Hubbard v. State , 94 Tex. Crim. 480 ( 1923 )

The case is one resting alone upon circumstantial evidence, and the jury was so instructed. The place was visited twice by officers who were witnesses upon the trial. On each occasion they found at the house in which the liquor in question was found a woman by the name of Rutledge. Both the appellant and the Rutledge woman declared that it was appellant's place. In the statement of facts, this is said: "We found this Rutledge woman there when we first drove up, you had gone into the building, I suppose, a couple of minutes when Hubbard drove up. He came in.

He came up in a car and the lady first would not say who the place belonged to, and then said that it was not hers, but was Hubbard's, and then we went out to see Hubbard and asked him whose place it was and he said it was his." Counsel for the State in his argument used this language: "If that house didn't belong to Jimmie Hubbard, why did he not have witnesses here to prove that fact?"

Objection was addressed to this argument and a written request was made to the court to instruct the jury that the State was required to prove appellant's guilt, beyond a reasonable doubt, and that he was not required to introduce evidence. In addition to what has been stated, the bill contains the following: "The Court refused to give said instruction, to which counsel for the defendant excepted, for the reason that the defendant did not take the stand as a witness in his own behalf, and he being the only witness who could legally testify to the ownership of the house in question, the remarks of the County Attorney was a direct reference to the failure of the defendant to testify."

Deducible from numerous authorities which are cited, the rule applicable to an indirect comment upon the failure of the accused on trial to testify is thus stated in Boone's case,90 Tex. Crim. 377: "The statute is not shown to have been infringed, however, by disclosing that counsel, in argument, used language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To come within the prohibition the implication must be a necessary one, that is, one that cannot reasonably be applied to the failure of the accused to produce other testimony than his own. Where there is other evidence, or the absence of other evidence to which remarks may reasonably have been applied by the jury, the statute is not transgressed."

Speaking of the sufficiency of a bill of exceptions to present this question, the following quotation is taken from the opinion of Judge Davidson in the case of Huff v. State, 103 S.W. Rep. 394: "But we have another line of decisions, which seem to be unbroken, that a bill of exceptions must manifest the error complained of and be complete within itself; that this court will not refer to other portions of the record to make a complete bill of exceptions. This bill does not show on its face that appellant was the only other party present at the time of the purchase of the whisky except the witness Bolt. In order to make this bill complete, it should have been shown by its terms that there were no other witnesses present except defendant and Bolt, or it should have shown, if it was a question of alibi, that there were no other witnesses by whom appellant could prove the alibi except himself. There may have been other witnesses present so far asthis bill of exceptions is concerned, and we will not aid a billby presuming there were not other witnesses present. This shouldhave been shown on the face of the bill itself."

The announcement of the law by Judge Davidson in the above quotation is supported by a great number of authorities collated by Mr. Branch in his Ann. Tex. P.C., p. 134, Sec. 209 in the preface of which he makes this statement: "A mere statement of a ground of objection in a Bill of Exceptions is not a certificate of the judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. The defendant should incorporate so much of the evidence in the bill as would verify the truth of his objections."

Under these rules, the bill in the instant case is insufficient in that it contains no statement of the facts verified by the trial judge, either showing that appellant did not testify or that there were not other witnesses by whom ownership might be proved. Another rule followed without interruption is thus stated by Mr. Branch in Sec. 207 of his Ann. Tex. P.C., under which he has collated a number of authorities: "A Bill of Exceptions should be made so full and certain in its statements as that, in and of itself, it will disclose all that is necessary to manifest the supposed error."

For additional authorities upon the subject, see Vernon's Tex.Crim. Stat., Vol. 2, p. 557; Note 38, under Art. 744; also Vernon's Tex. Civil Crim. Stat., 1922 sup., Vol. 2, p. 2519; also Gonzales v. State, 88 Texas. Crim. Rep., 248, 226 S.W. Rep. 405; Quinney v. State, 86 Texas Crim Stat., 358.

The proof of ownership in the trial of a criminal case does not contemplate an inquiry concerning in whom the legal title is reposed. It was enough to prove that the property was in the possession of the appellant; that it was under his care, management and control, at the time the whisky was found upon the premises. Under the evidence, there was sufficient proof to support the jury's finding that he was exercising care, control and management of the premises; that he was present and acted with the Rutledge woman in the possession of intoxicating liquor for the purpose of sale. Neither the bill of exceptions nor the facts in the case show that there were not others by whom the ownership of the premises could be proved. If the appellant was not the owner, obviously the property belonged to someone else. Nothing in the record refutes the idea that there were other persons who might have been available to prove the ownership. The distinction drawn in the argument of the case on motion for rehearing between ownership in the sense of legal title to the property and ownership as characterized by the possession and control is deemed of no importance. This much is said as indicating our view that aside from the insufficiency of the bill of exceptions in failing to show whether appellant testified or not and granting that he did not, no error appears from the bill in question.

The other matters contained in the motion for rehearing were correctly decided on the original hearing and require no further discussion.

The motion for rehearing is overruled.

Overruled.