*1 and if he believed in the car Shelton was did he answered that The had
it. witness it. checked on such information appears the record Under therefore gone into matter pursuit state’s complain cannot See: examination. the same on redirect 38.24, 1965. Art. Vernon’s Ann.C.C.P. point er
Appellant’s remaining unduly the trial court erred ror is that fully right cross-examine his limiting thereby four state’s witnesses fully right confront denied him against him. witnesses court’s carefully considered We have ruling cross-examina- made on abuse of and find no tion of the witnesses point is overruled. discretion. is affirmed. judgment Appellant, HULLUM, Jr., R. C. Texas, Appellee. STATE of No. 39563. Appeals of Texas. Court of Criminal June 1966. Rehearing Nov. 1966. On Rehearing March 1967. On Second May 24, Rehearing On Further
ty suspected perpetrators as the of certain burglaries. response overtures made to Lane, by Larry employee appellant home, Wimberley who visited her Mrs. agreed appellant, she had who consult help boys.” Mr. Lane said “could following morning appellant and his em- ployee complaining went to home of the witness and escorted her to of- fice, Wimberley and Mrs. boys,” “talked about “said out,” get he could indicated them also keep boy “going he would the oldest from appel- A Gatesville.” fee of $65.00 agreed lant’s these services was parties, agreement appel- two after which A lant called the Home. brief Juvenile telephone conversation ensued out following Wimberley, hearing of Mrs. pick which instructed her to “Go they were boys up,” informing her that Wimberley being probated him. Mrs. that “He me act like I testified told Mrs. surprised they getting were out.” Cowden, Maloney, Frank Tom Austin Wimberley then went Juvenile (both appeal only), appellant. Home, released and her were two sons Shropshire, County Atty., Don- Wallace although custody. from She testified Austin, Lane, County Atty., ald H. Asst. her explained to juvenile authorities Atty., Aus- Douglas, and Leon B. State’s her, she still released to were tin, for State. (appel- him thought “they probated were
lant), too.” OPINION two Wimberley made thereafter Mrs. re- appellant, each to payments of $10.00 McDONALD, Presiding Judge. $45.00,but hav- ducing her balance owed pretext; The offense is theft appel- sons ing persuaded her punishment, confinement being nothing to do with their lant jail. pay- leased, make further refused to action, she re- ment. As a result of this prior April The evidence reveals that 23, 1965, letter, which dated ceived June 15, 1965, appellant employed dep- as a attorney, and signed by an Austin uty County, sheriff of and that he Travis stated: which resigned on that date was thereafter employed by Investigation Agency, Central In- Investigating Agency, “The Central corporation engaged business of your account turned over corporated, has investiga- making private bail bonds May 22, 1965 On me for collection. tions. dollars sixty-five you incurred a bill for agen- April
During period April from rendered 19 to for services ($65) 22, 1965, owing is now complaining cy. two sons of the wit- balance due balance ness, If this Wimberley, forty-five ($45). E. held dollars Mrs. J. I up 30, 1965, will juvenile authorities of Coun- is not cleared June support against you story. my bring client to suit The facts
advise the com- Court.” Small Claims $10.00 plainant pretext upon the false letter, Wim- receipt Mrs. Upon effecting release could and did aid in authorities, berley juvenile consulted *3 juvenile the by of her sons from detention subsequently con- investigation and an was authorities. matter, the which led to ducted of this the upon appellant now stands in charge Trial was conducted which upon trans- in cause. at Law 2 of Travis convicted fer of the 147th District testified, appellant and Mr. Harrell Jack County. Appellant attacks Court of Travis juvenile author- stipulated, that he was county con- jurisdiction telephone ity appellant had with whom tending there constitutional or that is no He testi- mentioned above. conversation county statutory in for trial a authorization appellant boys fied not tell that he did indictment, upon and that in trial court him; appel- that be released only upon county be initiated an court can telephone upon call no influence lant’s bore information affidavit. or boys, that he decision to release prosecu- appellant already support his that that it had To contention informed upon county be re- in court an indictment were to tion determined upon Ar- unconstitutional, appellant custody relies in the of their mother. leased V, ticle Section 17 of the Texas Constitu- Hullum, A was card of R. C. business Jr. tion, Ann.St., in provides which Vernon’s evidence, side the reverse of introduced part commenced “prosecutions that be “5-1-65—Rec. which bore notation: by in said court information (signed) from B. on Rill Wimberly $10.00— affidavit, may be county attorney, or Hullum, Wimberley R. Mrs. tes- C. Jr.” that, prior provided by points law.” He out receipt re- tified that this card was 1925, 448 Code Articles appellant ceived from evidence of the prosecution Criminal Procedure authorized payment. first $10.00 upon in- county indictment or court formation, re- that these statutes were but find the evidence sufficient sus- pealed by omission when Code Crim- conviction, and, finding, tain so 1925, He Procedure, was enacted. inal overrule that contentions 41, 172 State, Ethridge Tex.Cr.R. cites v. 76 support ap- findings that evidence fails to 784, an stated that wherein was S.W. pre- pellant money by obtained the a false prerequi- a “shall be filed” as information text; complaining that was in- witness He con- county trial in the court. site to part pretext duced such false with the repeal by omission cludes that since money; or had the intent to 449, requirement supra, 448 Articles The complaining defraud the witness. cir- in misde- prosecution information transaction, surrounding cumstances county manda- meanor cases courts is representations made and the tory. complainant as out in the set above facts, summary ap sufficient to raise point. are find cases in It would was sum pretext. pear contention a similar the issue theft State, marily Quarles Tex. complainant. overruled chief state’s witness was tending Cr.App., however a review testimony 385 It is true that there was S.W.2d many that the issue there credibility, of that record reveals impeach sufficiency of the equivocal uncertain. or involved her answers were upon the document which was authorized and whether jury nevertheless prosecuted an witness, other indict there was believe an testimony corroborated ment or information. which evidence provided, having court jurisdiction ac- to a traditionally preferred form of offense, would as an sufficient pleading cusatory is the accusatory pleading, while information the reason by grand jury, turned charging satisfactory. pro- that offense would provides “a means procedure such a interpret the manner. dangers We do not law this against the citizen tection to county accusation, agree “that the greater We the still of a false acquire try court public clamor.” cannot peril of a sacrifice to Wilcox, originated misdemeanor where it re 153 Misc. 276 N.Y.S. Commentary county until an information has been Interpretative court see the filed,” I, Davis v. Article at Vernon’s Section 10 found Certainly but conclude that trial pp. Const. S.W.2d we Ann.Tex. upon properly investigation trans- an accusation based *4 un ferred of twelve indictment does not violate ac- collective conclusion provides rights. cused’s constitutional greater biased citizens insurance against prosecution malicious mistaken or interpretation supported This by prosecution upon than does information V, language additional in Article Section upon person. For oath of one 17, providing that such indictment be “if reason, a pleading by this indictment is quashed County, other inferior or requisite prosecution for the more seri court, person charged, shall not be dis- courts, Fifth ous crimes in the federal if charged probable guilt, there is cause of Amendment, of the United Constitution but may by be magistrate held such court or States; state, Article courts to answer an information or affidavit.” I, Section Constitution of the State interpreted This must be to mean that Texas, jurisdic and in all other almost where an indictment has been returned States, tions in the 42 In United C.J.S. county prosecu- and transferred ato 9, p. dictments and Informations 838. As § tion will be based on indictment unless protection a matter practicability, such quashed. it is has not been extended to misdemeanants. by appellant support The authorities cited V, Article Con- Section 17 of the Texas proposition that one accused of a mis- provides part: stitution demeanor is entitled to at least a written ac- cusatory may pleading be in said in the form of an in- “Prosecutions commenced county They support court informat'on filed formation. do not the conclu- that, attorney, affidavit, may county sion trial in the court a pro- be properly juries empanneled transferred violates the vided law. indictment Grand enquire Constitution. into District Courts shall misdemeanors, and there- all indictments For the first time in his motion for new for returned into the District Courts trial, appellant trial also contends that the shall forthwith be certified to jurisdiction court lacked over this cause courts, having Courts or other inferior because the indictment was transferred * *” trial; jurisdiction try them for plea in accordance with law. No filed, appellant’s mo- provision, From this it can be seen that quash tion to did the indictment not chal- prosecutions in 'county lenge Because transfer. or, in information, commenced on some cas- made, objection timely ap- formal was not es, by grand jury affidavit. The is never- pellant’s objection there is record no theless authorized return indictments presented by the indictment was ever It ne- misdemeanor offenses. would grand jury received the district cessitate a law tortured construction court cannot considered. Williams constitutionally- to conclude that 72; State, transferred, Tex.Cr.R. 321 S.W.2d indictment, authorized when State, deprivation ment of constitutional 98 Tex.Cr.R. S.W. Poe v. State, rights granted by Article Section Adams v. Texas, Constitution of State 661. 246 S.W. the Sixth and Fourteenth Amendments of appellant’s motion At States, of the be- Constitution United trial, adduced. these facts were new pleading a denial of cause such constitutes signed the dis- when right apprised his nature and to be cause be trans- judge, trict directed him, against cause the accusation at Law of “the ferred to quash motion to his County.” clerk’s of- granted. should have therefore been and returned to file this order fice refused contention in Court overruled this identical the order the district because it to clerk Cameron v. delivered Febru specify failed to whether ary 1966, Tex.Cr.App., 809. 401 S.W.2d No. Court Law transferred holding here adhere to our therein stat 1 or Court at Law in appellant’s ed and find merit formal clerk, authority deputy district without bill. “No. 2” immedi- the district inserted ately “County Court at words, after the Appellant urges that there was a fatal Law.” proof allega- and the variance between *5 money the tions in the indictment that was Appellant this altered or contends that corporeal personal property of Mrs. J. all, effect, is, der transfer order no Wimberley, E. and that it taken from was an and without order the Coun possession Wimberley. of Mrs. He con- jurisdiction. not He ty acquire Court did tends that that the record Mrs. shows in the argues that even other defects if woman; Wimberley a that was married appeal be cannot be on transfer raised there is no evidence the record show error, preserve he of his failure to money separate that her property; was did be said to that which he cannot waive and that the evidence fails to show know, defect, apparent and that not not property separate property is the order, not on the face of and discovered the wife, under the circumstances here- new hearing his motion for until involved, ownership alleged in the must be trial, before is this Court review. We husband. A substantial defect order. find no 69, reading Chapter 6 of the Gen Section relationship The discloses record no Special Legisla eral and of the 59th Laws appellant Mr. contact between and Wimber- judge if the district ture shows even ley. evidence shows designated two of the courts had which initial until the indictment of solicitation transferred, designation the cause was such appellant, Wimberley appellant Mrs. ineffective, would have inasmuch parties this trans- principal were the cause, notwithstanding designa (cid:127)the attempting action. to se- She was one tion, could have been tried either her was con- sons; cure the release of she either in either courtroom. negoti- appellant’s employee; tacted she signed by judge the district was release; appellant ated to have effect their compliance substantial with Article person pay she was the induced to Procedure, then in Code of Criminal performed; he allegedly services State, 46 Dittforth effect. v. account it was name which the was. her 2 S.W. Johnson of the carried the business records in- Tex.App. S.W. vestigating organization; it was Mrs. Wim- berley paid money exception, appellant bill who By formal money;, receipt for that gave that his to whom contends conviction theft Wimberley pretext upon general theft it indict- was to Mrs. re- court where threatening letter was sent when tried court where it was should have been money. pay more fused announcing trial. entered before money It deduction that obvious complaint find of transfer as to possession of Mrs. taken from trial, until the hence motion for new Wimberley. announced rule the cases cited is applicable case at bar and is con- Article Code of Criminal Procedure. trolling. 21.08, now Article Ann.C. Vernon’s C.P., states, part: original opinion that noted in our impeach the testimony tending there was property, “Where one owns person many complainant her answers person possession and another has uncertain, equivocal but held the
n ofthe
same,
ownership
thereof
evidence sufficient to sustain
be alleged to be in either.”
com-
from the
obtained $10.00
plainant upon
representation that
his false
primary purpose
the indictment
get
out
he could
the nature
apprise the accused of
Juvenile
Home.
him,
can-
against
charges
of the
alleged
complain
ownership
Attached to
motion for
person
from whom he
complainant
affidavit
stolen,
money
alleged
he was
to have
shown to have been made a few
after
throughout
had dealt
whom he
original opinion
our
affirming this con-
charge was
transaction
which the
viction,
sufficient,
true,
which we deem
if
based.
present
question
of whether
conviction
the use of false
Appellant’s
was obtained
many
in-
other formal and
evidence,
police
*6
known to be false
exception
formal bills of
been
have
con-
Napue
officer named in said affidavit.
pre-
sidered. We find
reversible error
264,
Illinois,
People
v.
by any
of State of
360 U.S.
sented
of them.
1217;
1173,
Pyle
79 S.Ct.
3 L.Ed.2d
v.
judgment
is affirmed.
177,
Kansas,
213,
State of
317 U.S.
63 S.Ct.
214;
Delaware,
87 L.Ed.
Curran v. State of
denied,
(3d Cir.)
provision signed by providing that the theft of order as judge’s property is interlineation was made without value of or less to $5 had knowledge. deputy clerk punished exceeding a fine not district $200 power materially change the deprive order has been held not to no something express it transfer and make court of concurrent pronounced. justice’s judge that the had not court. case “The transfer of this was authorized further observe that we were in only by power authority virtue of the concluding equivocal, error in un by the provisions conferred of the consti- conflicting testimony certain and of the complainant tution and mentioned. This representations statute made by as to true, being it under inevitably follows that prior to the her release of sons statute, the this case undisputed transfer of from House and the Gardner try it having jurisdiction voluntarily inferior fact paid that she $10 option at and within the was alone boys several after the had been re given the right exercise of the district juvenile leased and she had been told judge court the cause they her, to decide probated to what officer that were would be transferred. ap that sufficient to sustain a pellant complain from the $10 149, Sec. reads as
“47 “upon representation Tex.Jur.2d ant his false that he follows: get boys juvenile could her out of the home.” knew that the were She out “ public general that ‘It is a rule duties paid when the $10. performed governmental must be affidavit, body signed powers by the and oral exercised officer statement law; they complainant, dele- designated cannot be statements attributed testimony particularly true at the trial and at the gated to others. is well as her This nature, appellant’s that in their denial of judicial of duties are claim of process, us that call for exercise of reason or due correctness convince ” just her not sure discretion.’ statement that she was Hullum told her. what R. C. record, “From the it is concluded stated, appellant’s For the second reasons transferring order in relied on rehearing granted motion for County this case to Court Law No. judgment the cause is now reversed and The unauthor of Travis was void. manded. ized alteration of the made contra was one of substance
vention statute MORRISON, Judge (dissenting). may be and constitutes raised error time the first after verdict.” case under sub- has this Court year, and five more than a mission for withdrawing error prior one opinions been written have foregoing granting mo- grounds today. we hand down One rehearing, applying rule tion for opin- majority set forth reversal complaint any irregularity in the testimony complainant’s ion the district court transfer case from conflicting.” In “equivocal, uncertain and Court No. at Law should prior point I out this connection prior apparent raised It is to trial. difficulty opinion this Court found the record that neither nor testimony. complainant’s understanding was aware the fact that the his counsel judge had district authorized the inser- testify, complainant heard the juryA has transferring tion his order case to Judge testimony. they believed 2” “No. at Law so as to testify twice and McAngus heard her has appear transferring make be his “testi- that she to this Court has certified Law the case to Court at truthfully the main trial.” fied *9 tried, where the case was agreement with Mr. myself I find until the on their motion for new Supreme Court of the Reed of trial. state does not contend other- Justice United States when he said in Stoll v. wise. 165, 172, 59 S.Ct. Gottlieb, 305 U.S. import- just “It is 83 L.Ed. place to end
ant that there should be litiga- begin place there be a should bar, my judgment, In the case at tion.” long passed. “place end” has since granting of respectfully I dissent to the rehearing. for appellant’s second motion McDONALD, Appellant, Billy Jack Texas, Appellee. The STATE of No. 40354. Appeals Texas. of Criminal White, Jr., Amarillo, ap- L. Alward May pellant. Harney, County
Naomi Atty., Bill R. Sherbert, Amarillo, County Atty., Asst. Austin, Douglas, Atty., Leon B. State’s the State.
OPINION
DICE, Judge. theft; The conviction is for misdemeanor punishment, years in jail. two grounds by ap- Two urged error are pellant in his brief filed in the trial court.
In ground, his first he insists that the court erred in admitting evidence obtained illegal as the result of an search and seizure. The evidence of which com- plains person relates to search of his companion, Myers, of his L. V. fol- their lowing police two officers arrest — city Amarillo, vagrancy. search, property certain articles proof found which showed had been cently stolen from complaining witness.