The appellant was convicted in the District Court of Wichita County for the offense of wilfully collecting and receiving fees of office not allowed by law, and his punishment assessed at confinement in the penitentiary for a term of two years.
The evidence is amply sufficient to support the verdict. The facts show that the appellant was a justice of the peace, and as such approached a young man and young lady parked by the side of the road near the city of Wichita Falls and whom the facts show were not violating any law known to the statutes of Texas and charged them with violating the law and on the next day thereafter accepted from the young man involved $7.00 and appropriated the same to his own use and benefit.
Bill of exception No. 1 complains at the court's action in refusing to quash the indictment. This motion to quash was properly overruled; the indictment follows the approved form and charged an offense against the laws of Texas.
The second bill complains at the court's action in refusing to instruct the jury to return a verdict of not guilty on the second count in the indictment, the one on which the appellant was convicted. The evidence is not only amply sufficient to support this count but it is practically undisputed that appellant was guilty thereunder.
Bill No. 3 complains at the court's action in refusing to permit the appellant to testify that he could show the jury on his docket many instances where he had collected fines similar to this one and when he had collected a number of them, he would then make a report to the county auditor. This testimony was not admissible. The fact that he had violated the law in other instances would be no justification for its infraction in this case.
By bill No. 4, complaint is made at the court's action in refusing to allow the defendant to testify that he was willing to pay over this money to whoever is the proper authority to receive it. This testimony was properly excluded. The defendant was not to be judged by his intent or purpose while on trial but was properly tried on his conduct and intentions at the time the alleged offense was committed.
What has just been said also disposes of bill of exception number five.
Bill No. 6 complains at the court's action in refusing to permit the witness Calvert to testify that while he was mayor and city recorder of Electra, that he received complaints from *Page 361 the residents of Electra with reference to people parking their cars off the highway around Electra. This testimony was properly excluded. It may be said in passing that the right to quietly park a car along the public highway is one that has not yet been denied to the citizens of Texas, and the fact that some person or persons may complain at this conduct fails to justify a justice of the peace in including it in the category of criminal offenses.
Bill No. 7 complains at the court's action in refusing to permit the witness Calvert to testify that he was familiar with the practice of collecting and paying out fines in precinct No. 4 of Wichita County, and that it was customary for the city court and justice court to collect partial fines and give the defendants time to pay the balance. Under the facts in this case, as disclosed by this record, this testimony was properly rejected. A defendant generally cannot be heard to invoke a custom to justify a violation of a plain and unambiguous statute, and the facts in this case do not bring it within any exception to this rule.
The testimony of the witness Murchison was admissible for the purpose of contradicting the testimony given by appellant while a witness in his own behalf.
By bill No. 9 appellant complains at the misconduct of the jury. We have carefully considered this bill and have reviewed the facts testified to by the jurors on the hearing on the motion for new trial, and it is manifest that the evidence touching the question of misconduct was very materially conflicting and that there was entirely sufficient evidence introduced on this motion to justify the court in believing that no misconduct occurred. It has been repeatedly held that when a question of fact is raised by evidence touching alleged misconduct of the jury, the trial court is the proper tribunal to pass on this issue of fact, and unless the record shows his discretion has been abused, his ruling with reference thereto will not be disturbed. A review of the facts in the instant case convinces us that there was no abuse of the trial court's discretion in refusing the motion for a new trial because of the alleged misconduct of the jury.
Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.
Affirmed. *Page 362
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.