author: DATTIMORE, Judge. KRUEGER, Judge.

text:
    GARZA v. STATE.
    No. 16274.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1934.
    Appeal Reinstated March 7, 1934.
    De Witt Murray, of Floresville, and W. H. Blanton, of San Antonio, for appellant.
    ULoyd W. Davidson, State’s Atty., of Austin, „ for the State.
   DATTIMORE, Judge.

Conviction for cattle theft; punishment, two years in the penitentiary.

Examining this record, we observe that same contains no notice of appeal. Without such notice of appeal, duly given and entered upon the minutes of the court below — which fact should appear in the record on appeal —this court is without jurisdiction.

The appeal is dismissed.

On Reinstatement of Appeal.

KRUEGER, Judge.

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

At a former day this ease was dismissed because the record failed to show that notice of appeal was given in open court. Since then the record has been perfected, and upon motion duly made the appeal is reinstated and the case will now be considered on its merits.

It appears from the record that the appellant, Frank Valdez, Salvador Garcia, and Malicia Acosta were all indicted separately for the theft of a yearling belonging to Mike Tndo. Frank Valdez, one of the codefend-ants, after stating that he had been led to believe he would receive immunity, testified for the state that the appellant, Garcia, Acosta, and himself went to Yndo’s pasture at nighttime, killed a yearling, and took the meat home in a sack. Refugio Valdez, the wife of Frank Valdez, testified for the state that she knew Salvador .Garcia,, Malicia Acosta, and Vicente Garza; that they were all at her home on Saturday night, April 22d; that they, together with her husband, left home about 9 o’clock that night; that the next day she saw appellant, but he said nothing to her; that on the 26th of April she saw the appellant again and he told her that he killed a calf by shooting it. Miguel Zepeda testified that on Sunday night appellant came to his home about midnight with a fore quarter of meat and gave it to him (the witness) ; that he (Zepeda) supposed at the time it was stolen meat but that he did not know for sure. D. J. Acosta testified that he was a deputy sheriff of Wilson county and on or about the 25th: of April, 1933, he arrested Frank' Valdez, Salvador Garcia, Malicia Acosta, and the appellant, who were charged with the theft of said yearling; that Valdez asked him what that yearling would cost, that they would pay for it, and when he asked Valdez who was with him, he said Salvador Garcia, Malicia Acosta, and Vicente Garza; that Valdez also told him that Garza had told him (Valdez) that he (Garza) killed the yearling. The appellant did not testify.

By bill of exception No. 1 the appellant complains of the action of the trial court in permitting the wife of Frank Valdez, one of the codefendants, to testify that on the night of April 22d her husband and Malicia Acosta left home about 9 p. m. and later returned with some meat; that on the 26th of April, Vicente Garza told her he shot the calf, to which the appellant objected because the witness was the wife of one of the codefendants whose case has not been disposed of and that under the law she could not testify against her husband, a codefendant, although separately indicted, which objection was by the court overruled and the appellant excepted. There would probably be some merit in the appellant’s exception if Frank Valdez, the husband of said witness, had not taken the witness stand and admitted his connection with the theft of the yearling; but inasmuch as he testified and admitted his guilt, we do not think that there was any error in the court’s action in overruling the appellant’s objection.

By bills of exception 2, 3, 4, 5, and 6 the appellant complains of the action of the trial court in permitting the witness D; J. Acosta, deputy sheriff of Wilson county, to testify that Frank Valdez told him that Salvador Garcia, Malicia Acosta, and Vicente Garza were all together in butchering the calf; that he, the said Valdez, took his part of the meat home and ate it; that Vicente Garza killed the calf by shooting it; that they skinned the calf, cut it up, and took the meat home in sacks — to which the appellant objected because it was hearsay, was an admission by one of the defendants after the consummation of the alleged offense, and was not made in the presence of' the appellant, which objections were by the court overruled. The court in his qualification- to said bill certifies that said Valdez was not under arrest at the time. It appears to us, however, that it is immaterial whether he was under arrest or not, since the statement was made after the conspiracy to commit the offense had ended and in the absence of the appellant. It is well established by an unbroken line of authorities that after a conspiracy to commit the offense has ended, the declarations of. one coconspirator or codefendant, in the absence of the other coconspirators, cannot be introduced as evidence against any of the other coconspirators, and in support of the proposition we refer to the following cases: Henry v. State, 100 Tex. Cr. R. 183, 272 S. W. 475; Goodman v. State, 104 Tex. Cr. R. 589, 285 S. W. 821; and Mixon v. State (Tex. Cr. App.) 31 S. W. 408.

The appellant also complains of the action of the trial court in instructing the jury in one paragraph of his charge that Frank Valdez was an accomplice as a matter of law, and then, in another paragraph, he instructed the jury that “if they believed from the evidence that Frank Valdez was an accomplice, or if they had a reasonable doubt thereof, then they could not convict the defendant upon Frank Valdez’s testimony alone, etc.” The appellant objected to said charge because one was a contradiction of the other and calculated to mislead the jury. We are of the opinion that there is merit in the appellant’s contention because said two paragraphs of the court’s charge are inconsistent with each other. Valdez was an accomplice as a matter of law, and the court was correct in instructing the jury in the first instance, and therefore should not have incorporated the charge which left it to the jury to determine whether he was an accomplice. It was appellant’s legal right to have the jury unequivocally instructed that Valdez was an accomplice. It has been consistently held by this court that where one part of the court’s charge is contradictory of another part of the charge, or the same are inconsistent with each other, and the jury may have been misled thereby, that the same is error. See Haynes v. State, 10 Tex. App. 480; Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875.

The appellant also objected to the court’s charge because it failed to instruct: the jury that if they believed from the evidence that the witness Miguel Zepeda received part of the meat of the stolen yearling knowing it to have been stolen, or under circumstances which made him guilty of receiving stolen property, then he would be an accomplice, and if they so found, then they could not convict the appellant upon the testimony of Zepeda alone. We- believe that this position is well taken and is in accord with the decisions by this court in the case of Walker v. State, 37 S. W. 423, and Johnson v. State, 58 Tex. Cr. R. 244, 125 S. W. 16.

The appellant also objected to the court’s charge, in’ that it failed to instruct the jury that the wife of Frank Valdez was an accomplice witness because she had retained and used part of the meat of the stolen animal knowing it to have been stolen. We do not agree with the appellant’s contention; but if, upon another trial, there should be evidence from which the jury may conclude that she was an accomplice, then the court should submit the issue to the jury.

For the errors above 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.


source: Caselaw Access Project

author: CHRISTIAN, Judge.

license: Public Domain

text:
    HUFFMAN v. STATE.
    No. 16326.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    Oxford & McMillan, of Stephenville, for appellant.
    Lloyd W- Davidson, State’s Atty., of Austin,, for the State.
   CHRISTIAN, Judge.

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

Appellant pleaded guilty and filed an application for a suspended sentence. The proof on the part of the state was to .the effect that a peace officer discovered in appellant’s truck approximately fifteen half-gallon jars of whisky. The truck was parked near a store in the city of Stephenville.

In his motion for new trial, appellant alleged that the jury, after retiring to deliberate upon the case, received other testimony. The specific complaint was that one of the jurors stated in the presence and hearing of the jury, before a verdict had been reached, that appellant had received $5,000 insurance on the life of his wife and had paid off the debts against his ranch; and, further, that upon this statement the juror predicated an argument in opposition to suspending the sentence. It appears from the testimony heard upon the motion that upon the first ballot eleven of the jurors voted to suspend the sentence, and that the juror to whom the misconduct was attributed cast a vote to the contrary. Thereafter, several ballots were taken, resulting eventually in the conclusion that appellant was not entitled to a suspension of sentence. Appellant introduced two of the jurors, both of whom testified that the statement in question was made by Mr. Hale, one of the jurors, prior to the time the jury had determined whether the sentence should be suspended, and after the jury had stood eleven for suspension and one against it. The nine jurors testifying for the state testified that the statement attributed to the juror Hale was not made until after the verdict had been reached and signed, and that they had called for the court and were waiting for him to receive the verdict at the time such statement was made.

The juror Hale testified that after the verdict had been reached and signed and while they were waiting for the judge to come to receive the verdict, he stated that he thought appellant owned a farm and that appellant had gotten about $2,000 insurance which he supposed he used to discharge any debt on his property.

It is unnecessary to decide whether the reception of the new evidence would constitute reversible error if it had been shown that the remarks had been made prior to the time the jury reached a verdict. There was a conflict in the testimony as to the time the remarks were made. Under the evidence before the trial judge he was warranted in concluding that such remarks as were made on the subject were after the verdict had been agreed upon and prepared, and while the jury were waiting to deliver it to the judge. Under such circumstances, the finding of the trial judge is binding upon this court, unless it is shown by the record that his conclusion was clearly wrong. Garza v. State, 121 Tex. Cr. R. 321, 50 S.W.(2d) 322; Perkins v. State, 120 Tex. Cr. R. 399, 46 S.W.(2d) 672; Johnson v. State, 118 Tex. Cr. R. 454, 40 S.W.(2d) 111; Russell v. State, 109 Tex. Cr. R. 654, 6 S.W.(2d) 760.

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: LATTIMORE, Judge. HAWKINS, Judge.

text:
    BERGEMANN et al. v. STATE.
    No. 16193.
    Court of Criminal Appeals of Texas.
    Feb. 7, 1934.
    Rehearing Denied March 14, 1934.
    Sehleyer & Luckett, of Ndw Braunfels, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for theft of cattle; punishment, two years in the penitentiary.

Mr. Word lived eighteen miles west of New Braunfels, in Comal county, and had a large pasture in which were a number of cows and calves. He had missed several head. The substance of his testimony is that about 7 or 8 p. m. on Monday, September-26, 1932, as he was going home from New Braun-fels,- he .overtook these two appellants who were riding in a gray Chandler car in which witness had often, seen them together before. Noting particularly both the car and its two occupants, Mr. Word followed along behind them until they came to a fork in the road. They took the left-hand going toward Boerne, and witness took tlie right-hand going toward his home on the Blanco road. Hisi ranch extended from the Blanco road across to the Boerne road. After eating supper, witness saddled his horse and rode over his pasture, and, as he was riding near the Boerne road, he saw appellants in the same car, hut headed toward New Braunfels. This was about 10 p. m. Witness stayed along this fence for an hour but saw noth'* ing. About 11 p. m. he went home and went to bed out in his yard, leaving his horse saddled. Later he was awakened by the sound of a shot coming from the direction of where he had seen appellants on the Boerne road. He at once got on his horse and rode in that direction. He said he had an eight months old calf with its mother in said.pasture; that the calf had on a small brass bell attached to a leather collar. Witness rode fast and got to his fence near where he had seen appellants earlier and saw. them again. Marckwardt was getting through said fence, and Bergemann was between the car and the fence, on the outside of the fence. As witness rode up, they got in their car, the same gray Chandler, and drove off. The next morning witness went back over in his pasture and saw the cow, the mother of the calf which had been wearing the bell, and she was bawling as if for her calf, and her bag appeared full of milk. Witness could not find the calf. It had been with its mother just before that. He said it had been raining and the ground was soft. The next day he found the entrails and remains of the stomach of an animal which appeared to be those of a calf. They were found some two hundred yards from where he had seen appellant Marckwardt get through the fence on Monday night. Not far from the animal's remains he found the bell and collar referred to which had been on his calf. The collar was cut through. Near the remains of the calf he found tracks of two men, one set going to the remains and the other returning to the fence, at the point where he had- seen said parties, passing a soft muddy place in the ground. Near these tracks just inside his fence he found a bloody Cloth on the ground. Just outside the fence at the point to which the tracks went, car ttacks were observed. Mr. Bremer was with witness' and testified to the finding of the remains of the calf, the tracks, and the cloth.

Word further testified that, after finding the things above mentioned, he phoned for Officers Marion and Faust, who came out, looked at the entrails, tracks, etc. Witness then filed complaint against appellants and went with Officer Schleyer, who arrested both of said appellants, Marckwardt first and then Bergemann. At Bergemann’s they found the gray Chandler car in which Mr. Word said he had seen appellants three times on Monday night. They drove this car back to New Braunfels. They found in the ear a headlight with a large reflector four or five inches across, also an electric light bulb, and a long wire to attach same to the car, which had a socket to fit said headlight. It was in testimony this headlight would throw a beam of light fifteen hundred feet in such manner as would blind the eyes of animals. They also found in said car a pair of muddy shoes, a large rope, and a piece of cloth about 18 by 14 inches; same being a piece of ticking with white and blue stripes. From one side of this cloth a piece had been torn. The piece of cloth found by witness in his pasture, as above set out, was shown to be the same kind of cloth as that found in Bergemann’s car, the stripes and tom edges of the two pieces of cloth exactly fitted. Blood was on the piece of cloth found in the pasture, but no -blood on the piece found in the car.

Officers Schleyer, Faust, and Marion corroborated Mr. Word in testimony as to what was found in appellant Bergemann’s gray Chandler ear; as to the tracks found in Word’s pasture leading to where'the remains of the calf were and back from there to the fence where the car tracks were noted. Mr. Schleyer testified that one of these auto tracks was made by a tire which would make diamond-shaped impressions, and on Berge-mann’s car was such a tire; also on the rope found in said car there was blood and animal hair; also that he measured the tracks in Word’s pasture going from and to where the calf remains were found and compared same with the muddy shoes found in Bergemann’s car and they were' about- the same. The defense was an alibi, appellants introducing several witnesses who testified that both appellants were in San Antonio on the nighli of September 26th and also on Friday night September 23d. These facts were testified' to by both appellants. The state attacked some of these witnesses and introduced testimony showing that both appellants were in the' neighborhood of Word’s pasture also on Friday night September 23d.

Appellants asked a number of special charges, all of which seem to have been given. We find nothing in the exceptions to the court’s charge, all of which have been examined-., Appellants have an able brief, in the light of which their hills of exception have been considered.

The original indictment appearing to be lost was properly substituted, but, being found during the trial, was thereafter used. We think the peremptory instruction to acquit properly refused. We have set out the facts at some length above to demonstrate that there, was support in testimony for the conclusion of guilt.

Bill of exception 6 sets out a page of the testimony of Mr. Word, a part of which was clearly admissible and not subject to the general objection and exception appearing in said bill, in effect, that said testimony was too remote, irrelevant, incompetent, and immaterial. Authorities are cited holding such exceptions not available. Vaughn v. State, 102 Tex. Cr. R. 618, 280 S. W. 772; Vargas v. State, 104 Tex. Cr. R. 283, 284 S. W. 564; Arredondo v. State, 106 Tex. Cr. R. 78, 290 S. W. 1105; White v. State, 113 Tex. Cr. R. 257, 20 S.W.(2d) 196. “Too remote, immaterial, etc., are terms too general.” Eads v. State, 76 Tex. Cr. R. 647, 176 S. W. 574; Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046; Smith v. State, 92 Tex. Cr. R. 300, 244 S. W. 138.

Bill of exceptions 7 sets out objection to the cross-examination of defense witness Dorrough as to his indictment and plea of guilty to the offense of theft in 1925. The qualification of the trial judge upon this bill shows that the material part of said testimony was given without objection, and that part of the remainder was volunteered by said witness. We are unable to appraise what is left of such a bill which does not set out a single question to whose answer objection upon specific ground was made, but which does set out more than a page of the testimony of the witness on cross-examination, and then without enumeration of any surrounding facts avers that such testimony was objected to as “Too remote, as eliciting details, irrelevant, immaterial and prejudicial.” See Young v. State, 94 Tex. Cr. R. 195, 249 S. W. 1659; Blackmon v. State, 95 Tex. Cr. E. 116, 252 S. W. 803; Benson v. State, 95 Tex. C. R. 311, 254 S. W. 793; Smith v. State, 96 Tex. Cr. R. 28, 255 S. W. 617.

Bill of exceptions 9 sets out objection' to the testimony of Officer Schleyer, who swore in rebuttal that he measured the tracks of the persons in Word’s pasture át the point referred to, and that same were compared with the size of the muddy shoes found in, Bergemann’s car and were about the same. The objection was much as appears in other bills, viz., incompetent, irrelevant, and immaterial and not in rebuttal. The testimony was clearly in rebuttal of the testimony of both appellants who swore that they were not in Word’s pasture that night, but were in San Antonio. The shoes referred to were found in Bergemann’s car, which appellants said they drove to San Antonio on said night, but which Mr. Word swore was occupied by them on said night at his pasture.

Bills of exception 19 and 11 relate to testimony offered by the s.tate in rebuttal, showing that appellants in said gray Chandler car were in the vicinity of Word’s pasture on the night of September 23d, at a time when both appellants had sworn they were in San Antonio, and had supported such claim by the testimony of other alibi witnesses. Both bills are subject to the criticism that no facts are stated in support of the objections made which would enable us to properly appraise such objections. However, we regard the testimony as both material and admissible. This was a case of circumstantial evidence. The fact that appellants were in the neighborhood of Word’s pasture at night, at or about the time that he was missing cattle, ihight be a material circumstance for consideration of the jury.

Bill of exceptions 12 makes complaint oí certain argument set forth as being prejudicial. Just why is not made to appear. The complaint was not of the form of language used, but of a reference to certain testimony. There is nothing in the bill from which we might know that said testimony was not given or that it was not material or that it was an argument which was in any way improper.

The same criticism appearing above in our discussion of bill of exceptions No. 12 holds good in reference to bill of exceptions No. 13, complaining of argument of the prosecuting attorney. The ground of objection was that the argument was prejudicial and that the court refused to instruct the jury not to consider it. No facts appear in the bill, from which we may be led to believe that the testimony was not properly before the jury and that the argument was not in reference thereto.

Bill of exceptions No. 14 also sets out argument of the prosecuting attorney, in substance, that appellants had been running around with the man who furnished them their chief alibi testimony in this case and upon whose testimony they relied for a ver-diet of acquittal, who had been convicted of theft in 1925. There is nothing in the hill to show that the argument was not a proper deduction from the facts before the jury. In fact, as we look at the testimony, the argument appears to be entirely supported by such facts.

Bill of exceptions No. 15 also complains of argument of Mr. Blundell, prosecuting attorney ; same being a reference to the fact that defense witness Dorrough was convicted of theft in 1925, and that at that time Marek-wardt was associating with Dorrough in business and other transactions. As we view the record, the argument was supported by the testimony, and we see no ground for objection or exception.

Bill of exceptions 16 complains of argument of the county attorney criticising appellants because the mother of appellant Berge-mann was not put upon the stand and examined. It appears from the bill that Mrs. Bergemann was present in attendance at court, and we think the criticism of the argument is without foundation. It is made to appear that, when the prosecuting attorney began to criticise appellants for their failure to use said witness, the defense attorney arose from his place'at the bar and said that she was present and the state could use her if.they wanted to. We do not think the bill presents any error.

Bill of exceptions 17 sets out a lengthy argument of prosecuting attorney, which is qualified by the statement of the trial court that said attorney did not make some of the arguments alluded to as hurtful, and that in the opinion of the trial court the language used was justified by the testimony. No showing is made in the bill of any sufficient reason why this court should hold that the trial court exceeded the discretion confided in ,. him in such matters.

Bill of exceptions 19 complains of the refusal of the court to grant appellant a new trial on the ground of the insufficiency of the testimony. We have reviewed the testimony carefully in the light of appellant’s able brief, and are of opinion that it is amply sufficient to justify the conclusion of guilt.

Bill of exceptions 20 is also qualified to show that the testimony of Mr. Word, complaint of which appears in said bill, was offered by the state as an explanation of other testimony elicited from said witness upon cross-examination by the appellants.

Wp have given this case as careful consideration as we have been able, and find no error in same for which a reversal should be ordered.

The judgment will be affirmed.

On Appellants’ Motion for Rehearing.

HAWKINS, Judge.

Appellants particularly complain of the disposition made of their bill of exception No. 6. In Branch’s Ann. Tex. P. O. § 211, the rule is stated thus: “A bill of exception is too general to be considered if it includes a number of statements some of which are clearly admissible, and there is nothing in the objections to directly challenge or single out the supposed objectionable evidence.” Many cases are cited supporting the text, among them being Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858. See, also, the late case of Cadle v. State (Tex. Cr. App.) 57 S.W.(2d) 147. In addition to what was said in our original opinion regarding bill No. 6, we observe that appellants’ brief proceeds as though the complaint was of the admission of evidence that Word had lost other cattle prior to September 26th. There is set out in said bill, together with other things, the testimony of Word on the point mentioned. However, we observe from the statement of facts that some of his evidence on the point is not embraced in the bill of exception and is as follows: “I handled my cattle myself. I rode the- pastures at nights numbers of times. I knew my cattle and knew when any of them were missing, and I had ridden the pasture prior to September 26, 1932, at nights looking for lost and missing cattle.” It does not appear that the evidence quoted was objected to. It apparently put before the jury without objection the information complained of so seriously in briefing the point.

We have again examined the other bills which appellants in their motion urge as having been incorrectly dispiased of. We do not feel called upon to discuss them further, as it will result largely in a repetition of what has already been said.

Believing the.case has been properly disposed of, we are constrained to overrule the motion for rehearing, and it is so ordered.


author: HAWKINS, Judge.

text:
    FERGUSON v. STATE.
    No. 16458.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    R. T. Wilkinson, Jr., of Mt. Vernon, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Prosecution is for assault with intent to murder; the punishment being eighteen months in the penitentiary.

The assault was alleged to have been committed upon Elvin Com. The facts, briefly , stated, follow: Appellant lived with his mother, Mrs. Lily Crone. On the night of August 3, 1933, the young people in the neighborhood attended a dance at a neighbor’s house. Mrs. Crone let appellant have a mule to work to a wagon, which was the conveyance to the party; the other animal in the team being furnished by Carlton Lawrence. Elvin Com, his wife, and several others also went in the wagon with Carlton and appellant The evidence shows that some drinking of intoxicating liquor was indulged in, which probably accounts for the trouble. While at the dance a difference arose between appellant and' Lawrence. Appellant’s version was that he was knocked down by Lawrence and struck in the head with a pistol by Corn. Their version was that appellant had a knife, threatening to cut Lawrence, and that Corn took the knife from, appellant; that Corn had no-pistol nor used one. They admit that appellant was struck by Lawrence with his fist and that appellant then left the dance on foot. Soon afterwards, Corn, Lawrence, and others left in the wagon, going towards home. Appellant claims they overtook him on the road and was then accused by Com of having stolen a pistol from him and threatened if appellant did not have the pistol for Com when he reached the house that he (Com) would take it out in “blood and hide”; that Com fired at appellant with a pistol as he again started towards his home. Com and Lawrence deny that this last occurrence happened as appellant claimed, but say when they encountered appellant on the way home he sought to renew the trouble with Lawrence, and was prevented by Corn from doing so. Appellant reached home before the parties in the wagon got there and claims to have told his mother, Mrs. Crone, about the trouble at the party and on the way home. According to the state’s evidence, when the parties reached Mrs. Crone’s, the mule was unharnessed and turned in the lot by Com; that appellant came from the house with a shotgun and fired at Com, striking him in the right arm and leg, at which time Corn was unarmed and making no attack or threatened attack on appellant. The latter claims and so testified that Corn had a shotgun and that after turning the mule in the lot he came towards the house, threatening 'to kill appellant, and made a demonstration as though to fire at him, whereupon appellant fired upon Corn in self-defense.

Appellant sought a continuance for his mother, Mrs. Crone. She had been subpoenaed as a -witness in his behalf. There can be no doubt as to the materiality of the evidence as set out in the application for continuance. She was an eyewitness, and her testimony would have supported that of appellant in every particular as to what occurred at the time of the shooting. The case was called for trial on Monday, September 18th. Attached to the application was the certificate of a physician at Winnsboro, bearing date September 16th, which reads as follows: “I have examined Lyly Crone and find that she has a nervous breakdown, and might not be able to attend court very soon.”

The court refused the continuance, to which exception was reserved. The motion for new trial was predicated in part on the action of the court regarding the continuance. Attached to the motion was the affidavit of Mrs. Crone, setting out in detail the things to which she would have testified, if present, and which comport with the averments in that respect found: in the application for continuance. There is no statement in the affidavit explanatory - of witness’ absence at the time of the trial. Upon hearing of the motion the state introduced two parties who were also state’s witnesses -on the main trial. Prom their testimony it appeared that Mrs. Crone was seen at Clearwater and also at Winnsboro, some eighteen miles from her home, on Saturday before the trial on Monday ; that she was on the street most of the day, and that there was nothing in her appearance indicating ill health, but she was heard to say by one of the witnesses that she was sick and was there to see a doctor, and was seen by the other witness on the stairway leading up to the office of the doctor whose certificate was attached to the application for continuance. It is clear from the coui-t’s qualification to bill of exception No. 2 that he was of opinion that Mrs. Crone was not so ill that she was unable to attend court, but that she had voluntarily absented herself for the purpose of forcing a continuance. Prom the wording of the doctor’s certificate; the failure of appellant to have the doctor present to testify when the motion for new trial was heard, the omission from Mrs. Crone’s affidavit of any explanation df her absence, and the evidence of the two witnesses named, the court was not without grounds upon which to predicate his conclusion. Some things, however, are found in the court’s qualification that appear to have been based upon the personal knowledge of the trial judge and from information which reached him in some way, whether in the courtroom or privately, not being shown. We quote from Revill v. State, 87 Tex. Cr. R. 1, 218 S. W. 1044, 1046, as follows: “The qualification of the judge must state facts that occur in court and under his cognizance as a judge, or, if it be extraneous and de-hors the record, then proper evidence must be shown. * * * He cannot go out and inform himself of facts * * * and then. * * * use in court the facts thus obtained.”

See Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 149, and other cases cited in the-opinion in Revill v. State, supra; also Crosby v. State, 108 Tex. Cr. R. 28, 299 S. W. 236.

If there was anything in the record: supporting the idea that Mrs. Crone was absent by the procurement or consent of appellant, the court’s action in overruling the motion for new trial should be sustained. She may have been able to attend court and willfully absented herself; but if appellant was-not a party thereto her absence is not chargeable to him. See Wilson v. State, 80 Tex. Cr. R. 442, 190 S. W. 155. The record shows that appellant was arrested on the 2d day of September and placed in jail, where he had remained continuously from that date until; the conclusion of his trial. If he had ever seen his mother during said time or had any communication with her, the record is silent regarding it. So far as we ascertain from the facts before us, the only information he had regarding his mother’s condition was contained in the doctor’s certificate. It is recited in the application for continuance that appellant had been “informed and believed”' that his mother was unable to attend court. In connection with and in support of such recital the doctor’s certificate was tendered. As we understand it, the witness lived about fourteen miles from the courthouse. If the. court was reasonably eertain that she was feigning illness, he could, of his own motion, have ordered an attachment for her, and -her condition could have been ascertained before the trial was terminated. In view of the facts, the evidence of Mrs. Orone appears so-material to appellant that we -believe the court should have granted the motion for new trial in order that he might have the ■ benefit of her testimony.

Appellant admitted the shooting, but claimed it was in self-defense. Complaint is urged that in submitting such affirmative defensive ■ issue the court omitted to instruct the jury on reasonable doubt in direct connection therewith. It is doubtful if the objections to the court’s charge were sufficiently specific to direct attention to the point. In view of another trial, we refer to Shannon v. State, 115 Tex. Cr. R. 249, 30 S.W.(2d) 331, for our views regarding the matter.

The judgment is reversed, and the cause remanded.. ■


text:
    Ex parte PIERCE.
    No. 16556.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    Arthur J. Mandell, of Houston, for appellant.
    H. G. Tigner, Asst. Cr. Dist. Atty., of Houston, and Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

By way of habeas corpus appellant sought release, and was remanded to custody. Hence this appeal.

Appellant was convicted in the corpora-' tion court of the city of Houston upon a charge of violating a city ordinance, and upon appeal to the county court was agáin convicted and a fine of $5 assessed against hini. The writ of habeas corpus having been • awarded by the Honorable Langston G. King, judge of the criminal district court No. 2 of Harris county, a hearing was had and appellant remanded to custody.

It is insisted that the ordinance under which the conviction was obtained is unconstitutional. The ordinance was not introduced in evidence. Courts do not take judicial notice of the ordinances of municipal corporations.- Hence we are unable to pass on the question attempted to be raised. Patton v. State, 112 Tex. Cr. R. 351, 16 S.W.(2d) 1072; Parvin v. Byers (Tex. Civ. App.) 16 S.W.(2d) 914; Terreto v. State, 86 Tex. Cr. R.. 188, 215 S. W. 329; White v. State, 82 Tex. Cr. R. 274, 198 S. W. 964; Wilson v. State, 16 Tex. App. 501; City of Austin v. Walton, 68 Tex. 507, 5 S. W. 70.

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:
    MUNOZ v. STATE.
    No. 16511.
    Court of Criminal Appeals of Texas.
    March 7, 1934.
    J. E, Greer, of San Antonio, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Aggravated assault is the offense; penalty assessed at confinement in the county jail for thirty days.

It appears from the transcript that appellant was charged by complaint and information with ap assault upon Carmen Huron, a female.

Appellant waived a jury and submitted the issues to the court, who rendered a judgment of guilty and assessed the penalty as above stated.

In the motion for new trial, which was overruled, the appellant claims that he first employed attorneys, hut upon their advice that the case would probably not be tried, he discharged them. When the case was called for trial on the 23d day of August, 1933, he was unprepared and sought a postponement, which was denied. In the motion for new trial there is a statement of considerable length in which appellant undertook to set up the facts upon which he relied for a new trial. The purport of his motion was to deny that he committed any assault and claimed that Carmen Huron came to his house in anger and assaulted him, and that he did nothing more than to repel her attack; that he used no unnecessary force in doing so. The court heard the evidence and overruled the motion. The evidence heard upon the trial would control this court, if available, as the statement of facts presents the evidence which was actually heard. However, the statement of facts was filed ninety-two days after the motion for new trial was overruled and notice of appeal was given. The statute, article 760, C. C. P., as amended (Vernon’s Ann. C. C. R. art. 760), forbids the consideration of the statement of facts under the circumstances. Appellant was allowed ninety days within which to prepare and file his statement of facts and bills of exception. The statute authorizes no greater allowance of time. See article 760, supra.

As the matter appears before this court, nothing is presented which would authorize a disturbance of the judgment. It is therefore affirmed.


author: ' OIIRISTIAJSi, Judge. LATTIMORE, Judge.

text:
    OUTLAW v. STATE.
    No. 16488.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1934.
    Rehearing Denied March 21, 1934.

      James W. Peavy and Jack U. Scarborough, both of Lufkin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   ' OIIRISTIAJSi, Judge.

The offense is murder; the punishment, death.

It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Mrs. Eranlc McCall by beating, bruising, and wounding her with a hammer.

Living with deceased and her husband were their young daughter and the mother of deceased, who was approximately 80 years of age. Appellant’s home was nearby. ' The relations between appellant and the family of deceased had apparently been friendly, they having been neighbors for some time. Shortly prior to the homicide deceased had sold a bale of cotton and had received in cash approximately $15, which she had taken to her home. Mr. Shofner, the party who negotiated the sale, testified that appellant asked him how much money deceased had received. On the 24th of January, 1933, between 3 and 4 o’clock in the morning, deceased, her husband, mother, and young daughter were assaulted in their home and severely beaten with a hammer, and the money of deceased taken. According to the testimony of the mother and daughter of deceased, appellant came to their home between 3 and 4 o’clock in the morning and called deceased, saying that he had the toothache and had come over to get some medicine. Upon being invited into the house, he asked for a cup of coffee, and deceased made him some coffee. He then asked deceased for $10, and she replied that she was unable to let him have that amount of money. He finally requested that deceased let him have $2.50, saying that he wanted the money for the purpose of hiring a truck and buying groceries. Deceased acceded to the last request, and was preparing to give the money to appellant when he struck her several blows with a hammer, inflicting upon her head the fatal wounds. Deceased said: ‘•‘Oh, you have killed me.” Appellant replied: ‘‘I intend to kill you.” Appellant then attacked the husband of deceased in the same manner. Holding a pistol in his left hand, he went into the room occupied by deceased’s mother and daughter and attacked them with the hammer, severely beating and injuring them. Deceased crawled to a neighbor’s house and cried out for help. Responding to her call, the neighbor found her lying on the ground with blood all around her. He testified: “Her head was bloody and her hair like wire — stiff with cold blood. * * * She was still bleeding and the ground around there where she was was covered with blood and it was yet dark, and she was out there calling for help.” Witnesses going to the home of deceased found that all of the occupants of the house had been attacked. They were bloody and there was blood in numerous places in the house, the evidence indicating that none of those present was in a condition to help himself. Deceased died shortly after the assault. Appellant fled to the state of Arkansas, where he was eventually apprehended. On the night of the homicide appellant had told a witness, according to his (the witness’) version, that he had no money. Immediately after the homicide, and while he was fleeing to the state of Arkansas, appellant stopped at some houses in the country, and) exhibiting money, offered to pay for food. One witness testified that appellant had a number of silver halves in his hand.

Testifying in his own behalf, appellant denied that he went to the home of deceased on the occasion in question. He further testified that a number of h'is relatives had become insane. Touching his action in going to the state of Arkansas, he testified that he had been advised that a mob was looking for him.

As shown by bill of exception No. 2, appellant predicated a motion to quash the indictment on the ground that two members of the grand jury returning the indictment had failed to pay a poll tax. The bill of exception fails to show that the grand jurors in question were subject to the payment of a poll' tax, and, notwithstanding the order of the court in overruling the motion recites that evidence was heard, there is an entire absence of any proof in the record that they were subject to the payment of such • tax. It appears to be appellant’s position that, in' making proof of the fact that the grand jurors had not paid a poll tax, he discharged the burden of establishing the disqualification of said grand jurors. Under the statute persons over 60 years of age are entitled to vote without being required to pay a poll tax. See article 2959, Revised Civil Statutes 1925. It is not contended that the grand jurors were otherwise disqualified to serve. As far as the record reflects the matter, they might not have been subject to the payment of a poll tax. Under the circumstances, this court must presume that the trial court found such grand jurors to be qualified voters before he impaneled them. Stewart v. State (Tex. Cr. App.) 58 S.W.(2d) 519. It is unnecessary to decide whether one under (50 years of age is disqualified to serve as a grand juror in the absence of the payment of a poll tax.

An application for a change of venue on the alleged existence of prejudice was in due time filed and presented to the trial court. The means of knowledge of the compurgators was controverted. Appellant, as well as the state, introduced evidence. Several witnesses called by appellant expressed the opinion that he could obtain a fair and impartial trial in Angelina county. They entertained the view, based on the discussion they had heard, that generally there was no prejudice against appellant. Other witnesses introduced by appellant were of the opinion that his case had been prejudged, and that there was prejudice against him in various parts of the county. A number of the witnesses who entertained the latter view based their conclusion upon the discussion they had heard in their respective communities. Some of them testified that the opinions expressed by those talking to them had been unfavorable to appellant; while others testified that the sentiment of those to whom they had talked appeared to be divided1. Most of appellant’s witnesses failed to show the extent to which they had heard the case discussed. Some of them testified that they had not talked to many people. Others testified that they had heard the opinion expressed that, if appellant was guilty, he should be electrocuted. One witness said he had talked to fifty people. The witnesses for the state were generally of the opinion that appellant could obtain a fair and impartial trial. Some of them stated, however, that they believed that people would be prejudiced against the character of crime involved. They were of the opinion, from their discussion of the ease with others, that there was no prejudice against appellant. Some of these witnesses testified that the people-they had talked to did not know the facts of the case. One of the witnesses for the state testified that, of the people he had heard- discuss the case, many entertained no opinion as to the guilt or innocence of appellant This witness was the tax assessor of the county. The newspaper articles introduced by appellant carried accounts showing the commission of the offense, the circumstances surrounding its commission, and the fact that appellant had fled, and was at large. Other accounts showed the apprehension of appellant and his statement that he was innocent. Some of the accounts stated that appellant had at one time been a postmaster in the county and had served a term in the penitentiary. In one of the accounts it was stated that there was a demand throughout the county that there be a speedy trial. Further, it was stated in some of these articles that the offense committed was one of the most terrible crimes occurring within the confines of the county. Generally speaking, the daily paper published in Lufkin was not widely circulated in the county at large. On the other hand, a weekly paper, which also carried accounts of the transaction, was largely circulated in sections of the county away from Lufkin. The record fails to show that there was any difficulty in securing a jury. Whether appellant exercised a single peremptory challenge is not shown; and whether any of the venire ■disqualified because they entertained an opinion as to appellant’s guilt or innocence is not ■disclosed. Whether a single member of the venire read the reports embraced in the newspapers is not shown. No character of misconduct on the part of the jury is sustained in the record.

From the case of McNeely v. State, 104 Tex. Cr. R. 267, 283 S. W. 522, 524, the following quotation is taken:

“Touching the duty of the trial court and ■of' this court upon an application for change of venue, the law, as deduced from the statutes and the decisions, is, as we understand, that where the application is upon the ground of prejudice, and is controverted, the burden is upon the accused to prove the existence of such prejudice against him or against his case that it is not probable that he can have a fair and impartial trial.
“The duty is upon the trial court to weigh the evidence, and if therefrom there arise conflicting theories, one tending to show prejudice of the nature mentioned and the other the contrary, the discretion as to the court is to adopt either. In the absence of abuse of this discretion, the judgment is not to be disturbed upon the appeal. If, however, the evidence is such that it leads to the conclusion that bias, prejudice, or prejudgment of appellant or his case is such as to render it improbable that a fair and impartial trial can be given him, the trial court is without discretion to refuse the application.”

The inference of prejudice requiring a change of venue is not to be drawn from the fact alone that newspapers published in the vicinity have contained news articles descriptive of the offense or editorials denun-ciatory of the accused. Cox v. State, 90 Tex. Cr. R. 106, 234 S. W. 72; McKenzie v. State (Tex. Cr. App.) 11 S.W.(2d) 172. However, there have been instances in which the acts of one accused of crime have been the subject of public controversy in which newspapers have taken part to a degree that has rendered the publications important factors in creating a prejudice against the accused. In those cases the publications went beyond the point of giving the news of the day and took part in the controversy to a degree that rendered it improbable under the circumstances that an impartial trial could be had. See Fleming v. State, 62 Tex. Cr. R. 653, 139 S. W. 598; Gallaher, v. State, 40 Tex. Cr. R. 296, 50 S. W. 388; Cox w. State, supra.

It is observed that Angelina county has a population of more than 27,060. The city of Lufkin, near which the homicide occurred, has a population of approximately 8,000. On the question of prejudice, it is thought the testimony of appellant’s witnesses fails to- show that they had heard the case discussed to such an extent as would warrant their opinion that there was in existence in the county such prejudice against appellant as would preclude him from obtaining a fair and impartial trial. Most of these witnesses had not heard the case generally discussed. They had talked to comparatively few people. Their testimony was controverted, not only by witnesses produced by the state, but by several witnesses called by appellant Thus, from the testimony heard, conflicting theories as to prejudice arose. This being the ease, the trial court had the discretion of adopting either theory. It was his duty to weigh the evidence. Under the circumstances, we are constrained to hold that the trial judge did not abuse the discretion which the law vested in him, and that this court is without legal authority to enter a judgment declaring that in refusing to change the venue there was an abuse of discretion.

Bill of exception No. 3 recites that appellant, in examining the first juror on his vóir dire, propounded to him the following question: “Have you paid your poll tax for the year 1932?” The objection of the district attorney that the question was immaterial was sustained, and the court instructed appellant’s counsel not to repeat the question to other jurors. Conceding that the trial judge should have permitted the question, it is observed that it is not shown that appel-. lant was injured as a result of the alleged error. The bill fails to show that any juror sat upon the trial who had not paid a poll tax.- Certainly this could have. been shown if in fact it occurred. See Naugle v. State, 118 Tex. Cr. R. 566, 40 S.W.(2d) 92. Let us assume that some of the jurors answered that they had not paid a poll tax, and appellant’s challenge for cause had been overruled and he had exercised peremptory challenges. Under such circumstances, unless it was shown that objectionable jurors had been forced upon him, injury would not be manifested. King v. State (Tex. Cr. App.) 100 S. W. 387; Hash v. State, 105 Tex. Cr. R. 78, 286 S. W. 1102.

Bills of exception Nos. 4 and 5 relate to the action of the trial court in permitting Mrs. Mary Looney and Sallie McCall to testify that, after appellant struck deceased with the hammer, he attacked the other occupants of the house in the same manner. That the killing of deceased and the attack upon her husband and the other occupants of the house grew out of the same transaction and were practically contemporaneous is clearly shown by the evidence. This proof was within the rule of res gestae. Claxton v. State, 109 Tex. Cr. R. 345, 4 S.W.(2d) 542; Underhill on Criminal Evidence (3d Ed.) § 152, lays down the rule applicable here as follows: “If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, either direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.”

Bills of exception 7 and 8 relate to the action of the trial court in permitting witnesses who went to the scene of the homicide to testify in detail as to the condition in which they, found the occupants of the house. We think this testimony was admissible as shedding light on the transaction.

Bill of exception No. 6 recites that W. L. Shofner testified that he went to the point where deceased was and found her down on her hands and knees; that she was covered with blood; that her limbs were bloody and her hands almost torn to pieces; that she had crawled approximately a quarter of a mile on her hands and knees; that she showed evidence of suffering; that the ground around her was covered with blood; that she was out there calling for help; that she stated to him that Charlie Outlaw (appellant) had attacked her with a hammer; that she said he had nearly killed her and had killed her husband. The bill of exception begins by setting out the testimony of the witness as above detailed. It concludes with appellant’s objections and recites that they were overruled, and that appellant excepted. As presented, the bill fails to show the surrounding facts. In order that the complaint that the declaration was not res gestee can demand attention, the bill should reveal the facts from which the reviewing court could decide that the evidence did not come within the rule. Cavanar v. State, 99 Tex. Cr. R. 446, 269 S. W. 1053. This the bill under considerations fails to do. If, in view of the extreme penalty, the statement of facts be considered in aid of the bill, we think no error was committed in receiving the testimony in question. According to the witnesses, the assault occurred between 4 and 5 o’clock in the morning at the home of deceased. Each occupant of the house was assaulted in the same manner as was deceased. The home of deceased was about four hundred yards from that of the witness Shofner. The witness mentioned testified that he got up about 4 o’clock in the morning of the attack and had just built a fire when he heard deceased calling. The record excludes the idea that deceased had conversed with any person prior to the time she made the statement to the witness Shof-ner. We think it further shows that between the time of the assault and that of the declaration she had not been in a condition for reflection. Moreover, while the record is indefinite as to the length of time that had transpired between the assault and the making of the declaration, we think it is fairly inferable that it was not over forty - minutes. That deceased was undergoing terrible physical suffering was obvious. She had been beaten over the head with a hammer, and, according to the testimony of the attending physician, her skull w.as fractured to the extent that the brain substance could be seen. At the time the witness Shofner went to her, she had been crying for help. All of the circumstances, in our opinion, bring the transaction within the rule of res gestee as interpreted by the precedents in this state.

We quote from Branch’s Annotated Penal Code, § 83, page 53, as follows: “There is no limit off time in which the res gestae are arbitrarily confined. They vary with each particular case. They need not be coincident as to time if they are joined by the existing feeling which exists without break or let-down, from the moment of the event they elicit."

The foregoing rule has been approved by this court in numerous decisions. See Johnson v. State, 95 Tex. Cr. R. 269, 252 S. W. 554, ancl authorities cited. Illustrating the point that there is no limit of time in which the res gestee is arbitrarily confined, in Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St Rep. 720, the statements of the deceased were made from half an hour to an hour and a half after the difficulty, and were held admissible as res gestee. In Fulcher’s Case, 28 Tex. App. 465, 13 S. W. 750, a statement by the deceased made thirty minutes after the difficulty was held admissible. See, also, Bell v. State, 88 Tex. Cr. R. 64, 224 S. W. 1108. In Freeman v. State, 40 Tex. Cr. R. 545, 46 S. W. 641, 642, 51 S. W. 230, statements made by the deceased from thirty minutes to an hour after the difficulty were held to be admissible as res gestas. In the case last mentioned the court said: “The main question is, does it appear from all the circumstances that the statement was spontaneous, and sprang out of and was a part of the transaction itself? If so, the testimony is admissible, though the statement may not hare been made exactly contemporaneous in .point of time with the wound inflicted. But in all such cases it must appear that the statement or declaration was spontaneous, and sprang out of and was a part of the transaction.” See, also, Vargas v. State, 107 Tex. Cr. R. 666, 298 S. W. 591.

Several bills of exception deal with argument of the district attorney. We deem it unnecessary to enter into a detailed discussion of these bills. They have been appraised in the light of the facts and surroundings of the case. Under the circumstances reflected by the record, the remarks embraced in the bills are not thought to present reversible error. See Silver v. State, 110 Tex. Cr. R. 512, 8 S.W.(2d) 144, 9 S.W.(2d) 358, 60 A. L. R. 290; Vineyard v. State, 96 Tex. Cr. R. 401, 257 S. W. 548.

The judgment is affirmed.

PER CURIAM.

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

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant again presents the point that the venue of this case should have been changed, and that refusal to so order reflected an abuse of the discretion of the trial court. Appellant put eighteen witnesses on the stand, nine of whom expressed the opinion that appellant could get a fair and impartial trial in Angelina county; some of the others saying that they had talked to only a few people, and still oth-' ers professing to know nothing of the conditions outside of their own immediate locality. The state put on five witnesses, all of whom expressed the opinion that a fair and impartial jury could be obtained in «aid county, and that appellant could get a fair trial therein. The testimony of all these witnesses, together with the articles published in the newspapers of said county regarding this case, as they appear in the record, have all been again carefully reviewed, having regard to the severity of the penalty, but without causing us to change our conclusion that there appears no abuse of the discretion of the trial court in the matter under discussion. As said in our original opinion, there seems to have been no trouble in getting a jury, and, if more than one venire was used, that fact is not shown. Nor does there seem complaint that any unfair or prejudiced juror sat in the case, or that; anything transpired in the jury room evidencing the presence of prejudice or prejudg-_ment on the part of any juror.

We see no need for discussing the point again raised, that the court below erred in not letting appellant’s attorneys ask each juror whether he had paid his poll tax. Article 579, C. C. P., specifically provides that failure to pay poll tax shall not disqualify any person from jury service.

Those bills of exception complaining of the argument of state’s counsel have also been reviewed, and none of them are deemed to present statements of such character as to call for a reversal. Without setting any of them out further, it would appear that probably the most serious complaint could be leveled at that argument in which the jury were told by state’s counsel that “all the old women of Angelina County between the ages of 60 and 80 have their eyes on you and are anxiously awaiting your verdict in this case, and the State will not be satisfied with any verdict less than the death penalty.” There is nothing in the bill to show that there were any women in the courtroom between the ages of 60 and 80 years, or to raise the probability that such argument would create in the minds of the jury any belief that same was a fact based on anything tangible which might affect ox-influence the jury. The concluding part of said argument so objected to, i. e., that the state would not be satisfied with any penalty less than death, was not made to depend upon the anxiety of the aged women of the county, and certainly cannot he regarded as improper argument.

Not being able to agree with any of the contentions of appellant, the motion for rehearing will be overruled.


text:
    Ex parte NELSON.
    No. 16720.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1934.
    W. B. Moss, of Sinton, and J. W. Ragsdale, ■of Victoria, for appellant.
    Lloyd. W, Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Appellant, Andrew Scott, and Houston James were charged by complaint with robbery by the use of firearms. After an examining trial they -were remanded by the magistrate to the custody of the sheriff without bail. Upon habeas corpus proceeding before the district judge of San Patricio county on the 16th day of December, 1933, they were each granted bail in the sum of $5,000. On the 29th day of January, 1934, in another 'habeas corpus hearing before the same judge they sought reduction of bail, and from the order declining to reduce the bail this appeal is prosecuted.

Upon the hearing on January 29, 1934, evidence was introduced showing that an ,unsuccessful effort had been made to make bond in the amount fixed by the court, and showing that if the amount should be reduced to $2,500 or $3,000, it was believed sureties could be secured who would furnish bail in that amount.

In determining the amount of bail, the nature of the offense, and the circumstances under which it was committed, aré to be considered, and the ability of accused to make bond is to be regarded. Article 281, C. C. P. The ability or lack thereof to make bond does not alone control. Ex parte Jones, 107 Tex. Cr. R. 438, 296 S. W. 886; Ex parte Turner, 119 Tex. Cr. R. 149, 45 S.W(2d) 1016. The facts incident to the present offense are rather fully developed in the record. Briefly, they show that about 1:30 o’clock at night the three named parties drove into a filling station at Sinton. Two of them, Nelson and Scott, got out of the car, and each presented pistols at the man in charge and took all the money from the station. James remained in the car, which was near the room from which the money was taken. The punishment for such offense may be death or imprisonment in the penitentiary for any term of years not less than five.

In fixing bail the court should make it “sufficiently high to give reasonable assurance that the undertaking will be complied with,” and the power of the court should not t| “be so used as to make it an instrument of oppression.” ’ Article 281, C. C. P. Under the facts and the optional punishment allowed, we discover nothing which leads us to conclude that in refusing to reduce the amount of bail the court has in any way abused his discretion in exercising the power vested in him. See Ex parte Collins, 118 Tex. Cr. R. 146, 38 S.W.(2d) 789, in which this court affirmed a judgment denying bail in a case of robbery by the use of firearms, although no one was killed in the perpetration of the offense.

The judgment is affirmed.


text:
    Ex parte Andrew SCOTT.
    No. 16722.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1934.
    W. B. Moss, of Sinton, and J. W. Ragsdale, of Victoria, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

This appeal is from an order of the district judge of San Patricio county refusing to reduce the amount of bail in a ease where the charge was robbery by the use of firearms in which bail had theretofore been fixed at $5,000.

The record is precisely like that in the companion case of Ex parte Boyd Nelson, 69 S.W.(2d) 126, in which the judgment refusing to reduce bail was affirmed. Eor the reasons stated in that opinion the order here will be the same.

The judgment is affirmed.


text:
    Ex parte Houston JAMES.
    No. 16721.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1934.
    W. B. Moss, of Sinton, and J. W. Ragsdale, of Victoria, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

This appeal is from an order of the district judge of San Patricio county refusing to reduce the amount of bail in a ease where the charge was robbery by the use of firearms in which bail had theretofore been fixed at $5,000.

The record is precisely like that in the companion case of Ex parte Boyd Nelson, 69 S.W.(2d) 126, in which the judgment refusing to reduce bail was affirmed. For the reasons stated in that opinion the order here will be the same.

The judgment is affirmed.


author: KRUEGER, Judge. HAWKINS, Judge.

text:
    WOOD v. STATE.
    No. 16343.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1934.
    Rehearing Denied March 21, 1934.
    L. C. Counts, of Olney, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The appellant was tried and convicted of the theft of one radio of the value of $75, and his punishment assessed at confinement in-the state penitentiary for a term of two. years.

The facts adduced upon the trial are in substance as follows: Harold McCord and Haskell Daniels were living in the same house. Harold McCord and his family occupied the tjvo east rooms, and Haskell Daniels and his family occupied the' three, west rooms, of said house. On the 12th day of. January, 1933, about 3 p. m., Obie Wood: and Delbert King were at the house occupied •by the said- Daniels and McCord, at which time Obie Wood asked McCord what kind of radio he had. That evening between 7 and! 8 o’clock Mr. Daniels and Mr. McCord left the house and went on a visit to Mr. Mc-Cord’s brother, and during their absence the radio belonging to Mr. McCord disappeared from his apartment. Some four or five days-later the radio was found in the possession of Boyd Shannon at Fort Worth, Tex., and, when questioned as to how he -came into possession of said radio, he explained that on the morning of January 13, between 7 and 8 o’clock, the appellant, Obie Wood, and one Delbert King came to his place of business in the city of Fort Worth and wanted to pawn the radio, and he let them have $22.50 on the same. The testimony also shows that Boyd Shannon had been convicted of the offense of violating the liquor law and was then out on a furlough. The radio which was found in the possession of Boyd Shannon was positively identified as the radio that was taken from the possession of Mr. McCord without his consent.

The appellant contends that the evidence is wholly insufficient to warrant a convic-. tion, inasmuch as the recently stolen property was found in possession of Boyd Shannon. If that testimony stood alone without any explanation on the part of Boyd Shannon as to how he acquired it or how he came into possession of the same, there would be some merit in his contention, but Boyd Shannon, when first questioned as to how he came into possession of said property, explained that said radio was brought to his place of business by the appellant and Delbert King, and they had pawned the same on the 13th day of January, 1933, the day after the property • had been stolen. This placed the possession of the recently stolen property in the appellant, and, the appellant not having offered any explanation of how he came into possession of the same nor made any denial of the fact that he and Delbert King pawned the same to the said Boyd Shannon, an inference of guilt would arise. It was further shown by the evidence that the appellant and Delbert King were on the premises a few hours prior to the time that the radio was taken. There is not any evidence in the record to show that Boyd Shannon was anywhere near the home of Harold McCord on the day or about the time that the radio was taken. We believe that the testimony as above set forth supports the verdict of the jury. The credibility of the witnesses and the weight to be given to their testimony was sublnitted to the jury for their determination, and we are not authorized under the facts above detailed to disturb their finding.

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

PER CURIAM.

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

On Appellant’s Motion for Rehearing.

HAWKINS, Judge.

In the light of appellant’s motion, we have again examined the statement of facts. No doubt arises in our minds as to the sufficiency of the evidence.’ A more extended discussion of the facts than is found in our original opinion is not deemed necessary. The facts are brief.

The motion for rehearing is overruled.


text:
    KING v. STATE.
    No. 16344.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1934.
    Rehearing Denied March 21, 1934.
    L. C. Counts, of Olney, for appellant
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

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

There is but one bill of exceptions in the record. Its complaint is of the refusal of the court to give a peremptory instruction for' a verdict of not guilty. The ground of the motion is the insufficiency of the testimony.

We have reviewed the testimony carefully. One McCord had a radio shown by the state’s proof to be worth $75. On Thursday January 12, 1933, some one took the radio from Mc-Cord’s room. Appellant was at the house that day. He heard the radio playing and asked McCord if it was a Texas Electric radio, and McCord told him it was. Appellant asked to see the radio and McCord showed it to him. Appellant and a codefendant, one Obie Wood, came back to the house that afternoon about S o’clock and stayed about an hour. The radio was taken that night. The house of Mr. McCord was located at Seymour in Baylor county. A witness named Shannon testified that he lived in Eprt Worth and knew the appellant; that appellant and a tall boy drove up to his filling station and told him they had a radio and were broke and wanted to leave it with him and get some money on it; also that he let them have $22.50 on the radio, which he put on the inside of his place of business. Mr. Holmes, sheriff of Baylor county, and Mr. Rhodes, a deputy sheriff of Fort Worth, came and got this radio a few days later. He said it was a tall cabinet radio about three feet high and two feet wide; and a picture of a radio shown him was like the one he got from appellant; also that it was about 7:30 or 8 o’clock on the morning of the 13th of January, 1933, when they brought it to his place. Sheriff Holmes of Baylor county testified that about January 18th he went to Shannon’s place of business in Fort Worth and there found a radio which he got and brought back to Seymour, and turned it over to Mr. Hart of the Texas Electric Service Company. Mr. Hart testified that he lived in Seymour and handled radios, and had rented or leased one to Harold Mc-Cord in December, 1932; that he afterwards saw that radio in Fort Worth, and it was brought back by Mr. Holmes and turned over to them. He said that this was the same radio that he let McCord have according to the serial number, which he said he had checked. He testified that it was a new radio in December, 1932, worth $93.50, and that in January its market value would be $75. He was shown a picture of a radio, and said it was an exact likeness of the radio in question.

Appellant introduced some testimony for the purpose of showing that the depreciation of a radio that had been used a month or so might be enough to bring the value of one like this stolen radio beneath $50. On cross-examination the witness testified that he never had bought an electric radio from the Texas Electric Service Company, and did not know much about them. Mr. McDuffie was introduced by the state in rebuttal and testified he was employed by the Texas Electric Service Company, had handled radios about seven years, and was familiar with their market value; that he had seen the radio in question, had checked it by the serial number, and knew it was the same one McCord leased from the company, and that its market value in January was $75. Morris Randall gave substantially the same testimony. Mr. Qui-senberry testified that on or about the 13th of January, 1933, he saw appellant and Obie Wood between Fort Worth and Jacksboro; they seemed to be having car trouble. He stopped and spoke to them. He said this was a few days before they were arrested. The Fort Worth and Jacksboro road runs in the general direction of from Fort Worth to Seymour. We are not able to say that the verdict is not without sufficient testimony to support it. The case was submitted to the jury under the law of circumstantial evidence, and they have solved the questions of fact against appellant.

The judgment will be affirmed.

On Appellant’s Motion for Rehearing.

HAWKINS, Judge.

The motion for rehearing is practically the same as that found in the companion case, Wood v. State o0f Texas, 69 S.W.(2d) 127.

We have no doubt about the evidence being sufficient. The motion for rehearing is overruled.


text:
    ALLEN v. STATE.
    No. 16277.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1934.

      L. H. Welch, of Brechen ridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, Presiding Judge.

Theft from the person is the offense; penalty assessed at confinement in the penitentiary .for two years.

The evidence is in substance as follows: Ollie Kiser possessed a sum of money which he had carried in his pocket for some time. It was ‘foldéd in a peculiar manner and a portion of it was in $100 bills. The total was $1,260. The appellant and his wife had been divorced but apparently were on friendly terms. .She maintained a place where strong drinks were sold. Kiser was a frequenter of the place. Erom Kiser’s testimony we quote:

“While I was there I drank some‘peach brandy, whiqh I got from Odell. Allen’s wife, and paid her for it. I .think I drank four glasses. The defendant came there after a bit; I don’t remember what he said; he poured up some more brandy, and we had another drink;- he had the brandy in a tall glass, flared at the top; I drank out of that tall glass; Odell-Allen gave- it to me; and insisted on me drinking it. After I drank from that tall glass, it kinder paralyzed me. At that time I had on me. about twelve hundred and sixty dollars in a purse, and some in my pooket; I don’t remember the amount, hut I figure it was less than twenty dollars. I had the twelve hundred and sixty dollars in my hip pocket. I drew that money out of the State Bank on the 13th day of March, 1931, and had carried it for a good while. That bank is located at Mineral Wells, Texas. * * * After I had taken that drink from the tall glass, it deadened me. The defendant took me to my car, and we went away, and while we were going to the car, in front of Mrs. Allen’s house, he had his left arm around me; I can recall some things during that time, and some I.can’t. When we got to the car, I was going to drive, but the defendant told me I could not drive, and he drove me away. -As to where he drove me, it could not have been over two miles from t'own (Breckenridge). After we - got away, I remember him saying, ‘Now you drive’ and he p.ut my foot on the gas (pedal) and helped me get a hold of the steering wheel;- the car shot forward, and I fell over on the wheel; when I woke up, the defendant was not there. At one time- he fumbled around my hip pocket, and I felt him feel of me, and I couldn’t move. When I came to, the car switch was cut off, the' glass windows were rolled up, and the doors were both shut. It was dark when I woke up. I straightened up and wondered where I was; then I remembered, and felt for my money, and it was gone; I was cold and stiff, and' was hurting all over, and I got out of the car and walked around a little while; I got still colder and couldn’t very well handle myself, and I made my way out of there. When I found myself, I got back to the highway and went back to Mrs. Allen’s house and tried to find my money; then I went to 'Odell Allen’s mother’s place. I did not find the defendant Allen. It was nearly two months after.that before I saw him, or two months and a half. While I drove around, my stomach cramped, and after I came back to Mrs.. Allen’s house, I have a nervous breakdown.!’ .

On cross-examination Kiser admitted that he had been a frequent vistor at the Allen home; that appellant and- his wife were separated ; that she kept a drinking place which had- a bad reputation. Kiser testified that he and Mrs. Allen were drinking there for some time before the arrival of the appellant and that' he (Kiser) had taken four or more drinks prior to the appellant’s arrival; that he had no recollection of a fight, hut he did have a black eye. “You ask me if it is not a fact that I was so far gone that I don’t remember what happened?” (Answer) “I was so doped up that I did not know what I was doing.” Kiser testified further:

“I do know whether the money was taken out of my pocket before or after Allen came. When he took me to the ear, he felt iny money with his hand. There are some things I can remember and some I can’t. I would like to remember it all. * * * I do remember that his hand stroked my money, hut I don’t remember that Elsie knocked me out when he got there. He took me by the arm and we went to the car, and I tried to drive but could not. I don’t remember that I ran the car into the porch. I don’t remember where it stopped. He got into the ear and took me away. * * * I didn’t know when he got out of the ear. • * * The reason I have not been able to find the place where he-left me, is because I was so doped up. When I came to myself, I was some where east of the highway, north of town; he drove me there and left me. That is Just as true as everything else I have said and testified about. He took the money out of my pocket right when he left me; I remember him feeling over me; he raised me up. When the car stopped, my head hit the steering wheel and honked the horn, and it woke me up. I figure that when he got out, he took my purse. That is my testimony about when he got my purse. That was east of the highway and north of Breckenridge. I am sure about that. The money was in my left hip pocket. The steering wheel is on the left side of the car, and my purse was in the pocket on the opposite side from him, and he reached around me and got it out of my pocket and left me there. I don’t know what time it was when I came to; it was late in the night. As to how I got back to town, I just wandered around, and drove the car in. I don’t know what time it was when I got back to Elsie’s. I went right straight there when I could travel. * * * I went there to see' where Odell was. I don’t think X asked her if she got my money. I am sure I didn’t because I knew who got it. X went back there again because I thought maybe he would come back again, and was taking care of it for me. I could not tell you what time it was when he took the purse from me. When I left the place, I couldn’t see.”

Dr. U rover O. Wood testified that he had been a physician and surgeon for about eighteen years; that he was acquainted with the action of chloral hydrate, generally known as “knock-out drops,” of which a large enough dose was sufficient to render one incapable of handling himself; that when taken in connection with whisky or brandy it would cause pain, stimulate the brain, paralyze the person, cause sleep, make the patient limp, lower the temperature, cause a contraction of the pupils of the eyes, and produce an unconscious condition; that from an overdose the patient would suffer from stomach pains. The doctor described what would probably he regarded as an overdose.

Appellant testified in his own behalf that prior to the occasion upon which Kiser.claims to have lost his money he (appellant) worked at Caddo for T. L. Watkins for about eight months. His term ceased in September, 1932. Subsequently he worked for the Dutch Shell Oil Company. Watkins paid appellant $322 for his work. Payment was made in three $100 bills, with the balance in other currency. Appellant kept the money and used it in purchasing an automobile. It was shown by other testimony that in purchasing the automobile appellant used three $100 bills. He explained in his testimony that one of these bills he received at Overton about a week before he saw Kiser. The three $100 bills were exhibited to his mother Some four or five days prior to the occurrence upon which the prosecution is founded. Appellant’s mother testified and corroborated him with reference to having seen him in possession of three $100 bills. Appellant claimed to have visited the dwelling of his wife, from whom he had separated, for the purpose Of seeing his child, who lived with its mother.. He testified that he was not aware of the fact that Kiser had any money on his person. Appellant claimed that when he returned to the place where he met Kiser, the latter was drunk, had instílted the appellant’s wife, and was engaged in an altercation with her. He- denied giving a drink to Kiser and said that his taking Kiser away from there was in an effort to do a friendly act. Kiser’s face was scratched, and when he undertook to drive his car, he drove it against the porch. Appellant got in the car and drove Kiser to the east- side of Walker street, where he saw Zack Dennis, who wanted to help Kiser but who declined the help. Appellant then, according to his testimony, got out and left Kiser in the car and got in a truck with Tom Watkins. Appellant specifically denied taking any money from Kiser. After leaving with Watkins, the appellant went to a dance. He- returned to Overton and then went to Port Worth, where he purchased a car. He returned to Overton and stayed two weeks with his sister. He first learned that he was indicted for the theft of Kiser’s money after he returned to Breckenridge something like three weeks after the occurrence. Pie specifically denied putting his hands in Kiser’s pockets.

On cross-examination appellant testified that he had served a time in jail in cause No. 2300 for selling intoxicating liquors in July, 1928. He was indicted for forgery in April, 1927. He was also indicted on a swindling charge for giving a “hot check,” and served a time for that offense. He denied that the car he bought in Port Worth was purchased with money taken from Kiser. He claimed that it was bought with money, part of which he had received from Watkins, who paid him $322, of which amount $200 was in $100 bills. Touching the other $100 bill used in buying the automobile, appellant said that he just happened to have three $100 bills. Pie disclaimed any knowledge of Kiser having any money. Appellant said that when he got out of Kiser’s ear, the latter said he could take care of himself. Appellant said he bought the ear from M. B. Boggus and had a tax collector’s receipt for the license. The ear was transferred to O. E. Allen. Appellant said he knew a man by the name of Braselton, but did not know him in person. It seems that Braselton was a collector. He received the license in January, 1933, after he was indicted. When he traded the car to the McCathren Motor Company, he gave them the license, and it was then that his attention was called to the fact that the license was not in his own name. The indictment for forgery in 1927 was Introduced in evidence as was also the dismissal of cause No. 2108 against tlie appellant. He claimed that he endeavored to get his former wife as a witness and exhibited an application for a subpoena made on February 8, 1933. It was returned not found. Appellant also introduced a subpoena for the sheriff of Gregg county.

Appellant claims that he got one $100 bill from the Shell Company, and with that $100 bill and the two $100 bills that he received from the First National Bank at Fort Worth, he purchased the automobile with three $100 bills. Exhibits were introduced in connection with the testimony/ Among them was the check drawn on the State National Bank at Mineral Wells for $2,888.39, which balanced Kiser’s account on March 13, 1931; a hill of sale from the Ernest Allen Motor Company for a Chevrolet 1930 model coupé, engine No. 1821596; an exhibit showing the transfer of a car of the same number and description mentioned, to the Ernest Allen Motor Company, signed by M. B. Boggus, vendor, on October 24, 1932. There were four exhibits showing the dismissal of prosecutions pending against O. E. Allen in 1928 and 1929, also exhibits showing subpoenas for certain witnesses in behalf of the appellant, among which was a subpoena for Elsie Allen, not executed.

Transactions involving the automobile mentioned above in which appellant had purchased and transferred it in the name of another person were introduced in evidence.

The appellant’s mother undertook to describe the movements of Kiser when he went to her house. He asked if Odell (appellant) was there, and received a negative reply. He then grabbed hold of the screen and shook it like he would tear the door open. He then went out to the car and the witness later saw him lying drunk in the car.

The locality in which Kiser was left by the appellant was controverted by the testimony of Zaek Dennis, who testified in substance that he saw appellant and Kiser on East' Walker street in Breckenridge at the “Old Dutch Windmill,” coming into town. Appellant was driving and asked the witness to assist him in putting Kiser to bed; that Kiser was drunk. Kiser told appellant to leave him alone; that he would be all right. About that time Tom Watkins came alone in a Chevrolet truck. He saw the appellant.Dennis did not know whether Watkins saw Kiser or not From Dennis’ testimony we-quote:

“After Kiser had told the defendant to leave him alone we got into the truck and came to town. The defendant and I had been standing there about twenty minutes when Watkins drove up. During the time I was standing there — the defendant did not go to Kiser and take a purse from his left hip pocket.”

On cross-examination Dennis said that he was under indictment for ’a felony. He said that Kiser appeared to be drunk. He was not examined by the witness but he formed the opinion that Kiser was drunk. Dennis remained at the place where Kiser and appellant were for about thirty minutes.

Watkins testified that appellant had been in his employ and had lived with his family; that he had heard about Kiser losing his money; that he saw the appellant near the “Dutch Windmill” talking to a man in a Ford coupg. From Watkins’ testimony we quote:

“Kiser was supposed to be there in the car. * * * I did not have any conversation with them to amount to anything. * * * Odell Allen asked me where I was going. * * * They got on the truck and come with me to Breckenridge.”

Watkins testified that he did not remember the date of the incident mentioned.

Kiser testified that in March, 1931, he drew from the State National Bank of Mineral Wells the sum of $2,888.39. On eross-ex-qmination, it was developed in evidence that after having checked out his money from the bank, Kiser bought a house and an automobile. He claimed that the amount of money taken from him was the remainder of what he had withdrawn from the bank. Considering the examination, direct and cross, it is thought that the introduction of the testimony of the banker and the exhibit of the check for $2,888.39 drawn by Kiser at the time stated by him, was not harmful to the appellant for the reason that there was no testimony contradicting that of Kiser to the effect that at the time of the alleged robbery he had in his possession the amount of money mentioned by him, which was something over $1,200. The above remarks relate to bills of exception Nos. 1, 2, and 3.

There was testimony to the effect that Kiser had folded the $100 bills in his possession with the $20 bills over them in a peculiar way, and that one of the bills had become stained from dampness in the pocket of Kiser. There was also some evidence that one of the bills with which appellant bought the automobile had a stain upon it.

Bill No. 4 is based upon the theory that • the court sanctioned the use of Kiser' as a witness in opposition to the law excluding witnesses when the rule was demanded. The bill contains the following:

“The witness does not hear well, and probably did not hear it. I will overrule the objection.”

The testimony given by the witness, if any, is not set out in the bill. It is thought that the bill does not disclose any abuse by the-district judge of the discretion which the law vests in him. See article 644, C. C. P. 1925; also Emmons v. State, 100 Tex. Cr. R. 264, 273 S. W. 253; Steadham v. State, 119 Tex. Cr. R. 475, 43 S.W.(2d) 944; Warrick v. State, 120 Tex. Cr. R. 626, 48 S.W.(2d) 1000, and other cases cited in Vernon’s Ann. Tex. C. C. P. vol. 2, Pocket parts 1933, p. 12.

Bill No. 5 relates to the cross-examination of the witness Zack Dennis, called upon on behalf of the appellant. The witness was asked the following question:

“You are under indictment for the possession of intoxicating liquors for the purpose of sale, are you not?”

The objection urged was the fact that the witness was charged was not admissible as an impeaching fact. We think the precedents exhibit the contrary rule. See Hooten v. State, 117 Tex. Cr. R. 513, 33 S.W.(2d) 742; McMurray v. State, 119 Tex. Cr. R. 446, 45 S.W.(2d) 606.

Bill No. 6 reflects the appellant’s complaint of the reception of the testimony of Hoveneamp, deputy tax collector of Tarrant county. The witness produced certain records of a transfer of an automobile from M. B. Boggus to the Ernest Allen Motor Company, and the transfer from the Ernest Allen Motor Company to O. C. Allen. Exhibit O, to which reference’ is made in said objection, shows the transfer to O. C. Allen of an automobile described as a 1930 Chevrolet coupé, state license No. F — 64—529. The exhibit is signed “Ernest Allen Motor Co. by I. M. Puckett.” Exhibit D is a transfer from M. B. Boggus to the iSmest Allen Motor Company, in consideration of $1, of a Chevrolet 1930 model coupé, state license No. F — 64^-259. The testimony is regarded as relevant. It tends to show the appellant’s conduct in using a name other than his own in dealing with the automobile which .he claims to have purchased with money he had earned and which the state claims he had taken from Kiser.

Bills of exception Nos. 7, 8, 9, 10, and 11 reflect the complaints of the appellant touching the proof of his transactions in purchasing and selling the automobile as reflected by the evidence hereinabove and as practically set forth in his own testimony.

Bill No. 12 reflects the effort of the appellant to go into the details involved in a prosecution in which he and one Herring were jointly indicted. The court permitted proof that the indictment had been dismissed. The details sought to be proved dealt with the relative liability of the appellant and his co-defendant.

Bill No. 13 contains five subdivisions, each criticizing the charge which was given to the jury by the court. Such of them as are deemed to present any legal question worthy of ■discussion have been referred to hereinabove.

Special charge No. 1, which was refused, is in the following language:

“Gentlemen of the Jury: You are instructed that if you And and believe from the evidence that the money used by the defendant In purchasing the automobile from the Ernest Allen Motor Company, in Fort Worth, Texas, ■was money earned by the defendant while working for one Tom Watson and the Dutch ■Shell' Oil Company, or if you have a reason-able doubt as to the some being true, you will And the defendant not guilty.”

The refusal of the charge is deemed correct. The question was the theft of money from Kiser. The use of the three $100 bills in purchasing the automobile was a circumstance against the appellant but not conclusive of his guilt or innocence.

Tbe precedents under article 1438, P. C. 1925, denouncing the offense of theft from the person, reveal the fact that the distinction between theft from the person, as deüned, and ordinary theft and robbery invoke discussion to a considerable degree. Among the recent illustrations are the following cases: McFarlin v. State (Tex. Cr. App.) 55 S.W.(2d) 844; Harris v. State, 118 Tex. Cr. R. 597, 39 S.W.(2d) 888; Reese v. State, 91 Tex. Cr. R. 457, 239 S. W. 619; Rylee v. State, 90 Tex. Cr. R. 482, 236 S. W. 744.

"The offense in the present instance is destined as follows:

“To constitute the offense each following ■ circumstance must concur:
“1. The theft must be from the person; it Is not sufficient that the property be merely -.in the presence of the person from whom it '•is taken.
“2. The theft must be committed without the knowledge of the person from whom the property is -taken, or so suddenly as not to allow time to make resistance before the property is carried away.
“3. It is only necessary that the property stolen should have gone into the possession of the thief; it need not be carried away in order to complete the offense.”

The statute is quoted in the charge of the court, from which the following, language is taken:

“The indictment in this ease charges a private stealing from the person of the alleg' ed injured person without his knowledge. Now, I charge you that if you believe from the evidence, beyond a reasonable doubt, that the defendant, Odell Allen, in the county of Stephens and State of Texas, on or about the time charged in the indictment, did fraudulently and privately take from the person and possession of the said Ollie Kiser, without his knowledge or consent, the personal property described in the indictment, with the intent to deprive the owner of the value of the same and to appropriate it to the use and benefit of him, the said defendant, then you will find the defendant guilty as charged, and assess his punishment at confinement in the State 'penitentiary for a term not less than two years, nor more than seven years.
“If you do not so believe beyond a reasonable doubt, you will acquit the defendant and say by your verdict, ‘not guilty.’ ”

From the charge we quote further:

“By 'fraudulent taking’ is meant, first, that the person taking knew at the time of the tak-' ing that the property was not his own; second, that the property was taken without the consent of the owner; and third, that the property was taken with the intent to deprive the owner of the value of the same and to appropriate it to the use or benefit of the person taking.”

The following special charge No. 2 was requested by the appellant and refused by the court:

“You are charged that if Ollie Kiser, the prosecuting witness in this case, knew when the defendant, if he did, put his hand into his pocket and permitted the defendant to take his money; or, if you have a reasonable doubt as to the same, it will be your duty to find the defendant not guilty.”

In refusing to give the special charge, the trial judge did not believe that the evidence justified an instruction to the jury to the effect that the injured party consciously suffered or knowingly permitted 'the appellant to take his money. In that view we are constrained to concur with the conclusion of the trial judge. It is thought that the evidence repels the conclusion that the injured party consciously suffered his money to be taken. The condition of the injured party, coming from both the direct and cross-examinations, makes evident that he was not in a mental condition to consent nor in a physical condition to acquiesce in ithe taking .'of his money. The expert evidence of the doctor, the evidence of the injured party, and the evidence of the appellant all point to the helpless condition of Kiser; at least a condition which warranted the jury in reaching no conclusion other than that at the time in question Kiser was helpless; and the evidence presenting an issue of fact touching his consent is. in the opinion of the writer, not apparent from the record.

The judgment is affirmed.