Price v. State , 104 Tex. Crim. 257 ( 1925 )

Article 394, C. P. P. 1925 (Old Code No. 446) reads as follows:

"The fact of a presentment of indictment in open court by a grand jury shall be entered upon the minutes of the court, noting briefly the style of the criminal action and the file number of the indictment, but omitting the name of the defendant, unless he is in custody or under bond."

The record of presentment in the present case is copied in our original opinion and identifies the indictment against accused by number only. It is again urged in appellant's motion for rehearing that the statute (Art. 394 C. C. P.) is mandatory and that the presentment entry on the court minutes must show both the style of the criminal action and the file number of the indictment, and in addition must show the name of the accused where he is in custody or under bond, the record affirmatively showing appellant to have been under bond when the indictment was returned. It is appellant's contention that the omission of any one of the three items mentioned is fatal to the indictment when urged in limine. We think this position is not sustained by the former decisions of this court. Obviously the purpose of the statute quoted was to require such entry of the presentment of the indictment to be made as would identify it as charging accused with a criminal offense. The quotation from Lynn v. State, 13 S.W. 868 contained in our original opinion leaves no doubt that such was the construction given it by the court speaking through Judge Wilson. This statement in Lynn v. State, (supra) is claimed to be dicta in that the question then before the court was the validity of an order of transfer from the District Court to the County Court and not the sufficiency of an entry of presentment in the District Court. This may be true but the court had the very statute, now Article 394, C. C. P., in mind for the statute is quoted immediately preceding the announcement construing it. The view of the court as then constituted is confirmed by the opinion in Bohannon v. State, 14 Tex. Ct. App. 271. The contention there was that the indictment did not appear to have ever been returned into court, *and record made of the fact. The court said, "This objection is not; we think, supported by the record. We find in the record an entry showing the return into court, and presentment by the grand jury of the indictment, *designated by its file number, which we think is in compliance with the law. Code Crim. Proc. Art 415." It may be stated that Article 415 referred to is identical with present Article 394 C. C. P. The opinion in Hickox v. State,95 Tex. Crim. 173, 253 S.W. 823 is not in conflict with the authorities relied on but is in consonance with them. There the presentment entry only referred to an indictment charging "murder." No number of the indictment was given, and neither was the accused named. It was held that the word "murder" identified nothing, that it could apply to one person or one indictment as well as another. We think this does not apply where the number of the indictment is entered of record, and the indictment on which accused is tried bears the same identical number.

We have again examined the complaint urged by appellant because the court declined to permit appellant to place his wife on the witness stand during the closing argument of the County Attorney. Under article 643 C. C. P. (1925) the court in its sound discretion may permit admission of evidence any time before argument closes and a reversal will be ordered only when an abuse of such discretion is shown. (See authorities collated under Article 718, Vernon's C. C. P., and under Sec. 378, Branch's Ann. Tex. P. C.) Proof had been made that the wife of appellant had not been very strong for some time; her family physician had also testified that while he had not prescribed whiskey for her in the sense that he had written prescriptions for whiskey yet he had told her that whiskey would be beneficial. Appellant seemed content to let his defense rest on this proof notwithstanding the state had proved that a quantity of mash, a coil and some whiskey were found in the smoke house, and a still and a small quantity of whiskey were found in a trunk in the residence. Appellant did not testify and failed to call his wife to explain away the inculpatory facts or that the whiskey was for her use as medicine, although she was in a position to throw light on the matter, and appellant knew the state was at liberty to criticize him for failing to call the wife as a witness. Whatever the language used by the County Attorney in his closing argument regarding this point the effect was a criticism of such failure. It was a matter appellant knew beforehand was available to the state, and he closed his evidence without using the wife. Under the circumstances we think this court would not be warranted in holding that the trial judge abused his discretion in refusing to permit the wife to testify during the closing argument. There would have been no impropriety in permitting it, and cases might arise where the court's refusal to permit evidence to be introduced at this point in the proceeding would be held an abuse of judicial discretion. We think it does not so appear under the facts now before us.

The motion for rehearing is overruled.

Overruled.