Dellinger v. State

• Decision Date: 26 February 1930
• Docket Number: No. 13042.,13042.
• Citation: 28 S.W.2d 537
• Parties: DELLINGER v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W.2d 537

DELLINGER v. STATE.

No. 13042.

Court of Criminal Appeals of Texas.

February 26, 1930.

Rehearing Denied May 28, 1930.

Commissioners' Decision.

Appeal from District Court, Dallam County; Reese Tatum, Judge.

Bert Dellinger was convicted of the offense of assaulting another in concert with others, while defendant and his companions were masked, and defendant appeals.

Affirmed.

Moore & Wilson, of Amarillo, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

Appellant was convicted of the offense of assaulting Adolpho Esqubiel, in concert with two others, while he (appellant) and his companions were masked. The punishment was assessed at confinement in the penitentiary for twenty-five years.

Adolpho Esqubiel was in his home at night when appellant and two companions, with masks covering their faces, forcibly entered the room in which he, his wife, and small children were asleep. Appellant shot at Esqubiel with a pistol, and he and his companions beat him, dragged him from his family, and carried him into the state of New Mexico, where they imprisoned him in the home of a Mexican. Responding to a summons by the grand jury, Esqubiel had, prior to the assault, testified that appellant had sold him intoxicating liquor. At the time of the assault an indictment was pending against appellant charging him with the offense of selling intoxicating liquor to Esqubiel. The purpose of the imprisonment of the injured party was to remove him from the jurisdiction of the court in order that he might not appear against appellant as a witness. All of the foregoing facts were uncontroverted.

Section 5 of chapter 63 of the Acts of the Thirty-ninth Legislature, Regular Session (Vernon's Ann. P. C. art. 454e), reads as follows: "If any two or more persons acting in concert, or aiding and abetting each other, when either or all of whom are masked, or in disguise, shall assault or shall falsely imprison any other person, each of such persons so offending shall be guilty of a felony and upon conviction shall be punished by confinement in the penitentiary for any term of years not less than five. The terms `masked' or `in disguise' used in this article means that such person by artificial means has so changed or obscured his usual appearance as to render his identification impossible, or more difficult than it would have been if such mask or disguise has not been used."

It was under the foregoing provision that the indictment was drawn. It is appellant's contention that the statute above set out is inoperative as being in contravention of section 35 of article 3 of the Constitution of Texas, his position being that the act contains more than one subject. He asserts that the controlling or dominant subject-matter of the act is the regulation and prohibiting of secret masked societies and organizations, as indicated by the title, and that section 5, under which the prosecution herein proceeded, has no legitimate relation to or connection with said subject. The caption of the act (Acts 1925, c. 63) reads as follows: "An Act prohibiting the doing of acts hereinafter recited, to-wit: (a) Going into or near any public place masked or disguised and defining a public place. (b) Going masked or disguised into or near any private house, or who demand or seek entrance therein, or disturb the inhabitants thereof. (c) Going masked into a church or other place where people are assembled for religious purposes or services. (d) The acting in concert of two or more persons when masked or disguised, or the aiding or abetting by said persons of each other, and the assaulting, when so disguised, by such persons of any other person, or the false imprisonment by such person of any other person. (e) The parading of any secret society or organization or a part of the members thereof when masked or disguised upon or along any public road, or any street, or alley of any city or town of this State, and declaring equally guilty other members of such society who aid, abet or encourage such parading, and declaring them to be offenses; and defining and fixing penalties for violation of the provisions of this Act, and declaring an emergency."

A liberal construction will be applied in determining whether or not a statute violates section 35 of article 3 of our Constitution, and, where the provisions are germane in any degree, the law will be upheld. Mercer v. State, 111 Tex. Cr. R. 657, 13 S.W.(2d) 689; Davis v. State, 88 Tex. Cr. R. 183, 225 S. W. 532. The word "subject" is used in the same sense as the word "object" in former Constitutions. Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376. The word "object" under former Constitutions was construed by the courts to mean "end" or "purpose." Mercer v. State, supra, and authorities cited.

The object and purpose of the act is to prohibit the commission of the acts described therein while the offender is masked. Such object is fairly indicated by the title. The opinion is expressed that an application of the principles controlling renders untenable appellant's contention.

Appellant contends that section 5 offends against the provisions of article 6 of our Penal Code, his position being that the mask or disguise is not described by any standard that is certain. The indictment alleges that appellant and his companions were masked and in disguise. In Anderson v. State (Tex. Cr. App.) 21 S.W.(2d) 499, we upheld that part of section 3 of the act (Vernon's Ann. P. C. 454c) which denounces as an offense the disturbance of the inhabitants of a private residence by a masked person, and said that the term "masked" has a well-defined and commonly understood meaning. Giving effect to such holding, we are of the opinion that that part of the statute which denounces an assault or false imprisonment while the offenders are masked definitely and clearly defines an offense. It is unnecessary to express an opinion as to the validity of the remainder of the section. The indictment charges that the offense was committed by the parties while they were masked, and the proof supports the allegation.

The indictment charged that "Bert Dellinger, acting in concert with Oral Dellinger and Bill Cullender, and aiding and abetting each other when they the said Bert Dellinger Oral Dellinger and Bill Cullender were masked and in disguise did then and there unlawfully assault and falsely imprison one Adolpho Esqubiel and did then and there strike and beat and shoot the said Adolpho Esqubiel with a pistol, and did wilfully detain the said Adolpho Esqubiel against his consent and without authority of law, and did then and there commit an assault upon the person of the said Adolpho Esqubiel and by said assault and by actual violence to the person of said Adolpho Esqubiel, and by threats, did wilfully detain and restrain the said Adolpho Esqubiel from removing from one place to another as the said Adolpho Esqubiel might see proper." In his motion to quash, appellant averred that the indictment was duplicitous, in that two offenses were joined in the same count.

A duplicitous indictment is not necessarily fundamentally defective. The accused may waive all right to complain of such defect. Melley v. State, 93 Tex. Cr. R. 522, 248 S. W. 367. An inspection of the indictment discloses that it is sufficient to charge an offense. We find no bill of exception in the record bringing forward complaint of the action of the trial court in overruling the motion to quassh. In one part of the transcript we find the motion to quash. In another part is an order overruling the motion to quash. This order is not authenticated by the trial judge. There is no notation on the motion to quash over the signature of the trial judge that the motion was overruled and that appellant excepted. It is the rule that the overruling of a motion to quash the indictment is not reviewable, unless preserved by a bill of exception, further than to determine whether the indictment charges an offense. Texas Jurisprudence, vol. 4, p. 209; Stewart v. State, 108 Tex. Cr. R. 199, 299 S. W. 646; Hubbard v. State, 107 Tex. Cr. R. 672, 298 S. W. 893; Bailey v. State, 101 Tex. Cr. R. 237, 275 S. W. 1014; Parroccini v. State, 90 Tex. Cr. R. 320, 234 S. W. 671. The unauthenticated order overruling the motion is not a bill of exception. We quote from Branch's Annotated Penal Code of Texas, § 207, as follows: "A Bill of Exceptions should be made so full and certain in its statements as that, in and of itself, it will disclose all that is necessary to manifest the supposed error." See Buchanan v. State, 107 Tex. Cr. R. 559, 298 S. W. 569.

Appellant contends that one of the masked parties was not sufficiently identified. The matter is immaterial. We quote from Wilkirson v. State, 107 Tex. Cr. R. 247, 296 S. W. 558, as follows: "Appellant was charged with complicity in the burglary of a bank, it being alleged that other named parties burglarized said bank, and that appellant, while not present at the time and place of the burglary, had theretofore agreed with said parties to furnish arms and aid them in the commission of said offense. In his charge the learned trial judge told the jury that appellant would be guilty if they believed beyond a reasonable doubt that he agreed with all of said named parties, or either of them, to aid in committing said offense. Exception was reserved to that part of the charge wherein the court authorized the jury to find appellant guilty if he had agreed with either of said parties, it being insisted that the allegation in the indictment of an agreement with all would not be supported by proof of an...