Green, Alias Douglas v. State

MARTIN, Judge. Offense burglary, penalty six years in the penitentiary. One John D. Sutherland owned and operated a little store at Montell, in Uvalde County. On Saturday night, November 6, 1926, his store was burglarized. On the next night appellant was arrested in the town of Uvalde and some of the stolen goods from said burglarized store was found in his possession and identified by Sutherland and his wife. There is no explanation shown in the record of appellant’s possession of these goods. Unexplained recent possession of stolen property obtained from burglarized premises is sufficient to support a conviction of burglary. Rippey v. State, 86 Tex. Crim. Rep. 539. The evidence was sufficient, in our opinion, to sustain the verdict rendered. Evidence was introduced by the state that officers of Uvalde County arrested the appellant on the street, took from his person a pistol and other articles and that appellant fled and was shot by said officers, and also that appellant while under arrest gave them the lpcation of his car, and that such car was searched and certain articles found therein. Motion was made by appellant to strike this testimony from the record after its reception and an. order was made and entered on the minutes *666 of the court overruling this motion and which contains an exception to such action on the part of the court. We are met at the outset with the question of whether or not the admissibility and competency of evidence can be thus raised. We are of the opinion that such a question can be presented for review only by a proper bill of exception. Statements from some of the authorities which lay down certain fundamental prerequisites under Art. 667, C. C. P., for the review of the action of trial courts will, we think, demonstrate the soundness of our holding. “There is a presumption that the lower court ruled correctly and bills of exceptions must negative this and show material error.” Morgan v. State, 82 Tex. Crim. Rep. 615. “The bill of exception, must furnish sufficient information touching the antecedent and surrounding facts to enable the court to determine its merit.” Rutherford v. State, 277 S. W. 669; Sid Patterson v. State, 282 S. W. 219. “The court will not look to the statement of facts or other parts of the record to ascertain whether or not the error complained of occurred, but in order for appellant to avail himself of the alleged error, it must be manifest from the bill itself and the attendant circumstances must be set out so fully that the court can ascertain from the bill without recourse to the record of statement of facts that the alleged error occurred as complained of.” Peasley v. State, 278 S. W. 440; Sparks v. State, 271 S. W. 631; Canterberry v. State, 275 S. W. 1040. “Truth of the objection must be verified by the bill. The mere statement of the grounds set forth in the bill is not the certificate of the trial judge that the facts which form the basis of the objection are true.” Plunk v. State, 265 S. W. 158; Murff ví State, 281 S. W. 1076. “A_ bill which sets out evidence, a part of which is admissible, presents no error, when blanket objection is made. Zweig V. State, 171 S. W. 751; Aven v. State, 177 S. W. 82. “The appellant must bring forward each ground of complaint upon which he relies for reversal by separate bills of exception and joining several matters in one bill is violative of the rule and bills of exception which bring forward two or more grounds of complaint in a single bill will not be considered by the court.” Nugent v. State, 273 S. W. 598; Leto v. State, 143 S. W. 184; Cabral v. State, 122 S. W. 872. The matter as presented violates almost all of the above rules. If the attendant facts and circumstances surrounding this matter had been set out as required by the rules it might have *667 been shown that the officers had the right to arrest appellant. The right of arrest carries with if generally the right to search without a search warrant. Agnello v. U. S., 269 U. S. 20, 70 L. Ed. 145; Hodge v. State, 298 S. W. 573. A proper bill of exception might also have reflected the fact that appellant authorized a search of his car. Moreover, there are two distinct and wholly unrelated matters presented as error in the aforesaid motion. This court has held that a recital in an order, overruling a motion for a continuance, of an exception to the action of the court, will not take the place of a bill of exception. Wilson v. State, 87 Tex. Crim. Rep. 542; Prator v. State, 15 Tex. Crim. App. 363. Branch’s P. C., Sec. 304. There would seem to be no good reason for distinguishing the instant case from those announcing the above rule. Many other reasons might be given but what has been said, we think, is sufficient authority for the announcement of the rule that the reception of evidence cannot be reviewed in this court where the record shows only a motion to strike out and an order of record overruling such motion with a notation of appellant’s exception. Such a question must and can only be presented by a proper bill of exception. Finding no error in the record, the judgment is affirmed. Affirmed. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.