*1 tion of such proper way prove ownership, records was the being showing destruction, there no sec- their loss or ondary evidence proof. was not admissible to make such only appellant’s time name was in the trial mentioned of this cause occurs in quоtations the two above from the testi- mony. impressed We proof are with the fact that such falls showing short whisky possessed that such was owned or purpose him for the of sale. There are other matters
will hereof, doubtless not arise another trial but in the question mаy event the proof publica- arise relative to of the tion of the order of the commissioners’ court relative to the 1911, 3391, result of the quote election held in we Article Statutes, 1895, Revised Civil as follows: declaring “The prohibiting order of the court the result and the sale of liquors published such shall be four successive newspaper published county weeks in some in the wherein such held, newspaper election has been shall be selected county judge purpose. newspaper the published for that If there cоunty, county judge pub-
in the then the shall cause by posting copies lication to be made of said order at three public places prescribed within the limits for the aforesaid length publication of time. The fact of in either mode shall be county judge entered on the minutes of the commis- entry made, copy sioners’ court. And thus or a thereof certified county under the hand and seal of the clerk of the court shall prima publi- be held sufficient facie evidence of such fact of cation.” copy county judge’s nоte that such certified facts, rebutted,
order is found in the statement of and unless competent proper publication. the same is judgment For the error first herein discussed this is re- versed and the cause remanded.
Gladys Powell v. The State. February 16,
No. 19319. Delivered 1938. Rehearing denied March *3 opinion states the case. Fullerton, W. C. Taylor, and Frances both of for Wofford Lloyd Davidson, Attorney, Austin, State’s of for the State. Judge Appellant was convicted of the offense Krueger, . failing stop of person and render aid to a whom she had with punishment struck an automobile and her was assessed at a fine of $500.00. charged day indictment that on or about the 11th of 1937,
February, “Gladys Powell, County in the of Williamson Texas, and of was then State and there the driver of and in automobile, operating control of an controlling and while and automobile, she, Gladys Powell, said Sidney the said did strike therеby Evans with said automobile —and did then and and injure person Sidney therewith of said Evans —and she did unlawfully stop Sidney then and there fail to and render to said Evans, injured person, necessary assistance, all etc.” time,
Appellant, plea jeopardy due filed a of formеr alleged January Term, at which she A. D. she grand by County was indicted of Williamson for the murder, alleged offense of to have been committed her on February, day the 11th of 1937. That voluntarily she did and aforethought, Sidney kill by running with malice Evans into Sidney upon Evans with and said an automobile. That thеre- day March, 22d after on the of she was tried in said upon court Sidney murder indictment of said said Evans and was jury. Upon acquitted of said offense a the trial of the in- plea former case, her stant the court declined to submit jeopardy excepted jury. to this aсtion She brings for review. the matter before us stop Conceding killing and her failure that the of Evans necessary at or about the occurred and render all assistance charge time, would yet acquittal of murder be failing stop and render all neces- no sary to hеr conviction for bar may, by injured party. person accident and A aid to the might another, any part, injure kill fault on his or without murder, stop all guilty if he failed to and render but not be failing aid, stop necessary guilty and render he would be driving killing upon person an or of a offensе; automobile aid. The failing stop quite and render aid is him is one over person may guilty A of the latter when a different offense. injury death is due to unavoidable accident. an or plea jeopardy former are of the that the might to the defendant for the reаson that she not available charged guilty of murder as in the former indict- have been ment; might true, have collided with Evans and she inflicted part, yet fault injury him without on her she necessary stop all required to and render aid and assist- ance; failure to do so would be a violation of the law. three recites that State was in evidence an
permitted to introduce automobile rim recovered from a trash barrel at Nevelow Garage city by Captain in the of San Antonio Brothers Hick- murder, upon appellant’s trial for man. That rim had an tag showing that attached was from a identification V-8 *4 showing car, where and when it was found. Ford But at tag removed and turned over E. this trial the to W. Safety Patrol, Naylor, the a member of State without the knowl- Appellant requested edge appellant. compеl the the court to tag Naylor produce the and attach it to the to rim. The court Naylor Mr. appellant that was attendance at advised court tag Naylor. the from and she could obtain Appellant contends that the action of the trial court com- Naylor place thereby on the witness to stand and pelled her right object the to to the deprived her of introducion of the tag that the identification showed reason the rim rim for the coupe, from a Ford V-8 and would not removed have been to tag identification with the attached. The admissible have been witness, Naylor, and states that the said was qualified bill day trial; the afternoon of the first by on the the State called by appellant’s counsel, cross-examined but was he was that regard tag, although witness question asked 248 possession; appellant
had the his did nor direct question Captain to Hickman or Colonel Carmichael with ref- tag production. erence to the or ask for its bill, qualified, are of the that fails to show Moreover, garage error. the rim was found in a trash can at the repaired only where had had her a few prior hours to the time the found it. officers The mechanic had tag it discarded as useless. The identification was made and placed officers; being parties, on the rim the third act of binding not on either the Statе or the tag being subject explained by person placing to it on the rim. four, seven, exception eight,
Bills of numbers nine and ten court, qualified by qualified are all and as fail to error. show purpose A of each of them discussion would serve no useful lengthen only oрinion. tend this By eleven, appellant complains bill of given testimony Fletcher Joe the effect that he ob- glass pieces City Mr. tained some from Fails at the Hall. Company the Ford He took these to Motor and asked them if they they kind of could tell what car wеre from. The head me- Appellant stated that it came from a 1936 Ford chanic car. objected to the acts and of said conduct witness and the in- given formation him the mechanic because same was glass hearsay and because it was not shown whethеr the came coach, coupe, from a sedan or truck. general.
Appellant’s objection was too She made a blanket testimony, objection part to all of said of which was admis- State, objection the well-established rule this sible. Under testimony рoint must out inadmissible and be addressed State, Rep. ; (280) v. 81 Texas it. Whitehead Crim. 278 See State, Rep. (201) ; State, Martin 80 Texas Crim. 199 v. Davis v. ; Rep. (545) State, 539 Aven v. Texas Crim. 77 83 Texas Crim. State, 37; McKinney Rep. Rep. (35). v. 80 Texas Crim. 31 Moreover, the record discloses that elicited simi- being testimony hearsay. to that of as An lar ac- complain heard will admission of testi- cused or of like nature to mony is similar offered him- State, 374; Burgess Pryor State, 225 v. S. W. v. self. See State, 182; Rep. 376; Sparkman Enix v. Texas Crim. S. W. State, (2d) 972. 82 S. *5 thirteen, exception By complains number bill purported of a confession the admission which charged under arrest and with the murder of made while she concerning not a that it is confession maintains Evans. She offense for trial, failing stop she was then on to-wit: and render agree aid to Evans. her. We are unable to with The injured required State was or shоw that either killed place charged
Evans at the time and in the indictment failing before it could secure a stop conviction for and render confession, aid. therefore, insofar tended to establish the fact that she struck him with her automobile at the time plаce charged, and It admissible. established an essential element of the offense and stop. showed that she did not complained
The matter exception of in bill number four- teen was admissible as a circumstance to show that the deceased just was struck in thе back or below the back. The case evidence; greater one of circumstantial in such cases latitude is allowed in any otherwise, the admission of evidence than and may light upon
circumstance which shed the offense or investigation transaction under is admissible. exception
Bill complains fifteen of the court’s declining action jeopardy, plea submit of former declining permit
and her to introduce in evi- support dence the records in the murder plea. case in of her regarding we have heretofore said disposes What of this bill. this matter All other carefully matters of have been con- sidered us and deemed to be without merit.
Finding record, judgment error is affirmed. foregoing opinion Appeals of the Commission of has Judges been examined Appeals of the Court of Criminal approved by the Court.
ON MOTION FOR REHEARING. urges Judge Appellant that bills of exception Hawkins, . 12, 17, numbers 18 and judg- 19 exhibit errors for which the ment should be reversed. original The bills enumerated were not overlooked on sub-
mission, although they were not discussed. police number twelve rеflects that a officer night testified that after one o’clock M. on of the 11th of A. February seeking appellant he was and failed to find her either home, place at her of business or her but found arrested morning one-thirty her on the of the 12th about A. M. It was objected binding that the acts of appel- the officer were on lant. It to us that occurs the evidence was to show admissible
250
flight appellant of evidence the collision. The from scene of the appellant shows that the accident went Antonio after tо San returning repaired occurred had her before automobile Taylor. argu- brings complaint Bill of number seventeen forward referring ment of of State’s as the failure counsel testify. stating that qualifies The trial the bill attorney. objection argument by appellant’s wаs made qualification excepted Said It the bill in- was not to. renders effective. only. injuries Bill evidence described on deceased’s head eighteen argument appel following. the reflects In his attorney attempted impossible
lant’s the that it was show injured it struck an have deceased unless automobile to closing argument portion body. him on the lower of the In his attorney pair pants picked up the which district of death, of at the time his identified those worn deceased pants formally in evidence. but which had been introduced not jury, attorney pants up in of the The district front held the same, arguing pointing to have out. seat that it showed the of headlight automobile, and that certain been struck the anof portions pants that deceased marks on the of the indicated lowеr body portion had of the also. Use of been struck on the lower ground pants by attorney objected to on the the was district evidence, objection they that had not in which been introduced formally pants intro overruled. had not been While they exhibited to the duсed in evidence had identified and been jury. laboratory employed A witness who was Safety Department he had examined the testified that Public rim longed have of an automobile shown to be from the appellant, imprinted in the rim the dirt on and found pants pattern the deceased, as was the weave of the cloth pants while he was testi were handed witness mentioned, fying. and all other testi In view of the evidence case, including mony the statements of accident, can her conduct after there not confession аppellant’s car struck and killed deceased. doubt that present not error. See Zimmer of does The incident Rep. 114, State, S. 64 Texas Crim. presents question number nineteen newly evidence of witness Frank D. Turner. discovered the witness cumulative of Wilder who His testimony it which was claimed Turner gave precisely the same concluding give. was authorized in that was The court would probable that would have reasonably the trial resulted dif- jury. See ferently had evidence been before Turner’s C., there cited. and authorities Ann. Texas P. Branch’s Sec. originally, Believing the case proper disposition was made of rehearing appellant’s is overruled. motion for *7 Frank State. Schultz 19583. Delivered March No. states the case.
Shropshire Sanders, Brady, & for Lloyd Davidson, Attorney, Austin, for the State. State’s Judge Presiding is for unlaw- . The conviction Morrow, driving public highway fully while an automobile intoxicating penalty at liquor; under the influence of assessed ninety county jail confinement a fine of $100.00 days.