*1 604 Oliver, cousin, "did party
injured came to Mrs. Jean him report me that had occurred between an incident gestae clearly and admissible. res the defendant.” This was placed in evidence practically information the same being This situation, impressed Briggs. are we Mrs. injury appellant. possibility with the Appellant’s is overruled. Hay Daniel v. State.
Edward 25041. 1951. January 24, No. Rehearing Denied April Falls, ap Kouri, by Allen, Allen, Locke Z. D. & *2 pellant. Austin,
George Blackburn, Attorney, the state. P. State’s Judge. BEAUCHAMP, by burglary. punishment
The The assessed offense is jury, guilty, years. plea on a of not was twelve burglarized Pharmacy The on Evans Falls was night Discovery was made of March the same of by city policemen, progress. evidently two while was in the same going policemen, One of on the out- to the back of store side, running alley away noted two men down the at therefrom shotgun the rear of same. men a An officer at with shot these later, gotten and they after and started into a Ford car away, spread he shot at rear was of said Ford. An alarm Ford, meeting Ford, and a description by of this seen other a officers few minutes thereafter. A wild chase followed finally and dry Ford was a abandoned near creek. Three searching men seen were to flee therefrom. officer One the vi- cinity of creek noted back door of Mr. Gotcher’s house had inquiries in. kicked at officer made When Gotcher home the owner thereof over turned had been Appellant found in his bathroom. had offered Mr. pursuers. Gotcher to conceal him from his Before dis- $100.00 covering appellant in his bathroom Mr. Gotcher had heard a being noise made with toilet tank. left After the officers Mr. fuses, dyna- Gotcher discovered said tank certain electric caps mite a quantity nitroglycerine. and certain of This was later by turned over to officers and then identified as such an expert explosives who testified at the trial. burglarized
A of pharmacy search the com revealed that bination knob and a prized the handle had been off of safe. A large bar, sledge a hammer and a hammer were found on the burglars floor. The had forced the back to make door alley their exit. In the behind the store was found a mask. creek, A search of the Ford car found at the and identified as appellant by registration, that of a a tourist court revealed bag containing crowbars, punches, brown canvas two and chisels burglary other profession. tools incident to the Also several pairs gloves, gas cartridges, gas of silk tear a some tear regular seismograph pistol loaded, which was electric mercury blasting caps, quantity quantity and a of fuses nitroglycerine
of found. were explosives
The Mr. found in toilet tank were of the Gotcher’s type appellant’s same found in A of the out- those car. search appearing Ford side three to have revealed indentures been made buckshot.
Appellant exception. comes before this court with six bills Exception overruling complains Bill of second No. 1 continuance. Such secure alleges testify L. of one Audie who he would that some Miller Miller, burglary he, prior day time to the of the Wichita Falls together cer- near a lake in and that were thereby car, boys guns air tain causing shot into back of *3 Appellant’s fails in the fol- the indentures therein. bill lowing respects: being on a
(1) exception, same It is not in the bill of shown continuance, testimony motion could second for that the produced any defendant. other source known to the While be may appellant at it have been Miller was with true that alone Dallas, in the lake in of such indentures still it is the existence prior burglary to appellant’s that needed car to the for and not of such inden- establish his defense the cause Surely appellant’s many peo- tures. automobile was seen witnesses, ple, time between the could have been called alleged have time of the to the indentures were burglary. the
(2) It which does not show that the automobile appel- in which at the lake was the same automobile the Dallas burglary. lant had in the time the Wichita Falls at of complains Exception of Bill of 2 admission No. of finding gas alley in mask at the rear of about of a burglarized premises. ad- evidence is The court that such feels finding in of a missible view of the evidence of the gas cartridges, appellant’s The in the automobile. appellant’s in that further is deficient court observes that bill objection itself. fact it contains no recitation of other than 206, Jurisprudence, 4 Texas Section The rule is well stated page 293. Exception fails
Bill of it to show 3 is deficient because No. argument Any complained that of not invited. bill of
607 attorney, to argument be exception state’s to of the argument such, such a recitation that effective as must contain 4 counsel. reply of to some comment was not 263, page Jurisprudence, Texas Section argument complains of the Exception Bill 4 No. of “* * * (the
prosecutor that, to effect under evidence bill, defendant) professional This like Bill is a from Dallas.” Exception 3, of such it fails show No. is deficient because
argument However, appears court not invited. it to the paraphernalia possession that the traced of the defendant certainly category. would take him out of the amateur argument Exception complains Bill of No. attorney state’s to the effect that: “These hoodlums from ** this Were bill not deficient for same reasons as-
signed Exception to Bills of Number 3 and the court would difficulty have passing upon some question. Time and again time prosecutors this court has admonished to remain within may It record. be within the record to conclude that equipment brought because of his the defendant within himself category hoodlum, of a it but would have wiser been much prosecutor characterizing to have refrained from so him. Exception Bill of complains charge No. 6 of the court’s on the principals. charge law of tracks the statute accur- rather
ately which propriety should be the test of a court’s charge. *4 Finding no judgment reversible in error record the the is things all in affirmed.
ON MOTION FOR REHEARING.
GRAVES, Presiding Judge. In is atten- it called to our inadvertently tion that we made the in erroneous statement our original opinion to the fact relative that the instrument denomi- “Appellant’s nated Motion Second for a Continuance” did not show therein the of the desired could witness that procured any not be from other source. In this in we were error. The motion portion does such make statement and that opinion of the withdrawn. is apparent
We think is the it from the face of instrument controverting the the same that and from the state’s motion at- diligence procure lacking in to the in was witness, L. Miller. Audie tendance of the originally set cause was It the record that this is shown in 7, 1950, application for 10, 1950; an April April for that on L. was filed with subpoena Audie Miller issuance of for alleged County; that witness was district clerk of Wichita subpoena County, Texas; to for said reside in Dallas that department in Dal- was issued and sent to the sheriff’s witness las County, Texas; to received there same seems have been that 8, 1950; with April on it not executed but returned that was following notation: 1950, April, A.D., day 10th “Returned unexecuted this County, to the within named witnesses unable locate Texas, diligent inquiry.” after search and subpoena papers on and filed with the was returned April 11, 1950. April 10, an affidavit wherein
On defendant filed insanity question of raised. was tried and dis- was Same posed following day. day, of on called On this case was merits, for and for a trial on its defendant made motion continuance, granted, and set for which was this cause was date, April trial on said 24th. When this case was called for appear, request at attor- defendant did not of his neys, day. the cause was reset 1:30 P.M. At on same located, that time defendant had and his bond still Thereafter, apprehended dif- he in a was then forfeited. County, returned Texas. ferent state and to Ellis The district County warrant the case court of issued its bench May 29, Again, Monday, for trial on 1950. this case was set May 31st, May passed at which time the 29th place, place. In trial taken the first defendant’s seems have time, subpoenaed any never it but that this witness was- at is shown insanity April 10, appear upon did trial on Thereafter, nor the to have neither the witness seems court, requested appeared process and no was ever to com- pel the defendant was the attendance of witness. We think diligence making lacking any entirely an endeavor of presence Audie Miller the witness L. on kind to insure the case. trial *5 attor- again the district Complaint fact that made of the is argument jury, made ney County, pro- a (appellant) is he evidence statement that “under this justified argument think from Dallas.” fessional We possession appellant was do find that evidence. We explosives, including nitroglycerine other paraphernalia, gas masks, could be which as well as engaged think in. might We be endeavor in whatever utilized by the state’s testimony amply the statement sustains the attorney. per- speaking attorney, district The remark burglary, “these hoodlums committed sons Dallas,” hardly because think that again complained of. We is compan- attorney appellant and his referred to district of abuse sufficient amount as “hoodlums” would be ions being for a reversal considered as a basis matter warrant case. of this of, disposed
Believing properly this case has been overruled. is Kilpatrick v. State. M. W. January No. 25039. 11,1951
Appeal April Dismissed