acquittal or conviction. The court did not adjudicate this matter in a judgment. We are of opinion that under the authority of Hooper v. State, 42 S. W. 398, Wright v. State, 35 Tex. Cr. R. 158, 32 S. W. 701, and Woodward v. State, 42 Tex. Cr. R. 200, 58 S. W. 135, the adjudication by the court was necessary. The plea of jeopardy was not submitted to the jury, but decided by the court adversely to the defendant. If the question of jeopardy arises upon another trial, it should be governed by the decisions above mentioned. and is here urged, that on the first trial appellant was acquitted of the incest by the conviction for the rape under the circumstances already stated. This proposition is sound under all of our authorities. There is a kindred proposition that may also be asserted that, where an indictment contains two counts, and the appellant had pleaded to the indictment containing the two counts, and after such plea and impanelment of the jury either is dismissed or abandoned by the state, and he is tried upon the remaining count or counts, as to those dismissed he The judgment is reversed, and the cause cannot be again tried. There are a great remanded. number of authorities bearing upon this proposition. See Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742. In that case the defendant was convicted upon an indictment charging rape in one count and incest in another; the conviction being for rape. The second count having been ignored, the said indict (Court of Criminal Appeals of Texas. April 24, ment could not be used to predicate a sub 1918.) sequent prosecution for incest. That case is 1. CRIMINAL LAW 878(3)-VERDICT-SEV- in line with the authorities on the question, ERAL COUNTS. Where accused was tried under counts for rape and incest, and both were submitted to the jury, which affirmatively found the defendant guilty of rape, and disregarded the charge as to incest, there was an acquittal on the charge of incest, and where the conviction of rape was reversed, he could not be convicted of incest on a second trial. 2. CRIMINAL LAW 180-FORMER JEOPARDY -ABANDONMENT OF COUNT. Where an indictment contains two counts, and defendant pleads to the indictment, and after such plea and impanelment of jury a count is dismissed or abandoned by the state, and he is tried on remaining count, he cannot again be tried on count so dismissed or abandoned. Appeal from District Court, Angelina County; L. D. Guinn, Judge. George Mizell was convicted of incest, and he appeals. Reversed and remanded. Mantooth & Collins, of Lufkin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. This conviction was for incest. The history of the case and the questions involved for decision may be briefly stated as follows: An indictment was preferred against appellant containing appellant containing two counts, one for rape, and the other for incest. There was a trial before a jury on both counts; the jury convicting under the count charging rape. From this conviction an appeal was prosecuted, and this court reversed the judgment; the case being reported in 197 S. W. 300. In that trial both counts were submitted to the jury by the charge of the court, and the jury specifically found for the state on the count charging rape. Upon the last trial the count as to rape was dismissed, and appellant was tried upon the incest count. [1, 2] The contention was in the trial court, See, also, Betts v. State, 60 Tex. Cr. R. 631, 133 S. W. 251; Millner v. State, 75 Tex. Cr. R. 22, 169 S. W. 899; Hewitt v. State, 74 Tex. Cr. R. 46, 167 S. W. 40; Elliott v. State, 49 Tex. Cr. R. 435, 93 S. W. 742; Parks v. State, 46 Tex. Cr. R. 100, 79 S. W. 301; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45; Hooton v. State, 53 Tex. Cr. R. 6, 108 S. W. 651; Jolly v. United States, 170 U. S. 402, 18 Sup. Ct. 624, 42 L. Ed. 1085; Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Cox v. State, 63 Fla. 12, 58 South. 49; People v. Weil, 243 Ill. 208, 90 N. E. 731, 134 Am. St. Rep. 357: Ford v. State, 79 Neb. 309, 112 N. W. 606; State v. McAnally, 105 Mo: App. 333, 79 S. W. 992; State v. Maurer, 96 Mo. App. 347, 70 S. W. 264; Parish v. State, 130 Ala. 92, 30 South. 474; Smith v. State, 40 Fla. 203, 23 South. 854; Morris v. State, 1 Blackf. (Ind.) 37; Short v. State, 63 Ind. 376; Dickinson v. State, 70 Ind. 247; Lamphier v. State, 70 Ind. 317; Stuart v. Commonwealth, 28 Grat. (Va.) 950; Bigcraft v. People, 30 Colo. 298, 70 Pac. 417; Beaty v. State, 82 Ind. 228; Johnson v. Commonwealth, 102 Va. 927, 46 S. E. 789. It is not the purpose of this opinion to go any farther into a review of this question. Appellant's position is correct. Under the first trial of the case appellant was acquitted of the charge of incest. The conviction for the rape under the peculiar facts and circumstances of this case was an acquittal of the incest, as the jury passed upon both necessarily in order to reach a conclusion in their verdict on the first trial. The judgment will be reversed, and the cause remanded. PRENDERGAST, J., absent. For other cases see same topic and KEY-NUMBER in all Key-Numbered D'gests and Indexes 203 S.W.-4 MORROW, J. This is a conviction for the offense of burglary of a private residence at nighttime. The evidence shows without contradiction that the private residence of Hiram Hunt was burglarized on the night. of about April 4, 1917, and that the property taken therefrom was two bedspreads and three pillows. These articles were found soon thereafter in possession of Ethel Robinson, a negro girl. It was her testimony alone upon which the state relies to connect the appellant with the offense. She appears to have been sick at the time from a malady affecting her leg, and shortly after the occurrence had gone to Oklahoma, where her leg was amputated. She had also been on the poor farm for some offense which is not named. She testified that she had seen the defendant prior to the time the offense was committed, but that she had never had any transaction with him; that he had never been to her house; and that she had never been with him at any place except upon the occasion described in her testimony; that on the night of the offense she was asleep and was sick; that staying at the house was a negro man about 23 or 24 years of age called "Peaches"; that she woke up and found "Peaches" standing near her bed; that the window was open and appellant was near the window outside the house; that when she woke up "Peaches" called her and said there were some things for her, and she looked and saw the things. She asked where he got them, and he said, "Mr. Dick, or somebody, gave them to him." At that time "Peaches," the negro man, was standing by her bed and the other man was out by the window about two steps away. That she spoke to the man at the window, appellant, and asked him where he got those goods, and "he said another man gave them to him to hold for him. And I said, 'Who was he?' and he said he didn't know who it was. 'I don't know who it was, but somebody walked around the corner of my house; I don't know who it was.' And he said, 'If anybody comes here asking for those things, you give them to him; if they don't, you just keep them.' The defendant said that." State's counsel asked this question: "Is this defendant the man who left those things there? A. No, sir; he didn't leave them with me; this colored boy, he gave them to me." State's counsel stated that he was surprised at the witness' testimony, and asked permission to impeach her or lay a predicate therefor by making an inquiry as to her testimony before the grand jury. The court granted this. The district attorney stated, in this connection, that the witness had made an entirely different statement on the stand from that made by her in the grand jury room; that her statement was an entire surprise and nothing like her former statement. The court having given permission to lay the predicate, the district attorney asked this question: "I will ask you if you didn't testify in the grand jury room that this man brought those things there and. gave them to you and told you that he got them from a negro? A. No, sir; I didn't tell you that he gave them to me.' Another question: "Didn't you tell me that this morning in my office in the presence of Mr. Young? A. No, sir; I didn't say that." In this connection the district attorney asked her if she was not on the poor farm and if appellant did not go out and pay her fine and get her. She replied that he did come out there, but that her father gave him the money to pay the fine. On crossexamination she said that the negro Fred Loveless, called "Peaches," had gone soon after the burglary, and she had not seen him since; she was informed that he stayed a week or two before leaving. [1] The state's case against appellant rests wholly upon circumstantial evidence. This was recognized in the trial court in an appropriate charge. Summarized, it is that the property recently stolen was found in the possession of the witness Ethel Robinson. She accounted for her possession by her statement that she got it from the negro man called "Peaches," and that he said he got it from appellant, and appellant said he got it from another person, and that she saw another person go around the corner of the house. The rule laid down by Mr. Branch, in his Annotated Texas P. C. § 2346, that a verdict resting upon proof of the possession by the accused of property recently stolen from the burglarized house will not be set aside unless clearly wrong where the other facts in evidence justify the jury in believing that the explanation of possession of the property is untrue, is invoked by the state. It can hardly be said to apply, for defective verdict a waiver of such defect. Where an indictment charges theft of an the reason that the recently stolen property | a defective verdict, make failure to object to a was not found in the possession of appellant. His connection with it rests alone upon the statement of the witness Ethel Robinson to the effect that "Peaches" said he got it from appellant, and that appellant said he got it from some one else. The absence of the witness "Peaches" is a circumstance weakening the state's case, being consistent with the innocence of appellant and the guilt of another, who was proved in possession of the stolen goods. If he fled, as is intimated, and cannot be produced as a witness, his flight would tend to support the presumption of innocence with which the law surrounds the appellant. If he did not flee, the failure of the state to produce him as a witness is to the same effect. If the rule of the possession of recently stolen property would be extended to apply to the appellant by reason of his statement that he had gotten the things from another man, it would rest upon the state to disprove the truth, of his explanation of his possession. Ross v. State, 16 Tex. App. 559; Oliver v. State, 69 Tex. Cr. R. 263, 153 S. W. 309. On this point the state's witness declares, in connection with her assertion that appellant made the statement that he had gotten the things from another, that she saw another man go around the corner of the house, thus tending by her testimony to corroborate rather than to disprove the explanation which she says that appellant made. [2] Aside from the testimony of Ethel Robinson, there is no evidence tending to connect the appellant with the commission of the offense. He was a white man; he was not shown to have any intimacy with either the witness Ethel Robinson or the negro man called "Peaches," nor are there any circumstances showing a motive for burglarizing the house in order to give the stolen goods to the witness Ethel Robinson, nor any circumstances bringing him in proximity to the burglarized premises. Under the facts we think it would be clearly wrong to sustain the conviction, and that the trial court erred in refusing to grant the motion for a new trial. The judgment of the lower court is reversed, and the cause remanded. PRENDERGAST, J., absent. (83 Tex. Cr. R. 302) MOORE v. STATE. (No. 5005.) (Court of Criminal Appeals of Texas. April 24, 1918.) 1. CRIMINAL LAW 1090(15)-APPEAL-DEFECTIVE VERDICT-EXCEPTIONS. Where an indictment charges theft in one count, and receiving stolen property in another, a general verdict of guilty will support a judgment of guilty under either count, but a verdict of guilty on both counts will not support a judgment of conviction for the theft. County; Richard I. Munroe, Judge. he appeals. Reversed and remanded. J. A. Kibler and Shurtleff & Cummings, all of Waco, and Chas. L. Black, of Austin, for appellant. Jno. B. McNamara, Co. Atty., and D. C. Woods, Asst. Co. Atty., both of Waco, and E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. Appellant was charged by indictment with theft, and in the same indictment, by separate count, with fraudulently receiving stolen property. The facts are sufficient to lead to the conclusion that one Oscar Kimball and the appellant acting together stole an automobile, the property of Templeton. The theft charged was based upon these facts, and the receiving stolen property is alleged to have been from Oscar Kimball, the same person who acted with appellant in the theft. Each of the counts were embraced in the charge; the verdict received is as follows: "We, the jury, find the defendant guilty on both counts and assess his punishment at confinement in the state penitentiary for five years." The court on this verdict entered a judgment declaring appellant guilty of theft and condemning him to confinement in the penitentiary for not less than two nor more than five years. [1, 2] Appellant insists that the verdict does not support the judgment. That the verdict is informal is conceded by the state, but its counsel insists that the failure to call the court's attention to it at the time constitutes a waiver of its defect. We are of Code Cr. Proc. 1911, art. 744, making nec- the opinion that article 744, touching bills of essary a bill of exception to any decision, opin- exception, is not directed to objections to ion, order, or charge that is to be reviewed on the form or substance of a verdict. The appeal, not applying to the form or substance of a verdict, does not, in view of article 773, mak- statute (article 773) puts it within the powing it the duty of the court to refuse to receiveer of the trial judge to direct the correction For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and Kimball acted together in theft of the automobile. If guilty, he is a principal in the theft, and upon another trial, the evidence being in substance the same, the case should be submitted upon the theory that he and Kimball acted together in the theft, and the charge on fraudulently receiving stolen property should be omitted. of an informal verdict, and, we think, places From the state's standpoint the appellant the duty upon him to examine it and determine its sufficiency, and to refuse to receive a defective one. Taylor v. State, 14 Tex. App. 340; Black v. State, 68 S. W. 683, and other cases cited in Vernon's C. C. P. p. 582. The statute (article 837, subd. 9) makes the fact that the verdict is contrary to law a ground for motion for new trial. The judgment is based on the verdict, which must be shown in the judgment entered. C. C. P. art. 853. If the verdict appears insufficient to support the judgment, the matter is fundamental. Cyc. vol. 2, p. 707; Bennett v. Butterworth, 11 How. 669, 13 L. Ed. 859. [3] The indictment contained two separate offenses, theft and fraudulently receiving stolen property. Brown v. State, 15 Tex. App. 581; Gaither v. State, 21 Tex. App. 527, 1 S. W. 456; Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Fernandez v. State, 25 Tex. App. 538, 8 S. W. 667; Street v. State, 39 Tex. Cr. R. 134, 45 S. W. 577; Clark v. State, 194 S. W. 158. In the Brown Case, 15 Tex. App. 581, supra, the court says: "A theft must be perfected before that of receiving stolen property can be perpetrated, and the receiver of the stolen property must be another person than the thief." [4] The verdict in question finds that the appellant took the automobile under circumstances constituting theft. It also finds that another person stole it, and that appellant, after the theft, fraudulently received the property. A general verdict could have been applied to either offense charged in the indictment and supported by the evidence. Rosson v. State, 37 Tex. Cr. R. 87, 38 S. W. 788. The verdict here is not general; it is a specific finding that appellant is guilty of each of the offenses charged. A holding that such a verdict does not support the judgment is made by the Supreme Court of Massachusetts in Commonwealth v. Haskins, 128 Mass. 60, and from which we quote as follows: "By that record it appears that there had been the larceny of a cow, and but one larceny of that cow. The defendants were charged in one count of the indictment with such larceny, and in the second count with having received her knowing her to have been thus stolen. It is certain that the defendants could not be guilty upon both counts, because in law the guilty receiver of stolen goods cannot himself be the thief; nor can the thief be guilty of a crime of receiving stolen goods which he himself has stolen." This is supported by the case of Crawford v. State, 31 Tex. Cr. R. 55, 19 S. W. 766, wherein an indictment was for forgery and uttering the forged instrument, charged in separate counts. The verdict, like that in the present case, was specific in finding guilty of each offense. The court in an opinion reviewing the authorities held the verdict did not support the judgment. Because the verdict does not support the judgment rendered, it is reversed and remanded. PRENDERGAST, J., absent. (83 Tex. Cr. R. 304) KING v. STATE. (No. 5009.) (Court of Criminal Appeals of Texas. April 24, 1918.) 1. BAIL 64-BOND AND RECOGNIZANCETIME FOR FILING. which the trial took place is not a compliance An appeal bond filed during the term at with Code Cr. Proc. 1911, art. 902, requiring a recognizance, when the case is appealed during the term. 2. BAIL 70-APPEAL BOND-APPROVAL BY TRIAL JUDGE. Under Code Cr. Proc. 1911, art. 904, required approval of appeal bond by the sheriff and court trying the case, an appeal bond bearing the approval of the sheriff, but not of trial judge, is insufficient. Appeal from District Court, Gregg County; Daniel Walker, Judge. Joe King was convicted of burglary, and appeals. Appeal dismissed. E. B. Hendricks, Asst. Atty. Gen., for the State. MORROW, J. Conviction is for burglary. The indictment was returned November 28, 1917, the verdict rendered the 4th of December, 1917, the motion for new trial was overruled December 13, 1917, the appeal bond appears dated the 2d day of December, 1917, approved by the sheriff, the 2d day of January, 1918, filed the 3d day of January, 1917, the term of court at which the trial took place adjourned January 5, 1918. These dates are stated in connection with the motion to dismiss the appeal made by the state. We infer that the filing date of the appeal bond is a clerical error. It was probably intended to be January 3, 1918. When one desires a release pending his appeal the law requires him to make a recognizance if his case is appealed during the term at which he is tried. Article 902, C. C. P. Failing to make a recognizance during the term, he may, after the term, be released pending his appeal by the execution of an appeal bond which must be approved by the sheriff and by the court trying the cause. C. C. P. art. 904, Vernon's C. C. P. pp. 873, 874. [1] This court is without jurisdiction to entertain an appeal from a judgment in the absence of compliance with the statutory | it was a bunch of women, horses, or cows"; regulations governing appeals, and has held that they could just see something white up uniformly that an appeal bond filed during there; that he ascertained the next day that the time at which the trial took place was it was a bunch of women and children, and not such compliance. Taylor v. State, 189 S. at least one man, perhaps several more men, W. 142; Bloss v. State, 79 Tex. Cr. R. 617, in the crowd. 187 S. W. 487; Lang v. State, 190 S. W. 146; Gallon v. State, 194 S. W. 1116. [2] Neither is an appeal bond sufficient which fails to bear the approval of both the sheriff and the trial judge. Wells v. State, 68 Tex. Cr. R. 277, 150 S. W. 1163. The bond in this instance bears the approval of the sheriff, but not that of the trial judge, and if filed January 3, 1918, it was during the term at which the trial took place. On the record we have no alternative but to sustain the motion to dismiss the appeal. PRENDERGAST, J., absent. (83 Tex. Cr. R. 347) LUTKER v. STATE. (No. 4982.) LIBEL AND SLANDER 144-ACTIONS-EVI- Evidence that defendant, who was too far away to distinguish whether something "white" on the track "was a bunch of women, horses, or cows," remarked that it was just a bunch of whores following the soldiers, is insufficient to convict defendant of the wanton or malicious slander of two women in the group. The evidence in no way suggests that appellant could see or tell that said two ladies or either of them were in said crowd of men, women, or children, or that he even knew or could tell that they were human beings or were horses or cattle, and there is nothing in the record to show that the remark he made directly or indirectly referred to both or either of said ladies. The testimony by no reasonable or proper construction could be held to have been made by appellant either maliciously or wantonly to apply to either of both of said ladies, It is therefore wholly insufficient to sustain the conviction. The judgment of conviction therefore cannot stand. Reversed and remanded. (83 Tex. Cr. R. 337) ALT v. STATE. (No. 4996.) (Court of Criminal Appeals of Texas. May 1, 1918.) 1. PERJURY 25(3)-BEFORE GRAND JURY INDICTMENT-SUFFICIENCY. An indictment for perjury committed before the grand jury, alleging that after defendant had been duly sworn it became and was a material inquiry before said grand jury, and Appeal from Johnson County Court; B. necessary for the due administration of the Jay Jackson, Judge. criminal laws of the state and for the ends of public justice, to wit, whether said W. D. A. H. W. Lutker was convicted of slander, and cashed a certain check for and signed by N. A., he appeals. Reversed and remanded. J. K. Russell, of Cleburne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. PRENDERGAST, J. Appellant was convicted of slander and fined $100. said check being of a certain tenor, and wheth- Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge. The complaint and information alleged that on November 10th he falsely and maliciously and falsely and wantonly orally imputed to Mrs. Ballew and Mrs. Conner and divers other females, married and unmarried, a want of chastity, in that, in the presence and hearing of B. D. Currie he said of and concerning said females that they were nothing but whores following the soldiers. The uncontradicted testimony shows that on said date some soldiers stopped at a stockpen in Cleburne to water their stock; that appellant and Currie were working together in the Santa Fé railroad yards. Currie swore they saw some soldiers coming down the track and saw something "white" coming. Currie said to appellant, "What is that white coming down the track?" Appellant replied that it was just a bunch of whores following the soldiers. Currie further swore that whoever or whatever it was white which they saw they were at such a great distance from them that he [1] The indictment alleges this perjury could not tell who or what it was; "whether was committed before a grand jury in Dal W. D. Alt was convicted of perjury, and he appeals. Reversed, and prosecution ordered dismissed. A. S. Baskett, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted of perjury; his punishment being assessed at two years' confinement in the penitentiary. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |