GRAGARA v. STATE. (No. 3795.) not signed by the defendant or his attorneys. As this matter is presented, there is nothing (Court of Criminal Appeals of Texas. Nov. 3, for this court to review, and the judgment will be affirmed. 1915.) CRIMINAL LAW 1090-QUESTIONS REVIEW- The sufficiency of the evidence cannot be reviewed in the absence of a statement of facts or bill of exceptions. AUGUSTINE v. STATE. (No. 3794.) (Court of Criminal Appeals of Texas. Nov. 3, 1915.) - RECORD ON APPEAL [Ed. Note. For other cases, see Criminal CRIMINAL LAW 1097-APPEAL AND ERROR Law, Cent. Dig. §§ 2653, 2789, 2803-2822, REVIEW OF EVI2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. 1090.] The contention of appellant that evidence Appeal from Ellis County Court; W. M. fails to support the conviction cannot be reviewed in the absence of a statement of facts. Tidwell, Judge. [Ed. Note.-For other cases, see Criminal Gragara, a Mexican, was convicted of gam- Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, ing, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of gaming, his punishment being assessed at a fine of $10. This case is before us without a statement of facts or bill of exceptions. The allegation that the evidence is not sufficient, therefore, cannot be reviewed. The judgment is affirmed. BESENTA v. STATE. (No. 3793.) 2939, 2941, 2942, 2947; Dec. Dig. 1097.] Appeal from Ellis County Court; W. M. Tidwell, Judge. Augustine, a Mexican, was convicted of gaming, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of gaming, his punishment being assessed at a fine of $10. The record is before us without bills of exception or statement of facts. The conten tion of appellant that the evidence fails to support the conviction cannot be reviewed in (Court of Criminal Appeals of Texas. Nov. 3, the absence of the statement of facts. 1915.) CRIMINAL LAW 1124-PRESENTATION FOR Where there was no bill of exceptions or statement of facts, and the motion for new trial, based on insufficiency of the evidence to support the conviction, was not signed by defendant or his attorney, and there was no verification by the trial judge of the testimony set out in the motion as being that adduced on the trial, nothing was presented for review. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. ❤mm 1124.] Appeal from Ellis County Court; W. M. Tidwell, Judge. Besenta, a Mexican, was convicted of gaming, and appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. DAVIDSON, J. Appellant was convicted of gaming, his punishment being assessed at a fine of $10. There is no bill of exceptions or statement of facts in the record, therefore the case will be disposed of without reference to those matters. The motion for new trial is based on the insufficiency of the evidence to support the conviction, and there is also set out in the motion for new trial some questions and answers of the witness. But there is no verification of this testimony by the trial judge as being the facts adduced upon the trial, and in fact the motion for new trial is The judgment therefore will be affirmed. RIDGEWAY v. STATE. (No. 3822.) (Court of Criminal Appeals of Texas. Nov. 10, 1915.) 1. CRIMINAL LAW 1092, 1099-APPEALBILLS OF EXCEPTION AND STATEMENT OF FACTS-TIME FOR FILING. facts, filed more than 20 days after the adjournA bill of exceptions and a statement of ment of court, could not be considered, as they must be filed within 20 days, or some reason shown why this was not done which would relieve appellant of negligence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 28662880, 2919; Dec. Dig. 1092, 1099.] 2. CRIMINAL LAW 1090-APPEAL-RECORD -MATTERS PRESENTED FOR REVIEW. Where no bill of exceptions or statement of facts was filed within 20 days after the adjournment of court, an allegation in the motion for a new trial as to the insufficiency of the evidence could not be considered. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825, 2827, 2927, 2928, 2948, 3204; Dec. Dig. 1090.1 Appeal from Tarrant County Court; Jesse M. Brown, Judge. Tom Ridgeway was convicted of unlawfully selling intoxicating liquors and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes DAVIDSON, J. Appellant was convicted of unlawfully selling intoxicating liquors, his punishment being assessed at a fine of $100 and two months' imprisonment in the county jail. [1, 2] Court adjourned on September 5th. The only bill of exception in the record was filed on September 29th, as was the statement of facts. These matters cannot be considered. They must be filed within 20 days, or some reason shown why it was not done which would relieve the appellant of negligence. The allegation in the motion for new trial of the insufficiency of the evidence, therefore, cannot be considered. The judgment will be affirmed. QUESTIONS PRESENTED FOR REVIEW. Where no exceptions were reserved to the introduction of any testimony, nor to the charge of the court as given, and no special charge was requested, the only question presented for review was the sufficiency of the testimony. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. 1134.] Appeal from District Court, Trinity County. Brit Richardson was convicted of selling intoxicating liquor in prohibition territory, and he appeals. Affirmed. J. A. Platt, Dist. Atty. of Groveton, and C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of selling intoxicating liquor in prohibition territory, and his punishment assessed at one year's confinement in the state penitentiary. No exceptions were reserved to the introduction of any testimony, nor to the charge of the court as given. No special charge was requested. So the only question presented for review is the sufficiency of the testimony. Tom Kirkwood testified he secured a bottle of whisky from appellant and paid him a dollar for it. The judgment is affirmed. GRISHAM v. STATE. (No. 3818.) 2. CRIMINAL LAW 1092 VERIFICATION. Charge of the Court," not verified by the trial A so-called "Appellant's Exceptions to the judge, or shown to have been presented to him for his action before the trial was concluded, cannot be considered. Law, Cent. Dig. §§ 2803, 2829, 2834–2861, 2919; Dec. Dig. 1092.] [Ed. Note.-For other cases, see Criminal Appeal from District Court, Trinity County; S. W. Dean, Judge. L. M. Grisham was convicted for unlaw fully selling intoxicating liquor in a prohibition county, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. Appellant was convicted for unlawfully selling intoxicating liquor in a prohibition county, a felony, and his punishment assessed at the lowest prescribed by law. [1] He contends that the evidence is insufficient to sustain the verdict. The state's witness testified positively that the appellant sold him intoxicating liquor at the time and place alleged in the indictment. He denied this. That was a question for the jury. We cannot disturb the verdict. [2] There appears in the record what is termed "Appellant's Exceptions to the Charge of the Court." However, it is in no way verianywhere or in any way that it was prefied by the trial judge, and it is not shown sented to the trial judge for his action, or that it was ever called to his attention at any time before the trial was concluded. Hence it cannot be considered. Ross V. State, 170 S. W. 305. The judgment is affirmed. An indictment for knowingly permitting his house to be used for purposes of prostitution (Court of Criminal Appeals of Texas. Nov. 10, would not be quashed because defendant's name 1915.) 1. INTOXICATING LIQUORS 238- UNLAWFUL SALE-QUESTION FOR JURY. In a prosecution for unlawfully selling intoxicating liquor in a prohibition county, the positive testimony of the state's witness that defendant sold him intoxicating liquor as alleged in the indictment, denied by defendant, made the offense a question for the jury. [Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. 238.] did not immediately follow the words "upon their oaths in said court present that, * * where the indictment as a whole clearly alleged that defendant committed acts which under the statute would make him guilty of the offense, or on the ground that it did not allege more than that the premises were in the county, as it was not necessary to allege particularly where they were situated. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. 137.] Appeal from Childress County Court; | 3. RAPE 51-EVIDENCE-IDENTITY OF DEFrank W. Freeman, Judge. A. D. Lawson was convicted for knowingly permitting his house to be used for purpose of prostitution, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. PRENDERGAST, P. J. Appellant was convicted for knowingly permitting his house to be used for purposes of prostitution, and assessed the punishment prescribed by the statute. [1] There is in the record what purports to be a statement of facts, but it was filed much more than 20 days after the adjournment of court. The Assistant Attorney General's motion to strike it out on that ground is therefore sustained. FENDANT. sufficient to sustain a finding that the defendant In a prosecution for rape, evidence held was the person that committed the crime. [Ed. Note. For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. 51.] Appeal from District Court, Trinity County; S. W. Dean, Judge. Sam Jernigan was convicted of rape, and he appeals. Affirmed. J. A. Platt, Dist. Atty., of Groveton, and C. C. McDonald, Asst. Atty. Gen., for the State. HARPER, J. Appellant was convicted of rape on a girl under 15 years of age, and his punishment assessed at death. [1] There are but three bills of exception in the record, all relating to the introduction of a purported confession of defendant, and the evidence offered to prove that it was voluntarily made, signed, and witnessed as provided by law. The confession on its face alleges: [2] The only question which we can review in the absence of a statement of facts is his motion to quash the indictment. His first ground to quash is that appellant's name does not appear in the indictment where it should, claiming that it should immediately "I, Sam Jernigan, after being duly warned follow these words in the indictment: "Up- by J. A. Platt, district attorney, Twelfth judion their oaths in said court present that. cial district of Texas, as follows, (1) that I * * *" There is nothing in this, for the do not have to make any statement at all, and (2) that any statement here made by me may indictment as a whole clearly alleges that the be used in evidence against me upon the trial appellant, A. D. Lawson, with suitable al- for the offense concerning which this statement legations, in conformity with the statute, did is made, and being so warned by the said J. A. commit the acts which would show that he J. A. Platt the following voluntary statement." Platt, as aforesaid, do here make to the said is guilty of the offense. His second ground Then follows the confession, and it is signis that the indictment does not allege par-ed by appellant, he making his mark, and ticularly where the house was located in the county where the offense was alleged to have was witnessed by C. Ansberer and Leon M. county where the offense was alleged to have Siler. The defendant objected to the introbeen committed. This was unnecessary. It alleged that the house was situated in said Childress county, which was all that was necessary. The judgment is affirmed. JERNIGAN v. STATE. (No. 3819.) (Court of Criminal Appeals of Texas. Nov. 10, 1915.) 1. CRIMINAL LAW 531-EVIDENCE-CONFESSIONS-AUTHENTICATION. Where a written confession was made to a district attorney by one accused of rape, the district attorney was competent to testify that the confession was voluntarily made, that it was reduced to writing, signed by the accused, that he had been warned that he need not make any confession, and that if he did it would be used as evidence against him, as required by Code Cr. Proc. 1911, art. 810. duction of the confession, that defendant signed same by his mark, if at all, and that neither of the subscribing witnesses were called to testify how and under what circumstances the purported confession was signed; that it had not been properly shown that the subscribing witnesses were not peace officers. When these objections were made, Hon. J. A. Platt, district attorney, testified: "I was in Houston about the 28th of June, 1915. While in Houston I saw and conferred with the defendant, Sam Jernigan. I made a written statement at the request of Sam Jernigan. On that occasion I signed Sam Jernigan's name to a statement at his request; I signed the name, and he touched the pencil and made the mark. I remember others being there. C. Ansberer was there; he represented that to be his name, and Leon M. Siler. They witnessed the signature. I asked them particularly in the presence of the defendant if they held any official position, and they said they did not. The defendant was there present. I saw them him by counsel). That is the name I signed at his request; he told me he couldn't write his name, and I signed his name, and he made his mark. When I started to leave the jail, Jernigan asked me when he would have his trial; something about when his trial would be. After writing this statement I read it to him and warned him that he didn't have to make any statement, and that if he did make it it would be used against him in evidence. It was read to him twice, and he was warned that he didn't [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1212-1217; Dec. Dig. sign that instrument (indicating paper handed 531.] 2. CRIMINAL LAW FESSIONS. 448-EVIDENCE-CON It was not error to allow a city detective to testify that the persons who had signed a confession by defendant as witnesses did not hold any official position in the city or county. [Ed. Note.-For other cases, Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. 448.] have to make it. It was written down just as he told it. He made no objection to it. I asked him if he had anything to say, and he said yes, he wanted to tell how the thing happened, to tell the truth about it, and I told him he didn't have to make any statement, and that the statement might be used against him on trial, concerning the offense with which he was charged, and he went ahead and told me, and I got paper and told him to tell it slowly, and I wrote it down as he told it, and when he got through I read the whole thing over." Appellant objected to Mr. Platt being permitted to make this proof, his contention apparently being that only the subscribing witnesses could be called to make such proof. The court did not err in overruling the objections made. If appellant desired Messrs. Ansberer and Siler as witnesses, he could have secured process for them. He does not allege nor contend that if present they would testify to any other state of facts than as testified to by Mr. Platt. [2] The state also called C. W. McPhaill as a witness, and he testified: "He was working for the city of Houston as city detective in the police department. That he was in Houston on the 28th of June, 1915. That he knew Leon M. Siler and C. Ansberer, and that they, Leon M. Siler and C. Ansberer, did not hold any official position in Houston or Harris county, and that he saw them, the said Siler and the said Ansberer, sign as witnesses the purported statement or confession of the defendant, Sam Jernigan." One of the three bills contends that the court erred in permitting the testimony of Mr. McPhaill to be introduced; another, that there was error in admitting the testimony of the district attorney; and, the third, that there was error in admitting the confession. As before stated, these are the bills in the record, and they and neither of them present error. When appellant objected to the introduction of the confession in evidence, it then became necessary for the state to make proof of its execution by defendant, and that the provisions of article 810 of the Code of Criminal Procedure had been complied with, that is, that it was voluntarily made, that it was reduced to writing, and signed by him, and that he had been warned by the person to whom the confession was made that he did not have to make any statement, and that it would be used in evidence against him. Mr. Platt was the person to whom the confession was made, the person who reduced it to writing, and who knew better whether or not the warning had been given, as he had given the warning. It seems to us Mr. Platt was the proper person to make this proof. And as the statement was signed by mark, the law required that it be witnessed by some person other than a peace officer; therefore, in order to meet the objection made, it was necessary to make the proof sworn to by Mr. McPhaill, that neither of the subscribing witnesses were peace officers. There is other testimony in the record, both as to the fact that the subscribing witnesses were not officers and that the statement was a voluntary one, and was signed by appellant; he mak ing his mark. [3] This disposes of all questions in the record other than the one that the evidence is of that doubtful character and we should not permit the death penalty to be inflicted. There is and can be no question that the little girl was assaulted and penetrated. Appellant does not seek to dispute that fact. It is proven by the little girl, her mother, and two physicians who examined her person; but appellant does insist that the evidence does not unerringly point to him as the person who committed the crime. If we should consider his confession, with the other evidence, this would be shown also beyond question. But appellant insists that the confession was obtained under such circumstances that we should give but little, if any, weight thereto, and that, as many of the statements in the confession are shown to be false, it bears the impress that it was manufactured by appellant and he was induced to do so by one Buddy Townes, who had an incentive to so do; that Buddy Townes, in event he got a confession from defendant, would have two criminal cases pending against him for violating the local option law dismissed. But independent of this confession, we think the evidence unerringly points to appellant as the person who committed the crime. The little girl testified: "My name is Rosa Vondra. I am 14 years old. I was 14 years old the 8th of March, this year. I live on the farm, about five miles from Groveton. My father's name is Joseph Vondra. About two months ago, about the 27th of May, I was living at Kopiechek's. I worked in the miles from the house where my father lived. field with my father on that day, about three I quit working in the field that day about 1 o'clock. When I quit working that day, I body went home with me. I left my father and went and cut some weeds and went home. Nomother in the field. I took a sack of weeds with me. I went just a piece of the way near the railroad track in going home. I just saw the train before I got home. I did not meet anybody walking. I didn't meet any negro. I didn't see any negro in the woods before I got home. When I was going I didn't see anybody railroad. The negro asked where I lived, and until I got to that little creek, away from the I said nothing. He asked me to come to him. That was about a mile from the railroad. The negro had a gallon bucket in his hand. He was dressed in blue overalls, blue shirt, and raggedy black hat. When he asked me to come to him, I did not do it; I ran-ran towards my folks. I ran towards the field where my folks were. That was close to Piney creek. When I ran the negro ran after me and caught me. I would know that negro if I were to see him. I see him now. (Witness points out defendant.) This is the man here that ran after me. He caught me and led me to the woods. I sat down and refused, and he got me by the leg and turned me over and got on me, rolled on top of me. He put his private parts in my me from hollering. He held my mouth with his private parts. I hollered. He tried to stop hand. He stayed on top of me two or three minutes. Somebody hollered in the woods near by, and that frightened him, and he got up where my mother and father were. then. Then I got up and ran towards the field I went back to my mother and father where they were at work in the field. I told them what had that he had a bucket, and said he was going happened. I first told my mother, and my to pick a few berries. Other witnesses also mother went to my father and told him, and he quit his work and ran towards the negro set- so testified, and place appellant and the little tlement there. Q. Did the negro, before he left girl at and near the point where the rape you, ask you if you were going to tell anybody? occurred, and no other person is seen there or A. I would tell my mother and father. I was near there. G. W. McGraw says he was on going to tell my father. This happened about two months ago. The negro tore my clothes. Piney creek fishing the day the little girl was I tried to keep him from pulling me into the assaulted; that he saw appellant in Piney woods. I was catching hold of saplings and creek bottom that day; that he heard a trees, and he dragged me. He had a regular syrup bucket, and there wasn't any lettering on scream, and soon thereafter he saw the negro it. This happened in Trinity county, state of in the bottom, and saw him turn to the left Texas, about eight miles from Groveton. When and jump the creek; that when he heard the he dragged me, I was skinned on the back and scream he hollered back. The little girl tesback of my ear. He bruised my lips by holding his hand over it. I didn't see the negro the tified that when some one was heard the next day or the next two days after that. I negro got off of her and ran. Thus by all haven't saw him before or after. This is the the testimony, other than her own and apnegro (indicating defendant). I am quite sure pellant's confession, the little girl is shown to be at this point and was ravished. Appellant is the only negro the evidence places at or near this place; a scream is heard, and he is seen running away, coming from the direction where the crime was committed. it is him." On cross-examination she was asked if on the day after the occurrence she had not failed to identify appellant. She testified: "I told Mr. Shupak that the clothes on that man they had there wasn't the clothes the man had on that made the assault on me. He didn't look like him, except in the face, he didn't look as large, but, after I come to think about it, it come to my mind that he was the nigger." The appellant called Shupak as a witness, and he testified that they carried appellant out to where the little girl was stopping, and he called for her, and he says, when she first saw him she said, "That looks like him," and he told her to come closer and look good, and she did so, and said it looked like him in the face, but he did not have on clothes like the one who assaulted her: she said it was not the clothes, but identified the hat as the one worn by the person who assaulted her. It was a black ragged hat. She said the person who assaulted her looked bigger and taller, and said she would not be sure whether he was the person or not. Others present can only testify to what Shupak told them, because the conversation was carried on between Shupak and Rosa in the Polish language. This is the extent it was sought to break down her positive identification on the trial, and, if this was all the testimony, it might be said to render the identification a little uncertain. But it will be noticed that the little girl testified to the assault taking place near the railroad and Piney creek, and fixes the time shortly after the train had passed. Joe White testified he was a brakeman on this train, and saw a girl at the point testified to by Rosa; that appellant was on the train at this time, and he saw him get off the train about a quarter of a mile this side of Piney creek and go back in the direction he saw the little girl; that appellant said he was going to pick some berries. Ed Williams testified he was on the train, saw appellant on the train, and saw him get off the train; that he had blue overalls, a shirt, and black hat on; it was a ragged looking hat; that appellant got off the train about a quarter of a mile this side of Piney creek; There is no testimony that he was at any other or different place, and if the little girl had not identified appellant positively on the trial, and no confession was introduced, but she had described the man as she did describe him on this and all other occasions, with the other evidence in the case, it would amply support the verdict. The judgment is affirmed. BROD v. STATE. (No. 3772.) (Court of Criminal Appeals of Texas. Nov. 10, 1915.) 1. CRIMINAL LAW 368-EVIDENCE-ADMISSIBILITY-OTHER ACTS. Evidence that defendant's father, shortly and abused another person who had been engagafter the shooting by accused, violently cursed ed in the fight was improperly admitted as part of the res gestæ; it being immaterial upon defendant's conduct. Law, Cent. Dig. §§ 806, 812, 814, 815, 821; 1171-TRIAL-REMARKS OF ATTORNEYS-PREJUDICIAL ERROR. While after a change of venue taken by the state in a criminal trial it is proper for the defendant's attorney to comment on the fact that a change was taken, the statement of the state's attorney that "the reason why the same was changed was that Waller county had a history, and that was they would turn murderers loose over there,' is improper, and the judge's refusal to direct the jury to disregard it was error prejudicial to defendant. 99 [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. 1171.] |