Campbell v. State , 63 Tex. Crim. 595 ( 1911 )

At a former day of this term, this cause was reversed and remanded. The State has filed a motion for a rehearing, and earnestly insists that the court was in error. After carefully reviewing the matters, we adhere to the opinion that if at the time the court reads his charge to the jury, and the jury is about to retire, the defendant presents a special charge calling the court's attention to an omission in the charge, the court should have the jury returned to the box, and supply such omission. However, in considering the case before, our attention was not called to the fact that the court had given what is termed a "supplemental charge," and it being on a different page to the main charge of the court, we overlooked it. This supplied the omission in the charge. In this supplemental charge, the jury was instructed:

"If you believe from the evidence that the said Luther Hutcherson had carnal knowledge of the said Arminta Scott at the time and place alleged in the indictment, but the defendant, Ruth Campbell, was not present at the time and place of said act of intercourse, if any, or, if you believe she was present at said time and place and knew the unlawful intent of the said Hutcherson, if any, but did not aid by acts or encourage by words the said Hutcherson in the performance of the unlawful act, if any, or if you have a reasonable doubt as to either of these issues, you will acquit the defendant."

This, of course, covers the omission in the main charge referred to in paragraph ten of the original opinion, and had it been contained in the main charge, or had our attention been called to it in the briefs for the appellant or the State, we would not have fallen into the error of saying that the court had failed to present this theory of the case. We held that appellant was entitled to have her theory of the case submitted to the jury, even though the request to do so came as the jury was about to retire. The court does this in this supplemental charge, and, of course, it was not necessary to give the special charge requested, inasmuch as this supplemental charge had been given, and as appellant's special charges were not presented to the court until the jury was about to retire, and were never filed with the clerk.

The State also insists that the court erred in paragraph nine of the opinion. While the statement of facts shows that appellant testified to the facts stated in said paragraph of the opinion, yet our attention is called to the fact that the court, in approving the bill, qualified it as follows:

"Approved with the following explanation: The proof shows that the defendant was duly warned by C.A. Sweeton, district attorney, before she made the statement. The proof further showed that she made said statement freely and voluntarily and that as she made same it was reduced to writing, said writing containing the statutory warning. After said statement was reduced to writing, it was read over to her and she signed it. There was nothing to indicate that she did not fully understand everything in said statement."

Appellant accepted this bill and filed it, and our attention is called that we can not look to other parts of a record in aid of a bill of exceptions, and when accepted and filed by appellant, he is bound by the qualification. Blain v. State, 34 Tex. Crim. 448; Hardy v. State, 31 Tex.Crim. Rep.; Lavine v. State, 35 Tex. Crim. 647; Brown v. State, 32 Tex.Crim. Rep.; Boyett v. State, 2 Texas Crim. App., 93. Thus, under the holdings of those cases, this court is bound by the qualification when accepted and filed by appellant, and as the judge says: "There was nothing to indicate that she did not fully understand everything in said statement, and that it was freely and voluntarily made," in accordance with the former decisions of this court, the motion for rehearing is granted, and the judgment is now affirmed.

Affirmed.