Biggins v. State

Decision Date18 January 1928
Docket Number(No. 11321.)
Citation3 S.W.2d 816
PartiesBIGGINS v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Ellis County; Tom J. Ball, Judge.

Son Biggins was convicted of assault to murder, and he appeals. Affirmed.

Looney & Stout, of Ennis, for appellant.

A. D. Emerson, Co. Atty., of Waxahachie, Archie D. Gray, Sp. Pros., of Ennis, and A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, assault to murder; penalty, six years in the penitentiary.

Motion was made in the trial court to quash the indictment. We pass on this question without pausing to consider or decide whether such a matter can be thus raised. The bill of exception raising this point shows in substance the following: That at the regular September term, 1926, of the district court of Ellis county, Hon. Tom Whipple was elected as special judge, which fact appears by a qualification to the bill of exception, accepted by appellant and by which he is bound. A grand jury appeared at the next term of court in December, but the bill alleges as a fact that there nowhere appears in the proceedings of the district court of Ellis county for the September term any order of the district judge thereof or any special district judge thereof appointing or naming a jury commission to draw a list of persons for grand jurors of said court for the December term. Appellant was indicted at the December term, which indictment he insists is void, by reason of the absence of said order. He was subsequently tried before the regular judge at the March term of the district court of Ellis county. The bill of exception fails to show that no order appointing a jury commission was in fact made.

Appellant relies upon the case of Blanks v. State, 105 Tex. Cr. R. 341, 288 S. W. 452, to sustain his contention. The case cited is based upon certain mandatory provisions of the statute requiring a record of the selection and oath of office of special judges before whom a case may be tried. It has no application to the point raised in the bill of exception. There is no mandatory provision of the statute requiring a record of the appointment of jury commissioners, nor one which makes void the acts of such commissioners, whose appointment the clerk has failed to record.

The trial of this case was before a regular, not a special, judge, and the proceedings attacked are not covered by the provisions of the statute referred to in the Blanks Case.

The burden was upon appellant to show lack of authority in the jury commissioners purporting to act, and this burden he has failed to discharge. As said in the case of Schwartz v. State, 38 Tex. Cr. R. 26, 40 S. W. 976:

"If his authority is to be questioned, the onus is upon the party attacking his authority to show that he was not in fact a special judge of said district court, and that the order of transfer, in consequence, was void."

See, also, Sanchez v. State, 94 Tex. Cr. R. 606, 252 S. W. 548; Johnson v. State, 14 Tex. App. 310.

It is further suggested that the indictment should be quashed because the real name of appellant was A. I. Biggins and not Son Biggins. The appellant seems to disagree with his counsel about this matter. He testified on the trial: "My name is Son Biggins." He was referred to by the witnesses as "Son Biggins." The contention is wholly without support in the record, even if it were sound as a legal proposition.

By bill of Exception No. 5 it is made to appear that Mrs. Thompson, the prosecuting witness, was permitted, over objections, to testify that the bullet fired at her went across her mother's bed and almost struck the bed. Appellant is shown to have fired only one shot, which was the one referred to by witness. It was a part of the res gestæ, and clearly admissible. McCall v. State, 14 Tex App. 353; Maxey v. State, 104 Tex. Cr. R. 661, 285 S. W. 617; Underhill's Criminal Evidence, § 501. It was admissible under the facts of this case not only to show that the bullet almost struck the mother of prosecuting witness, but it would have been permissible to prove that it did in fact strike her, if same had been a fact, and such testimony, being res gestæ, under the circumstances would not even have had to be limited in the court's charge. Collins v. State (Tex. Cr. App.) 299 S. W. 403; Jenkins v. State, 59 Tex. Cr. R. 475, 128 S. W. 1113.

By another bill complaint is made of the introduction of a pistol found the next morning where the appellant had been apprehended the night before and of a cartridge at his house which fitted this pistol. The pistol found had three snapped cartridges and one discharged cartridge in it. A witness for the state testified that appellant snapped his pistol three times and fired once. The evidence was admissible, and the objections to same go to its weight and not to its admissibility. Underhill's Crim. Evidence (3d Ed.) § 494; Forrester v. State, 73 Tex. Cr. R. 61, 163 S. W. 87; Hardin v. State, 51 Tex. Cr. R. 559, 103 S. W. 401.

It is urged that the court erred in not charging upon circumstantial evidence. Witness Charlie Thompson positively identified appellant as the man who fired into the house of his mother, and the appellant himself does not deny it, testifying, "I don't know whether what they have testified here about shooting in the house is true or not. I was not in condition to know what I was doing." There could be no doubt of the correctness of the court's action in refusing to charge on circumstantial evidence, under such facts.

Many other questions are raised, all of which have been examined and are believed to be without merit and not to justify any discussion.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Appellant was tried at a term of the district court which began on the 7th day of March, 1927, over which Hon. Tom J. Ball presided. The indictment was returned at the December (1926) term of the district court, at which time Hon. Tom P. Whipple presided as special judge. The point apparently raised is that, in the absence of an order appointing a jury commission at the December term...

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