McFarland v. State , 140 Tex. Crim. 533 ( 1940 )

Appellant was tried in the County Court upon an indictment returned into the District Court of Gregg County.

No question as to the jurisdiction of the County Court was raised prior to nor during the trial, nor mentioned in the motion for new trial nor suggested upon original submission in this Court. For the first time in his motion for rehearing here appellant seeks to raise the question of jurisdiction of the county court for lack, as he contends, of an order of transfer of his case from the District Court to the County Court as provided in Article 419 Cow. C. P.

It will be found that some of the very cases relied upon by appellant were expressly overruled in Lenzen v. State,112 Tex. Crim. 297, 16 S.W.2d 234, in which the question of jurisdiction of the county court was sought to be raised for the first time in this court. It was said in Lenzen's case: "We are not in agreement with appellant that he may raise this matter in this Court, and it appearing to have been here presented for the first time, we think it comes too late."

It is not necessary to determine whether the Lenzen case should be followed here because we think appellant's contention is based upon a misapprehension of the record.

The original transcript was filed in this court on May 11, 1940. It was discovered that in said transcript no order transferring the present indictment appeared. A supplemental transcript was obtained and filed in this Court on September 16, 1940, from which it appears that the indictment was returned into the District Court of Gregg County on November 23rd, 1939 and on December 4th, 1939 was ordered transferred to the County Court of said county. The county clerk of said county attaches to said supplemental transcript a certificate "that the above and foregoing pages contains a true and correct copy of the original order or transcript transferring the case of State of Texas v. Emmett McFarland from the district court to county court as same appears filed in this office on December 4, 1939." It is thus made to appear affirmatively that the county court had jurisdiction of appellant's case, but that the order of transfer was simply omitted from the original transcript.

Appellant renews his contention that the trial court should have instructed a verdict of not guilty, and that this court should not permit the conviction to stand, it being appellant's position that Willie Gray and Pearl Gray were accomplice witnesses and that their evidence was not sufficiently corroborated to meet the requirements of Art. 718 Cow. C. P. (1925). It appears that Art. 639 P. C., permitting conviction for certain gaming offenses on the unsupported testimony of an accomplice witness has no application where the prosecution, — as here — is for establishing a lottery. (Art. 654 P. C., 1925.) We remain of opinion as expressed originally that neither Willie Gray nor Pearl Gray became accomplice witnesses in appellant's offense of establishing a lottery from the mere fact that they purchased a ticket which permitted them to have a chance in the result of the lottery.

It is pointed out in appellant's motion that the lottery in question was established at Willie Gray's house and that he received compensation for permitting his house to be so used. Upon further consideration we think this fact admitted by said witness does characterize him as an accomplice witness. It does not follow, however, that a reversal should result. There is no evidence that Pearl Gray knew that her husband, Willie, was being paid for the use of his house, or that she had any connection with the lottery scheme further than purchasing a ticket, and it can not be said as a matter of law that she was an accomplice witness. Her evidence corroborates the testimony of her husband. It is further our opinion that even if both she and her husband were held to be accomplice witnesses, there is ample corroborating evidence in the record from appellant's own admissions to the officers and the latter's testimony as to the things seen by them before their presence became known to satisfy the demand of the statute, Art. 718 Cow. C. P. (1925), that accomplice witnesses must be corroborated by other evidence tending to connect accused with the commission of the offense charged before a conviction can be had.

The indictment alleged that the lottery established by appellant was "under a name and denomination to the grand jurors unknown." It is urged by appellant that under such averment it was incumbent on the State to show that the grand jury used ordinary diligence to ascertain the name of said lottery, and contends that the State failed to make such proof and that such failure is fatal to the State's case. The rule invoked will be found stated in Branch's Ann. Texas P. C., Sec. 2444, and many supporting authorities are listed. As we understand the record the State undertook to support the averment mentioned by the evidence of Mr. Anglin, the Assistant District Attorney of Gregg County, who was with the grand jury when it was investigating the charged offense. He testified as follows: "I was present at the time the negroes that were arrested at this particular residence were questioned. I was present when Willie Gray and Pearl Gray and every witness inthis case, when they testified before the grand jury what thisgame was called. Some called it Polly, some called it Policy Game, some said numbers, other ____ did not know what it was called."

It would appear from this testimony that the grand jury was trying to find out the name of the game, and when the witnesses did not agree on it, and some did not even pretend to know what it was, it occurs to us the grand jury was justified in saying that it did not know the name, and that there is no showing of lack of diligence to ascertain it.

The motion for rehearing is overruled.