Bennett v. State

Conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The witness W.S. Cox is named in the indictment as the purchaser. According to his testimony, he made arrangements with the appellant to get a quart of whisky. Afterwards, while appellant was riding in an automobile, Cox gave him a five-dollar bill. Appellant asked him where he put the whisky and Cox replied that he put it in the pocket of the car. After riding several blocks more, appellant got out of the car. Cox did not look in the pocket. The car was searched by the witness Walker and a quart of whisky was found in the pocket.

Appellant's confession was introduced in which he declared that he received five dollars from Cox and put the whisky in the pocket of the car at the place where it was found when the car was searched.

The first bill of exceptions refers to a motion to quash the jury panel. The jurors were summoned by the sheriff. The complaint made is that the trial judge purposely refrained from selecting the jury commissioners. The trial took place at a special term of the court, convened on the 7th day of August and called on the 15th day of July. It is admitted in the bill that the failure to have the jury commissioners select the jury for the special term was intentional, "because at the time it was determined to order a special term, the end of the regular term was too near at hand to permit the assembling of the jury commissioners to select the jury for the special term." In our judgment, the selection of the jury by the sheriff was, under the facts stated in the bill, not illegal. The failure to select jury commissioners was not an arbitrary disregard of the statute, Article 384, Code of Crim. Proc., but the reason given by the court was deemed by him sufficient to justify his action, and under the facts before us, we are not in a position to say that he was wrong. The cases relied upon, Woolen v. State, (68 Tex. Crim. 191) and White v. State, (45 Tex. Crim. 597) are not authority for the contention that in every case of international failure to select a jury commission to select the jury for the succeeding term nullifies the power to select a jury by other means provided by law. The law now authorizes the calling of a special term even in vacation. Obviously the special term of court cannot function without a jury. The power vested in the judge to call such a term at any time necessarily implies that it is not demanded that jury commissioners must select jurymen for it. Speaking with reference to a grand jury in Ex parte Holland, 91 Tex.Crim. Rep., (238 S.W. Rep., 654), we used this language:

"Under the present statute, in our judgment, a special term of the District Court, when organized, has the same power and is governed by the same procedure as a regular term. At a regular term, the preferred way of selecting a grand jury is by jury commissioners. This is emphasized in White v. State,45 Tex. Crim. 597, 78 S.W. 1066, and Woolen v. State,68 Tex. Crim. 181, 150 S.W. 1165, to which we referred in the original opinion, and that method is not to be arbitrarily disregarded at a special term. But with this qualification, article 399 of the Code of Criminal Procedure, is, in our judgment, also available, and in this connection we will add that in a case like the present, where it is not apparent that there will be need for a grand jury at the beginning of the term and there was good cause for not then appointing jury commissioners and causing a grand jury to be selected by them, and subsequent developments made a grand jury necessary, it might be selected by the sheriff in accord with article 399. See King v. State,90 Tex. Crim. 289, 234 S.W. Rep., 1107."

In prosecutions for violation of the so-called Dean Law, (Chap. 61, Acts of the 37th Leg., 1st 2nd Called Sess., page 233), one over twenty-five years of age, cannot be accorded the suspended sentence. The validity of this provision has been asserted on several occasions by this court. See Davis v. State,93 Tex. Crim. 192, 246 S.W. Rep., 396.

Inquiries were made by the State of the witness Cox concerning a purported statement previously made by him. The statement was excluded and its contents are not revealed by the bill. Nothing in the bill indicates the relation of the matters inquired about to the case; nor their relevancy or materiality. Such a bill does not overcome the presumption indulged in favor of the correctness of the court's ruling. See Buchanan v. State, 24 Texas Crim. App. 195; Luttrell v. State, 14 Texas Crim. App. 147; Vernon's Texas Crim. Stat., Vol. 2, p. 542, note 29; also Vernon's Tex.Crim. Stat., Vol. 2, Sup. 1922, p. 2513, note 29; Marshall v. State,85 Tex. Crim. 131.

The objection to the admission in evidence of the appellant's written confession upon the ground that it was not voluntary is supported by no recital of the facts in the bill. The preliminary statement in the confession that it was a "voluntary statement of Jack Bennett made to me, Paul Donald, County Attorney" is a part of the document signed by the appellant, and his contention that it does not affect him, but is an ex parte statement of the county attorney is deemed unsound. Appellant having become a witness in his own behalf, proof by him on cross-examination that he was charged with other felonies, was admissible upon the question of credibility. Branch's Ann. Texas P.C., Sec. 167.

The purchaser of the intoxicating liquor was not an accomplice witness. The statute so declares. See Chap. 61, Acts of the 37th Leg., 2nd Called Sess., Sec. 2c.

In his confession, the appellant admitted that he sold the witness Cox a quart of whisky for five dollars; that he received the money and put the whisky at a certain time in the right-hand pocket of Cox's automobile at which place, while he was riding with Cox, he was told to put it. Cox testified that he bought the whisky and told the appellant to put it at the place mentioned, and it was shown by the sheriff that almost immediately after the appellant got out of the car, it was searched by the sheriff and the bottle of whisky was found at the point named. Cox testified that he made no examination of the pocket and did not know whether the whisky was there or not. There was no affirmative testimony that the delivery of the whisky was not made, and we discern no reason for an affirmative charge singling out the question of delivery and instructing the jury upon it. The refusal of the request to do so was not error. The voluntary character of the confession was made an issue of fact and submitted to the jury under an appropriate charge.

A special charge was requested seeking to have the jury told that the appellant's confession alone would not support a conviction; that there must be other facts corroborative of the confession. In the instant case, the facts showing the commission of the offense and appellant's connection with it were proved independent of the confession. Some of the facts were circumstantial. They were nevertheless sufficient to establish the corpus delicti. The law does not demand that independent evidence shall establish the corpus delicti. It merely requires that the evidence independent of the confession, together with the confession, shall do so. Kugadt v. State, 38 Tex. Crim. 694; Sowles v. State, 52 Tex.Crim. Rep.; Branch's Ann. Tex. P.C., p. 1049; Ingram v. State, 78 Tex. Crim. 559, 182 S.W. Rep., 296; Corpus Juris, Vol. 16, p. 1514 In a case where the corpus delicti is proved by the confession alone, no conviction should be had. It is possible that a case might arise in which such a charge as that demanded by the appellant in the instant case should be given. Upon the record in hand, there was no error in refusing it. Mathew v. State,39 Tex. Crim. 555; Gallegos v. State, 49 Tex. Crim. 115; Willard v. State, 27 Texas Crim. App. 386; Slade v. State, 29 Texas Crim. App., 381; Franks v. State, 45 S.W. Rep., 1013; Tidwell v. State, 40 Tex.Crim. Rep.; Bailey v. State,42 Tex. Crim. 289; Nelson v. State, 65 S.W. Rep., 95; Murphy v. State, 43 Tex.Crim. Rep.; Ellington v. State,48 Tex. Crim. 160.

In his argument to the jury, the county attorney made some comments upon the testimony of the witness Cox. Objection was made that they referred to a matter excluded by the court and that the testimony was not properly quoted. This is a mere objection, not verified by the court as a fact and is insufficient to disclose error. We perceive no vice in the argument of the county attorney to the effect that he could put issues of fact before the jury but that if law breakers were turned loose, the responsibility would be upon them. The county attorney in substance said that he thought there were conditions in the county brought on by the jurors violating their oaths and in failing to convict violators of the law and thereby increasing the commission of crime. He concluded with this statement:

"If you want to continue to add to this hoard and crowd back into society those who have been arraigned and indicted for law violations in this county, you need not be alarmed at the cluck of the Klansmen."

If improper, the argument does not impress us as one requiring a reversal of the judgment, especially in the absence of a request for a special charge that the jury be instructed to disregard it.

In another bill it is asserted that the county attorney in his argument sought to explain why the case against the appellant charging him with selling whisky to Dr. J.P. Thomas was dismissed. It does not appear from the bill that the remarks were not based upon the evidence adduced upon the trial. See Marshall v. State, 85 Tex.Crim. Rep..

Finding no error in the record justifying a reversal, an affirmance of the judgment is ordered.

Affirmed.

ON MOTION FOR REHEARING. October 17, 1923.