Heath v. State, 27402

Decision Date16 February 1955
Docket NumberNo. 27402,27402
Citation276 S.W.2d 534,161 Tex.Crim. 323
PartiesGeorge HEATH, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

C. O. McMillan, Sam M. Russell, Stephenville, for appellant.

Sam Cleveland, Dist. Atty., Stephenville, Leon Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is keeping a gambling house; the punishment, 2 years.

The appellant was shown to have a tenant house located approximately 150 yards to the rear of his farm home. At the times involved in this prosecution, such house was unoccupied except that one room was used to store feed, seed and farm tools, while another room contained an old dining table, a divan and some chairs. There was no paraphernalia there present designed for the purpose of gambling.

To establish that this house was kept for the purpose of gambling, the State relied upon the following testimony.

Henry Parker testified that for a period of approximately six weeks prior to the date charged in the indictment he had, at the appellant's invitation, repaired to such house, ordinarily on Friday and Sunday nights, and had there gambled for money with cards with the six or seven men there assembled, including the appellant. He stated that the players came from different towns, some as far away as Fort Worth, and that the games had lasted as long as eight hours.

Two of appellant's neighbors testified that they had, for varying lengths of time prior to the date charged in the indictment, on one or two nights a week observed as many as eight automobiles arrive at appellant's home about dark and remain there until just before dawn and that while they were there a light could be seen in the tenant house.

Sheriff George and Ranger Roach testified that they had on two occasions, shortly before and on the day charged in the indictment, at night walked across the appellant's field and looked in the windows of the tenant house and there observed several men, including the appellant, seated at the table playing cards. They stated that money was on the table by the players, and one of the players at one time made the remark, 'What do you think about me? I'm two hundred loser'; there was then 'some discussion about what they had lost'; and one of the players said, 'I'll bet three.'

The appellant did not testify in his own behalf but offered the testimony of his wife, who told of their marital status and the contents of the tenant house.

It is upon this testimony that this conviction rests. Appellant challenges its sufficiency, his principal contention being that since the witness Parker testified that he came upon invitation this showed that the house was not held open to the public.

While it is true that some of the authorities in defining a gambling house state that it is a place where people gather without invitation for the purpose of gambling, we do not think that one might circumvent the law by the simple expediency of extending invitations.

Appellant objected to the testimony of the Sheriff and the Ranger on the grounds that they were not armed with a search warrant and were unlawfully upon his premises.

The State relies upon Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343, and Eversole v. State, 160 Tex.Cr.R. 567, 294 S.W. 210. The rule announced in those cases seems to be that if one is foolish enough to leave his windows uncurtained he may not complain if another comes upon his property and observes an illegal act being committed therein. In the Crowell case we discussed the holdings of the Supreme Court of the United States on the question.

Appellant contends that the trial court fell into error when he refused leave to file an amended motion for new trial alleging that one of the jurors who served upon his case was disqualified. An original motion for new trial was filed, overruled and notice of appeal was given on September 21, 1954; and on the same day sentence was pronounced, and appellant entered into recognizance on appeal. He has since been at liberty under said recognizance. On October 27, within the same term, the appellant filed a motion for permission and leave to file an amended motion but did not ask that his notice of appeal be withdrawn. On October 29 the trial court refused permission to file and stated in his order that he did so because jurisdiction of the case was in this Court and not in the trial court.

This situation has often been presented in this Court. We quote from two decisions in which it is discussed. In Martin v. State, 153 Tex.Cr.R. 470, 221 S.W.2d 605, 607, we said:

'His next complaint relates to the court's action in declining to permit him to file a motion for a new trial based on newly discovered evidence. He sought to file this motion long after he had given notice of appeal; had entered into a recognizance; and was released from custody under his recognizance. We do not think the court committed error in this respect since appellant did not ask leave to withdraw his notice of appeal and surrender himself to the sheriff. Therefore, under the holding of this court in the following cases there was no error committed by the trial court in declining to permit him to file his motion: Tores v. State, 74 Tex.Cr.R. 37, 166 S.W. 523; and Humphries v. State, 79 Tex.Cr.R. 637, 186 S.W. 332.'

Soon thereafter, in Hensley v. State, 153 Tex.Cr.R. 616, 224 S.W.2d 245, we said:

'The proper procedure herein would have been for the appellant's attorney to have withdrawn his notice of appeal and thereafter to have requested permission to file and present his motion for a new trial. This he failed to do.'

Finding no reversible error, the judgment of the trial court is affirmed.

DAVIDSON, Judge (dissenting).

Because this appellant has been convicted by a jury composed of eleven qualified jurors and one disqualified juror, I cannot agree to the affirmance of the case. In my opinion, the conviction is void. I therefore enter my dissent.

Immediately after and on the same day the verdict in this case was returned, the trial court heard and overruled appellant's motion for a new trial and pronounced sentence. Notice of appeal to this court was given and appellant entered into a recognizance.

Some time thereafter, appellant learned for the first time that a member of the jury had been convicted of the crime of theft and, at the time he served on the jury, was disqualified from jury service.

Appellant set out such fact in an amended motion for new trial, which he filed, praying that a new trial be granted. In that motion, the appellant did not expressly pray to have the notice of appeal to this court withdrawn.

Upon the hearing of that motion, it was stipulated between the state and the appellant that the fact alleged in that motion was true--which was that one member of the jury had been convicted of the crime of theft and was, at the time, disqualified by reason thereof from serving on the jury.

The trial court entertained the view that he was without jurisdiction to hear the amended motion for new trial because of the prior notice of appeal and, upon that basis, overruled the motion. The term of court at which this conviction was had and notice of appeal given was in session and did not adjourn until some two months later.

My brethren overrule appellant's contention and affirm this conviction in face of the admitted fact that a disqualified juror served on the jury, not because the trial court had lost jurisdiction to entertain the motion for new trial but because the appellant in his amended motion for a new trial did not ask to have the notice of appeal withdrawn.

I dissent for two reasons: (1) The verdict was absolutely void, and no valid conviction could be predicated thereon. (2) If the verdict and judgment entered thereon were not void, then the amended motion for new trial, the grounds for a new trial as stated therein, and the record as a whole were sufficient to constitute a prayer that the notice of appeal be withdrawn, which was necessary to the granting of a new trial and without which a new trial could not have been awarded.

Art. 616, Sec. 3, C.C.P., provides that a prospective juror may be challenged for cause if he has been convicted of theft or any felony. Art. 618, C.C.P., says that a juror, upon his examination, cannot be asked if he has been convicted of theft or any felony. Art. 619, C.C.P., says that no juror 'shall be impaneled' if he has been convicted of theft or any felony and the parties cannot consent that a juror be impaneled who is subject to that...

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11 cases
  • State v. Moore
    • United States
    • Texas Court of Criminal Appeals
    • June 6, 2007
    ...motion for new trial filed after twenty-day deadline because defendant failed to seek leave of court); Heath v. State, 161 Tex.Crim. 323, 325-26, 276 S.W.2d 534, 535-36 (1955) (trial court did not err to refuse late-filed amended motion for new trial because defendant failed to ask that his......
  • Giacona v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 7, 1962
    ...testimony of two officers was not admissible in evidence because they were unlawfully on the premises, this Court in Heath v. State, 161 Tex.Cr.R. 323, 276 S.W.2d 534, 535, 'Appellant objected to the testimony of the Sheriff and the Ranger on the grounds that they were not armed with a sear......
  • Livingston v. State
    • United States
    • Texas Court of Appeals
    • June 10, 1987
    ...complain if another private citizen comes upon his property and observes goods stolen from him, the lawful owner. Heath v. State, 161 Tex.Cr.R. 323, 276 S.W.2d 534 (1955). It was reasonable, logical and necessary for the private, lawful owner to look into the house to see if his other valua......
  • Stickney v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 20, 1960
    ...166 S.W. 523; Francis v. State, 75 Tex.Cr.R. 362, 170 S.W. 779; Hensley v. State, 153 Tex.Cr.R. 616, 224 S.W.2d 245 and Heath v. State, 161 Tex.Cr.R. 323, 276 S.W.2d 534. The record reflects that the appellant has been represented by able court appointed counsel in the trial court and by ot......
  • Request a trial to view additional results

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