Adams v. State , 156 Tex. Crim. 63 ( 1949 )

KRUEGER, Judge.

Appellant was convicted of the offense of theft of personal property over the value of fifty dollars, and his punishment was assessed at confinement in the state penitentiary for a term of three years.

The indictment in this case contained two counts, the first of which charged appellant with the theft of a check of the value of $4,236. The second count charged theft by appellant as bailee of said check. The court submitted the case to the jury on the first count in the indictment. The jury found him guilty, as charged therein, and assessed his punishment as above stated.

At the conclusion of all the testimony, appellant requested the court to instruct the jury to return a verdict of not guilty. The court declined to give such instruction and appellant excepted. In order to determine whether or not appellant was entitled to such an instruction, we must look to the evidence adduced by the state which, briefly stated, shows that on or about the 25th day of March, 1946, appellant entered into a contract with Mr. and Mrs. C. L. Bowie to build them a dwelling house according to plans and specifications delivered to him. The consideration for the construction of said building was $12,236 to be paid by Mr. Bowie as follows: $4,236 as a cash down payment and the balance in installments of $2,000 at specified dates as the construction of the building progressed. The last installment was to be paid when the building was completed. On the morning following the night on which the contract was made and before Mr. Bowie had paid or delivered to appellant a check in the sum of $4,236, a report was made over the radio that all building materials had been frozen by the government. After hearing this report, Mr. Bowie became apprehensive that appellant might not be able to obtain the necessary materials; however, appellant assured him that he had ample materials on hand to complete the building. With that assurance by appellant, Mr. Bowie, on March 26, 1946, delivered to appellant’s attorney a check in said sum of $4,236, payable to Homer B. Adams & Sons, and this check was by said attorney deposited in the First National Bank of Commerce at San Antonio, Texas, to the credit of appellant and sons. Appellant did not build the house nor did he return any of the money to Mr. Bowie which he had received on the check, nor did he testify in his own behalf on his trial. He contends that he was entitled to a peremptory instruction to the jury to acquit him based on the ground that the check was obtained on the promise to perform something in the future. We are not in accord with his contention because before Mr. Bowie delivered to him the check in question, appellant assured him that he had on hand all material necessary to construct the building, which was a statement of an existing fact, when in fact he had only a few concrete blocks out on the lot and no lumber whatever. At least the evidence fails to show that he had any lumber. He also made misrepresentations as to his financial ability to comply with the terms of the contract.

Bills of Exception Nos. 1, 3 and 4 may be considered and disposed of together since they relate to the same matter complained of in each bill. These bills show that appellant requested three special charges which are to the effect that if the jury believed from the evidence that a priority or freeze order had been issued by the C.P.A., O.P.A., or any other government agency after the contract had been made between Bowie and Adams and Sons, and that this was the cause of the failure to build the house for Bowie, or if they had a reasonable doubt thereof, to acquit appellant. We are of the opinion that under the facts of this case he was not entitled to such an instruction since there is not any evidence from any source that the freeze order had anything to do with the failure of appellant to use the material which he claimed he had on hand to construct the building. Moreover, the freeze order had been promulgated before the contract had been finally consumated. On the 26th day of March, the appellant, the injured party, and their respective attorneys discussed the freeze order at which time appellant assured the injured party that he had all of the necessary materials except a small amount of plumbing fixtures for the construction of the building. We therefore overrule each of the bills.

By Bill of Exceptions No. 2 he complains because the trial court declined to give his specially requested charge to the effect that since the state had elected to rely for a conviction on the first count of the indictment, they should acquit him on the second count. We see no error reflected by the bill.

Bills of Exception Nos. 5, 6, 7 and 8 are deficient in that they fail to show that the remarks of the district attorney were not provoked or invited by the argument of counsel for defendant. Without such a showing the bills do not reflect any error See Richardson v. State, 99 Tex. Cr. R. 514, 270 S.W. 854; Sanchez v. State, 147 Tex. Cr. R. 436, 181 S.W. 2d 87; and cases there cited.

Bill of Exceptions No. 9 is also deficient, in this, that while the state’s witness, C. L. Bowie, was being cross examined by appellant’s attorney he was asked the following question, to-wit: “Then you authorized Mr. West to give Mr. Evans written authorization to turn the check over to Mr. Adams ?” To which the witness replied, “After it was understood that the money was to be used strictly for that particular purpose.” The answer naturally implied that the witness answered “Yes” and agreed with the appellant, then he explained his answer; thereupon, appellant objected and stated, “We object to that. That is not responsive to the question. The authorization shows that there are no restrictions on it.” The bill fails to show on what ground he objected other than that the reply was not in response to the question. We think the answer shows that the witness agreed with the appellant to the extent that he authorized Mr. West to turn over the check to Mr. Adams and then the witness followed his answer with an explanation of why he did so. The witness had a right to explain why he did so. If we are correct in believing that the witness’ answer included the answer “Yes” and we think that it does, then that part of the answer was certainly responsive to the question. Hence the blanket objection to the whole of the answer would be insufficient since it failed to separate the objectionable part from the unobjectionable part and specifically address his objection to the objectional part thereof. See Parks v. State, 108 Tex. Cr. R. 576, 2 S.W. 2d 245. Furthermore, there was testimony from other sources which was of like character as that herein objected to. In the case of Young v. State, 89 Tex. Cr. R. 230, 230 S.W. 414, this court made the following statement: “However, since the objection is to the whole of such occurrence as detailed, it would seem clear that if any part thereof would make more apparent the truth of the matters charged against appellant, it would be admissible.” It is not every unresponsive answer that should be stricken. It is only when the unresponsive answer is also inadmissible. An unresponsive answer which is competent and makes more apparent the truth of the matters charged against appellant would be admissible, notwithstanding its unresponsiveness. In support of the opinion here expressed, we quote from Underhill on Evidence, 4th Ed., page 766, as follows: “Where the question calls for a ‘Yes’ or ‘No’ answer, a witness can explain his answer.” Wigmore on Evidence, 3rd Ed., Vol. 3, states the rule to be that where a witness goes beyond the scope of the question, and makes an answer not responsive, there is nothing per se wrong. If the answer includes irrelevant facts, it may be stricken. However, if it furnishes relevant facts, then it is nevertheless admissible even though it was not specifically asked for. To the same effect is the doctrine announced by McCormick and Ray on Evidence, page 357; Webber, et ux v. Park Auto Transportation Co., et al, 47 A.L.R. 590.

Bill of Exceptions No. 10 shows that while A. S. West was being cross examined by appellant’s attorney the following question was propounded to him: “Going back to the morning of the 26th day of March. Was there anything said in that conversation in- Mr. Adams’ presence about interim financing or anything of that character?” To which the witness replied, “No, Mr. Adams said that he could finance the thing himself, and in addition stated at the request of Mr. Bowie that this money that was going to be paid would be used for nothing else except this construction.” The defendant objected thereto on the ground that the contract speaks for itself and the supplemental contract was signed by A. S. West attorney for C. L. Bowie, and O. S. Evans, attorney for the defendant, after the defendant had left. What we have said in disposing of Bill of Exceptions No. 9 applies equally and with full force to this bill. For the reasons there stated we overrule appellant’s contention.

Appellant contends that the check was dated March 26, 1946, and the indictment charged that it was unlawfully and fraudulently taken from the possession of C. L. Bowie on or about the 25th day of March, 1946. Appellant takes the position that since the check was not in existence on the 25th day of March, he could not have obtained the same from Mr. Bowie. We do not think there is any merit in his contention. The fact that the indictment charged he unlawfully and fraudulently obtained the check on or about the 25th day of March would authorize the admission of proof at any time about that date. See Branch’s Ann. P. C., page 229, Sec. 433.

No reversible error appearing in the record, the judgment of the trial court is affirmed.

Opinion approved by the court.