Irwin v. State, No. 41234

CourtTexas Court of Criminal Appeals
Writing for the CourtBELCHER; MORRISON
Citation89 S.Ct. 1454,441 S.W.2d 203
Decision Date15 May 1968
Docket NumberNo. 41234
PartiesSherman T. IRWIN, Appellant, v. The STATE of Texas, Appellee.

Page 203

441 S.W.2d 203
Sherman T. IRWIN, Appellant,
v.
The STATE of Texas, Appellee.
No. 41234.
Court of Criminal Appeals of Texas.
May 15, 1968.
Rehearing Denied July 10, 1968.
Second Rehearing Denied Oct. 16, 1968.
Certiorari Denied April 21, 1969. See 89 S.Ct. 1454.

Jack J. Rawitscher, Dixie & Schulman, Houston, Clayton Monroe, Livingston, for appellant.

Charles Turner, County Atty., Livingston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

BELCHER, Judge.

The conviction is for keeping a policy game; the punishment, two years.

Ground of error No. 4 is that the trial court reversibly erred in failing to suppress evidence obtained under the alleged search warrant which the appellant contends was illegally issued and is invalid.

The affidavit for the search warrant and the warrant exhibited to the judge are not shown in the transcript of the evidence, and do not appear among the exhibits in the case. Appellant attached to his motion to suppress evidence a purported copy of an affidavit and warrant. Such instruments cannot be considered in reviewing the ground of error presented. Doby v. State, Tex.Cr.App., 383 S.W.2d 418. For the reason pointed out, ground of error No. 4 does not reflect error.

In ground of error No. 1 the appellant contends that the trial court reversibly erred in failing to charge the jury upon the law of extraneous offenses in that, it did not instruct the jury not to consider such extraneous offenses unless they believed they had been proven beyond a reasonable doubt.

Omitting the formal parts, the indictment alleges that the appellant: 'On or about the 7th day of February, A.D. 1965, * * * did then and there unlawfully keep and exhibit for the purpose of gaming, a policy game.'

The testimony of the state reveals that Texas Rangers Rundell and Rogers together with other officers found the appellant at home when they went to his residence which was located in a rural area in Polk County, on Sunday, February 7, 1965, shortly after Russell Bond, bookkeeper for T and L Policy Company, had arrived; that said company was owned and operated by the appellant; that in appellant's house the officers found a tan suit case (state's exhibit No. 2), bundles of tear out sheets containing plays for several previous days, over $13,000 in money, hit slips, 'squirrel cage,' and other items of policy paraphernalia; that a large number of the hit slips had been used on at least eight different days before February 7, 1965; and also other slips which could be used in the future. The evidence further shows that these articles were adaptable to and could be or had been used in the operation of a policy game.

Texas Ranger Rundell testified on direct examination, in part, as follows:

'Q (State's Attorney, continuing): I will ask you this: When was the last time that you had an occasion to have a conversation with the Defendant, Sherman Irwin?

'A Well--

Page 206

'Q I will ask you whether or not during the year of 1966 in or about the month of February or March you had occasion to talk to the Defendant, Sherman T. Irwin?

'A I did.

'Q Where was that?

'A One time it was at the Ben Milam Hotel in Houston, Texas, and the other time was on the parking lot of the Hovas Furniture Company, there in Houston, Txas.

'Q What was the nature of the conversation as relating to whether or not Mr. Irwin was engaged in any sort of a business at that time?

'Appellant's Attorney: We object to that, your Honor, on the basis that first of all, it is too remote. Second, he was not advised of his rights and any statement he would have made under those circumstances would be inadmissible.

'The Court: Overruled.

'Appellant's Attorney: Note our exception.

'A (The Witness, continuing): He stated to myself and my partner that he had been operating a policy game for over thirty years.

'Q Would that be over the past thirty years?

'A Yes, sir.

'Q Did he tell you under what name he operated?

'A He stated he first opened up under the name, I believe, of the G. and W. and then later on it was closed down and he opened up under the T. and L., which he had been operating since.

'Q That conversation took place in February or March of 1966?

'A Yes, sir; it did.

'Q All right, and that occurred there in the City of Houston?

'A Yes, sir.

'Q At such time he was not under arrest?

'A No, sir; he was not.

'Q All right; had you met him at his request or at your request?

'A At his request.

'Q And the statements he made to you there were voluntarily made by him?

'A Yes, sir.

'Q During the course of your conversation?

'A Yes, sir.'

The state called four witnesses: Herman Munson, the lessor of the premises where the appellant resided; Texas Rangers Rundell and Driskell; and Melvin Hill, an employee of the appellant.

The appellant did not testify or offer any testimony in his behalf.

Melvin Hill testified that he was employed by the appellant from June 18, 1963, to June, 1966, and was working for him in January and February, 1965; that the appellant during this time owned and operated a policy game under the name of T and L Company, and...

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485 practice notes
  • US v. Lang, Crim. No. WN-90-0404.
    • United States
    • U.S. District Court — District of Maryland
    • February 21, 1991
    ...that is material to the transaction. In SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.1968), (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), the Second Circuit held that corporate insiders violated Rule 10b-5 when they purchased stock on the open market wi......
  • Lanza v. Drexel & Co., No. 382
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 26, 1973
    ...1971)). Underlying our decisions in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); Ruckle v. Roto American Corp., 339 F.2d 24 (2d Cir. 1964); Schoenbaum v. Firstbrook, 405 479 F.2d 1302 F.2d 215 (2d Cir......
  • The Ltd., Inc. v. McCrory Corp., No. 85 Civ. 7444 (RLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 7, 1988
    ...Act of 1933." SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (2d Cir.1968) (Friendly, J., concurring), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). Nonetheless, in Kirshner v. United States, 603 F.2d 234, 241 (2d Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2821, 6......
  • Coldwell Banker Residential Real Estate Services, Inc. v. Missouri Real Estate Com'n, No. 67204
    • United States
    • United States State Supreme Court of Missouri
    • June 17, 1986
    ...such as the exchange of information about securities, SEC v. Texas Gulf Sulfer Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976 [89 S.Ct. 1454, 22 L.Ed.2d 756] (1969), corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U.S. 375 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970), th......
  • Request a trial to view additional results
485 cases
  • US v. Lang, Crim. No. WN-90-0404.
    • United States
    • U.S. District Court — District of Maryland
    • February 21, 1991
    ...that is material to the transaction. In SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir.1968), (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969), the Second Circuit held that corporate insiders violated Rule 10b-5 when they purchased stock on the open market wi......
  • Lanza v. Drexel & Co., No. 382
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 26, 1973
    ...1971)). Underlying our decisions in SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); Ruckle v. Roto American Corp., 339 F.2d 24 (2d Cir. 1964); Schoenbaum v. Firstbrook, 405 479 F.2d 1302 F.2d 215 (2d Cir......
  • The Ltd., Inc. v. McCrory Corp., No. 85 Civ. 7444 (RLC).
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 7, 1988
    ...Act of 1933." SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (2d Cir.1968) (Friendly, J., concurring), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969). Nonetheless, in Kirshner v. United States, 603 F.2d 234, 241 (2d Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2821, 6......
  • Coldwell Banker Residential Real Estate Services, Inc. v. Missouri Real Estate Com'n, No. 67204
    • United States
    • United States State Supreme Court of Missouri
    • June 17, 1986
    ...such as the exchange of information about securities, SEC v. Texas Gulf Sulfer Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976 [89 S.Ct. 1454, 22 L.Ed.2d 756] (1969), corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U.S. 375 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970), th......
  • Request a trial to view additional results

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