Oliver v. State

• Decision Date: 11 October 1911
• Citation: 144 S.W. 604
• Parties: OLIVER v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 604

OLIVER v. STATE.

Court of Criminal Appeals of Texas.

October 11, 1911.

On Motion for Rehearing, November 29, 1911.

Dissenting Opinion January 1, 1912.

COPYRIGHT MATERIAL OMITTED

Appeal from Dallas County Court, at Law; W. M. Holland, Judge.

Charles Oliver was convicted of a misdemeanor, and he appeals. Affirmed.

Crawford, Walker & Williams, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

By complaint and information filed December 10, 1909, it was charged that the appellant, on November 14, 1909, in Dallas county, Tex., was the agent and employé of the Interstate Amusement Company, a corporation, which was the proprietor of a place of public amusement, to wit, a theater, situated in the city of Dallas, and as such agent and employé, he, on said last-named date, the same being Sunday, did unlawfully open and permit to be opened said theater and public amusement, and on said day did permit a theatrical performance to be given and exhibited in said theater for public amusement, and for admission to which a fee was charged. He was tried, found guilty, and a fine of $20 was assessed against him.

The appellant introduced no evidence. The state proved that on Sunday, November 14, 1909, the appellant was selling tickets to this show, or theater, in Dallas, Tex., fixing the particular house in which it occurred. Two witnesses testified that they bought tickets from him, and that many other people did likewise, and went into and saw the show. There was a good big crowd therein. There was a woman and two or three men on the stage. It was called and known as the "Majestic Theater." Appellant told the witnesses that he was the ticket seller. Another witness described the show or play as a scene in which a very beautiful lady was cast upon an island, and the natives were more animals than human in appearance, and they almost worshipped her because of her beauty, and made her queen of the island. Later a missionary came over to do missionary work and fell in love with her, and wanted to marry her. There was singing and some music, also, on the stage. It was a place of public amusement, and all this occurred on Sunday, November 14, 1909. The appellant sold tickets to this show on this occasion to the two witnesses who testified and to many others. Each purchaser of tickets, after purchasing same, went into the theater and saw the play.

The state also introduced in evidence a certificate by the Secretary of State of the state of Texas, dated June 23, 1905, certifying that a certified copy of articles of incorporation of the Interstate Amusement Company, incorporated under the laws of Missouri, was filed in the department on June 22, 1905, in accordance with the requirements of the laws of Texas, and paid the full fees therefor, and is entitled to, and granted permission to, do business in the state of Texas, for the purpose of the promotion of fine arts, for the term ending May 1, 1915. The certificate certifying to the copy by the Secretary of State was dated November 22, 1909.

In addition, the state introduced in evidence a properly certified copy from the records of the county clerk of Dallas county, Tex., a lease from the Dallas Amusement Company to the Interstate Amusement Company, whereby the said Dallas Amusement Company leased to the said Interstate Amusement Company the building in Dallas, known as the Majestic Theater, which was the same that was shown by the testimony to be wherein the show, or theater, was held on said date, November 14, 1909, for the term beginning November 1, 1905, for five years. This lease specified the amount of rent that the lessee was to pay to the lessor and the times of the respective payments during the full term of the lease. It had many other provisions between the parties about repairs, lights, water, rent, etc., and gave the lessee specific authority to assign or transfer the lease, and also provided that the property leased was to be used for any and all theartrical purposes. It provided for a forfeiture of the lease in case the lessee failed to pay the rent, at the specified times for 30 days after maturity, and that if the state should pass any law prohibiting the carrying on of the business for which said property was leased that would render the lease null and void. There were other contingencies which provided for a termination of the lease unnecessary to here state.

The record is rather large. It shows that appellant requested 11 special charges, and contains 17 bills of exceptions. Eleven of the bills of exceptions are to the refusal of the court to give the respective 11 special charges. Another one of the bills is to the overruling of the motion for new trial, which contained 15 separate and distinct grounds. It is unnecessary to notice this bill, especially as the matters proper to be discussed are contained in the others.

Bill No. 2 states that while the witness W. H. Cullum was testifying for the state in chief, and while he was attempting to describe what he denominated a "missionary scene," he used the expression, "And it was quite a nice little play." The appellant at the time objected to this answer, and asked that it be excluded from the jury, on the ground that it was not responsive to the question propounded, and was the expression of the opinion of the witness. In allowing the bill, the court qualified it by stating that the trial court deemed said expression as merely a shorthand rendition of the facts. It is the uniform holding of this court that inferences will not be indulged to supply omissions in bills of exceptions. Parties asserting the availability of supposed errors must make their bill of exceptions so full and certain in statement that in and of itself it will disclose all that is necessary to manifest the supposed error. Davis v. State, 14 Tex. App. 645; Eldridge v. State, 12 Tex. App. 208; McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93. A bill of exceptions, to be considered, must sufficiently set out the proceedings and attendant circumstances, to enable the court therefrom to know certainly that an error has been committed Thompson v. State, 29 Tex. App. 208, 15 S. W. 206; Livar v. State, 26 Tex. App. 116, 9 S. W. 552; Ballinger v. State, 11 Tex. App. 323, and McGlasson v. State, supra. The error complained of must be made to appear by the allegations of the bill itself. And when too indefinite to point out distinctly an error, it will not bring such matter properly before the appellate court for review. Quintana v. State, 29 Tex. App. 401, 16 S. W. 258, 25 Am. St. Rep. 730; Walker v. State, 19 Tex. App. 176; Hooper v. State, 29 Tex. App. 614, 16 S. W. 655; Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Rahm v. State, 30 Tex. App. 310, 17 S. W. 416, 28 Am. St. Rep. 911; Wilkerson v. State, 31 Tex. Cr. R. 86, 19 S. W. 903; Walker v. State, 33 Tex. Cr. R. 359, 26 S. W. 507; Yungman v. State, 35 Tex. Cr. R. 80, 31 S. W. 663; Gonzales v. State, 32 Tex. Cr. R. 611, 25 S. W. 781; Attaway v. State, 31 Tex. Cr. R. 475, 20 S. W. 925. These are but some of the earlier decisions on the subject. They have been uniformly followed by this court in all recent decisions down to the present time. This bill, thus tested, is clearly insufficient to require this court to consider it. Even if we could, we cannot see how it would be possible for the appellant to be injured by the expression of the witness as quoted in the bill, and how it is possible for any reversible error to have been committed by the court in not excluding the answer.

The next bill complains that while this same witness was on the stand the state asked him: "Q. State to the jury whether or not that is a place of public amusement?" The appellant objected to this question, on the ground "that the answer would be a conclusion of the witness, and the question called for a conclusion and opinion of the witness, and that one of the material allegations in the complaint was that the Majestic Theater was a place of public amusement." The court overruled the objection, and the witness answered, "So I understand it." The court, in allowing the bill, qualified it as follows: "The witness Laws, prior to this trial, had testified that said performance occurred in the Majestic Theater, corner of Commerce and Stone streets; that there were a lot of people in the theater; that they bought tickets and went in the door; that it was a big crowd; that the stage curtain was up, and that a woman and two or three men were on the stage; that there was music in the theater; that he asked the defendant if he [defendant] was the ticket seller, and he [defendant] informed him [witness] that he [defendant] was the ticket seller; that said occurrence took place on November 14th; that the witness Cullom's testimony was substantially the same, and both witnesses were testifying about November the 14th as being time their testimony referred to."

This bill is clearly insufficient, as the previous one noticed was, and for the same reasons. Tested by the authorities cited, it does not in and of itself disclose what was necessary of the proceedings in the case to show any error to this court. It does not set out the proceedings and attendant circumstances sufficiently to enable this court to know certainly that an error has been committed. Even if we could consider it, it occurs to us that whether or not the theater mentioned was a place of public amusement was a question of fact, and that a witness could be asked that question correctly, and could, if he knew, legally answer the question. It would not be such a conclusion, nor call for such a conclusion, as would make the testimony unlawful in view of the character of fact that was under investigation.

The next bill (No. 4) shows that the appellant objected to the copy of the permit admitted in evidence, which is described in the preliminary statement herein, on many grounds. It is unnecessary to state them. This...