text:
    NATIONAL NOVELTY IMPORT CO. v. GRIFFIN & GRIFFIN.
    (No. 7179.)
    (Court of Civil Appeals of Texas. Dallas.
    June 13, 1914.)
    1. Appeal and Error (§ 501) — Presentation of Grounds of Review — Instructions — Exception.
    Under Acts 33d Leg. c. 59, amending Rev. St. 1911, art. 2061, to provide that the action of the court on instructions shall be regarded as approved, unless excepted to as provided by Rev. St. 1911, art. 1970-1974, as therein amended, relating to the time and manner of submitting instructions, the refusal to give a special charge cannot be reviewed on appeal, where there was no exception thereto in the trial court and preservation of the objection by bill of exception.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 2300-2305; Dec. Dig. § 501.]
    2. Principal and Agent (§ 190) — Action fob Price — Evidence — Separate Agreement.
    In an action to recover for goods sold under a contract providing that no statement by the salesman should be part of the contract unless written in the original order accepted by the seller, in which defendant set up a condition attached to the contract by the salesman that the seller would give an indemnity bond, evidence for defendant, as to the circumstances under which such separate agreement was made and as to its nonperformance, was admissible.
    [Ed. Note. — Eor other cases, see Principal and Agent, Gent. Dig. 718-720; Dec. Dig. § 190.J
    3. Principal and Agent (§ 103) — Authority of Agent — Construction of Contract —Provision Against Collateral Agreement.
    A provision, in a contract for the sale of goods, that no statement made by the salesman should be a part thereof unless written in the original order received and accepted by the seller, and that the salesman’s authority was limited to taking orders on the regular forms, did not exclude a written agreement by the salesman, and attached to the original contract on a separate piece of paper, that the seller would furnish an indemnity bond to the buyer, but referred only to verbal representations by the salesman; and hence such attached agreement became a part of the contract.
    [Ed. Note. — -Eor other cases, see Principal and Agent, Cent. Dig. §§ 278-29-3,' 353-359, 367; Dec. Dig. § 103.*]
    4. Sales (§ 65) — Action fok Price — Defenses.
    The seller’s failure to perform a written agreement, part of the contract of sale, whereby it was to furnish the buyer an indemnity bond, relieved the buyer from any obligation to take and pay for the goods.
    LEd. Note. — For other cases, see Sales, Cent. Dig. § 180; Dec. Dig. § 65.]
    5. Principal and Agent (§ 177) — Contracts —Separate Oral Agreement.
    Where the seller’s agent had authority to agree that the seller would furnish the buyer an indemnity bond, his knowledge thereof was in legal effect the knowledge of the seller, who was bound thereby.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 670-679; Dec. Dig. § 177.]
    Appeal from Kaufman; County Court; James A. Coley, Judge.
    Action by the National Novelty Import Company against Griffin & Griffin. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    Bumpass & Orumbaugh, of Terrell, for appellant. Bond & Bond, of Terrell, for appel-lees.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexei

   TALBOT, J.

Appellant filed its suit in the county court of Kaufman county, Tex., against appellee, and alleged that, under the terms of a contract entered into between appellant, under its firm or corporate name of Blackstad Mercantile Company, and appel-lee, it had sold and delivered- to appellee certain goods, wares, and merchandise, consisting of jewelry, of the aggregate value of $294; that appellee promised and agreed to pay appellant said sum for said merchandise within 12 months from April 2, 1912; that said sum was past due and unpaid, and appellant prayed judgment therefor. Appellee filed general demurrer, general denial, and pleaded specially that one Hancock, as agent of appellant, had made a written contract with appellee to ship the goods described in appellant’s petition, for which appellee was to execute acceptances or drafts; that as a part of the said contract, and attached thereto, H. H. Hancock, as agent and for the said Blackstad Mercantile Company, contracted and agreed in writing that for and in consideration of appellee’s signing the said contract for the purchase of the goods, and before any payment should be made, and before any acceptance should be signed, appellant would execute and deliver a bond of indemnity, conditioned that the jewelry mentioned in said contract would be in fineness as therein described, and that appellant would faithfully discharge the terms and conditions of said contract; that said provision was written on said contract and attached thereto, and, if same was not now at-i tached, the contract sued on was a forgery by alteration, and that a fraud had been perpetrated on appellee. Appellee pleaded that said bond had never been given nor delivered ; that they never had received any jewelry from appellant; and that the act of appellant in shipping the jewelry, without first giving said bond, was a fraud on appellant. Appellant filed a demurrer to appellee’s answer, and entered a general denial to the other allegations. The case was tried by a jury and verdict rendered for appellee, on which judgment was rendered Appellant filed a motion for a new trial, which was overruled by the court,, to which action of the court appellant in open court excepted and gave notice of appeal.

The first assignment of error is as follows:

“The court erred in failing to give plaintiffs special charge herein, to wit; ‘Gentlemen of the Jury: You are instructed in this case that the plaintiff having proven its case by legal and competent testimony, and the defendants have failed to offer any legal defense thereto, as required by law, you are therefore requested to find a judgment for the plaintiff in the sum of 1294 and interest on same from January 1, 1913, at 6 per cent, per annum.’ ”

The ruling of the court in refusing this charge cannot be reviewed by this court. No exception appears to have been taken to the court’s action, and under the provision of chapter 59, Acts 33d Legislature, the failure of the court to give the requested charge must be considered as waived. Article 2061 of the act referred to provides:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

That the refusal to give a special charge cannot be made available on appeal, since the passage of said act, unless such refusal is excepted to in the trial court and the point preserved by bill of exception shown in the record on appeal, is affirmed by the following cases. Mutual Life Ins. Co. v. Rhoderick, 164 S. W. 1067; Railway Co. v. Galloway, 165 S. W. 546; Saunders v. Thut, 165 S. W. 553; Roberds v. Laney, 165 S. W. 114; Railway Co. v. Crutchfield, 165 S. W. 551; Railway Co. v. Love, 169 S. W. - (decided by this court, but not yet officially reported).

The second assignment of error charges that the court erred in' permitting - Griffin, one of the defendants, to testify in this case, over the objection of plaintiff, after he had acknowledged to have signed the contract introduced herein as-follows:

“That at the time said contract was executed by him, one H. H. Hancock called at his place of .business in Elmo, Tex., and claimed to be a representative of the plaintiff, and promised, verbally, that if the defendant would make the contract, that he did in this case, the plaintiff would furnish a good and sufficient bond that the said plaintiff would carry out the terms of said contract. And that the said H. H. Hancock wrote on a piece of yellow paper attached to said contract something like this: ‘Plaintiff will make bond and send it to the Citizens’ Bank at Elmo to be inspected by tbe defendant or bis attorney.’ ”

Tbe proposition under tbis assignment is:

“The contract being in writing and limiting the agent’s authority to changes written in tbe contract, evidence of verbal statements of the agent, or of written memorandum on a separate sheet of paper attached to tbe contract, which verbal statements or written memorandum would materially change the terms of the contract, was not admissible.”

There is a provision in the contract executed by the parties for the sale and purchase of the goods for which plaintiff seeks to recover, as follows:

“We agree that no statement made by ourselves or the salesman will be a part of this agreement, unless written in the original order received and accepted by you which we have read and found satisfactory, and we understand the authority of your salesman is limited to taking orders for you, on your regular order forms.”

And appellant’s proposition, above stated, is predicated and sought to be sustained in this ease upon that provision of the contract. The defendants alleged in their answer under oath:

“That, as a part and condition attached to the said contract on the regular order forms of the Blackstad Mercantile Company, the said H. H. Hancock, as agent and for the said Blackstad Mercantile Company, contracted and agreed that for and in consideration of these defendants signing the said contract for the said jewelry, and before any payment should be made, and before any acceptance should be signed, the said Blackstad Mercantile Company would execute and deliver a good and sufficient bond of indemnity, the condition of which would be that the jewelry as set out in said order and contract would be in fineness as therein described, and that the said Blackstad Mercantile Company would faithfully discharge any of the terms and conditions of the said contract. That said provision or condition that the said plaintiff would execute and deliver a bond was written on said contract, and attached thereto, and, if same is not now attached to same, the contract sued upon is a forgery by alteration, and a fraud perpetrated upon this defendant, and done for the purpose of deceiving and defrauding these defendants and to get them to sign said contract.”

They further alleged that the bond of indemnity was never given, and that plaintiffs, though often requested, declined and refused to execute the same. Under these allegations, one of the defendants, C. F. Griffin, was alleged to testify that:

“On April 2, 1912, one H. H. Hancock called at the defendant’s place of business and represented himself as the-agent of the Black-, stad Mercantile Company. After showing me samples of his goods, wares, and merchandise and making representations as to their fineness, and before he presented the contract for me to sign, he stated and agreed that in consideration of me signing the said contract for the said jewelry, and before I should receive the goods, and before payment should be made, and before any acceptance should be signed, the Blackstad Mercantile Company would execute and deliver to me a good and sufficient bond of indemnity, in the amount of the bill of jewelry, the condition of which would be that the jewelry, as set out in their contract, would be as therein described, and that the said Blackstad Mercantile Company would faithfully discharge all of the terms and conditions of the said contract. That this agreement was attached to the original contract on a yellow piece of paper and written in the following words: ‘The plaintiff will furnish a bond to Griffin & Griffin, and same to be mailed or sent to the bank at Elmo, to be inspected and approved by them or their attorney.’ Mr. Hancock told me that the writing would insure the delivery of the bond which he had described, and the writing on the contract was intended and agreed to be for the faithful performance of the plaintiff in carrying out the contract as set out in the order attached. After he made the notation for the delivery of the bond on paper and attached it to the order and made it a part of the contract, I signed the contract. * * * A few weeks after signing the contract, the goods arrived at the express office at Elmo, and I declined to take them out until the bond had been placed in the bank at Elmo, as contracted. A few days later, Mr. Hancock returned to Elmo, and asked me if I had received the goods. I told him that I had not, for the reason that his company had not sent the bond as agreed. Mr. Hancock stated that he was surprised to learn that the company had not done that, and that he would write them and have them to send the bond. I called at the bank at Elmo several times for the bond, but it was never delivered to me. Yes, the plaintiffs were strangers to me, and I required the bond to indemnify me from any breach of the plaintiffs in not carrying out the terms and conditions of their contract. Yes, the paper on which the memorandum for the bond was written, and which was attached to the contracts here in evidence, is similar to that paper [here witness was shown a yellow piece of paper], on which was written the following words: ‘Take Notice. Every order must have one of these blanks attached to it properly filled cut and anything you write about the order must be on this sheet. Use back of sheet for additional remarks, if any. [Signed] Blackstad Mercantile Co.’ ”

In this connection the defendants offered -in evidence the contract signed by the parties, which showed four or five pin holes in the upper- left-hand corner of the same, and a perforation at the top where something had been torn off.

This testimony, which was objected to, was, under the allegations of the defendants’ answer, admissible and sufficient to authorize the verdict of the jury in favor of the defendants. The agreement written on the “yellow paper” attached to the contract for the purchase of the goods according to this testimony became a part of said contract, and the failure of the plaintiff to comply therewith relieved the defendants from any obligation assum'ed by them to take the goods. This agreement was not a verbal, but a written agreement, and not inhibited, especially under the facts shown, by the provision in the body of the contract, to the effect that no statement made by defendants or plaintiffs* salesman would constitute a part of the contract, unless written in the original order. This provision evidently had reference only to verbal statements of representations and not to any written agreement the salesman might make as a condition upon which a sale of his principal goods should take effect. At all events, we hold that, under pleadings and facts developed upon the trial of the case, the written agreement that the execution of the indemnity bond by plaintiff should be executed and delivered to defendants as a condition of tbeir purchase and acceptance of the goods was binding on plaintiff, and that, having failed to execute and deliver it in accordance with that agreement, defendants were not compelled to take and pay for the goods. This agreement in writing indorsed on the “yellow paper” that appellant should execute and deliver to appellee the indemnity bond, before appellee should become liable for the goods, having been attached to and made a part of the contract for the purchase of said goods, the fact that it may have become detached and not brought to the knowledge of appellant itself until after the goods were Shipped, it appearing that appel-lee was in a way responsible therefor, would not materially affect the question.

Hancock, the agent, having authority to make said agreement, his knowledge of it was in legal effect the knowledge of his principal, and it is bound thereby. The evidence upon the issue of whether or not the written agreement was in fact made was conflicting, but amply sufficient to sustain the jury’s finding that it Was. The case is distinguishable from Blackstad Mercantile Co. v. J. W. Porter & Co., 158 S. W. 216, cited by appellant, in the facts and not ruled thereby.

Believing the judgment should be affirmed, it is accordingly so ordered.


source: Caselaw Access Project

author: PBENDEBGAST, P. J.

license: Public Domain

text:
    MILLS v. STATE.
    (No. 3153.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.)
    Ceiminad Law (§ 885) — Sentence—Suspension — Veedict.
    Since the trial court has no jurisdiction to suspend sentence unless expressly so recommended by the jury, where accused filed a plea to suspend his sentence and pleaded guilty, a verdict finding accused guilty and assessing his punishment at two years in the penitentiary, but expressly reciting that the jury could not agree on the suspension of sentence, constituted a mistrial, and was insufficient to sustain a judgment sentencing accused to two years in the penitentiary without suspension of his sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.]
    Appeal from District Coqrt, Busk County; W. C. Buford, Judge.
    Aron Mills was convicted of burglary, and he appeals.
    Beversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PBENDEBGAST, P. J.

Appellant was indicted for burglary. He in proper time filed his plea to suspend his sentence, and plead guilty. There is no statement of facts. For the question raised that was unnecessary.

By proper bills and the charge of the court it is shown that the court submitted to the jury in a proper charge for them to determine whether they would suspend his sentence. The' jury promptly, upon'going out, unanimously agreed upon his guilt, and fixed his punishment at two years’ confinement in the penitentiary, but they could not, and did not, agree on whether or not his sentence should be suspended. Seven were in favor and five against suspension. After being out practicaliy all day, or perhaps longer, on this question, they reported in open court how they stood as to their verdict, stating to the court the status as shown above. The court thereupon himself prepared, had the foreman sign, and they all agreed to the following . verdict: '

“We, the jury, find the defendant, Aron Mills, guilty of burglary, and assess his punishment by confinement in the penitentiary for two years. We further find that defendant has never in this state or any other state been convicted of a felony, and we cannot agree on the suspense of sentence issue; seven being in favor of suspending sentence and five against.”

The court thereupon received the verdict and sentenced the appellant to confinement in the penitentiary for two years, and did not suspend Ms1 sentence.

In the cades of Roberts v. State, 158 S. W. 1003, Potter v. State, 159 S. W. 846, and King v. State, 162 S. W. 890, this court held that the trial court could not suspend the sentence, unless the jury expressly so recommended. In each of those cases, and perhaps others following them, the verdicts showed that the jury found that the defendant had not theretofore been convicted in this or any other state of a felony, but made no finding that the sentence should be suspended, nor did their verdicts indicate that the jury had not passed upon the question. But, not recommending suspension, the lower court must have held thereby the jury found against suspension, and this court so presumed and followed the lower court. Under that state of facts, appellants in those cases made a motion to have the judge suspend the sentence, which he refused and this court, in each of those cases, held that the judge could not suspend the sentence, unless the jury so found. Neither of those cases presented the question raised in this case. Here the verdict expressly states that the jury made no finding on the question at all; not that they omitted to recommend suspension of sentence, but that they failed and refused to agree upon that issue.

There is no question but that, under our suspended sentence law, the court cannot suspend the sentence except the jury expressly so find. The court cannot pass upon the question. The jury must do so. The suspension of the sentence is a very valuable right to one convicted. In every case where an ae-cusd properly files a plea for suspended sentence under the statute, the court should require the jury to find one why or the other thereon. If they fail to agree upon that issue, even though they do agree upon the guilt of the accused and upon the number of years to be assessed against him, yet, when, as in this instance, the verdict itself and the facts and record affirmativeiy show that the jury failed to agree upon it, it is an incomplete verdict, and is the same, in effect, as if the jury failed to agree upon the number of years to be assessed, though each one should agree upon the guilt of an accused. When a jury, as in this instance, expressly fail to agree upon the verdict in this particular and so report to the court, and the court is satisfied that they cannot agree, or will not, then he should discharge the jury and retry the case before another jury, the same as if the jury hung on any other issue in the case.

The judgment is reversed, and the cause remanded.


author: PRENDERGAST, P. J.

text:
    HENSON v. STATE.
    (No. 2885.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.
    On Motion for Rehearing, June 3, 1914.)
    1. Criminal Raw (§ 721) — Telad—Defend-ant’s FAILURE TO TESTIFY — REFERENCE IN Argument.
    Defendant’s attorney having argued that there was no evidence that defendant intended to kill deceased, the district attorney in his address in reply stated that the jury could only judge of defendant’s intent from his acts, and then asked on whose testimony, defendant’s attorney based his statement, stating that certain witnesses specified did not so testify, and that defendant did not put certain other witnesses named on the stand to so testify, and then stated that there was no evidence that the gun that killed deceased was accidentally discharged, and that defendant did not intend to kill him. Held,, that such argument was not erroneous as a reference to defendant’s failure to testify in his own behalf.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    2. Homicide (§ 8) — Statutes—Appeal.
    The statute creating the crime of murder, and providing for punishment thereof, was not repealed by Act April 3, 1913 (Acts 33d Leg. c. 116), amending Pen. Code 1911, art. 1140 et seq.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.]
    3. Homicide (§ 334) — Harmless Error — Conviction of Offense of Lower Grade.
    Where defendant was convicted of manslaughter only, and the lowest penalty assessed, any error relating to higher grades of homicide was not prejudicial, and was unavailable on appeal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 705; Dec. Dig. § 334.]
    On Motion for Rehearing.
    4. Homicide (§ 319) — New Trial — Newly Discovered Evidence.
    In a prosecution for homicide, the state having denied that deceased had a pistol when he was killed, and having claimed that he then owned only a small automatic, newly discovered evidence that in December, 1912, just prior to the killing, M., in payment of a debt, gave deceased a 38 black Colt’s pistol, and that neither of the witnesses testifying to this had ever disclosed their knowledge to any one until after the trial, was sufficient to entitle defendant to a new trial; it sufficiently appearing that no ■ reasonable diligence could have discovered their testimony at the time of the trial.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 319.]
    5. Criminal.Law (§ 942) — New Trial — Newly Discovered Evidence — Impeachment.
    Newly discovered evidence, available for impeachment only, is not of itself ground for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    6. Criminal Law (§ 938) — New Trial — Newly Discovered Evidence.
    Additional evidence of a witness who was present at the trial, and whom defendant knew was with deceased shortly before the killing, could not be regarded as newly discovered, so as to form the basis of an application for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    7. Homicide (§ 295) — Manslaughter—Acts Indicating Passion.
    A clause in an instruction submitting the offense of manslaughter, and stating as one of the several things which might be sufficient to show sudden passion the commission of any hostile act or acts toward defendant or his brother, or the crowd of which defendant and his brother were members, was improper, since hostile act or acts, if any, would apply only to the question of defendant’s claim of self-defense, and would not authorize a conviction of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    8. Criminal Law (§ 1139) — Appeai>-Recoed —Affidavits Filed after Appeal.
    Affidavits of grand jurors filed by the district attorney after the'case had been appealed could not be considered either by the trial court or the Court of Criminal Appeals, as provided by Code Cr. Proc. 1911, art. 916.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3000; Dec. Dig. § 1139.]
    Appeal from District "Court, Robertson County.
    Norman Henson was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    H. S. Morehead and J. L. Goodman, both of Franklin, and Woods & Harris, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

On January 17, 1913, the grand jury of Robertson county duly presented an indictment against appellant, alleging that on December 25, 1912, he, with implied malice, killed and murdered J. A. Prichard by shooting and hitting and striking him with a gun, and by hitting and striking him with some blunt instrument, a better name and description of which is to the grand jurors unknown, and by hitting and striking and cutting him with some unknown instrument. The term of court at which he was tried began June 18, 1913. At that time he and his attorneys both being present, in open court, his case was set for trial for June 30th following. On the morning of June 30tli his case was called for trial, and both parties announced ready. He was convicted of manslaughter, and the lowest punishment assessed.

We will discuss the questions briefed by appellant somewhat in the order presented by him in his brief.

By his motion for new trial, he complains of a short excerpt from the closing argument of the district attorney. He took no bill of exception to this at all. Neither did he ask any written charge from the court telling the jury to disregard it. He attached the affidavit of his attorneys and a considerable number of others to his motion for new trial showing that the district attorney used the language they claimed he used. The district attorney resisted by written answer appellant’s motion on this ground, and as a part thereof attached his affidavit disclosing particularly and fully what he did say and the circumstances under which he used any language complained of. The appellant’s affidavits do not dispute the district attorney’s affidavit of the facts and circumstances leading up to what they claimed is the objectionable matter. The language they complain of is this:

“They tell you that defendant did not intend to kill deceased. Who testified that he didn’t intend to kill him? Miss Bell Norris didn’t testify that he didn’t intend to kill him; neither did Priestly Thomas. Why didn’t they put some one on the stand who could testify that the gun that killed poor old man Prichard was accidentally discharged, and that Norman Henson did not intend to kill him?”

The district attorney’s affidavit shows this:

“That in my closing speech, among other statements, I used the following language, to wit: ‘Gentlemen of the jury, Mr. Morehead, one of the lawyers in this case, has argued to you that you cannot convict the defendant for a higher offense than aggravated assault, because the defendant did not intend to kill deceased, and that there was no evidence that he intended to kill him, and that there was nothing that would have kept him from shooting the deceased again if he had wanted to kill him. Now, you gentlemen of the jury know as well as I know that you can judge of a man’s intent only by his acts, by what he does. Upon whose testimony does Mr. Morehead base his statement that the defendant did not intend to kill old man Prich-ard? Miss Bell Norris, whom they put on the stand, did not testify that defendant did not intend to kill him, and neither did Priestly Thomas. They did not put J. D. Henson on the stand to testify what he knew about it, nor did they put Mrs. J. D. Henson on the stand. Why did they not put Elmer Norris, whom the evidence shows left the store with defendant and his brother with a gun, on the stand? There is no evidence that the gun which killed old man Prichard was accidentally discharged, and that Norman Henson did not intend to kill deceased. Wesley Padgitt testified that defendant struck deceased on the head with something after the gun had fired, and remarked when he did so, “X reckon you have got enough.” Does not that show the intent of defendant’s mind?’ The above remarks were made in answer to the argument made by Mr. Morehead that there was no evidence which showed that defendant intended to kill deceased.”

All tbis occurred in tbe presence and bearing of tbe trial judge. By bis overruling tbe motion for new trial on tbis ground, it must be presumed that be believed tbe affidavit of tbe district attorney, and that it was in accordance with bis own knowledge of wbat and bow it occurred. As tbe matter it presented it shows no reversible error.

Tbis court, through Judge Davidson, in Sample v. State, 52 Tex. Cr. R. 506, 108 S. W. 685, 124 Am. St. Rep. 1103, said:

“It is seriously urged that the remarks of the county attorney, to wit, ‘There has been no witness upon this stand to contradict the testimony of this girl, Kittie Green,’ was an allusion to appellant’s failure to testify in his own behalf. We do not believe that this is such an allusion to the failure of appellant to testify in his own behalf as is contemplated by the statute, if in fact it was such an allusion at all. As a matter of fact, there was no witness on the stand to directly contradict Kit-tie Green in regard to this matter. The defendant could have taken the stand, but did not. Scroggins was in a different part of the same room; but Kittie Green says that he could not have seen her at the time that appellant assaulted her, though he was visible to her. To give the statute such a construction as urged by appellant would be tantamount, practically, to almost preventing a discussion of the case with reference to testimony of the state’s witness, when only one witness was used; defendant being the only other witness who could testify to the same facts.”

There are many decisions of tbis court to tbe same effect. In the case of Dink v. State, 164 S. W. 987, decided February 18, 1914, we bad occasion to review tbis question and therein state tbe principles applicable thereto and cite some of tbe cases. See, also, Gatlin v. State, 163 S. W. 428, decided January 21, 1914. See, also, on a like question, Cooper v. State, 162 S. W. 366, and Coffman v. State, 165 S. W. 939, decided March 18th.

Appellant’s next ground is that tbe court should have granted him a new trial because of newly discovered testimony. Tbis point was likewise contested by tbe district attorney. Tbe substance of appellant’s motion is because of newly discovered evidence of Thomas Shafer, J. H. Winn, A. J. Kent, Dudley Beene, and George Railey; that if they bad been present they would have testified, respectively, as shown by their affidavits attached to and made a part of bis motion; that tbe testimony of each “is newly discovered, and that it was not known to defendant or either of bis attorneys that either of said witnesses would testify * * * until after bis trial and conviction, although be and bis attorneys have used all due diligence in tbe premises”; that said testimony is material to bis defense, because tbe state denied that deceased bad a pistol at tbe time be was killed; that he did not then own and bad no pistol, except a small automatic. Appellant swore that tbe ground of bis said motion was true and correct. Neither of bis attorneys made any affidavit whatever. He and no other testified or showed wbat diligence bad been used to procure tbe said testimony or tbe attendance of said witnesses, or either of them. Neither appellant nor bis attorney disclosed what efforts they had made to learn of the testimony of these witnesses, or either of them, nor how nor when they discovered, other than appellant’s statement in his motion for new trial above, that it was not known to him or either of his attorneys until after the trial and conviction. The testimony of the witnesses Winn and Kent could have been used and was admissible for no other purpose than to impeach the state’s witness Padgitt. The affidavit of Beene and Bailey was solely to the effect that some time in December, 1912, Bailey, in Marquez, in payment for a debt he then owed • deceased, let him have a 38 black Oolt’s pistol, and that neither of them told this to any one until after appellant’s trial. It is in no way shown that both of these witnesses were not present at the time of the killing, or where they then were or had been both before and after the killing. Shafer’s affidavit was to the effect that, on the night of the killing, shortly prior thereto, he saw deceased have a black pistol, a big pistol, in his hand at Mr. Buchanan’s; that he had seen bigger pistols and less pistols; that he never told any one this before appellant’s trial, not even the grand jury when he was before that body, because the grand jury did not ask him. Appellant’s motion for new trial was filed and acted upon by the court on July 14th, at which time, it seems, these affidavits were considered by the court. From appellant’s bill of exceptions and the court’s qualification of his action on motion for new trial, it appears that the court, at the suggestion of the district attorney, stated that when presented to him he would qualify appellant’s bill of exception as to the witness Shafer by stating that Shafer was present, sworn in, put under the rule by the state as a witness in the cause when the case went to trial, and that so far as he knows remained in attendance with the other witnesses, and that after the trial was concluded he proved up his attendance as such witness in order to get his fees; that when on the bench preparing to take action in another case one of appellant’s attorneys said to him, if he was going to qualify the bill as stated, he ought to be allowed to file affidavits showing that said witness refused to talk to the appellant or his counsel before or at the time of the trial, and that the court stated to the attorney at the time that he would allow him to file such affidavits afterwards; that during all this time the district attorney was present, talking, taking a part, and making suggestions, but the court, unfortunately, could not remember all that the district attorney then said; that on the morning after the hearing of said motion for new trial the district attorney insisted that, as appellant’s attorneys had the right to file affidavits, the court had also granted him such right, and that he be allowed to then file the affidavit of D. L. Dodson and S. J. Beall, two members of the grand jury returning said indictment, which the court permitted. That affidavit is to the effect that said Shafer was summoned and appeared to testify before the grind jury, and he swore that on the night of the killing, a short time before deceased was killed, deceased came to the house of Buchanan, where he (witness) was staying, and that he did not see a pistol on or about the person of deceased, and that, if deceased had a pistol, he did not know it. Appellant’s point and bill on this subject is that it was too late, after the action of the court in overruling the motion for new trial, the next day, in the absence of appellant, to permit the filing of the grand jurors’ affidavit, and in effect that it could not be considered for any purpose.

Newly discovered evidence is made one of the grounds which authorizes the lower court to grant a new trial. O. O. P. art. 837, subd. 6. This question has been before this court in a very large number of cases. What we said in Gray v. State, 144 S. W. 284, is applicable here. We quote it:

“It is well established by the decisions of this court that a motion for new trial on this ground. is closely scrutinized, and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal, unless it be apparent that the trial court abused its discretion to the prejudice of appellant. Burns v. State, 12 Tex. App. 270; Bell v. State, 1 Tex. App. 598; Templeton v. State, 5 Tex. App. 398; Shaw v. State, 27 Tex. 750; West v. State, 2 Tex. App. 209; Terry v. State, 3 Tex. App. 236.
“It is also well established that in a motion for new trial on this ground it is incumbent on the appellant to satisfy the court (1) that the evidence has come to his knowledge since the former trial; (2) that it was not owing to want of due diligence on his part that it was not discovered and did not come to his knowledge before the trial; (3) that it is competent and material evidence, and not merely cumulative, corroborative, or collateral; (4) that it will probably produce a different verdict if a new trial is granted ; (5) that it is not simply for the purpose of impeaching a former witness. If the application is defective in establishing any one of these essentials, a new trial should be refused. Fisher v. State, 30 Tex. App. 502, 18 S. W. 90; West v. State, supra; White v. State, 10 Tex. App. 167; Shaw v. State, supra; Duval v. State, 8 Tex. App. 370; Gross v. State, 4 Tex. App. 249; Hutchinson v. State, 6 Tex. App. 468.”

Tested by these well and long-established rules and authorities, it is our opinion that the record does not show that the trial judge has abused the discretion committed to him which would authorize this court to reverse this cause on said ground. Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322; Halliburton v. State, 34 Tex. Cr. R. 410, 31 S. W. 297; Williams v. State, 45 S. W. 572.

Appellant in various ways contended that the murder statute was repealed by the act of April 3, 1913, p. 238, when article 1140 et seq. of the Penal Code was amended. This has been so many times decided against appellant that it is unnecessary to discuss it again or cite the cases. Besides this, appellant "was convicted of manslaughter, with the lowest penalty assessed. Hence error, if any, of that hind committed would not avail him on this appeal.

He requested some special charges. He also complained of some particular word in the court’s charge; also of some few words in some paragraphs thereof and sometimes of whole paragraphs. Most of these matters are not raised nor presented in such a way as. that this court can consider them under the long and uniform line of decisions to that effect. Yet we have carefully considered all of the objections to the court’s charge, refused special charges, and, in our opinion, none of them present any reversible error. There are such a large number of them we deem it unnecessary to even tahe them up and state or discuss them. The court’s charge; in our opinion, presented the case in favor of' appellant on every point which the evidence raised in his favor, and while the testimony was conflicting on some material points, there was nothing' in the court’s charge so complained of that.would authorize a reversal, nor in the refusal of the court to give his special charge. And wherever the court submitted any question for a finding in favor of the state, it required the jury to believe beyond a reasonable doubt every essential in favor of the state before they could find against the appellant. When the charge is considered, it specifically meets eyery question complained of by appellant.

While a very large number of grounds of tljg motion for new trial are made, none of them present any error or any question that needs discussion. The judgment will be affirmed.

DAVIDSON, J., absent at consultation.

On Motion for Rehearing.

Upon a reconsideration of this case we have concluded that we were in error in holding that the lower court committed no error in overruling appellant’s motion for new trial on the ground of newly discovered evidence. We believe the evidence of Beene and Railey was newly discovered evidence, that it was material, that it might affect the result of another trial favorably to appellant, and that his motion and affidavits are sufficient to show that no reasonable diligence could have discovered their testimony before the trial. The testimony of Winn and Kent, being for impeachment purposes only, would not of itself authorize a new trial, even though newly discovered. Neither would that of Shafer, because he was present at the trial, the appellant knew that he was with the deceased just shortly before the killing, and he cannot await the result of a trial and then claim that what he would testify would be newly discovered; but the testimony of the said three witnesses Shafer, Winn, and Kent, although not sufficient of and ■ within itself to authorize a new trial, yet emphasizes the importance of the testimony of said Beene and Railey.

As the case must be reversed, there is another matter we desire to call to the attention of the lower court. In the twelfth subdivision of his charge submitting to the jury the question of manslaughter for a finding, the court among other things in enumerating what might be sufficient to show sudden passion, etc., has this:

“Or committed any hostile act or acts towards Norman Henson or his brother, or to the crowd of which Norman Henson and his brother were members.”

This should be omitted from that charge. The hostile act or acts, if any, would go to the question of appellant’s claimed self-defense, and in no event 'would they authorize the jury to find the defendant guilty of manslaughter. We think it unnecessary to discuss this question, but merely call attention to it so that these words may be omitted from this charge on another trial.

In the original consideration of this case and the opinion first handed down affirming it, we did not consider, and did not intend to imply that we considered, the affidavits of the grand jurors filed by the district attorney, after the case had been appealed. The statute (article 916, O. O. P.) in effect, as well as the many decisions of this court, prohibit the consideration by this court or of the lower court of any such matters. We presume, of course, the judge of the lower court did not consider them because they were filed after the ease had been appealed and after he had acted on the motion for a new trial. The fact that these affidavits or any other extraneous matter is filed in the lower court after the case is appealed would not present any reversible error, whether filed with the permission of the court or without it.

We adhere in all other matters to the original opinion. All questions therein discussed and decided, other than what we now call attention to, were correctly decided.

For the errors of the court in refusing a new trial on the ground of newly discovered evidence, and in said charge, the original af-firmance is hereby set aside, and the judgment is now reversed, and the cause remanded.


author: HARPER, J.

text:
    Ex parte WINFIELD.
    (No. 3184.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.)
    Infants (§ 69) — Punishment—Age of OffendeR — Issues.
    On a trial, after Acts 33d Leg. c. 112, relating to juvenile offenders, became operative, the issue of the age of an offender must be disposed of at the trial, and where the officer making an arrest was informed that accused was not within the act, a judgment finding him guilty of misdemeanor theft and assessing his punishment at a fine and imprisonment is not void.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 176, 177; Dee. Dig. § 69.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Application for habeas corpus by John Winfield for bis discharge from imprisonment on' conviction for misdemeanor theft. From a judgment denying relief, relator appeals.
    Affirmed.
    C. E. Dane, Asst. Atty. Gen., for-the State. >* ■

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Relator was convicted upon pleas of guilty in four different cases in which he was charged with misdemeanor theft. In each case his punishment was assessed at imprisonment in jail for 30 days and a fine of $25 — the total imprisonment aggregating four months and fines, .including cost, $168.80.

The record discloses that the commitments in the cases were issued July 7, 1913, but does not disclose the date of the offenses nor the date of the trial. In the judgment remanding the relator, Judge Buck, who heard the application, recites:

“This cause coming on this day to be heard upon a writ of habeas corpus, and the court having heard the evidence and the argument in said cause, and being of the opinion that the relator is legally and rightfully held by the proper authorities, files the following finding of fact and conclusions of law in said cause:
“Findings of Fact.
“The court finds that the relator is, upon his own admission, guilty of the crime's with which he is charged, upon which he has been convicted and for which he is now serving a term for fines and jail sentences.
“The court finds that the relator is now, and was at the time of the commission of the offenses for which he is now punished,' over the age of 16 years.
- “Conclusions, of .Law.
“The court concludes as a matter of law that ‘the relator is legally and rightfully restrained of his liberty, and is in the custody of the proper authorities.
“Judgment of the Court.
“It is therefore ordered, adjudged, and decreed by the court that the relator be and he is hereby remanded to the custody of the sheriff of Tarrant county, Texas, to be'held by the said sheriff until discharged in accordance with the laws of the state of Texas.”

Rélator and his stepfather and another witness swear that he was born in 1899, making him under 16 years of age at the date of the commission of the offenses. The officer who arrested relator testified that relator told him he. was 18 years old when he was arrested, and relator said the reason he did so he did not want to be sent to the reformatory. The question as to age was not raised on the original trial of the eases; relator entering a plea of guilty in each case.

No brief has been filed by relator’s counsel, and we presume the only ground upon which he seeks to have relator released is that relator was under 16 years of age at the time of the commission of the offense. So the sole question presented is: If relator was under 16 years of age, would that fact render the judgment, finding him guilty of misdemeanor theft and assessing his punishment at a fine and imprisonment, void? He admits he filed no such plea, but at that time stated to the officers he was 18 years of age, to keep from being sent to the reformatory. We are of the opinion that, if the trial was had after chapter 112 of the Acts of the 33d Legislature became effective, which is not made clear by the record, if .there is a question as to the age of the offender, this issue shall be presented and disposed of at the time of the trial. It appears in this case the officer making the arrest did make inquiry, and all the information he received at that time would not bring relator within the provisions of the act; and we are therefore of the opinion that the judgments rendered by the county court are not void, and Judge Buck did not err in remanding the relator. If a case should arise where it is made clear that the defendant was in fact within the age prescribed by that statute, he is not entitled to be discharged, but he should be held and proceeded, against under the' provisions of that act.

■ The judgment is therefore affirmed.


text:
    HAWKINS v. STATE.
    (No. 3175.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.)
    1. Criminal Law (§ 841) —Instructions— Objections.
    Since the amendment to Code Cr. Proc. 1911, art. 737, by Act April 5, 1913 (Acts 33d Leg. e. 138), objections to the charge of the court not made in writing prior to the reading of the charge to the jury cannot be considered.
    [Ed. Note. — For other cases, see. Criminal Law, Cent. Dig. § 2022; Dec. Dig. § 841.]
    2. Criminal Law (§ 1172) — Appeal—Harmless Error.
    In a criminal prosecution, where accused introduced no evidence which would authorize the jury to suspend his sentence, error in the charge submitting his plea for a suspension of sentence is harmless.
    '■ [Ed.' Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163,-3169; Dec. Dig. § 1172.]
    3. Criminal Law (§ 942) — Trial — New Trial — Newly Discovereb Evidence.
    A new trial cannot be awarded on the ground of newly discovered evidence which would only impeach the state’s witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316,.2331, 2332; Dec. Dig. § 942.) ...
    Appeal from District Court, Waller County ; Sam’l J. Styles, Judge.
    ' Sam Hawkins was convicted of assault with intent to murder,- and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For .other cases see same topic and section -NUMBER in Dec. -Dig. & Am’.. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was convicted for. an assault with intent to murder William Sims, and his punishment assessed at three years’ confinement in the penitentiary.

On the night of August 9,1913, the negroes had a supper at Bob Riley’s. A fight there occurred between appellant and Jim Roberts, in which Jim Roberts cut and broke appellant’s nose and also cut him on the arm. William Sims was not at the supper, but passing there, Roberts, in leaving, had Sims to get in his buggy and go with him. Sims and Roberts were brothers-in-law. Sims went on to his home, where he resided with his wifd and daughter. The record does not disclose what became of Roberts. Appellant and his brother, Will Hawkins, and Napoleon Arring-ton thought Sims was concealing or protecting Roberts in his house. George Lewis and his wife, who lived across the street from Sims, and in about 80 feet, both, in effect, swore that they heard loud talking over at Sims’ and got out in their yard; that they saw said Will Hawkins, appellant, and Ar-rington near Sims’ house; that they saw these three parties go up to and away from Sims’ house about three different times and then return; that Sims struck a light in his house when one of the three persons shot? into Sims’ house, and they went over to Sims* and found that he had been shot: that both Will and Sam Plawkins had guns. George Lewis swore that it was Will Hawkins who fired into Sims’ house; that Sam was some 10 or 15 steps away and fired his gun up in the air. Nannie Sims, William’s wife, swore that Will and Sam Hawkins and said Arring-ton came to their house and called for Jim Roberts; that her husband told them Roberts was not there; then they said they wanted William Sims; that they cursed and abused William, nerself, and Roberts; that they threatened to blow her head off; Will Hawkins had a Winchester, and Sam had a gun; she did not see Arrington have a gun; that she, her husband, and daughter were all in one room when these parties were cursing and calling for Roberts; that her husband told them he would light a lamp and let them come into the house and see for themselves; that when he struck a match she and her daughter went out of the room; that Will Hawkins fired into the house, the ball coming in through the wall near the window and struck her husband in the thigh. Her daughter, Pearl, swore that she, her father, and mother were in one room when these parties came to the house; that when her father struck a match she and her mother ran out of the room; that Will Hawkins was threatening to shoot into the house was the reason they ran out; that she saw the three parties walking off 30 or 40 feet from the house after the shooting. William Sims swore that said three parties came to his house, looking for Roberts, and demanded that he should put him out; that he protested that Roberts was not in the house and offered to strike a light, let them come in, . and themselves search for him; that Will and Sam Hawkins were two of the parties at his house at the time of the shooting; that when he struck the light Will Hawkins fired into his house, the ball coming through the wall, striking him in the thigh, and passing entirely through it; that Will and Sam Hawkins were the parties at his house at the time this shooting occurred; that he and the Hawkins had been good friends before that. The constable swore that he went to Sims’ house the next morning after the shooting and saw a bullet hole in the wall near the window in the room where Sims was shot the night before, and he saw another small bullet hole in the top of the front door, higher than a man’s head. Dr. Searcy swore that William Sims was shot the night before, the ball passing through the fleshy part of his thigh; that it was a dangerous wound; that he saw the bullet hole through the wall, near the window; that he waited on William Sims for his wound. Sims is shown to have been laid up several weeks from his wound. Appellant testified, denying that he was present at the time Sims was shot. He swore himself, and had witnesses to testify, that when he was wounded at Riley’s supper one of his friends took him to his house near by, and that he remained there too badly wounded to go to Sims’ house, and did not go and was not present when Will Hawkins shot Sims. In other words, his defense was alibi. The evidence by him and his witnesses, if believed, would have been sufficient for the jury to have acquitted him on that account. On the other hand, several witnesses swore positively and identified him as being present — one of the parties with Will Hawkins when they were demanding Roberts, and was a principal in the shooting of Sims. All this was for the jury. The court in a clear charge, which is not complained of, submitted appellant’s defense of alibi; also in submitting the case required the jury to believe beyond a reasonable doubt every essential fact to show that appellant was a principal in the shooting of Sims before they could convict him.

No objection in writing whatever is shown by appellant to have been made to the court’s charge before it was read to the jury. Appellant has some objections to the court’s charge first made in his motion for new trial. These objections cannot be considered under the act of April 5, 1913, amending article 737 and others of the O. C. P.

No plea for suspended sentence appears in the record; but the court stated in his charge that there was such plea, and submitted that question to the jury for a finding. The jury, by the verdict, did not suspend his sentence. Appellant has a bill of exceptions to a portion of the court’s charge on that subject. The state urges that that bill cannot be considered, because no objection in writing was made to the court’s charge prior to the time the court read his charge to the jury. The bill, which was approved and filed long after the court adjourned for the term, merely states “that on the trial of the above cause” he objected to the latter portion of the court’s charge on suspended sentence, claiming that it was on the weight of the testimony. We think the state’s objection to the consideration of this charge is well taken; but even if we could consider it, and it had been made in time, it shows no reversible error, because appellant introduced no evidence whatever to authorize the jury to suspend the sentence. He himself did not swear that he had never been before convicted of a felony, and no other witness so swore. In fact, as stated, he offered no proof whatever to authorize the suspension of his sentence. So that, even if the judge’s charge on this subject was subject to criticism as being on the weight of the evidence, no injury is shown to appellant.

One ground of appellant’s motion for new trial is his claim of newly discovered testimony. His motion on this ground is wholly insufficient. Gray v. State, 144 S. W. 288, and authorities there cited. Besides, the claimed newly discovered evidence could have been used solely for the impeachment of one of the state’s witnesses, and by all the authorities this presents no ground for a new trial, and even would have been no ground for a continuance where diligence and the absence of the witness is shown.

Nothing else is presented which requires any discussion. No reversible error is shown, and the judgment is affirmed.


text:
    JARROT v. STATE.
    (No. 3155.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    On Motion for Rehearing, June 26, 1914.)
    1. Criminal Law (§ 1028) — Appeal—Scope of Review.
    Where no exceptions were reserved to the introduction of testimony, and no objections were made to the court’s charge, or any special charges reauested, the only question reviewable on appeal is the sufficiency of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2619, 2620; Dec. Dig. § 1028.]
    On Motion for Rehearing.
    2. Criminal Law (§ 1208) — Punishment— Indeterminate Sentence.
    Where accused was convicted of violating the local prohibition law, he was entitled to an indeterminate sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3281-328T, 3289-3295; Dee. Dig. § 1208.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Hugh Jarrot was convicted of violating the local prohibition law, and he appeals.
    Sentence reformed on rehearing, and motion overruled.
    T. H. Yarbrough, of St, Joe, and J. S. Jameson, of Montague, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of violating the local prohibition law, and his punishment assessed at two years’ confinement in the state penitentiary.

No exceptions were reserved to the introduction of testimony, no objections were made to the charge of the court when submitted to counsel, and no special charges were requested. Consequently the only question presented for a review is the sufficiency of the testimony.

The facts and circumstances in evidence fully sustains the verdict, and the judgment is affirmed.

On Motion for Rehearing.

The only ground stated in appellant’s motion for rehearing complains of the action of the court in sentencing appellant to a definite term of imprisonment, instead of passing on him an indeterminate sentence. Our attention was not called to this on the original hearing, and as appellant is correct in his contention, the sentence will be reformed and corrected, so as to hereafter read that appellant shall be confined in the penitentiary for a term not less than one nor more than two years, and the clerk of the court will enter up a proper order, correcting and reforming the sentence.

Sentence reformed, and motion for rehearing overruled.


author: DAYIDSON, J.

text:
    RUSSELL v. STATE.
    (No. 3160.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.)
    1. Criminal Law (§ 1099*) — Statement of Facts — Settlement, Signing, and Filing.
    A statement of facts, not signed by the attorneys, nor approved by the court, will not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. § 1099.*]
    2. Criminal Law (§ 1092*) — Bill of Exceptions — Settlement, Signing, and Filing.
    A bill of exceptions, which does not show that it was filed in the trial court, though approved by the judge, will not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.*]
    Appeal from Milam County Court; John Watson, Judge.
    John Russell was convicted of misdemean- or theft, and he appeals.
    Affirmed.
    Lyles & Lyles, of Cameron, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of misdemeanor theft. The statement of facts found in the record was not signed by the attorneys, nor approved by tbe court. Therefore it cannot be considered.

There is a bill of exceptions in the record also; but this does not show to have been filed in the trial court, although approved by the judge. As these matters are presented, they cannot be considered .by the court, and in their absence the matters urged for reversal cannot be reviewed.

The judgment is affirmed.


text:
    MAGEE v. STATE.
    (No. 3164.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.
    Rehearing Denied June 26, 1914.)
    1. Witnesses (§ 245) — Examination—Repetition.
    In a prosecution for rape on a girl under 15 years of age, where a witness had testified fully as to his knowledge of the understanding and general repute in the family that prosecu-trix would be 17 her next birthday, a further question to him as to the rumor as to her age was properly excluded as being a repetition.
    [Ed. Noto. — For other cases, see Witnesses, Cent. Dig. §§ 827, 828; Dec. Dig. § 245.]
    2. Witnesses (§ 330) — Cross-Examination —Scope.
    Where a witness testified as to a statement of prosecutrix as to her age tending to show that she was over the age of consent at the time of the alleged rape, and that such statement had been made to him in the summer time, it was proper for the state on cross-examination to show that the witness had been in jail during that summer.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ .1106-1108; .Dec. Dig. § 330.]
    3. Criminal Law (§ 958) — Motion eob New Trial — Affidavit.
    A motion for a new trial on the ground that defendant had learned that he could prove by the father of prosecutrix that she was over the age of consent prior to the alleged offense was properly overruled, where the motion was not sworn to by any person, and there was no attached affidavit that the father would so testify, or any reason why, if he would so testify, an affidavit to that effect was not so attached.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. § 958.]
    Appeal from District Court, Montague County; R. H. Buck, Judge.
    Burnam Magee was convicted of rape on a girl under 15 years of age, and fie appeals.
    Affirmed.
    W. S. Jameson, of Montague, for appellant. C. E. Lane, Asst. Atty. Gen., for tfie State.

      For other oases see same topic and section NUMBER in-Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

■ Appellant was prosecuted and convicted of rape on a girl under 15 years of age, and fiis punisfiment assessed at 5 years’ confinement in tfie state penitentiary.

Tfiere are but two bills of exceptions in tfie record; tfie first complaining that tfie court erred in not permitting counsel to ask tfie witness Jofin Magee wfiat wás tfie understanding, rumor, and general talk in tfie Blackburn family as regards tfie girl’s age. In approving tfie bill the court says that:

“The witness had already testified fully and freely as to his knowledge from the understanding and general repute in the family, and that the girl would be 17 her next birthday, and the court sustained the objection on the ground that it would be but a repetition.”

As thus qualified tfie bill presents no error.

Tfie other bill complains that while cross-examining Elmer Cunningham tfie state was permitted to elicit from tfie witness that fie had been in jail in Oklahoma charged with “bootlegging” — a term sometimes used-for illegally selling intoxicating liquor in prohibition territory. In approving tfie bill tfie court says:

“The witness having testified to a statement of Ethel Austin, as to her age, tending to show that she was over the age of consent at the time of the alleged offense, he stating that the time of said statement was in the summer time, for the purpose of showing that he was and could not have been present at tfie time and place of the alleged conversation with Ethel Austin as to her age, the state was permitted to ask him if he was in jail in Oklahoma serving a sentence for bootlegging during the months of June, July, and August, 1911, the same summer in which he claimed to have heard the statement alleged to have been made by Ethel Austin.”

Under sucfi a state of facts tfie court did not err in admitting tfie testimony.

Tfie only otfier matter presented by tfie record that need be mentioned is an allegation in tfie motion for new trial; it being tfie contention that “tfie defendant has learned that fie can prove by tfie father of the girl that she was 15 years of age on March 3d prior to tfie date of tfie alleged offense. This motion is sworn to by no person. Tfie affidavit of no person is attached to the motion that tfie father of tfie girl would so testify. No reason is given why the affidavit of the-father, if fie would so testify, is not attached, and, tfiere being no affidavit of any person that tfie father would so testify, tfie court did not err in overruling tfie motion on this ground.

Tfie judgment is affirmed.


text:
    DUKES v. STATE.
    (No. 3152.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    Rehearing Denied June 26, 1914.)
    1. Criminal Law (§ 596) — Continuance-Absence of Witnesses.
    A continuance on the ground of the absence of a witness who will merely impeach a state’s witness is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§' 1328-1330; Dec. Dig. § 596.]
    2. Criminal Law (§ 942) — New Trial — Newly Discovered Evidence.
    A new trial on the ground of newly discovered evidence which will merely impeach a state’s witness is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]

      3. CRIMINAL Law (§ 1099) — Statement of Facts — Time of Filing.
    Statement of facts must be filed during term time, or the same cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    4. Criminal Law (§ 1144) — New Trial — Rulin g — Review .
    Where the statement of facts, showing the testimony heard on motion for new trial on the ground of newly discovered evidence, was not filed in time, the court on appeal must presume that the trial court was justified in denying a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-27S1, 2901, 3016-3037; Dec. Dig. § 1144.] •
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Frank Dukes was convicted of manslaughter, and he appeals.
    Affirmed.
    Beard & Davidson, of Marshall, and Futch & Tipps, of Henderson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      Eor other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Under an indictment for murder, appellant was convicted of manslaughter, and assessed the lowest punishment. We have carefully read and studied the statement of facts. The great preponderance of the evidence clearly shows appellant’s guilt — in fact, would have justified a higher offense and a greater punishment. Doubtless the skillful management of his able attorneys succeeded in preventing this.

Appellant made no motion for a continuance. In his motion for new trial he claimed that he was promised the attendance of a negro woman as a witness and that she would have impeached one of the state’s material witnesses. The record shows that by any ordinary diligence she could have been procured and testified on the trial. It has so ihany times been held that, even where diligence has been used, the court commits no error in refusing a motion for continuance because of the absence of a witness whose testimony would merely impeach another witness, and that such evidence cannot be ground for a new trial as newly discovered eviden.ee, that it is unnecessary to cite or collate the cases.

The only other ground for a new trial is that after the trial appellant discovered new evidence. He swore to his motion on that ground. He did not attach Jhe affidavit of any one, nor of any of the claimed witnesses by whom he expected to prove newly discovered evidence in support of his motion. However, the court, in considering his motion for new trial on this ground, heard a large number of witnesses, and heard all those, it seems, whom he presented by whom he would show newly discovered evidence, and after hearing all this the court overruled the motion.

There is in the record what purports to be a statement of the facts showing all the testimony the court heard in considering appellant’s motion for new trial. It has been so uniformly held by this court, and so well established, that such statement of facts, however preserved, must be filed during term time in order to be considered by this court, that we deem it unnecessary to collate the authorities; but see Hoskins v. State (Civ. App.) 163 S. W. 427, for some of the cases. The term of court at which this case was tried adjourned February 7, 1914. This purported statement of facts of the evidence heard on the motion for new trial was not approved nor filed in the lower court until May 1, 1914, nearly 90 days after adjournment, so that said statement cannot be considered by this court, and we must presume that the court was clearly justified in refusing a new trial on the ground claimed. As a matter of fact, without observing that said purported statement of facts was not filed in time, we read it, and, even if we could consider it, clearly it justified the court in refusing a new trial on the claimed ground.

There is no question but under the authorities appellant’s motion for a new trial on the ground of newly. discovered evidence in no way meets the requisites established by law. For other authorities, see section 1149, White’s Ann. C. C. P., and Gray v. State (Cr. App.) 144 S. W. 284. Any number of cases could be cited showing the court committed no error in refusing a new trial in this ease.

The judgment is affirmed.


text:
    TIPTON v. STATE.
    (No. 3172.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied June 26, 1914.)
    1. Physicians and Surgeons (§ 6) — Practicing Without Authority — Opticians.
    A person who traveled over the country testing eyes, with implements for so testing, etc., and taking orders for eyeglasses, was liable for the occupation tax under Rev. St. 1911, art. 7355, § 6, levying such a tax on itinerant physicians, surgeons, oculists, or specialists of any kind traveling from place to place in the practice of his profession.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dec. Dig. § 6.]
    2. Physicians and Surgeons (§ 6) — Practicing Without Authority — Evidence-Admissibility.
    In the prosecution of an alleged optician for practicing without license, witnesses were properly permitted to testify that accused stated to them that the glasses he offered were “medicated” glasses.
    [Ed. Note. — For other cases, see Physicians and Surgeons, Cent. Dig. §§ 6-11; Dee. Dig. § 6.]
    3. Jury (§ 127) — Impaneling foe Trial-Objections and Exceptions.
    It was not error for the court to overrule accused’s challenge to a juror because his name, was misspelled, made after the jury was impaneled, the complaint read, and part of the testimony .adduced; since the objection should have been made when the list was furnished.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 556-558; Dec. Dig. § 127.]
    4. CRIMINAL Law (§ 338) — Evidence—Admissibility.
    • In a prosecution of an optician for practicing without a license, the court properly refused to permit accused to show that a third party, who was not a witness, had employed an attorney to assist in the prosecution of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788,. SOI, 855; Dec. Dig. § 338.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    John F. Tipton was convicted for unlawfully practicing as an optician without a license, and he appeals.
    Affirmed.
    Fritz R. Smith, of Snyder, and Will S. Payne, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted for unlawfully engaging in, pursuing, and following the occupation of a specialist in the line of an optician, traveling from place to place in the practice of his profession without first having obtained a license therefor.

Bob Browning testified that appellant came to his house and made a trade with him to drive him over the county for 21 days, and he did so; that appellant—

“was taking orders for glasses from samples of lenses he had with him to be sent to the party who ordered. X bought two pair of glasses from him, one of them was for my mother. Ies; I went with him to a number of houses, spent several days in Ira neighborhood, in Scurry county, some 15 miles south of where I live. He also worked the country west of Snyder between Ira and where I live. I also went with him over in the Polar neighborhood, in Kent county. 1-Ie told me he had worked up about Spur, in Dickens county, and in Haskell county and about Stamford, in Jones county; also said he had been in the eye business for several years. He did tell me that he was an optician, and had been for several years.”

J. I. Burrow testified:

“I know this defendant John F. Tipton; he took my wife’s measurement for what he called a pair of medicated glasses some time during the month of January, 1914. 'He represented himself to be an optician; said his glasses, by virtue of being medicated, would cure the headache. This happened in Scurry county, state of Texas. He had implements for testing eyes, and tested my wife’s eyes. He said he had been following the business of an optician for six or seven years.”

A number of other witnesses testified that appellant came to their homes; that he had with him instruments for testing the eyes and fitting glasses; that he would sell the glasses, taking the money therefor; that he stated he would send for the glasses and have them delivered, and they would come in about ten days.

These facts would, within contemplation of the law, make him liable for the occupation tax levied by section 6 of article 7355 of the Revised Civil Statutes, and the court did not err in so holding. The evidence conclusively shows that appellant had not paid the tax levied by this provision of the law. .

We have carefully read the charge of the court, and it is not upon the weight to be given the testimony, as is contended by appellant. The term “optician” is sufficiently defined in the special charge given, and it was not necessary to give the other special charge requested in regard thereto. The court quoted the definition of “optician” as given in Century Dictionary.

[•2] Some of the witnesses testified that appellant stated to them that the glasses he offered them were “medicated glasses.” Appellant objected to this testimony, but the court committed no error in admitting the testimony. If he had with him different character of lenses or glasses with which he fitted the eyes, and stated to some that they-needed “medicated glasses,” and he could fit their eyes with them, it would be permissible for the witness to so state.

As to the juryman T. J. Blackburn, the court committed no error in overruling his challenge to the panel. If the clerk improperly spelled the name, the appellant should have objected when the list was furnished, and not have waited until after- the jury had been impaneled, complaint read, and part of the testimony adduced. Mr. Blackburn had been regularly summoned, as shown by the qualification of the court, and, if appellant had objected, at the time the list was delivered to him, to the juror on account of the misspelling of the name, the court could then have had the clerk correctly spell the name on the list.

As Mr. Towle was not a witness in the case, the court properly held that it was immaterial whether or not Towle had employed an attorney to assist in the prosecution of the'case. Had Towle been a witness, the testimony would have been admissible as affecting his interest and bias.

We have carefully read the charge of the court, and it sufficiently and clearly presents the issues; therefore it was not necessary to give the special charges requested. Some of the special charges do not present correct propositions of law, and were properly refused, while the others were fully covered in the charge as given.

The judgment is affirmed.


text:
    ROBERTS v. STATE.
    (No. 3090.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    Rehearing Denied June 26, 1914.)
    1. Criminal Law (§ 1099) — Appeal—Bills of Exception and Statement of Facts— Filing. ,
    Where the time for filing the bills of exception and statement of facts expired January 22d, and they were not filed until February 9th, no sufficient exeuse appearing therefor, the judgment must be affirmed.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dee. Dig. § 1099.]
    2. Cbiminal Law (§ 1099) — Appeal—Statement of Facts — Filing—Excuses fob Delay.
    That the stenographer made affidavit that the delay in the preparation of the statement of facts was occasioned by his wife’s sickness was not a sufficient excuse for not filing a statement in time, as appellant should have manda-mused the stenographer, or his attorneys should have prepared a statement as permitted by Stenographer’s Act (Acts 31st Leg. [1st. Ex. Sess.] c. 39) § 13, especially as the stenographer’s affidavit showed that he was in attendance at court every day.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    3. Cbiminal Law (§ 1099) — Appeal—Bill oe Exceptions — Necessity.
    It is the imperative duty of the appellant and his counsel to secure the approval of the judge to bills of exception, and to see that they are filed in time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Jim Roberts was convicted of murder, and he appeals.
    Affirmed.
    Walter Collins and Shurtleff & Cummings, all of Hillsboro, and Williams & Williams, of Waco, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

      3?or other oases see same topic and section NUMBER >n Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

This is the second appeal in

this case, the opinion on the former appeal being reported in 156 S. W. 65. On this trial appellant was again convicted of murder, and his punishment assessed at 25 years’ confinement in the state penitentiary.

Neither the bills of exception nor the statement of facts were filed until after the time allowed by law for such papers to be filed. The verdict in this case was rendered on October 6th. The motion for new trial was overruled on October 24th, while neither the bills of exception nor the statement of facts were filed in the trial, court until February 9th; the time having elapsed when they could be legally filed on January 22d, even if we do not consider the irregularity in obtaining the orders for extension of time. The stenographer files an affidavit that the reason for the delay in the preparation of the statement of facts was occasioned by the sickness of his wife, and this would, perhaps, have formed ample justification for us to consider same if section 13 of the stenographer’s act had not provided for the parties to make out a statement of facts independent of the stenographer’s notes, as was formerly done. When the time was about to elapse, it was their duty to mandamus the stenographer, or if they did not desire to take that step, then the attorneys should themselves have made out and submitted a statement of facts under the provisions of section- 13 of the act.

However, whatever may be said as to the statement of facts, certainly the record before us furnishes no sufficient excuse or reason why the bills of exception were not filed within the time allowed by law. To secure the approval of the judge to bills of exception, and to see that they are filed in time, is made the imperative duty of appellant and his counsel. Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268. The questions here involved were specifically passed on by the Court of Oivil Appeals in Smith v. P. V. & N. E. Ry. Co., 43 Tex. Civ. App. 204, 95 S. W. 11, which ruling has always been adhered to in the civil courts, and approved by this court in the case of Peddy v. State, 63 Tex. Cr. R. 483, 140 S. W. 229.

While the stenographer in this case files an affidavit that his wife was sick and needed his attention, yet the affidavit in and of itself shows that the stenographer was able to attend and wait on the court each and every day it was in session from October until February, and if he could leave his wife and wait on the court each day it was in session, we cannot see why her sickness wbuld prevent him from making this record. If her illness had been such that he could not attend and wait on the court when it was in session, there might be some excuse why he could not have made out this record.

However, the length of time assessed against appellant is virtually life imprisonment, and we have read the entire record, and, if we were to consider it, we find no grievous error. The testimony is sharply in conflict. Appellant’s evidence would make a clear-cut case of self-defense from danger as it appeared to him, while the state’s evidence is - that all wounds were inflicted from the rear. This is the second time this issue has been passed on by the jury, and in each instance the issue of self-defense was fairly presented in the charge of the court as applicable to the evidence.

• To consider the record as sent to us, we would have to evade the plain mandates of the law, and this we do not feel authorized to do. It seems, the more lenient the law has been made in regard to the filing of statement ■ of facts and bills of exception, the more frequently records come before us we cannot consider. Under the old law, when the attorneys had only 10 days in which to do this work and the duty devolved upon them, it was seldom, indeed, the records were not completed in time. Now, the law giving so much time, they get otherwise engaged, rely upon others, and the time is gone before the matter is again taken up.

We regret that the record is in the condition that it is, but under the circumstances we feel impelled under the law to affirm the case..

The judgment is affirmed.


text:
    GREENWOOD v. STATE.
    (No. 3173.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.)
    Criminal Law (§ 687s) — 1Trial—Reception oe Evidence.
    In a rape case, it was not error'to permit the state’s counsel, after the state had made its opening argument, and while defendant’s counsel was speaking, to recall the prosecuting witness to prove that she was not the wife of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1621, 1622,1625; Dec. Dig. § 687.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    F. C. Greenwood was convicted of rape, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of rape on a girl under 15 years of age, and his punishment assessed at 7 years’ confinement in the state penitentiary.

The only bill of exceptions in the record complains that after the state had made its opening argument, and during the time defendant’s counsel was speaking, the court permitted state’s counsel to recall the prosecuting witness, and prove that she was not the wife of defendant. In this there was no error, as our Criminal Procedure provides that the court may permit evidence to be introduced at any time prior to the completion of the argument, if he deems it necessary to the due administration of justice.

The charge fairly submits the issues, and the judgment is affirmed.


author: DAVIDSON, J.

text:
    BERING v. STATE.
    (No. 3174.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.)
    Criminal Law (§ 1208*)— Sentences — Indeterminate Sentences.
    Under the indeterminate sentence law, where the jury assessed the punishment for burglary at five years’ imprisonment, accused should have been sentenced for not less than two nor more than five years.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3281-3287, 3289-3295; Dec. Dig. § 1208.*]
    Appeal from District Court, Tarrant County ; R. H. Buck, Judge.
    Walter Bering was convicted of burglary, and he appeals.
    Judgment reformed and affirmed.
    'C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This record is before us without a statement of facts or bills of exception. The conviction was for burglary, the jury assessing a punishment of five years’ confinement in the penitentiary. In the judgment pronouncing sentence the court fixed a definite term of five years, as found by the jury. This will be reformed under the indeterminate sentence law, so as to fix the punishment at not less than two nor more than five years.

With this correction and reforming of judgment and sentence, this judgment .will be affirmed. The clerk will enter the proper correction, reforming the sentence and judgment.