Dunn v. State

• Citation: 63 S.W. 571
• Parties: DUNN v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 01 May 1901
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

63 S.W. 571

DUNN v. STATE.¹

Court of Criminal Appeals of Texas.

May 1, 1901.

Appeal from district court, Coryell county; W. J. Oxford, Judge.

E. M. Dunn was convicted of white-capping, and he appeals. Affirmed.

Stinnett Bros., for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was indicted under what is ordinarily termed "the white-capping statute," was tried and convicted, his punishment being assessed at two years' confinement in the penitentiary.

The indictment is as follows: "In the name and by the authority of the state of Texas, the grand jurors for the county of Coryell, state aforesaid, duly organized as such at the January term, A. D. 1901, of the district court for said county, upon their oaths in said court present that E. M. Dunn, on or about the 9th day of April, A. D. 1900, and anterior to the presentment of this indictment, in the county of Coryell and state of Texas, and with the intention of interfering by frightening him with the right of Jim Owens to occupy his (the Jim Owens) premises, he, the said Jim Owens, being then and there the owner and occupant of certain premises, said premises being then and there situated and being in justice precinct No. 4, in the county of Coryell, and state of Texas, and with the intention of interfering, by frightening him, with the right of said Jim Owens to follow his legitimate occupation, calling, and profession, the same being that of a farmer and stockman, and he, the said Jim Owens, being then and there in the pursuit of and engaged in the said occupation of a farmer and stockman, and with the intention of causing the said Jim Owens to abandon his said premises and to abandon the said county and precinct in which he, the said Jim Owens, then resided, to wit, in justice precinct No. 4, and in Coryell county, state of Texas, did then and there unlawfully, willfully, and knowingly cause to be sent to the said Jim Owens by the United States mail service, and by mailing and posting the same for transmission and delivering in the United States postoffice at Leon Junction, a town and United States post office in Coryell county, Texas, an anonymous notice, threats, and signs of the tenor following:

`Jim Owens went to Hell June 20th, 1900.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

—and which said notice, threats, and signs were by the said E. M. Dunn placed in the mail box at the said United States post office at the said Leon Junction, duly inclosed in a sealed envelope, which said envelope was then already duly stamped with a U. S. two-cent postage stamp, and on which envelope was the following pencil-written address, viz.: `Mr. Jim Owes, Boaz, Tex.,' and whereby and by the means aforesaid, the said E. M. Dunn did then and there unlawfully, willfully, and knowingly cause said notice, threats, and signs to be sent, and the same was then sent, by due course of the United States mail, from said Leon Junction post office to the said Jim Owens at Boaz, in Coryell county, Texas, and from which said Boaz post office said Jim Owens did receive and obtain said notice, threats, and signs, said Boaz being then and there the post-office address of the said Jim Owens,— against the peace and dignity of the state."

Appellant filed a plea of former conviction, the substance of which is that appellant had been previously convicted of sending a white-capping letter to Mart Robinett of the exact tenor as the letter contained in the above-quoted indictment, except Mart Robinett's name was placed in lieu of Jim Owens.' The proof shows that both letters were mailed at one and the same time. Upon this state of facts we do not think the court erred in instructing the jury to disregard the plea, for, if appellant had written six white-capping notices to six different persons, and mailed them at one and the same time, he would be guilty of six different offenses. The mere fact that two offenses are committed contemporaneously does not make them any the less two distinct offenses. Keaton v. State (Tex. Cr. App.) 57 S. W. 1125.

Appellant insists the indictment is defective on the grounds: (1) That the same charges no offense against the laws of Texas; (2) because the alleged letter set out in the indictment does not show upon its face any threat, and is not coupled with any declaration by the sender to do any act whatsoever; (3) because the indictment does not by innuendo give to the signs any meaning, purpose, or application to any person or anything whatsoever; (4) because there is a patent ambiguity in the name of the person to whom the letter was addressed as set out in the indictment, and the person to whom the indictment charges the same to have been sent.

This prosecution is based under the act of 1899 (see Acts 26th Leg. p. 215), and is as follows: "Any person who shall post any anonymous notice or make any threats or signs or skull and cross bones, or shall by any other method post any character or style of notice or threat to do personal violence or injury to property on or near the premises of another, or who shall cause the same to be sent with the intention of interfering in any way with the right of such person to occupy said premises or to follow any legitimate occupation, calling or profession, or with the intention of causing such person to abandon such premises, or precincts, or county, in which such person may reside, shall be deemed guilty of the offense of whitecapping, and upon conviction therefor shall be punished by confinement in the penitentiary for any period of time not less than two years, nor more than five years." An inspection of this article shows that within the legislative intent various things make the offense of white-capping. To illustrate: The statute provides that, if any person shall post any anonymous notice, or make any threats or signs or skull and cross bones, or by any other method post any character or style of notice or threat to do personal violence, he would be guilty of white-capping, within the contemplation of the statute, if he did either of the above-enumerated things. As contended by appellant, however, in order to be guilty, the anonymous notice or sign must contain a threat to do personal violence. Furthermore, the statute provides that he would be guilty of white-capping who should post an anonymous notice, or post a threat, with intent to injure property on or near the premises of another. Then the statute further provides, as the indictment here charges, if one sends any anonymous notice, or sign, or threat, or shall cause the same to be sent, with intention of interfering in any way with the right of such person to occupy said premises or to follow any legitimate occupation, calling, or profession, or if he should do the last-named things with the intent of causing such person to abandon such premises, precinct, or county in which such person may reside, he will also be guilty of white-capping. And under the provisions of the last clause it is not necessary that the notice should contain a threat to do personal violence as contended by appellant; but, if the notice or sign is sent with the intention of interfering with the person's right to occupy his premises, or intent to frighten him, thereby causing such person to abandon such premises, or causing said person, by frightening, to cease to occupy his premises, then and in that event, the intent of the person being to interfere with the possession and occupancy of his premises by frightening him, it would come within the spirit and letter of the statute, regardless of whether said notice contained a threat to do personal violence. The notice and sign, as contained in the indictment, says: "Jim Owens went to Hell June 20th, 1900." Then follows a drawing of a coffin and a scaffold, from which a body is suspended by the neck. The allegations of the indictment show this notice and sign was sent to prosecutor on April 9, 1900. It is clearly a notice to prosecutor that he would be hanged on June 20, 1900. Appellant's counsel further ingeniously insist that this notice is so symbolic as to require innuendo averments in the indictment in order to make it valid. We do not think so. We think the letter, as copied in the indictment, indicates that appellant intended to convey to prosecutor the idea that he would die on June 20, 1900, by being hanged. We think this conclusion is as readily perceived from the instrument itself as if the statement had been made in so many words. Innuendo averments are only necessary to make plain matters that are ambiguous. The matter here under consideration is not ambiguous. Furthermore, for the sake of argument it may be conceded that this is incorrect, yet the indictment containing the drawing of a scaffold with a man hanging from it, and the drawing of a coffin, and the pleader having alleged these signs were calculated and intended to frighten prosecutor, thereby interfering with the right of said prosecutor to follow his legitimate occupation, calling, and profession, etc., would of itself make a valid indictment, since the statute specially inhibits the sending of a sign for that purpose.

The last ground of his motion is: "There is a patent ambiguity in the name of the person to whom the letter was addressed as set out in the indictment and the person to whom the indictment charges the same to have been sent." It is true, as contended by appellant, the indictment does allege that the notice was sent to Jim Owens, the prosecutor, and that it was inclosed in an envelope addressed to "Mr. Jim Owes, Boaz, Texas." But we notice the pleader alleges that by said last address, and the mailing of said letter so addressed, appellant did unlawfully, knowingly, and willfully cause said notice, threat, and signs to be sent to Jim Owens. If this needs any innuendo averment to the effect that, when appellant wrote "Jim Owes" he intended to write "Jim Owens," we think the innuendo...