Cook v. State

• Decision Date: 28 November 1923
• Docket Number: (No. 7451.)
• Citation: 258 S.W. 1058
• Parties: COOK v. STATE.
• Court: Texas Court of Criminal Appeals

258 S.W. 1058

COOK v. STATE.

(No. 7451.)

Court of Criminal Appeals of Texas.

November 28, 1923.

Rehearing Denied March 5, 1924.

Appeal from District Court, Burnet County; J. H. McLean, Judge.

Henry Cook was convicted of violating the Dean Law, and he appeals. Affirmed.

Will T. Bagby, of San Antonio, and J. F. Murray, of Runge, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

The indictment herein contained various counts, and the conviction was not under the count charging manufacture of liquor, as stated in our former opinion, but was under the third count charging the keeping of premises, building, room, etc., for the purpose of storing, etc., intoxicating liquor, same being the offense described in section 32 of what is known as the Dean Law, Acts Second Called Session Thirty-Sixth Legislature, p. 228 (Vernon's Ann. Pen. Code Supp. 1922, art. 588¼oo), and the former opinion is withdrawn and this handed down as our original opinion.

Appellant vigorously assails the action of the trial court in admitting oral testimony in regard to the conveyance of the premises in question from Carroll to Barton. Examination of the indictment discloses that the premises were described therein as follows:

"Certain premises, building, room, and place, situated in the county of Burnet and state of Texas, commonly known as the Maynard place, and belonging to one Lee Barton, and being the same property conveyed to the said Lee Barton by one W. J. Carroll, being about 5 miles east of the town of Burnet, which said premises, building, room, and place the said Henry Cook did then and there occupy and reside on with his family," etc.

Proof was made of the fact that appellant lived on the place with his family, that it was commonly known as the Maynard place, and the testimony of a number of witnesses refer to same as the Lee Barton place, and also that it was about 5 miles east of Burnet in Burnet county. The indictment would have met the demands of the statute if it had alleged that appellant occupied certain premises, building, room, and place in Burnet county, Tex., for the forbidden purpose. The other descriptives were not essential to the validity of the indictment. The state placed Mr. Carroll on the stand, and he said that he had owned this property and had traded it to Barton. The district attorney asked him if he conveyed it to Barton, and he was permitted to say that he had. Appellant objected to this, and as part of the predicate for his objection was permitted to draw out of the witness that he had made a deed in writing, executed before a notary public, which he delivered to Barton. Waiving discussion of whether the descriptives placed in the indictment need to be proved in a case such as this, we do not believe the statement of the witness that he conveyed the land to Barton transgresses any rule requiring the best evidence, or any branch of that general rule relating to conveyances of real estate. Carroll could testify that he had made a deed to Barton and delivered same to him, or its equivalent — that he conveyed the land to Barton. In Arnold v. Attaway, 35 S. W. 482, the Court of Civil Appeals held that, the issue being whether certain conveyances were made and delivered, this fact might be proven by parol testimony. A writ of error was refused by the Supreme Court. It must be conceded that whether Carroll conveyed the land to Barton as applied to the instant case, was purely a collateral issue to that involved in the charge against appellant. The books are full of cases holding that parol evidence of the contents of writings when same are only collaterally material, is admissible, and this regardless of the fact that the writing relates to the conveyance of real estate. Dooley v. McEwing, 8 Tex. 306; Harvey v. Edens, 69 Tex. 420, 6 S. W. 306; Howard v. Britton, 71 Tex. 286, 9 S. W. 73; Cox v. Rust (Tex. Civ. App.) 29 S. W. 807; Parker v. Chancellor, 78 Tex. 524, 15 S. W. 157; Holman v. Patterson, 34 Tex. Civ. App. 344, 78 S. W. 989; Heidenheimer v. Beer (Tex. Civ. App.) 155 S. W. 352; Dalhart Agency v. Le Master, 62 Tex. Civ. App. 579, 132 S. W. 860. See, also, Ellis v. Lewis (Tex. Civ. App.) 81 S. W. 1034; Wolf v. Wilhelm (Tex. Civ. App.) 146 S. W. 216; Pecos & N. T. Ry. Co. v. Cox (Tex. Civ. App.) 150 S. W. 265. So also when the only question involved is as to ownership, possession, or control, parol evidence of the contents of a writing is admissible. Marrett v. Herrington (Tex. Civ. App.) 145 S. W. 254; Wetzel v. Satterwhite, 59 Tex. Civ. App. 1, 125 S. W. 93; I. & G. N. Ry. Co. v. Hall, 35 Tex. Civ. App. 545, 81 S. W. 82; Pacific Express Co. v. Dunn, 81 Tex. 85, 16 S. W. 792.

Appellant cites us to page 256, Branch's Annotated P. C., for authorities. Many authorities are here cited as sustaining the proposition that words or allegations, not descriptive of what is legally essential to the validity of the indictment, may be rejected as surplusage, and attention is called to the fact that when a person, place, or thing necessary to be mentioned in an indictment is described with unnecessary particularity, the circumstances of description must be proved as alleged. This in no way controverts what we have just held.

Complaint is made in bill of exceptions No. 5 presenting appellant's objection to the jury being permitted to examine and smell a jar of liquor which the state introduced in evidence. The record discloses that the sheriff of the county, Mr. Crittenden, had just identified the said jar along with other articles as having been obtained by him and a deputy in an outhouse near the residence of appellant, and witness had testified that the contents of the jar was whisky. The deputy who accompanied the sheriff also...