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(248 S.W.) The witness Ball testified that, after the The witness Ruda Thompson was acquaintappellant struck him, for a few seconds, ed with both parties. He said: though he did not know how long, he turned

"I got in the car and we started to back blind and fell, but that he did not know what around and got the lights almost on the north occurred next after he had fallen; that the door of the church house, and then I saw anfirst he did know or remember was that other figure, and then I saw the motion of the when Thomasson came to him he held him up hand, and that one fall, and then that other and helped him; that after a short time he figure run-went around the northwest corner went home. Thomasson testified that he of the house. The man that fell, I think, he came out of the church and saw Ball lying was on the step of the north door. The man at the steps ; that he went to him. The wit- that ran went to the northwest corner of the

building. I could not, from where I was, recness said:

ognize either of the parties, the one that fell "I picked bim up. He was in such an addled or the one that ran; I could just tell it was two condition he could not get up."

figures." It is claimed by the state that the expres By direct evidence it was shown that both sion, "he was addled," would come within Ball and appellant were present at the the exception to the rule excluding opinion church when the assault took place; that testimony which allows the receipt of evi- appellant stepped out immediately in front dence which is but a shorthand rendition of of another man, allowed the man to pass him, facts or which is merely descriptive of the and as he did so struck him and ran; that appearances. A list of cases on this subject the man who was struck fell at once, and a is found in Branch's Ann. Tex. Penal Code, moment later was identified as Ball. The

123. Under these rules it has been held only matter left for inference is the identity permissible to say that "he was mad” (Owen of the man whom appellant struck. Would V. State, 52 Tex. Cr. R. 69, 105 S. W. 513); the fact that at the moment of the blow the "he was excited” (Miller v. State, 18 Tex. witness who identified appellant as the asApp. 259); "he was drunk" (Stewart v. State, sailant did not recognize the injured party, 38 Tex. Cr. R. 627, 44 S. W. 505). Whether require a charge on the law of circumthe state's contention is accurate or not we stantial evidence? The facts are somewhat deem unimportant, in view of the other tes- similar to those related in Holt's Case, 9 timony coming without objection, which con-Tex. App. 582. Holt was seen to approach veyed to the jury the same information as a house occupied alone by Beard. An in was conveyed by the answer of the witness start later shots were fired in the house, complained of. Ball's testimony that he a moment after which Holt came out of the turned blind, and did not remember what house; witnesses entered the house and occurredthe doctor's testimony that they found Beard dead from recent gunshot were holding him up, that upon his orders wounds. This was held, strictly speaking, Ball was carried to his office, and other facts not a case of circumstantial evidence, though which have been adverted to above, bring the no one saw the accused or deceased at the matter within the rule that the introduction immediate time. Following Holt's Case, it of improper evidence ordinarily does not re has been said on several occasions that the quire a reversal where the same fact is prov- facts proven may be in such close juxtaposied without objection. Upon this subject see tion to the main fact to be established as to Rogers v. State, 26 Tex. App. 404, 9 S. W. be equivalent to direct testimony. Branch's 762; Wagner v. State, 53 Tex. Cr. R. 306, Ann. Tex. Penal Code, § 1874. These cases 109 S. W. 169; Charles v. State, 85. Tex. Cr. are listed in Anderson's Case, 85 Tex. Cr. R. R. 534, 213 S. W. 266.

411, 213 S. W. 639, and attention is directed [3] The refusal of the court to charge on

to the fact that some of them do not illus. the law of circumstantial evidence is made trate the rule stated, for the reason that in the subject of complaint. The appellant and them there was direct evidence of the main Ball were at a gathering at a church in the facts. Apparently, in the instant case there nighttime.' Ball was struck just after he is direct evidence that the appellant struck left the church.

A number of people, in- | the blow that injured Ball. If that be quescluding appellant, were present. He testified tionable, however, it seems manifest that the and denied the assault. The witness Bau- principle announced in Holt's Case, supra, cum, who knew both the appellant and Ball, controls, and that the court was not in error said that he was standing near the door of in refusing to charge on circumstantial evithe church, and a man whom he did not rec- dence. ognize passed out; that appellant stepped [4, 5] From the testimony of both the docout behind the man, and struck him, and the tor and the injured party, the jury was warman fell. The witness had a child in his ranted in concluding that the injury was arms, and took several steps away, and on

serious. From the testimony of the doctor returning found that Ball had been struck. it appears that the injured party was conOn the trial he said: "I recognized the man

fined to his bed for a week or more, and that who struck Bal and ran; it was Mr. Wind- for 3 weeks or a month he was not able to

do anything, though he was out of bed. Dur

ham."

one.

ing the entire time the doctor treated him. , reflected in the bill of exceptions, had made He also testified that, from his examination a thorough and complete examination of the of the wound, he considered it a dangerous wound. This would appear to be customary

Ball testified that he was in bed for in such cases, and there is nothing in the about 10 days; that he became unconscious bill of exceptions showing to the contrary. and turned blind immediately after receiv- If a physician examines a wound upon the ing the blow; that he did not know when he head, and states that in his opinion the fell; that he did not regain consciousness skull was fractured, it is clear there could until help reached him; that at the time of be no objection to his stating such fact. the trial he still suffered pain at times from This witness did state that when he examthe injury. There being sufficient evidence ined the head of the injured party he to support the finding to the jury that the thought at the time that the skull was fracinjury was serious, and to show the guilt tured. The bill of exceptions does not show of the accused, the assessment of the penal- that appellant was denied any right to crossty, within the statutory limitations, is left examine said witness to ascertain that his by law to the jury. As expressing the views examination of the patient was not thorough, of this court in the instant case, we take and that his situation was such that he was the following quotation from a recent deci- not able to give the testimony objected to. sion:

[7] Appellant's other contention is that the "It was said by this court in Teague v. State, 4 witness who picked the injured party up at Texas Crim. App. 147, in which a verdict of one the time he was struck on the head was alyear's imprisonment and $800 fine was rendered lowed to say that he was so addled that he in a case of aggravated assault: "The law having could not get up. The use of the word “adprescribed the bounds to which and beyond dled" seems to be the principal ground of obwhich the jury may or may not go in affixing jection. We see nothing in this contention. the punishment, and having also charged juries That a witness might state that a party with this duty of affixing the punishment, with whom he picked up was drunk, or unin the limits prescribed, we do not feel war-conscious, or sick would seem well within ranted in disturbing a verdict on these grounds the rules. The word “addled” is a word of as set out in the motion. To do so would be established usage, and, while not as comto usurp the powers confided to the jury, unless in a clear case of abuse of their powers.

mon as those just mentioned, has a well-deThe same view is expressed in Smith fined meaning, such as stupid, muddled, foolv. State, 7 Texas Crim. App. 414; Handy v. ish, etc. State, 46 Texas Crim. Rep. 407; and numerous We regret our inability to agree with the others. See Harris' Texas Constitution, p. earnest insistence of appellant in either of 115. The instances in which the court has felt the matters complained of. authorized to depart from this rule are rare The motion for rehearing will be overrulod. and the conditions extreme. Generally speaking, where the conviction is legal and the punishment within the terms of the statute, its modifications are left by the court to the executive department, in which there is vested authority to diminish the punishment without

HARRIS V. STATE. (No. 6948.) overturning the conviction, an authority not (Court of Criminal Appeals of Texas. Jan. 31, possessed by the courts." Wagner v. State,

1923.) 87 Tex. Cr. R. 48, 219 S. W. 472.

1. Criminal law Om 1092(14), 1120(8)-ObjecWe find nothing in the record to warrant tion to opinion testimony not reviewable

where not shown in what manner witness a reversal of the judgment. It is therefore

lacked knowledge, and where there was no affirmed,

certification by trial court,

A bill of exceptions to the court's ruling on On Motion for Rehearing.

a motion to strike testimony that liquor found LATTIMORE, J. [6] Appellant makes two was whisky, “because said witness did not contentions. He insists that we erred in have a sufficient amount of information to enholding admissible the testimony of Dr. Ar- title him to give an opinion upon the subject,” wood that, when he dressed the wound of held not to warrant consideration where it did the injured party, he shaved the hair off his not set out in what manner the witness lacked

information, and the ground of objection stated head and found the scalp cut to the skull; did not amount to a certification of the trial that said witness was permitted to testify court that the witness was without knowledge as follows: "I thought at the time the skull in the matter. was fractured, and I believed it was at the 2. Criminal law aw1170(1)-Refusal to require time.” We have been unable to arrive at a

sheriff to state upon whose information a different conclusion regarding this matter

search warrant was secured held not rever. than as expressed in our original opinion. sible error. The witness was a physician versed and Refusal of the trial court to require the skilled in his profession, and as far as is ) sheriff to state upon whose information it was

or

(248 S.W.) that the officers acted in securing a search war-1 HAWKINS, J. Conviction is for the rant for his premises held not reversible error | manufacture of intoxicating liquor, with in the absence of any showing that such in; punishment assessed at three years' confineformation would have been in any way helpful ment in the penitentiary. to accused, who offered no testimony.

The third count in the indictment, being 3. Criminal law e393(1,2)-Evidence of the only one submitted to the jury, alleged search and seizure of still and introduction that appellant about July 28, 1921, unlawof apparatus in evidence held not scheme to fully manufactured spirituous, vinous, and make defendant testify against himself.

malt intoxicating liquor capable of producing Evidence of a search and seizure of a still intoxication, not for medicinal, mechanical, and introduction of the apparatus in evidence

scientific, sacramental purposes. The held not to constitute "a scheme to make defendant testify against himself," and warrant indictment is in conformity with the law in exclusion thereof.

effect at the time of the alleged commission

of the offense. Attack is made upon the 4. Removal of causes mi-Transfer of liquor | indictment on the ground that the law under prosecution to føderal court held unwar which it is drawn is unconstitutional, and ranted.

A motion for the transfer of a prosecution that it does not conform to the amendment for liquor law violation to the federal court be- to the Constitution of the United States and cause the affidavit for search warrant was made of the Volstead Act passed by Congress out in the federal court, because the federal (41 Stat. 305), placing the same in effect. court had concurrent jurisdiction, because the These questions were all decided adversely to federal prohibition law was more lenient and appellant in Ex parte Gilmore, 88 Tex. Cr. just than the state law, because the state law R. 529, 228 S. W. 199, and have been so was alleged to be null and void, held not to frequently reaffirmed we deem it unnecessary state any ground authorizing such a transfer.

to cite the cases, except two of Clyde Chand5. Criminal law 488-Doctor's testimony ler v. State, 89 Tex. Cr. R. 308, 232 S. W. that he had tested liquor, and found it to 336, and 89 Tex. Cr. R. 599, 232 S. W. 337, contain 50 per cent, alcohol, held admissible. and two of John Chandler v. State, 89 Tex.

Testimony by a doctor, who stated that he Cr. R. 306, 232 S. W. 317, and 89 Tex. Cr. had tested liquor in question with an instru- R. 308, 232 S. W. 336. The same contentions ment known as an "alcoholometer," and found that it contained 50 per cent. alcohol, held ad- urged here by appellant were relied on in the

four cases (supra), and, this court having missible.

failed to uphold them, writs of error to the 6. Criminal law w 1038(1), 1092(6)-Instruc- Supreme Court of the United States were tion not considered, where bill of exceptions applied for and granted; that court on filed late, and there was no written objection,

January 8, 1923, dismissed said cases, deWhere it does not appear that any written objection was filed to the giving of an instruc- clining to consider the questions therein tion, as required by Code Cr. Proc. 1911, art. raised. 735, and the bill of exceptions was not filed The officers secured a search warrant and until long after adjournment of the court, it proceeded to the premises of appellant, where is not entitled to consideration on appeal. they found a still being operated by him, 7. Intoxicating liquors 224 Instruction together with about 30 gallons of mash. The placing burden on defendant to show liquor complete equipment is described in detail in manufactured for proper purpose held not the evidence. It is not necessary to burden error.

the record with a description of it here. It An instruction placing upon defendant the was not only shown that the still could be burden of proving that liquor was manufactured so connected as to manufacture whisky, but for medicinal, mechanical, scientific, or sacra- it was actually connected up and in operation mental purposes held not error.

at the time the officers found it. The equip8. Criminal law 826_Requested instruc- ment in question was introduced in 'evidence. tions must be presented at time of trial and The testimony was amply sufficient to authorbefore main charge.

ize conviction. Requested instructions must be presented

Appellant filed a motion seeking the return to the court at the time of trial, and before of the property found by the officers; he also the main charge is read to the jury.

objected to the 'testimony as to what they Appeal from District Court, Harrison found at appellant's premises, and in various County; P. O. Beard, Judge.

ways raised questions as to the regularity

and sufficiency of the search warrant. These Johnnie Harris was convicted of manu- questions are not discussed at length, as facturing intoxicating liquor, and he appeals. they all pass out of the case under authority Affirmed.

of Welchek v. State (No. 7136) 247 S. W. 524 H. T. Lyttleton and Hobart Key, both of (opinion delivered November 22, 1922 ; motion Marshall, for appellant.

for rehearing overruled January 17, 1923). W. A. Keeling, Atty. Gen., and C. L. Stone, [1] The sheriff testified that the liquor he Asst. Atty. Gen., for the State.

found appellant manufacturing was whisky. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

It appears by bill of exception No. 6 that "First. Because the affidavit for search warappellant moved to strike this testimony rant was made out for the federal court. Secfrom the record “because the said witness (ond. Because the federal court bas concurrent did not have a sufficient amount of informa- jurisdiction with this court in the trial of such tion to entitle him to give an opinion upon law is more lenient and just than the state law

cases. Third. Because the federal prohibition the subject." The bill is entirely insufficient

upon the subject. Fourth. Because the Texas for this court to consider it. It does not state prohibition law is null and void. (A) It undertake to set out in what manner the administers excessive and cruel punishment; witness lacked information, and the ground (B) It is in conflict with the federal Constituof objection stated in the bill would not tion and law upon the same subject, which is amount to a certificate from the trial judge the supreme law of the land." that the witness was without knowledge as

We know of no authority authorizing the to the matter. See section 209, Branch's transfer of a criminal case from a state court Ann. Pen. Code, p. 134. An examination of to a federal court upon any of the grounds the statement of facts reveals that the objec presented in the bill. tion stated in the bill is entirely without

[5] No error was committed by the court in support.

refusing to strike out the testimony of Dr. [2] It appears from bill of exception No. 7 Dunn, who testified that he had tested the that appellant sought to elicit from the liquor in question, using an instrument sheriff the name of the party upon whose known as an "alcoholometer," "and found information the officers acted in securing the therefrom that the liquor found by the search warrant. The trial court declined to officers contained 50 per cent. of alcohol." compel the sheriff to divulge such informa- The state having shown by other witnesses tion, and appellant presents this as error. that the liquor was whisky was sufficient to Facts might be made to appear in some support the allegation in the indictment, even instance which would present such denial in the absence of Dr. Dunn's testimony; but, on the court's part as error, but this has not if this were not so, we find no ground which been done in the bill of exception before us. would have authorized the court to have Appellant did not testify upon the trial, and withdrawn this testimony from the jury. offered no evidence of any character, evident

[6, 7] The court charged the jury, if they ly basing his defense upon the contention that believed from the evidence beyond a reasonthe officers were acting under an unauthor-able doubt that appellant unlawfully manuized search warrant, and therefore that the factured spirituous, vinous, and malt intoxifacts discovered by them thereunder were cating liquor capable of producing intoxicanot receivable in evidence. No fact is made tion, to wit, whisky, that they would convict to appear in the bill which would indicate appellant. At the instance of the state he that it would have been in any way helpful gave a special charge as follows: to appellant to have required the sheriff to

"You are instructed that our statute propublicly make known the name of the party vides that it is unlawful for any person to manupon whose information he acted which re-ufacture intoxicating liquors not for medicinal, sulted in the discovering of appellant's viola- mechanical, scientific, or sacramental purpostion of the law..

es, and you are further instructed that the [3] Appellant filed a motion asking the burden of proving that intoxicating liquors were court to exclude all the testimony developed manufactured for such purposes (if any intoxiin the case because “the same was a scheme cating liquor was manufactured) rests upon de

fendant." to make defendant testify against himself.” We have been unable to appraise the force of Appellant presents what purports to be this contention. No testimony was offered the reservation of an exception to the giving through the state's witnesses as to anything of this special charge. It nowhere appears appellant said at the time they discovered | in the record that any written objection was him operating the still, and we cannot under-filed thereto at the time of the trial, and the stand by what course of reasoning the evi- bill presented for our consideration was not dence of the oflicers as to what they found, filed until March 10, 1922, long after adjournand the introduction of the apparatus in ment of court. As presented the bill is not evidence, can be made the basis of a claim entitled to consideration, but, even if it were, that appellant was compelled to give evidence we find no error in the special charge. It is against himself. By the same course of in conformity with the holding of this court reasoning a party charged with the theft of in Roberts v. State, 90 Tex. Cr. R. 133, 234 property found in his possession could ex- S. W. 89, and Shaddix v. State, 90 Tex. Cr. clude the testimony as to such finding and R. 431, 235 S. W. 602, which rule has been the exhibition of the stolen property in court consistently followed since the announcement. upon the trial.

Bill No. 16 purports to be an exception to [4] Appellant made a motion during the the court's charge. It is rowhere stated in trial that this case be transferred to the the bill that appellant filed any written objecJefferson division of the federal court of the tion to the charge as required by article 735, Eastern district of Teras for the following C. C. P., and no such written objection

(248 S.W.) in question was filed March 10, 1922, long Action by G. K. Morris and another against after adjournment of court, and, in the the St. Louis, Brownsville & Mexico Railabsence of a showing in the bill over the way Company and another. From a judgsignature of the trial judge that the matters ment for plaintiff, defendant named appeals. now complained of were objected to in writ- Affirmed. ing, we would be precluded from a consideration thereof; however, the matters conplain

D. F. Strickland, of Mission, and E. H. ed of in the court's charge appear to us to be Crenshaw, Jr.; of Kingsville, for appellant. unobjectionable.

Gause & Kirkpatrick, of Mercedes, for ap[8] We find in the record five special pellees. charges requested by appellant, all of which are marked "refused." There also appear COBBS, J. Appellees sued the appellant five bills of exception to the refusal of the and the Gulf, Texas & Western Railway Comcourt to give the charges requested, but pany for damages to a shipment of furniture neither in a notation upon the charges them- delivered by them to the Gulf, Texas & Westselves over the judge's signature, nor in the ern Railway Company at Megargel, Tex., bills presenting the matter for review, is it consigned to them at Donna, Tex. There was stated that these charges were presented to no pleading filed by the Gulf, Texas & Westthe trial court at the time of the trial, and ern Railway Company, and it was dismissed before the main charge was read to the jury. by appellee without any objection. The case We examined the special charges before dis- was tried by the court upon an agreed statecovering the defect pointed out, and believe ment of facts, and the court rendered judgthe court properly declined all of them.

ment in favor of appellees for the sum of Finding no error in the record, the judg- $500. ment is affirmed.

Said railroad companies were connecting common carriers of freight and passengers, organized and operating its lines under the

laws of Texas. Appellees properly boxed and ST. LOUIS, B. & M. RY. CO. V. MORRIS

crated their household goods and personal et al. (No, 6871.)

effects, and delivered same to the Gulf, Texas (Court of Civil Appeals of Texas. San Anto- & Western Railway Company on its platform nio. Jan. 31, 1923. Rehearing Denied at Megargel, Tex., to be transported by it Feb. 21, 1923.)

and over its connecting line to the city of

Donna, in Hidalgo county, to be delivered 1. Dismissal and nonsuit 26-Dismissal of initial carrier sued jointly with another held there to appellees, appellees agreeing to pay, not error when not served and not appearing and did pay, the freight charges for said haul and not pleaded into court by the other. at Donna, Tex. The Gulf, Texas & Western

Though connecting carriers were sued joint- Railway Company accepted said goods, which ly for damages to a shipment, it was not error at the time of their delivery were in good to dismiss the initial carrier where it was not condition, for the purpose of transporting the serred with process and did not appear and an same to Donna, issued and delivered to the swer, and there was no pleading of the other appellees a regular through bill of lading, carrier to hold it in court.

consigning said goods to appellees at Donna, 2. Appeal and error 189(3)-Exception on Tex., which was a valid and binding contract, appeal to dismissal of party held too late.

for the safe transportation and delivery of An exception to the dismissal of defendant said goods from Megargel to Donna. The jointly sued with another comes too late when said initial carrier delivered the goods to a first taken on appeal.

connecting carrier at Fort Worth, who in 3. Carriers om 177(1)--Constitutional law end turn transported the same to the connecting 249, 305-Statute allowing suit against either point on the lines of appellant company, who or all connecting carriers held constitutional. accepted them upon the consideration and

Rev. Civ. St. art. 732, authorizing suits for terms as set out in the original bill of lading, damage to or loss of freight sustained anywhere over connecting lines, as defined in article 731, and delivered same to appellees in Donna in against either or all connecting carriers, and the damaged condition they were found in under which as to suits brought thereunder when recovered by appellant. The damages article 1830, subd. 25, allowing apportionment occurred to the goods while in the possession of damages, is not applicable except at plain- of the Gulf, Texas & Western Railway Conrtiff's request, is not unconstitutional as denying pany, by being allowed to remain on its plateither the carrier sued or any other any right, form at its depot at Megargel for a period of or depriving it of due process of law or equal about three weeks, being exposed to two big protection guaranteed by Const. U. S. Amend. 14, § 1, and Const. Tex. art. 1, $ 19.

rains, which negligence was the direct and

proximate cause of the damages. No part of Appeal from Hidalgo County Court; Geo. the damages occurred while in the possession

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

P. Brown, Judge.

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