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acquittal or conviction. The court did not and is here urged, that on the first trial apadjudicate this matter in a judgment. We pellant was acquitted of the incest by the are of opinion that under the authority of conviction for the rape under the circumHooper v. State, 42 S. W. 398, Wright v. stances already stated. This proposition is State, 35 Tex. Cr. R. 158, 32 S. W. 701, and sound under all of our authorities. There is Woodward v. State, 42 Tex. Cr. R. 200, 58 a kindred proposition that may also be asS. W. 135, the adjudication by the court was serted that, where an indictment contains necessary. The plea of jeopardy was not sub- two counts, and the appellant had pleaded mitted to the jury, but decided by the court to the indictment containing the two counts, adversely to the defendant. If the question and after such plea and impanelment of of jeopardy arises upon another trial, it the jury either is dismissed or abandoned by should be governed by the decisions above the state, and he is tried upon the remaining mentioned.

count or counts, as to those dismissed he The judgment is reversed, and the cause cannot be again tried. There are a great remanded.

number of authorities bearing upon this prop

osition. See Elliott v. State, 49 Tex. Cr. R. PRENDERGAST, J., absent.

435, 93 S. W. 742. In that case the defendant was convicted upon an indictment charg

ing rape in one count and incest in another; (83 Tex. Cr. R. 305)

the conviction being for rape. The second MIZELL V. STATE. (No. 4974.)

count having been ignored, the said indict(Court of Criminal Appeals of Texas. April 24, ment could not be used to predicate a sub1918.)

sequent prosecution for incest. That case is 1. CRIMINAL LAW Cm878(3)—VERDICT-SEV- in line with the authorities on the question ERAL COUNTS.

See, also, Betts v. State, 60 Tex. Cr. R. 631, Where accused was tried under counts for rape and incest, and both were submitted to the 133 S. W. 251; Millner v. State, 75 Tex. jury, which affirmatively found the defendant Cr. R. 22, 169 S. W. 899; Hewitt v. State, guilty of rape, and disregarded the charge as to 74 Tex. Cr. R. 46, 167 S. W. 40; Elliott v. incest, there was an acquittal on the charge State, 49 Tex. Cr. R. 435, 93 S. W. 742; of incest, and where the conviction of rape was reversed, he could not be convicted of incest on Parks v. State, 46 Tex. Cr. R. 100, 79 S. W. a second trial.

301; Davis v. State, 61 Tex. Cr. R. 611, 136 2. CRIMINAL LAW Om 180-FORMER JEOPARDY S. W. 45; Hooton v. State, 53 Tex. Cr. R. -ABANDONMENT OF COUNT.

6, 108 S. W. 651; Jolly v. United States, 170 Where an indictment contains two counts, and defendant pleads to the indictment, and U. S. 402, 18 Sup. Ct. 624, 42 L. Ed. 1085; after such plea and impanelment of jury a count Dealy v. United States, 152 U. S. 539, 14 Sup. is dismissed or abandoned by the state, and he Ct. 680, 38 L. Ed. 515; Cox v. State, 63 Fla. is tried on remaining count, he cannot again 12, 58 South. 49; People v. Weil, 243 Ill. be tried on count so dismissed or abandoned.

208, 90 N. E. 731, 134 Am. St. Rep. 357 : Appeal from District Court, Angelina Coun- Ford v. State, 79 Neb. 309, 112 N. W. 606; ty; L. D. Guinn, Judge.

State V. McAnally, 105 Mo: App. 333, 79 George Mizell was convicted of incest, S. W. 992; State v. Maurer, 96 Mo. App. and he appeals. Reversed and remanded. 347, 70 S. W. 264; Parish v. State, 130 Ala.

Mantooth & Collins, of Lufkin, for appel- 92, 30 South. 474; Smith v. State, 40 Fla. lant. E. B. Hendricks, Asst. Atty. Gen., for 203, 23 South. 854; Morris v. State, 1 Blackf. the State.

(Ind.) 37; Short v. State, 63 Ind. 376; Dick

inson v. State, 70 Ind. 247; Lamphier v. DAVIDSON, P. J. This conviction was for State, 70 Ind. 317; Stuart v. Commonwealth, incest. The history of the case and the ques- 28 Grat. (Va.) 950; Bigcraft v. People, 30 tions involved for decision may be briefly Colo. 298, 70 Pac. 417; Beaty v. State, 82 stated as follows: An indictment was pre- Ind. 228; Johnson v. Commonwealth, 102 ferred against appellant containing two Va. 927, 46 S. E. 789. counts, one for rape, and the other for in

It is not the purpose of this opinion to go cest. There was a trial before a jury on any farther into a review of this question. both counts; the jury convicting under the Appellant's position is correct. Under the count charging rape. From this conviction first trial of the case appellant was acquitted an appeal was prosecuted, and this court re- of the charge of incest. The conviction for versed the judgment; the case being re- the rape under the peculiar facts and cirported in 197 S. W. 300. In that trial both cumstances of this case was an acquittal of counts were submitted to the jury by the the incest, as the jury passed upon both charge of the court, and the jury specifical- necessarily in order to reach a conclusion in ly found for the state on the count charg- their verdict on the first trial. ing rape. Upon the last trial the count as

The judgment will be reversed, and the to rape was dismissed, and appellant was

cause remanded. tried upon the incest count.

[1, 2] The contention was in the trial court, PRENDERGAST, J., absent.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-4

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(83 Tex, Cr. R. 319)

"he said another man gave them to him to hold SOLOMON v. STATE. (No. 4859.)

for him. And I said, 'Who was he?' and he

said he didn't know who it was. 'I don't know (Court of Criminal Appeals of Texas. April who it was, but somebody walked around the 24, 1918.)

corner of my house; I don't know who it was.'

And he said, 'If anybody comes here asking for 1. BURGLARY Ow29 – POSSESSION OF STOLEN those things, you give them to him; if they

; GOODS-BURDEN OF PROOF.

don't, you just keep them.' The defendant said Where stolen goods are found in the posses

that. sion of accused, who explains that he has got- State's counsel asked this question: ten them from another, the state has the burden

"Is this defendant the man who left those of disproving the truth of his explanation.

things there? A. No, sir; he didn't leave them 2. BURGLARY Cw41(1) – EVIDENCE – SUFFI- with me; this colored boy, he gave them to me." CIENCY. In a prosecution for burglary of a residence

State's counsel stated that he was surin the nighttime, evidence held insufficient to prised at the witness' testimony, and asked sustain a conviction.

permission to impeach her or lay a predicate Appeal from Criminal District Court, Wil- therefor by making an inquiry as to her tesliamson County; James R. Hamilton, Judge. timony before the grand jury. The court

, A. H. Solomon was convicted of burglary

granted this. The district attorney stated, of a private residence at nighttime, and he in this connection, that the witness had

made an entirely different statement on the appeals. Reversed and remanded. .

stand from that made by her in the grand J. F. Taulbee, of Georgetown, for appel- jury room; that her statement was an enlant. E. B. Hendricks, Asst. Atty. Gen., for. tire surprise and nothing like her former the State.

statement. The court having given permis

sion to lay the predicate, the district attorMORROW, J. This is a conviction for ney asked this question:

a the offense of burglary of a private resi- "I will ask you if you didn't testify in the dence at nighttime.

grand jury room that this man brought those The evidence shows without contradiction things there and gave them to you and told you

that he got them from a negro? A. No, sir; I that the private residence of Hiram Hunt didn't tell you that he gave them to me.' was burglarized on the night of about April

Another question: 4, 1917, and that the property taken there

“Didn't you tell me that this

morning in my from was two bedspreads and three pillows. office in the presence of Mr. Young? A. No, These articles were found soon thereafter in sir; I didn't say that." possession of Ethel Robinson, a negro girl. In this connection the district attorney It was her testimony alone upon which the asked her if she was not on the poor farm state relies to connect the appellant with the and if appellant did not go out and pay her offense. She appears to have been' sick at fine and get her. She replied that he did the time from a malady affecting her leg, come out there, but that her father gave and shortly after the occurrence had gone him the money to pay the fine. On crossto Oklahoma, where her leg was amputated. examination she said that the negro Fred She had also been on the poor farm for some Loveless, called “Peaches," had gone soon offense which is not named. She testified after the burglary, and she had not seen him that she had seen the defendant prior to since; she was informed that he stayed a the time the offense was committed, but that week or two before leaving. she had never had any transaction with [1] The state's case against appellant rests him; that he had never been to her house; wholly upon circumstantial evidence. This and that she had never been with him at was recognized in the trial court in an apany place except upon the occasion described propriate charge. Summarized, it is that the in her testimony; that on the night of the of- property recently stolen was found in the fense she was asleep and was sick; that possession of the witness Ethel Robinson. staying at the house was a negro man about She accounted for her possession by her 23 or 24 years of age called “Peaches"; that statement that she got it from the negro she woke up and found "Peaches" standing man called "Peaches," and that he said he near her bed ; that the window was open got it from appellant, and appellant said he and appellant was near the window outside got it from another person, and that she saw the house; that when she woke up "Peach- another person go around the corner of the es" called her and said there were some house. The rule laid down by Mr. Branch,

. things for her, and she looked and saw the in his Annotated Texas P. C. § 2346, that things. She asked where he got them, and a verdict resting upon proof of the posseshe said, “Mr. Dick, or somebody, gave them sion by the accused of property recently stolto him.” At that time “Peaches,” the ne- en from the burglarized house will not be gro man, was standing by her bed and the set aside unless clearly wrong where the other man was out by the window about two other facts in evidence justify the jury in steps away. That she spoke to the man at believing that the explanation of possession the window, appellant, and asked him where of the property is untrue, is invoked by the he got those goods, and

It can hardly be said to apply, for

the reason that the recently stolen property, a defective verdict, make failure to object to a was not found in the possession of appel- defective verdict a waiver of such defect. lant. His connection with it rests alone up. 2. CRIMINAL LAW Cww 1090(15)—APPEAL-DE

FECTIVE VERDICT-BILL OF EXCEPTIONS. on the statement of the witness Ethel Rob

The objection that the verdict does not supinson to the effect that "Peaches" said he port the judgment is fundamental in view of got it from appellant, and that appellant said Code Cr. Proc. 1911, art. 837, subd. 9, and he got it from some one else. The absence article 853, and can be raised for first time on

appeal without bill of exceptions. of the witness “Peaches" is a circumstance 3. LARCENY 8–PERSONS LIABLE-RECEIVweakening the state's case, being consistent ER OF STOLEN Goods. with the innocence of appellant and the guilt Where an indictment charges theft of an of another, who was proved in possession of automobile in one count, and receiving the autothe stolen goods. If he fled, as is intimated, verdict finding defendant guilty on both counts

mobile as stolen property in another count, a and cannot be produced as a witness, his is improper; it being impossible for defendant, flight would tend to support the presumption guilty of receiving a stolen automobile, to have of innocence with which the law surrounds stolen it himself.

4. CRIMINAL LAW O 878(1, 2) GENERAL the appellant. If he did not flee, the failure

VERDICT--SEVERAL COUNTS. of the state to produce him as a witness is Where an indictment charges theft in one to the same effect. If the rule of the pos- count, and receiving stolen property in another, session of recently stolen property would be a general verdict of guilty will support a judg

ment of guilty under either count, but a verdict extended to apply to the appellant by reason of guilty on both counts will not support a judgof his statement that he had gotten the ment of conviction for the theft. things from another man, it would rest upon the state to disprove the truth of his ex- County; Richard I. Munroe, Judge.

Appeal from District Court, McLennan planation of his possession. Ross v. State,

George Moore was convicted of theft, and 16 Tex. App. 559; Oliver v. State, 69 Tex.

he appeals. Reversed and remanded. Cr. R. 263, 153 S. W. 309. On this point the state's witness declares, in connection

J. A. Kibler and Shurtleff & Cummings, all with her assertion that appellant made the of Waco, and Chas. L. Black, of Austin, for statement that he had gotten the things appellant. Jno. B. McNamara, Co. Atty., from another, that she saw another man go and D. C. Woods, Asst. Co. Atty., both of around the corner of the house, thus tending Waco, and E. B. Hendricks, Asst. Atty. Gen., by her testimony to corroborate rather than for the State. to disprove the explanation which she says that appellant made.

MORROW, J. Appellant was charged by [2] Aside from the testimony of Ethel indictment with theft, and in the same indictRobinson, there is no evidence tending to ment, by separate count, with fraudulently connect the appellant with the commission receiving stolen property. The facts are of the offense. He was a white man; he sufficient to lead to the conclusion that one was not shown to have any intimacy with Oscar Kimball and the appellant acting toeither the witness Ethel Robinson or the ne- gether stole an automobile, the property of gro man called "Peaches," nor are there any Templeton. The theft charged was based circumstances showing a motive for bur- upon these facts, and the receiving stolen glarizing the house in order to give the stol- property is alleged to have been from Oscar en goods to the witness Ethel Robinson, nor Kimball, the same person who acted with any circumstances bringing him in proximity appellant in the theft. Each of the counts to the burglarized premises. Under the facts were embraced in the charge; the verdict we think it would be clearly wrong to sus- received is as follows: tain the conviction, and that the trial court We, the jury, find the defendant guilty on erred in refusing to grant the motion for a both counts and assess his punishment at con

finement in the state penitentiary for five years." new trial.

The judgment of the lower court is re- The court on this verdict entered a judgversed, and the cause remanded.

ment declaring appellant guilty of theft and

condemning him to confinement in the penPRENDERGAST, J., absent. .

itentiary for not less than two nor more

than five years. (83 Tex. Cr. R. 302)

[1, 2] Appellant insists that the verdict MOORE v. STATE. (No. 5005.)

does not support the judgment. That the

verdict is informal is conceded by the state, (Court of Criminal Appeals of Texas. April 24, but its counsel insists that the failure to 1918.)

call the court's attention to it at the time 1. CRIMINAL LAW Cw1090(15)-APPEAL-DE-constitutes a waiver of its defect. We are of FECTIVE VERDICT—EXCEPTIONS.

Code Cr. Proc. 1911, art. 744, making nec- the opinion that article 744, touching bills of essary a bill of exception to any decision, opin- exception, is not directed to objections to ion, order, or charge that is to be reviewed on the form or substance of a verdict. The appeal, not applying to the form or substance of a verdict, does not, in view of article 773, mak- statute (article 773) puts it within the powing it the duty of the court to refuse to receivel er of the trial judge to direct the correction

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of an informal verdict, and, we think, places From the state's standpoint the appellant the duty upon him to examine it and deter- and Kimball acted together in theft of the mine its sufficiency, and to refuse to receive automobile. If guilty, he is a principal in a defective one. Taylor v. State, 14 Tex. the theft, and upon another trial, the eviApp. 340; Black v. State, 68 S. W. 683, and dence being in substance the same, the case other cases cited in Vernon's C. C. P. p. 582. should be submitted upon the theory that The statute (article 837, subd. 9) makes the he and Kimball acted together in the theft, fact that the verdict is contrary to law a and the charge on fraudulently receiving ground for motion for new trial. The judg- stolen property should be omitted. ment is based on the verdict, which must be Because the verdict does not support the shown in the judgment entered. C. C. P. art. judgment rendered, it is reversed and re853. If the verdict appears insufficient to manded. support the judgment, the matter is fundamental. Cyc. vol. 2, p. 707; Bennett v. But

PRENDERGAST, J., absent. terworth, 11 How. 669, 13 L. Ed. 859. [3] The indictment contained two separate

(83 Tex. Cr. R. 304) offenses, theft and fraudulently receiving

KING v. STATE. (No. 5009.) stolen property. Brown v. State, 15 Tex. App. 581; Gaither v. State, 21 Tex. App. (Court of Criminal Appeals of Texas. April 527, 1 S. W. 456; Wheeler v. State, 34 Tex.

24, 1918.) Cr. R. 350, 30 S. W. 913; Fernandez v. State, 1. BAIL Cw64-BOND AND RECOGNIZANCE25 Tex. App. 538, 8 S. W. 667; Street v. TIME FOR FILING. State, 39 Tex. Cr. R. 134, 45 S. W. 577; Clark which the trial took place is not a compliance

An appeal bond filed during the term at v. State, 194 S. W. 158. In the Brown Case, with Code Cr. Proc. 1911, art. 902, requiring a 15 Tex. App. 581, supra, the court says: recognizance, when the case is appealed during

"A theft must be perfected before that of re- the term. ceiving stolen property can be perpetrated, and 2. BAIL Om 70—APPEAL BOND-APPROVAL BY the receiver of the stolen property must be an

TRIAL JUDGE. other person than the thief."

Under Code Cr. Proc. 1911, art. 904, re

quired approval of appeal bond by the sheriff [4] The verdict in question finds that the and court trying the case, an appeal bond bear. appellant took the automobile under circum- ing the approval of the sheriff, but not of trial stances constituting theft. It also finds that judge, is insufficient. another person stole it, and that appellant, Appeal from District Court, Gregg County; after the theft, fraudulently received the Daniel Walker, Judge. property. A general verdict could have been Joe King was convicted of burglary, and applied to either offense charged in the in- appeals. Appeal dismissed. dictment and supported by the evidence.

E. B. Hendricks, Asst. Atty. Gen., for the Rosson v. State, 37 Tex. Cr. R. 87, 38 S. W. State. 788. The verdict here is not general; it is a

MORROW, J. Conviction is for burglary. specific finding that appellant is guilty of The indictment was returned November 28, each of the offenses charged. A holding that 1917, the verdict rendered the 4th of Decemsuch a verdict does not support the judg-ber, 1917, the motion for new trial was overment is made by the Supreme Court of Mas- ruled December 13, 1917, the appeal bond sachusetts in Commonwealth v. Haskins, 128 appears dated the 2d day of December, 1917, Mass. 60, and from which we quote as fol- approved by the sheriff, the 2d day of Janlows:

uary, 1918, filed the 3d day of January, 1917, "By that record it appears that there had the term of court at which the trial took been the larceny of a cow, and but one larceny place adjourned" January 5, 1918. These of that cow. The defendants were charged in one count of the indictment with such larceny, dates are stated in connection with the moand in the second count with having received tion to dismiss the appeal made by the state. her knowing her to have been thus stolen. It is We infer that the filing date of the appeal certain that the defendants could not be guilty bond is a clerical error. It was probably inupon both counts, because in law the guilty receiver of stolen goods cannot himself be the tended to be January 3, 1918. When one dethief; nor can the thief be guilty of a crime sires a release pending his appeal the law reof receiving stolen goods which he himself has quires him to make a recognizance if his stolen."

case is appealed during the term at which This is supported by the case of Crawford he is tried. Article 902, C. C. P. Failing v. State, 31 Tex. Cr. R. 55, 19 S. W. 766, to make a recognizance during the term, he wherein an indictment was for forgery and may, after the term, be released pending his uttering the forged instrument, charged in appeal by the execution of an appeal bond separate counts. The verdict, like that in which must be approved by the sheriff and the present case, was specific in finding guilty by the court trying the cause. C. C. P. art. of each offense. The court in an opinion 904, Vernon's C. C. P. pp. 873, 874. reviewing the authorities held the verdict did [1] This court is without jurisdiction to not support the judgment.

entertain an appeal from a judgment in the absence of compliance with the statutory, it was a bunch of women, horses, or cows”; regulations governing appeals, and has held that they could just see something white up uniformly that an appeal bond filed during there; that he ascertained the next day that the time at which the trial took place was it was a bunch of women and children, and not such compliance. Taylor v. State, 189 S. at least one man, perhaps several more men, W. 142; Bloss v. State, 79 Tex. Cr. R. 617, in the crowd. 187 S. W. 487; Lang v. State, 190 S. W. 146; The evidence in no way suggests that appelGallon v. State, 194 S. W. 1116.

lant could see or tell that said two ladies or [2] Neither is an appeal bond sufficient either of them were in said crowd of men, which fails to bear the approval of both women, or children, or that he even knew or the sheriff and the trial judge. Wells v. could tell that they were human beings or State, 68 Tex. Cr. R. 277, 150 S. W. 1163. were horses or cattle, and there is nothing The bond in this instance bears the approval in the record to show that the remark he of the sheriff, but not that of the trial judge, made directly or indirectly referred to both and if filed January 3, 1918, it was during or either of said ladies. The testimony by no the term at which the trial took place.

reasonable or proper construction could be On the record we have no alternative but held to have been made by appellant either to sustain the motion to dismiss the appeal. maliciously or wantonly to apply to either of

both of said ladies. It is therefore wholly inPRENDERGAST, J., absent.

sufficient to sustain the conviction. The

judgment of conviction therefore cannot (83 Tex. Cr. R. 347)

stand. LUTKER V. STATE. (No. 4982.)

Reversed and remanded. (Court of Criminal Appeals of Texas. May 1, 1918.)

(83 Tex. Cr. R. 337) LIBEL AND SLANDER Ow144-ACTIONS-Evi

ALT v. STATE. (No. 4996.) DENCE-WEIGHT AND SUFFICIENCY. Evidence that defendant, who was too far (Court of Criminal Appeals of Texas. May 1,

1918.) away to distinguish whether something "white" on the track "was a bunch of women, horses, or 1. PERJURY Ow25(3)—BEFORE GRAND JURYcows,” remarked that it was just a bunch of INDICTMENT-SUFFICIENCY. whores following the soldiers, is insufficient to An indictment for perjury committed beconvict defendant of the wanton or malicious fore the grand jury, alleging that after defendslander of two women in the group.

ant had been duly sworn it became and was a

material inquiry before said grand jury, and Appeal from Johnson County Court; B. necessary for the due administration of the Jay Jackson, Judge.

criminal laws of the state and for the ends of H. W. Lutker was convicted of slander, and cashed a certain check for and signed by N. A.,

public justice, to wit, whether said W. D. A. he appeals. Reversed and remanded.

said check being of a certain tenor, and whethJ. K. Russell, of Cleburne, for appellant. E. er the said W. D. A. presented said check for

payment thereafter, and whether payment was B. Hendricks, Asst. Atty. Gen., for the State. refused, that said w. D. A. did on, etc., in said

county and state, before and to the said grand PRENDERGAST, J. Appellant was con- and willfully state and testify in substance as

Appellant was con- jury under the sanction of said oathe deliberately victed of slander and fined $100.

follows, that on, etc., he cashed said check hereThe complaint and information alleged that in before described for said N. A., that some time on November 10th he falsely and maliciously said check hereinbefore described, and that pay

thereafter, during the month, etc., he presented and falsely and wantonly orally imputed to ment therefor was refused, was insufficient, in Mrs. Ballew and Mrs. Conner and divers oth-that it failed to show the materiality of the false er females, married and unmarried, a want testimony, or that the matters inquired about

could become a matter for investigation of the of chastity, in that, in the presence and hear-grand jury from a criminal standpoint. ing of B. D. Currie he said of and concern- 2. GRAND JURY Owl-EXTENT OF INQUIRY. ing said females that they were nothing but The grand jury is only empowered to inquire whores following the soldiers. The uncon into violations of criminal laws. tradicted testimony shows that on said date Appeal from Criminal District Court, Dalsome soldiers stopped at a stockpen in Cle-las County; C. A. Pippen, Judge. burne to water their stock; that appellant W. D. Alt was convicted of perjury, and and Currie were working together in the San- he appeals. Reversed, and prosecution orta Fé railroad yards. Currie swore they saw dered dismissed. some soldiers coming down the track and saw

A. S. Baskett, of Dallas, for appellant. E. something “white" coming. Currie said to B. Hendricks, Asst. Atty. Gen., for the State. appellant, "What is that white coming down the track?” Appellant replied that it was DAVIDSON, P. J. Appellant was conjust a bunch of whores following the soldiers.victed of perjury; his punishment being asCurrie further swore that whoever or what- sessed at two years' confinement in the peniever it was white which they saw they were tentiary. at such a great distance from them that he [1] The indictment alleges this perjury could not tell who or what it was; "whether I was committed before a grand jury in Dal

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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