No. 2032. | Tex. Crim. App. | May 1, 1901
Lead Opinion
Appellant was indicted under what is ordinarily termed "the white-capping statute," was tried and convicted, his punishment being assessed at two years confinement in the penitentiary.
The indictment is as follows: "In the name and by the authority of the State of Texas, the grand jurors for the county of Coryell, State aforesaid, duly organized as such, at the January term, A.D. 1901, of the District Court for said county, upon their oaths in said court present that E.M. Dunn, on or about the 9th day of April, A.D. 1900, and anterior to the presentment of this indictment, in the county of Coryell and State of Texas, and with the intention of interfering by frightening him with the right of Jim Owens to occupy his (the Jim Owens) premises, he, the said Jim Owens, being then and there the owner and occupant of certain premises, said premises being then and there situated and being in justice precinct No. 4, in the County of Coryell, and State of Texas, and with the intention of interfering, by frightening him with the right of said Jim Owens to follow his legitimate occupation, calling, and profession, the same being that of a farmer and stockman; and he, the said Jim Owens, being then and there in the pursuit of and engaged in said occupation of a farmer and stockman, and with the intention of causing the said Jim Owens to abandon his said premises and to abandon the said county and precinct in which he, the said Jim Owens, then resided, to wit, in justice precinct No. 4, and in Coryell County, State of Texas, did then and there unlawfully, willfully, and knowingly cause to be sent to the said Jim Owens by the United States mail service, *33 and by mailing and posting the same for transmission and delivering in the United States postoffice at Leon Junction, a town and United States postoffice in Coryell County, Texas, an anonymous notice, threats, and signs of the tenor following:
— and which said notice, threats, and signs were by the said E.M. Dunn placed in the mail box at the said United States postoffice at the said Leon Junction, duly inclosed in a sealed envelope, which said envelope was then already duly stamped with a United States two-cent postage stamp, and on which envelope was the following pencil-written address, viz: `Mr. Jim Owes, Boaz, Tex.,' and whereby and by the means aforesaid, the said E.M. Dunn did then and there unlawfully, willfully, and knowingly cause said notice, threats, and signs to be sent, and the same was then sent, by due course of the United States mail, from said Leon Junction postoffice to the said Jim Owens at Boaz, in Coryell County, Texas, and from which said Boaz postoffice said Jim Owens did receive and obtain said notice, threats, and signs, said Boaz being then and there the postoffice address of the said Jim Owens, — against the peace and dignity of the State."
Appellant filed a plea of former conviction, the substance of which is that appellant had been previously convicted of sending a white-capping letter to Mart Robinett of the exact tenor as the letter contained in the above-quoted indictment, except Mart Robinett's name was placed in lieu of Jim Owens'. The proof shows that both letters were mailed at one and the same time. Upon this state of facts we do not think the court erred in instructing the jury to disregard the plea, for, if appellant had written six white-capping notices to six different persons and mailed them at one and the same time, he would be guilty of six different offenses. The mere fact that two offenses are committed contemporaneously does not make them any the less two distinct offenses. Keaton v. State, 41 Tex.Crim. Rep..
Appellant insists the indictment is defective on the grounds: (1) That the same charges no offense against the laws of Texas; (2) because the alleged letter set out in the indictment does not show upon its face any threat, and is not coupled with any declaration by the sender to do any act whatsoever; (3) because the indictment does not by innuendo give to the signs any meaning, purpose, or application to any person or anything whatsoever; (4) because there is a patent ambiguity in the name of the person to whom the letter was addressed as set out in the *34 indictment, and the person to whom the indictment charges the same to have been sent.
This prosecution is based under the Act of 1899 (see Acts Twenty-sixth Legislature, page 215), and is as follows: "Any person who shall post any anonymous notice or make any threats or signs or skulls and cross bones, or shall by any other method post any character or style of notice or threat to do personal violence or injury to property on or near the premises of another, or who shall cause the same to be sent with the intention of interfering in any way with the right of such person to occupy said premises or to follow any legitimate occupation, calling, or profession, or with the intention of causing such person to abandon such premises, or precincts, or county, in which such person may reside, shall be deemed guilty of the offense of white-capping, and upon conviction therefor shall be punished by confinement in the penitentiary for any period of time not less than two years nor more than five years." An inspection of this article shows that within the legislative intent various things make the offense of white-capping. To illustrate: The statute provides that, if any person shall post any anonymous notice, or make any threats or signs of skull and cross bones, or by any other method post any character or style of notice or threat to do personal violence, he would be guilty of white-capping, within the contemplation of the statute, if he did either of the above-enumerated things. As contended by appellant, however, in order to be guilty, the anonymous notice or sign must contain a threat to do personal violence. Futhermore, the statute provides that he would be guilty of white-capping who should post an anonymous notice, or post a threat, with intent to injure property on or near the premises of another. Then the statute further provides, as the indictment here charges, if one sends any anonymous notice, or sign, or threat, or shall cause the same to be sent with intention of interfering in any way with the right of such person to occupy said premises or to follow any legitimate occupation, calling, or profession, or if he should do the last-named things with the intent of causing such person to abandon such premises, precinct, or county, in which such person may reside, he will also be guilty of white-capping. And under the provisions of the last clause it is not necessary that the notice should contain a threat to do personal violence, as contended by appellant; but, if the notice or sign is sent with the intention of interfering with the person's right to occupy his premises, or intent to frighten him, thereby causing such person to abandon such premises, or causing said person, by frightening, to cease to occupy his premises, then and in that event, the intent of the person being to interfere with the possession and occupancy of the premises by frightening him, it would come within the spirit and letter of the statute, regardless of whether said notice contained a threat to do personal violence. The notice and sign, as contained in the indictment, says: "Jim Owens went to Hell June 20th, 1900." Then follows a drawing of a coffin and a scaffold, from which a body is suspended by the neck. The allegations of the indictment *35 show this notice and sign was sent to prosecutor on April 9, 1900. It is clearly a notice to prosecutor that he would be hanged on June 20, 1900. Appellant's counsel further ingeniously insist that this notice is so symbolic as to require innuendo averments in the indictment in order to make it valid. We do not think so. We think the letter, as copied in the indictment, indicates that appellant intended to convey to prosecutor the idea that he would die on June 20, 1900, by being hanged. We think this conclusion is as readily perceived from the instrument itself as if the statement had been made in so many words. Innuendo averments are only necessary to make plain matters that are ambiguous. The matter here under consideration is not ambiguous. Furthermore, for the sake of argument, it may be conceded that this is incorrect, yet the indictment containing the drawing of a scaffold with a man hanging from it, and the drawing of a coffin, and the pleader having alleged these signs were calculated and intended to frighten prosecutor, thereby interfering with the right of said prosecutor to follow his legitimate occupation, calling, and profession, etc., would of itself make a valid indictment, since the statute specially inhibits the sending of a sign for that purpose.
The last ground of his motion is: "There is a patent ambiguity in the name of the person to whom the letter was addressed as set out in the indictment and the person to whom the indictment charges the same to have been sent." It is true, as contended by appellant, the indictment does allege that the notice was sent to Jim Owens, the prosecutor, and that it was inclosed in an envelope addressed to "Mr. Jim Owes, Boaz, Texas." But we notice the pleader alleges that by said last address, and the mailing of said letter so addressed, appellant did unlawfully, knowingly, and willfully cause said notice, threat, and signs to be sent to Jim Owens. If this needs any innuendo averment to the effect that, when appellant wrote "Jim Owes" he intended to write "Jim Owens," we think the innuendo averment is substantially stated in the indictment. But the letter addressed to Jim Owes containing the letter addressed to Jim Owens, coupled with the testimony of the prosecutor that no one by the name of Owes lived at Boaz, Texas, and that he was the only Jim Owens living at said postoffice, coupled with the record evidence of the animus of appellant towards prosecutor, shows clearly that the address upon the envelope was a clerical mistake in leaving out the letter "n." So we think the indictment is good. So it follows, from what has been said, that the court did not err in overruling appellant's objection to the introduction of the envelope addressed as indicated; nor did the court err in permitting the State to introduce in evidence the letter set out in the indictment, and charged to constitute the anonymous notice, threat, and sign. It was proper to permit prosecutor, Jim Owens, to testify to the receipt of the letter offered in evidence, and to state that he knew of no person in that neighborhood by the name of Jim Owes, and no one by that name who gets mail at Boaz, Texas.
Appellant insists the court erred in permitting the State to prove *36 by Ed B. Fletcher the following: "Which are you most certain of, — that defendant did mail the letters (meaning the letter in the indictment, and admitted in evidence), or that the letters were mailed on the same day they were stamped, and that the stamps on them state the correct day they were mailed; that is, April 9, 1900?" To which question witness answered "he was more certain that defendant mailed the letters than he was that he stamped them on the day they were mailed, and that the stamp states the correct day on which they were mailed." Where a witness states two facts, the accuracy of both or either of which is questioned, it is permissible for such witness to state which fact he is most certain of. To do so is not invading the province of the jury, but simply testing and proving the accuracy and correctness of the witness, or at least tending to do so.
He insists the court erred in failing to charge the law of circumstantial evidence. Fletcher, assistant postmaster, testified: "I have seen these three letters [being handed to him for identification]. One is addressed to Jim Owes, Boaz, Texas; second one to Mart Robinett, Boaz, Texas; and the third one to Bob Williams, Boaz, Texas. Boaz is a postoffice in Coryell County. I first saw them in the mail box at Leon Junction in April, 1900. I know E.M. Dunn. I saw him put these envelopes in the mail box in April, 1900. Don't know what day of the week it was. I was standing out in the store at the time the letters were mailed, ten or twelve feet from appellant. Two or three minutes after he dropped the letters in the box I went into the postoffice, and, after getting A.J. Cox's mail, I took the three letters out of the mail box, stamped each of them with the Leon Junction postoffice stamp. I recollect that just before defendant mailed these three letters that I took all of the letters out of the mail box, and when I went in the postoffice department to get Mr. Cox's mail, the letters now shown me were in the mail box." This is positive evidence as to the mailing of the letters by defendant, and hence it was not incumbent upon the court to charge on the law of circumstantial evidence.
Appellant complains of the following portion of the charge of the court: "Evidence has been introduced tending to show that an envelope was dropped in the mail box at Leon Junction, addressed to Bob Williams, Boaz, Texas, which contained an instrument which was admitted in evidence when Bob Williams was on the stand; and that an envelope addressed to Mart Robinett, Boaz, Texas, was also dropped in the said box at the time. The State claims that the envelope introduced in evidence by the State, addressed to Jim Owes, was mailed at Leon Junction, and at the time the instrument described in the indictment was dropped in said mail box at Leon Junction (if it was placed in said box). You are instructed that you can only consider such evidence and testimony for the purpose for which it was admitted; that is, to establish the identity, in developing the res gestae of the alleged offense, or to prove the guilt of the accused by circumstances connected with the commission of the offense (if any) for which defendant is on trial, or *37
to show the intent with which defendant acted with respect to the sending or causing to be sent (if he did do so) the instrument described in the indictment. And you will consider such evidence for no other purpose, for you can not convict defendant for mailing or sending any other instrument or document than the one described in the indictment herein (if he did so)." We think this charge, taken as a whole, properly presents the law applicable to this phase of the evidence, in that it limits the consideration of the same by the jury to the question of intent and motive of appellant in sending the letter in question, if he did so send it. The other letters were clearly admissible for this purpose. Denton v. State, 42 Tex.Crim. Rep.; James v. State,
We have examined all of appellant's assignments of error and do not think any of them present cause for reversal, and the judgment is accordingly affirmed.
Affirmed.
Dissenting Opinion
The opinion of the court sets out the indictment and the objections thereto. This brings in review for the first time the Act of 1899 (see Acts Twenty-sixth Legislature, page 215), defining and punishing the offense of white-capping. I quote the first section of said act, as follows: "Any person who shall post any anonymous notice, or make any threats or signs as skull and cross bones, or shall by any other method post any character or style of notice or threat to do personal violence or injury to property on or near the premises of another, or who shall cause the same to be sent with the intention of interfering in any way with the right of such person to occupy said premises or to follow any legitimate occupation, calling, or profession, or with the intention of causing such person to abandon such premises, or precinct, or county, in which such person may reside, shall be deemed guilty of the offense of white-capping, and upon conviction therefor shall be punished by confinement in the State penitentiary for any period of time not less than two years, nor more than five years."
It will be seen from an inspection of the indictment, that it charges the commission of the offense to consist in appellant's causing to be sent to the prosecutor, in a letter, the following anonymous picture or effigy, with the words written above the same, to wit:
It further charges that same was sent to the prosecutor, Jim Owens, with the intention of causing him to abandon his said premises, etc., and to *38 interfere with his pursuing his legitimate occupation, he being a farmer and stockman. I do not think the indictment charges a complete offense, because it fails to set out all of the essential elements of the offense as prescribed by the statute. Nor do I think the indictment is sufficient, because it fails to allege by explanatory averments the character or description of the sign or effigy set out in the indictment.
The first proposition involves the construction of the white-capping statute. A majority of the court hold, as I understand from the opinion, that there are two distinct character of offenses defined in the statute. One is an anonymous notice or sign posted or sent, implying a threat to do personal violence to another or injury to his property; and the other is an anonymous notice or sign posted or sent with the intention of interfering with one's right to pursue his occupation, or to occupy his premises, etc. While, under the construction I place upon the statute, it requires both of the above to constitute the completed offense; that is, the anonymous notice or sign must imply a threat to do personal violence to another, or injury to his property, and must be posted or sent with the intent to interfere with or cause one to abandon his calling or his premises. If the construction placed on this statute in the opinion is correct, then it is not an offense to send or cause to be sent an anonymous notice or sign threatening to do personal violence to another or injury to his property, for the word "post" only is used in this connection. Consequently, to be an offense, such sign must be posted on or near the premises of another, and the sending of it would not constitute an offense. And again, the posting of such sign with intention of interfering with one in his calling or in the occupation of his premises would not be an offense, because the word "sent" is used in this connection. As I view the section in question, the first part describes the character of sign or notice which must be posted or sent; that is, it must imply a threat to do personal violence to another, or injury to his property; and, in addition to this, it must be sent or posted with the intention of interfering with one's right to his premises, or his right to follow his occupation, etc. To bear out this construction, it will be seen that the statute, after first describing the character of anonymous notice which may be posted, then proceeds as follows, "Or who shall cause the same to be sent with the intention of interfering," etc. Now, what is meant by the use of the language "the same"? Evidently it must refer to the character of anonymous notice or sign previously described. And if this must imply a threat to do personal violence to another, or injury to his property, then it follows that the character of notice sent, as well as the character of notice posted, must be to do personal violence to another, or injury to his property. And this character of notice must be posted or sent with intent to cause such person to abandon his premises, etc., or quit his calling or occupation. I gather from the language of the act that it was not within the legislative intent to punish one for posting or sending an anonymous notice merely, but an anonymous notice calculated to frighten or terrify; and it was apprehended *39
that nothing short of a sign or notice to do personal violence or injury to property would terrify or frighten one from his premises, or from pursuing his vocation. In other words, the Legislature took no account of anonymous signs or notices of an innocent character, but, in order to be a completed offense, such anonymous sign or notice must be of a character threatening personal violence or injury to property, and also be intended to interfere or frighten one from his premises or from following some legitimate occupation. It occurs to me that this construction given the statute follows logically from the words used and having due regard to all the provisions of the section. Any other construction, it seems to me, is fraught with difficulty, and runs foul of that provision of our code which says that "no person shall be punished for an offense which is not made penal by the plain import of the words used." If this be a correct interpretation of the statute, then the indictment should have been quashed because it failed to charge an offense, in that it did not allege the anonymous notice or sign implied a threat of personal violence or to injure the property of the prosecutor. Moreover, I believe a majority of the court are clearly in error in holding that it was sufficient merely to set out the picture or sign without any explanatory averments giving a description thereof. True, the picture or drawing, as contained in the indictment, looks like it might be a coffin, and the object near by may be intended as the effigy of a man with a rope around his neck, suspended from a post or tree, and the whole taken together, in connection with the writing, to wit, "Jim Owens went to Hell June 20, 1900," might be suggestive of a threat on the part of the sender to cause the death of Jim Owens. This, however, might involve, in the first instance, the skill of the artist; secondly, the skill of the copyist in pleading. Suffice it to say, the indictment leaves this to surmise or speculation. I do not believe a matter of this character should be left to be gathered by inference or intendment, but should be distinctly alleged in the indictment. I have been unable to find any case in point. But I take it in matters of this sort we can consult the analogies of the law as to pleading in similar cases. As was said by Judge Willson in Stichtd v. State, 25 Texas Criminal Appeals, 420, — which was a question of pleading in a case of slander, — "that the rules in civil cases with equal, if not greater force, are applicable in criminal cases." That was the case where the slander was uttered in a foreign language, but the indictment set out the words purported to have been spoken in the English language. It was held there was a variance; that the very language used in the foreign tongue should have been set out, and then a correct translation thereof made, and included in the indictment. To the same effect, see 1 Bish. Crim. Proc., sec. 564; 13 Enc. of Pl. and Prac., p. 48. In civil actions involving libel and slander, where the same consists in a defamatory effigy or picture, the picture is not set out at all by tenor, but it is described, and what it referred to is distinctly alleged. And the same rule is applicable to criminal cases. Newall, Defam., p. 984 (which contains *40
the form adopted from Archibald); 2 Bish. Crim. Proc., 794b, 795; Bradstreet Co. v. Gill,
[Note. — Appellant's motion for a rehearing was overruled without a written opinion. — Reporter.]