Wilson v. State , 80 Tex. Crim. 266 ( 1916 )

Appellant was convicted of a petty misdemeanor and assessed the lowest fine, $10.

Among other offenses article 557, Penal Code, enacts: "If any person shall bet or wager at . . . the game of matching money or coins of any denomination for such coins, or for other things of value . . . he shall be fined not less than ten nor more than fifty dollars."

The indictment is in four counts; the charging part in each is, that said Wilson on or about January 30, 1916, in said county:

Then in the first: "did unlawfully bet and wager at a game of matching money and coins for such money and coins and other things of value."

In the second: He "did then and there unlawfully bet and wager at the game of matching money."

In the third: He "did then and there unlawfully bet and wager at a game of matching coins for such coins."

In the fourth: He "did then and there unlawfully bet and wager at a game of matching coins for other things of value, towit, cold drinks."

We think counts 1 and 4 are undoubtedly good.

The court eliminated the second and third by giving appellant's charge instructing the jury to consider neither in making up their verdict. Clearly the two remaining counts charged different phases of the same transaction under the same statute. This is always not only proper, and expressly provided for by statute (art. 481, C.C.P.) but commendable as good criminal pleading, as this court has often said, in pleadings in both felony and misdemeanor. (White, Ann. C.C.P., sec. 403.) And where the pleading is as stated, no election between counts can be required in an indictment charging misdemeanors only. (White, idem., subdiv. 4; 1 Branch, Ann. P.C., p. 233, at the bottom of the page.) Both Judge White and Mr. Branch cite many decisions of this court so holding.

Judge White, in secs. 405 and 383, in his Ann. C.C.P., says: "Where several ways are set forth in the same statute by which an offense may be committed and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and they may be charged conjunctively in the same count," citing a large number of cases of this court and of the Supreme Court when it had criminal jurisdiction. This is unquestionably the law in this State. (Cabiness v. State,66 Tex. Crim. 409.) So that the pleader in this instance could have charged all these matters in one count only, and that he charged them in separate counts makes no difference.

Appellant filed with the judge several grounds of objections to his charge. He also requested some eleven special charges, all of which were refused, except the one to disregard the second and third counts above mentioned, which was given. In neither requested charge, nor in any way connected therewith, did he give any reason or statement why it should be given. This is essential in even a felony case. (Ryan v. State, 64 Tex.Crim. Rep., and many other cases.) Nor did he except or take any bill of exception to the judge's refusal to give his charges, or any of them. Neither did he take any bill of exceptions to the judge's charge, or any portion thereof, nor to the court's failure or refusal, if he did, to modify his charge to meet his objections. All such matters are necessary to be shown now by bills of exceptions; otherwise, they can not be considered by this court in either felony or misdemeanor cases.

It is the well settled law of this State, and has been so since the establishment of this court, "that in misdemeanor cases, the only way this court is authorized to consider complaints of the charge of the court and the refusal of special charges requested, is, by bill of exceptions taken at the time to the charge of the court in the matters attempted to be complained of, and to the refusal of the court to give the special charges requested, giving in the bill therefor the specific reasons why the court erred in giving the charge complained of, or, as the case may be, in refusing the requested charge." Basquez v. State,56 Tex. Crim. 329, 119 S.W. Rep., 861; Brunk v. State,60 Tex. Crim. 263; Hobbs v. State, 7 Texas Crim. App., 117; Campbell v. State, 3 Texas Crim. App., 33; Goode v. State, 2 Texas Crim. App., 520; Dunbar v. State, 34 Tex.Crim. Rep., 31 S.W. Rep., 401; Downey v. State, 33 Tex.Crim. Rep., 26 S.W. Rep., 627, 19 Am. St. Rep., 856; Loyd v. State, 19 Texas Crim. App., 321; Lucio v. State, 35 Tex.Crim. Rep., 33 S.W. Rep., 358; Martin v. State, 32 Tex.Crim. Rep., 24 S.W. Rep., 512; Wright v. State, 60 Tex.Crim. Rep., 131 S.W. Rep., 1070; Jenkins v. State, 60 Tex.Crim. Rep., 132 S.W. Rep., 133; Brown v. State, 73 Tex.Crim. Rep.. It is useless to cite the large number of recent cases to the same effect. This was so before articles 737, 739 and 743, C.C.P., of the revision of 1911 were amended by the Act of April 5, 1913, page 278. As amended by this Act, this proposition is in effect emphasized. So that none of appellant's special refused charges nor his preliminary objections to the court's charge can be considered. However, we might say we have examined all of his objections and special charges, and if we could consider them, the court's action would present no error.

The court gave a full and correct charge properly submitting every issue raised by the evidence under the indictment.

The positive, uncontradicted testimony by the State clearly established appellant's guilt. He did not testify himself, nor did he introduce any testimony.

Appellant has only two bills of exception in the record. The first, as qualified by the court, is to the effect that fourteen jurors constituted the panel. That in examining all of them, seven, naming them, answered in substance, that while they had sat as jurors in two other cases against another person — not appellant — on a charge similar to the charge in this case, the indictments being the same except against another party and at a different date, they had an opinion as to the character of verdict they should and would render in this case, on similar facts, yet they could disregard any opinion that they had, and would try this case on the facts and evidence adduced on the trial of this case, and the law submitted them by the court. He thereupon challenged the whole panel. The court overruled his challenge. The bill further shows that not a single one of the seven who had so answered sat on this case. There was no error in the court's ruling. (Edgar v. State, 59 Tex.Crim. Rep.; Engman v. State, 77 Tex.Crim. Rep., 180 S.W. Rep., 235; 1 Branch's Ann. P.C., p. 279.)

His other bill presents no error. It shows that the State asked a witness: "What did they pay, how much a glass?" He answered: "Mr. Harris don't sell anything but 5-cent drinks." His objection in substance was, that the State would have to first prove the kind of drink drunk on that occasion.

The judgment is affirmed. Affirmed.