Mitchell v. State , 109 Tex. Crim. 643 ( 1928 )

The offense is possession of intoxicating liquor for the purpose of sale; the punishment confinement in the penitentiary for one year.

Officers searched the residence of Mrs. Alva McLennan and discovered a large quantity of whiskey which was buried near the house. Appellant was not present when the search was made. On the trial of Mrs. McLennan, appellant voluntarily appeared and testified that he placed the whiskey on her premises just before Christmas in the year 1926, and that it belonged to him. He described the manner of burying and concealing the whiskey. Appellant did not testify on the present trial and offered no testimony in his behalf.

Appellant contends that the evidence is insufficient to sustain the conviction, basing his position on the claim that the corpus delicti is shown solely by his confession. The facts making out the substantive crime were shown otherwise than by appellant's confession. There was no doubt that the offense for which appellant was tried had been committed by somebody. Such being the case, appellant's confession of his guilty connection with the crime was sufficient to justify his conviction. In the case of Clark v. State, 210 S.W. 544, this court stated the rule as follows:

"It is the settled law of this state that the confession of one accused of crime, of his connection therewith, will justify his conviction when the facts making out the substantive crime have been shown otherwise."

See also Attaway v. State, 35 Tex.Crim. Rep.,34 S.W. 112; White v. State, 40 Tex.Crim. Rep., 50 S.W. 705; Sullivan v. State, 40 Tex.Crim. Rep., 51 S.W. 375; Landreth v. State, 44 Tex.Crim. Rep., 70 S.W. 758.

As hereinbefore stated, appellant did not testify in his own behalf. Bill of exception No. 1 shows that, in his closing argument, the District Attorney used the following language:

"Gentlemen, he has confessed on the woman's trial that he brought this whiskey here and buried it on her premises, and where is the evidence on this trial disproving it?"

Appellant objected to such remarks as being a comment on the failure of appellant to testify. The court sustained the objection and instructed the jury not to consider such remarks. The bill shows affirmatively that appellant did not testify on his trial, but does not show that there were no other witnesses who could have denied that appellant buried the whiskey on Mrs. McLennan's premises. Such being the case, the bill of exception is insufficient, and therefore, not subject to review. We quote the language of Judge Davidson in Huff v. State, 103 S.W. 394, as follows:

"But we have another line of decisions, which seem to be unbroken, that a bill of exception 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 exception. This bill does not show on its face that appellant was the only other party present at the time of the purchase of the whiskey 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 been 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 as this bill of exception is concerned, and we will not aid a bill by presuming there were not other witnesses present. This should have been shown on the face of the bill itself."

See also Hubbard v. State, 251 S.W. 1054, and authorities cited.

As shown by bill of exception No. 2, the District Attorney used in his argument language as follows:

"Gentlemen, the bootlegger comes slipping in at night and sells his stuff to your boy and mine and disappears before the coming of the day."

Upon objection of appellant, the court instructed the jury not to consider such remarks. We are unable to agree with appellant that his bill manifests reversible error. If improper, it does not appear from the record that the use of the language complained of resulted in injury to appellant. The evidence was amply sufficient to sustain the conviction and appellant received the minimum penalty. Clark v. State,285 S.W. 328; Cobb v. State, 274 S.W. 153.

Appellant was indicted on May 12, 1927. Prior to his indictment he had been remanded to jail in default of bond, and was in jail at the time of the return of the indictment and at all times thereafter was in jail. He was unable to employ an attorney until May 19, 1927. His trial began on May 26, 1927. When the case was called for trial appellant presented his first application for a continuance, showing that certain witnesses, who were alleged to live in Upton and Crane Counties, were absent. Attempting to excuse himself for not having sooner applied for process on the ground that he had been in jail, was unknown in Mitchell County, had no one to aid him in preparing his defense, and was not able to secure an attorney until May 19th, appellant showed in his application that process for the witnesses had been applied for, issued, and mailed to the sheriffs of Upton and Crane Counties on the date last mentioned. The subpoenas were made returnable on May 26th, but were not returned, although it was shown that there had been ample time for their return. Appellant averred that the absent witnesses would testify that he, appellant, was drilling oil wells for them in Upton and Crane Counties continuously from about October 1, 1926, to January 15, 1927, as shown by the permanent log of the wells kept by the witnesses and signed daily by appellant.

Appellant reserved an exception to the overruling of his application for a continuance as shown by Bill of Exception No. 3, and based his motion for a new trial in part on such action. No affidavits of the absent witnesses showing that if present they would testify to the facts alleged by appellant were appended to the motion for a new trial.

Waiving the question of diligence, no affidavits showing that the absent witnesses would testify to the facts alleged by appellant being attached to the motion for a new trial, the judicial discretion rested with the trial judge of determining whether the absent testimony was probably true in view of the evidence heard during the trial. Cruz. v. State, 272 S.W. 486. The action of the trial court in denying a continuance will not be reviewed upon an appeal unless when considered in the light of the evidence adduced on the trial the absent testimony was shown to be material and probably true. Boxley v. State,273 S.W. 589. Where the absent witness makes affidavit that if present he would testify to the facts stated in the application for a continuance and such affidavit is attached to the motion for new trial the discretion of the trial judge to determine the probable truth of such testimony ceases to operate. Cruz v. State, supra; White v. State, 236 S.W. 745. The proof was positive that appellant testified on the trial of Mrs. McLennan that the whiskey in question belonged to him. He did not testify on his own trial. His confession of guilt was uncontroverted.

In the light of the evidence, we must conclude that the trial court was justified in his conclusion that the testimony set forth in the application for a continuance was not probably true. It follows that in denying the motion for a new trial based in part on the application for a continuance, the trial court did not err.

Finding no error, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.