author: LATTIMORE, J. HAWKINS, J.

text:
    Ex parte EVANS.
    (No. 11631.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    Rehearing Denied March 21, 1928.
    1. Habeas corpus <⅜=>4 — Party, not appealing from conviction in justice court for violating tick eradication law, may not secure review by habeas corpus.
    Party, convicted in justice court for violating tick eradication law through drifting or driving cattle from tick infested territory into territory engaged in process of tick eradication, and making no appeal, or effort to appeal ease, to county court, may not secure review of conviction by habeas corpus.
    2. Habeas corpus <⅝=>3 — Court of Criminal Appeals will not, on habeas corpus, take Jurisdiction of matters properly belonging to other courts until due efforts have been made following prescribed course.
    Court of Criminal Appeals will not, on ha-beas corpus, take jurisdiction of matters which, following orderly procedure, properly belong to other courts until and unless it is shown that due efforts have been made following the course prescribed by law.
    3. Habeas corpus ⅞=4 — Habeas corpus may not usurp function of appeal.
    Habeas corpus will not be permitted to usurp'function of appeal.
    4. Criminal law <s=»l3 — Statute penalizing violation of tick eradication law is not so vague and unintelligible as to be unenforceable (Acts 39th Leg. [1925] c. 122, § 10).
    Acts 39th Leg. (1925) c. 122, § 10, providing penalty for violation of tick eradication law, held not so vague and unintelligible as to be unenforceable.
    Appeal from Franklin County Court; B. O. Shurtleff, Judge.
    Application by Jess Evans for habeas corpus. From a judgment remanding the relator to custody, he appeals.
    Affirmed.
    R. T. Wilkinson, Jr., of Mt. Vernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

It appears that appellant was convicted in the justice court of precinct No. 1, Franklin county, for a violation of the tick eradication law, in that he drifted or drove three head of cattle from Red River county, same being tick infested territory, into Franklin county, which was territory then engaged in the process of tick eradication. A jury trial was had. No appeal or effort to appeal the case to the county court of Franklin county appears in the record.

Asserting that the complaint charged no offense, and that the verdict was so informal and incomplete as to not form the basis of a proper judgment, appellant sued out his writ of habeas corpus in the county court of Franklin county, where, upon a hearing, he was remanded, and now brings this appeal. We perceive no reason why appellant did not appeal his case to the county court of said county which had appellate jurisdiction thereof, and in which court the presumption is that the law be, and would have been, followed. The trial there would have been de novo, and the necessary presumption is that, if the complaint was insufficient, a motion to quash same would have been sustained; also that, if the complaint had not been quashed, and a trial had been had, the judgment and verdict would have been in conformity with law. This court uniformly declines to take jurisdiction of matters which, following orderly procedure, properly belong to other courts until and unless it is shown that due efforts have been made following the course prescribed by law. We have always declined to permit the writ of habeas corpus to usurp the function of an appeal. We perceive nothing in this case to differentiate it from those in which this rule has been announced. ’ Ex parte Oates, 91 Tex. Cr. R. 79, 238 S. W. 930; Ex parte Mitchum, 91 Tex. Cr. R. 62, 237 S. W. 936; Ex parte McKay, 82 Tex. Cr. R. 221, 199 S. W. 637; Ex parte Garcia, 90 Tex. Cr. R. 288, 234 S. W. 892; Ex parte Drane, 80 Tex. Cr. R. 543, 191 S. W. 1156; Ex parte Meggs, 99 Tex. Cr. R. 391, 269 S. W. 790; Ex parte Stanford, 100 Tex. Cr. R. 559, 271 S. W. 924; Ex parte Lovel, 101 Tex. Cr. R. 576, 276 S. W. 428.

There appears in the record a contention on the part of appellant that the law ‘under which this prosecution was had is vague and unintelligible, and therefore unforceable. Said prosecution is under section 10, e. 122, General Laws, Thirty-Ninth Legislature. We do not think the contention of appellant' sound in this regard.

Believing the matters here attempted to he raised all to be properly for the county court of Franklin county on appeal, and that this court must decline to consider the matters here presented by habeas corpus, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing, appellant apparently relies largely on Ex parte Ballard, 87 Tex. Cr. R. 460, 223 S. W. 222. In later cases it was recognized that the holding in Ballard’s Case was out of line with the well-established announcements of this court, and we declined to follow it in Ex parte Garcia, 90 Tex. Cr. R. 287, 234 S. W. 892; and Ex parte Matthews, 96 Tex. Cr. R. 497, 258 S. W. 477. 'In addition to authorities cited in our original opinion, see Ex parte Beverly, 34 Tex. Cr. R. 644, 31 S. W. 645; Ex parte Cox, 53 Tex Cr. R. 240, 109 S. W. 369; and other eases collated in Ex parte Jarvis (No. 11277; Tex. Cr. App.) 3 S. W. (2d) 84, opinion delivered February 15, 1928.

The motion for rehearing is overruled.
      <^»For other cases see same topic and KEY-NUMBER in all Key-Numbered.Digests and Indexes


source: Caselaw Access Project

author: MARTIN, J.

license: Public Domain

text:
    MISSOURI v. STATE.
    (No. 11692.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    1. Criminal law <§=>369 (7) — Testimony that after previous burglary of corncrib owner found cobs on defendant’s premises held inadmissible.
    In prosecution for burglary of corncrib, admission of testimony of prosecuting witness that corncrib had been burglarized three times, in preceding months, and that after morning of' the last-mentioned burglary he found a large quantity of corncobs on defendant’s premises of the same peculiar size as those owned by him, held error, within rule ' inhibiting proof of extraneous crimes which do not form a part of the. res gestee or prove intent, identity, or system.
    2. Criminal law <§=>365(1), 369(15), 371(1), 372(1) — Evidence of extraneous offense, not part of res gestae, is inadmissible unless it proves intent, system, or identity.
    Proof that defendant committed a like offense at another time is not legal evidence that he committed the offense for which he was being tried, unless the other offense was part of res gestae or tended to prove intent, system, or identity of defendant.
    3. Criminal law <3=>37l (I) — That several crimes were committed in same way or at same time does not show system rendering-proof of one admissible in prosecution for other.
    Fact that two or more crimes are committed in the same way does not show particular system so as to -.render admissible, in prosecution for one offense, evidence that the other was committed, and proof of independent crime is not admissible by sheer force of fact that it was committed on the same day or night.
    Commissioners’ Decision.
    Appeal from District Court, Ft. Bend County ; M. S. Munson, Judge.
    Jim Missouri was convicted of burglary, and he appeals.
    Reversed and remanded.
    Heidingsfelder, Kahn & Branch, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, burglary; penalty, two years.

Prosecuting witness was awakened on the night the crime was committed, and, as he approached 'his corncrib, someone fled therefrom whom he was no-t able to identify.

Prosecuting witness over objection was permitted to testify that his corncrib had been burglarized three times in the preceding months, and -that the morning after the last-mentioned burglary he found a great quantity of corncobs on the premises of appellant of the same peculiar size of those owned by him. No corn was taken the night of the last burglary. The similarity of the corncobs was relied on to show appellant’s connection with these previous burglaries.

Admitting that proof .of similarity of corncobs would be sufficient to connect appellant with these prior offenses, which may well be doubted, still we do not think this evidence was admissible. This evidence appears to fall clearly within the rule inhibiting proof .of extraneous crimes which were not a part of the res gestae and which did not go to prove intent, identity, or system. Williamson v. State, 13 Tex. App. 518; Branch’s P. C. § 166. Proof that appellant committed a like offense at another time is not legal evidence that he committed the offense for which he was being tried, unless such other offense tended to prove intent, system, or identity, when these are issues. Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9. The fact that two or more crimes were committed in the same way does not show system. Long v. State, 39 Tex. Cr. R. 546, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501. It has been many times held that proof of an independent crime is not admissible by sheer force of the fact that it was committed on the same day or the same night. Woodard v. State (Tex. Cr. App.) 51 S. W. 1122. Nunn v. State, 60 Tex. Cr. R. 86, 131 S. W. 320; Branch’s P. C. p. 99.

If it had been shown in this case that the former burglaries had been committed by appellant and that in the instant case the crime was committed in such manner or under such facts as tended to show that the party who committed the last burglary was identical with the one who committed the first because of certain identifying facts common to both transactions, the above evidence would have been correctly admitted upon the issue of identity. We find nothing, however, in the facts of the first burglary, which tends to identify the man who fled from the burglarized premises on the night in question'as appellant, unless it could be said that proof of the alleged commission of one offense by appellant is legal evidence that he was the man seen committing another. This last proposition is too manifestly unsound to require discussion. Disposition of this point makes it unnecessary to discuss appellant’s other assignments of error.

The judgment is reversed and the cause remanded.

PER CURIAM. 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.
      <®=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CHRISTIAN, J. MORROW, P. J.

text:
    SOOTER et al. v. STATE.
    (No. 11396.)
    Court of Criminal Appeals of Texas.
    Feb. 1, 1928.
    Rehearing Denied March 21, 1928.
    1. Assault and battery ©=96(7) — In submitting issue of aggravated assault, court’s charge held to restrict issue of guilt to transaction involving taking of check, excluding subsequent taking of money.
    In submitting issue of aggravated assault, court held to have restricted guilt or innocence of defendants to transaction involved in taking of check from prosecuting witness, not including subsequent taking of small sum of money, where instruction on aggravated assault followed instructions on robbery, in which issue of guilt was restricted to transaction involving 'check and preceded instruction on self-defense, which issue was raised by testimony involving only transaction relating to cheek.
    2. Assault and battery ©=>92— Evidence held to support conviction for aggravated assault.
    Evidence held , sufficient to support conviction for aggravated assault as to two defendants, one of whom drew pistol and threatened to kill prosecuting witness, while the other encouraged him and stated that, if former did not kill prosecuting witness, he would.
    3. Assault and battery' ©=>96(7) — In prosecution for aggravated assault, failure to instruct that if one defendant acted on sudden passion, codefendant would not bo guilty, held not error, where issue of accomplices was not raised (Pen. Code 1925, art. 76).
    In prosecution for aggravated assault, failure to instruct that if- one defendant drew' pistol due to sudden passion aroused by prosecuting witness’ insulting remarks, another defendant who encouraged him would not be guilty, held not error, notwithstanding Pen. Code 1925, art. 76, where evidence raised issue of principals but not that of accomplices.
    4. Criminal law ©=>736(2) — Whether confessions were made under promise of reward held for jury on conflicting evidence.
    In prosecution for aggravated assault, evi-, dence held sufficient to take to jury question whether confessions of defendants 'were made under promise of reward, where there was conflict between testimony of defendants and district attorney as to whether statements were voluntarily made.
    5. Criminal law ©=>781(4) — Charge that confessions could be considered if made without compulsion or persuasion held not misleading because it was not contended statements were procured by compulsion or persuasion.
    In prosecution for aggravated assault, instruction that confessions could be used for impeaching defendants’ testimony if they were made freely and voluntarily without compulsion or persuasion held not misleading, as against contention that it was not contended statements were procured by compulsion or persuasion, where terms used by court could not have misled or confused jury.
    6. Criminal law ©=>806(3) — Failure to charge doctrine of reasonable doubt in connection with instruction on voluntary character of confessions, held not reversible error.
    In prosecution for aggravated assault, court held not to have committed reversible error in failing to charge doctrine of reasonable doubt in connection with instruction relative to voluntary character of confessions.
    7. Assault and battery ©=>83 — Where defendant in prosecution for aggravated assault showed prosecuting witness tied defendant’s hands behind back shortly after assault and delivered him to sheriff, state may show acts were pursuant to sheriff’s orders.
    In prosecution for aggravated assault, in which defendant showed on cross-examination that prosecuting witness shortly after assault tied defendant’s hands behind back, brought him to town, and delivered him to sheriff, state may show that such acts were pursuant to .sheriff’s orders.
    8. Criminal law ©=>814(17) — Charge on circumstantial evidence is not required, where defendant’s participation in offense is established by direct evidence.
    In prosecution for aggravated assault in which defendant’s participation in assault was established by direct evidence, charge on circumstantial evidence was not required.
    On Motion for Rehearing.
    9. Criminal law ©=1186(4) — Errors in charge not calculated to injure accused or mislead jury are not reversible (Code Cr. Proc. 1925, art. 666).
    Faults in court’s charge in criminal case will not justify reversal, where they are obscure to a degree that they are not calculated to injure accused or mislead jury, since under Code Cr. Proe. 1925, art. 666, reversal is not authorized for harmless error in charge.
    Commissioners’ Decision.
    Appeal from District Court, Childress County; C. C. Small, Judge.
    Berry Sooter and another were convicted 'of aggravated assault, and they appeal.
    Affirmed.
    J. W. Davidson, of Childress, and Bledsoe & Crenshaw, of Lubbock, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is aggravated assault. The punishment of Berry Sooter was assessed at 90 days in jail and that of Marvin Sooter at 60 days in jail.

Conviction of an aggravated assault was had under an indictment charging robbery by using and exhibiting a firearm. It was eharged that appellants obtained from B. W. Booth 94 cents in money and a check in the sum of $739. Booth, the injured party, testified, in substance, as follows: Appellants, and Herbert Sooter came to Booth’s house and told him that they were looking for work. Booth gave them the name of a party who needed hands. They insisted that he go with them for the purpose of seeing the party, which he agreed to do. Leaving Booth’s house about 3 p. m., the parties traveled in a Eord touring car, Marvin Sooter driving the car, Herbert Sooter riding on the front seat with him, and Booth and Berry Sooter riding on the rear seat. Finding that the party mentioned by Booth was not at home, they proceeded to the town of Childress, and from there drove in the direction of Booth’s home. Some time after leaving Childress, Berry Sooter said: “Slow down the car; I want to stop a minute.” When the car stopped Berry Sooter got out and stated to Booth that he was going to kill him and at the same time drew a pistol, which he pointed at Booth. Herbert Sooter grabbed the gun and jerked it down. Booth asked Berry Sooter why he wanted to kill him, and he replied: “Well; I am going to kill you, or else you sign this check for $500.” Booth wrote a check, but made a mistake as to the amount: whereupon Berry Sooter required him to sign and deliver to him a check for $739. When the check was delivered to Berry Sooter, he said: “I am going to kill you anyhow; you caused me damage on a crop out on the plains, and I am going to kill you anyhow.” Marvin Sooter, who was sitting in the front seat' of the car, at this point told Berry Sooter to let him have the gun if he did not mean to kill Booth and that he (Marvin) would kill him. Berry Sooter replied that he would kill Booth himself. Marvin Sooter then said: “Why don’t you do what you started to do — take him to the cedar brakes?” Holding the gun on Booth, Berry Sooter required him to get in the front seat. Herbert Sooter then took the steering wheel, Berry Sooter and Marvin Sooter got in the back of the car, and the parties proceeded along the road, passing Booth’s home. Berry Sooter was holding the pistol on Booth during the time they were traveling. After passing Booth’s home, Marvin Sooter tied Booth’s hands with a cord, while Berry Sooter held the pistol on Booth. Finding that they needed gasoline, Marvin Sooter took 94 cents from Booth’s pocket while Berry Sooter held the gun on him. Finally, appellants left Booth at his home.

Both Berry and Marvin Sooter testified that they were drunk on the occasion of the trip with Booth. According to their testimony, Berry Sooter accused Booth of talking about his, Berry Sooter’s, wife, and Booth stated, in effect, that if he had talked about her it did not make any difference. Berry Sooter testified that when Booth made the statements he (Booth) reached down where there were some tire tools, and that,' thereupon-, he (Berry Booter) drew his pistol, pointed it at Booth, and told him he was going to kill him. Marvin Sooter testified that Booth reached down and started to get a spring, and that thereupon Berry Sooter drew his pistol and pointed it at him. Marvin Sooter denied that he stated to Berry Sooter, in effect, that he (Marvin) would kill Booth if Berry did not. Both appellants admitted that the cheek in question was delivered to Berry Sooter, but gave testimony in support of their theory that Booth owed Berry Sooter the money and agreed to pay him by giving him the check. They contended that Booth loaned them 94 cents with which to buy gasoline.

In submitting the issue of robbery, the court restricted the issue as to the guilt or innocence of appellants to the transaction involved in the taking of the check. Appellants contend that the court erred in failing to likewise restrict the issue in the charge on aggravated assault. After defining highway robbery, the court advised the jury, in substance, that the testimony concerning the taking of the 94 cents could only be considered to show, if it did show, the intent with which appellants acted at the time of the taking of the check, if such check was actually taken. Immediately following this instruction the issue of aggravated assault was submitted, and in paragraph 18 of the charge, which immediately succeeds the definition of aggravated assault and its application to the facts, the court instructed the jury on the law of self-defense, advising the jury in sub-htance that appellants would not be guilty of an aggravated assault if the issue of self-defense was resolved in their favor. The testimony raising the issue of self-defense is involved in the transaction relative to -the taking of the check. This defensive issue was raised by the testimony of appellants, according to which the demonstration by Booth, upon which the charge on self-defense was predicated, occurred at the time the check was delivered to Berry Sooter. There was no evidence showing or tending to show that such demonstration or any demonstration was made by Booth at the timé of the taking of the 94 cents. In submitting the issue of self-defense, the court made specific reference to a demonstration by Booth with a spring or car tool. The jury had heard the evidence and knew that the demonstration referred to was in immediate connection with the taking of the check. This being the case, we think the court’s charge limited the consideration of the jury to the transaction involved in the taking of the check.

We think that the evidence was sufficient to justify the submission of the issue of aggravated assault as to Marvin Sooter. The testimony shows that he encouraged by words the assault made by Berry Sooter, and stated, in substance, to Berry Sooter, that if he did not kill Booth, he (Marvin Sooter) would. The court instructed the jury that if they believed from the evidence beyond a reasonable doubt that appellant .Marvin Sooter was present and, knowing of the unlawful intent of Berry Sooter, aided him by words or gestures or encouraged him to make an assault, that he would be guilty of an aggravated assault. Other parts of the charge properly defined principals. We are of the opinion that the finding of the jury against Marvin Sooter was sufficiently supported by the evidence.

Appellants timely objected to the charge of the court on the ground that the jury should have been instructed that if they believed that the drawing of the pistol by Berry Sooter was due to sudden passion on his part aroused by insulting remarks by Booth about Berry Sooter’s wife, that Marvin Sooter would not be guilty of aggravated assault. It was appellant’s contention that under the provisions of article 76, P. G. 1925, Marvin Sooter would not have been guilty of the offense of manslaughter had Berry Sooter killed Booth in a sudden passion growing out of the insulting remarks made by Booth about Berry’s wife, and that therefore he could not be guilty of an aggravated assault if Berry Sooter committed such assault under the influence of sudden passion induced by insulting remarks of Booth about his (Berry Sooter’s) wife. Article 76, supra, provides: “There may be accomplices to all offenses except manslaughter and negligent homicide.”

The evidence fails to raise the question presented by appellants. The issue of principals and not that of accomplices is raised.

The state introduced in evidence for the purpose of impeaching appellants, their confessions, which were shown to have b.een made in. compliance with the statute while appellants were under arrest. Touching the voluntary character of his statement, Marvin Sooter testified, in substance, thát he received a note from Berry Sooter while in jail, in which he said to tell them that he (Berry Sooter) held the gun on Lawrence Booth and made him sign the cheek; that Berry Sooter further stated in the note that Lawrence Booth, the injured party, told him to make such statement, and that he, Lawrence Booth, would help them get out of trouble; that he (Marvin Sooter) was not forced to carry out Berry Sooter’s instructions and did not know whether he carried them out or not; that he was scared at the time he made the statement. Berry Sooter testified, in substance, that the district attorney told him at the time he made his statement that it “would be better” on him if he made a statement; that Lawrence Booth, the injured party, told him to make the statement, and that he would get them out of trouble; that he believed that Lawrence would get them out of trouble if they made the statements, and that was the reason he made his statement. The testimony of appellants touching the promise made by Lawrence Booth was not disputed. The district attorney’s testimony showed that the statements were voluntarily made. As to the statement of each appellant, the court charg- ' ed the jury, in substance, that if they found and believed from the evidence that such statement was freely and voluntarily made without compulsion or persuasion, that it could be used for the purpose of impeaching and contradicting, if it did impeach and contradict, the testimony of said witness.

Appellants objected to this charge on the ground that the undisputed evidence showed that the statements were made under a promise of reward and the jury were not instructed that they could not be considered for any purpose. We think the testimony raised an' issue for the determination of the jury.

Appellants’ second objection to said charge was that it was inapplicable to the facts in that it was not contended that the statements were procured by compulsion or persuasion. We think the terms used by the court could not have misled or confused the jury, and are therefore constrained to overrule appellant’s contention.

We are unable to. agree with appellants that the court committed reversible error in failing to charge the doctrine of reasonable doubt in connection with the instruction relative to the voluntary character of the confessions. In view of the entire record, the matter complained of would not in our opinion authorize a reversal of the case.

Appellants bring forward a bill of exception which presents the following occurrence: Appellants proved by Lawrence Booth, on cross-examination, that a few days after the alleged robbery he tied the hands of Berry Sooter behind his back, brought him to town, and delivered him to the sheriff. The state then, over the objection of appellant that the testimony was hearsay, proved ■by the witness that he tied Berry Sooter’s hands' pursuant to the orders given him by the sheriff. The bill shows that appellants were not present at the time such instructions were given by the sheriff. Appellants evidently opened the inquiry for the purpose of discrediting the.witness by showing acts on his part that would lead the jury to believe that animus and hatred impelled him to testify as a witness against appellants. He had the right to explain his act, as the testimony elicited from him by appellants, unexplained, reflected on him. We perceive no reversible error in the matter.

A charge on circumstantial evidence as to Marvin Sooter was not required. His participation in the assault was established by direct evidence.

The evidence is sufficient to support the verdict of the jury and the judgment rendered thereon.

Finding no error, the judgment is affirmed.

PER OURIAM. 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.

On Motion for Rehearing.

MORROW, P. J.

The motion reiterates the attack on the charge of the court which was considered on the original hearing and discussed in the opinion. Our re-examination of the matter leaves us of the opinion that if there are faults in the charge, they are obscure to a degree that they were not calculated to injure the accused or mislead the jury, and that the action of this court thereon is supported by article 666, C. O. P. 1925, by which a reversal is not authorized for an error in the charge which is harmless.

The motion is overruled.
      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MARTIN, J. HAWKINS, J.

text:
    RICHARDSON v. STATE.
    (No. 11128.)
    Court of Criminal Appeals of Texas.
    Jan. 18, 1928.
    Rehearing Denied March 21, 1928.
    I. Burglary ©=342(3) — Evidence of defendant’s recent possession of stolen cotton se'ed and other circumstances held to sustain conviction.
    In burglary prosecution, evidence of defendant’s possession of 12 sacks of cotton seed taken from house of prosecuting witness and of finding automobile trailer in defendant’s possession, and that automobile with trailer was seen near prosecutor’s house about time property was stolen, held, sufficient to sustain conviction.
    On Motion for Rehearing.
    2. Burglary ©=341 (7) — Stolen property may be identified circumstantially.
    In prosecution for burglary, stolen property may be identified circumstantially, as well as by direct testimony.
    Commissioners’ Decision.
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    G. G. Richardson was convicted of burglary, and he appeals.
    Affirmed.
    Stinson, Hair, Brooks & Duke, of Abilene, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, burglary; penalty, three years in' the penitentiary.

The state relied for a conviction chiefly upon recent possession of stolen property from the burglarized premises. The only serious question in the casé is the question of the sufficiency of the proof of identity of the alleged stolen cotton seed found in possession of appellant to support the conviction.

Prosecuting witness missed 12 sacks of cotton seed from a house on his premises. One of these sacks was branded “Cash Pedigreed Seed.” There was one oat sack holding 4½ or 5 bushels, a piece of a large sack, the rest 100-pound sacks, all tied in a peculiar way. This precise number of sacks, fitting exactly the description of witness’ property, was found in the possession of appellant. It was also shown that a car with a trailer was seen near this house of witness one night about the time the property was stolen and that appellant in going to and from his farm passed near the house in which the property was stored. A trailer was found in possession of appellant.

Of course, it could not be contended that cotton seed of the character shown in this record could be positively identified. However, we regard the fact that 12 sacks, fitting the exact description of witness’ property and tied in the same peculiar manner, were found in appellant’s possession of such strong and convincing character that it will meet the de-xüands of the law as to identity. It would be a very remarkable'coincidence indeed if appellant just happened to have one sack out of 12 branded as witness’ sack was branded and just one piece of a sack out of 12 with about the same amount of cotton seed in it all tied in the same peculiar and unusual manner detailed by witnesses for the state. The evidence is not as strong as to identity . as it might be, but we believe it is sufficient' under the authorities to support a conviction. Lynne v. State, 53 Tex. Cr. R. 375, 111 S. W. 729; Fetters v. State (No. 11340) 1 S.W.(2d) 312, not yet officially reported.

There is further complaint of the statements of state’s counsel before the jury. No special requested charges were asked or given to disregard such statements and they were clearly not of that inflammatory character which requires a reversal regardless of special charges given at the instance of the defendant.

Finding no errors in the rec'ord, the judgment is affirmed.

PER OTJRIAM. 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.

On Motion for Rehearing.

HAWKINS, J.

We are unable to agree with appellant in his renewed contention that the property found in his possession was not sufficiently identified as that taken from the burglarized premises. That stolen property may be identified circumstantially, as well as by direct testimony, is not to be questioned. Burgess v. State, 107 Tex. Cr. R. 90, 296 S. W. 318. In section 2482, Branch’s Ann. Tex. P. C., is found this language:

“The state may trace by positive or circumstantial evidence the property alleged to have been stolen, and whether the property shown to have been in the possession of defendant was the identical property stolen is in most cases a question for the jury.”

Among other cases cited in support of the text is Bagley v. State, 3 Tex. App. 163, where the point involved was the identity of stolen paper money. From that opinion we quote:

“The actual identification of paper money, however, is often dispensed with to a considerable extent when there are other circumstances from which the general inference of guilt may be drawn.”

The motion for rehearing is overruled.
      ©=>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WIMBERLY v. STATE.
    (No. 11056.)
    Court of Criminal Appeals of Texas.
    Nov. 2, 1927.
    Rehearing Denied March 21, 1928.
    I. Libel and slander <⅞=>144 — Indictment alleging statement that certain person was pimping for his mother held to charge slander as imputing unchastity to the mother.
    Indictment for slander alleging that defendant stated that son was doing nothing but pimping for his mother, meaning that mother was having intercourse with men other than her husband, and that the son was soliciting such intercourse, held sufficient as a whole to charge offens,e, since clearly imputing to the mother a want of chastity.
    2. Libel and-slander <⅜=>152(5) — Indictment for slander alleging name of person held not at variance with proof that defendant used pro-: noun “he.”
    In prosecution for slander, fact that indictment alleged name used by defendant held not to constitute variance with proof showing that defendant had used pronoun “he,” instead of proper name; it being clearly shown of whom he was speaking; all that was necessary being that words must be substantially proved as alleged.
    On Motion for Rehearing.
    3. Libel and slander <3=3 152(5) — Failure to prove meaning of expression “pimping” held immaterial, in view of generally accepted meaning.
    In prosecution for slander, failure to prove allegation of indictment as to meaning of expression “pimping” held immaterial; term having generally accepted meaning, as one who provides gratification for the lust of others.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Pimp.]
    Commissioners’ Decision.
    Appeal from District Court, Gillespie County; J. H. McLean, Judge.
    Joe Wimberly was convicted of slander, and he appeals.
    Affirmed.
    W. C. Linden, of San Antonio, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

The offense is slander and the punishment a fine of $500 and six months’ imprisonment in the county jail.

The indictment is attacked, principally upon the ground that the language charged to have been used by appellant was not spoken of nor concerning the female Emma Klearner, but was spoken of and concerning Eugene Klearner, and that such language does no't impute a want of chastity to the female Emma Klearner. Three slanderous statements appear in the indictment, two of which we are inclined to think are abusive epithets rather than imputations of a lack of chastity. The third statement is:

“That one Eugene Klearner was doing nothing else but pimping for his mother, by which was meant that the said Emma Klearner was having carnal intercourse with other m,en, other than her husband, and that the said Eugene Klear-ner was soliciting other men to have carnal intercourse with the said Emma Klearner.”

It was also alleged that “Eugene Klearner is the son of Emma Klearner.” We think this language clearly imputes to the female Emma Klearner a want of chastity, and that the indictment as a whole is sufficient to charge' the offense of slander.

Nor do we think there is any merit to appellant’s contention that there was a variance between the indictment and evidence, in that the testimony shows the names of Emma Klearner and Eugene Klearner were not used by appellant. It was shown that the slanderous language occurred in a restaurant, and that said Eugene Klearner left about the time appellant and his companion entered, and that appellant immediately began applying vile epithets towards him, which continued until the language above mentioned was used. The testimony fairly considered shows that the pronoun “he” was used by appellant instead of the words “Eugene Klearner,” as charged in the indictment. It was clearly shown of whom appellant was speaking and was proved without controversy that, his mother was Emma Klearner. It is only required that the words must be substantially proved as alleged. Oonlee v. State, 14 Tex. App. 222. This proof could have in no wise misled appellant.

Finding no error in the record, the judgment is affirmed.

PER CURIAM. 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.

On Motion for Rehearing.

HAWKINS, J.

Appellant renews insistence that the state failed to make out its case in omitting to prove the allegation in the indictment averring what was meant by the expression “pimping for his mother.” The term “pimp” seems to have received judicial interpretation which is in line with its generally accepted meaning:

“Pimp. One who provides for others the means of gratifying lust; a pander; one who provides gratification for the lust of others; a procurer, a panderer.” 30 Cyc. Law & Proc. p. 1624, where citation to cases may be found.

See, also, Webster’s International Dictionary for precisely the same definition.

It would seem that the words used by appellant are well understood without the state resorting to proof of their meaning.

The motion for rehearing is overruled.
      €=>For otter casen see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, P. J.

text:
    HOLLIMON v. STATE.
    (No. 11648.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    Criminal law <©=>1097(5)— Complaints of charge cannot be considered In absence of statement of facts on appeal from conviction.
    In the absence of statement of facts on appeal from conviction, it is not possible to determine whether complaints as to charge have merit.
    Appeal from District Court, Liberty County; Thos. B. Coe, Judge.
    Frank Hollimon was convicted of the theft of a hog, and he appeals.
    Affirmed.
    M. E. Cain, of Liberty, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

Theft of a hog is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

The indictment appears regular. The record is void of statement of facts. There are several bills of exceptions in which complaint is made of the manner in which the court instructed the jury, but, in the absence of the statement of facts, it is not possible to determine whether the complaints of the charge have merit.

The judgment is affirmed.


author: MARTIN, J. LATTIMORE, J.

text:
    DAVIDSON v. STATE.
    (No. 11335.)
    Court of Criminal Appeals of Texas.
    Feb. 8, 1928.
    State’s Rehearing Denied March 28, 1928.
    1. Criminal law <⅜=»778(5) — Refusal to charge that state had burden to disprove exculpatory statements in alleged confession held .proper under evidence.
    In prosecution for murder, in which there was circumstantial evidence apart from defendant’s statement to connect him with killing and to show he fired fatal shot, and state was not forced to rely wholly or even mostly on defendant’s statements in alleged confession, refusal to charge that state had burden to' disprove exculpatory statements in such alleged confession held not error.
    2. Criminal law <@=>814(17) — Charging ón circumstantial evidence is unnecessary where there has been direct confession to killing.
    Where there has been direct confession to killing, it is never necessary to charge on circumstantial evidence.
    3. Criminal law <§=>784(3) — Alleged confession held to justify court’s failure to charge on circumstantial evidence.
    In prosecution for murder, alleged confession, although made by defendant when drunk and accompanied by exculpatory statements, fteld to render failure to charge on circumstantial evidence not reversible’ error.
    4. Criminal law <@=>784(3) — If sufficiency of confession to killing is doubtful, court should charge on circumstantial evidence, if state has no direct evidence.
    In prosecution for murder, if it clearly appears that there is doubt as to whether alleged statement by defendant shortly, after killing amounted to confession, court should charge on circumstantial evidence, if state has no direct evidence.
    5. Criminal law <§=>311 — Every one is presumed sane until contrary is proven.
    In criminal prosecution, every one ⅛ presumed to be sane until contrary is proven.
    6. Insane persons <§=>26 — Adjudication of insanity by court of competent jurisdiction held to overcome presumptions of sanity theretofore existing and to create rebuttable presumption of insanity until contrary appeared.
    In criminal prosecution, fact that defendant had previously been by court of competent jurisdiction adjudicated insane overcame presumption of sanity theretofore existing, and created rebuttable presumption of insanity from such.time forward until contrary appeared.
    7. Insane persons <§=>26 — Presumption of insanity from adjudication thereof may be rebutted by proof of discharge from asylum and other evidence.
    In prosecution for murder, presumption of insanity from previous adjudication thereof by court of competent jurisdiction, which had not been set aside, was rebuttable, and could be' met by proof of discharge from asylum and evidence of physician in charge of defendant at asylum.
    8. Insane persons <§=>29 — Evidence of restoration of person adjudicated insane to sanity held not to create presumption of sanity, but to constitute evidence of changed' mental state.
    In prosecution for murder, evidence that defendant had been restored to sanity and discharged from asylum to which he was sent after adjudication of insanity by court of competent jurisdiction, which adjudication had not been set aside, did not create presumption of sanity, but was merely evidence of changed mental status, to be considered with other facts in passing on his sanity at .time of alleged criminal act.
    9. Criminal law <§=>778(5) — In prosecution for murder, where former adjudication of defendant’s insanity had not been set aside, refusal to charge that state had burden to prove sanity, and that adjudicated condition was presumed to exist until contrary was shown, held error.
    In prosecution for murder, on showing that defendant had previously been adjudicated insane by court of competent jurisdiction, and had been committed to asylum, but had been restored to sanity, in view of fact that adjudication of insanity had not been vacated or annulled, refusal to charge that burden of proving defendant’s sanity at time of alleged murder was on state, and that from and after judgment of insanity defendant was presumed to be insane unjil contrary was shown by evidence, held error.
    10. Insane persons <§=>26 — After adjudication of insanity, party alleging recovery or lucid interval has burden to prove it.
    After' adjudication of insanity, if recovery or lucid interval is alleged to have occurred, burden of proving it is on party making allegation.
    11. Criminal law <§=>474 — In prosecution for murder by defendant previously adjudicated insane, testimony of asylum physician that ho was sane when he left asylum held admissible.
    In prosecution for murder, where it was shown that defendant had previously been adjudicated insane and confined in asylum, state had burden of showing his sanity, and testimony of physician in charge of asylum that he was sane when he left was admissible.
    12. Insane persons <§=>26 — In prosecution for murder, previous adjudication that defendant was insane held not to conclude state as to ‘ showing sanity.
    In prosecution for murder, where defendant had previously been adjudicated insane and confined in asylum, state was not concluded by such judgment which only raised presumption1 of insanity, which could be met by evidence showing restoration to sanity, although judgment of insanity had not been vacated.
    On Motion for Rehearing.
    13. Criminal law <§=>48 — On defense of insanity, final test is whether accused, at commission of offense, knew right from wrong in particular transaction.
    Where one charged with crime seeks to defend on ground of insanity, final test is whether he, at time of commission of alleged offense, was . so insane as not to know right from wrong in particular transaction, and that it was something he ought not to do.
    14. Criminal law <§=>331 — Defendant in criminal prosecution, ordinarily has burden of supporting plea of insanity by preponderance of evidence.
    Because of presumption of sanity in ordinary cases, burden of supporting plea of insanity in criminal prosecution is ordinarily put on defendant, who must show by preponderance of evidence that he was insane at time of offense.
    15. Criminal law <§=>l 110(2) — Neither defendant nor state can amend statement of facts on appeal.
    . In criminal prosecution, where statements of facts has been agreed to, certified, and filed, it cannot be amended on appeal either by state or by defendant.
    Commissioners’ Decision.
    Appeal from District Court, Denton County; Alvin C. Owsley, Judge.
    Gordon Davidson was convicted of murder, and he appeals.
    Reversed and remanded.
    Robt. H. Hopkins and Sullivan, Speer & Minor, all of Denton, for appellant.
    Elbert Hooper, Co. Atty., and Earl Street, Asst. Co. Atty., both of Denton, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, murder; penalty, eleven years.

Appellant and deceased were carpenters, and apparently on very friendly and intimate térias prior to the death of deceased. On the afternoon before the tragedy that night they began drinking together, and, in company with a third party, went to Port Worth after more liquor. On leaving, a single barrel shotgun was put in the car by deceased. They returned that night alone, and deceased was found dead by the roadside on what is known as the old Fort Worth and Denton highway, a few miles out of Denton. The car at the time was headed north, its right wheels in the ditch on the east side of the road. The appellant’s body was found lying on its back, with one foot about even with, or slightly under, the west running boat’d of the car, the head pointed west, with a single wound about under the right nipple, ranging very slightly upward. .The clothes were powder burned, and the entrance to the wound slightly so, The gun was found with the stock on the bottom of the front car seat, the trigger down, no trigger guard on the gun, with the barrel protruding over the west end of the seat a few inches, and with an exploded or discharged shell in the gun. The deceased and the appellant were both shown to be drunk that night a short time before tile tragedy. A shot was heard by those living nearby, and in a few minutes the appellant appeared and made a statement.

According to the state’s witness, Edwards, appellant at that time and place said in substance:

“That Y. D. Smith (deceased) was dead, and asked us to go over there. Then he asked to be taken home, that he was drunk. He first said he killed him, then he told us, ‘No, boys, I didn’t kill him, but there is others did.’ * * '* Then he told us, said he had not been with him, had not saw him lov three or' four days. He was staggering along in a fast walk. He asked us which direction the railroad was. We told him the railroad was east. When he left, he went south and ran into a fence. He told us Smith was killed because he had turned in too many.”

Witness said be was talking in kind of a rambling way, a wandering kind o-f way. At one time be said be killed him, at another timé be said be did not know who killed him, and then at another time be said others did.

Another witness present at this conversation testified that appellant said that deceased used bis own judgment and killed himself.

■ Appellant was found by the officers a short time after the above conversation drunk and asleep by the side of the road. No third parties witnesses the tx*agedy.

The record shows that appellant was tried and adjudged a lunatic in January, 1924; was thereafter confined in a lunatic asylum for a short time; was furloughed, and after-wards, about August, 1924, was discharged from the asylum. This killing is alleged to have happened in October, 1926.

Appellant complains, in substance, that the court failed to charge the' jury that the burden was upon the state to disprove the exculpatory statements introduced by the state quoted above. The court charged fully upon all the defensive matters contained in said exculpatory statements, and required the jury by his charge to believe beyond a reason-. able doubt that appellant killed deceased. There is eiroumstantial evidence apart from appellant’s statements to connect him with the killing and to show that he fired the fatal shot. The state was not forced to rely wholly or even in most part upon the statements of appellant to connect him with the tragedy. Under these circumstances, the court did not err in not giving to appellant the benefit of the suggested charge. A somewhat similar state of facts was before the court in Harris v. State, 103 Tex. Cr. R. 479, 281 S. W. 206, where the question was analyzed and a xvle announced applicable, we think, to the present case. See, also, Pickens v. State, 86 Tex. Cr. R. 660, 218 S. W. 755.

Further complaint is made by appellant because the court failed to charge upon circumstantial evidence. Where there has been a direct confession to the killing, it is never necessary to charge upon circumstantial evidence. Tillman v. State, 88 Tex. Cr. R. 10, 225 S. W. 165. Branch’s P. O. § 1874. A charge upon circumstantial evidence in this case would have to be based upon an assumption that appellant’s statements did not amount to a confession. In such' case, the court would charge the jury that the state’s case was one of circumstantial evidence; thus in effect stating to the jury that, in the opinion of the court, appellant’s statements did not connect him directly with the killing. This would be an unwarranted assumption on the court’s part. The statements, it. is true, are contradictory, and it may be very plausibly argued that they were but the vaporings of a drunken brain, but, after all, we think this was a question for the jury under the peculiar facts of this ease and hot for the court. It might be that, upon , a fuller development of the facts, these statements were so interwoven and their background such as not to amount to a confession, or at least not so clearly so as to justify a refusal of a charge on circumstantial evidence. In case it clearly appeared that there was a doubt about the matter, the court should charge on circumstantial evidence. Trijo v. State, 45 Tex. Cr. R. 127, 74 S. W. 546. The record is somewhat unsatisfactory, but in its present condition we do not feel warranted in holding that the court would have a right to,assume that there was no proven confession.

There was abundant evidence of insanity. The court charged the jury that the burden of proving insanity was upon the appellant. He refused to charge that the burden was upon the state to prove sanity, and that, the record having shown a judgment of insanity, such condition was presumed to feist until the contrary ■ was shown. Every man is presumed to be sane until tbe contrary is proven. It appears from tbe record that the court having jurisdiction entered its judgment that appellant was insane in January, 1924. This was res ad judicata of his .mental status at that time, and overcame the presumption of sanity theretofore existing, and its effect was to create a presumption of insanity from that time forward until the contrary appeared. It was a rebuttable presumption, however, that could be met, as it was in this case, by proof of his discharge from the asylum and by the evidence of the physician in charge of the appellant at the asylum where he was confined. However, this evidence does not have the effect of entirely annulling and abrogating the judgment theretofore rendered so as to again create a presumption of sanity, and was but evidence of a changed mental status, to be considered by the jury along with the other facts in the case in passing on appellant’s sanity at the very time of the alleged criminal act. It was shown that the judgment of lunacy had in no wise been vacated or annulled, and was in full force and effect at the time of the trial. This being true, it became the duty of the court, under all the Texas authorities, to charge the jury that the burden of proving the sanity of appellant at the time of the commission of his alleged act was upon the state, and that from and after the judgment of lunacy appellant was presumed to be insane until the contrary was shown by the evidence. Yantis v. State, 95 Tex. Cr. R. 541, 255 S. W. 180; Witty v. State, 69 Tex. Cr. R. 125, 153 S. W. 1146; Morse v. State, 68 Tex. Cr. R. 352, 152 S. W. 927.

“An adjudication of insanity substitutes for the presumption of sanity a presumption of insanity which is presumed to continue until the contrary is shown.” 32 O. J. p. 646.
“In Texas the rule is, that where insanity has been once shown to exist as by judgment of the court, the presumption is that insanity continues, and the burden of proof is upon the state, to show otherwise and the jury must be so informed.” Morse v. State, 68 Tex. Cr. R. 351, 152 S. W. 927; Wooten v. State, 51 Tex. Cr. R. 428, 102 S. W. 416, and authorities therein cited.

The further rule is that, if a recovery or a lucid interval is alleged to have occurred, the burden of proof of such allegation is upon the party making it. Morse v. State, 68 Tex. Cr. R. 352, 152 & W. 927.

What has been said above disposes of appellant’s contention that the testimony of Dr. Castner, the asylum physician, to the effect that appellant was sane when he left the asylum, was inadmissible to contradict the judgment of lunacy. The burden having been cast upon the state to prove appellant’s sanity, the testimony of this witness or any other of like character would be admissible to prove this issue. The state was not concluded by such judgment, and same only raised a presumption of insanity which could be met by evidence of this character. Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206, and authorities supra.

For the error above indicated, the judgment is reversed, and the cause remanded.

■ PER OURIAM. 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.

On Motion for Rehearing.

LATTIMORE, J.

It seems well established by the authorities of this state, as to not admit of controversy, that, when at some time prior to the commission of the offense the accused has been adjudged insane by a court of competent jurisdiction, which is not shown to have been set aside or legally vacated in any way, this shifts the burden of proof from the defendant to the state in regard to insanity. Under all the authorities when one charged with crime seeks to defend upon the ground of irresponsibility .by reason of insanity, the final test is whether or not the accused was so mentally deranged at the time of the commission of the alleged offense as not to know the right from the wrong in the particular transaction, and that it is a thing he ought not to do. While- this is true, it seems also universally recognized that, because of the presumption of sanity in oiv dinary cases, the burden of supporting a plea of insanity by one who interposes it, in such ordinary case,’ is put upon the accused) and he must show by á preponderance of evidence that he was insane at the time — but this burden shifts in case there has been an unvacat-ed adjudication of insanity against him prior to the time of the alleged commission of such offense, and in such case the court should tell the jury that the state must prove beyond a reasonable doubt that, at the time of the commission of the offense, the accused was sane, etc. The shifting of this burden of proof may be a matter of value to the accused, and he is entitled to whatever benefit may arise by reason thereof.

We are not permitted under all the authorities to allow either- the appellant or the state to amend a statement of facts on appeal. The uniform holding in this state seems to be that, after the statement of facts has been agreed to, certified, and filed, same cannot be amended.. Stephens v. State, 10 Tex. App. 120; Belcher v. State, 35 Tex. Cr. R. 168, 32 S. W. 770; Brande v. State (Tex. Cr. App.) 45 S. W. 17; Gherke v. State, 59 Tex. Cr. R. 508, 128 S. W. 380; McBride V. State, 93 Tex. Cr. R. 257, 246 S. W. 394; Edwards v. State, 98 Tex. Cr. R. 47, 262 S. W. 742; Hurd v. State, 99 Tex. Cr. R. 388, 269 S. W. 439. This prevents our considering the matters brought forward by affidavit by the appellant in connection with this motion, and intended to supply part of the judgment of conviction which was omitted hy the court reporter in preparing the statement of facts. However, we are unahle to bring -ourselves to believe that there is not in the record already sufficient evidence that a regular judgment of lunacy was entered against appellant at a time prior to the commission of this alleged offense, and that there is not such evidence here that same has been set aside, or in any way vacated, as to absolve the trial court from charging the jury that the burden of proof was upon the state to show beyond a reasonable doubt the sanity of the accused at the time of the alleged homicide.

Being unable to agree with the state’s contention, the motion for rehearing will be overruled.
      <©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CHRISTIAN, J.

text:
    WILLINGHAM v. STATE.
    (No. 11389.)
    Court of Criminal Appeals of Texas.
    March 14, 1928.
    1. Criminal law <S=> 1129(8) — Bills of exception cannot be considered, where appellant has not incorporated facts to verify truth of objections to evidence.
    Bills of exception relative to the introduction of evidence in prosecution for aggravated assault could not be considered1 on appeal, where appellant had not incorporated in bills facts to support and verify the truth of his objections.
    2. Criminal law <g=»i 120(3) — Bill of exceptions to refusal to permit witness to answer question, which failed to show what answer would have been, could not be considered.
    Bill" of exceptions, taken to court’s refusal to permit witness to answer question, could not be considered on appeal, where such bill failed to show what answer to question would have been.
    3. Criminal law ⅞=>1119(2) — Bill- of exceptions to refusal to permit accused to impeach witness by proving contradictory statement must show proper predicate was laid.
    It is necessary that á bill of exception to refusal of court to permit accused to impeach a Witness by proof of contradictory statement show that the proper predicate had been laid.
    Commissioners’ Decision.
    Appeal from Washington County Court; Sam D. W. Low, Judge.
    Henry Willingham was convicted of aggravated assault, and he appeals.
    Affirmed.'
    W. J. Embrey, of Brenham, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

Appellant was convicted in the county court of Washington county of' an aggravated assault, and his fine assessed at $50.

The testimony of the state showed that appellant and two others took George Roberson, a negro, to a secluded place, beat him over the head with a six-shooter, and whipped him with a rope. Roberson was injured to the extent of requiring medical treatment, and at the time of the trial was still suffering from an injured eye.

Appellant denied that he had anything to do with the attack made on the injured party, although he admitted that he was present at the time George Newman whipped him. George Newman, testifying in behalf of appellant, tools the entire responsibility for the assault.

By bill of exception No. 1, appellant complains of the action of the court in permitting George Roberson, the injured jjarty, to testify that George Newman had his (the injured party’s) bloody clothes washed. Several objections were lodged against the admission of this testimony, among them being that appellant was not present at the time Newman had the bloody clothes washed, and knew nothing of it, and that no conspiracy between him and Newman had been shown. No facts in support of the objections are stated in the bill. Mr. Branch, in his Annotated Penal Code of Texas, at page 184, lays down the rule as follows:

“A mere statement of a ground of objection in a bill of exceptions is not a certificate of the judge that the facts which form the basis of the. objection are true; it merely shows that such an objection was made. The defendant should incorporate so much of the evidence in the bill as would verify the truth of his objections.”

Numerous authorities are cited in support of the foregoing proposition. Because of its insufficiency in the respect mentioned, appellant’s said bill fails to manifest error.

Bill of exception No. 2 is in the same attitude as the foregoing bill.

By bill of exception No. 3, appellant' complains of the action of the court in refusing to permit him to ask the injured party if it was not a fact that he had admitted to certain parties that he had stolen and sold a steer belonging to George Newman. It appears, that appellant desired to ask the question for the purpose of laying a predicate for impeaching the witness. The bill of exception fails to show what the answer of the witness would have been. “A bill of exceptions taken to the refusal of the court to permit a witness to answer a question, either on direct or cross-examination, must show what the answer of the witness would have been in order to entitle it to consideration on appeal.” Branch’s Annotated Penal Code, § 212. Moreover, it is not shown by the bill of exception that a proper predicate was laid for the impeachment of the witness. “Before a party is entitled to impeach a witness by proof of contradictory statements, a predicate must be laid, calling the attention of the witness to the time, place and person to whom it is claimed the contradictory statement was made.” Branch’s Annotated Penal Code, § 179, and authorities cited. It is necessary that a bill of exception to the refusal of the court to permit the accused to impeach a witness by proof of contradictory statement show that the proper predicate had been laid. Branch’s Annotated Penal Code, § 212, and authorities cited. We may also add that sufficient facts are not stated in the bill to show that the matter inquired about was relevant and material to any issue in the case. We must therefore overrule appellant’s contention that error is manifested.

By bill of exception No. 4 appellant complains of the action of the court in permitting George Roberson, the injured party, to testify that, on the day after he was whipped, he went to Navasota with Mr. Newman and appellant, and went up to the doctor’s office, where Mr. Newman told the doctor that he (Roberson) got his eye hurt in an automobile accident. Appellant’s objection to such testimony was that it was prejudicial to him, and had no bearing on any issue of the case; that he was not present at the time the statement was made; and that the conversation and acts in the doctor’s office could not be binding on him. What we have said in the discussion of bill of exception No. 1 is applicable to the bill now under consideration. No facts are stated in the bill which would verify the truth of appellant’s objections.

Finding no error, the judgment is affirmed.

PER CURIAM. 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.
      ®=>For other cases see same topic' and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MARTIN,- J.

text:
    RICHARDSON v. STATE.
    (No. 11153.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    I. Judges <@=>22(3) — If case was disposed of on motion to quash, county judge was entitled to fee under statute payable by county (Code Cr. Proc. 1925, art. 1052; Acts 33d Leg. 1913, c. 8).
    Where jurisdiction of county court at law was by Acts 33d Leg. 1913, e. 8, enlarged so as to include such misdemeanor cases as regular county courts had under Constitution, if issues tried and disposed of therein in motion to quash would amount to final disposition of trial in case and discharge of accused, county judge is entitled, under Code Cr. Proc. 1925, art. 1052, to his fee of $3, payable, however, by the county.
    2. Judges <3=42 — No one should be a judge in case where he has personal or pecuniary Interest.
    No man ought to be a judge in any case where he has a personal or pecuniary interest.
    3. Judges <3=39— Generally, disqualifying “interest” of judge must be pecuniary, and not ' remote, uncertain, speculative, or incidental.
    Generally, the disqualifying “interest” of a judge must be pecuniary in nature, and not remote, uncertain, speculative, or merely incidental.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Interest (In Suit or Action).]
    4. Constitutional law <3=257 — Judges <3=40— One convicted before county court held' not denied due process, where judge’s trial fee did not depend on conviction (Code Cr. Proc. 1925, arts. 57, 1052; Pen. Code 1925, art. 1270; Const, art. 5, § 16; Acts 33d Leg. 1913, c. 8).
    Where county court at law of Harris county has, under Acts 33d Leg. 1913, c. 8, such jurisdiction in misdemeanor cases as regular county courts have under Const, art. 5, § 16, and Code Cr. Proc. 1925, art. 57, one convicted therein, in prosecution for libel under Pen. Code 1925, art. 1270, was not denied due process, where judge’s trial fee under Code Cr. Proc. 1925, art. 1052, did not depend on conviction, and, even if judge had interest in case, because of manner of fee, his interest was too remote, speculative, and trivial to disqualify him.
    5. Indictment and information <3=136— Motion to quash ordinarily presents preliminary 'question of law.
    A motion to quash ordinarily presents a preliminary question of law, it being one of the steps authorized before trial on merits, and actual guilt or innocence 'of accused is not involved.
    . Commissioners’ Decision.
    Appeal from Harris County Court at Law; Ben F. Wilson, Judge.
    C. F. Richardson was convicted of libel, and he appeáls.
    Affirmed.
    . Earle Adams, Jr., of Houston, Tex., for appellant. , .
    Heidingsfelder, Kahn & Branch, of Houston, and A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN,- J.

Offense, libel; penalty, fine of $750.

This prosecution was in the county court at law of Harris county, the jurisdiction of which court was enlarged by an act of the Thirty-Third Legislature so as to include such misdemeanor cases as the regular county courts had under the Constitution. See Acts of Thirty-Third Legislature, pp. 10, 11. Under the terms of the said law, th'e county judge of said court was allowed as compensation the same fees and costs in criminal cases as are now provided by the general laws- of the state, for judges of the county, courts having .criminal jurisdiction.

The only question properly presented for review on this appeal is the alleged disqualification of the judge of the said county court at law of Harris county by reason of his pecuniary interest, the appellant claiming that he is “deprived of due process of law under the Fourteenth Amendment to the United States Constitution.” The contention is made, as we understand it, that the judge’s fee is directly dependent upon an actual trial and disposition of cases in his court, and therefore a motion to quash an information or indictment before him, if sustained, results-necessarily in his not receiving compensation ; whereas, if same is overruled, and the ease actually tried and disposed of, he will receive a fee of $3 under article Í052, C. C. P. 1925. The last-mentioned article of the Code of Criminal Procedure reads as follows:

“Three dollars shall be paid to the county judge by the county for each criminal action tried and finally disposed of before him. Such judge shall-present to the commissioners’ court of his county, at a regular term thereof, a written "account' specifying each criminal action in which he claims such fee, which account shall be; certified to' he correct, by such judge and filed with' the county clerk. The commissioners’ court shall approve such account for such-amount'as they may'find to be correct, and order' a draft to be issued upon the county treasurer in 'favor1 of 'such judge for the amount so approved.”

"[1] It was sáid in Brackenridge v. State, 27 Tex. App. 528, 11 S. W. 630, 632 (4 E. R. A. 360):

“A dismissal of - a case is to send it put of court without a trial upon any of the issues involved in it. It is a final disposition of that particular ease, but not a trial of it.”

There might be such issues tried and , disposed of in a motion' to quash as would amount to a final disposition and trial of a. case and discharge of the accused. We can see no reason to doubt that in such a case the county judge would be entitled to his' fee, payable, however, by the county. In no case under the Texas statute is a defendant liable for any costs payable as a fee to the county judge in- case of Conviction. We-will dispose of the question, however, upon the assumption that there do exist cases in which the county judge upon sustaining -a motion to quash the information or indictment is not entitled to any fee, and that he would be so entitled to the $3 from the county allowed him under article 1052¡ above quoted if such motion were overruled and the case actually tried and finally disposed of.

We have not been favored with a brief by appellant, but we assume he relies upon the recent case of Tumey v. Ohio, 273 U. S. 533-535, 47 S. Ct. 437, 71 L. Ed. 759, 50 A. L. R. 1243. Referente is made in this opinion to the Texas statute and to the Texas case of Bennett v. State, 4 Tex. App. 72, which pointedly holds a.county judge in Texas is not disqualified as against the objection urged on this appeal. It is fairly inferable from the Turney opinion, supra, that the United States Supreme Court regards the holding in the Bennett Case as erroneous. It is to be noted, however, in this connection that the Bennett opinion construed an entirely different statute from that under attack in this case. By the statute then in force the county judge received a fee of $5 for every case of misdemeanor or habeas corpus finally disposed of by him, to be paid by the defendant if convicted. Acts 15th Leg. 1876, c. 164. The law has been materially altered since the above decision in such way as to completely meet every constitutional objection relating to personal or pecuniary interest of the county judge as will appear from the terms of article 1052, -C. C. P., quoted above, unless it can be said that there still exists a contingent interest attaching by reason of the alleged rule prohibiting the payment of a fee where the case is dismissed upon motion to quash, but which is due if same is overruled and the case tried and finally disposed of. This last-mentioned question we shall now attempt to analyze and examine especially in the light of the Turney opinion.

That no man ought to be judge in any case where he has a personal or pecuniary interest is an ancient rule, the strictest observance of which is demanded by public policy and natural justice. However, it has been said:

“The rule as to the disqualification of judges must yield to the demands of necessity, where disqualification, if permitted to prevail, destroys the only tribunal in which relief may be sought, and thus effectually bars the door of justice.” State of South Dakota ex rel. T. H. Null v. Samuel O. Polley, 34 S. D. 565, 138 N. W. 300, 42 L. R. A. (N. S.) 788.

See 23 Cyc. 581. See, also, 15 R. O. L. § 29, p. 541.

In the Turney Case occurs the following language:

“Then the circumstance that there is no judge not equally disqualified to act in such' a case has been held to affect the question. Wheeling v. Black, 25 W. Va. 266, 280; Peck v. Essex County, 20 N. J. Law, 457; Dimes v. Grand Junction Canal, 3 H. L. Cas. 759, 10 Eng. Reprint, 301; Y. B. 8 Hen. VI. 19, s. c. 2 Rolle, Abr. 33; Evans v. Gore, 253 U. S. 245, 247, 40 S. Ct. 550, 64 L. Ed. 887, 889, 11 A. L. R. 519; Stuart v. Mechanics’ & Farmers’ Bank, 19 Johns. (N. Y.) 496; Ranger v. Great Western R. Co., 5 H. L. Cas. 72, 10 Eng. Reprint, 824.”

It has been further said:

“That a system by which an inferior judge is paid for his service only when he convicts the defendant has not become so imbedded by custom in the general practice whether in common law or in this country that it can be regarded as due process of law unless the costs usually imposed are so small that they may be properly ignored as within the maxim de minimis non curat lex.” Turney v. Ohio, supra.
“Excepting cases where the interest is so remote, trifling or insignificant that it may fairly be supposed to be incapable of affecting the judgment or influence the conduct of an individual the legislature could have no power to abolish this maxim which is among the fundamentals of judicial authority.” Cooley on Constitutional Limitations (7th Ed.) p. 593.
“It is the general rule that the disqualifying interest must be pecuniary in nature and not remote, uncertain, speculative or merely incidental.” 15 R. C. L. 528.
“The interest must be a direct, real, and certain interest in the subject-matter of the litigation, not merely indirect or incidental or remote or contingent or possible.” 33 C. J. 994.

An imposing array of authorities are cited in support of these texts.

It was shown in the Turney Case, supra, that the mayor’s court of the village of North College Hill, Ohio, with a population of about 1,400, had been given jurisdiction by statute, and was exercising jurisdiction, over the entire county of Hamilton, including the city of Cincinnati, with a population of more than a half million; that no provision was made for a jury trial, and no right given for a complete review by appeal; that the mayor received fees in liquor cases amounting to over $100 per month from convictions which were paid by convicted defendants, and nothing was allowed such mayor -if he entered judgments of acquittal; that he was the executive officer of the village having supervision over secret service men and others who received part of the fines assessed by the may- or for their work in enforcing the prohibition law; that the village itself received part of the money for improvements from the fines collected in the enforcement of such law and that the mayor was a property owner in said village; and, further, that there were no other courts existing in Hamilton county of coordinate jurisdiction who could try such cases.

A marked contrast exists between the facts of the Turney Case and the instant case. Not one of the above-recited facts upon which the Turney opinion was based 'exists in the present case. The jurisdiction of the county court at law extends over Harris county. The judge of said court has neither direct nor indirect interest in, or authority over, the disposition of any money collected as fines and costs in such court. A right of trial by jury exists with a full and complete right to review by appeal every question of law, together with the sufficiency of the evidence. Nor does the judge’s fee depend upon a conviction of defendant, but he is paid by the county for the work of the trial whether, the defendant is convicted or acquitted. Moreover, there are no other courts in Texas other than county courts which have jurisdiction of the offense of which appellant was convicted. Article 5, § 16, of the Texas Constitution, which has been incorporated in the Code of Criminal Procedure as article 56, reads as follows:

“The county courts shall have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed two hundred dollars.”

Article 57, C. C. P., provides:

“The county courts shall have appellate jurisdiction' in criminal cases of which justice courts and other inferior courts have original jurisdiction.”

Article 1270 of the Penal Code 1925 prescribes the punishment for libel at a fine of not less than $100 nor more than $2,000, or by imprisonment in the county jail not exceeding two years.

A motion to quash presents ordinarily a preliminary question of law. It is one of the steps authorized before a trial on the merits. In such case the actual guilt or innocence of the accused is not in any way involved. If the county judge can be said to have any interest in a case under such circumstances, it is one too remote, speculative, and trivial to disqualify him, in our opinion. To hold that a remotely contingent interest of this kind disqualifies a judge carries with it the implication that the morals and manhood- of public servants are on a deplorably low plane, and which, we think, is neither demanded in law nor justified in fact. A purely fictitious motion to quash, having no merit in fact, could thus be made to exalt the shadow above the substance, and to make real what was in fact only a hollow pretense.

Besides, in such event, there would be no court in Texas in which certain misdemeanors including the one involved in- this appeal could be prosecuted. A holding that the trivial, speculative, and remote matter set up by appellant would disqualify all the county judges in Texas amounts in effect to a destruction, temporarily, at least, of a governmental agency set up as part of our organic law by the people for the protection of society and its members, and which has existed for over half a century. Certainly there should exist grave and compelling reasons before striking down such a safeguard of society and which would leave it entirely unprotected from a large class of criminals. The authorities cited above, we think, demonstrate that we would not be legally justified in so holding. The views herein expressed are in harmony and not in opposition to the Tumey opinion, as we construe it.

It is to be further noted that this record fails to disclose that any amount whatever has ever been received as fees in any such character of cases by the judge of the county court at law of Harris county, and we are left to speculate as to whether such amounts, if any, are of a substantial character.

As a matter of fact, this court knows that the cases are very rare where a fee of the .kind in question is ever really involved. So rare, in fact, that their aggregate amount would be too small to. lead' us to believe that any judge would ever likely prostitute his of-' fice by permitting such a base, unworthy, and trivial thing to influence him.

The judgment is affirmed.

PER OURIAM. 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.
      <S=For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HAWKINS, J. LATTIMORE, J.

text:
    HERNANDEZ v. STATE.
    (No. 10711.)
    Court of Criminal Appeals of Texas.
    Oct. 12, 1927.
    Rehearing Denied March 28, 1928.
    1. Searches and seizures <S=w7(8) — Search warrant describing premises as> “rent house on League estate, inside field 200 yards north of branch on League estate,” held to sufficiently describe premises.
    Search warrant describing premises as “rent house on the League estate, inside field 200 yards north of branch on League estate, 5 or 6 miles S. E. Benjamin, Texas,” and reciting' that “Hernandez, Mexican,” was in possession, held to sufficiently describe premises to be searched, and did not violate Const.'art. 1, § 9, or Code Cr. Proc. 1925, arts. 4, 4a, 727a.
    2. Criminal law <⅜=»1092(14) — - Bill of exceptions, wherein objection is not certified to be true as fact, is defective.
    Bill of exceptions, wherein objection sought to be urged appears in bill as a ground of objection only and is nowhere certified to be true as a fact, is defective.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    Caesado Hernandez was convicted of manufacturing intoxicating liquor, and he appeals.
    Affirmed.
    James A. Stephens, of Benjamin, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant is under conviction for manufacturing intoxicating liquor; the punishment being two years in the penitentiary.

Officers armed with a search warrant found in appellant’s house the things described in the return on the warrant as follows:

“Eive quart fruit jars and one-half gallon jar full of intoxicating liquor, one 10-gallon can used as still to cook, and one copper worm, candy bucket for cooler; about 80 gallons mash we destroyed, keeping sample of mash.”

Three bills of exception are found in the record. They all relate to objections interposed to the search warrant and to evidence given by three officers who were present when the search was made. The warrant described the premises to be searched as a “rent house on the League estate, inside field 200 yar'ds north of branch on League estate, 5 or 6 miles S. E. Benjamin, Texas,” and reciting that “Hernandez, Mexican,” was in possession of the described premises and was keeping it for the purpose of manufacturing intoxicating liquor. The warrant was attacked, first, because of a claimed insufficient description of the' premises to be searched.^ We are of opinion the description of the premises was sufficiently definite. The mandates of the constitution (section 9, art. 1) and Code of Criminal Proc. (articles 4, 4a, and 727a) are not thought to have been infringed upon. Wilson v. State, 106 Tex. Cr. R. 75, 290 S. W. 1103; Story v. State, 107 Tex. Cr. R. 266, 296 S. W. 296. The second objection urged to the warrant as stated in the bill of exception was:

“Because there were three 'or four different ‘Hernandez’ residing on said League estate, and therefore that the search warrant did not designate the defendant.”

The objection thus sought to be urged appears in the bill as a ground of objection only, and is nowhere certified to be true as a fact. In this particular the bill is defective. Savage v. State, 91 Tex. Cr. R. 438, 239 S. W. 945; Smith v. State, 92 Tex. Cr. R. 446, 244 S. W. 522; Plunk v. State, 98 Tex. Cr. R. 140, 265 S. W. 158. Many other cases are collated. under section 209, Branch’s Ann. Tex. P. C.

From what has been said, it follows that the further objection to receiving the evidence of the officers as to what was found as a result of the search is untenable.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

As we understand appellant’s motion for rehearing, he renews substantially the same questions passed upon in the original opinion. The record contains three bills of exception, each in substance identical, and complaining of similar testimony given by three witnesses; Mr. Melton, the sheriff, Mr. Collins, the constable, and Mr. Gay, a deputy sheriff, being the witnesses referred to. Each bill of exceptions sets out the search warrant and the return of the officer thereon, and appellant’s objAction to the testimony of the witness named. The objection made appears to have been the same in each bill; the same qualification to each bill by the trial court also appears. From the evidence there appears to be at a certain point on the League estate, some 6 miles southeast of Benjamin, Tex., a group of Mexican houses called “Little Mexico” or “Juarez.” The description of the premises to be searched is set out in the original opinion. Appellant seems to insist that to recite that one “Hernandez, a Mexican,” was in possession of the described premises was. insufficient, and he asks us to reconcile the holding, in regard to the name of a defendant accused of crime, that “one Victor, a Mexican,” was insufficient, with our holding in this ease. The case referred to by appellant is Victor v. State, 15 Tex. App. 90. Thé holding in that case was reviewed in Wilcox v. State, 35 Tex. Cr. R. 631, 34 S. W. 958, where the contrary doctrine was laid down and all opposing opinions were overruled. See, also, Cresencio v. State, 73 Tex. Cr. R. 436, 165 S. W. 936. We are still of the opinion that, the description of the property was sufficient to enable the officers to locate and distinguish it from other houses in the little settlement. As we understand this record, the affidavits for search warrant were not attacked.

Being unable to agree with appellant’s contention, the motion for rehearing will be overruled.
      ®=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    WALTER CONNALLY & CO. v. STEGER.
    (No. 3516.)
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 24, 1928.
    Rehearing Denied March 8, 1928.
    1. Chattel mortgages 173(1) — Mortgagee out of possession at time of levy on mortgaged property may not assert claim unless entitled to immediate possession (trial of right of property statute).
    Mortgagee out of possession when mortgaged property is levied upon is not entitled to obtain possession thereof tinder trial of right of property statute (Rev. St. 1925, arts. 7402-7425), when property'is levied upon, unless at the time of the levy the .mortgagee has a right to immediate possession of the property.
    2. Chattel mortgages <@=>173(1)— Chattel mortgagee, authorized to recover property after default or whenever demanded, held not entitled to property In mortgagor’s possession, levied on before debt matured (trial of right of property statute; Rev. St. 1925, arts. 7420, 7423).
    Where mortgage covering lumber provided that mortgagor should deliver property to mortgagee oh or before due date of indebtedness “or whenever demanded,” and authorized mortgagee to seize and sell property in case of failure to pay indebtedness when due, mortgagee out of possession at time of levy on property under execution, who had not demanded property, was not entitled to it under trial of right of property statute (Rev. St. 1925, arts. 7402-7425), and was liable for its value under articles 7420 and 7423, where levy took place before due date ot mortgage; mortgagee not being entitled to immediate possession.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Proceeding by Walter Connally & Co., as ' judgment creditor, by writ of execution, against A. R. Scroggins, judgment debtor, in which J. C. Steger asserted a right to possession of certain lumber upon which levy was made under the Trial of Right of Property Statute (Rev. St. 1925, arts. 7402-7425). From a judgment for the third party claimant, the judgment creditor appeals.
    Reversed and rendered.
    Appellants, Walter Connally & Co., having procured the issuance of an execution on a judgment (for $175, interest, and court costs) in their favor, against one A. R. Scroggins, on July 3, 1926, had the sheriff of Cass county to levy the writ on lumber owned by and in the possession of said Scroggins. At the time it was levied oh, the lumber was on a yard used by Scroggins in connection with a sawmill he operated. Claiming he had a right to possession of the lumber, appellee J. C. Steger presented his affidavit and bond to the sheriff as provided for in the “trial of right of' property statute,” (title 125, R. S. 1925), and in that way obtained possession of the property.' Appellee’s claim of such a right was based on the facts (as he alleged) that Scroggins was indebted to him, that payment of the indebtedness was secured by a mortgage on the lumber, and that stipulations in the mortgage gave him a right to such possession. The mortgage referred to (executed by Scroggins April 24, 1926, and filed for registration April 27, 1926) purported to convey to appellee certain live stock and corn and cotton crops, as well as the lumber in controversy, for the purpose of securing á note for. $2,000 made by Scroggins, payable to appellee October 1, 1926, and other indebtedness Scroggins might owe appellee. By the terms of the mortgage Scroggins was—
    “to gather and house the cotton and corn hereby mortgaged, and in good time, order and condition, and have the same, together with all the property herein mortgaged and described, delivered to the said J. C. Steger in the county of Cass, state of Texas, on or before the 1st day of October, A. D. 1926, or whenever demanded.”
    And the instrument contained a provision as follows:
    “If all of said indebtedness shall be faithfully paid according to its legal tenor and effect, then this obligation shall become null and void, otherwise to remain in full force' and effect, and the said J. C. Steger, agent or legal representative, are hereby authorized (by) me to seize said property with or without my consent or knowledge, and to sell the same at public or private sale,” etc.
    Appellants insisted that the stipulations appellee relied on (set out above) did not entitle him to possession of the property at the time he presented the claim affidavit and bond to the sheriff; and they insisted further that the mortgage was void by force of article 4000, R. S. 1925, providing that—
    “Every mortgage, deed of trust or other form of lien attempted, to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of business of such merchandise, and contemplating a continuance of the possession of said goods and control of said business, by sale of said goods by said owner, shall be deemed fraudulent and void.”
    After hearing the evidence, the trial court thought it conclusively appeared that the mortgage was not in contravention of the statute referred to, and that appellee by the terms of the instrument was entitled to possession of the lumber. Therefore he instructed the jury to return a verdict in appellee’s favor, and, the jury having done so, rendered judgment that appellants take nothing by their suit.
    J. A. R. Moseley, Jr., of Texarkana, for appellant.
    Bartlett, & Newland, of Linden, for ap-pellee.
   WILLSON, C. J.

(after stating the facts as above.)

A mortgagee out of possession when the mortgaged property is levied upon is not entitled to the remedy provided by the' trial of right of property statute referred to in the statement above, unless' at the time of the levy he has a right to immediate possession of the property. Garrity v. Thompson, 64 Tex. 597; Willis v. Satterfield, 85 Tex. 301, 20 S. W. 155; State Exch. Bank v. Smith (Tex. Civ. App.) 166 S. W. 666. It conclusively appeared appellee did not have possession of the lumber at the time it was iévied upon, and appellants insist it did not appear he had a right to such possession at that time. It will be seen, on referring to the statement above, that Scroggins agreed to deliver the mortgaged property to appellee “on or before the 1st day of October, A. D. 1926, or whenever demanded,” and authorized appellee to seize and sell the property if he failed to pay the indebtedness on or .before the time it became due, to wit, said October 1, 1926: It will be noted a right to seize and sell the property before October 1, 1926, was not conferred upon appellee. Therefore the question is, Did appellee at the time of the levy, tó wit, July 3, 1926, have a right to immediate possession of the mortgaged property by force of Scroggins’ undertaking to deliver same to him “whenever demanded”? We think not. Certainly he was not entitled to' such possession until he demanded it, and it was not pretended in the testimony that he made such a demand before appellants’ writ was levied on the lumber. 13 G. J. 660; Rodger v. Toilettes Go., 37 Misc. Rep. 779, 76 N. Y. S. 940; Newton Co. v. Ellis (Tex. Civ. App.) 285 S. W. 691.

The conclusion reached requires a reversal of the judgment, without reference to whether the mortgage, so far as it was on the lumber, was in contravention of article 4000, R. S. 1925, referred - to in the statement above, or not; and the contention as to that phase of the case will fiot be determined.

Reversing the judgment of the trial court, judgment will he rendered here that appellants have and recover of appellee and the sureties on his claim bond $200, the value of the lumber levied upon, and interest on that 'sum from August 10, 1926, the date of said bond. Articles 7420, 7423, R. S. 1925.
      ®s»Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes