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interpretation, we now disclaim such to have [12] The authorities cited will, we think, been our intention. We intended to say demonstrate the soundness of the proposionly that the motion to quash the indicttion announced. Where one obtains property ment was general in its terms, not pointing belonging to a corporation by fraudulent repout specifically wherein it was claimed not resentations made to a particular individto charge an offense, but that in our opinion ual, who has control of the property so acthe indictment did charge an offense, and quired, the better practice is always to alwas therefore not subject to the motion to lege the name of the person to whom the quash. representations were made; but, where the facts justify it, we believe it may properly be alleged that the representations were made to the corporation, and that such allegation charges an offense. It is true that corporations must act through individuals, and it is necessary for some person for the corporation to act upon the representations; but it does not follow that the representations must be directed to any particular person.

[11] But it is urged that, because the indictment alleged that appellant intended to swindle and defraud, and did swindle and defraud, a corporation, to wit, the Southwestern Life Insurance Company, and alleged that the false representations were made to the corporation, and did not name the particular persons or agents of the same to whom the said representations were made, that the indictment, for such failure, does not charge an offense, and that our former opinion is therefore erroneous, and in conflict with Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W. 81. Consideration of article 24 of our Penal Code will aid in the solution of this question. It reads:

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[13] As we understand the record in the instant case, all communications reporting appellant's death, the proof thereof, and affidavits relating thereto, were all directed to the Southwestern Life Insurance Company. It was a matter of small concern to appellant into whose hands they ultimately fell, or what particular agent of the corporation

"Whenever any property or interest is intended to be protected by a provision of the penal law, and the general term 'person,' or any oth-passed upon them. The facts show they er general term, is used to designate the party whose property it is intended to protect, the provision of such penal law, and the protection thereby given, shall extend to the property of the state, and of all public or private corpora

tions."

Reference to article 1421, P. C., defining the offense of swindling, will reveal that the only "general term" used to designate the party whose property that article is designed to protect is "the party justly entitled to the same." A corporation may own in its corporate name and hold title to property, and is "justly entitled thereto." We quote from the opinion in Modica v. State, 250 S. W. (No. 6868, delivered February 14, 1923 1):

"In the fifth count, the owner was named as the Beaumont, Sour Lake & Western Railway Company, a corporation. There is no rule of law which inhibits the naming of a corporation as the owner in an indictment for theft. There is nothing in the cases of Green v. State, 199 S. W. 623; Hartman v. State, 213 S. W. 939; White v. State, 28 Tex. Cr. R. 231, or other cases cited by appellant, which is opposed to this rule. On the contrary, the cases of White v. State, 24 Tex. App. 231, and Thurmond v. State, 30 Tex. App. 539, cited by appellant recognize the sufficiency of an indictment naming the corporation as the owner. They suggest that a better practice would be to place the ownership in an individual. The practical value of this suggestion is referable to the proof rather than the averment, in that the proof of want of consent is much easier when the averment places the ownership in an individual. On this subject, see Osborne v. State, 245 S. W. 929; also Bishop's New Crim. Proc. § 138; Cyc. of Law & Proc. vol. 25, p. 95; Wharton's Crim. Law, § 1180."

1 Rehearing pending.

were acted upon, not by one, but by many, officers of the company. Upon this point we quote from the testimony of Mr. Mather:

"I had access to or possession of the policies of the company while acting in the official capacity of secretary for the Southwestern Life Insurance Company in the year 1919. As to who the party was who usually passed upon proof of death of claims under the policies, there are several; all of the officers pass on the proofs of death. They first come to me and are gone over carefully, and then they are referred to the medical director and are by him gone over, then to the general attorney, and from there back to the president, and, if approved by all these, they come back to me for final approval and payment."

We believe the facts shown by the foregoing evidence will demonstrate that if the proposition contended for by appellant-that the indictment, to be valid, must allege the name of the person to whom the representations were made should be upheld, it would be practically impossible to draw a good indictment or secure a conviction under such a state of facts as is disclosed by this record. All the officers passed upon "proof of death claims." Would it be necessary to allege that the representations were made to all of them, the secretary, the medical director, the general attorney, and the president? If not, then to which one? The law does not require impossible or impracticable things. In so far as Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W. 81, contains expressions contrary to the views here expressed, it is modified to that extent.

[14] It is further contended in the motion for rehearing that the indictment is bad for

(248 S.W.)

Presiding Judge MORROW agrees that the indictment was not obnoxious to the motion to quash, but is inclined to the view that, there being no averment in the indictment that written representations entered into the offense, the admissibility of the written proof of death is doubtful, under the Rudy Case, 81 Tex. Cr. R. 272, 195 S. W. 187, and authorities there cited.

failure to set out the written proof of death unless a written document used as evidence forwarded by appellant's wife to the insur- be the basis of the offense charged. Not ance company, and that in the absence of being required to set out the written instrusuch instrument in the indictment appellant's ments in the indictment, we believe the objecobjection on that ground should have been tion to their introduction, because not so sustained when it was offered in evidence by averred, was properly overruled. the state. We find ourselves unable to agree to either proposition. Authorities cited in support of the contentions are White v. State, 3 Tex. App. 605; Dwyer v. State, 24 Tex. App. 132, 5 S. W. 662; Hardin v. State, 25 Tex. App. 74, 7 S. W. 534; Ferguson v. State, 25 Tex. App. 451, 8 S. W. 479; Salter v. State, 36 Tex. Cr. R. 501, 38 S. W. 212; Lively v. State (Tex. Cr. App.) 74 S. W. 321; Doxey v. State, 47 Tex. Cr. R. 503, 84 S. W. 1061, 11 Ann. Cas. 830. We deem it unnecessary to review them in detail. They announce the correct doctrine that, when a written instru.ment is the basis of a swindle, that instrument should be set out in the indictment, and that where the indictment upon its face reveals this to be true it will be held bad for the failure to incorporate it.

The motion for rehearing is overruled.

DAVIS V. STATE. (No. 7516.)

(Court of Criminal Appeals of Texas. Feb. 14, 1923.)

Intoxicating liquors 236 (20)-Evidence held sufficient to support conviction for unlawfully transporting Intoxicating liquor.

was

Testimony of prosecuting witness that he purchased whisky from accused, which transported by accused to place of delivery to prosecuting witness, was sufficient to sustain conviction for unlawfully transporting intoxicating liquor.

Appeal from District Court, Fisher County; W. R. Chapman, Judge.

W. B. Davis was convicted of unlawfully transporting intoxicating liquor, and he appeals. Affirmed.

W. B. Ferrell, of Roby, and Stinson, Coombes & Brooks, of Abilene, for appellant. R. G. Storey, Asst. Atty. Gen., for the State.

[15] What was the basis for the swindle in the instant case? The act on the part of appellant of simulating death? He was fraudulently representing to the world that he was dead and buried. The insurance policy as we find it in the record did not require written proof of death, and, if so, the requirement could have been waived by the company. The beneficiary could have reported the (supposed) death of her husband by telephone, in person, or by private messenger to the company. She did write a letter so advising; later the proof of death was furnished. The insurance company, for some reason, not being satisfied, sent an agent, who had a personal interview with appellant's wife and others relative to appellant's supposed death; he also secured affidavits of two co-conspirators, and of some friends who had attended the fake funeral, and who appear to have been imposed upon, as well as the insurance company. Could it be contended that the indictment should have set out all of the documents sent to the company or secured by it? What was the effect of all of them? To cause the company to believe that appellant was dead, the false simulation of which was, to our minds, the basis of the whole swindle and conspiracy. If it The witness McCoombs saw the appelhad been alleged that the company relied on lant, Singleton, and Stiff leaving the town the written proof of death, then it could have of Roby and going east on the Hamlin road. been urged with plausibility that this was He telephoned to the sheriff of Fisher county, not true, because the company sent an agent and a warrant was obtained to search the to make further investigation, and secure ad- car in which the parties named were riding. ditional affidavits. The letter, proof of death, The automobile was found by the officers and various affidavits introduced over appel- in possession of the search warrant on the lant's objection were only evidence pertinent road. It was out of running order, and had in making out the state's case, and the means stopped. Singleton and Stiff were at the car, whereby the pretended death was established as was also a mechanic who was working on as a real event. It is never necessary to set it. The appellant was not there, and was out any part of the evidence in an indictment, not seen by the officers who made the search.

MORROW, P. J. The conviction is for the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-4

Twenty-four quarts of whisky were found in the car.

TOLSTON v. STATE. (No. 6962.)

Singleton was used by the state as a witness, and testified that he had asked the ap- (Court of Criminal Appeals of Texas. Nov. 29,

pellant if he knew where they might get some whisky; that appellant said that if he found any one having whisky to sell he would let them know. Singleton told him he wanted three gallons, and the appellant said that a boy would furnish it, but that they would have to go 15 miles after it; that the boy would not furnish less than five gallons. Later, after waiting for the boy to appear with the whisky and his failing to do so, Singleton and Stiff got in their car, and appellant later joined them at the filling station. He stated that he did not care to ride with them through the town, as it might look suspicious. After traveling a certain distance, the appellant got out of the car, and Singleton and Stiff drove on. Later, according to Singleton's testimony, they were overtaken by the appellant and another party, whom Singleton had not previously seen and whom he could not identify. Quoting Singleton, he said:

1922. Rehearing Denied Feb. 21, 1923.) Criminal law 476-Exclusion of physician's testimony as to whether wound could have been made by bottle thrown certain distance held reversible error.

In a prosecution for murder, exclusion of a physician's testimony as to whether a wound, which he had described, on deceased's head could have been made by an empty quart whisky bottle thrown a distance of 10 steps or 30 feet held reversible error.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Levi Tolston was convicted of murder, and he appeals. Reversed.

Stanley Thompson, of Houston, and Cade Bethea, of Livingston, for appellant.

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

MORROW, P. J. The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 40 years. The facts are not materially variant from those stated in the opinion of this court on the former appeal. See 88 Tex. Cr. R. 269,

"He and another party overtaken us; we stopped when they overtook us. He did not deliver anything there; he never got out of the car. We got from them six gallons of whisky; it was in tow sacks, all I ever saw; I never open-225 S. W. 1098. ed it. As to whether they put that whisky in our car, we were coming this way, and they drove up on this side of us, and when I got out and Ray got out, the driver was on this side, and he got out, and he handed us the stuff, and we put it in our car. That was where I was having the car repaired; we were still standing there when the sheriff and his deputy

came out."

Singleton said that he had given his part of the money to Stiff to pay for the whisky; that he paid $14 a gallon for it; that the only arrangements he had made to get whisky was with the appellant; and that the appellant told him he was not selling whisky, and did not have any.

If we properly comprehend the evidence, it supports the finding of the jury that the appellant and another person transported six gallons of whisky from some point not identified to the place where it was delivered to the witnesses Singleton and Stiff. The conversation between the appellant and the witness Singleton, in connection with the fact that he was in company with the unidentified person described by Singleton, is sufficient to support the finding of the jury that the appellant was a principal actor in committing the offense. There is no complaint of the manner in which the issue was submitted to the jury, and on the evidence found in the record we find no warrant for this court to disturb the verdict.

The judgment is affirmed.

Dr. Pullen, a physician and surgeon of 20 years' practice, a graduate and postgraduate of two reputable medical institutions, testified that he visited the deceased soon after he received the blow which afterwards proved fatal; that he shaved his head, cut a piece out of his scalp like a horseshoe, laid it back, and then tried, without success, to raise the skull. There was a depression in the skull about the center. The skull was crushed in. from a fracture on the top of the head and It seems that there were two fractures. He

said:

"I took the scalp off on both sides, and then it was kind of broken around-just busted; the skull was busted. * * * His head was skinned up. * He had tolerably thick head of hair. He had coarse hair, and it was rather long."

He also stated that he was acquainted with the nature of an ordinary quart whisky bottle. He was asked whether or not, in his opinion, the wound which he found upon the Indian's head, and which he had described, could have been made by an empty quart whisky bottle being thrown a distance of 10 steps or 30 feet. It was the theory of the state that the wound was inflicted by the use of such a bottle as that described in question. Appellant expected to prove by the same witness that the wound which the witness saw upon the head of the deceased, and which he described in his testimony, could not have been made by the use of the weapon in the

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

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(248 S.W.)

manner stated. This testimony was excluded other cases listed by Mr. Branch in his Tex. upon the objection of the state's counsel up-] Ann. Penal Code, § 1853.

on the ground that it called for an opinion which was not within the scope of expert testimony. We regard the ruling as errone

ous.

On the former appeal this court, in holding that the expert evidence received on behalf of the state was not admissible, used the following language:

ness.

"We think this error, and that the question was one which a physician could not answer as an expert. Whether an empty quart bottle thrown thirty feet and striking a man square on top of the head would likely produce death, seems to us a matter of pure conjecture and not an opinion founded on fact or knowledge acquired by reason of the profession of the witThe character of the wound inflicted was not included in the hypothetical question asked. We have held that a physician may state as to the probable cause, nature and effect of wounds, and the consequences thereof. Branch's Ann. P. C. § 1853. But in a matter which the jury are as competent to judge as the witness, we have held it error to permit the witness to give his opinion. Branch's Ann. P. C. § 131."

The admissibility of the testimony proffered in the instant case, we think, is also sustained by the opinion of this court on the former appeal. The distinguishing factor is that on this appeal the nature of the wound is embraced in the inquiry, while in the former appeal it is omitted.

Appellant insists that, considering the character of the weapon, the absence of proof of motive, and the questionable character of the evidence to the effect that the injury was inflicted by appellant, the verdict of murder should not be allowed to stand. Without giving sanction to this view, this court is of the opinion that, considering the entire record, the error in excluding the testimony mentioned was one that requires a reversal of the judgment. It is so ordered.

On Motion for Rehearing.

HAWKINS, J. The state files a motion for rehearing, citing as the only authority our opinion in this case on a former appeal which is reported in 88 Tex. Cr. R. 269, 225 S. W. 1098. In the present opinion we undertook to

Mr. Wharton, in his work on Criminal Evi- point out the distinction between the question dence, vol. 1, p. 839, says:

"And a surgeon is admissible to prove the nature of a wound and its probable cause and effects."

In the case of Waite v. State, 13 Tex. App. 180, it was the theory of the state that the injury upon the deceased was inflicted by a certain piece of iron piping, which was described in the testimony. The state's counsel propounded to the medical man this question: "Would such an instrument in the hands of

propounded upon the instant trial and in the former.

The motion is overruled.

WINDHAM v. STATE. (No. 7073.)

(Court of Criminal Appeals of Texas. Dec. 13,
1922. Rehearing Denied Feb.
21, 1923.)
473, 476

a man of ordinary strength, used as a bludgeon, I. Criminal law
produce the wounds you have described and be
likely to cause death?"

Physician describing wound may express opinion as to probable cause, nature, and effect.

A physician who has examined and described a wound may express an opinion as to the probable cause, nature, and effect thereof. 2. Criminal law 1169 (9)-Admission of conclusion as to fact proved by other testimony not reversible error.

In a prosecution for assault with intent to

Objection was urged by the defendant upon the ground that the point was one upon which the opinion of an expert was not competent. The evidence is held admissible. The action of the trial court in overruling this objection was sustained on appeal in the case in which the death penalty was assessed and affirmed under the authorities cited. See State v. Mor-murder, admission of testimony that when the Iphy, 33 Iowa, 270, 11 Am. Rep. 122; State v. Porter, 34 Iowa, 131; Page v. State, 61 Ala. 16; Rash v. State, 61 Ala. 90; Ebos v. State, 34 Ark. 520; Shelton v. State, 34 Tex. 662. A like ruling was made in Banks v. State, 13 Tex. App. 182; Powell v. State, 13 Tex. App. 244; Lovelady v. State, 14 Tex. App. 560; Kirk v. State (Tex. Cr. App.) 37 S. W. 440; Hardin v. State, 51 Tex. Cr. R. 562, 103 S. W. 401; Betts v. State, 60 Tex. Cr. R. 634, 133 S. W. 251; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Spates v. State, 62 Tex. Cr. R. 532, 138 S. W. 393; and

witness picked up the victim "he was in such
an addled condition he couldn't get up," held not
ground for reversal, in view of other testi-
mony, without objection, to the same effect.
3. Criminal law 784(1)-Witness' nonrec-
ognition of party assaulted at moment of
blow held not to require charge on circum-
stantial evidence.

In a prosecution for assault with intent to

murder, the fact that a witness who identified defendant as the assailant did not recognize the injured party, with whom he was also acquainted, at the moment of the blow held not to require a charge on circumstantial evidence.

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

4. Assault and battery
injury was serious held warranted.

92-Conclusion that the skull was fractured, and I believed it was at the time. I suppose that the wound was something like an inch and a half long, it was a little diagonal one way, but it was lacerated to the skull. I continued to treat him, and attended him every day for a week or more, maybe a month."

Where defendant was convicted of aggravated assault, evidence held sufficient to warrant the jury's conclusion that the injury was

serious.

5. Criminal law 1159 (1) Jury's assessment of penalty for aggravated assault within statutory limitations not disturbed.

Where the evidence is sufficient to support the jury's finding that the injury was serious, and to show accused's guilt of aggravated assault, the assessment of the penalty, within the statutory limitations, is for the jury, whose verdict will not ordinarily be disturbed where the conviction is legal and the punishment within the terms of the statute.

On Motion for Rehearing.

6. Criminal law 473-Physician's testimony that he thought assaulted party's skull was fractured held admissible.

In a prosecution for assault with intent to murder, testimony of a skilled physician, who made a thorough and complete examination of the victim's wound, that "I thought at the time the skull was fractured," held admissi

ble.

7. Criminal law 456`· Witness' testimony that party assaulted was "addled" when picked up held admissible.

In a prosecution for assault with intent to murder, a witness' testimony that when he picked up the injured party "he was in such an addled condition he couldn't get up" held admissible; the word "addled" having a well-defined meaning, such as stupid, muddled, foolish, etc.

[1] Objection to that part of the testimony which is italicized was urged for the reason that it was a conclusion of the witness, and not a statement of the facts, and led the jury to believe that the injured party had received a fractured skull. We understand that a physician who was examined and described the wound may express an opinion as to the probable cause, nature, and effect of the wound, and the consequences thereof, without violating the rules of evidence. Branch's Ann. Tex. Penal Code, § 1853; 1 Wharton's Crim. Evidence, p. 839; Waite v. State, 13 Tex. App. 180; Shelton v. State, 34 Tex. 662; Tolston v. State, 88 Tex. Cr. R. 269, 225 S. W. 1098; Tolston v. State (No. 6962) 248 S. W. 50, recently decided. testimony complained of apparently well within the scope of the law permitting an expert witness to state his opinion. His testimony was not an opinion of the class involved in the case of Cooper v. State, 23 Tex. 335. In that case the witness was permitted to state his opinion as to whether or not the person who shot the deceased was

on horseback or some other elevation.

The

was

That

character of opinion has often been rejected.
A list of cases is found in 1 Rose's Notes on
Texas Decisions (1910 Ed.) pp. 971 and 972.
The principle was applied in the Tolston

Appeal from District Court, Jones County; Case, 88 Tex. Cr. R. 269, 225 S. W. 1098. W. R. Chapman, Judge.

J. W. Windham was convicted of aggravated assault, and he appeals. Affirmed.

Joe Farrow, of Anson, Stinson, Coombes & Brooks, of Abilene, and J. E. Robinson, of Anson, for appellant.

Thomas & Pope, of Anson, and R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J. Charged with assault with intent to murder, appellant was convicted of aggravated assault; punishment fixed at a fine of $500 and confinement in the county jail for a period of two years. The injured party was C. C. Ball.

Dr. Arwood, a physician of thirty-five years' practice, saw Ball immediately after he received the injury. He said:

"The wound was on the back part of the skull, a little to the right of the spinal column, where the head and spinal column join. The wound was bleeding, and I dressed it. It was my diagnosis that he was struck with an instrument of some kind. I don't know what kind, but it cut a pretty deep gash. When I dressed the wound I shaved the hair off, and found it cut to the skull. I thought at the time

[2] Bill No. 3 complains that, while the witness Thomasson was testifying, state's counsel propounded this question:

"Q. After you picked him up, what did you do with him, hold him or lay him down, or what? A. Well, he didn't-he was in such an addled condition he couldn't get up."

The objection urged was that the question was leading, and the answer was a conclusion, causing the jury to conclude that the wound received was more serious than the facts justified. The antecedent evidence illustrative of the ruling complained of is

not set out.

facts, it appears that Dr. Arwood testified, Looking to the statement of without objection, that he was at the church or meeting when the assault took place; that he heard somebody say that Ball was hurtthat somebody had knocked him in the head; that he went to the place and found Ball standing close to the door. He was on his feet; somebody had helped him up, and was holding him. The witness said:

"I examined his head and found a wound. I told them to take him up to the office as quick as they could get him there, and they carried him up to the house, and I dressed the wound."

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

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