Bink v. State

• Decision Date: 28 November 1906
• Citation: 98 S.W. 863
• Parties: BINK v. STATE.
• Court: Texas Court of Criminal Appeals

98 S.W. 863

BINK v. STATE.

Court of Criminal Appeals of Texas.

November 28, 1906.

Rehearing Denied December 19, 1906.

Appeal from District Court, Lamar County; Ben H. Denton, Judge.

Jack Bink was convicted of theft, and appeals. Reversed and remanded.

See 98 S. W. 249.

H. B. Birmingham and D. K. Fooshee, for appellant. Dave Watson, R. L. Lattimore, Co. Atty., and J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the theft of property from M. S. Holder, over the value of $50, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.

Appellant made a motion for a change of venue, based on both phases of the statute, to wit, that there was so great a prejudice in the county as that he could not get a fair and impartial trial, and that there existed in the county a formidable combination of influential citizens, etc. This was contested by the state and a good deal of evidence adduced pro and con on the subject. However, the bill of exceptions, embodying the evidence adduced on the question, was filed after the adjournment of the term of the court, though within the 20 days allowed after the term in which to file statement of facts and bill of exceptions. The term adjourned on May 26, 1906, and this bill of exceptions was filed on June 12th, which was after the adjournment of the term. The Assistant Attorney General objects to the consideration of the same as a bill of exceptions to the action of the court overruling the motion for change of venue on the ground that the same was not filed during the term as required by our statute and decisions on the subject. In accordance with our construction of the statute, the contention of the state is correct. Cortez v. State, 66 S. W. 453, 4 Tex. Ct. Rep. 1; Wallace v. State, 46 Tex. Cr. R. 341, 81 S. W. 966; Lax v. State, 46 Tex. Cr. R. 628, 79 S. W. 578, and authorities there cited. In Cortez v. State, supra, the bill of exceptions embracing the evidence heard on the motion for change of venue was filed in connection with the statement of facts, which, under the order of the court, was filed after the term. It was held in that case, following the authorities, article 621, Code Cr. Proc. 1891, controlled the bill of exceptions relating to a change of venue, and this required that the bill of exceptions embodying the statement of facts to the action of the court overruling the motion for change of venue, according to the terms of the statute, should be prepared, signed, approved, and filed at the term of the court at which said order was made. It was held in Lax v. State and Wallace v. State, supra, that the subsequent act, allowing 20 days within which to file bill of exceptions as well as the statement of facts, did not change the rule with reference to a bill of exceptions taken to the refusal of the court to change the venue, made under article 621 relating to that subject. However, a new question presents itself here, inasmuch as, since the decision of the two cases above referred to, the Twenty-Ninth Legislature (Gen. Laws 1905, p. 219, c. 112) passed the stenographer's act, relating to statement of facts and bills of exception. That statute has been construed in Mundine v. State, as well as the Taft and Baker Cases, decided at the present term, and it was there held, in order for an appellant to take advantage of a stenographer's report as a statement of facts, he must comply with the rule relating to the filing of statements of facts, and file such stenographic report of the evidence within 20 days, if such order be granted by the court. No question was raised in those decisions with regard to a statement of facts involving a bill of exceptions to the refusal of the court to change the venue. We now hold that there is nothing in said stenographer's act that militates against the view heretofore taken by this court in the construction placed on article 621, Code Cr. Proc. 1895, requiring a bill of exceptions relating to the overruling of a motion to change the venue. Section 5, p. 220, of said act provides: "In case an appeal is taken from the judgment rendered in said case, said original stenographer's transcript shall be sent up as the record of said cause, as the report of the testimony therein," etc. While this stenographer's report may be adopted and embraced in a bill of exceptions, it is placed on the same basis as any other statement of facts embodied in said bill of exceptions, and the rule regulating the same, according to article 621, is not changed by said stenographer's act, but is controlled by article 621; that is, the facts upon which the action of the court with reference to such motion is based must be presented in a bill of exceptions prepared, signed, approved, and filed at the term of the court in which such order was made. There being no sufficient bill of exceptions relating to the action of the court overruling the motion for change of venue, the same cannot be considered. However, inasmuch as this case must be reversed on another proposition, if the same facts are presented on another trial, we suggest that the venue be changed.

This is the second appeal of this case (Bink v. State, 89 S. W. 1077, 14 Tex. Ct. Rep. 1011), and is a companion case to that of Davenport, alias Dampers, v. State, 89 S. W. 1077, 14 Tex. Ct. Rep. 263, where the facts are detailed.

Appellant made a motion to quash the indictment on the ground that the same was in two counts and failed to separate the charge of theft from the charge of swindling by distinct counts, because the count attempting to charge theft does not conclude "against the peace and dignity of the state," and because the representations alleged to have been made are not such as would induce any ordinary person to part with his property. We do not believe that any of these objections are well taken. It is not necessary that the first count should have concluded against the peace and dignity of the state. The last count, which concluded the indictment, had such conclusion, and this was sufficient.

Appellant presented a motion to require the state to elect on which count it would prosecute the case. This the court declined to do, and submitted both counts to the jury, and they returned a general verdict, and the court applied the verdict to the first count for theft. In this there was no error. Both counts charged the same transaction, and the state was not required to elect. Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; Keeler v. State, 15 Tex. App. 111; Welhousen v. State, 30 Tex. App. 623, 18 S. W. 300; Shuman v. State, 34 Tex. Cr. R. 69, 29 S. W. 160.

We further hold that it was not necessary for the court to specifically instruct the jury with reference to the matter of reasonable doubt in weighing the declarations of Davenport, alias Dampers, alleged to have been made in the absence of a...