Слике страница
PDF
ePub
[ocr errors]
[merged small][ocr errors][merged small][merged small]

It was held that the judge properly held himself disqualified, citing Sleven v. Wheeler, 58 Tex. 23.

Article 626, C. C. P., is as follows: "Whenever in any cause of felony the district judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, order a change of venue to any county in his own, or in an adjoining district, stating in his order the grounds for such change of venue."

It has been held that the discretion thus given the judge to change the venue on his own motion is an act of judicial discretion, not an arbitrary or personal one. Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 191; Walker v. State, 42 Tex. 360. The judge must be satisfied that a trial alike fair and impartial to the accused and the state cannot be had, and must determine which of a number of counties shall be selected within which the trial on change of venue shall be had. These are not ministerial acts. The making of an order changing the venue is not a mere incidental matter. It is an act involving the exercise of judicial discretion and judgment, and one which a judge who is disqualified "to sit in the case" cannot per

form.

The assistant attorney general concedes that the order changing the venue in this case is void, because it was made by a disqualified judge. Other cases illustrating the point are: Taylor v. State, 195 S. W. 1147; Garrett v. Gaines, 6 Tex. 435; Jouett v. Gunn, 13 Tex. Civ. App. 84, 35 S. W. 194; Comstock v. Lomax (Civ. App.) 135 S. W. 185; Fellrath v. Gilder, 1 White & W. Civ. Cas. Ct. App. § 1060; Kalklosh v. Bunting, 40 Tex. Civ. App. 233, 88 S. W. 389; Seabrook v. Bank (Civ. App.) 171 S. W. 247; Jirou v. Jirou (Civ. App.) 136 S. W. 493; City v. Bank (Civ. App.) 71 S. W. 799; Burks v. Bennett, 62 Tex. 277; Chambers v. Hodges, 23 Tex. 112; Gains v. Barr, 60 Tex. 676; Dolsons v. Sheridan Co. (Civ. App.) 178 S. W. 663; Fechheimer v. Washington, 77 Ind. 366; Morrissey v. Gray, 160 Cal. 390, 117 Pac. 438; Dodd v. State, 5 Okl. Cr. 513, 115 Pac. 632; Frevert v. Swift, 19 Nev. 363, 11 Pac. 273; People v. De La Guerra, 24 Cal. 73.

[3] One of the issues developed on the trial

of the cause was the general reputation of the deceased as to whether he was a dangerous man or otherwise. In cross-examination of one of the witnesses who testified to the good reputation of the deceased in this respect, it was developed that deceased had killed a man, shot another, and had a number of fights. Appellant sought to interrogate other witnesses for the state who testified to the good reputation of the deceased in the respect mentioned, whether they had heard of these occurrences or knew of them. This testimony was excluded upon grounds suggested by the court and made by the The state's witness prosecuting attorney. having testified to his knowledge of the good reputation of deceased, and there being evidence upon which to base the inquiry, we think it within appellant's rights whether or not he had heard of the incidents, in cross-examining the witness to inquire for the purpose of testing the knowledge and

Crim. Ev. vol. 1, p. 1013, we quote as follows: credibility of the witness. From Wharton's

"So a character witness who has testified as to the good or bad character of the witness whom he is called upon to sustain or impeach may be cross-examined as to his knowledge of the acts that contradict his testimony, not for the purpose of establishing such acts, but to test the witness' credibility, so the jury may be assisted in determining the weight to be given his testimony."

This text is supported by the opinion of this court in Forrester v. State, 38 Tex. Cr. R. 248, 42 S. W. 400. See, also, Rice on Crim. Ev. § 375. The idea expressed is that a character witness on direct examination may not be permitted to detail specific acts derogatory to the character of the person in question, but when he has testified to his knowledge of the character he may be crossexamined, and as to the cross-examination the text last cited uses the following language:

"When a witness has testified on his examination in chief that the person as to whose character the inquiry is instituted bears a good character, his opinion and the value of it may be tested by asking the witness on his crossexamination whether he has ever heard that the person whose character is in question has been accused of doing acts wholly inconsistent with the character which he has attributed to him."

Under these authorities we think there was error in the limitation placed upon the cross-examination.

Because of this error, and that involved in the change of venue by the disqualified judge, a reversal of the judgment of the lower court is ordered.

PRENDERGAST, J., absent.

THOMPSON v. STATE. (No. 4894.) (Court of Criminal Appeals of Texas. Feb. 13, 1918. On Motion for Rehearing, March 20, 1918.)

1. CRIMINAL LAW 1087(1)-NOTICE OF APPEAL NECESSITY.

Where the record shows no notice of appeal, the appeal will be dismissed. 2. CRIMINAL LAW 1087(2) — SUFFICIENCY OF RECORD FILING EXCEPTIONS BEYOND TERM TIME.

Where it appears from the record on appeal that statement of facts and bill of exceptions were filed beyond term time, an order of court for such filing should be shown.

On Motion for Rehearing.

[blocks in formation]

Although an order was entered authorizing the filing of statement of facts and bills of exception after court had adjourned, this would not apply to evidence taken on motion for new trial, exceptions to which must be filed during term time.

Appeal from McLennan County Court; James P. Alexander, Judge.

C. C. Thompson was convicted of aggravated assault, and he appeals. Affirmed. Holt & Shires and G. T. Shires, all of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of aggravated assault, and awarded nine months' imprisonment in the county jail.

[1, 2] There is a statement of facts and a bill of exceptions in the record, but they were filed after the adjournment of court, and the record contains no order allowing such filing. The record is also without notice of appeal. On account of the want of this notice the appeal will be dismissed.

If it is sought to reinstate the appeal by showing notice of appeal was duly given, we call attention to the fact that it should be made to appear, if the record so shows, there was a proper order entered below authorizing the filing of the statement of facts and bill of exceptions beyond term time. It may be also noticed in this connection that the statement of facts adduced in support of appellant's motion for new trial was not filed in term time.

As the record stands the appeal will be dismissed.

On Motion for Rehearing.

transcript. The case will therefore be reinstated.

It was intimated in the former opinion that, inasmuch as the testimony set out in the record was taken on motion for new trial, it would not be considered because filed subsewas an order entered, it seems, authorizing quent to the adjournment of the court. There the filing of statement of facts and bills of exception after court had adjourned, but this would not apply to evidence taken on motion for new trial. This must be filed during term time. The decisions all seem to be in accord on this question; therefore the evidence as introduced in regard to the motion for new trial will not be considered. Without this there is nothing for the court to review, and the judgment will be affirmed. PRENDERGAST, J., absent.

[blocks in formation]

So declaring the result of election and the issuance of such order are merely ministerial, and not legislative, acts. 3. INTOXICATING LIQUORS OPTION ELECTIONS-STATUTES. Even if the Legislature did not have the

36(5)

LOCAL

power to authorize the commissioners' court to issue an order prohibiting the sale of intoxicants as provided by Vernon's Sayles' Ann. Civ. St. 1914, art. 5721, it is practically immaterial, as the mere declaration by such body that the results of an election were in favor of local option would put the law in effect.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Bummer Hines was convicted of violating the local option law, and he appeals. Affirmed.

Tom P. Whipple, of Waxahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. Appellant was convicted of violating the local option law, and allotted two years' confinement in the penitentiary.

[1] The only question suggested for revi[3, 4] On the former day of the term the sion is the alleged unconstitutionality of the appeal herein was dismissed. The defects in local option law, in that it is invalid because the transcript have been cured, and it is now it authorizes the declaration of the result of shown it was an omission of the clerk in the vote and ordering its publication by the failing to copy the necessary papers in the commissioners' court. The proposition is

its," etc., appellant contends is legislation on the part of the commissioners' court, and therefore unconstitutional. The Constitution (article 16, § 20) provides that the Legislature shall pass suitable laws whereby the qualified voters shall have the right to vote upon the prohibition of the sale of intoxicants within a given territory. This legislation, of course, must be sufficient to carry out the purpose of the Constitution to enable the voters to intelligently vote upon the question. It is the Legislature that enacts the legislation, and not the commissioners' court. This legislation does not become final nor operative until the people have declared their wish

made that this is a judicial act, and there-, therein may at a legal election held for that purfore not within the authority of the Legisla- pose by a majority vote decide otherwise," etc. ture to grant to the commissioners' court. That portion of the statute which begins, We are of opinion that this proposition is "and absolutely prohibiting the sale of innot sound. It is not a judicial act as con-toxicating liquors within the prescribed limtended by appellant. It is ministerial. The Legislature had the power to authorize the commissioners' court to declare the result of this election and order its publication. This does not determine the matter judicially. It only declares the result as found upon the face of the returns. The commissioners' court would have no authority to go into the ballot boxes and count the votes to determine the matter. That only could be done where there was a contest, in the proper tribunal, in case the election was contested. This must be done by a direct proceeding as provided by the statute. The commissioners' court simply determines from the face of the returns the result of the election. In alles in regard to it at a proper election, and elections there must be some means provided to ascertain and declare the result. This is made up from the face of the returns as reported by the election officers, and is not judicial, but ministerial.

We have not thought it necessary to go into a detailed discussion of this matter, but, believing the contention of appellant to be unsound, the judgment will be affirmed.

On Motion for Rehearing.

when this vote has been had and the result is favorable to local option, the commissioners' court simply follows the law and obeys the mandate to canvass the vote, declaring the result and orders the prohibition of selling intoxicants. This is not legislation on the part of the commissioners' court. They are but carrying out the law and expressed wish of the people who voted at such election as authorized by the Legislature as to the manner of carrying on the election and the declaring of its result. It takes the vote of the

people in a given territory to put this law in operation, and the commissioners' court has been legally selected as the proper body to carry out the provisions of the law. It is simply a ministerial matter, and in no case would be legislation by the court. That body is simply following the instructions of the Legislature as enacted into law and vitalized by the voters. A ministerial act by the commissioners' court is not legislation. If it be conceded that the Legislature could not confer such authority upon the commissioners'

This case was recently affirmed. Appellant files a motion for rehearing in which he says the court in writing the original opinion did not fully comprehend the question he raised attacking the constitutionality of the local option law. His contention was that the power conferred upon the commissioners' court of prohibiting the sale of intoxicants in such territory after the result of the election had been declared was legislative. The opinion laid down the proposition that this matter complained of in the statute was not judicial, but ministerial. Appellant contends that this did not meet his question. We disa-court, its act would be void as to that part, if gree with him upon that, but, meeting his contention that it was legislation on the part of the commissioners' court, we are of opinion that it was a ministerial act, and could not the provision. As far as the commissioners' be legislation on the part of the commission-court is concerned, it would not be legislation, ers' court. That court was not attempting but simply obeying the will of the Legislato pass any law; it was not attempting to do any act except that which was enacted by the Legislature and voted upon by the people in the contest in the local option election. The statute in question (article 5721) reads as follows:

"Said court shall hold a special session on the eleventh day after the holding of such election, or as soon thereafter as practical, for the purpose of opening the polls and counting the votes; and, if a majority of the votes are 'for prohibition,' said court shall immediately make an order declaring the result of said vote, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, except for the purposes and under the regulations specified in

void at all, not because the commissioners'

court entered the order, but because the Legislature of the state had no authority to make

ture, voted by the people, whether that be constitutional or not. The Legislature had such authority.

[2, 3] From another view, we are of the opinion that whether the Legislature had the authority to require the commissioners' court to enter the order of which appellant complains or not would be practically immaterial. The declaration of the result of the vote would necessarily have the same effect whether the remaining part of the order was entered or omitted. If the vote results favorably to local option, when the commissioners' court declared that result it would necessarily fol

The motion for rehearing will therefore be

The fact that the commissioners' court did | county. We judicially know that the city of declare the result favorable to local option Dallas is in Dallas county by reason of the would by itself declare that the sale of in- statute which fixes that place as the location toxicants should be prohibited and upon pub- of the Court of Civil Appeals. But indelishing the order by the county judge for the pendent of such judicial knowledge, or even requisite time the law would go into effect. in the absence of testimony in the statement From any viewpoint there is nothing seri- of facts that the house was in Dallas county, ous in appellant's contention. we would presume legally that it was as charged in the indictment in that county. The statute provides that the question of venue shall not be raised upon appeal unless it became an issue in the trial court properly suggested and presented in a bill of exceptions, or in some legal manner showing that it was not in Dallas county. Had the venue been a question of moment or serious import upon the trial, and that issue had been fought out on the trial of the case, sug

overruled.

PRENDERGAST, J., absent.

SHERMAN v. STATE. (No. 4949.) (Court of Criminal Appeals of Texas. March 20, 1918. Rehearing Denied April 10, 1918.)

1. CRIMINAL LAW ~564(1)—VENUE-SUFFI-gesting that it may not have been in Dallas

CIENCY OF EVIDENCE.

[blocks in formation]

2. CRIMINAL LAW 304 (6) JUDICIAL NO

TICE-LOCATION OF CITY.

The court judicially knows that the city of Dallas is in Dallas county by reason of the statute which fixes that place as the location of the Court of Civil Appeals. 3. CRIMINAL LAW

UE-PRESUMPTION.

1144(6)-REVIEW-VEN

It will be presumed that venue was proved unless it was a question of serious import upon the trial or unless contested or verified in a bill of exceptions.

4. CRIMINAL LAW 695(4) — RECEPTION OF EVIDENCE-OBJECTION-FORM.

Objections on criminal trial to evidence as "incompetent and prejudicial" or "immaterial, irrelevant, and incompetent" are too general for consideration if the evidence could have been admissible for any purpose.

5. BURGLARY 41(7)-IDENTITY OF PROPER-
TY STOLEN-SUFFICIENCY OF EVIDEnce.
In a prosecution for burglary, where evi-
dence tended to show that defendant stole parts
of a Pittsburg water heater, it was not neces-
sary for conviction to show its size and number.
Appeal from Criminal District Court, Dal-
las County; Robt. B. Seay, Judge.

John Sherman was convicted of burglary with intent to commit theft, and he appeals. Affirmed.

John White, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J. This conviction was for burglary with intent to commit the crime of theft. While from the facts the jury could have possibly reached the conclusion that the house was not closed at the time the defendant is charged to have broken it, yet the evidence is fully sufficient to justify their finding that appellant did break the house.

[1-3] It is contended that the evidence does not support the conviction in that the house is not shown to have been situate in Dallas county. We are of opinion there is no merit in this proposition. The evidence shows that the house was in the city of Dallas, and one of the witnesses shows it was in Dallas

county, but was in some other county, the statute in such instance would not apply which requires it to be contested and verified in a bill of exceptions. In other words, this court, by the statute, will presume that the venue was proved unless the matter is properly contested or shown in some way by the record that it was not in the alleged county.

[4] There were no exceptions reserved to the charge of the court. Some bills of exception were reserved to the admission of testimony. Bill No. 1 recites that the court erred in admitting, over defendant's objection, testimony of the witness Baird, and the exhibition by him before the jury of certain pieces of old iron not alleged in the indictment to have been taken by the defendant from the house; defendant being the sole owner of said pieces of old iron. Objection was urged on the ground that this testimony was incompetent and prejudicial. These constitute but general demurrers, and are not sufficient if the testimony could have been admissible on the trial for any purpose. Where evidence may be admissible for any purpose on the trial, a general demurrer is not sufficient. But the court explains this by stating:

"These are the tools and pieces of iron taken from the pocket of the defendant by the officers at the time of his arrest at the house."

The bill therefore is too indefinite from any standpoint to present error of a reviewable nature.

The succeeding bill also reserved exception to the testimony of detective Baird in regard to exhibiting before the jury several pieces and parts of old iron and one rusty and worn out buggy wrench, all of which evidence was taken from defendant's person at the time of his arrest, and was not alleged to have been taken by defendant from the burglarized house. Exception was reserved to this on the ground that it was immaterial, irrelevant, and incompetent. The evidence may have been admissible for several reasons. The grounds of objection are too

general, and the facts are not sufficiently stated in the bill to show why the introduction of this evidence was erroneous.

[5] There is another bill to the ruling of the court permitting Police Officer Plant to testify with regard to a Pittsburg water heater torn down on the inside of the house, without showing the number and size and without showing that same was the property of the owner of the burglarized house, and also a part of and attached to the premises. This bill is vague, and does not fully state the connecting facts. Should we go to the statement of facts we would find that there was a Pittsburg water heater in the burglarized house which had been torn down.

It

was not necessary to show its number and size. It was in the house, and was torn down, and some parts of the heater gone. These parts seem, under the testimony, to have corresponded with some of the pieces of iron mentioned that were found in the possession of appellant. We are of opinion the case should not be reversed, and that the testimony is sufficient to show that appellant entered this house for the purpose of committing theft, and did in fact take prop erty therefrom.

The judgment will be affirmed.

PRENDERGAST, J., absent.

VESTAL v. STATE. (No. 4847.)

On Motion for Rehearing.

5. CRIMINAL LAW 1099(5)—APPEAL-NEW TRIAL STATEMENT OF EVIDENCE-FILING. Criminal Appeals, the statement of the evidence In order to be considered by the Court of heard on motion for new trial must be filed during the term of court at which the trial occurred.

Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.

Emmett Vestal was convicted of murder, and he appeals. Affirmed.

J. T. Kelly, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J. Appellant was convicted of murder, and assessed the death

penalty.

[1] The main, if not the only, question herein is whether the evidence was sufficient to sustain the verdict. That appellant killed deceased, Roscoe Morrell, was clearly proven, and appellant himself swore he killed him. He claimed he killed him in selfdefense. The state's contention, and the evidence as a whole, was amply sufficient to establish that he did not kill him in selfdefense, but to rob him.

Deceased was engaged in running a Dodge service car at Weleetka, Okl. Appellant appeared there early in July, dressed in a United States Navy uniform, representing that he was working for the United States in the recruiting service. As a matter of fact he was not so engaged, but was a recent deserter from the navy. He hired deceased to take him down into Texas. At

(Court of Criminal Appeals of Texas. Feb. 13, the time deceased left with him deceased 1918. On Motion for Rehearing, April 3, 1918.)

1. HOMICIDE 244(1)-Murder-SUFFICIENCY OF EVIDENCE.

In a prosecution for murder, evidence held sufficient to sustain conviction, in that it showed that defendant killed deceased to rob him, and not in self-defense.

2. HOMICIDE 338(3)-EVIDENCE-ADMISSI

BILITY.

had, it appears, at least $55, perhaps more. He had one roll of bills, besides considerable silver. Appellant at the time knew that he left with some, if he did not know how much, money, deceased had. Deceased also took his pistol and watch with him. They were traced by different witnesses, who saw them along the route from WeleetIn a prosecution for murder, where defend- ka through Dallas to Lancaster, in Dallas ant testified on the stand that he pawned the county. About 11:30 o'clock of the night bewatch in evidence as his property with a pawn- fore deceased's body was found very earbroker under a false name, admission of testimony of one in the jewelry business, employedly next morning appellant, with deceased, by the pawnbrokerage company, that he had drove the car into a garage at Lancaster, seen the watch and the ticket therefor, and that and had some minor work done on it, and the ticket was issued by his firm, etc., would at the time deceased bought and paid for some oil. They remained there only a few minutes, and announced when they left that they might be back a little later, if they concluded not to go on, and get a tank of oil. They left, going south. This was just before midnight. About an hour later appellant returned to Lancaster from the Where a murder trial was attended by a south, walking. He met up with the town great crowd and the courtroom was densely pack-night watchman, and told him he had lost ed, so that the presence and assistance of the the key to his car, and could not start it sheriff in keeping order was necessary, the trial with his knife, which he had tried. He incourt properly exercised its discretion in refusing to have the sheriff placed under the rule quired for a garage, where he might get a key for the car. The watchman directed

show no error. 3. HOMICIDE

BILITY.

174(5)-EVIDENCE-ADMISSI

In such prosecution, testimony of deceased's wife that the watch was just like her husband's, and that in her judgment it was his, was ad

missible.

4. CRIMINAL LAW 665(2) — TRIAL PLACING SHERIFF UNDER RULE.

with the other witnesses.

« ПретходнаНастави »