed him, and Felix hit him with a stick, inflicting serious wounds upon him. The appellants’ version of the affair is that Horace was not present at all at the home of Coleman at the time of the difficulty between Coleman and Felix; that Coleman became angry when Felix inquired about his coat and ordered him, Felix, to leave; that, when Felix insisted upon looking for his coat, Coleman struck him in the face, knocking out several teeth, whereupon Felix began to cut Coleman with a knife; that after the difficulty, Felix started to the home of his son, Horace, and while en route he met Roy Holliday, who carried him to the home of his son Horace. When they arrived at the home of Horace, they found Horace at home with Clarence Williams and Isaac Broussard. Holliday, Williams, and Broussard corroborated appellants in their version of the affair.

The court in his charge submitted the issue of aggravated assault and battery, simple assault and battery, self-defense, and an alibi. The appellants’ only objection to the court’s charge was that the court did not submit to the jury the issue of defense by Horace in behalf of his father Felix. If the evidence had raised said issue or said theory of defense by Horace in behalf of his father, no doubt the court would have charged on the same, but the appellants denied that Horace had anything to do with the difficulty, denied his presence at the home of Coleman at the time of the difficulty, and were supported in this by the testimony of Holli-day, Williams, and Broussard. Not having raised -the issue by any testimony nor relied thereon, it was not error on the part of the court.to fail to instruct the jury on said theory. In support of the views herein expressed,. we cite the following authorities: Mitchell v. State, 38 Tex. Cr. R. 170, 41 S. W. 816; Rembert v. State, 67 Tex. Cr. R. 307, 148 S. W. 1097.

Finding no 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.


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    WILLIAMS v. STATE.

      No. 16503.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    Vickers & Campbell," of Lubbock, and R. L. Graves, of Brownfield, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of the offense of rape, and his punishment assessed at confinement in the state penitentiary for a term of 10 years.

The'indictment charges appellant with the “rape of Ethel Foster, she being then and there so mentally diseased at the time of said carnal knowledge as to have no will to oppose said act, and the said Fred Williams then and there knowing her to be so mentally diseased.” To meet this allegation, the state was required to prove, first, the act of intercourse by the appellant, and, second, that Ethel Foster was mentally unsound at the time to the extent that she had no will to oppose the act. If the state failed to prove either fact beyond a reasonable doubt, an acquittal should result. Therefore, the evidence must show that prosecutrix was mentally unsound to the extent that at the time she had the act of intercourse she had no will to oppose said act.

To prove an act of intercourse by the appellant with said Ethel Foster, the state offered O. L. Foster, a brother of Ethel, as a witness, and he stated that on the 28th day of October, 1932, he went to his father’s home on a visit. Upon his arrival there, he observed the appellant leaving the house by the rear door ; the father of Ethel at the time being in the field. The witness entered the home and found his sister Ethel holding to the foot of the bed, but the bed did not appear to be disturbed or ruffled, nor was there anything in the conduct or appearance of Ethel which aroused his suspicions. On the 5th of March, 1933, after the witness had learned of his sister’s condition, he made a complaint against the appellant, charging him with rape, and on the 8th day of March, 1933, he made a complaint against Ben Rhodes, charging him with rape of Ethel Foster. Gharley Webb testified for the state that in January, 1933, he had a conversation with the appellant in which the appellant told him that he was fixing to take Ethel Foster to Dobbs, N. M., so that she and Ben Rhodes could get married. A. W. Alsup testified for the state that in the month of October, 1932, he had a conversation with the appellant in which appellant asked him why he did not go over to Ethel Foster’s and have a good time, to which he (the witness) replied, “If I did I would want her to have a good mind,” whereupon the appellant said, “Hell, that makes no difference with me.” A. D. Cooper testified for the state that some time on or about the 11th day of July, 1933, he had a conversation with the appellant in which the appellant remarked, “Have you heard of my new son over there?” pointing to the Foster home. This is all the testimony introduced by the state bearing on the alleged act of intercourse by the appellant with Ethel Foster. The appellant testified in his own behalf, denying any act of intercourse with Ethel, and he also proved by his wife, Mrs. Williams, that Ethel Foster told her that Ben Rhodes was the author of her pregnant condition. With reference to the unsoundness of the mind of Ethel Foster, the state proved by her father, brother, sister-in-law, and one doctor that in their opinion Ethel was of unsound mind, and a teacher who testified that she taught Ethel while she attended school and that in her opinion she was mentally deficient, while another doctor and neighbors testified that while she (the said Ethel Foster) was crippled and could not get around very well, yet she was of sound mind. We do not deem it necessary to set forth the facts upon which the witnesses based their opinions, as it would not materially change the conclusions reached. The testimony further shows that she (the said Ethel Foster) attended school four years and completed the third grade; that she learned to read and could read a newspaper; that at the time of the alleged act of intercourse she was 26 years of age and resided with her father on a farm; that she and her father did the cooking and performed all the household duties; that she visited her neighbors by herself; that she attended parties and associated with a young man by the name of Ben Rhodes.

One of the main questions to be considered is wh'ether Ethel Foster comes within the purview of the statute. To what extent must a girl be of unsound mind to obtain the protection of the statute? Where is the line of demarcation by which a man may know when he is transgressing the law? Judge Henderson, speaking for this court in the ease of Lee v. State, 43 Tex. Cr. R. 285, 64 S. W. 1047, 1048, with reference to the condition of mind of the injured female, said: “How unsound must it be? Evidently it must be 'so impaired as tp be incapable of yielding an intelligent assent to what 'is being done. In our opinion, the same test must be applied to this impairment of intellect which exonerates from responsibility on account of insanity as to other criminal matters. That 'is, the intellect must be so broken down or destroyed by disease as not to know the right and wrong of the particular act, or, knowing the right and wrong thereof, on account of mental disease not able to oppose the will to the act of carnal intercourse. In other words, if the female is intelligent, and is capable of yielding to persuasion, and is overcome by that, she is not the subject of rape, under this statute.”

We do not believe that the facts in this case are sufficiently cogent to bring the alleged injured female within the intent and spirit of the statute (Pen. Code 1925, art. 1183). The testimony shows that, while she was crippled and not physically very strong, yet she, with the aid of her father, did the cooking and looked after the household affairs;' that she Went to school and learned to read; that she visited her neighbors by herself, went to parties, and was anxious to get married. She certainly is not so impaired mentally as not to know the right from the'wrong, because she attended school four years and learned to read; she helped as much as- she was physically able with the cooking and household duties ; she had some conception of what marriage meant; she had sufficient intelligence to visit neighbors by herself and attended parties. Under these circumstances, we believe that the testimony of her teacher who testified in this case accurately expressed her mental condition when she testified that Ethel is mentally deficient, but mere mental deficiency would not bring her within the scope of the statute. She must be so mentally deranged as to have no will power to assent or dissent. Without entering upon a further discussion of the question, we content ourselves with the statement that we believe that the testimony-in this ease does not measure up to the requirements of the law as to the mental unsoundness of the female alleged to have been raped.

Therefore 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.


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    PEREZ v. STATE.
    No. 16440.
    Court of Criminal Appeals of Texas.
    March 14, 1934.
    Chas. J. Stein, of Corpus Christi, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin,, for the State.
   CHRISTIAN, Judge.

The offense is misdemeanor theft; the punishment, confinement in jail for one year.

Elmo Blake, a witness for the state, testi-' fied, in substance, as follows: He operated a Gulf filling station in Corpus Christi. On the 6th of September, 1933, he heard a noise in the filling station. Upon entering the room in which the cash register was located he discovered appellant in the act of taking the money out of the cash register and putting it in his pocket. He grabbed appellant and, holding him, made him empty one of his pockets of an amount of money approximating $26. This was the money appellant had taken from the register. Holding appellant by the arm, he started to call for the officers. While he was telephoning, appellant disengaged himself and started to run down the street. He left the telephone and pursued appellant, who had a knife in his hand as he was pursuing hi'm. He caught appellant after running him for several blocks. He took him to jail, where he was searched and $4.90 found ip his pockets.

Appellant testified that he entered the filling station for the purpose of going to the rest room; that he noticed that the cash register was open; and that as he started for the rest room, he met Elmo Blake coming out; that he did not open the cash register and take any money therefrom; that whén Blake saw him in the station he accused him of trying to rob the station and he denied the charge; that when Blake called for the police he ran down the street pursued by Blake; that the $4.90 taken from him at the jail had been earned by him while serving a sentence in jail, he having been released from jail nine days before the alleged theft. Appellant testified on his cross-examination that he had been sent to jail for carrying a pistol; that he had theretofore been convicted for fighting; that he had once served eight months for attempt to murder.

In bill of exception No. 1 it is recited that the county attorney asked appellant on cross-examination the following question: “Eor what offense were you convicted the last time you were in jail?” Over appellant’s objection to the effect that it was a misdemeanor not involving moral turpitude, he was required to answer that he had been fined a hundred dollars and costs on a charge of carrying a pistol. This testimony was inadmissible. It was a misdemeanor not involving moral turpitude. However, appellant had testified on his direct examination upon questions propounded by his counsel that he had been released from jail nine days before the alleged theft. He went into the matter of having been in jail. Under the circumstances, we would not feel warranted in holding that the additional information elicited from appellant by the county attorney to the effect that his incarceration was for carrying a pistol should work a reversal of the judgment.

In bill of exception No. 2 appellant complains of the action of the county attorney in asking him on cross-examination if he had riot been arrested in Robstown for theft and tried therefor. The question was proper for the purpose of impeachment. The offense of theft involves moral turpitude. It is observed that appellant answered in the negative. The bill fails to reflect error.

Bill of exception No. S shows that upon cross-examination appellant, was asked if he had not been arrested for theft by Mr. Jenkins, a peace officer. He answered in the negative. The question was not proper inasmuch as the mere arrest would not afford ground for attacking appellant’s credibility as a witness, in the absence of a legal charge having been preferred. The fact that appellant answered in the negative would' render the matter harmless.

Bill of exception No. 4 relates to appellant’s objection to the introduction in evidence of a statement signed by him while in jail where he had been incarcerated for carrying a pistol. In this statement appellant' requested his release and stated that he was without funds but willing to go to work. The objection to the introduction of the statement was that it was made prior to the commission of the offense charged in the present case, was outside of the record, irrelevant, and immaterial. No.objection was made on the ground that appellant was in jail charged with another offense at the time the statement was made. Hence it is unnecessary to determine whether it would have been admissible if such objection had been made. As to the objections interposed, the trial court was warranted in receiving the statement. Appellant testified upon his direct examination that he had been released from jail nine days before and that during the time he was in jail he had earned the $4.90 found in his possession at the time he was searched. The statement was contradictory of the testimony given upon the trial as to his possession of money.

It is shown in bill of exception No. 5 that the court limited the argument to ten minutes on each side. Appellant stated to the court that such time was not sufficient. There is nothing in the bill -to show that appellant used the ten minutes allotted to him. Under the circumstances, we would not be warranted in holding that there was an abuse of the court’s discretion. It was incumbent upon appellant to incorporate in his bill of exception the facts showing injury .further than is contained in the statement made by his attorney to the trial court at the time, as his reasons for desiring additional time. Burkhalter v. State, 93 Tex. Cr. R. 504, 247 S. W. 539. In Bailey v. State, 37 Tex. Cr. R. 579, 40 S. W. 281, this court held that the statute vests in the judge presiding discretion with reference to the argument of a case, and unless this discretion is shown to have been abused the judgment will not be reversed. From Branch’s Annotated Penal •Code, § 358, the following is taken: “To cause .a reversal the bill of exceptions must show -that the court unreasonably limited the .argument of counsel and that counsel spoke and consumed all the time allotted.” If the statement of facts should be considered, it is observed that it contains four pages of testimony. The state used two witnesses, and appellant alone testified in his own behalf.

Failing to find reversible error, the judgment is affirmed.

PER CURIAM.

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