Bishop v. State

269 S.W.2d 372, 160 Tex. Crim. 333, 1954 Tex. Crim. App. LEXIS 1938

• Court: Court of Criminal Appeals of Texas
• Decided: June 2, 1954
• Docket: 26994
• Status: Published

Opinions

BELCHER, Judge.

Appellant was jointly charged by complaint and information with “acting together” with Orus Bishop in the unlawful sale of whiskey in a dry area. Motion for severance was granted and, upon trial by jury, appellant was convicted and her punishment was assessed at a fine of $350.

No statement of facts accompanies the record.

By Bill of Exception No. 1, appellant challenges the sufficiency of the evidence to show the guilt of appellant and especially to establish the identity of the appellant as the person who sold the whiskey in question.

This bill of exception fails to state that it contains all the evidence adduced upon the trial or all the evidence introduced before the jury as to the identity of the accused as the person who sold the whiskey in question. There is a presumption in favor of the regularity of the conviction, which will prevail upon appeal in the absence of a statement of facts, unless the bill of exception states that it contains all the evidence on the question raised thereby. Bryant v. State, 35 Texas Cr. R. 394, 33 S.W. 978; Robinson v. State, 37 Texas Cr. R. 195, 39 S.W. 107; Williams v. State, 67 Texas Cr. R. 590, 150 S.W. 185; Pilgrim v. State, 87 Texas Cr. R. 6, 219 S.W. 451.

By Bill of Exception No. 2, appellant contends that the court erred in his charge to the jury in submitting the facts and applying the law thereto because the evidence is insufficient to show the guilt of the appellant as charged.

This bill of exception certifies that “the only evidence in the case concerning the alleged acting together of Wanda Bishop and Orus Bishop is contained in the testimony of Leon Yeager,” which is set out by being quoted in part and summarized in part.

The court charged the jury that if they found beyond a reasonable doubt that “Wanda Bishop acting together with Orus Bishop * * * did unlawfully sell to Leon Yeager * * * whiskey,” then they were authorized to convict appellant.

The facts, as certified in the bills of exception, show that the purchaser dealt, through a one-way glass, with a woman. During the conversation that led to the sale, a man’s voice was heard to say “That is all right.”

Upon entering the building, appellant and her husband were found near the door, the husband having in his pocket the $10 bill the purchaser had placed in the slot as directed by the lady.

There was no man there other than Orus Bishop, appellant’s husband. Appellant’s voice, according to the testimony of the purchaser was to him “the same voice he heard when he was on the porch.”

Except for two children, the only other person in the house was an elderly woman whose voice did not sound like the voice he had heard.

In the absence of a statement of facts containing all of the evidence, we cannot agree that the bills of exception show or are sufficient to present the question of the insufficiency of the evidence to sustain the conviction or to show reversible error in the court’s charge. In Woods v. State, 134 Texas Cr. R. 206, 114 S.W. 2d 551, we said: “To warrant a reversal of the conviction in the absence of a statement of facts, the bill of exception must show that all the evidence adduced before the jury is embraced in the bill.” See also 4 Texas Jur. 234, Sec. 167; Jackson v. State, 127 Texas Cr. R. 329, 76 S.W. 2d 1046; Gallaher v. State, 124 Texas Cr. R. 398, 63 S.W. 2d 382.

The husband and wife appear to have been acting together in what was done on the occasion and were therefore accountable as principals.

The court charged the jury, in part, as follows: “You are further instructed that an information is no evidence of guilt. It is merely the pleadings of the state in the prosecution for crime, and you will not consider the information in the case as any evidence of guilt.” Appellant objected to the portion which reads “It is merely the pleadings of the state in the prosecution for crime,” because same is on the weight of and is a comment upon the evidence.

We are of the opinion that when considered with the remainder of the paragraph, the portion complained of was not reasonably calculated to injure the rights of appellant.

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

Opinion approved by the Court.