Ambrose v. State, 22148.

• Citation: 165 S.W.2d 188
• Decision Date: 03 June 1942
• Docket Number: No. 22148.,22148.
• Parties: AMBROSE v. STATE.
• Court: Texas Court of Criminal Appeals

165 S.W.2d 188

AMBROSE v. STATE.

No. 22148.

Court of Criminal Appeals of Texas.

June 3, 1942.

On Motion to Reinstate Appeal June 24, 1942.

Rehearing Denied November 4, 1942.

Appeal from District Court, Upshur County; Bascom Gist, Judge.

Elmer Ambrose was convicted of rape, and he appeals.

Affirmed.

Mat Davis, of Gilmer, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for rape, punishment being five years in the penitentiary.

As it originally reached this court the transcript contained no judgment, no sentence, no notice of appeal, no order on the motion for new trial and no recognizance or appeal bond.

There is no excuse for any such carelessness in the preparation of records for appeal.

By supplemental transcript the omissions mentioned have been supplied. We find that appellant did not enter into recognizance during the term of court, but gave an appeal bond long after court adjourned, which bond is approved by the sheriff only. Art. 818, C.C.P., provides that before such bond "* * * shall be accepted and the defendant released from custody by reason thereof, the same must be approved by such sheriff and the court trying said cause, or his successor in office. When said bond is so given and approved, the defendant shall be released from custody."

Many cases are cited in Note 1 under the article mentioned in Vol. 3, Vernon's Tex. C. C. P., and under the same note in the Cumulative Pocket Part of the same volume, holding that an appeal bond approved by only the judge or sheriff is not a compliance with Art. 818, C. C. P., and is fatal to the appeal.

The appeal is dismissed.

On Motion to Reinstate Appeal.

GRAVES, Judge.

The numerous defects in this record have been remedied by supplemental transcripts, and the appeal is reinstated, and we will consider the same upon its merits.

It was alleged and proven that the girl Willie May Mitchell was a child, not then fourteen years of age, the appellant being shown to be her uncle, her mother's brother.

The testimony relative to the act of intercourse seems to be sufficient to show the guilt of appellant, he being content to rely upon evidence of an alibi, which was evidently not believed by the jury.

The bills of exceptions offered by appellant's attorney, with slight exceptions, were qualified by the trial court in such manner that same were not acceptable to the appellant's attorney, who excepted to such qualification, whereupon in each instance the court prepared his own bill in lieu thereof, appellant's attorney not availing himself of a bystander's bill. We then have before us such bills prepared by the trial court.

Bill of exceptions No. 1 complains of the overruling of a motion for a continuance because of the absence of the witness Mrs. Jim Scott who was sick and unable to attend the trial hereof. Appellant says that he expected to offer as a defense herein that Earl Mitchell, the stepfather of the prosecuting witness, was the person who had an act of intercourse with this girl, and that the appellant was not such person. The testimony he expected to elicit from Mrs. Scott was: "That Agnes Mitchell, wife of Earl Mitchell, came to her (Mrs. Scott's) house on or about the 20th day of March 1941, with a shot gun and told said witness that Earl Mitchell had gone crazy, and had been doing things for which she wanted him locked up."

This was the second trial of this cause, and on the first trial Mrs. Scott did testify as above outlined, which was supposed to be connected up with misconduct of Earl Mitchell with his step-daughter, but the bill states that no such connection was ever made, after three days of testimony, and that "No witness ever at any time accused Earl Mitchell of improper conduct with prosecutrix." We think such testimony above outlined, had Mrs. Scott been present, would not have been material nor admissible, and the court was correct in overruling such motion.

Bill of exceptions No. 2 complains of the fact that appellant was not served with a certified list of the special venire selected to try this cause one day before his case was set for trial. This bill was also qualified to such an extent that appellant excepted thereto, and the court prepared the court's bill which we now consider.

It is evident from the presented bill that appellant desired to quash the special venire because a copy of the same was not served upon him of the jurors summoned one day prior to the trial of the case. It appears from such bill that this case had been set for trial for January 15, 1942. That prior to said date the judge, the clerk and the sheriff, as well as the appellant, met in the court room and proceeded to draw the names for this special venire of 75 men; that at such time appellant as well as his attorney signed the following written agreement found in the statement of facts: "Now comes Elmer Ambrose, defendant, in the above entitled and numbered cause, and Mat Davis, his attorney of record, and they and each of them hereby waive personal service on the veniremen drawn to try this cause on January 15, 1942, and agree and suggest to the sheriff of Upshur County, Texas, that notice to said veniremen be mailed to them by postal cards deposited in the United States mail."

We then find in the record a list of the 75 juror venire, showing same to have been issued on January 12, 1942, and therein the sheriff is directed to serve such list on appellant. We then find the testimony of appellant in the record relative to this point wherein he says that such list was served upon him about two days after the case was set, and more than one day before it went to trial. We, therefore, gather from the evidence that the reason offered for the quashing of this venire was because the jurors were not summoned in person by the sheriff but were telephoned to by him. The statute cited by appellant, Art. 601, C.C.P., does say: "No defendant in a capital case shall be brought to trial until he has had one day's service of a copy of the names of persons summoned under a special venire, except where he waives the right or is on bail. * * *"

We think it is shown that appellant's agreement, signed by both himself and his attorney, amounted to a waiver of personal service upon the veniremen, and his own statement shows proper service upon him of a copy of such venire. We see no error evidenced in such bill.

Bill of exceptions No. 3 is another of the trial court's bills, and is based on the court's failure to grant a continuance because appellant's attorney was engaged in a final settlement of an important civil case, and desired to settle same by an agreed judgment whereby a large sum of money would go to certain needy persons as well as a substantial fee to such attorney, and the attorney desired a postponement or continuance of this criminal cause in order that he might prepare and have entered the proper orders in such civil cause. The trial court's bill shows that upon request of the appellant's attorney, and while the selection of this jury was being had, the court suspended proceedings in this cause and entered the proper orders in the civil cause, and all parties seemed to be satisfied with this dispatched business, the attorney included. So we think this bill presents no error.

Bill of exceptions No. 5, prepared by the court, is based on the court's refusal to have the court reporter read to the jury the testimony of all the witnesses heard in this cause at a former trial thereof in which a mistrial was had. The court was correct in refusing such request. If the appellant's attorney had desired to offer any testimony given in the former trial different from that given by such witnesses in this trial, it was his duty to lay a predicate therefor, and then offer the contradicting testimony from the notes taken on the former trial. A trial burdened with all the testimony of both trials would be but a useless consumption of time, and lead to interminable confusion. We think the court was correct in denying such request.

Bill of exceptions No. 6 complains because it is therein alleged that the State...