dence, and accused must, by the facts in his bill of exceptions, overcome such presumption. 2. CRIMINAL LAW 1169(9)-HARMLESS ERROR-OPINIONS. In prosecution for murder, witness' statement that deceased was "all bunged up with rheumatism" was not one requiring reversal because the witness was not a medical expert. Appeal from District Court, Kaufman County; Joel R. Bond, Judge. To this the same objection is urged. [1] Neither of these bills set out any surrounding facts showing the connection in which the evidence was admitted. Neither complies with the rule which requires an exception to the admission of evidence to be sufficiently explicit to enable the court to fully understand and know all the facts on which the correctness or error of the ruling Steve Brown was convicted of murder, depends. See Branch's Ann. P. C. p. 132; and he appeals. Affirmed. Eldridge v. State, 12 Tex. App. 208; Livar v. State, 26 Tex. App. 115, 9 S. W. 552; appellant. E. B. Hendricks, Asst. Atty. Gen., Harris v. State, 67 Tex. Cr. R. 251, 148 S. W. Huffmaster & Huffmaster, of Kaufman, for for the State. MORROW, J. Appellant was convicted of the murder of George Jackson, and the death penalty assessed against him. His written confession was introduced, as follows: with the bills. 1074. Many decisions of this court support the rule that the legal presumption is in favor of the correctness of the trial court's ruling, and that it is incumbent upon appellant by the facts in his bill of exceptions to overcome this presumption. Moore v. State, 7 Tex. App. 20; 20; Edgar v. State, 59 Tex. "I had been staying with George Jackson since last Monday. I bought some household goods Cr. R. 256, 127 S. W. 1053; James v. State, from him, and carried them away yesterday and 63 Tex. Cr. R. 77, 138 S. W. 612. We, in sold them. George missed a smoothing iron, view of the extreme penalty, have carefuland thought I got it, and we talked about it,ly read the statement of facts in connection but made everything all right. The conversation occurred last night about 9 o'clock. He had told me about two or three hours before this that we were going to have some trouble about this iron, and when I left Mr. Bird's, where I work, I carried a butcher knife with me. We went to bed about 8 or 9 o'clock, and this morning about 3 or 4 o'clock I got up out of bed, and George got up, and I hit him with an axe, knocked him down, and beat him over the head several times with the axe, and then cut his throat with the butcher knife. There was not a word spoken between George Jackson and my self before I hit him with the axe. After I had killed George Jackson I threw the axe under the house, and I carried the butcher knife back to Mr. Bird's and washed the blood off." There was corroboration. One witness said: "We found the deceased with his head mighty near cut off, and his head just beaten to a jelly and face cut up some." An axe was used and found from information given by appellant and was quite bloody. Appellant immediately after the homicide went to the house of a friend about 5 o'clock in the morning, and told that he had killed deceased, and exhibited a knife, which was afterwards found. Appellant expressed to this witness his intention to flee, but subsequently said that in effect he would stay for fear his departure would arouse suspicion against him. At the time mentioned he had on some clothes that were bloody. There are two questions raised. One of these reserves exception to the evidence of a witness, who testified: "I would take the deceased, George Jackson, to be about 60 or 65 years old; he was just an old worn-out negro, looked like to me, and he was all bunged up with rheumatism." The objection urged was that the evidence was irrelevant, immaterial, prejudicial, and opinion. The other bill complains of testimony as follows: "George Jackson was a badly crippled and old negro, that was his physical condition." [2] It is possible that the trial judge regarded the allusion in appellant's confession to the complaints made by deceased and the anticipated trouble, in connection with the statement that deceased got out of bed at 3 or 4 o'clock in the morning before the homicide took place, as affording a reason for the state to show the age and physical condition of deceased. The statement that the deceased was "all bunged up with rheumatism” is not one requiring a reversal because the witness who used it was not a medical expert. If the testimony was receivable at all, it was on the ground that the deceased appeared disabled, and the specific ailment which disabled him was incidental only. Reference to the case of Clayton v. State, 201 S. W. 172, is made, in which it is suggested that evidence that deceased in that case was nearly blind should not be received unless this physical defect is known to appellant. The case was one in which the accused attempted to justify the homicide on the ground of selfdefense on apparent danger, offering in part upon this issue peculiar conduct of the deceased. The state, explaining this conduct, showed that the deceased's eyes were defective, and that his conduct would be attributable to that and not to any hostility towards the appellant in that case. The statement in the opinion is made in accord with the established rule that one justifying the homicide on the ground of self-defense is to be tried from his standpoint, and that matters of which he was ignorant would not be admissible against him. The physical defects of the deceased in the instant case were doubtless not unknown to appellant. Their character and the fact that the two parties lived together would indicate the contrary. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "There was 92 jurors summoned, and those not summoned were returned by the sheriff as being out of the county or not found after due diligent search and inquiry. No jurors were excused by the court before the case was called for trial, and the court only excused those from the special venire, after the case was called for trial, who had legal exemptions under the law; the Moreover, the bill of exceptions does not show that appellant was ignorant of the physical condition of deceased, nor is the issue of self-defense raised; in fact, there are no controverted issues in the case. The evidence is all one way, pointing to a homicide attended with no palliating facts or mitigat-balance of the jurors excused were excused by ing circumstances, and if that complained of was shown inadmissible, it would not justify reversal. Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836. The complaints of the admission of the testimony stated in the imperfect bills mentioned have been looked to solely because of the assessment of the extreme penalty, to the end that the judgment might not be executed if the record indicated that injustice was done, even though the complaint of it was made in incomplete bills of exception. Finding no such injustice and no reversible error, the judgment of the lower court is affirmed. (83 Tex. Cr. R. 448) HUBERT v. STATE. (No. 4592.) (Court of Criminal Appeals of Texas. Oct. 10, 1917. Rehearing Denied June 5, 1918.) JURY 80-METHOD OF DRAWING. Where the officers, as prescribed by law, drew 150 jurors for a special venire, of whom the sheriff served 92, the others being out of the county or not found after diligent search, and none were excused before the case was called for trial, and only those having legal exemp: tions were excused after that, save those excused by consent of the parties, and no juror was forced upon defendant, who did not exhaust his challenges, there was no error. Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge. consent of the parties. No juror was forced upon the defendant, nor did defendant exhaust his challenge. The original venire was drawn from the jury wheel in a manner provided by law." This bill presents no error. Appellant, in his motion for new trial, did not attack the verdict of the jury for anything that would have invalidated it, but sought to have the court to investigate from the jurors how and why they had assessed the death penalty. Notwithstanding the court properly held there was no such attack of the verdict of the jury as to require him to make any such investigation because the death penalty had been assessed, he permitted the appellant to introduce the jurors and others to testify on the subject. None of the testimony in the slightest way tended to show any improper action by the jury. As stated, we have carefully read this record. Without doubt it shows that appellant had a fair and impartial trial in every particular. The evidence was amply sufficient to sustain the verdict. We cannot do otherwise than affirm the judgment, which is hereby ordered. (83 Tex. Cr. R. 441) BOYD v. STATE. (No. 5040.) Harvey Hubert was convicted of murder, (Court of Criminal Appeals of Texas. May 22, and he appeals. Affirmed. Warren W. Moore, W. J. Crider, and Jno. R. Cox, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. CRIMINAL LAW -DISMISSAL. 1918.) 1131(5)-APPEAL-ESCAPE returned to custody, motion to dismiss the appeal will be sustained. Appeal from District Court, Bowie County; H. F. O'Neal, Judge. Where appellant from conviction of murder, as appears by the affidavit of the deputy sheriff and jailer, made his escape from jail by overPRENDERGAST, J.. Appellant was con-powering the jailer, and was later arrested and victed of the murder of a small 17 year old boy still wearing knee pants, and his punishment assessed at death. He contends the evidence did not justify the infliction of the death penalty. We have carefully read and studied the testimony. Appellant's contention cannot be sustained. The evidence was amply sufficient to sustain the verdict and the penalty. We can see no useful purpose to be served in reciting the testimony. He Both was twice tried in the district court. juries assessed the death penalty. The court below ordered a special venire of 150 jurors. The officers, as prescribed by law, drew from the wheel this number, and the writ was issued to summon them. The sheriff succeeded in serving only 92 of them. Because of this appellant made a motion to quash the venire, which was overruled. In approving the bill on this subject the court did so with this qualification: Walter Boyd was convicted of murder, and he appeals. Appeal dismissed. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was allotted a term of 20 years in the penitentiary under conviction for murder. It is made satisfactorily to appear by the affidavit of the deputy sheriff and jailer that appellant made his escape from jail by overpowering the jailer, and was later captured. He did not voluntarily return, but was arrested. The motion of the assistant attorney general to dismiss for this reason will be sustained. The appeal therefore will be dismissed. CASEY v. STATE. (No. 5041.) (83 Tex. Cr. R. 210) BERRY v. STATE. (No. 4854.) (Court of Criminal Appeals of Texas. May 22, (Court of Criminal Appeals of Texas. Jan. 30, 1918. On the Merits, Feb. 27, 1918. Rehearing Denied June 5, 1918.) CRIMINAL LAW 1918.) 1094-APPEAL-ABSENCE Conditions given by Const. art. 5, § 11, for disqualification of a judge are exclusive, and prejudice of judge is not a ground for disqualification. (Court of Criminal Appeals of Texas. May 22, 5. JURY 72(6) — SUMMONING TALESMEN — 1918.) PRENDERGAST, J. Appellant was convicted of robbery, and assessed the lowest punishment. OFFICER. That a constable, who was a witness in a 6. CRIMINAL LAW 364(2) - RES GESTE- In prosecution for selling intoxicating liq- 7. INTOXICATING LIQUORS 233 (2)-CON- Where liquor defendant was selling was tak- The sole contention is that the evidence is too uncertain and insufficient to sustain the conviction. The statement of facts has been Where county attorney testified that he recarefully read. Clearly the evidence of the ceived a pint bottle from prosecuting witness; state's witnesses was amply certain and suf- that the next morning the defendant came in ficient to sustain the conviction. It is true and told him that if he would open the bottle he would find it was not whisky; that when he the testimony of defendant and some of his looked he found it was broken, and the liquid witnesses disputed the testimony to some ex- spilled smelled like cider-an effort to prove on cross-examination that defendant told him he tent of the state's witnesses. The credibility had emptied out the whisky and put in cider of all the witnesses, and the weight to be before he sold it was not germane to the direct given to their testimony, was for the jury. examination, and an objection was properly susThe jury evidently believed the state's wit-9. CRIMINAL LAW 413(1) SELF-SERVING nesses and disbelieved appellant and some of his witnesses. There is no necessity of detailing the testimony. It would serve no It would serve no useful purpose in this or any other case. The judgment is affirmed. tained. DECLARATIONS. - In prosecution for selling intoxicating liquors, declarations of defendant that he had emptied the whisky out of a bottle, and that it contained cider when sold, were inadmissible, being self-serving. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes . 10. CRIMINAL LAW 1144(18) — PRESUMPTION-MOTION FOR NEW TRIAL. Where evidence on hearing of a motion for a new trial was not preserved by bill of exceptions or statement of facts, it must be assumed that conclusions of the trial judge that facts aliunde the record set up in the motion were not sustained by the evidence were correct. not been broken. That on the day of the Appeal from Upshur County Court; W. H. something spilled on the desk which smelled McClelland, Judge. Richard Berry was convicted of unlawful selling of intoxicating liquor, and he appeals. Affirmed. Briggs & Florence, of Gilmer, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. On Motion to Dismiss. like cider and not like whisky; that his desk had been opened by some one who picked the lock. That the bottle was labeled "Blue Ribbon Whisky." A witness testified that it was the color of whisky and that it "beaded" like whisky, and in his opinion it was whisky, not cider and not vinegar. Appellant's defense, supported by his testimony, was that the liquor that he sold the prosecuting witness was not whisky, but was cider; that he had opened the whisky bottle by raising the seal and had emptied the whisky, filled the bottle with cider, and replaced the seal and put it in his laundry basket. There was some evidence that when Erwin first sought to purchase the whisky cost him $1.25 a pint; that he did not have that he was told by appellant that it would any at that time, but when Erwin went back there was a basket and a box brought in, the later he got it. Erwin also testified that box sitting in the basket and the whisky in witness found on the premises 11 bottles the box. Subsequently, on the same day, a similar to that in question, all labeled "Whisky." MORROW, J. This is an appeal from a conviction for a misdemeanor. Appellant gave timely notice of appeal, and entered into a recognizance, putting in the hands of the clerk of the court trying the case a sum of money equal to the amount of the recognizance, but failed to have sureties join him therein. Subsequently during the term he sought to amend the recognizance, and appeared in court with sufficient sureties, but his request to be permitted to enter into a new recognizance was denied by the court. [1] In the absence of a recognizance this court has no jurisdiction of an appeal from a conviction for a misdemeanor where the appellant is at large. C. C. P. art. 920. By article 923 it is provided, however, that where a recognizance entered into within the time prescribed by law shall be determined by the court on appeal to be defective in form or substance, such appellate court may allow the appellant to amend such ly circumstantial, so far as the identity of the contents of the bottle was concerned recognizance by filing a new bond or recog- but we regard it as sufficient to support the nizance on such terms as the court may the court may finding of the jury. prescribe. This court is without jurisdiction of the appeal, and the motion to dismiss must be granted. Permission is given to appellant, however, to enter into a new recognizance as soon as the court trying the case is in session, and the trial judge is directed to permit him to enter into such new recogni zance. On the Merits. Appellant was convicted of unlawfully selling intoxicating liquor in prohibited district. The offense was a misdemeanor. [2] The appellant insists that the evidence does not support the conviction. We have not undertaken to quote it all. It was pure [3] The appellant submitted a special charge requesting the instruction of the jury the refusal of this charge would not have on the law of circumstantial evidence, and been authorized except for the fact that, this being a misdemeanor case, and the judge certifying that there was no exception to the charge for the omission of the charge on circumstantial evidence, the point, under the authorities, is not raised. Howard v. State, 8 Tex. App. 612; Lucio v. State, 35 Tex. Cr. R. 320, 33 S. W. 358; Bennett v. State, 50 S. W. 945; Schneider v. State, 70 Tex. Cr. R. 517, 156 S. W. 944. The sale was charged to have been made to George Erwin. He testified: That he [4] The appellant filed a motion to require bought a bottle of whisky from appellant the judge to disqualify himself on the ground and paid him $1.25 for it. The bottle and that he was prejudiced and had expressed his its contents were delivered by the witness prejudice against the appellant, and comto the county attorney. Erwin did not drink plains of the failure of the court to sustain any of it, nor smell it, and said he did not his motion. The Constitution (article 5, § 11) know what was in the bottle. The county names the circumstances under which a judge attorney testified that after he received the is disqualified to sit in a case, and the conbottle he put it in his desk. The seal, con- ditions named establishing his disqualificasisting of a label pasted over the cork, had tion appear to be exclusive. Johnson v. State, 31 Tex. Cr. R. 461, 20 S. W. 985; Drech- motion for new trial, the existence of which sel v. State, 39 S. W. 678; Benson v. State, would depend on facts aliunde the record. 39 Tex. Cr. R. 56, 44 S. W. 167, 1091; Trin- The judgment overruling the motion for new kle v. State, 59 Tex. Cr. R. 259, 127 S. W. trial recites that the court heard evidence on 1060; Burrell v. State, 65 S. W. 914. In some the motion before overruling it. In the abstates there are statutes which disqualify sence of the preservation of such evidence by the judge on the ground of prejudice. Our way of bills of exceptions or statement of laws appear to proceed on the theory that facts this court is left in ignorance as to prejudice against an accused does not dis- what proof was made, and must assume, in qualify the judge from trying the case, the deference to the finding of the trial court, accused's rights being fully protected under that his conclusion that the matters of fact the Constitution, which gives him the right set up in the motion were not sustained by of a legal trial before an impartial jury and the evidence is correct. We have made a review on appeal. careful examination of the entire record, together with all bills of exceptions, and as the matter is presented we find no reversible error. The evidence, while circumstantial, was, we think, sufficient to discharge the burden upon the state to prove that the liquid sold was intoxicating liquor. Pike v. State, 40 Tex. Cr. R. 614, 51 S. W. 395; Black on Intoxicating Liquor, § 497; Joyce on Intoxicating Liquor, § 674. [5] A bill which complains that the constable, who was a witness in the case, summoned the talesmen, does not show error, especially in view of the qualification of the trial judge that the constable had been legally designated by the sheriff as the officer in attendance upon the court. The court gave a charge to the jury which submitted the issues in a manner which appears not to have been subject to objection. No exceptions to the charge having been filed, the various special charges requested are not presented in a manner which would render them subject to review. The judgment is affirmed. PRENDERGAST, J., absent. (S3 Tex. Cr. R. 376) JOHNSON v. STATE. (No. 4903.) (Court of Criminal Appeals of Texas. Feb. 13, 1918. On Motion for Rehearing, May 8, 1918. Further Rehearing Denied June 5, 1918.) 1. BAIL 70-APPEAL BOND. crime, approved only by the sheriff, and not apAppeal bond on appeal from conviction of proved also by the trial judge as required by statute, is insufficient. On Motion for Rehearing. 2. HOMICIDE 228(3) - CORPUS DELICTI SUFFICIENCY OF EVIDENCE. In a prosecution for homicide, evidence held sufficient to establish the corpus delicti, although no witness testified to seeing the body after the killing, and notwithstanding Pen. Code 1911, art. 1084, requiring the finding and identification of the body. Appeal from District Court, Sabine County; W. T. Davis, Judge. [6-10] The objection to the testimony of the witness Erwin that when he first called on appellant he was told by him that the whisky would cost $1.25 a pint was not subject to objection. It is part of the res gestæ. The fact that the basket containing the box and bottles of whisky was brought into appellant's barber shop, and afterwards on the same day examined and found to contain 11 bottles of "Blue Ribbon" whisky was not subject of objection. It was admissible as a circumstance on the issue raised as to the contents of the bottle in question. Myers v. State, 56 Tex. Cr. R. 223, 118 S. W. 1032. The state called the county attorney as a witness 'to prove by him that he had received a pint bottle of whisky from the prosecuting witness Erwin, and had put it in his desk, and that it remained there until the morning of the trial, when he found the seal broken; also the bottle broken. On cross-examination he testified that the appellant had come in on the morning before the trial and told him that if he would open the bottle he would find it was not whisky, and that when he looked he found it was broken, and that the liquid spilled smelled like cider and not like whisky. An effort was made to prove by the witness that the appellant told him that he had poured whisky out of the bottle and filled it with cider, and that it was not whisky that he sold. We do not think there was any error in sustaining the objection to this testimony. It would be classified as self-serving. It was not explanatory of anything that was drawn out by the state from the witness, and was therefore not germane cross-examin- of the dismissal. tion. There are various matters set up in the Eli Johnson was convicted of homicide, and he appeals. Affirmed. Minton & Lewis, of Hemphill, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. [1] The assistant attorney general makes a motion to dismiss this appeal for want of a sufficient appeal bond. There is an appeal bond in the record, but it is only approved by the sheriff. The statute requires that the trial judge shall also approve it. For this reason the appeal will not be entertained. The questions raised by the record and insisted upon for reversal will not be discussed on account The appeal is dismissed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |