author: PREN DERG AST, P. J. DAVIDSON, J.

text:
    KELLEY v. STATE.
    (No. 4251.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    Dissenting Opinion, Nov. 22, 1916.)
    1. Ciíiminal Law <&wkey;980(2) — Plea of Guilt* —Evidence.
    Under Code Cr. Proe. 1911, art. 566, providing that when an accused pleads guilty to an offense, if the punishment is not absolutely fixed by law and beyond the discretion of the jury, a jury shall be impaneled to assess the punishment, and evidence submitted to enable them to decide thereon, and a charge requested by defendant and given by the court that, notwithstanding the plea of guilty, the jury must be satisfied of his guilt beyond a reasonable doubt, the state, could introduce all the testimony it had to establish his guilt.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2494, 2495; Dec. Dig. <&wkey; 980(2).]
    2. Criminal Law &wkey;351(3,4) — Admissibility of Evidence — Plight—Resistance to Arrest.
    In a prosecution for crime, the state may prove the flight or attempted flight and resistance to arrest by defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 779, 780, 930, 931; Dec. Dig. &wkey;351(3, 4).]
    3. Criminal Law <&wkey;1093 — Appeal — Bills of Exception — Admissibility of Evidence —Evidence in Part Competent.
    Bills of exceptions to the admission of the entire evidence as to resistance to arrest are not sufficient to show error in admitting evidence of the details and circumstances of the resistance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. &wkey;>1093.]
    4. Criminal Law <&wkey;814(3) — Requested Instructions — Resistance to Arrest — Applicability to Evidence.
    Where the evidence shows that the officers unquestionably had a right to arrest defendant without an assault on a charge of robbery, and that they attempted to do so in a proper manner, requested charges, that resistance to unlawful arrest as therein defined should not be considered a circumstance in determining his guilt of robbery, were properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 1985; Dec. Dig. <&wkey;> 814(3).]
    5. Criminal Law <&wkey;351 (4) — Resistance to Arrest — Legality of Arrest — Evidence.
    In a prosecution for robbery, evidence held to show that the officers whom defendant resisted had a right to arrest him without warrant and attempted to do so in a proper manner.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 780; Dec. Dig. &wkey;>351(4).]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Frank Kelley was convicted of robbery with firearms after entering a plea of guilty, and he appeals.
    Affirmed.
    W. F. Bane and El. J. Gibson, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PREN DERG AST, P. J.

This is an appeal from a conviction of robbery with firearms, and appellant’s punishment assessed at 99 years in the penitentiary.

This is the second appeal, the first being reported in 185 S. W. 570. The opinion there sufficiently discloses the character of case. No question arises on this appeal on which the judgment was then reversed.

Appellant on this, as on the former trial, pleaded guilty, after being properly and fully admonished by the court of the consequences, and strictly in conformity with the statute. Article 565, C. C. P. He did not testify.

In charging the jury, the court gave that which was specially requested by appellant, which, after stating the character of the charge against him by the indictment and the fact that he had pleaded guilty after being duly admonished, etc., as required by the statute, in a separate paragraph told them;

“Notwithstanding said plea of guilty has been entered by defendant, yet, before you can convict the defendant, you must believe from the evidence beyond a reasonable doubt that the defendant is guilty of the offense charged. * * * ”

Then follows a definition of the offense as prescribed by statute, and requires the jury to believe from the evidence beyond a reasonable doubt that he was guilty before they could convict him. Under this charge, notwithstanding he pleaded guilty, the state had to prove his guilt beyond a reasonable doubt, and it was proper that the state should then introduce all the testimony it had to without doubt show his guilt. It could not be held that the state was thereupon merely to introduce only a part of its evidence to show his guilt. It had the right to introduce all of it. The statute (article 566, O. O. P.) expressly requires that, when an accused pleads guilty, if the punishment is not absolutely fixed by law and beyond the discretion of the jury to graduate the punishment in any manner, a jury shall be impaneled to assess the punishment “and evidence submitted to enable them to decide thereupon.”

It has uniformly and in a great many cases been held by this court, and it is the law, that the state may prove the flight, or attempted flight, of the defendant and the attendant circumstances as a fact to help show the guilt of the defendant. Section 135, p. 78, 1 Branch’s An. P. C., ‘and the cases there collated.

It is equally well settled that where a party is arrested, or sought to be arrested, for an offense, and he resists arrest, it is a legitimate fact to be proved. Mitchell v. State, 52 Tex. Cr. R. 39, 106 S. W. 124; Moreno v. State, 71 Tex. Cr. R. 461, 160 S. W. 361; 2 Jones on Ev. § 287.

There are quite a number of bills of exceptions herein. It is unnecessary to discuss eaeb separately. A nmuber of them present the same question, or such a kindred question, as, that the questions can be determined without separately discussing each bill.

The state introduced several police officers, who participated in arresting appellant a few hours only after the commission of the •offense, and each testified to such a state of facts as to unquestionably show that appellant both attempted to flee, and also that he resisted arrest when they undertook to arrest and did arrest him for the offense charged. Each of appellant’s first several bills quotes in full both on direct and cross examination the testimony of each of these witnesses on the points stated, and states that he objected to the whole of the testimony of each on the ground that it was immaterial, irrelevant, proved another and different offense committed by appellant at another and different time and place, was no part of the res ges-tse of the offense herein, but that if it was admissible for any purpose it was not competent or proper for the state to prove the details and minute circumstances surrounding and accompanying the same. The court in qualifying each of these bills stated that the testimony of said respective officers was admitted for the purpose of showing flight and attempted flight and resistance of an arrest and the circumstances surrounding his arrest on the charge herein. On the previous appeal, we correctly and specially held that this testimony was admissible. The bills in no way point out, or attempt to point out, what the details and minute circumstances were which he claimed were inadmissible. Unquestionably, the testimony of each of these officers, not only tended to show, but did actually show, that appellant, as stated, attempted flight and resisted arrest when these officers sought to arrest him for the heinous crime so recently committed by him, and for that reason their testimony was clearly admissible. If there were any details and minute circumstances in their testimony which were inadmissible, it was the duty of the appellant at the time to specifically object to that part and point it out in his bill, which he did not do. The law is well settled that where evidence is introduced over objection and some of it is admissible and some of it is not, but all is objected to, no error is shown. It is necessary that the objectionable part must be specially pointed out and objected to instead of objecting to the whole. Section 211, p. 135, 1 Branch’s An. P. C.; Martin v. State, 189 S. W. 264, recently decided, wherein we collated and cited the authorities on this point. So that none of appellant’s bills on this subject show any error.

Appellant has other bills to the refusal of the judge to give special charges requested by him. These we consider together. In one, he wanted the judge to instruct the jury that, unless they believed beyond a reasonable doubt that the officers arresting him made known to him the authority under which they were acting, their identity, and the reason for his arrest, it was not unlawful for him to resist such arrest; and if they had a reasonable doubt concerning the officers, or either of them, making known to him their authority and the reason for his arrest, then the resistance on his part was legal.

In another, he wanted the court to charge the jury that the law requires that in making arrests the officer shall always make known to the accused person, if he has time or opportunity, under what authority the arrest is made and the reason for his arrest.

The judge, in qualifying these bills, stated:

“The testimony shows that, at the time the officers knocked on the door of Kelley’s room at the Williams Hotel, Kelley opened the door, looked out, and almost immediately began to shoot; that Police Officer Eimicke was shot before he entered said room; and that Kelley continuously from the time he opened said door shot at Police Officer Erank Smith until said officer left said room.
“The testimony further shows that, after the witness Smith had left Kelley’s room, Kelley slammed the door, went to the window, and looked out on1 the sidewalk; that Police Officer Stepp was standing just below said window on the sidewalk; that said Stepp was in full uniform; that there was plenty of light where he was standing; and that Kelley discharged his pistol in the direction of Stepp, the bullet striking the sidewalk about three feet from where Stepp was standing.
“The testimony of O. M. Ec-raker discloses the fact that, in addition to Police Officer Stepp, Police Officer Yeager was also on the sidewalk and visible from the window, and that said Yeager was in full police uniform.
“The testimony further shows that the witness 0. M. Foraker, subsequent to the firing of the shot of the defendant Kelley that struck the sidewalk near Police Officer Stepp, that the defendant Kelley put his head out of the window, and that Officer Foraker shot at him, the bullet going through the defendant Kelley’s hat.
“On cross-examination the witness Foraker testified that he was in full uniform.
“From the foregoing testimony it is seen that the defendant Kelley, at the time he opened the door to his said room, had full opportunity to see that the men were officers; that they did not have time after the opening of the door to notify Kelley that they were officers, but, on the other hand, Kelley immediately began to shoot upon the opening of said door; that Kelley at the time he was at the window before firing the shot at Stepp had full and ample, opportunity to see both Officers Stepp and Yeager on the street below.”

In another, he wanted the court to charge that if the jury believed said officers, or either, forced an entrance into the room of defendant without making themselves known to him as officers and without stating their purpose, then said officers stood in the same relation to him as any other citizen, and he had the right to defend himself; and if the acts or words, or both, of said officers, created in his mind a reasonable apprehension that he was in danger of losing his life or suffering serious bodily harm at the hands of said officers, or either of them, then he had a right to defend himself from such real or apparent danger, and he was not bound to retreat in order to avoid the necessity of killing them; and if they believed he committed the assault upon said Smith and Eimicke as a means of defense under the circumstances, or if they had a reasonable doubt of it, then that he acted within his legal rights, and his conduct could not be considered as a circumstance against him.

In another, he wanted the court to charge the jury that if they believed that he was at his place of residence, and neither of the arresting officers made known to him their authority as officers or their purpose, then the officers had no authority or right to force an entrance into his room, and that, if they did, their acts were illegal, and he had a right to prevent such intrusion, even to the extent of killing them to prevent their intrusion; or if they had a reasonable doubt of it, and he used no more force than was necessary, he was guilty of no offense, and his conduct at the time must not be considered as a circumstance against him.

The first of these bills just stated the court qualified by stating that there was no evidence in the record raising this issue, and therefore no such charge was necessary. The other, he qualified as follows:

“The testimony does not disclose that the officers attempted to force an entrance into the room of the defendant until after the defendant voluntarily opened the door to said room and had looked out and had seen said officers and had begun to shoot at them; that entrance to said room was not made by said officers until after defendant had begun to shoot, at which time said Frank Smith did force an entrance into said room, was shot by the defendant; and that officer Eimicke in attempting to enter said room was shot by the defendant. There being no testimony in the record that said officers attempted to force an entrance to said room before the defendant began to shoot, the issue contained in the special charge complained of in this bill of exceptions was not raised by the testimony, and a charge thereon was not required.”

In another, he wanted the court to charge that, even though he was guilty of a felony, yet if he was not at the time about to escape, and there was time for the officers to procure a warrant for his arrest, then his arrest without a warrant was illegal, and he had a right to resist, even to the extent of killing the said officers, or any of them, if it was necessary to prevent such arrest, and, if they believed this, then not to consider his acts and conduct as a circumstance against him.

In another, he requested a charge along the same line; and, in still another, he requested another charge along the same line.

The court in qualifying each of these bills said:

“The testimony disclosed by the statement of facts in this case shows that one Dave Weid-ner, who was with Kelley at the time of the robbery of the said J. M. Oaywood, was arrested by Officer Plant at about 12:30 o’clock on the night of the robbery; that said Weidner was thereafter taken to the oil station in Oak Cliff, where he was identified by said Oaywood and others as being one of the men who had robbed said Oay-wood; that said Weidner was from said oil station taken back to the city hall of the city of Dallas; that the said Weidner there informed the officers as to who it was who assisted him in the robbery of said Oaywood about 20 minutes before said officers went to the Williams hotel (which was somewhere in the neighborhood of 3 o’clock in the morning); that said Weidner had told said officers that he and Frank Kelley had the room at said Williams hotel, said room being No. 7. The testimony of the witness Frank Smith shows that, at the time of the arrest of the defendant Kelley, the defendant Kelley was fully dressed.
“From the foregoing testimony it seems that the officers received the information disclosing the identity of Kelley as being one of the men who robbed said Oaywood at a very early hour in the morning; that said Kelley was fully dressed at the time arrested; that he occupied a room in a hotel, and that said officers had been informed by J. M. Oaywood, a reputable person, of the commission of said offense; that one of the principals in the robbery, Dave Weidner, had advised the officers as to the identity of the other man; and that, because of the lateness of the hour and all the facts and circumstances surrounding the transaction, the officers did not have an opportunity to make a complaint against said Kelley and obtain a warrant for his arrest. The issue complained of in said bill of exceptions and as covered by the special charge requested is not raised by the testimony in this case, and no charge was required thereon.”

In his only other bill, he wanted the court to charge that, although the jury might find and believe from the evidence that the said officers had information from a credible person that he had committed the offense charged, and even though they believed they had a lawful right to arrest him, yet if they believed such authority was exercised in such a wanton and menacing manner as to threaten him with the loss of life or serious bodily harm, then he had the right to defend himself as it appeared to him, and he would not be bound to retreat to avoid the necessity of killing them, even though they had the legal authority to arrest him; and if he exercised only such force as was necessary to defend himself, or if they had a reasonable doubt thereof, then not to consider his acts and conduct as a circumstance against him. The court, in approving that bill, did so with this qualification:

“There is no testimony in the record raising the issue embodied on the requested charge of the defendant, the refusal of which is complained of in this bill. The record as shown by the statement of facts discloses that the defendant Kelley, immediately upon opening the door to his said room, began to shoot, and continued to shoot until the witness Smith had retired from said room to the hall; that Kelley thereupon slammed the door to his said room, went to a window of said room, and discharged his pistol out of said window in the direction of Police Officer Stepp, who together with Police Officer Yeager were in full uniform standing beneath said window; that the bullet struck the sidewalk within three feet of the said Stepp; that Officer Fora-ker, subsequent to the firing of this shot by said Kelley, fired a shot at Kelley from the window of the room adjoining the room which Kelley occupied; that at the time of firing said shot Kelley’s head was protruding from the window of said room, the bullet from Foraker’s gun going through Kelley’s hat; that, immediately upon Kelley’s hat being pierced by said bullet, said Kelley called out and said to the officers, T give up,’ and permitted said officers to take him into custody.”

Some of these charges announced correct legal propositions in a proper case where the evidence would make them applicable, but they were inapplicable in this case. As qualified by the court, neither of his bills presents any reversible error. We think it unnecessary to discuss any of these matters. Cortez v. State, 43 Tex. Cr. R. 386, 66 S. W. 453; Smith v. State, 48 Tex. Cr. R. 239, 89 S. W. 817; Miller v. State, 32 Tex. Cr. R. 319, 20 S. W. 1103; Miller v. State, 31 Tex. Cr. R. 639, 21 S. W. 925, 37 Am. St. Rep. 836; Stewart v. State, 174 S. W. 1077. As stated, appellant himself did not testify at all. ITe had no defense whatever. He plead guilty. Under the circumstances of this case, there can be no doubt that appellant committed the crime alleged against him. He attempted to secrete himself under an assumed name in another part of the city of Dallas from where he had committed the crime. There can be no doubt .but that he anticipated and momentarily expected the officers would attempt to arrest him for the crime, whether with or without a warrant; that he deliberately prepared himself to flee from the room where he was whenever he discovered that they were after him, and prepared himself to shoot and kill them when they did attempt to arrest, him, and did actually shoot two of them and shot at another as long as he had ammunition and could shoot. The officers unquestionably had the right to arrest him without a warrant, and attempted to do so in a proper manner under the circumstances of this ease. Their action merits commendation and not condemnation.

The judgment is affirmed.

DAVIDSON, J. I cannot agree this case should be affirmed under the record as shown by the transcript.

DAVIDSON, J.

(dissenting). I desire to say I cannot agree with my Brethren that all the facts in detail in regard to the assault case in cause No. 4162 were admissible in this case. That case has no connection with the robbery case, so far as defendant is concerned. The robbery case had ended; he pleaded guilty to the robbery. When the robbery occurred, he and his companion went away over to Dallas three or four miles distant; appellant going to bed. That transaction was completed. The robbery was a finality. If it was thought necessary or legal to introduce the fact that he assaulted the officers, certainly the details of it ought not to have been admitted. We have an old familiar rule where an extraneous crime or offense, or one thought to be a crime or offense, is used by the state, that the details and history of the case cannot be developed in the case on trial. Two cases were being tried at the same time against appellant, the robbery case at Oak Cliff, and the assault case in Dallas. It was not necessary to make the robbery case understood in any manner to introduce the details of the transaction in Dallas, where the officers went to appellant’s room and had the shooting scrape with him. What effect it may have had on the minds of the jury cannot be told except in the light of the verdict in the robbery case, which is 99 years. With the details of the assault case out of this record, the verdict may have been much less; but we do know that he was awardéd 99 years, and this testimony may have produced the heavy verdict. In the judgment of the writer, it was clearly inadmissible. Appellant pleaded guilty to the robbery. The details of the robbery itself were admissible, of course, because the statute provides that in cases of pleas of guilty, among other things, evidence shall be introduced before the jury. Evidently the state thought defendant might escape with a smaller punishment for the robbery, or might not get as heavy punishment as desired. A sufficient amount of the details of the robbery should have gone to the jury so that they might arrive at a fair conclusion as to the amount of punishment to be meted out on account of the robbery. A case should not be burdened with the details of an assault and shooting scrape case occurring at different times and places. I do not believe appellant has had that fair trial accorded him by the law. Therefore, I cannot agree to this affirmance. I do not care to pursue the matter further. I respectfully enter my dissent
      <te»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J. DAVIDSON, J.,

license: Public Domain

text:
    VANCE v. STATE.
    (No. 4165.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Intoxicating Liquors <&wkey;212 — Indictment — Allegation of Separate Sales.
    An indictment for pursuing the occupation of selling intoxicating liquors in prohibition territory, which, after alleging that defendant unlawfully engaged in and pursued the business, alleged that he “did then and there sell to J. H., J. H., R. B., and J. B. intoxicating liquors,” did not allege a sale jointly to the persons named, but that the sales were made to each of them.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 252; Dec. Dig. &wkey;>212.]
    2. Intoxicating Liquoes <&wkey;223(6) — Prosecution — Evidence.
    In a prosecution for pursuing the occupation of selling intoxicants in prohibition territory, persons not named in the indictment were properly allowed to testify that they purchased whisky from defendant.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 274: Dec. Dig. 4&wkey;223 (6).]
    3. Intoxicating Liquoes <&wkey;223(6) — Pursuing Occupation of Selling in Prohibition Territory — Proof of Sales to Persons Named in Indictment.
    In addition to proving that defendant pursued the occupation, the state had to prove that he made at least two sales to persons named in the indictment.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 274; Dec. Dig. <&wkey;> 223(6).]

      4. Intoxicating Liquors <&wkey;39 — Prosecution — Evidence.
    In prosecution for pursuing occupation of selling intoxicants in dry territory, tlie state was properly permitted to introduce into evidence orders of the commissioners’ court ordering the election and declaring the result, and the certificate of the county judge showing that publication had been made, though it was not necessary to introduce all of such orders.
    • [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 33; Dec. Dig. <&^>39.]
    5. Intoxicating Liquors <&wkey;39 — Prosecution — Evidence. ■
    ■ In such prosecution only such orders of ’’the commissioners’ court as evidence that prohibition has been legally adopted need be introduced in evidence.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 33; Dec. Dig. <&wkey;39.]
    6. Intoxicating Liquors <&wkey;223(2) — Prosecution — Variance oe Proof from Indict-
    MENT.
    In such prosecution introduction in evidence of order of commissioners’ court ordering election and declaring result, and certificate of county judge showing publication had been made, did not present any variance as to the necessary allegations in the indictment.
    [Ed. Noto. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 268-270; Dec. Dig. <&wkey;> 223(2).]
    Davidson, J., dissenting.
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Leon Vance was convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory, and he appeals.
    Judgment affirmed.
    Ward & Evetts, of Temple, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of pursuing the occupation of selling intoxicating liquors in prohibition territory and his punishment assessed at two years’ confinement in the state penitentiary.

The same question is presented in a motion to quash the indictment as was presented in the case of Cleveland v. State, 190 S. W. 177, recently decided. Eor the reasons stated in that opinion, the court did not err in overruling the motion.

The indictment in this case, after alleging that appellant unlawfully engaged in and pursued the occupation of selling intoxi- , eating liquors, alleges that he “did then and there sell to Joe Hall, Jeff Howard, Roe Bilton, and Jim Brown intoxicating liquors.” Appellant, in a motion to quash the indictment and by objecting to Jeff Howard, Roe Bilton, and Joe Hall being permitted to testify that they and each of them purchased from appellant intoxicating liquors on various occasions, contends that the indictment alleges a sale jointly to the persons named, and not that sales were made to each of them. We do not think the language used is subject to the construction sought to be placed thereon by appellant, but that it alleges a sale made to each of the persons named.

Appellant also objected to persons not named in the indictment being permitted to testify that they purchased whisky from appellant. As appellant was prosecuted for pursuing the occupation of selling intoxicating liquors, any testimony which went legitimately to prove that issue was properly admitted. Of course, in addition to proving that he pursued the occupation, the state had to prove that he made at least two sales to persons named in the indictment, and the court so instructed the jury.

There was no error in permitting the state to introduce in evidence the orders of the commissioners’ court ordering the election and declaring the result, and the certificate of the county judge showing that publication had' been made. It was not necessary to introduce all of these orders, but' there was no impropriety in doing so. Only such orders as evidenced that prohibition had been legally adopted were required to be introduced, but that the state went further and showed that each step was legally and properly taken in the premises would present no error. Nor did they present any variance as to the necessary allegations in the indictment.

The charge-instructed the jury that they must find that appellant unlawfully engaged in and pursued the occupation of selling intoxicating liquors, and that he made at least “two different and separate sales of intoxicating liquors” to persons named in the indictment before they would be authorized to convict. It is not subject to the criticism contained in appellant’s bill of exceptions.

The judgment is affirmed.

DAVIDSON, J.,

dissents. See Clark Cleveland v. State, 190 S. W. 177, decided at this term of court.
      ®=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. DAVIDSON, J.

text:
    CLEVELAND v. STATE.
    (No. 4164.)
    (Court of Criminal Appeals of Texas.
    Oct 11, 1916.
    Rehearing Denied Nov. 1, 1916.
    Dissenting Opinion Nov. 22, 1916.)
    1. Intoxicating Liquors <&wkey;205(2) — Illegal Sale — Indictment—Sueeicien cy.
    Since Rev. St. 1911, art. 5728, providing that in a contest of a prohibition election the district court shall have jurisdiction to try all matters connected with the election, including the petition, proceedings, orders, final, count, declaration, and publication of result putting local option into effect, provided, if no contest is filed, it shall be conclusively presumed that the election as held and the result ■ declared are in all respects valid and binding upon all courts, an indictment for illegal sale of intoxicating liquors in prohibition territory, after alleging that the election was held and resulted in favo-r of prohibition, need not allege publication of the notice of the result, so that an indictment in which it was alleged that the commissioners ordered publication instead of that the county judge ordered publication was good; the allegation as to publication being surplusage.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. <@==>205 (2).]
    2. Criminal Law <@=>719(1) — Conduct or Trial — Argument of Counsel.
    Both counsel for the state and the accused should in their argument discuss only the evidence adduced on the trial and legitimate deductions to be drawn therefrom.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 1069; Dec. Dig. <@=>719(1).]
    Davidson, J., dissenting.
    Appeal from District Court, Bell County; F. M. Spann, Judge.
    Clark Cleveland was convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Ward & Evetts, of Temple, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State..
   HARPER, J.

Appellant was convicted of selling intoxicating liqors in prohibition territory, and his punishment assessed at one year’s confinement in the state penitentiary.

The most serious question in the case is presented in a motion to quash the indictment, on the ground that the indictment alleged “and thereupon the commissioners’ court of said Bell county, Tex., did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors”; the contention being that the indictment should have alleged that the publication was made by order of the county judge, and not the commissioners’ court did “pass and publish an order,” and that an indictment that fails to allege that the order was published by order of the county judge or as required by law is insufficient. In the Hode Carnes Case, 50 Tex. Cr. R. 282, 99 S. W. 98, the question of whether an indictment must contain the allegation that the order had been published by the order of the county judge and an allegation that it had been published by order of the commissioners’ court is discussed at length in the opinion of the court, and in the dissenting opinion of Judge Brooks. Theretofore, as shown in the opinion of Judge Brooks, similar forms of indictment had been approved by the court, but the Carnes Case has been followed in a number of cases cited in Branch’s Ann. Penal Code, p. 690, § 598; the last case decided so holding being Smitham v. State, 53 Tex. Cr. R. 173, 108 S. W. 1183. No case has been before this court in which this question was involved since the rendition of the Smitham Case, supra, but we would consider the cases conclusive on that question and follow them had not the Legislature, after the rendition of the Carnes Case, supra, amended article 5728 (old article 3397), and by this amendment provided that in the contest of an election held on the prohibition question that:

The “district court shall have jurisdiction to try and determine all matters connected with said election, including the petition df such election and all proceedings and orders relating thereto, embracing final count and declaration and publication of result putting local option into effect: And provided that if no contest of said election is filed and prosecuted in the manner and within the time provided, it shall be conclusively presumed that said election as held and the result thereof declared are in all respects valid and binding upon all courts.”

It will be noticed that the Legislature by this act, if no contest of the election was held, requires the courts to conclusively presume:

“That the petition and all proceedings and orders relating thereto, embracing final count and declaration and publication of result putting local option into effect, are in all respects valid and binding.”

Since the amendment of article 5728 its provisions have been frequently before this court for construction. Hardy v. State, 52 Tex. Cr. R. 420, 107 S. W. 547; Phillips v. State, 53 Tex. Cr. R. 505, 111 S. W. 144; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167; Romero v. State, 56 Tex. Cr. R. 436, 120 S. W. 859; Ex parte Thulemeyer, 56 Tex. Cr. R. 337, 119 S. W. 1146; Jerue v. State, 57 Tex. Cr. R. 214, 123 S. W. 414; Wooten v. State, 57 Tex. Cr. R. 91, 121 S. W. 703; Wesley v. State, 57 Tex. Cr. R. 278, 122 S. W. 550; Gipson v. State, 58 Tex. Cr. R. 405, 126 S. W. 267; Doyle v. State, 59 Tex. Cr. R. 61, 127 S. W. 815. In each and all of these cases it has been held that on the trial of a case, if no contest has been instituted, this court must conclusively presume (upon proof that an election had been held and the result declared) that all necessary steps to put it in force have been taken, and no evidence will be admitted tending to show that such election was illegal or proper orders had not been made. In the case of Jerue v. State, supra, it is stated that it was desired to prove that the election was illegal because the notice of election was not completed and published in the manner required by law, and it was held:

“Since the passage of the act of the Thirtieth Legislature (article 5728) in respect to contests of * •* * elections and the presumption of validity, * * * this point is no longer available to appellant.”

In Evans v. State, supra, this court says:

“It follows, therefore, that the court did not err in refusing to permit appellant * * * to introduce evidence going to show irregularities or defects in the initiatory steps necessary to place local option into effect. It was proper for the court to have the county attorney to introduce sufficient number of the orders of the commissioners’ court to show that the county had adopted local option. It was also proper * * * to refuse to permit appellant to contest the validity of said orders.”

It is thus seen that since the adoption of article 5728, as amended after the rendition of the opinion in the parnés Case, supra, whenever the question has been presented to the court for review, it has been held that on the trial of a case it is only necessary to prove that the election was held, and prohibition received a majority of the votes, or had been adopted, and when this proof is made this court and all other courts are required by the statute to conclusively presume that all other steps necessary to putting local option into effect had been taken and were legally done.

Prior to the adoption of the statute it had been held necessary to allege and prove that the publication had been made, and that prohibition did not go into effect until it was shown that the publication had been made in accordance with law, and the Carnes Case and other cases following it held it was necessary to allege and prove that the publication had been legally made. While, if it were an original proposition, we would be inclined to hold that article 5722 was not subject to the construction given it in the Carnes Case, as that article does not provide that the publication shall be made on the order of the county judge, but rather that the county judge shall select a paper in which the order made by the commissioners’ court shall be published, yet, but for the amendment of article 5728, adopted after the rendition of the Carnes opinion, and evidently superinduced in part by that opinion, we would not change the holding of the court, but follow the construction there given that article. But the Legislature had the legal right to adopt article 5728, and it has been upheld in opinions by every judge sitting on this court since its adoption, and it has been construed to mean, and in fact says, in the absence of a constest of the legality of the election and the orders declaring the result and publication of tbe result, the court shall conclusively presume them to be valid and binding upon all courts, and no person on the trial can raise any question of the validity of such orders on the trial of a case.

As it is no longer necessary to prove that the publication had been made, but only that an election had been held in the named territory and prohibition adopted, when the' trial court and this court must conclusively presume that prohibition is in force, it is no longer necessary to allege in the indictment that the publication had been made, and, such allegation being no longer essential to the validity of the indictment, if such allegation should be held to be improperly made, it can be and should be treated as surplusage. Mr. Branch in his work on Criminal Law (section 905), correctly states the rule to be:

“If not descriptive of that which is legally essential to the validity of the indictment, unnecessary words or allegations may be rejected as surplusage”—citing Mayo v. State, 7 Tex. App. 342; Warren v. State, 17 Tex. App. 209; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Lassiter v. State, 35 Tex. Cr. R. 540, 34 S. W. 751; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110; Clark v. State, 41 Tex. Cr. R. 641, 56 S. W. 621; Bolton v. State, 41 Tex. Cr. R. 642, 57 S. W. 813; Rawls v. State, 48 Tex. Cr. R. 622, 89 S. W. 1071.

Again, he says:

“If, eliminating surplusage, the indictment so avers the constituent elements of the offense as to apprise defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance, under our Code, and therefore sufficiently charges the offense”—citing Coleman v. State, 2 Tex. App. 514; Burke v. State, 5 Tex. App. 74; Mayo v. State, 7 Tex. App. 342; Holden v. State, 18 Tex. App. 91; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Lassiter v. State, 35 Tex. Cr. R. 540, 34 S. W. 751; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110; Lomax v. State, 38 Tex. Cr. R. 318, 43 S. W. 92; Clark v. State, 41 Tex. Cr. R. 641, 56 S. W. 621.

Mr. Bishop, in his work on Criminal Procedure (2d Ed.) vol. 2, § 478, says:

“Surplusage is any allegation without which the pleading would remain adequate. Needless words and averments may ordinarily be treated as mere waste material, having no legal effect whatever. They need not be proved or otherwise regarded.”

Eliminating all reference to the publication from this indictment, it would read, omitting formal parts:

“In Bell county, Tex., on the 13th day of November, 1915, an election in accordance with the laws of this state was held under the authority of the commissioners’ court of said Bell county, Tex., theretofore duly made, to determine whether or not the sale of intoxicating liquors should be prohibited in Bell county, and the qualified voters at said election did then and there determine that the sale of intoxicating liquors should be prohibited in said county; and thereupon the commissioners’ court of said Bell county, Tex., did pass an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said Bell county, Tex., and thereafter, to wit, on or about January 29, 1916, in said state and county, one Clark Cleveland did then and there unlawfully sell intoxicating liquors to Polly Parish, in violation of said law,” etc.

It is seen that the indictment informs appellant that prohibition had been adopted in Bell county, Tex., and while it was in force he had unlawfully sold intoxicating liquors to Polly Parish. How could he more specifically have been informed of the charge against him? Our Criminal Code specifically provides in article 475 that matters of which judicial notice is taken and presumptions of law need not be stated in an indictment. This is not only the rule in this state by virtue of the statute above quoted, but, as stated in Standard Ene. of Pro. vol. 12, p. 347, it is the rule at common law in the absence of statute. It states the rule to be:

“Neither presumptions which the law makes from facts stated nor matters of which judicial notice is taken by the courts need be stated in an indictment” — citing cases from nearly all the states, including among them Mischer v. State, 41 Tex. Cr. R. 212, 53 S. W. 627, 96 Am. St. Rep. 780.

In that case defendant was indicted by the grand jury of Guadalupe county for rape committed in Colorado county. It was contended that the Indictment was defective because it did not contain an allegation that Gaudalupe county and Colorado county were in the same judicial district. The court held that the court was required to take judicial' notice of the laws of the state, and therefore it was unnecessary to so allege in the indictment.

Article 5728 provides that, when a prohibition election is held, and not contested within 30 days, when it is proven that prohibition was adopted, this court and all other courts must conclusively presume that the petition was a legal one, and that all proceedings and orders relating thereto, embracing final count and declaration and publication of the result putting prohibition in effect, are in all respects legal and binding. As no evidence will be received to dispute these presumptions, the allegations in the indictment, omitting as surplusage all reference to publication, are sufficient, and the court did not err in overruling the motion to quash the indictment.

We do not wish to be understood to question the correctness of the ruling in the Carnes Case, supra, when made, as the law then required proof of publication be made, but, the Legislature having seen proper by later enactment to render it unnecessary to make that proof, and only requiring that proof need be made that an election had been held and prohibition adopted, when all courts must conclusively presume that all orders were made, and legally made, putting prohibition in force, it is no longer necessary to allege and prove that the publication had been made, and therefore the same rule does not now prevail by virtue of the statute that did prevail when the opinion in the Carnes Case was rendered.

The only other question presented in the record is one complaining of the remarks of the district attorney. The remarks under ordinary circumstances would be improper, but the court in approving the bill states that the remark was brought about by the argument of counsel for the defendant, and was but in answer to the argument of appellant’s counsel. Under such circumstances the language is not such as we would feel authorized to reverse the case on account of. However, we will state that both counsel for the state and appellant should in their argument discuss only the evidence adduced on the trial and legitimate deductions to be drawn therefrom.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). My Brethren have affirmed the judgment herein, and what I shall say here will also apply to causes No. 4137, Pete Hawthorne v. State, 190 S. W. 184; No. 4165, Leon Vance v. State, 190 S. W. 176; No. 4167, Will Dupree v. State, 190 S. W. 181. These cases involve the same question.

Omitting all portions except that directly at issue, the indictment failed to allege that the order had been published as required by law. It alleged that the commissioners’ court passed and published an order. The authorities are adverse to this as sufficient pleadings, and are collated by Mr. Branch in his recent Annotated Penal Code, on pages 694 and 695. These cases all hold that before there can be a violation of the local option law the result of such election must be so published as to put it into operation. In section 1231 on page 695 Mr. Branch thus states the rule:

“Local option must he shown to he in force. —The order declaring the result in favor of prohibition should be shown in the statement of facts on appeal; the court will not take judicial knowledge that local option is in force, nor of the time when it went into effect.”

There are a great number of cases cited in support of that proposition, and, so far as the writer is aware, all of them, without exception, are of the same import. It is also the rule, that local option does not become operative until the order declaring the result has been published for four successive weeks. Mr. Branch has collated these decisions in his valuable Annotated Penal Code, on page 696, among others, Phillips v. State, 23 Tex. App. 304, 4 S. W. 893; Jones v. State, 38 Tex. Cr. R. 533, 43 S. W. 981; Chenowith v. State, 50 Tex. Cr. R. 238, 96 S. W. 19; and Beaty v. State, 53 Tex. Cr. R. 435, 110 S. W. 449. I might cite cases at greater length. My Brethren cite a line of cases which hold that a local option election cannot be contested as a collateral matter in the trial of a local option case. The statute so provides. There is a line of cases .growing out of that statute which hold that? after a certain length of time a local option law shall not be contested. That article will be found in Revised Civil Statutes 1911, art. 5728. That contest matter, however, only refers to the election, which has nothing to do with the order of the judge declaring the result by publication. Publication is not a matter of contest. It is the election and manner of holding it, whether there were fraudulent votes and matters of that sort growing out of and incidental to the election itself only which are subject of contest. It has nothing to do with the publishing order of the judge. It will be noticed by the terms of that statute that it only provides for contesting the election. Prosecutions may go on, although there is a contest pending, but in all cases, everywhere, and under all circumstances, so far as the writer knows, the law never goes into effect, nor can a prosecution he maintained under it, until the county judge has made the proper publication, etc. Some of these eases hold that in the trial of parties for the violation of that law the defendant cannot object successfully to the introduction of the order of the commissioners’ court declaring the result of the election. But this has nothing to do with the sufficiency of the pleadings in the indictment. That only refers to rules of evidence. The indictment setting out the offense must conform to the statute, and cannot be maintained until the law is in force. The manner of proving the case is one thing; the sufficiency of the indictment or information is a very different proposition. The majority opinion has confused the rules of evidence with proper allegations in the indictment. The indictment must legally allege the offense. The evidence comes only in support of such allegations. It is the rule everywhere understood in our jurisprudence, whether the law be local or general, that a prosecution cannot be maintained until the law under which it is sought to be maintained becomes operative. If the Legislature sees proper to make a general law go into effect immediately, a party could be held liable for subsequent violations of that law. If it goes into effect 90 days after adjournment, prosecutions cannot occur until the 90 days shall pass. If the Legislature should see proper to extend that time and make it operative 6 months or at a later date, the courts would be bound by it. Until the law becomes operative a prosecution cannot be had under it. The Legislature was required by the Constitution to pass reasonable laws whereby the people of counties, justice precincts, cities, towns, and subdivisions can vote on the exclusion of the sale of intoxicants in such territory. The people reserved this right to themselves, and so decreed it in the Constitution. A majority vote have authority to put it into operation. When the vote has been had it does not become operative until the county judge has properly'published the result. The Legislature so made it. The people so voted. They understood, and so voted, that it would not be a law until the expiration of the publication, just like they understood that the general law of the state would not be operative until the time fixed by the Legislature when its acts should become operative. Until it has been alleged that the law is operative, there is no sufficient pleading. The indictment must allege an operating law. The rules of evidence and the pleadings in an indictment are quite distinct and different. A sufficient pleading is necessary to admit required facts. Because the accused cannot except to evidence introduced under the article above cited (article 5728, Revised Civil Statutes) affords no reason why the indictment should not allege the offense. Under a code practice such as we have in Texas all necessary elements of the offense must be averred in the indictment to make it sufficient. The evidence is a different thing. The fact that a party may or may not be able to introduce a certain line of testimony under the indictment does not make the indictment sufficient. The sufficiency of the indictment is tested by the terms .of the law under which it is framed. That is the case here. The indictment here failed to allege a case under an operating law. This indictment does not charge the offense, and there is no contention that it does, but my Brethren hold that because appellant could not object to certain testimony, therefore the indictment is sufficient. The authorities they cite in support of their proposition apply only to evidence, and not to allegations in the indictment. These cases have no application as authorities to the proposition for which they are cited. Rules of evidence do not constitute valid indictments. The case must be averred as basis for the evidence.

What I have said here refers also to the cases of Pete Hawthorne v. State, No. 4137; Leon Vance v. State, No. 4165; and Will Dupree v. State, No. 4167. I have thought proper to write this much by way of dissent.
      ((®=3>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ffiswFor other oases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    DUPREE v. STATE.
    (No. 4167.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Indictment and Information <§=379, 119 —Unlawful Sale — Clerical Errors.
    An indictment alleging sale of liquors after an election “therefore duly made and published” was good; the word “therefore” being a clerical error for “theretofore,” and in any event being surplusage.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. 88 209-214, 311-314; Dec. Dig. <§=379, 119.]
    2. Intoxicating Liquors <©=3205(2) — Illegal Sale — Indictment—Sufficiency.
    Since Rev. St. 1911, art. 5728, providing that in a contest of a prohibition election the district court shall have jurisdiction to try all matters connected with the election, including the petition, proceedings, orders, final count, declaration, and publication of result putting local option into effect, provided, if no contest is filed, it shall be conclusively presumed that the election as held and the result declared are in all respects valid and binding upon all courts, an indictment for illegal sale of intoxicating liquors in prohibition territory, after, alleging that the election was held and resulted in favor of prohibition, need not allege publication of the notice of the result, so that an indictment in which it was alleged that the commissioners ordered publication, instead of that the county judge ordered publication, was good; the allegation as to publication being surplus-age.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. <§=3 205(2).]
    3. Criminal Law <§=3726 — Appeal—Invited Error.
    The accused cannot complain that the state’s attorney in argument went beyond the record, if the argument was occasioned, justified, or provoked by accused’s attorney, as by the introduction of illegal testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. <§=>726.]
    4. Criminal Law <§=>1037(2) — Appeal—Preservation of Exceptions — Improper Argument.
    The accused cannot complain of alleged improper argument of the state’s attorney in the absence of request for written charge to disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. <§=» 1037(2).]
    5. Witnesses <®=»361(1) — Impeachment.
    Where one accused of unlawful sale of liquors in prohibition territory variously attacked the state’s principal witness, whose testimony made out the offense, it was proper for the court to. permit the sheriff to testify that the principal witness assisted him in ferreting out violations of the local option law.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1167, 1171-1175; Dec. Dig. 361(1).]
    6. Criminal Law <®=3<361(D — Explanatory Evidence.
    In a prosecution for unlawful sale of intoxicating liquors in prohibition territory, it was proper for the court to permit the state’s witness to explain why he had transported whisky, since a witness may always explain his action from his standpoint when attacked.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802-803; Dec. Dig. 361(1).] ■
    Davidson, J., dissenting.
    Appeal from District Court, Bell County; F. M. Spann, Judge.
    Will Dupree was convicted of unlawfully selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    Hair & Woodward and J. H. Evetts, all of Temple, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully selling intoxicating liquors in Bell county, a prohibition county, and assessed the lowest punishment. This is a companion case to that of Clark Cleveland (No. 4164) 190 S. W. 177, decided on the 11th instant, in an opinion by Judge Harper. Some additional questions arose in this which were not in said Cleveland Case.

After the allegations of the organization, etc., of the grand jury, the indictment avers:

That in said Bell county, Tex., on November 13, 1915, “an election in accordance with the laws of the state of Texas was held under authority of an order of the commissioners’ court of said Bell county, Tex., therefore duly made and published to determine whether or not the sale of intoxicating liquors should be prohibited in Bell county, and the qualified voters at said election did then and there determine that the sale of intoxicating liquors should be prohibited in said county, and thereupon the commissioners’ court of said Bell county, Tex., did pass and publish an order declaring the result of said election and prohibiting the sale of intoxicating liquors in said Bell county, Tex., and thereafter, to wit, on or about the 1st day of January, 1916, in said county and state, one Will Dupree did then and there unlawfully sell intoxicating liquors to H. M. Bryan, in violation of said law” — properly concluding.

Appellant made a- motion to quash the indictment on two grounds: (1) That the allegation therein that the commissioners’ court did pass and publish an order declaring the result, etc., ought to have alleged that the order was published according to law or by order of the county judge; "(2) that it is alleged that the election was held under authority of an order of the commissioners’ court “therefore” duly made, etc., instead of “theretofore” duly made, etc.

The court correctly overruled the motion. It is perfectly apparent from the whole indictment that “therefore” was a mere clerical error for “theretofore,” and it could in no way mislead or vitiate the indictment. Again, under the well-settled rule, it could and should be rejected as surplusage. Goodwin v. State, 70 Tex. Cr. R. 600, 158 S. W. 275, and authorities therein cited; section 382, White’s Ann. C. C. P.; section 497, 1 Branch’s Ann. P. C., where he collates a large number of cases directly in point.

As shown by Judge Harper in said Cleveland Casg, the first ground to quash would have been good under the decisions collated and cited by Mr. Branch in 1 Branch’s Ann. P. C. p. 690, beginning with Gunning v. State, 98 S. W. 1057. But, as shown by Judge Harper, these decisions have been superseded and avoided by an act of the Legislature on the prohibition or local option law.' By an act approved May 14, 1907 (page 447), the Legislature amended article 3397 of the then Revised Statutes, now Rev. St. 1911, art. 5728, by which it was enacted that:

“At any time within 30 days after the result of the election has been declared, any qualified voter of the county * * * In which such election has been held, may contest the said election in the district court of the county in which such election has been held, which shall have original and exclusive jurisdiction of all suits to contest such election; * * * and said court shall have jurisdiction to try and determine all matters connected with said election, including the petition of such election and all proceedings and orders relating thereto, embracing final count and declaration and publication of the result putting local option into effect; and it shall have authority to determine questions relating to the legality and validity of said election. * * * That all such cases shall have 'precedence in the district court and appellate courts, and that the result of such contest shall finally settle all questions relating to the validity of said election, and it shall not be permissible to again call the legality of said election in question in any other suit or proceeding; and * * * that if no contest of said election is filed and prosecuted in the manner and within the time provided above, it shall be conclusively presumed that said election as held and the result thereof declared, are in all respects valid and binding upon all courts.”

Clearly this statute was enacted for the purpose of avoiding and preventing any other contest about the validity or regularity of such elections and the effect thereof. And in effect this court has uniformly by a unanimous court so held.

In quoting the act of May 14, 1907 (R. S. art. 5728), we~have omitted, because we think it unnecessary, another portion thereof, which requires suit to be brought within 60 days after the act took effect in any county, precinct, etc., where prohibition previously thereto had been, put in force. The principles and decisions, whether under the 30 or 60 days’ times, respectively, are precisely to the same effect.

In Hardy v. State, 52 Tex. Cr. R. 421, 107 S. W. 547, it was shown that the state introduced the order of the commissioners’ court ordering the prohibition election, to which aiDpellant objected, because:

“There was a variance in said order to the charge alleged in the bill of information; the information charging that the order made by the commissioners’ court ordering an' election for the purpose of determining whether or not tho sale of intoxicating liquors should be prohibited in said county; whereas the order introduced ordered an election for the purpose of determining whether or not intoxicating liquor should be sold in said county; it being contended that this is a variance”

—and another bill, that the court refused to allow appellant to prove by the county Clerk that the clerk did not at any time post, or cause to be posted, any notice of an election. On these two questions this court, through Judge Brooks, held :

“This prosecution was commenced on the 29th day of July, 1907. The bill shows that the state objected on the ground that it was immaterial, and was offered in the nature of a defense to contest the legality of the local option law at a time more than 60 days .after the taking effect of the act of the Thirtieth Legislature passed May 14, 1907. We hold that this objection is well taken. Said act provides that contests of elections that had theretofore been had must be contested within 60 days from the taking effect of said law, and not otherwise. The matters complained of would be mere irregularities at best, apd this act makes valid and noncontestable anything pertaining to irregularities in the adoption of the local option law. The act itself provides that we shall conclusively presume that said election as held was valid in all things and binding upon all courts. We accordingly .hold that said act is valid, and applies to all local option elections, and it clearly applies in this case.”

In a companion case, decided on the same day, in an opinion by Judge Davidson, in Wilson v. State, 107 S. W. 818, the same thing was held in accordance, as he states, with said Hardy decision.

In Alexander v. State, 53 Tex. Cr. R. 505, 111 S. W. 145, the court, through Judge Brooks, again held:

“Yarious objections to the orders of the commissioners’ court are in the record, but under an act of the Thirtieth Legislature that went into effect August 11, 1907, which provides that contests of elections where the local option law was in force at the time the act was passed should be contested within sixty days, none of the objections to the orders can be considered. The record shows there was no civil contest of the local option law”—citing Wilson v. State, 107 S. W. 818; Hardy v. State, 52 Tex. Cr. R. 420, 107 S. W. 547.

Again, in Romero v. State, 56 Tex. Cr. R. 436, 120 S. W. 859, this court, through Judge Brooks, showed that complaint in that ease was made by appellant in permitting the state over his objections to read in evidence notice of the elections and the order of the commissioners’ court putting local option into effect. He held:

“None of these questions can he considered, in view of the fact that the election under which this prosecution is instituted had taken place a year or more before the act of the Thirtieth Legislature was passed, which inhibits a contest of elections after the expiration of 60 days from the time said law went into effect. Therefore, more than 60 days having elapsed before the institution of this prosecution, there was no, error in the ruling of the court in admitting same, and no error could be considered by us if the same was erroneous.”

Again, in Doyle v. State, 59 Tex. Cr. R. 61, 127 S. W. 816, this court, through Judge Ramsey, said:

“It is contended, among other things, that the precedent steps necessary to put local option in force in Johnson county had not been complied with, and that for many reasons urged in bills of exception and insisted on in brief of counsel said election was invalid and nugatory. Whatever we might conclude in respect to these several matters, in the absence of the statute passed by the Thirtieth Legislature requiring contests to be made of local option elections theretofore or to be thereafter held, it is sufficient to say that, in the absence of a contest, we must and shall assume that the judgment and decree putting local option in force and the proclamation of the county judge had th^ effect to institute the law in that 'county, and that this presumption and conclusion are conclusive on us and on appellant.”

Again, in Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550, this court, through Judge Ramsey, said:

“Many of the questions raised on the appeal relate to the sufficiency of the orders, judgments, and decrees of the commissioners’ court of Howard county putting local option into effect. Since there was no contest as provided by the act of the Thirtieth Legislature, these matters cannot be considered by us, but we must assume and hold, as the court below did, that the law was in all respects regular and valid.”

Again, this court, through Judge McCord, in Gipson v. State, 58 Tex. Cr. R. 405, 126 S. W. 268, said:

“The other bills of exceptions relate to the orders of the commissioners’ court putting prohibition in effect. These cannot now be considered, as they show prohibition has been in effect in that county for several years, and no contest has been made or is pending.’”

See, also, Nobles v. State, 71 Tex. Cr. R. 124, 125, 158 S. W. 1133, and the other cases and authorities cited and quoted from in Judge Harper’s opinion in said Cleveland Case.

The indictment, as shown, distinctly avers that the prohibition election was held in Bell county on November 13, 1915, in accordance with the laws of this state and under the authority of an order of the commissioners’ court, and that the qualified voters at said election determined that the sale of intoxicating liquors should be prohibited in said county, and the commissioners’ court thereupon did pass an order declaring the result of said election, prohibiting the sale of such liquor in said county, and that thereafter, on January 1st, appellant unlawfully made the sale alleged, which was clearly sufficient; and the indictment was not invalid because it also alleged that the commissioners’ court published the order declaring the result. This also disposes of appellant’s bill objecting to the introduction by the state of the orders showing that the county judge selected the paper and published the order, or had it published.

It is settled in this state by a great many decisions that an appellant cannot complain and is not entitled to a reversal because the state’s attorney in argument went out of the record, if it was occasioned, justified, or provoked by his attorney. In this case appellant introduced clearly illegal testimony when he introduced and had Mr. Chaffin to testify that the state’s principal witness more than two years before, in effect, had burglarized his house and stolen certain property therefrom, but that he was never prosecuted nor indicted therefpr. The language complained of used by the district attorney on this subject was clearly provoked and brought ¡about in discussing said Chaffin’s illegal testimony before the jury. Besides, appellant requested no special written charge to disregard it. The appellant variously attacked the state’s principal witness, whose testimony made out the offense. The court therefore did not err in permitting the sheriff to testify that said principal witness acted at his instance in assisting him in ferreting out violations of the local option law in Bell county. Nor did the court err in permitting said state’s witness to explain why he had brought three gallons of whisky from Granger to Belton; a witness being always permitted to explain his action from his standpoint when attacked.

The judgment is affirmed.

DAVIDSON, J., dissents and will later write on the subject. See Clark Cleveland v. State, decided at this term of court.
      e=For other oases see same toRic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ¿SzzoFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    HAWTHORNE v. STATE.
    (No. 4137.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Witnesses <S=>344(2) — Impeachment — Particular Offenses.
    It is not permissible to impeach a witness by showing that he has committed a certain crime, but only by showing that he has been indicted or convicted for such crime.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1125; Dec. Dig. <©=>344(2).]
    2. Witnesses <©=>350 — Impeachment — Particular Offenses.
    Any witness can be impeached by the adverse party by proving by the witness on cross-examination that within a period not too remote he had been indicted or convicted of a felony or misdemeanor imputing moral turpitude.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. <©=>350.] Davidson, J., dissenting.
    Appeal from District Court, Bell County; P. M. Spann, Judge.
    Pete Hawthorne was convicted of unlawfully selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    James Boyd, of Belton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of violating the law prohibiting the sale of intoxicating liquors in Bell county, a prohibition county.

The indictment in this case is exactly like the indictment in No. 4167, Will Dupree v. State, 190 S. W. 181, from the same county, this day decided, and the objections the same. As held in that case, the indictment is good. The same objections were made to the introduction of the orders in this as in the Dupree Case, with the same correct result.

In another bill appellant complains of the court’s refusal to permit him to prove by various witnesses that H. M. Bryan, the state’s main witness, had made to them, respectively, sales of intoxicating liquors in Bell county between the 1st and 3d of January, 1916. It is settled in this state that proof that any witness who testifies has committed any given crime is inadmissible. It is only permissible to impeach him by showing that he has been indicted or convicted for such crime. Section 168, p. 102, 1 Branch’s Ann. P. C. Therefore the court committed no error in refusing several witnesses tendered by appellant to testify to the actual commission of the crime of illegally selling to them by said state’s witness intoxicating liquors in Bell county. It would make no difference that they had asked him if he had sold whisky to the respective parties and he had denied it. Appellant was concluded by his answer.

On the other hand, it is equally well settled that any witness can be impeached by the adverse party by proving by the witness on cross-examination that within a pe<> riod not too remote he had been indicted or convicted of a felony or misdemeanor imputing moral turpitude. Section 167, 1 Branch’s Ann. P. O. p. 101. Therefore, the court committed no error in permitting the state on cross-examination of appellant to prove that he had been so indicted and tried; he also having answered that he had been acquitted.

The judgment is affirmed.

DAVIDSON, J., dissents. See Clark Cleveland v. State, 190 S. W. 177, decided at this term.
      <S=aPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes