*1 determining guilt inno- competent or evidence with other defendant; cence of the per cent time fifteen-hundredths If there was at that “3. blood, shall be it by weight defendant’s alcohol in the
more of intoxi- the influence was under presumed defendant that the cating liquor; shall foregoing provisions of this subdivision “4. competent limiting any other the introduction
construed bearing question not the defendant whether evidence intoxicating liquor.” was under influence legislatures New York Wisconsin of the states of presumptions years adopting the enacted statutes have in recent out above. set
Remaining disposed properly case that we convinced herein, appellant’s original re- opinion motion for in our hearing is overruled.
Lois Youngblood, Maxwell Fred Ellis Jr. Sinclair
v. State. 25,836. No. 1952. 8, October Rehearing December Motion for 1952. Appellant’s 17, Denied Rehearing (Without Second Motion for Denied Written Appellant’s Opinion) May 1952. Writ of Certiorari Denied Court of Supreme United States October *2 Dallas, appellants. James H. Jones, Martin Joe H. for Henry Wade, Attorney, Bailey, Criminal District Gene First Attorney, Assistant Criminal District Pete Charles S. Potts and White, George Dallas, Attorney, Assistants Criminal District Blackburn, P. Attorney, Austin, State’s for the state. Shepperd, Attorney
John Ben Texas, Milton General of J. Richards, Atchison, John King, M. William Assistants At- torney General, Austin, Respondent, op- Texas, for State in position petition for writ of certiorari.
WOODLEY, Judge. exhibiting The gaming, keeping purpose conviction is for or for the policy game, against punishment assessed appellants being years each of the penitentiary. two in the alleged The offense was been on about have committed or 22, 1950, November at which time Art. Ann. Vernon’s P.C., charged following denounced the here lan- offense in the guage any person agent, “If directly, employee shall or as or an- for
other, through agent or any agents, keep or or exhibit for cóníined purpose.'of.gaining,.anytpolicy'game,*,’he shall.tie four nor more than penitentiary . two less than * * years *.” persons 14 other upon appellants indictment August 17, 1951, prior tried returned on P.C., effective. 642(c), had become Ann. Art. Vernon’s time part as follows: reads Said Article agent, ser- directly, or as Any person who shall “Section servant, through agent, another, any
vant, employee for purpose of person, keep or employee, exhibit or other guilty felony game, gaming, any policy shall be peni- State punished in the confinement conviction shall be tentiary more (2) any years nor not less than two term of (4). four than
*3 [*] “Section 5. [*] [*] Upon the trial for any offense under this Act allege prove that necessary or it shall not be the State money thing thereon. or value was won or lost other of any of may of 6. A conviction had for violation “Section be provisions upon of Act uncorroborated the this the any prohibited accomplice. Any party a of transaction testify, may required Act and but be evidence furnish person furnishing testifying, shall after so or such evidence so prosecuted any not be about with reference to transaction required testify. he is to furnish and evidence (2) may jointly indicted persons more “Section 7. Two or be single multiple vio- in or of indictment counts same for the the any Act, provisions lation of the at election of of this and the joint tried; any jointly provided of State be that such may trial defendants witnesses for one another.
[*] [*] [*] provisions
“Section cumulative 9. of this be Act shall existing provisions all of of of of the Penal Code the State existing Texas and in the a conflict and event of between law provisions Act, pre- provisions of this of this Act shall existing vail over law.”
Appellants sufficiency indictment, con- attack the of the statute, they tend the latter under tried were convicted, deprived rights post them of substantial ex charged which; committed, facto as to the if com- offense prior 642(c) mitted to the enactment of said Art. Vernon Ann. P.C. gave charged of at the time the offense
The law in force right 642(c) severance, Ver- appellants while under Art. of tried, P.C., they indicted and all Ann. under which non were together. subject to trial of defendants were agreement ruling court in of the trial We are change change procedural the effect that this the statute is provides only. The new act the co-defendants shall other, competent not witnesses for each change deprived being only, testimony. procedural of their rights deprived any were not substantial defendants of not, therefore, post new 16 C.J.S. statute is ex facto. See 445, p. Sec. 896. they
Appellants portion attack that of the law under which unnecessary provides were tried and convicted which it is allege thing prove money of the state to or or other value was or lost won. charged
The offense above here under either the statutes quoted necessarily winning losing does involve or money thing. “keep “exhibiting” or other valuable Neither nor ing” necessarily winning losing money includes the or valuables, only showing holding but readiness for purpose obtaining State, bettors. See v. 33 Tex. Crim. Wolz 331; Rep. State, 282; App. Kain v. 16 Tex. Smith v. App. Tex.
Appellants
they
deprived
next contend
sub-
were
of
rights
stantial
because under the former law it was not com-
pulsory
accomplice
state,
an
testify
under
for the
whereas
642(c),
accomplice
required
Art.
testify,
the
to
and a convic-
may
tion
testimony.
be had
his uncorroborated
P.C., provides
Art.
compulsory process
Vernon Ann.
arising
witnesses
619, P.C.,
in cases
under Art.
provides
may
unsupported
that a conviction
had on
the
accomplice.
evidence of
412,
Rep.
an
See Hill v.
143 Tex. Cr.
change
Finally, appellants saving contend that because there is no 642(c), clause in repealed Art. the in statutes force at right offense, the time "of deprived the the state is of the prosecute appellants. defining offense the statute The this contention. overrule change charged made no appellants convicted were of which act provisions new of The the the offense. in the definition of grade of the offense an additional in the old define found the of however, convicted Appellants, were of misdemeanor. by unchanged punishment was felony offense, for which the new act. the of the conduct as to Appellants the insist ap- presence men, of pick-up the policy outside writers They there- hearsay as them. pellants, inadmissible was testimony, disregarding hearsay the evi- urge that, such fore guilt. their is not sufficient to show dence being game clearly policy that a evidence establishes alleged County
kept in Dallas on about time and exhibited as in defendants were identified the indictment. Several using writers, placed by policy with were officers whom bets money. pick-up men who re- marked Others were shown to be commission, money, ceived from along less the writers’ the writers copies slips duplicates delivered to the arrested, duplicate policy bettors. When the were writers slips and them. marked bills were recovered from Youngblood premises by occupied appellant
A search of the finding corresponding policy papers resulted in the books and policy slips purchasing to the delivered to officers. Youngblood’s appellant place persons
One found in working papers policy with the testified
partners policy business, in the and that had hired he been them, appellant having Sinclair instructed him case of destroy papers. raid to police securing co-operated officers who the evidence Youngblood games policy as to appellant had under sur- days prior residence, veillance for several the search of his regularly bags and testified that he took sacks or which he home, just regu- obtained from his car father’s to his *5 larly packages Crawford, delivered L. received to one C. packages other from him. Exception
Bill of testimony No. 3 relates to the of Ben J: placed Thomas to the that he effect several with Knox White bets 22nd, games on November 20th policy on called Texas Orleans, Stars, thereafter New Burma Road and Three origi- policy including confiscated material from Knox White recorded, nal or front sheets in the books where his bets were betting and marked bills which his fellow officer used typical appellants testimony Knox White. This is of the say disregarded. hearsay is as to them and should be is testimony
It contended that this was inadmissible because appellants present were not and were shown to have con- sented conspiracy White, to or to have known of such conduct of and no alleged. quote
is this contention from their brief: conspiracy alleged “No proved. was If such had been the case, then the of officers Stark and could Thomas against conspiracy have been appellants. admitted if a Even alleged had been it would first have to be established before the acts and presence declarations of one outside of the of against would be admissible them.” The trial qualifications appellants’ court in his bill said: “The court depended certifies that these cases for conviction on complained circumstantial evidence and all matters of this Bill showing operation policy circumstances of a game, and tending there were other circumstances shown to connect operation. the Defendants with To make out a case, Prima necessary Facie it was for the State to show all game policy circumstances of this De- connected the fendants operations with the thereof, leading various on whole to the policy game conclusion being con- ducted, guilty and the participation principals.” of the We do not think allegation the absence of an of a con- spiracy controlling. is The trial game game court policy betting defined a as a appearance on the ap- numbers or combinations numbers pearing on slips tickets paper, against player keeper, that certain by player appear numbers bet on will out of a list of game. numbers keeper selected of
A distinguishing game policy feature of a there must be a segregated series of which, together, comprise acts taken up make game. complete Thompson State, See v. Tex. Cr. R. 944; S.W. 2d Hill v. 143 Tex. Cr.
41 Rep. State, Tex. Cr. Mooney 146 810; 412, v. 2d R. S.W. 2d 171 S.W. Rep. 378, 201 Young State, 150 Tex. Cr. court, v. This following passage from approval 46, quoted 2d with W.S. App. 255: al v. 8 Tex. et Cox
“* * * acting together, an are found two or more when common offense, the of an in the commission unlawful intent conspirators together ipso design acting facto makes them and individuality— body a with the attribute —endows them as itself; merges conspiracy act and to do the act in the principal any such previous each or acts and declarations of agreed tending plan, to throw pursuance of the and offenders in light upon com- it or the or intent with which it was motive legal mitted, evi- received as and admissible should be against all, indicted, prosecuted, dence each whether jointly separately.” tried argument closing complains
Bill No. 1 of the district during attorney suspended pleas his discussion of the sentence following of the defendants. The occurred: * * * also, trying
“Mr. I if I man con- would was a Wade: suspended sentence, up sider the when man’s case came before me, guilty say, plead guilty I would want him to T am thing.’ this
“Mr. Miller: Your Honor— pled guilty.
“Mr. Wade: But all of these objection. “The Court: Just a minute. There is an interrupt I “Mr. Miller: Mr. He hate Wade’s statement. record, is so far afield from the I feel don’t like this Court might regard jury is interested in what Mr. Wade want suspended sentence, object making and we to him state- jury. ment to the
“The Court: Overruled. may interested, said,
“Mr. Wade: You in what not be as he want, my point I I but want discuss it from of view on thing. I A MAN AM AND SAY THAT I TO GET UP WANT IT, AND I GUILTY WAS SORRY OF AND IF YOU WILL CHANCE, ME GIVE ANOTHER I IT ANY WON’T DO MORE. you people called, But have sixteen here that when the case was guilty.’ said T am not minute, Now, re-
“ME Martin: Just a Your Honor. those get up and marks what Mr. would want them to Wade to, object we to that. *7 Disregard gentlemen.” remarks, “The Court: Sustained. the
. the Exception 1, appellants Bill that In their No. contend fail- foregoing upon appellants’ remarks constitute a comment testify. to ure certify qualified and declined to
The trial court this bill argument fact, certifies provoked the invited. In he was not argument. argument that the was in answer to defense counsel’s argument, exception appears been reserved the to have to No being apparently court’s appellants’ satisfied with the counsel instructing sustaining objection the the made and action in disregard jury remarks. to the agree to the above constituted are unable remarks
We testify appellants’ to failure to or that reversible a reference by is bill. error shown to the conclude that the evidence is sufficient sustain requiring
conviction and find no error reversal. judgment is affirmed.
Opinion approved by Court. appellant’s rehearing.
ON motion for DAVIDSON, Judge. their insistence that new
Appellants renew the so-called them, post 642c, C.) (Art. P. is ex facto Vernon’s as statute controlling applicable not to or is instant and therefore placed upon Especial emphasis the contention that is trial. by right separate the use of the severance statute has a trial act, injuriously destroyed by new as to was such been rights change appellants’ and therefore fundamental could not procedural. and was guaranteed right preserved by severance statute furnish to an accused the means which he could make was to testimony of co-defendants co-indictees. The available necessary incident to the thereby accorded separate trial co- prohibiting right, statute because fulfillment P. Art. C.C. testifying one another. from indictees right sever- The new statute accorded terms, express pro- for, them, by its preserved ance statute could co-indictees whereby made codefendants vision was for the other. one witnesses right by the therefore, conferred apparent, It is appellants under expressly preserved to statute was severance the new statute. post ex
Appellants new facto as to that the statute insist un- it and allows conviction them because alters provides accomplice com- an corroborated pulsory testimony of co-defendants. *8 contention, originally, disposed propo- changes particulars
sition that the made no in the new statute pointed out and remedies that both existent and controll- were ing existing under the at al- statute time offense was leged to have been committed. remaining presented in the contentions motion disposed original holding.
all no under our It would serve again purpose useful thereto. state our conclusions relative rehearing motion for is overruled. Opinion approved by the court.
Tommy Bush C. v. State. 26,473. No. June 1953. Rehearing (Without State’s Motion for Denied Written Opinion) October