*1 pellant. weighed tall and 17S
pounds. Appellant pic- introduced several underprivileged
tures of the area where
offense alleged to have been committed depict one of them does one side Street,
Norwich they which agreed it is
were traveling, is covered with thick under-
brush visible, and trees and no houses are
which appellant’s ap- rebuts assertion that
pellant expected would not be to consum-
mate his “fairly in this pop- well
ulated area of West Dallas.” State, Tex.Cr.App., Adams v. 215 S.W.2d
327, upon relies, easily appellant which
distinguishable because in that case there
was no stated act inter- Dyer
course. In Tex.Cr.App., brief, also cited
there physical was no contact between the prosecutrix, according
her testimony.
Finding the evidence support sufficient to
the conviction and no reversible error
pearing, judgment is affirmed. URBAN, Appellant,
Harry Remer Texas, Appellee.
The STATE of
No. 37122. Appeals of
Court of Criminal Texas.
Jan.
Rehearing Denied
McDONALD, Presiding Judge. Appellant was convicted of offense bookmaking as engaging in the business of Ann.P.C.; 652a, by denounced Art. Vernon’s punishment at confinement his was assessed penitentiary for a term three state years. pertinent parts of are:
The the statute definition; Bookmaking; “Art. 652a. penalty” Any person
“Section who takes or accepts places or for another a bet or wager money anything or of value ** * race, on a horse shall be guilty upon making of book convic- punished by tion be confinement in the Penitentiary any term of State years (1) not less than one nor more (5) than five confinement in the county jail (10) for not less than ten days year (1) nor more than one a fine of not less than Hundred One ($100.00) Dollars nor more than One ($1,000.00) Thousand Dollars. person, Any
“Sec. 2. who shall year (1) indictment commit as many pro- (3) as three acts which are under of this Act shall hibited Section guilty engaging be in the business of making book conviction shall punished provided in 1 of Section this Act.” reflects State’s C. J.
Davidson,
City
police
officer of the
plain clothes, placed,
working in
Dallas
appellant accepted,
on horse races
bets
separate days
of 1961.
in December
objection
it was
over
permitted
hearsay,
to introduce
Colvin,
Tessmer,
Jr.,
Emmett
Charles W.
is the state’s
into evidence.
It
indictment
Dallas,
appellant.
position that
indictment was offered for
present-
Wade,
showing
Henry
Atty.,
F.
the date
Dist.
William
case,
Miller,
Alexander,
Turlington
in this
for that
M.
ment to the Court
C.
Jim
Attys.,
only,
Bowie,
for the record alone.
Asst. Dist.
.and A. D. Jim
Atty.,
Dallas,
Douglas,
state also contends that since the
Leon B.
State’s
.Austin,
had been read to
for the State.
indictment;
prior
the court
introduced before
not have
could
appellant.
injury
inescapable
caused
so the conclusion is
that the
dictment was offered
into evidence
sufficiency
Appellant challenges
*3
state to show that limitation had not run on
evidence because the trial court instructed
charged.
the offense
jury
the
consider the
not to
therefore,
guilt;
jury could
evidence of
the
earnestly
The state
insists that
not
that the
of book-
have found
three acts
judicial
the
applies
doctrine of
notice
in
proved
making
have been
to have
could not
case
this
and that the indictment as read
year prior
filing.
been within one
to its
the
shows
acts to have been committed
year prior
within less than one
thereto.
learned
have concluded the
We
says
state
judicial
that
notice takes
sustaining
court
in not
trial
fell into error
place
the
of
equal
is
force
appellant’s
the
objection
the admission of
to
and that the
sup
evidence is sufficient to
clearly
indictment.
indictment was
port
However,
the conviction.
record
the
Hearsay
hearsay.
proof.
It constituted no
here does not reflect that
the Court took
actually
at all.
evidence is not
evidence
judicial
request
notice. No
was made that
557;
Tex.Jur.2d, p.
Parte
24
Sec.
Ex
judicially
the Court
the
notice
indictment or
357;
Thrash,
Tex.Cr.R.
anything else. The Court did not indicate
State,
Doyle
Tex.Cr.R.
it
judicially
that
had
noticed
indict
the
Although
properly
2d
it
read to
was
ment,
certainly
nor
showing
was there a
properly
jury
jury might
the
the
also
that the Court
jury
instructed the
to con
the
taken the indictment
have
into
sider the indictment under the
doctrine
deliberations,
the indict
room
its
during
judicial notice. We doubt that
it would
merely
pleading of the
ment
a
was still
been proper
have
for
court
judi
to have
state.
the indictment was
offered
If
cially noticed
vitally
contested bit of'
the state as evidence to show the date of
imperative proof, such as the three es
record,
presentment,
only
but
sential
indictment,
dates in the
anyhow.
that
and for
alone
the
We think the
relegated
state was
to
showing
presentment,
date of
the court the
proof and should have and could have
given
jury.
then
How
was
to the
adduced
pertaining
evidence
to these dates
ever,
disagree with
we are constrained to
relying upon
without
the indictment. Cer
position
state’s
the reason that this
the
tainly the clerk of the court and the Minutes
hearsay
shown
the indictment
evidence
of the
supplied
Court could have
n
this vital
jury.
jury’s
the
before the
also
It was
evidence. We feel
the
Court’s instruc
find,
court,
task to
three
and not the
that the
charge
tion in the
jury effectively
to the
de
alleged
acts
the indictment
commit
in
were
stroyed any credence that
the
might
period
preced
ted within a
'
placed upon
have
initially.
the indictment
ing
the
of the indictment. These
phase
This
charge
the court’s
was as
necessarily
been
acts must
have
binding
any
other
charge
of the
from evi
determined
facts derived
the court.
support
give
dence
to
to a verdict
guilt. The
date of
expresses
state asserts that
The writer
view that
presentment
integral part
of the indictment
an indictment
is
guilt,
is not
to he
evidence
but a
pleading
state’s
a useful and essen
it is
fact
compute
determined
limi
guide
to
tial
its
to
to the
in
deliberations
sound,
position
weigh
against
If the
is
tations.
state’s
test and
al
surely
certainly
then
this
an evi
legations
contained in the indictment in or
Appellant’s
dentiary
guilt
proof supports
could not
determine if
der to
state’s
fact.
allegations
be established without evidence
sustain
various
contained in the-
to
these
the allegation
However,
in
it
contained
would constitute
indictment.
transpired
reasoning
adopt
three acts
fallacious
view
evidence,
early
Kennedy
In the
case of
pleading of
state became
Tex.App. 399,
Appeals
proof.
Court
said:
without
“The records must show the fact of
pass upon
necessity to
find no
We
presentment
Upon
another
other contentions.
that fact must
entered of record.
hereof,
complained of error
trial
* * *
done,
up-
This was
and the date
again.
charge
not arise
courf s
will no doubt
perpetuated
on which was
done
error
express
that no
the further view
We
certainty by
the record.
shown with
of the trial court
in the action
reflected
circumstances,
Under such
the record
reporter
take
to instruct the court
failing
*4
best evidence
would be the surest and
the
of
all
voir dire examination
down
of the
of
both
the date and the
the fact
of
qualifica
panel,
view the court’s
jury
in
of
presentment,
in
and in case of variance
exception
ac
tion of
bill of
the
this
filing
dates of the
the record would
the
ceptance by appellant’s
of
bill
counsel
the
* *
Suppose
control
*.
there had
qualified.
as
indictment,
upon
no
the
been
file-mark
would the failure
omission of the
or
insufficient to
Finding the evidence
By
clerk invalidate the indictment?
verdict,
revers
judgment
the
is
sustain the
means;
the
or
because
omission
ed
cause remanded.
respect
in
failure of the
this
clerk
be, by
supplied,
could be
and would-
ref-
WOODLEY, Judge (dissenting).
records, kept and au-
erence to the
“presented” when
An indictment
is
by
These rec-
thenticated
the court.
grand
duly
the
acted
has been
ords,
they alone, import verity
.with
Art.
jury
by the court
and received
regard
judicial proceedings.”
to
C.C.P.
of
in-
presentment
date
the
The
of
presentment of indictment
a
fact of
“The
dictment,
filing
the
of
court,
be
grand
open
jury
shall
in
entry
presentment
the
the
of the
record
court,
of the
upon the minutes
(cid:127)entered
indictment,
correct, necessarily
if
corre-
ac-
criminal
briefly
style
the
the
noting
spond.
indictment,
of the
file number
tion and the
“Presented” and “filed” in this connection
defendant,
of the
omitting the name
but
refer
the same date.
custody
bond.”
in
under
he
unless
is
“filing”, in connec-
“Presentment” and
Art. 394 C.C.P.
indictments,
in-
have been used
tion with
it was done
the date
done and
This was
up-
passing
terchangeably
Court in
by the minutes
and shown
perpetuated
was
pleas of
Duncan v.
on
limitation.
Page
as Recorded
court,
(cid:127)of
Vol.
the
Tex.Cr.App.,
S,
March
“filed” where
use of
One instance
the
its number and the
given
was
cause
“presented” re-
companion
use
statutes
his file
on the indictment
endorsed
clerk
day
is Art.
ferring
the same
Mar
11:43 A.M. ’62.”
mark: “Filed
Limitation Statute.
There
no merit in
the contention that
“filing”
use
in-
word
the evidence is insufficient to sustain the
dictment,
“present-
rather
than the word
proof be-
conviction
there was no
because
ment,” which is used in Sec. 2 of
652a
Art.
jury
pre-
fore the
was
V.A.P.C.,
change
did not
af-
the sense or
5, sented or filed on March
or the
validity
fect the
of the indictment.
in-
contention that
of the date the
provides:
Art. 410 Vernon’s Ann.C.C.P.
presented
dictment
did
constitute
was
in-
“Words
in a
to define an
of the date of the
of'
used
statute
strictly pursued in
dictment
offense need not
indictment;
to use
curred
a 12
it-is sufficient
months
next
mean-
conveying
same
other words
the indictment.
ing, or
sense of
which include the
The State has filed an extensive
statutory words.”
brief in which are cited a number of cases
presented and filed on
The indictment
dealing with the construction of instruments
5, 1962,
in evidence
introduced
March
pleadings
or a
there
collateral attack
date it
showing the
upon,
single
but not a
case in
which
court,
charge,
presented.
in his
question of
sufficiency
of the evidence
presented
on
structed the
that it was
being
discussed. So at most
went
what
required
charge
1962. The
stamp
before the
was a
the back
find,
convict,
:to
order to
bears
indictment. The indictment
*
* *
pellant
accept
“did take or
name,
Thornton,
Court”,
“Mrs.
Clerk
wagers
many
separate
bets
witness,
yet
as a
called.
she was not
period of
money
on horse races within
We should not be
a con
asked to affirm
preced_the
presentment
proper proof
viction
integral
without
of an
presented on
which was
*5
element
proof
case when
avail
1962,
5,
to-wit,
five dol-
the sum
able and not offered.
day of Decem-
lars on or about the said 19
The State’s motion
rehearing
is over-
ber,
1961,
dollars on
A.D.
sum five
ruled.
December,
day
A.D.
or about the 16
1961,
on or about
five dollars
sum of
* *
1961,
day December,
IS
A.D.
WOODLEY, Judge (dissenting).
No issue
the date the
was raised as to
sub-,
dissent
original
writer on
presented
indictment
filed and the
mission was addressed in
charging
trial court did
not err in
“presentment”
contention that
distin-
is a
to such date.
as
guishable act from that
“filing”
,The.
regarding
contention
state of
“filing”
that
the statute refers to the
the record with reference
whether the
whereas the indictment al-
was before the
leged that
the bets were
taken within
quite
like'the contention we overruled
period
year
one
preceding
next
Petty
State,
569,
v.
166
317 S.W.
Tex.Cr.R.
presentment of the indictment.
2d
point appellant
In connection with this
state’s evidence was
State,
382,
cited Flores v.
143 Tex.Cr.R.
19th,
made
bets on December
16th and
To sustain this rehearing conviction was motion should state’s essential that the State granted, only offer errone- because jury’s consideration holding the offenses oc- ous the file mark on the hearsay dictment was and of weight evidence, hut because no of the date “returned”, “presented” required.
or “filed” was The trial court was
authorized to judicial take notice of such
facts and date and instruct the as he State,
did. Donald v. 165Tex.Cr.R. 360; State, Dunn 92 Tex.Cr.R. 1049; Baker v.
Tex.Cr.R.
Martha Texas, Appellee.
The STATE of
No. 37522. Appeals
Court of Criminal of Texas. *6 3, 1965.
Feb.
Rehearing Denied March Peace, B. Langham, Carlos John J.
Cadena, Antonio, appellant San peal only. Barlow, Atty., E. Dist. M. C. James Casillas,
Gonzales Richard M. Asst. Attys., Antonio, Dist. B. San and Leon Douglas, Austin, Atty., State’s State.
DICE, Commissioner.
Appellant an indictment was tried and convicted for murder with malice malice, and her murder without confinement punishment at was assessed years. penitentiary in the for five shows The state’s deceased, in an husband, lived and her Wheatley Courts apartment upstairs city of Street Aldridge at Ira question, night Antonio. On San courts, in front of boys were some while m., 1 a. talking, heard around a shot