292 S.W. 906 | Tex. Crim. App. | 1927
The appellant was convicted of swindling, and his punishment assessed at seven years in the penitentiary.
The record contains 26 bills of exception, the number of which precludes a separate discussion of each, and we will only discuss such bills as we think necessary for a proper disposition of this appeal. Bills 2 and 2-A complain of the refusal of the court to grant appellant’s motion for a continuance for the want of the testimony of J. Martin, alleged to be a resident of Dallas, Tex., by whom appellant expected to prove that he (appellant) was skilled in the adjustment, correction, and treatment of eye trouble; that the method used by him was the accepted and approved method of 'treating eyes; that the witness had been acquainted with appellant for a long period of time in various states, and knew that he had engaged in the examination and treatment of diseases of the eye, and in the fitting of glasses; and that he was proficient along this line, and had long and continuous experience therein. The appellant’s diligence in suing out process for this witness was sufficient, but the subpoena was returned, unserved. The record discloses that, after appellant was convicted, he attached to his motion for new trial an affidavit from said witness Martin to the effect that said witness was formerly a practicing physician in Missouri, and that he had known appellant for many ¡years, and had known him in Missouri, and that his occupation was that of treating eyes and ailments thereof, and fitting and adjusting glasses, and that the witness had known of appellant treating a great many persons for eye trouble, and that appellant was proficient in the treatment of eyes. This affidavit was properly sworn to, but, when the motion for new trial was presented, it was contested by the state, and overruled by the court, presumably upon the ground that the facts stated therein were untrue. In this ruling, the trial court fell into error. All of the statements in the affidavit to the effect that appellant was a practicing physician and experienced in the treatment of eyes were in direct refutation of the state’s contention, and, the affidavit being filed in connection with the motion for new trial, and supporting the allegations in the motion for continuance, and bearing on appellant’s defense, it was not for the trial court to say whether said affidavit was true or false, and the appellant was entitled to have the jury pass on this issue. Terry v. State, 100 Tex. Cr. R. 161, 272 S. W. 466; Cruz v. State, 100 Tex. Cr. R. 188, 272 S. W. 486; Battle v. State, 103 Tex. Cr. R. 75, 279 S. W. 842; Marberry v. State (No. 10455) 291 S. W. 232, decided by this court on February 2, 1927.
In bill No. 15 it is contended that the court erred in admitting in evidence the leather case, together with the vial and medicine dropper found therein, taken from appellant’s car, because the deputy sheriff, while standing by appellant’s car, raised up the case before a search warrant had been obtained authorizing a search of said car, which was in violation of the Search and Seizure Law (Acts 39th Leg. e. 149). We are not in accord with this contention. The mere fact that the deputy lifted this case and immediately set it down, upon the sheriff’s request that he wait until a warrant could be obtained, without removing it from the car or observing the contents therein! would not preclude the introduction of evidence as to the contents of said case after a legal search thereof.
Appellant also contends in this bill that it was error to permit the sheriff to testify as to the kind of medicine contained in the vial without a proper showing as to his qualification to give such testimony. This evidence was inadmissible.
In bill No. 17 complaint is made to the action of the court in permitting the state to
In bill No. 18 complaint is made to the refusal of the court to permit appellant’s counsel, on cross-examination of Dr. Greenwood, to interrogate him concerning a certain work on radium by one Dr. Viol and the statements made in said book. This bill, as presented, shows no error.
Bill No. 23 complains of the refusal of the court to charge the jury on the law of circumstantial evidence. The record discloses that the appellant objected to the court’s chargé in a timely manner because of the failure to charge on this issue, but the court refused to submit such a charge to the jury. After a careful examination of the entire record, we are constrained to hold that this was error, and that the main facts relied upon by the state in this case had to be inferred from other facts proved, which demanded a charge on circumstantial evidence. Kinslow v. State, 100 Tex. Cr. R. 140, 272 S. W. 408; Thomas v. State, 103 Tex. Cr. R. 19, 279 S. W. 448; Berry v. State, 104 Tex. Cr. R. 114, 282 S. W. 594; Chew v. State, 104 Tex. Cr. R. 417, 284 S. W. 559.
For the errors above discussed, the judgment of the trial court is reversed and remanded.
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.