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(248 S.W.)

larity of the proceedings, where there were no CRISMAN Y. STATE. (No. 7643.) bills of exception nor statement of facts. (Court of Criminal Appeals of Texas. Feb. 14,

Appeal from District Court, Grayson Coun1923.)

ty; F. E. Wilcox, Judge.
Criminal law 1 144(17)-Where no bills of
exception or statement of facts, court will and he appeals. Affirmed.

Albert Crisman pleaded guilty of burglary, presume facts justified heaviest penalty.

On appeal from a conviction for burglary, R. G. Storey, Asst. Atty. Gen., for the the Court of Criminal Appeals will presume the State. existence of facts to justify assessing the heaviest penalty permitted upon conviction for ordi HAWKINS, J. Upon his plea of guilty to nary burglary, where no bills of exception nor burglary, appellant's punishment was assessstatement of facts appeared.

ed at two years in the penitentiary. Appeal from District Court, Grayson Coun

Notwithstanding the plea of guilty, the recty; F. E. Wilcox, Judge.

ord is before us on appeal. No statement of

facts and no bills of exception appear. Albert Crisman was convicted of burglary,

Everything must be presumed in favor of and he appeals. Affirmed.

the correctness of the judgment and the regu-
P. G. Storey, Asst. Atty. Gen., for the larity of the proceedings.
State,

The judgment is affirmed.
HAWKINS, J. Upon conviction for bur-
glary, punishment was assessed against ap-
pellant at 12 years in the penitentiary.

No bills of exception appear in the record, CRISMAN V. STATE, (No. 7646.)
and no statement of facts accompanies the
transcript. Nothing is before us for review. (Court of Criminal Appeals of Texas. Feb. 14,

1923.)
Notwithstanding the heaviest penalty permit-
ted upon conviction for ordinary burglary Appeal from District Court, Grayson County;
was assessed against appellant, we must pre- F. E. Wilcox, Judge.
sume the facts justified it.

A. Crisman was convicted of theft, and he apThe judgment must be affirmed.

peals. Affirmed.

R. G. Storey, Asst. Atty. Gen., for the State.

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MORROW, P.J. The conviction is for theft;

punishment fixed at confinement in the penitenCRISMAN V. STATE. (No. 7644.)

tiary for a period of two years. (Court of Criminal Appeals of Texas. Feb. 14,

We find beither statement of facts nor bills of 1923.)

exceptions; nor there any fundamental erAppeal from District Court, Grayson Coun- ror revealed by the record.

The judgment is affirmed.
ty; F. E. Wilcox, Judge.

A. Crisman was convicted of theft, and be
appeals. Affirmed.
R. G. Storey, Asst. Atty. Gen., for the State.

Ex parte FAISON. (No. 6895.)
LATTIMORE, J. Appellant was convicted
in the district court of Grayson county of theft, (Court of Criminal Appeals of Texas. Feb. 14,

1923.)
and his punishment fixed at two years in the
penitentiary.

I. Constitutional law w208(3)-Licenses Com
The record is before us without statement of 7(3)-Highway law amendment excepting
facts or bills of exception. The indictment suf farmers' trucks class legislation.
fciently charges an offense, and the instructions Acts 37th Leg. 1st Called Sess, (1921) c.
of the court seem to be in accordance with law. 52, amending Highway Department Law 1917,
The judgment will be affirmed.

$ 16 (Vernon's Ann. Civ. St. Supp. 1922, art. 701242), so as to except farmers' trucks from the provision for registering and paying license

fees for commercial motor vehicles, is class CRISMAN v, STATE. (No. 7645.)

legislation, contravening Bill of Rights, art. 1, (Court of Criminal Appeals of Texas. Feb. 14,

2. Constitutional law Ow62-Highway law 1923.)

amendment delegates power of suspension. Criminal law w 1144(V2, 17)-Everything pre Provisions of Acts 37th Leg. 1st Called sumed in favor of correctness of judgment Sess. (1921) c. 52, amending Highway Departand regularity of proceedings, where no bills ment Law 1917 (Vernon's Ann. Civ, St. Supp. of exception nor statement of facts.

1922, art. 701242), authorizing the highway On appeal everything must be presumed in commission to issue licenses generally for favor of the correctness of judgment and regu- trucks with greater loads than named in the

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

$ 3.

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act, on roads which the commission, after in- , original highway law of 1917 (Vernon's Ann. vestigation, is satisfied will warrant it, and to Civ. St. Supp. 1922, art. 701212). We quote a issue special license to a truck for heavier part of said section: loads on any road, delegate power to suspend a law in contravention of Const. art. 1, § 28.

"Vehicles not Subject to Registration.

Trucks or tractors used exclusively for agri3. Statutes om 123(7)--A subject in amend. cultural purposes, fire engines, road rollers, ment of highway law not in title.

steam shovels, and other road building and Const. art. 3, $$ 35, 36, inhibiting ingrafting agricultural machinery shall not be required to by amendment on a law, or writing into a law be registered; provided that nothing in this originally any subject not comprehended by the section shall be construed to exempt from this title of the act, is violated by Acts 37th Leg. act motor vehicles, trailers, semi-trailers, and 1st Called Sess. (1921) c. 52, 8 3 (Vernon's tractors used for road building purposes and Ann. Pen. Code Supp. 1922, art. 820zz), the privately owned; provided that trucks used subjects in the title being the amendment of exclusively for agricultural purposes shall be one section and the repeal of two other sec- registered by horsepower as is now provided tions of the Highway Department Law 1917, for registration of automobiles and shall be as amended, and said section 3 as to speed on subject to all the provisions of this act, except highway of commercial tor vehicles being the payment of annual license fees." on a different subject.

This paragraph of the law in question Original habeas corpus proceeding by J. H. places trucks and tractors used for agri. Faison. Relator discharged.

cultural purposes on a different footing be

fore the law from similar trucks and tractLove & Rutledge, of Dallas, for relator. R. G. Storey, Asst. Atty. Gen., for the ors used for commercial and other purposes,

and, while the Legislature may differentiate State.

between citizens following different occupa

tions without breach of the constitutional LATTIMORE, J. J. H. Faison, hereinaft- forbiddance, this is because it is to be super styled relator, was arrested upon a war

posed that such persons, in matters properly rant issued out of justice court of precinct discriminated between, 'will be engaged in No. 1 of Dallas county for a violation of the acts and business substantially different, and law relating to the operation of commercial upon which difference may be based the right motor vehicles on public highways, which is to receive at the hands of the lawmakers found in chapter 52, General Laws 1st Called different treatment; but when classes of Session of 37th Legislature. Relator in the persons or occupations which are really and usual form alleges his illegal arrest and de substantially the same are treated differenttention, and attacks the constitutionality of ly by a law upon the camouflage of a name said law by appropriate averments.

only, the courts will not permit it. The act This court hesitates under any circum- under discussion deals with roads and roadstances to strike down a law enacted by the using vehicles, and the effect of their use legislative branch of our government, and upon the roads, and in our opinion it may not has had much concern over this attack upon call trucks and tractors which are exactly a law manifestly intended to protect the similar in construction, character, and effect whole people in their use of the public high-in usage upon highways, agricultural impleways of this state, as against what is becom- ments, and subject to one classification in ing a serious matter both to highways and one clause of the law, and call them commerto citizens who pay for and use them for or- cial vehicles and subject to another classidinary traffic. The progress of legislation fication in the next clause thereof. A farmsince the enactment in 1917 of the law creat-ler's tractor or a dairyman's truck may carry ing our highway commission in this state, or pull a load of such weight as to grievousin its successive efforts to adequately regu- ly injure a highway upon payment of a small late the use of highways for commercial pur- license fee under this statute, while the poses by heavy vehicles, is interesting, and same weight, vehicle, or load, if used in a indicates a realization of the seriousness of commercial transaction, would be prohibited the problem referred to. We have withheld entirely or made to pay a much heavier fee announcing our conclusion upon this matter for license. That this is class legislation to such time as the representatives of the seems too plain to need further argument. people are in session, so that there might be

[2] Attention is also called to other parts speedy action after this decision looking to of said law. In said amended section 16 we the enactment of proper laws safeguarding find the following: the highways and defining the rights of the

"No motor vehicle shall be licensed under this various users thereof. [1] The law in question is obnoxious to act whose net carrying capacity is greater than

eight thousand pounds, provided that the offithat provision of our Constitution prohibit- cers or persons charged with the supervision ing class legislation. Section 3, art. 1, Bill and care of any certain highway may make of Rights. Chapter 52 presents the enact. written application to the state highway comment of an amendment to Section 16 of the mission, asking that motor vehicles having a

lows:

(248 S.W.) greater carrying capacity than named in this

“No power of suspending laws in this State act be permitted to operate on and over the shall be exercised except by the Legislature or highway specifically named in the application; its authority." and the state highway commission shall after investigation and finding the highway named in It will be observed that the words "or its the application of sufficient construction to car- authority" are no longer a part of the fundary without material injury a load greater than mental law of our state, and as held by this that named in this act, then the state highway commission shall have the authority to issue court in Ex parte Coombs, 38 Tex. Cr. R. to owners of motor vehicles a license authoriz- / 648, 44 S. W. 854, and by the Supreme Court ing a greater load than named in this act. Said of this state in McDonald v. Denton, 63 Tex. license shall state the amount of load that may Civ. App. 421, 132 S. W. 823, this repealed be carried and also the section of highway over any authority to delegate its power therewhich said motor vehicle may carry such ex. tofore existing in the Legislature. cess load."

[3] It might be further observed concernThe plain effect of this is to remove the ing the provisions of said chapter 52 under maximum limit upon truck loads at the pleas- ing said chapter seems to include three suh

discussion, that the caption of the bill enacture of the highway commission, and to delejects, viz.: The amendment of section 16, gate to such commission authority to grant the repeal of section 16a, and the repeal of to any truck operator, no matter how heavy section all referring to chapter 131, Genhis load or vehicle, the right and permission eral Laws Regular Session 37th Legto so operate same upon public highways,

islature. in which event he could not be penalized said chapter 52, in addition to the three sub

In the body of the bill enacting unless he exceeded the extra weight, etc., jects named in the caption, there appears tixed by the officers of the highway commis- section 3, which in nowise relates to, is part sion. In other words, without specifying of, or is connected with, either of the secunder what named conditions, the unlimited tions named in the caption as affected by power of grant of permission to operate with said bill. We also note that section 3 of heavier loads than those named in the statute is given to the highway commission.

chapter 131 of the General Laws Regular In this connection we call attention to

Session 37th Legislature, which this new secanother clause in said aćt, which is as fol- tion 3 of the amendatory chapter 52 pur

ports to amend, was itself inserted in said

chapter 131 without notice in the caption, or "Anything to the contrary notwithstanding, without being embraced in the subjects upon application in writing to the state high-named in said caption. Sections 35 and 36 way department, said department in its discre- of article 3 of our Constitution expressly intion may issue a special permit to the owner

hibit ingrafting by amendment upon laws, or operator of any vehicle allowing heavier or wider loads than named herein, to be moved

or writing into the body of such laws origor carried over and on the public highways inally, any subject not comprehended by the and bridges. They may also issue such special title to the act. Gunter v. Mortgage Co., permit to increase the permissible weight per 82 Tex. 502, 17 S. W. 840; City of Austin v. inch of width of tire. Such permits shall be McCall, 95 Tex. 575, 68 S. W. 791; Ex parte in writing and they may limit the time and use Segars, 32 Tex. Cr. R. 553, 25 S. W. 26; Ratof operation over the said highways and bridges igan v. State, 33 Tex. Cr. R. 305, 26 S. W. which may be traversed and may contain such special conditions and provisions and require 407; Ex parte Hernan, 45 Tex. Cr. R. 346, sich undertaking or other security as the said 77 S. W. 225; Joliff v. State, 53 Tex. Cr. R. department shall deem to be necessary to pro- 63, 109 S. W. 176; Ex parte Walsh, 59 Tex. tect the public highways and bridges from in- Cr. R. 415, 129 S. W. 118. Giving effect herejury, or provide indemnity from any injuries in to these decisions and the mandates of resulting from such operation. All such special our Constitution, we are compelled to hold permits shall be carried in the vehicle to which they refer and upon demand shall be section 3 of said chapter 52 to have been open to inspection of any peace officer or em

placed in the law without constitutional auployee charged with care or protection of pub- thority. Manifestly a law having for its

named purpose the amending of specif

ic sections of a former law, the carrying A casual reading of this quotation seems into effect of which expressed purpose apto make patent the fact that it is so obnox- pears in the body of the law in sections i lous to section 28, art. 1, of our Constitution and 2 of such amendatory act, may not then denying to the Legislature the right to dele proceed to enumerate other sections which gate power to suspend a law, as to require would thus become a part of the original act no analysis. Said section of the Constitu- sought to be amended, which other sections tion in terms provides that no power of are not included in the caption or drawn suspending laws in this state shall be exer- within the law by reason of being enlargcised except by the Legislature.

As this ments of, or changes in, those sections whose provision was in the Constitution prior to amendment is made the subject of the title the adoption of the one now in force in this of the amendatory act in question.

If section 16 of this chapter be unconstitu

lic highways."

state, it read:

tional for that it is class legislation and re Robt. M. Lyles, of Cameron, for appellant. flects an effort on the part of the Legislature R. G. Storey, Asst. Atty. Gen., for the to delegate power to the highway commis- State., sion, and if section 3 of said act be obnoxious to the constitutional inhibition against

HAWKINS, J. Appellant is charged in. the appearance in the body of an act of mat- the first count in the indictment with unlawters substantially variant from the purpose fully selling intoxicating liquor to one C. A. of the act as expressed in its caption, then Caninenberg, and in the second count with there would seem to us little need for a dis- unlawful possession of such liquor for the cussion of the application of section 6 of

purpose of sale. Both counts were submitted said chapter 52 (Vernon's Ann. Civ. St. Supp. to the jury, and a conviction resulted under 1922, art. 7012421), which in terms provides the second count. that the holding of any part of this law un

The case is before us on the sole contenconstitutional shall not affect the remaining tion that the evidence is insufficient to supparts.

port the conviction. In determining this The act in question was held unconstitu- question, it is necessary that we look largely tional by the honorable Court of Civil Ap-to the evidence introduced by the state. We peals at Dallas, Tex., in July, 1922, in the find therefrom that four young men, Canincase of Lossing v. Hughes, No. 8856, 244 S. enberg and three others, desired to purchase W. 556, which we have not yet seen in print. whisky. They went to the home of Howard

For the reasons mentioned, the contention Smith, a brother of appellant, and made inof relator is upheld, and his discharge is or- quiry of him. The details of the conversation dered.

between the proposed purchasers and Howard Smith were not gone into, but it appears from the testimony of one of the boys that

Howard Smith stated he did not have any, Ex parte WOFFORD. (No. 6896.)

but would "put us on to some.” Another one

of the boys stated, “We did not get any whis(Court of Criminal Appeals of Texas. Feb. 14, ky at Howard Smith's, because he did not 1923.)

have any there; said he had just taken it Original habeas corpus proceeding by Ed. down to his brother's, or his brother-in-law's Wofford. Relator discharged.

-something like that.” Howard Smith and

his wife got in the car with the boys, and Love & Rutledge, of Dallas, for appellant. R. G. Storey, Asst. Atty. Gen., for the State. they drore some 10 or 12 miles to what was

understood by the boys to be Tobe Smith's

house. LATTIMORE, J. This is a companion case

When they reached there Howard to Ex parte J. H. Faison (No. 6855) 248 S. W. Smith got out of the car and talked to ap343, this day decided, and, for the reasons pellant, then returned to the car and told therein set forth, the prayer of relator is grant- the boys it was all right, whereupon they all ed, and it is ordered that he be discharged. got out and went to the back of the house.

Appellant brought from the smokehouse a five-gallon jug containing whisky. A twogallon jug, a quart fruit jar, and funnel were

produced, and appellant and his brother SMITH V. STATE. (No. 7380.) (Howard Smith) poured the whisky out of

the five-gallon jug and measured it into the (Court of Criminal Appeals of Texas. Feb. 7, two-gallon jug. They used the quart jar to 1923. Rehearing Denied March 7, 1923.)

measure with, pouring from the five-gallon 1. Criminal law 1 159(1)-Issue of fact de-jug into it, and from it into the two-gallon termined by jury not disturbed on appeal.

juz by means of the funnel. The two gallons Where the jury have settled an issue of were to be divided among the purchasers acfact, it will not be disturbed on appeal. cording to the quantity each paid for. One

of them paid Howard Smith $10 for his part 2. Intoxicating liquors for 236(7)–Evidence by means of a check, another one paid him

held sufficient to support conviction of pos- ( $5 in money, still another handed $2.50 to apsession for purpose of sale.

pellant, who passed it on to Howard Smith. In a prosecution for unlawful possession It can hardly by questioned, we think, that of intoxicating liquors for the purpose of sale, evidence held sufficient to support a conviction the state of facts related made out against

appellant a case for the possession of whisky Appeal from District Court, Milam Coun- for the purpose of sale. The boys were seek

ing to purchase whisky; they were taken by ty; John Watson, Judge.

Howard Smith to a place where appellant Tobe Smith was convicted of unlawful | had possession of a five-gallon jug of it, and possession of intoxicating liquor for the pur- from this a sale of two gallons was made. pose of sale, and he appeals. Affirmed.

Appellant offered evidence to defeat the

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(248 S.W.) state's case. He testified that he and his say that, although appellant claims to have wife went from his home to visit his brother frequently bought liquor from the Mexican, Howard Smith; that, as he went through he could not give his name, and apparently Thrall, he met a Mexican from whom he had had made no effort to find him. The record bought whisky on previous occasions, who shows that Howard Smith had pleaded guilty offered to sell him some in five-gallon quan-to the sale of this whisky. Mrs. Howard tities; that appellant told him he (appellant) Smith testified to having seen her husband could not handle that much himself, but give the $20 to appellant to purchase the woud let him know later; that he went on same. She also testified about the trip she to his brother's, where he spent the night, and her husband made with the proposed and reported to him that they could buy five purchasers from their house to Lovelace's gallons of whisky for $40 if he (Howard where the whisky was secured, that she reSmith) would take one-half of it; that they mained in the car while they had gone both went to Taylor the next day, and there around the house to get the whisky, and saw the Mexican and agreed to take the that Mrs. Tobe Smith came to the car and Thisky; that appellant and his wife expected talked to her while they were getting it. to spend the next night with his brother-in Upon appellant's defense against the law, Monroe Lovelace, and made arrange-charge for unlawful possession of intoxicatments with the Mexican to meet them on the ing liquor for the purpose of sale, the court road after night at "Kingman's gate” and gave, at appellant's request, the following deliver the whisky at that point; that his special charge: brother gave him the $20 to pay for his part of the whisky; that appellant and his wife fendant held possession of intoxicating liquor

"If you believe from the evidence that the destarted to Monroe Lovelace's and when they as alleged, and had and held possession of 242 reached the point at which they had agreed gallons thereof for Howard Smith, and it was to meet the Mexican he was already there; Howard Smith's purpose to sell said whisky, that appellant paid him the $40 and took the said possession of said 242 gallons on defendfive-gallon jug of whisky to his brother-in-ant's part would not be possession for the purlaw's and put it in the smokehouse: that pose of sale, unless you believe from the evisome time during the night his brother and dence beyond a reasonable doubt that he knew other parties came there; and his brother of said intention on the part of Howard Smith." told him he wanted to get two gallons of his part of the whisky; that Lovelace furnished [1, 2] This charge was certainly as favorthe two-gallon jug. Appellant admits that able to accused upon that point as he was he assisted in transferring the whisky from entitled to, and the jury determined that isthe fire-gallon jug to the two-gallon jug, but sue in favor of the state. We have set out denied that be had any interest in the two somewhat at length the evidence, because the gallons that was sold, and that one-half gal. sufficiency thereof is the only question prelou was left of his brother's whisky in the sented for consideration. We think it can. fivegallon jug. He disclaimed any interest not be doubted that the testimony of the in the sale of the whisky or that he knew state made out a case authorizing a convicit was going to be sold until it was measured tion. The jury, being the sole judges of the out and the money began to change hands. credibility of the witnesses and of the weight He said some one handed him some money, to be given to their testimony, had a right but he did not notice how much it was, and to accept or reject the defensive testimony immediately passed it on to Howard. He offered. Where they have settled an issue denied receiving anything from the sale of of fact, we are not authorized to disturb the the whisky; said he had no claim in it and finding. If there was no evidence in the recmade no claim to the proceeds; that when ord upon which a conviction could be prophe left Lovelace's he put the other half gal-erly based, a different question would be prelon belonging to his brother in a fruit jar sented. After a careful examination of the and left it at Lovelace's, Mrs Tobe Smith statement of facts, we cannot say the jury testified that she saw Howard Smith give was without evidence to support the convicappellant $20 with which to purchase whisky |tion. They may not have believed the debefore she and her husband left Howard fensive testimony relative to the manner in Smith's house on the night in question, and which the five-gallon jug of liquor was ob also testified to receiving the five-gallon jug tained, or they may have disbelieved appelof whisky from a Mexican at some point lant's statement that he had no knowledge on the road to Lovelace's. Appellant testi- that the whisky of which he was in possesfied that the Mexican was at the point agreed sion was to be sold. They had an opportunupon when they reached there. Mrs. Smith ity to hear the witnesses as they testified, does not so remember it, but says they had to observe their manner, and are in a much reached the point and were working on their better position to pass upon questions of car when the Mexican drove up, and that he fact than this court can possibly be. run bis car up by the side of theirs and the Having settled the matter in favor of the transfer was made. It may be pertinent to state, our duty clearly calls for an affirmance

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