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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 indict. tion 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 [11] But it is urged that, because the in- facts justify it, we believe it may properly dictment alleged that appellant intended to be alleged that the representations were swindle and defraud, and did swindle and made to the corporation, and that such alledefraud, a corporation, to wit, the Southwest- gation charges an offense. It is true that ern Life Insurance Company, and alleged that corporations must act through individuals, the false representations were made to the and it is necessary for some person for the corporation, and did not name the particu- corporation to act upon the representations; lar persons or agents of the same to whom but it does not follow that the representathe said representations were made, that the tions must be directed to any particular perindictment, for such failure, does not charge son. an offense, and that our former opinion is [13] As we understand the record in the therefore erroneous, and in conflict with instant case, all communications reporting Pruitt v. State, 83 Tex. Cr. R. 148, 202 s. appellant's death, the proof thereof, and afW. 81. Consideration of article 24 of our fidavits relating thereto, were all directed to Penal Code will aid in the solution of this the Southwestern Life Insurance Company. question. It reads:

It was a matter of small concern to appellant

into whose hands they ultimately fell, or “Whenever any property or interest is intend; what particular agent of the corporation ed 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 were acted upon, not by one, but by many, whose property it is intended to protect, the officers of the company. Upon this point we provision of such penal law, and the protection quote from the testimony of Mr. Mather: thereby given, shall extend to the property of the state, and of all public or private corpora- cies of the company while acting in the official

"I had access to or possession of the poli. tions."

capacity of secretary for the Southwestern Life

Insurance Company in the year 1919. As to Reference to article 1421, P. C., defining the who the party was who usually passed upon offense of swindling, will reveal that the only proof of death of claims under the policies, “general term” used to designate the party there are several; all of the officers pass on whose property that article is designed to the proofs of death. They first come to me and protect is "the party justly entitled to the ferred to the medical director and are by him

ver carefully, and then they are resame.” A corporation may own in its cor

gone over, then to the general attorney, and porate name and hold title to property, and from there back to the president, and, if apis "justly entitled thereto." We quote from proved by all these, they come back to me for the opinion in Modica v. State, 250 S. W. final approval and payment." (No. 6868, delivered February 14, 1923 1):

We believe the facts shown by the foregoing "In the fifth count, the owner was named as evidence will demoustrate that if the proposithe Beaumont, Sour Lake & Western Railway tion contended for by appellant—that the inCompany, a corporation. There is no rule of law which inhibits the naming of a corporation dictment, to be valid, must allege the name as the owner in an indictment for theft. There of the person to whom the representations is nothing in the cases of Green v. State, 199 were made-should be upheld, it would be S. W. 623; Hartman v. State, 213 S. W. 939; practically impossible to draw a good inWhite v. State, 28 Tex. Cr. R. 231, or other dictment or secure a conviction under such cases cited by appellant, which is opposed to a state of facts as is disclosed by this record, this rule. On the contrary, the cases of White All the officers passed upon “proof of death v. State, 24 Tex. App. 231, and Thurmond v. claims." Would it be necessary to allege State, 30 Tex. App. 539, cited by appellant recognize the sufficiency of an indictment naming that the representations were made to all of the corporation as the owner. They suggest them, the secretary, the medical director, that a better practice would be to place the the general attorney, and the president? If ownership in an individual. The practical val- not, then to which one? The law does not ue of this suggestion is referable to the proof require impossible or impracticable things. rather than the arerment, in that the proof | In so far as Pruitt v. State, 83 Tex. Cr. R. of want of consent is much easier when the 14S, 202 S. W. 81, contains expressions conaverment places the ownership in an individual. On this subject, see Osborne v. State, 245 s. trary to the views here expressed, it is modiW. 929; also Bishop's New Crim. Proc. § 138; fied to that extent. Cyc. of Law & Proc. vol. 25, p. 95; Wharton's [14] It is further contended in the motion Crim. Law, § 1180.”

for rehearing that the indictment is bad for

(248 S.W.) 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 Presiding Judge MORROW agrees that the to either proposition. Authorities cíted in indietment was not obnoxious to the motion support of the contentions are White v. State, to quash, but is inclined to the view that, 3 Tex, App. 605; Dwyer v. State, 24 Tex. there being no averment in the indictment App. 132, 5 S. W. 662; Hardin v. State, 25 that written representations entered into the Tex. App. 74, 7 S. W. 534; Ferguson v. State, offense, the admissibility of the written proof 25 Tex, App. 451, 8 S. W. 479; Salter v. State, of death is doubtful, under the Rudy Case, 36 Tex. Cr. R. 501, 38 S. W. 212; Lively v. 1 81 Tex. Cr. R. 272, 195 S. W. 187, and authorState (Tex. Cr. App.) 74 S. W. 321 ; Doxey ities there cited. 5. State, 47 Tex. Cr. R. 503, 84 S. W. 1061, The motion for rebearing is overruled. 11 Ann. Cas. 830. We deem it unnecessary to review them in detail. They announce the correct doctrine that, when a written instrument is the basis of a swindle, that instrument should be set out in the indictment, and that where the indictment upon its face re

DAVIS v. STATE. (No. 7516.) Feals this to be true it will be held bad for the failure to incorporate it..

(Court of Criminal Appeals of Texas. Feb. 14, [15] What was the basis for the swindle

1923.) in the instant case? The act on the part of appellant of simulating death? He was intoxicating liquors Om 236 (20)-Evidence held fraudulently representing to the world that

sufficient to support conviction for unlaw. he was dead and buried. The insurance pol

fully transporting intoxicating liquor. icy as we find it in the record did not re Testimony of prosecuting witness that he quire written proof of death, and, if so, the purchased whisky from accused, which was requirement could bave been waived by the transported by accused to place of delivery to company. The beneficiary could have report- prosecuting witness, was sufficient to sustain ed the (supposed) death of her husband by conviction for unlawfully transporting intoxi

cating liquor. telephone, in person, or by private messenger to the company. She did write a letter so advising; later the proof of death was fur

Appeal from District Court, Fisher Counnished. The insurance company, for some ty; W. R. Chapman, Judge. reason, not being satisfied, sent an agent,

W. B. Davis was convicted of unlawfully who had a personal interview with appellant's transporting intoxicating liquor, and he apwife and others relative to appellant's sup

peals. Affirmed. posed death; he also secured affidavits of two co-conspirators, and of some friends who W. B. Ferrell, of Roby, and Stinson, had attended the fake funeral, and who ap- Coombes & Brooks, of Abilene, for appellant. pear to have been imposed upon, as well as R. G. Storey, Asst. Atty. Gen., for the the insurance company, Could it be contended State. that the indictment should have set out all of the documents sent to the company or

MORROW, P. J. secured by it? What was the effect of all

The conviction is for of them? To cause the company to believe the unlawful transportation of intoxicating that appellant was dead, the false simula- liquor; punishment fixed at confinement in tion of which was, to our minds, the basis the penitentiary for one year. 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, I not seen by the officers who made the search. 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,

1922. Rehearing Denied Feb. 21, 1923.) pellant if he knew where they might get some whisky; that appellant said that if Criminal law e476Exclusion of physician's he found any one having whisky to sell he testimony as to whether wound could have would let them know. Singleton told him he been made by bottle thrown certain distance wanted three gallons, and the appellant said

held reversible error. that a boy would furnish it, but that they In a prosecution for murder, exclusion of a would have to go 15 miles after it; that the physician's testimony as to whether a wound, boy would not furnish less than five gallons. which he had described, on deceased's head Later, after waiting for the boy to appear ky bottle thrown a distance of 10 steps or 30

could have been made by an empty quart whiswith the whisky and his failing to do so, feet held reversible error. Singleton and Stiff got in their car, and appellant later joined them at the filling sta

Appeal from District Court, Polk County; tion. He stated that he did not care to ride J. L. Manry, Judge. with them through the town, as it might look suspicious. After traveling a certain dis

Levi Tolston was convicted of murder, and tance, the appellant got out of the car, and he appeals. Reversed. Singleton and Stiff drove on. Later, accord Stanley Thompson, of Houston, and Cade ing to Singleton's testimony, they were over- Bethea, of Livingston, for appellant. taken by the appellant and another party, R. G. Storey, Asst. Atty. Gen., for the State, whom Singleton had not previously seen and whom he could not identify. Quoting Sin MORROW, P. J. The conviction is for gleton, he said:

murder; punishment fixed at confinement in "He and another party overtaken us; we stop- The facts are not materially variant from

the penitentiary for a period of 40 years. ped when they overtook us. He did not deliver anything there; he never got out of the car.

those stated in the opinion of this court on We got from them six gallons of whisky; it the former appeal. See 88 Tex. Cr. R. 269, 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 Dr. Pullen, a physician and surgeon of 20 our car, we were coming this way, and they years' practice, a graduate and postgraduate drove up on this side of us, and when I got of two reputable medical institutions, testiout and Ray got out, the driver was on this fied that he visited the deceased soon after he side, and he got out, and he handed us the stuff, received the blow which afterwards proved and we put it in our car. That was where I was having the car repaired; we were still fatal; that he shaved his head, cut a piece standing there when the sheriff and his deputy out of his scalp like a horseshoe, laid it back, came out."

and then tried, without success, to raise the

skull. There was a depression in the skull Singleton said that he had given his part about the center. The skull was crushed in.

from a fracture on the top of the head and of the money to Stiff to pay for the whisky: It seems that there were two fractures. He that he paid $14 a gallon for it; that the

said: only arrangements he had made to get whisky was with the appellant; and that the ap

I took the scalp off on both sides, and then pellant told him he was not selling whisky,

it was kind of broken around—just busted; the skull was busted.

His head was and did not have any.

skinned up.

He had tolerably thick If we properly comprehend the evidence, head of hair. He had coarse hair, and it was it supports the finding of the jury that the rather long." appellant and another person transported six gallons of whisky from some point not iden He also stated that he was acquainted with tified to the place where it was delivered to the nature of an ordinary quart whisky botthe witnesses Singleton and Stiff. The con- tle. He was asked whether or not, in his versation between the appellant and the wit- opinion, the wound which he found upon the ness Singleton, in connection with the fact Indian's head, and which he had described, that he was in company with the unidentified could have been made by an empty quart person described by Singleton, is sufficient to whisky bottle being thrown a distance of 10 support the finding of the jury that the ap- steps or 30 feet. It was the theory of the pellant was a principal actor in committing state that the wound was inflicted by the use the offense. There is no complaint of the of such a bottle as that described in question. manner in which the issue was submitted to Appellant expected to prove by the same witthe jury, and on the evidence found in the ness that the wound which the witness saw record we find no warrant for this court to upon the head of the deceased, and which he disturb the verdict.

described in his testimony, could not have The judgment is affirmed.

been made by the use of the weapon in the

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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 The admissibility of the testimony profwhich was not within the scope of expert fered in the instant case, we think, is also testimony. We regard the ruling as errone sustained by the opinion of this court on the

former appeal. The distinguishing factor is On the former appeal this court, in holding that on this appeal the nature of the wound that the expert evidence received on behalf is embraced in the inquiry, while in the forof the state was not admissible, used the fol- mer appeal it is omitted. lowing language:

Appellant insists that, considering the char“We think this error, and that the question acter of the weapon, the absence of proof of was one which a physician could not answer as motive, and the questionable character of the an expert. Whether an empty quart bottle evidence to the effect that the injury was inthrown thirty feet and striking a man square flicted by appellant, the verdict of murder on top of the head would likely produce death, should not be allowed to stand. Without givseems to us a matter of pure conjecture and ing sanction to this view, this court is of the not an opinion founded on fact or knowledge opinion that, considering the entire record, acquired by reason of the profession of the wit- the error in excluding the testimony mentionDess. The character of the wound inflicted ed was one that requires a reversal of the was not included in the hypothetical question asked. We have held that a physician may judgment. It is so ordered. state as to the probable cause, nature and ef

On Motion for Rehearing. fect of wounds, and the consequences thereof. Branch's Ann. P. C. § 1853. But in a matter HAWKINS, J. The state files a motion for which the jury are as competent to judge as rehearing, citing as the only authority our the witness, we have held it error to permit opinion in this case on a former appeal which the witness to give his opinion. Branch’s Ann. is reported in 88 Tex. Cr. R. 269, 225 S. W. P. C. § 131."

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:

propounded upon the instant trial and in the

former. "And a surgeon is admissible to prove the

The motion is overruled. 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

WINDHAM v. STATE. (No. 7073.) certain piece of iron piping, which was described in the testimony. The state's counsel| (Court of Criminal Appeals of Texas. Dec. 13, propounded to the medical man this question:

1922. Rehearing Denied Feb. "Would such an instrument in the hands of

21, 1923.) a man of ordinary strength, used as a bludgeon, 1. Criminal law Sa 473, 476 Physician de produce the wounds you have described and be

scribing wound may express opinion as to likely to cause death?”

probable cause, nature, and effect. Objection was úrged by the defendant upon

A physician who has examined and dethe ground that the point was one upon which scribed a wound may express an opinion as to

the probable cause, nature, and effect thereof. the opinion of an expert was not competent. The evidence is held admissible. The action 2. Criminal law cm 1169(9)-Admission of con. of the trial court in overruling this objection clusion as to fact proved by other testimony was sustained on appeal in the case in which

not reversible error. the death penalty was assessed and affirmed In a prosecution for assault with intent to under the authorities cited. See State v. Mor- murder, admission of testimony that when the · phy, 33 Iowa, 270, 11 Am. Rep. 122; State witness picked up the victim "he was in such v. Porter, 34 Iowa, 131; Page v. State, 61 an addled condition he couldn't get up,held not Ala. 16; Rash v. State, 61 Ala. 90; Ebos v. mony, without objection, to the same effect.

ground for reversal, in view of other testiState, 34 Ark. 520 ; Shelton v. State, 34 Tex. 662. A like ruling was made in Banks y.

3. Criminal law 784(1)-Witness' nonrecState, 13 Tex. App. 182; Powell v. State, 13

ognition of party assaulted at moment of

blow held not to require charge on circumTex. App. 244; Lovelady v. State, 14 Tex.

stantial evidence. App. 560; Kirk v. State (Tex. Cr. App.) 37 S. W. 440; Hardin v. State, 51 Tex. Cr. R. murder, the fact that a witness who identified

In a prosecution for assault with intent to 562, 103 S. W. 401; Betts v. State, 60 Tex. defendant as the assailant did not recognize the Cr. R. 634, 133 S. W. 251; Streight v. State, injured party, with whom he was also acquaint62 Tex. Cr. R. 453, 138 S. W. 742; Spates v. ed, at the moment of the blow held not to reState, 62 Tes. Cr. R. 532, 138 S. W. 393; and Iquire a charge on circumstantial evidence.

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

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4. Assault and battery 92-Conclusion that the skull was fractured, and I believed it was injury was serious held warranted.

at the time. I suppose that the wound was Where defendant was convicted of aggra- something like an inch and a half long, it was a vated assault, evidence held sufficient to war- little diagonal one way, but it was lacerated to rant the jury's conclusion that the injury was the skull. I continued to treat him, and attendserious.

ed him every day for a week or more, maybe a

month." 5. Criminal law em 1159(1) Jury's assess.

ment of penalty for aggravated assault within [1] Objection to that part of the testimony statutory limitations not disturbed.

which is italicized was urged for the reaWhere the evidence is sufficient to support son that it was a conclusion of the witness, the jury's finding that the injury was serious, and not a statement of the facts, and led the and to show accused's guilt of aggravated as- jury to believe that the injured party had sault, the assessment of the penalty, within received a fractured skull. We understand the statutory limitations, is for the jury, whose that a physician who was examined and deverdict will not ordinarily be disturbed where scribed the wound may express an opinion the conviction is legal and the punishment within the terms of the statute.

as to the probable cause, nature, and effect

of the wound, and the consequences thereOn Motion for Rehearing,

of, without violating the rules of evidence.

Branch's Ann. Tex. Penal Code, 1853; 1 6. Criminal law Om 473Physician's testimony Wharton's Crim. Evidence, p. 839; Waite that he thought assaulted party's skull was

V. State, 13 Tex. App. 180; Shelton v. State, fractured held admissible.

34 Tex. 662; Tolston v. State, 88 Tex. Cr. In a prosecution for assault with intent to R. 269, 225 S. W. 1098; Tolston v. State (No. murder, testimony of a skilled physician, who

The made a thorough and complete examination of 6962) 248 S. W. 50, recently decided. the victim's wound, that “I thought at the testimony complained of apparently was time the skull was fractured,” held admissi- well within the scope of the law permitting ble.

an expert witness to state his opinion. His

testimony was not an opinion of the class 7. Criminal law 456 Witness' testimony

involved in the case of Cooper v. State, 23 that party assaulted was "addled" when

Tex. 335. In that case the witness was perpicked up held admissible.

mitted to state his opinion as to whether or In a prosecution for assault with intent to murder, a witness' testimony that when he not the person who shot the deceased was picked up the injured party "he was in such an

on horseback or some other elevation. That addled condition he couldn't get up” held admis character of opinion has often been rejected. sible; the word “addled” having a well-defined a list of cases is found in 1 Rose's Notes on meaning, such as stupid, muddled, foolish, etc. 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.

[2] Bill No. 3 complains that, while the

witness Thomasson was testifying, state's J. W. Windham was convicted of aggravat

counsel propounded this question: ed assault, and he appeals. Affirmed.

"Q. After you picked him up, what did you Joe Farrow, of Anson, Stinson, Coombes & do with him, hold him or lay him down, or Brooks, of Abilene, and J. E. Robinson, of what? A. Well, he didn't-he was in such an Anson, for appellant.

addled condition he couldn't get up." Thomas & Pope, of Anson, and R. G. Storey, Asst. Atty. Gen., for the State,

The objection urged was that the question was leading, and the answer was a conclu

sion, causing the jury to conclude that the MORROW, P. J. Charged with assault

wound received was more serious than the with intent to murder, appellant was con. facts justified. The antecedent evidence ilvicted of aggravated assault; punishment fixed at a fine of $500 and confinement in lustrative of the ruling complained of is the county jail for a period of two years. facts, it appears that Dr. Arwood testified,

not set out. Looking to the statement of The injured party was C. C. Ball.

without objection, that he was at the church Dr. Arwood, a physician of thirty-five years' practice, saw Ball immediately after or meeting when the assault took place; that

he heard somebody say that Ball was hurthe received the injury. He said:

that somebody had knocked him in the head ; "The wound was on the back part of the that he went to the place and found Ball skull, a little to the right of the spinal column, standing close to the door. He was on his where the head and spinal column join.. The feet; somebody had helped him up, and was wound was bleeding, and I dressed it. It was my diagrosis that he was struck with an in- holding him. The witness said: strument of some kind. I don't know what "I examined his head and found a wound. I kind, but it cut a pretty deep gash. When I told them to take him up to the office as quick dressed the wound 1 shaved the hair oss, and as they could get him there, and they carried found it cut to the skull. I thought at the time I him up to the house, and I dressed the wound."

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