Armentrout v. State, 20687.

• Decision Date: 13 December 1939
• Docket Number: No. 20687.,20687.
• Citation: 135 S.W.2d 479
• Parties: ARMENTROUT v. STATE.
• Court: Texas Court of Criminal Appeals

Page 479

135 S.W.2d 479

ARMENTROUT v. STATE.

No. 20687.

Court of Criminal Appeals of Texas.

December 13, 1939.

Rehearing Denied January 17, 1940.

Commissioners' Decision.

Appeal from District Court, Pecos County; W. C. Jackson, Judge.

T. B. Armentrout was convicted of theft of cattle, and he appeals.

Affirmed.

Joe E. Kelly and R. D. Blaydes, both of Fort Stockton, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft of cattle. The punishment assessed is confinement in the state penitentiary for a term of 2 years.

The uncontradicted testimony shows that on or about the 5th day of January, 1939, appellant killed and sold a jersey heifer calf to a meat market in Fort Stockton. The hide was identified by both Mr. Sullivan, the owner, and Mr. Warnock, a neighbor. Mr. Warnock testified that he saw appellant drive a cow and the calf in question toward his home. Appellant said he thought the calf was his own; that if it was Mr. Sullivan's, he merely made a mistake. It will thus be seen that an issue of fact was raised which the jury decided adversely to appellant's contention.

Appellant contends that the trial court erred in declining to sustain his motion to quash the indictment because he claimed it was found and returned by an illegally constituted grand jury. It appears from the record that appellant had already been arrested, charged by complaint with the offense and was out on bond at the time that the indictment was returned against him. This court has many times held that an accused may not, under such circumstances, challenge the formation of the grand jury by a motion to quash. The duty rests upon him, in cases of this nature, to make a challenge to the array under Art. 361, C.C.P. As stated in Gentry v. State, 105 Tex.Cr.R. 617, 290 S.W. 541, 542:

"* * * If, under such circumstances— that is, he being under arrest or under bond charged by complaint with an offense—his right to challenge the array would be waived unless exercised by him before the grand jury was impaneled. * * *"

See also Hunter v. State, 108 Tex.Cr.R. 142, 299 S.W. 437 and the authorities there cited.

By a proper bill of exception and on motion for new trial appellant complains because the hide of the stolen animal, which was introduced in evidence upon the trial and inspected by the jury, was upon the request of the jury taken into the juryroom and there again inspected by them. It appears from the motion and the record that appellant's defense was that he had made a mistake if he had killed and butchered the injured person's calf. He stated that he had a calf which looked very much like Mr. Sullivan's. The state introduced this hide in evidence. Upon their retirement the jury in discussing the same came to some differences on the markings of the animal and requested the sheriff to bring the hide to their room for inspection. This the sheriff did. The question for us to determine is whether or not it was error for the jury to again view this hide after their retirement. That the hide was admissible as original evidence is too well settled to admit of argument. See Ledbetter v. State, 35 Tex.Cr.R. 195, 32 S.W. 903, holding a hide admissible as demonstrative evidence under very similar circumstances. See also Vol. 18, Tex.Juris., Sec. 206, p 334. The rule seems also well settled that the jury can take with them into the juryroom various articles over which there might be argument. In such cases the authorities hold that unless there is proof in the record that the jury used such evidence in a manner inconsistent with its original presentation, then no error is committed. An analysis of the evidence adduced upon the motion for a new trial shows that the purpose of the jury was merely to settle the question of the possibility or probability of defendant's making a mistake. Consequently no error is presented. See the authorities cited in Vol. 42 Tex.Juris., Sec. 328, p. 418.

Appellant also complains because of alleged misconduct of the jury, asserting that they took into consideration the failure of the defendant to ask for a suspension of sentence. It appears that upon the trial, appellant's own attorney asked him whether or not he had ever been convicted in Pecos County of any offense. He replied in the negative. The district attorney then interrogated him as to whether or not he had ever been convicted in this state or any other state of a felony. Appellant's attorney objected to the question and the objection was sustained. Upon their retirement the jury at first stood 9 to 3 for conviction. There arose some question as to whether or not appellant could get a suspension of sentence and a request was sent to the trial judge to inform them on this matter. He recalled them into court and instructed them that they were not authorized to suspend appellant's sentence, inasmuch as no such request had been made by him. The jury then returned to the jury room and shortly thereafter agreed on two years' imprisonment. It is appellant's contention that the evidence adduced upon the hearing of the motion relative to this misconduct clearly shows that the question as to whether or not he should be convicted at all was made to depend upon whether he had ever been convicted of a felony, and that the purpose of the jury in asking the trial judge if he were entitled to such suspension of sentence was to determine whether or not sentence could be suspended. That if it could, then they would hold him not guilty at all, but if it could not, then they would proceed upon the assumption that he had elsewhere been convicted of a felony and then hold him guilty for the theft of the calf.

The most that can be said for his contention is that the evidence is conflicting. Two of the three jurors introduced clearly stated that their only purpose in asking the trial judge whether or not appellant's sentence could be suspended was so that they might vote for a suspension if such were the case. Appellant not having applied for a suspension of sentence, he was not entitled to it, and the court was correct in so informing them because that was the law, and the jury is entitled to be advised as to the law of the case. However, the evidence heard by the court on the motion was conflicting, and we would not be authorized to set aside the court's finding on such an issue of fact.

By bill of exception number two, appellant complains of the following occurrence. After the state's witness Warnock had testified for the state, he was asked on cross-examination by appellant's attorneys what his social relations had been with the defendant and his family. He replied that his family and the Armentrout family had been visiting back and forth and had tried to be good neighbors. He stated that he had never gone down and stayed at Armentrout's home or eaten dinner, but had tried to be good neighbors. That he thought his wife had visited in Armentrout's home. Appellant's counsel then asked the witness if he had not tried to rent the place from under the defendant through Mr. Shaw, the owner. This Warnock denied. Thereafter while the defendant was testifying in his own behalf he was asked by his counsel if Mr. Warnock or his wife had ever visited in his home and whether or not he knew that Warnock had attempted to rent the place from Mr. Shaw where he (defendant) resided. The state objected to these questions and the objections were sustained by the court, the defendant not being allowed to answer. The bill states that if the defendant had been permitted to answer the question, he would have stated that neither Sam Warnock or his wife had ever visited in his home, though they lived within a few hundred yards from him. That within his own knowledge Warnock had on more than one occasion tried to rent from the owner, Shaw, the land which he, defendant, had in his possession by virtue of a rental contract with Shaw. The bill is multifarious and not entitled to consideration. Moreover it appears to us that it was an attempt to impeach the witness on an immaterial matter. But if it should be conceded that there was ill will and animosity on the part of Warnock toward appellant, it appears that it did not cause Warnock to color his testimony so that it might appear more favorable toward the state, because Warnock testified that he saw appellant driving Sullivan's cattle, including the animal in question, toward his, appellant's, home, and appellant, while testifying in his own behalf, admitted driving the cattle at the time and place mentioned by Warnock, but contended that if he did butcher Sullivan's yearling, he did so through mistake, believing at the time that it was his own...