author: HARPER, J. PRENDERGAST, P. J.

text:
    McCAMPBELL v. STATE.
    (No. 3419.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    1. Homicide &wkey;>309 — Manslaughter—Evidence-Instructions.
    Where accused and decedent had difficulties, and decedent, armed with a knife, called accused a vile name and threatened to kill him, and a third person standing near decedent asked why decedent did not kill accused, whereupon decedent started towards accused, placing his hand on his hip pocket, when accused shot decedent, accused was entitled to a charge on manslaughter, though neither of the circumstances alone would create the degree of anger, rage, or fear essential to reduce the killing to manslaughter, hut the facts, taken together, might, in the judgment of the jury, do so.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. &wkey;>309.]
    2. Criminal Law <&wkey;814 — -Issues—Evidence —Instructions.
    The court, in passing on the question whether an issue is raised by the testimony of accused, must view the testimony in as favorable light to him as possible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <S&wkey;814.]

      3. Homicide <©=>43 — Manslaughter—Frovo-cation.
    Where accused fires the first shot in self-defense and decedent flees, but by his conduct the mind of accused is rendered incapable of cool reflection, though not justified in continuing to shoot after the abandonment of the difficulty by decedent, he would be guilty of no higher grade of offense than manslaughter.
    [Ed. Note. — Eor other eases, see Homicide, Cent. Dig. § 67; Dec. Dig. <⅜=>43.]
    4. Homicide <©=>309 — Self-Defense — Instructions.
    Where self-defense is presented as well as abandonment of the difficulty by decedent, the court, in charging on self-defense, should also charge that if accused was justified in firing the first shot and continuing to shoot after decedent had abandoned the difficulty, and he became aware of that fact, yet if, by previous conduct of decedent, accused was rendered incapable of cool reflection, and while acting under the influence of anger, fear, or rage, he shot and killed decedent, he was guilty of manslaughter only.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <©=> 309.]
    5. Homicide <©=>300 — Self-Defense — Evidence-Instructions.
    Where there was evidence that decedent and a third person were acting together, and accused relied on self-defense, the court must charge that if it appeared to accused, from the conduct of decedent or from the conduct of decedent and another acting with him, that his life was in danger, he could act in self-defense.
    [Ed. Note. — Eor other eases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. <©=>300.]
    6. Homicide <©=300 — Self-Defense — Instructions.
    Where accused’s testimony only showed preparation for an attack on him by decedent and apparent danger, the court in its charge should not limit accused’s right to act from an actual attack alone.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <©=>300.]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Bee County; E. G. Chambliss, Judge.
    Napoleon McCampbell was convicted of murder, and he appeals.
    Reversed and remanded.
    B. D. Tarlton, Jr., and H. S. Bonham, both of Beeville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 15 years’ confinement in the penitentiary.

In view of the disposition of the case, it is unnecessary to discuss those bills, contending that the court erred in overruling his application for a continuance, and in not granting him a new trial on the ground of newly discovered evidence. This evidence will not be newly discovered on another trial, and, if appellant desires this testimony, he can doubtless secure the attendance of the witness, as well as the witness on account of whose absence a continuance was sought.

The most serious error assigned, in our opinion, is the one wherein appellant complains of the action of the court in refusing to submit the issue of manslaughter, and complaining of that portion of the charge of the court wherein he instructed the jury that if they found that deceased assaulted appellant, and then abandoned the difficulty, and appellant shot him under such circumstances, appellant would be guilty of murder.

The evidence for defendant discloses: That deceased took a quirt from a nephew of appellant. The nephew complained to appellant, and appellant went to deceased and demanded the return of the quirt, and, when deceased did not promptly return it, appellant jerked it away from him. Appellant retired out of the saloon, and was followed by deceased. That deceased opened his knife and had it in his coat sleeve. Words ensued, and appellant contends that deceased cut at him; appellant’s friends cautioning him not to let deceased get close to him as he had a knife. They separated, appellant going to his home, but returning to the business portion of the town later in the evening, and going into Reese’s saloon. He says that while he was in there deceased also came in and took a drink and went out the back door. Shortly thereafter he also went out the back door, when deceased called him and said, “Come here, pardner.” That he declined to go, when deceased said, “You might as well come on, you son of a bitch, for I am going to kill you anyhow.” That he then asked deceased to go on away as he did not desire to have any trouble with him, but deceased kept calling him a son of a bitch, and asking him to come out. That he threatened deceased with arrest, when another Mexican standing by said to deceased, “Why don’t you kill the negro?” He says when this remark was made deceased started towards him, placing his hand on his right-hand hip pocket, when he shot. Appellant in his brief contends that, from the testimony offered in his behalf, the jury would have been authorized to draw the following conclusion of fact:

“(a) The fatal collision between defendant and deceased was the sequence of a prior encounter in Reese’s saloon in which defendant had taken from the deceased a quirt which belonged to the defendant, but which the deceased had violently taken from Johnnie Roberts, the boy under the charge of the defendant.
“(b) In connection with this encounter the deceased Mexican attempted to cut the defendant with a drawn knife, calling him a son of a bitch, and threatening to kill him.
“(e) Subsequently, and in a short time after this incident, and in the alley west of Reese’s saloon, the defendant met deceased; the latter being aided and encouraged by two confederate Mexicans, one of whom advised deceased to kill defendant.
“(d) The deceased was armed with a knife at the time, as defendant knew.
“(e) Deceased then called the defendant a son of a bitch, and threatened to kill him, apparently in the act of drawing a knife for that purpose, and as the defendant was turning from the alloy into the door of the saloon.
“(f) The defendant thought one of the Mexican confederates had a pistol.
“(g) The deceased was a victim of tertiary syphilis, which superinduces an excited and nervous condition, and was a violent and dangerous man.
“(h) The defendant was very much excited and scared at the time, and shot automatically and rapidly, under the immediate influence of all these conditions combined.”

After carefully reading the record, we are inclined to agree with appellant that the testimony offered in his behalf would support such deductions, and would require a charge on manslaughter. While there is no statutory adequate cause in the case, and neither of these circumstances isolated and alone would be sufficient to create that degree of anger, rage, or fear that would reduce the offense to manslaughter, yet the facts and circumstances, taken altogether, might, in the judgment of the jury, be such as to engender in an ordinary man that degree of anger, rage, or fear as to render him incapable of cool reflection. It is true that anger alone will not reduce an offense; there must be a cause deemed adequate in law to produce such anger, rage, or fear, but very often there is a combination of causes, while no one of them would be sufficient, yet, taken as a whole; are deemed adequate, and this, in our opinion, is one of those cases where, under all the facts and circumstances in evidence, the issue is raised. Not that the jury would necessarily so find, for the state’s theory would make a plain case of murder, and there is testimony in the record to support such finding. The state would have appellant, becoming angry at deceased’s conduct; going home to arm himself; returning to town; and finding deceased, following him out the back door of the saloon, and then shooting him as he fled.

in passing on, whether or not an issue is raised, we must view the testimony in as favorable light to a defendant as the evidence would justify. But, if the above facts did not raise the issue of manslaughter, certainly the court, in not submitting that issue in connection with the charge of aban-abanof the difficulty, was in error. Ap-Aptestifies that deceased told him he had as well come on as he was going to kill him anyway, cursing him; that he then said he was going to have deceased arrested, and turned to go in the house, when another Mexican exclaimed, “Why don’t you kill the negro?” when deceased threw his hand to his right hip pocket and started towards him; that he had been informed that deceas-deceashad an open knife on his person, and he thought he was otherwise armed, and thought the two other Mexicans were there to aid deceased; that, acting on this belief, he shot, and deceased then fled. Acting un-unthe excitement engendered, he continued to shoot until deceased fell.

It is the law of this state that if one fires the first shot in self-defense, and his adversary flees, if, by the conduct of his ad-adhis mind is rendered incapable of cool reflection, although not justified in con-conto shoot after the abandonment of the difficulty by his adversary, yet he would be guilty of no higher grade of offense than manslaughter, and the court erred in in-inthe jury that, as a matter of law, he would be guilty of murder, under such circumstances. If the appellant knew that deceased had abandoned the difficulty, and then, while his mind was calm and deliberate, he should continue to shoot, it would be mur-murBut if one is attacked under circum-circumthat he would be justified in slaying deceased, even though his adversary subse-subseabandoned the difficulty, such con-conwould be likely to create that degree of fear or rage which would render him incapa-incapaof cool reflection, and, if it did do so, the killing under such circumstances, would be of no higher grade than manslaughter; and the court erred in not so instructing the jury. As said in Mackey v. State, 13 Tex. App. 362:

“We are therefore to look to the condition of the mind of the defendant at the time of the shooting, and, if this was dethroned of reason, he would not be guilty of murder, though the assailant had desisted from the attack, and was retreating.”

Where self-defense is presented by the evidence with such force as to require a charge thereon, and the court, under the evi-evifeels also called on to charge on aban-abanof the difficulty, thus abridging the right of self-defense, he should, in connection therewith, instruct the jury that if the ap-apwas justified in firing the first shot or shots, and he continued to shoot after deceased had abandoned the difficulty, and he became aware of that fact, if by the pre-preconduct of deceased the defendant was rendered incapable of cool reflection, and the mind of defendant was dominated by an-anfear, or rage, and while acting under such impulses he shot and killed, he would be guilty of manslaughter. This issue should be submitted to the jury, and the court should not instruct them under such circum-circumthat the defendant would, as a mat-matof law, be guilty of murder.

We are inclined to think that the criti-critiof the court’s charge that it was too restrictive in limiting appellant’s right to act from the acts and conduct of deceased alone is well taken. At least on another trial, if the evidence raises the issue that the two were acting together, the court will so frame his charge as to present the right to act from the conduct of both or either of them. Appellant testified that another Mexi-Mexisaid to deceased, “Why don’t you kill the negro?” and it appeared to him that they were acting together. The court should have instructed the jury that if it appeared to the defendant, from the acts and conduct of deceased, etc., or from the acts and conduct of deceased and others acting with him, that his life was in danger, he would have the right to act in self-defense. On another trial, if the testimony is the same, the court in his charge should so instruct the jury.

As appellant’s testimony only showed preparation for an attach, and apparent danger, the court in his main charge should not have limited appellant’s right to act from an actual attack alone. As the court gave appellant’s special charge on this issue, this alone would not present reversible error, but on another trial the court will so frame his charge as to make it applicable to the ease as presented by the testimony, and not require the jury to affirmatively find that an actual attach had been made.

We do not deem it necessary to discuss the other questions raised, but, on account of the above errors, the judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting).

In my opinion the evidence did not raise manslaughter, and the court should not have submitted manslaughter. Johnson v. State, 167 S. W. 733. I think there is no reversible error in this case,'and it should not be reversed, but affirmed. I may write fully later.
      <5fc^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    WALDEREN v. STATE.
    (No. 3435.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.
    Rehearing Denied March 17, 1915.)
    1. Forgery <&wkey;44 — Conviction—Sufficiency of Evidence.
    Evidence held sufficient to sustain a conviction of forging a receipt for $75 in signing the name of another actually existing person, or the name of a fictitious person.
    [Ed. Note. — Eor other cases, see Forgery, Cent. Dig. §§ 117-121; Dee. Dig. &wkey;44.]
    2. Criminal Law &wkey;>1166% — Trial — Remarks oe Court.
    In a criminal prosecution, the court’s remark, after finishing his charge to the jury at 5:30 p. m., that he would wait for the verdict but a short time before adjourning court, without anything to show that the jury were thereby influenced to arrive at a verdict within about 15 minutes adverse to defendant, without due consideration, did not alone justify a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. tj&wkey; 1160y2,l .
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    D. A. Walderen was convicted of forgery, and he appeals.
    Affirmed.
    J. T. Hightower, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of forgery, his punishment being assessed at two years’ confinement in the penitentiary.

The indictment alleges the forged instrument in the following language:

“$75.00. Dallas, Texas, Aug. 31, 1914. “Received of First State Bank of Dallas, Texas, by wire request from First Natl Bank, Morgan, Tex., the sum of seventy five.dollars for which I hold myself responsible to the First State Bank of Dallas, Texas, in event of any error or irregularity in transmission of telegram authorizing this payment. Account - Roy Wolfe Identified by- Address-.”

The evidence shows that a telegram was received by the First State Bank at Dallas signed by the First National Bank of Morgan, in • the following language: “Pay Roy Wolfe seventy five dollars — identification waived — we remit. First Nat’l. Bank.” It was proved beyond question and not controverted that the First National Bank of Morgan, Tex., did not send a telegram to the First State Bank at Dallas, and no such telegram was sent from Morgan to Dallas. This telegram, or purported telegram, was received by the First State Bank at Dallas on Saturday, August 29, 1914. On the following Monday appellant went to the First State Bank at Dallas and inquired if there was any money there for Roy Wolfe. Being informed there was, he got the money and gave the receipt upon which' the forgery is predicated, as above quoted. Appellant was recognized and identified as the man who came into the bank Monday morning and got the money and signed the receipt set out and upon which the forgery is declared. Appellant introduced no evidence.

The contention is the evidence is not sufficient. We are disposed to disagree with appellant’s contention on this proposition. He was identified as the man who called at the bank and got the money, and who signed the name of Roy Wolfe to the receipt. He was not Roy Wolfe, and whether Roy Wolfe was in fact an actual existing person or a fictitious person, so far as forgery was concerned, generally stated, would make no difference. We think therefore the testimony is sufficient to show appellant guilty of forging the receipt for the $75 in signing the name of Roy Wolfe.

There is one other question presented by appellant, and that is that, in the evening when the court finished charging the jury, and as they retired, he said to them; substantially, that he would wait for the verdict but a short time before adjourning court. This occurred about 5:30 in the evening. In about 15 or 20 minutes they brought in a verdict. The contention is that this influenced the jury to arrive at a verdict adversely to appellant without due consideration. We believe the court should not use such language, but leave the jury to decide a ease in their own way, without any intimation from the court that' he would leave them locked up for the night if they did not arrive at an early verdict; yet there is nothing to show that this affected the jury in any way, and, while this remark was undisputed, yet, under the circumstances, it does not present reversible error. If it had induced the jurors to reach an incorrect verdict, or a verdict that was improper, without due consideration, we would be inclined to say it was such error as would be fatal. Without some showing that the jury was affected by the remarks adversely to appellant, we would not fed justified in reversing. Appellant relies simply upon the fact that the court used the remarks, and from that desires this court to arrive at the conclusion that it was essentially and necessarily fatal. We do not think we should do that in the absence of some showing that it was injurious.

Believing there is no error in the record requiring a reversal of the judgment, it is affirmed.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    JONES v. STATE.
    (No. 3437.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    1. Intoxicating- Liquors &wkey;>221 — Violation of Local Option Law — Indictment—Sufficiency.
    An indictment charging accused with pursuing the business of selling intoxicating liquors in local option territory need not negative the exceptions in the statute.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 240-248; Dec. Dig. &wkey;> 221.]
    2. Ceiminal Law <&wkey;429 — Violation 03? Local Option Law — Evidence—Admissibility op Records..
    The original records showing that local option is in force in a county are admissible, without having given notice, against accused, charged with pursuing the business of selling intoxicating liquors.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1018, 1020; Dee. Dig. <&wkey; 429.]
    3. Intoxicating Liquors &wkey;>219 — Violation of Local Option Law — Indictment—Requisites.
    An indictment for pursuing the business of selling intoxicating liquor in local option territory may charge that a sale was made to the person who received the liquor and paid the price, though others contributed to the price.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 237-239; Dec. Dig. <&wkey;> 219.]
    4. Intoxicating Liquors &wkey;>219 — Violation of Local Option Law — Indictment—Requisites.
    An indictment for pursuing the business of selling intoxicating liquor in local option territory must allege that at least two sales were made, and allege the names of at least two persons to whom sales were made.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 237-239; Dec. Dig. <&wkey;> 219.]
    5. Intoxicating Liquors <&wkey;223 — Violation of Local Option Law — Indictment — Issues, Proof and Variance.
    There is no fatal variance between an indictment alleging that accused pursued the occupation of selling intoxicating liquor and making “two different sales * * * to M. and H.,” though construed to charge two sales jointly, and the proof of a separate sale to H., in which M. was interested, because contributing a part of the price, and a sale to M., in which H. was interested, for the same reason.
    [Ed. Note. — For other cases, see Intoxicating Idguors, Cent. Dig. §§ 263-274; Dec. Dig. <&wkey;
    Appeal from District Court, Taylor County ; Thomas L. Blanton, Judge.
    Della Jones was convicted of pursuing the business of selling intoxicating liquors, and appeals.
    Alfirmed.
    Harry Tom King, of Galveston, and D. M. Oldham, Jr., of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of pursuing the business of selling intoxicating liquors, and prosecutes this appeal. This conviction occurred in March, 1912; yet the transcript was not filed in this court until January 25, 1915 — -nearly three years after the judgment of conviction in the trial court. The clerk writes a letter in which he states that this occurred through an oversight that he cannot account for. It is just such cases as this which has brought about the “cry of delay in criminal cases.” If this transcript had been forwarded to this court in the time provided by the law, the case would have been acted on during the year 1912, and we would again say it is not so much a change in the law that is needed as a compliance with the law as it is written.

Appellant moved to quash the indictment because it did not negative the exceptions. She admits in her brief that this question has been decided adversely to her, but she again presents it for consideration. Having so thoroughly discussed the question in Slack v. State, 61 Tex. Cr. 372, Ann. Oas. 1913B, 112, 136 S. W. 1073, we do not deem it necessary to do so again, but merely refer to that opinion.

The court did not err in admitting the original records in evidence showing that local option was in force in Taylor county. The originals are admissible without having given notice.

All the other bills in the record relate to one question, presenting it from several viewpoints. The indictment alleged that appellant in Taylor county, Tex., did pursue the business and occupation of selling intoxicating liquors, and “did make two different sales of intoxicating liquor to Minnie Thomas and Hester Nunn.” This is a sufficient quotation from the indictment to present the question raised. Appellant insists that this alleged joint sales to Minnie Thomas and Hester Nunn, and that there would be a fatal variance in the proof in proving one sale to Minnie Thomas and another and different sale to Hester Nunn; therefore she was entitled to peremptory instructions, and, if not entitled to peremptory instructions, then her special charges instructing the jury that, if they found that appellant made a sale of whisky to Minnie Thomas, and on another and different occasion made a sale to Hester Nunn, to acquit.

Appellant cites, in support of her contention, Sessions v. State, 98 S. W. 243; Ellington v. State, 86 S. W. 330; O’Shennessey v. State, 49 Tex. Cr. R. 600, 96 S. W. 790; and Miles v. State, 62 Tex. Cr. R. 530, 138 S. W. 398. In the Sessions Oase the sale was alleged to have been made to Dude Nobles and Hugh Foster. The proof showed a sale to Dude Nobles alone, and it was held to be fatal. In the Ellington Oase the information alleged a sale to four persons, naming them, while it was held the evidence showed a sale to only one of the four, and held the conviction could not be sustained. In the O’Shen-nessey Oase the indictment alleged a sale to Houston and Griggs. The court authorized a conviction if a sale was made to Griggs alone. Held error. The Miles Oase is not in point on this question; it merely holding that the sale should be alleged to have been made to the person who paid the money, and to whom the whisky was delivered.

What do the facts in this' case show? Minnie Thomas testified that she went to the home of appellant and purchased a bottle of whis-ky from her, paying her 75 cents for a half pint. She says she, Mr. Tom, Hester Nunn, and Irene Hamilton contributed the money; that they made up a “pot,” and she took the money and went and bought the whisky, and they all drank the whisky. Hester Nunn testified that on another occasion she, Minnie Thomas, and Irene put up a quarter each, and they all went to appellant’s house, and she (Hester) paid appellant the 75 cents, and appellant brought her some whisky in a quart bottle.

Appellant says there is a fatal variance in this testimony, and the allegations contained in the indictment. It is true that in the first instance Minnie Tilomas paid the money to appellant and received the whisky, and it was paid for with money furnished by herself, Mr. Tom, Hester Nunn, and Irene, and, strictly speaking, they were all the purchasers, but it has been held that a sale could be alleged to Minnie Thomas alone. Again, in the next instance, Hester Nunn paid the money and received the whisky, while the money was furnished by Hester, Minnie, and Irene. Again the sale could have been alleged to have been made to Hester Nunn alone.

In this case appellant was being prosecuted for pursuing the occupation of selling intoxicating liquor, and not for making a particular sale. It is true that it was necessary to allege that at least two sales had been made, and under the Fitch Case, 58 Tex. Cr. R. 366, 127 S. W. 1040. it is necessary to allege the names of at least two persons to whom sales were made, and, as it is necessary to make such allegation, of course the proof must sustain such an allegation. But in this case, in one instance the sale was made to Minnie Thomas, for the benefit of herself, Hester Nunn, and others, and in the other instance the sale was made to Hester Nunn for the benefit of herself, Minnie Thomas, and another. Does this present such a variance as to necessitate a reversal of the case, where the allegation is that “two different sales were made to Minnie Thomas and Hester Nunn”?

contention is that the lan-lancharges two sales to Minnie Thomas and Hester Nunn jointly, while the proof shows one sale to Minnie Thomas alone and the oth-othsale to Hester Nunn alone. The language used in the indictment, we think, would convey to the ordinary mind that it alleged a sale to Minnie Thomas and a sale to Hester Nunn. It is true, perhaps, if the sentence is taken literally under grammatical rules, it charges two sales to Minnie Thomas and Hester Nunn jointly. This would be all that was necessary to allege, and the only question is that, if the indictment be given that construction, would proof that a sale was made to Minnie Thom-Thomin which Hester Nunn had an interest by virtue of contributing a portion of the njoney, and a sale to Hester Nunn, in which Minnie Thomas was interested, as she contributed a portion of the money, be sufficient under the joint allegation, if it be held to be that a sale to them jointly is alleged in the indictment, and not a sale to each of them? In criminal law the rule is rather strictly adhered to that the proof offered must be in conformity with, and sustain, the allegations as made; yet we do not think it has ever been held that, where an allegation was that a sale was made to two persons, and the proof showed that it was only made to one, yet, in fact, was for the use and benefit of the two named, that this would present a fatal variance. Had the whisky not been paid for, a civil action, under the evidence, would lie against both Minnie Thomas and Hester Nunn jointly for the value of each bottle of whisky sold. This court has held in Werbiski v. State, 20 Tex. App. 132, that:

“To constitute a fatal variance there must be a material misdescription such ⅝ ⅝ * as is calculated to mislead or surprise the adverse party” — citing- McClelland v. Smith, 3 Tex. 210, and Warrington v. State, 1 Tex. App. 168.

The offense for which appellant was being prosecuted was pursuing the business or occupation of selling intoxicating liquor, and the record supports a finding that she was' so engaged, and there is no such variance in the allegation and proof as to the persons to whom the sales were made as to authorize a reversal.

The judgment is affirmed.
      ®=»JTor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    GRIFFIN v. STATE.
    (No. 3451.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    Criminal Law <&wkey;1081 — Notice of Appeal —Dismissal.
    Where no notice of appeal was given and entered in the court below, the appellate court is without jurisdiction, and the appeal must be dismissed.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2722-2724, 2962; Dec. Dig. &wkey;1081.]
    Appeal from Hardin County Court; W. W. Dies, Judge.
    W. T. -Griffin was convicted of unlawfully carrying a pistol, and he appeals.
    Appeal dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was assessed the lowest penalty on a conviction for unlawfully carrying a pistol.

The court at which he was convicted adjourned November 14, 1914. What purports to be a statement of facts was filed some 74 days later. The Assistant Attorney General moves to strike the document out and not consider it because filed too late. It would be necessary to grant his motion ordinarily. But a careful examination of the record discloses that no notice of appeal was given and entered in the court below. Hence this court has no jurisdiction of this case, and it will therefore be dismissed.


text:
    SPARKS v. STATE.
    (No. 3447.)
    (Court of Criminal Appeals of Texas.
    Feb. 24, 1915.)
    1. Larceny &wkey;>88 — Stealing Automobile-Punishment — Statutes.
    The theft of a $1,200 automobile is punishable under Acts 33d Leg. c. 100, § 1, providing that any one who shall steal any motor vehicle worth over $35 shall be imprisoned in the county jail for not less than six months nor more than one year, and not under the statute relating to the theft of property worth over $50, by which a penitentiary sentence is authorized, in view of Pen. Code 1911, art. 1342, providing that the articles of the Code prescribing the penalty for theft of property worth over $50 do not apply to the theft of any particular property where the punishment is specially prescribed.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 214; Dec. Dig. <&wkey;S8.]
    2. Larceny ⅞=^88 — Automobile Statutes— CONSTRUCTIO N — ‘ ‘ STEAL. ’ ’
    Acts 33d Leg. c. 100, § 1, providing that any one who "shall steal or purposely takes, drives, or operates * * * upon the public road * * * any motor vehicle ⅜ * * without the consent of the owner * * ⅜ shall be imprisoned in the county jail” for from six months to a year, cannot be construed to be applicable only to cases of mere temporary taking and use, so as to render the general statute covering theft of property worth over $50 applicable to the stealing of a $1,200 automobile, under which a penitentiary sentence could be imposed; the special act being wholly unambiguous in language, especially in view of Ren. Code 1911, art. 10, providing that words specially defined shall be understood in that sense, and of article 1344, defining the word “steal” to include “theft.”
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 214; Dec. Dig. <§^>88,
    For other definitions, see Words and Phrases, First and Second Series, Steal.]
    3.Statutes <&wkey;190 — Construction—Contention of Legislature — Meaning of Words.
    Only where there is ambiguity in the words of a statute may the court leave its strict letter and construe it in accordance with what appears from an examination of the whole act to have been the intention of the Legislature.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 266, 269; Dec. Dig. <&wkey;>190.]
    Appeal from District Court, Clay County; Edgar Scurry, Judge.
    R. R. Sparks was convicted of theft, and he appeals.
    Reversed and remanded, with instructions.
    Wantland & Parrish, of Henrietta, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted for theft of an automobile, of value exceeding $1,000, and his punishment assessed at two years’ confinement in the penitentiary.

The facts clearly justified the jury in finding that appellant was guilty of the theft of the automobile, and the sole question we deem it necessary to discuss (which is raised in several different ways) is: Is theft of an automobile of value in excess of $50 a felony, as is the theft of other personal property, or has the Legislature by section 1 of chapter 100 of the Acts of the Thirty-Third Legislature singled out the theft of several articles of personal property and made it a misdemeanor to steal them? Said section reads:

“Section 1. Whoever shall steal or purposely takes, drives or operates, or purposely causes to be taken, driven or operated upon the public road, highway, or other public place, any motor vehicle, bicycle, buggy, carriage or other horse driven vehicle, without the consent of the owner thereof shall, if the value of such motor vehicle, bicycle or other vehicle is thirty-five dollars ($35.00), or more, be imprisoned in the county jail for not less than six months nor more than one year, or if the value is less than that sum, be fined not more than two hundred dollars ($200.00) or imprisoned not more than thirty days, or both.”

Although the indictment specifically charged the theft of an automobile of the value of $1,200, the court permitted the trial to be had under the articles of the Code defining theft of personal property in excess of $50, and a term in the penitentiary to be awarded appellant.

Articles 1353, 1354, and 1355 of the Penal Code, in defining theft of particular things, read:

“Art. 1353. If any person shall steal any horse, ass or mule, he shall be punished by confinement in the penitentiary not less than two nor more than ten years.
“Art. 1354. If any person shall steal any cattle or hog, he shall be punished by confinement in the state penitentiary not less than two nor more than four years.
“Art. 1355. If any person shall steal any sheep or goat, he shall be punished by confinement in the state penitentiary for not less than two nor more than four years.”

As applicable to the indictment and facts in this case, section 1 of chapter 100, Acts 33d Legislature, reads:

Whoever shall steal any motor vehicle, bicycle, buggy, carriage or other horse driven vehicle, if the value of such motor vehicle, bicycle, buggy or carriage is thirty-five dollars or more, shall be imprisoned in the county jail for not-less than six months nor more than one year.

Article 1339 of the Penal Code prescribes that theft of certain particular kinds of property, as of a horse, property wrecked, etc., have a punishment affixed differing from the general punishment of the crime of theft; whenever therefore the law provides a particular punishment for theft committed in regard to a special kind of property, theft of such property is not included within the law affixing a general penalty to the offense.

See, also, article 1342, which provides that the articles of the Code prescribing the punishment of theft of property over and under $50 do not apply to cases of theft of any particular property where the punishment is specially prescribed.

It may be said that it seems strange that, as the evidence clearly shows the theft of the automobile, and that its value is in excess of $50, he may ' not be convicted and punished for the theft of property in excess or $50, instead of being tried and punished under section 1 of chapter 100, Acts 33d Legislature; but the Legislature in its wisdom seems to have so provided by express enactment, as above shown. This question was before this court in Harris v. State, 17 Tex. App. 135, and the court said:

“It appears paradoxical to hold that, when the defendant has been proved beyond question to be guilty of the theft of property of the value of $20 or over, still he cannot be convicted under an indictm'ent charging such a theft, because the evidence shows further that he stole the property privately from the person of its owner. The transaction is the same, and he cannot be guilty of stealing from the person privately without at the same time being guilty of theft under the general definition of that offense. But, as unreasonable as this may seem to the unprofessional mind, it is nevertheless the rule of the law, and is founded upon good reason. Whether or not the statute which makes this distinction between theft generally and theft from the person, so as to prevent a conviction of the latter under an indictment for the former, is wise legislation, is not for us to determine. We can only administer the law as we find it, and we find that the Legislature has created and defined the specific offense of theft from the person, and has prescribed therefor a maximum punishment less than that prescribed for the theft of property of the value of $20 or over, and making said offense a felony regardless of the value of the property stolen. And It is further expressly provided that the penalty prescribed for theft generally does not apply to theft from the person. Penal Code [1879] art. 737. Such being the case, the defendant, if punished, must be punished alone for the specific offense committed by him.”

However, our able Assistant Attorney General, in a brief filed, earnestly insists that it was not the intention of the Legislature to provide a particular punishment ■ for the theft of a motor vehicle; that it was not for the theft of the articles named the Legislature intended to provide such punishment, but for the mere temporary taking and use of same; and he cites many authorities which correctly hold that from reading the provisions of the entire act we shall search for the intent of the Legislature, and to give effect to that intent, even though it may become necessary that the literal meaning of the words be departed from, and that to carry out the intent of the Legislature, the meaning of the words may be enlarged or restricted, or words may be disregarded or entirely eliminated, citing Sutherland on Statutory Construction, and other authorities. This is undoubtedly the law when the words used are ambiguous, subject to two constructions, or from reading the entire act such meaning can be given to the language used; and by reading the act it is manifest that such was the intent of the Legislature. But Mr. Sutherland also correctly states that, when the intention of the Legislature is so apparent from the face of the statute that there can be no question as to the meaning of the words used, there is no room for construction ; that it is not allowable to interpret what has no need of interpretation, and to attempt to do so would be to exercise legislative functions, saying there is no safer or better settled canon of interpretation than that when language is clear and unambiguous it must be held to mean what it expresses. When the meaning of a statute is clear, its consequences, if evil, can only be avoided by a change of the law itself to be effected by the Legislature and not by judicial construction. Section 367.

This court has held that it is only when a statute is ambiguous by, its terms that courts may rightfully exercise the power of controlling its language, so as to give effect to what they may suppose to have been the intention of the lawmakers. If the language of the statute is plain and unambiguous, there is no room for construction. That it is only in cases where the meaning of the statute is doubtful that the courts are authorized to indulge in conjecture as to the intention of the Legislature, or to look to consequences in the construction of the law. Where the meaning of the words used is plain, the act must be carried into effect according to its language, or the courts would be assuming legislative authority. Murray v. State, 21 Tex. App. 620, 2 S. W. 757, 57 Am. Rep. 623; Holden v. State, 1 Tex. App. 228; Smith v. State, 18 Tex. App. 454. And this seems to be the universal rule. Kelly v. Burke, 132 Ala. 235, 31 South. 512; Railway Co. v. B’Shears, 59 Ark. 237, 27 S. W. 2; Davis v. Hart, 123 Cal. 384, 55 Pac. 1060; Lee Bros. Furn. Co. v. Cram, 63 Conn. 433, 28 Atl. 540; Powell v. Spackman, 7 Idaho, 692, 65 Pac. 503, 54 L. R. A. 378; People v. Rose, 174 Ill. 310, 51 N. E. 246, 44 L. R. A. 124; Commissioners v. State, 148 Ind. 675, 48 N. E. 226; Grimes v. L. of H., 97 Iowa, 315, 64 N. W. 806, 66 N. W. 183; Robertson v. Robertson, 100 Ky. 696, 39 S. W. 244; Davis v. Randall, 97 Me. 36, 53 Atl. 835; Barker v. Hebbard, 81 Mich. 267, 45 N. W. 964; Cone v. Nimocks, 78 Minn. 249, 80 N. W. 1056; Lemonius v. Mayer, 71 Miss. 514, 14 South. 33; Davenport v. Hannibal, 120 Mo. 150, 25 S. W. 364; Butte Hardware Co. v. Sullivan, 7 Mont. 307, 16 Pac. 588; New York v. Manhattan Ry. Co., 143 N. Y. 1, 37 N. E. 494; Randall v. Richmond & D. R. R. R. Co., 107 N. C. 748, 12 S. E. 605, 11 L. R. A. 460; Choctaw Ry. Co. v. Alexander, 7 Okl. 591, 54 Pac. 421; Rodebaugh v. Philadelphia Traction Co., 190 Pa. 358, 42 Atl. 953; State v. Foster, 22 R. I. 163, 46 Atl. 833, 50 L. R. A. 339; State v. Manson, 105 Tenn. 232, 58 S. W. 319; Miles v. Wells, 22 Utah, 55, 61 Pac. 534; State v. Mounts, 36 W. Va. 179, 14 S. E. 407, 15 L. R. A. 243; Gilbert v. Dutruit, 91 Wis. 661, 65 N. W. 511; Bank v. Ludvigsen, 8 Wyo. 230, 56 Pac. 994, 57 Pac. 934, 80 Am. St. Rep. 928; Yerke v. United States, 173 U. S 439, 19 Sup. Ct. 441, 43 L. Ed. 760; Swarts v. Siegel, 117 Fed. 13, 54 C. C. A. 399.

In Black on Interpretation of Laws, c. 3, beginning on page 35, this Question is treated exhaustively, and that eminent writer says:

“In the case supposed, where the language of the statute is free from ambiguity, and conveys a definite and sensible meaning, the courts should not hesitate to give it a literal interpretation merely because they have doubts as to the wisdom or expediency of the enactment. In such a case, these are not pertinent inquiries for the judicial tribunals. If there be any unwisdom in the law, it is for the Legislature to remedy it. For the courts the only rule is ‘ita lex scripta est.’ Neither have the judges any authority, in such a case, to put upon the statute a construction different from its natural and obvious meaning in consideration of the consequences which may result from it. Any evil consequences to the public which may flow from the statute may be considered when its meaning is doubtful, in order to give it a more beneficial construction; but, when the legislative intent is clearly expressed, such consequences cannot be at all considered. And it has been said: ‘If the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.’ Even if the court is fully persuaded that the Legislature really meant and intended something entirely different from what it actually enacted, and that the failure to convey the real meaning was due to inadvertence or mistake in the use of language, yet, if the words chosen by the Legislature are not obscure or ambiguous, but convey a precise and sensible meaning, then the court must take the law as it finds it, and give it its literal interpretation, without being influenced by the probable legislative meaning lying back of the words. In that event, the presumption that the Legislature meant what it said, though it be contrary to the evident fact, is conclusive.”

Not only is this the general rule of law, but our Legislature, to make it plain that it was our duty to so construe the law, has provided that:

“Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their general meaning; and all words used in this Code, except where a word * ⅜ ⅜ is specially defined, are to be taken and construed in the sense in which they are understood in common language.” Article 10, Penal Code.

And then, in article 1344, the Legislature proceeds to define the word “steal”;

“The words ‘steal’ or ‘stolen,’ when used in this Code in reference to the acquisition of property, include property acquired by theft.”

And under the statutory definition it is held that “steal” and “stolen” are synonymous with “theft.” Carr v. State, 9 Tex. App. 463; Sands v. State, 30 Tex. App. 578, 18 S. W. 86.

The writer can hardly conceive that the Legislature intended to make the theft of a $1,000 or $5,000 automobile a misdemeanor, and theft of $10 or $20 hog or goat a felony; but such is the plain letter of the statute as enacted by them, for section 1 of chapter 100, Acts 33d Legislature, provides:

“Whoever shall steal ⅜ ⅜ * any motor vehicle, * * * if the value * * * is $35.00 or more,” shall “be imprisoned in the county jail for not less than six months nor more than one year.”

Was not the language unambiguous and susceptible of no other construction, we-would hesitate long before so declaring the law to be; but, as the language is plain and subject to no other construction, this court cannot legislate, nor has it authority to annul an act of the Legislature by unwarranted interpretation or construction, no matter how unwise we might think such legislation to be. Under the Code we can only call the attention of the Legislature to these to us seeming unjust and unequal provisions of the Code, and suggest that the punishment for theft of an automobile and other vehicles be made equal .and uniform with the theft of other personal property of equivalent value. But if they deem it unwise, they have the authority to so provide.

Having this view of the law renders it necessary to reverse this case and remand it to the district court of Clay county, with instructions to transfer it to the court in that county having jurisdiction of misdemeanor cases.

The judgment is reversed and remanded, with instructions.
      <g=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HARRISS v. STATE.
    (No. 3455.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    1. Ceiminal Law <&wkey;1159—Appeal—Verdict.
    A verdict on conflicting evidence will not be disturbed.
    [Ed. Note.—For other, cases, see Criminal Law, Cent. Dig. §§ 3074r-30S3; Dec. Dig. &wkey;> 1159.]
    2. Criminal Law <&wkey;406 — Evidence — Admissions.
    Incriminating statements, made by accused before he was arrested, are admissible against ■him.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 785, 894^917, 920-927; Dec. Dig. <&wkey;>406.]
    3. Criminal Law <&wkey;1169 — Prejudicial
    Error—Evidence—Withdrawal.
    Where, when it was discovered that the incriminating statements testified to by the officer might have been made after accused was under arrest, the court withdrew them,'and directed the jury to disregard the evidence, the admission of the evidence was not error.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <&wkey;>1109.]
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    Jess Harriss, alias Roberts, was convicted of robbery, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of robbery; his punishment being assessed at five years’ confinement in the penitentiary.

The issue of the sufficiency of the evidence is suggested for reversal. Under the evidence for the state we are of the opinion that the jury was authorized to convict. They could have believed the defendant’s side of the case, and acquitted; but the solution of this question is with the jury under our law, and we would not feel justified in reversing from that standpoint.

A bill of exceptions shows that Ballard, who was a police officer, was used as a state witness, and testified:

“I remember the occasion of Mr. Jim Wright and myself going with this man Standfield somewhere to make an arrest. We arrested this defendant. He said in substance that he did get Standfield’s money, and the other fellows got it away from him.”

Appellant objected to this, and stated as a ground of objection that appellant was under arrest at the time and in custody of the witness. This was overruled by the court. The court) qualifies this bill with the following statement:

“That the witness Ballard testified that the above statement, was made by the defendant before the defendant was arrested. The witness was not allowed to state anything defendant said after the defendant’s arrest, or while he was under arrest.”

As this is presented, the bill being accepted by appellant in this condition, we are not justified in reversing for this reason.

There is another bill in which it is shown that Ballard and Jim Wright, police officers, arrested defendant. Ballard testified to statements of the defendant, which shows, under his view of it, appellant was not under arrest at the time. The other witness testified to some matters that leaves it doubtful whether he was under arrest or not, and it is rather more strongly presented that he was under arrest at the time he made certain statements. When this was made to appear, the court excluded from the consideration of the jury the statements made by the defendant. The bill is qualified as follows:

“The witness Ballard stated that what he heard the defendant say was stated by the defendant before the defendant was arrested. The witness Wright, who was on the opposite side of the automobile, stated what the defendant said in his hearing was made after defendant was arrested; and upon motion of defendant’s counsel, when this was developed, the court ordered this testimony stricken out, and instructed the jury not to consider the same. All this will appear from the statement of facts prepared by the court stenographer, and presented by defendant and approved,” etc.

As this bill is qualified, it does not show error. Statements made by the defendant with regard to the transaction before he was arrested would be evidence. There is 'nothing to indicate defendant believed he was under arrest, or what was operating upon his mind at the time. Wright’s testimony indicates there were some statements made after his arrest. Upon discovery of this fact the court excluded it from the consideration of the jury, and instructed them not to consider that part of the testimony. As this matter is presented, we are of the opinion that there is no reversible error shown.

' These are the only matters presented by the record; and, being of the opinion there is no such error committed as requires a, reversal of the judgment, it is ordered that it be affirmed.


text:
    CLARK v. STATE.
    (No. 3421.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.
    Rehearing Denied March 17, 1915.)
    1. Indictment and Ineormation <&wkey;110 — Sufficiency—Language of Statute.
    An indictment charging the offense of pandering in the words of the statute is sufficient without specific averments as to the house of prostitution into which the woman was inveigled.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. &wkey;5ll0J
    2. Criminal Law "&wkey;589 — Continuance — Right to.
    Where accused was represented by able counsel, the denial of a continuance because he had not been able to get into communication with his father, who knew nothing of the offense, is harmless, although the father stated he would have assisted accused.
    [Ed. Note.—For other eases, see Criminal •Law, Cent. Dig. §§ 1315, 1319'; Dec. Dig. &wkey;> 589.]

      3. Peostitution <&wkey;4 — Evidence—Admissibility.
    In a prosecution for pandering, evidence that witnesses had arrested prostitutes in the house into which the woman was inveigled is admissible; the state being bound to show that the woman was taken to a place where prostitution was allowed or encouraged.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. <5&wkey;4.]
    4. Prostitution &wkey;>4 —Evidence— Remoteness.
    That the arrests occurred a year before does not render the evidence inadmissible on account of remoteness.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. &wkey;>4.]
    5. Criminal Law <&wkey;800 — Trial—-Instructions.
    In a prosecution for pandering, the court need not define the terms “prostitution” and “house of ill fame.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. <&wkey;800.]
    6. Criminal Law <&wkey;1172 — Appeal—Harmless Error.
    Where the court submitted only those grounds charged in the indictment and restricted the jury to a consideration thereof, the fact that in defining the statutory offense of pandering he copied the entire section relating thereto is harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. &wkey;1172.]
    7. Prostitution <®=n4 — Evidence — Sufficiency.
    Evidence in a prosecution for pandering held for the jury.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. <⅜⅜.]
    8. Criminal Law <&wkey;1172 — Jury Question —Instructions. •
    Though the indeterminate sentence law is not a question for the jury, that the court in response to their request informed them as to its operation is not reversible error, where he correctly informed them and the jury imposed almost the minimum punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. &wkey;1172.]
    Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.
    Jesse Clark was convicted of crime, and he appeals.
    Affirmed.
    Power & Malone, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted charged with pandering, under that clause in the statute defining the offense thus:

“By abuse of any position of confidence or authority procure a female to become or remain an inmate of a house of ill fame, or to enter a place wherein prostitution is encouraged or allowed.”

The indictment follows the language of the statute, and the court did not err in overruling the motion to quash it. It was not necessary to allege in the indictment the specific house. Sprague v. State, 44 S. W. 837; Lowe v. State, 4 Tex. App. 34.

The bill of indictment in this case was returned against appellant September 16th, and he was arrested on that date. The case was called for trial on October 1st, when appellant moved to continue the case beeauso he had been unable to get in communication with his father, whom he says would assist him. It does not appear that appellant’s father knew anything about the facts in this case; in fact, the affidavit of the father attached to the motion shows he did not know anything about the case, but in it he says he would have assisted appellant in securing counsel. As appellant was ably represented by counsel on the trial of the case, and it is not shown in the motion that he desired any witness other than those in attendance on the trial, the court did not abuse the discretion confided in him by overruling the motion.

The state introduced Dora Conner as a witness, who testified that appellant and Mary Pitts, who it is alleged he induced to enter a house where prostitution was permitted, stopped at the Westbrook Hotel for about seven days. The witness testified to facts showing that appellant and Mary Pitts registered as husband and wife and occupied the same room, and to the fact that she saw other men go into the room occupied by Mary Pitts. The objection to the testimony was:

“The said testimony was irrelevant and immaterial in this: That the indictment does not allege that the 66 rooming house is or was a house of prostitution, and does not allege that any other hotel, rooming house, or other house to be a house of prostitution.”

This is but another way of raiding the question that the house must be named in the indictment. The indictment does allege that appellant procured Mary Pitts to enter a place where prostitution was encouraged or allowed, and, after the state had proven that appellant procured the woman to enter a place, it would be incumbent on the state to prove that the place was one in which prostitution was encouraged or allowed, and the court did not err in overruling the objection made. The same objection was urged to the testimony of Mary Pitts. As it was not necessary to name the house in the indictment, the objection made was properly overruled.

W. E. Wallace testified:

“I am city detective of Ft. Worth. I know Mrs. Plartsell. I have known her about two years. Her reputation is that of a woman of lewd character. I know the place she runs over the 66 bar. It is a rooming house up over a saloon on the corner of Thirteenth and Main. I know the general reputation of that place as to being a place of prostitution, or a place where prostitution is permitted or otherwise. Its general reputation is that of a house of prostitution. I know of some arrests being made there of prostitutes. I remember one occasion personally when I made the arrest myself with Mr. Lass. We arrested three women. That has been a year ago. I could not say that they paid fines for being prostitutes. I know two of the women were in bed with a couple of pipe-liners, and they said they were not married to these men and that the men did not live there. Mrs. Hartsell was in the house at the time the arrests were made.”

Defendant objected to this testimony on the ground there was no allegation that 66 rooming house was a house of prostitution. As the state had alleged that appellant procured Mary Pitts to enter a house where prostitution was allowed, it was incumbent on the state to prove that it was such h house, and this testimony was very material on that issue, as that is the house the state relied on to secure a conviction as being a house in which prostitution was encouraged and allowed.

The appellant also objected to the testimony of the arrest of the two women, on the ground it was too remote. In the ease of Sprague v. State, 44 S. W. 838, it was held by this court:

“It was entirely competent for the court_ to admit evidence both of the general reputation of the house and its inmates. See Golden v. State, 34 Tex. Cr. R. 143, 29 S. W. 779; Morris v. State, 38 Tex. 603; Sylvester v. State, 42 Tex. 496. There was no error in the court permitting testimony to be introduced as to the reputation of the house for two or three years previous to the alleged offense. The proof showed that the appellant was the owner of the house during all that time.”

Por a similar reason the testimony of Ollie Stanley was admissible. 1-Ie testified:

“I am a police officer. I know the 66 rooming house. Its reputation is that of a house of prostitution. I worked on that beat about a year and a half. I know Laura Hartsell, who runs that house. Her general reputation is that of a prostitute. I have seen her in rooming houses before she took that place. I have arrested women up there in that house. She knew about it.”

It was not necessary for the court to define the terms “prostitution” and “house of ill fame.” The meaning of these words is well understood, and they need no defining.

The court should not have copied the entire section defining pandering, but only that subdivision which is charged in the indictment. But as he, in submitting the case to the jury, submitted only those grounds charged in the indictment, and restricted the jury to the consideration of those grounds alone, no reversible error is presented.

The court only submitted the second count in the indictment, and, as this count charged an offense, the court did not err in refusing those special instructions which requested the court to charge the jury that the first count, and not the second count, was submitted to them for their consideration.

As there was abundant proof of the relations existing between appellant and Mary Pitts, the court did not err in refusing the charge requesting him to instruct the jury to disregard the second count in the indictment. The proof shows that appellant and Mary Pitts were together in San Antonio; went from San Antonio to Wichita Falls together, where they remained some time; then came from Wichita Falls to Ft. Worth and lived together as husband and wife, so holding themselves out; that at the several hotels and boarding houses they stopped they registered as husband and wife; that Mary Pitts during all this time was making their support by living the life of a prostitute, dividing with appellant the money she received from other men.

The court instructed the jury:

“You are further instructed that you cannot find the defendant guilty unless you believe from the evidence beyond a reasonable doubt that the 66 rooming house was, at the time of 'the commission of the alleged offense, if any, a house of prostitution, or unless you believe from the evidence beyond a reasonable doubt that the 66 rooming house was, at the time of the commission of the alleged offense, if any, a house in which prostitution was encouraged or allowed; and in case the jury has a reasonable doubt as to the facts above set out in this paragraph, it will be your duty to acquit the defendant.”

He further instructed the jury that the appellant must have procured Mary Pitts to enter this house, so it was unnecessary to give any of the special charges requested.

Attached to the motion for a new trial is the affidavit of Mary Pitts that she testified falsely in several particulars on the trial of the case, and, if this conviction rested on her testimony, we would be loth to let the conviction stand. But by other and different testimony it was proven, or at least the evidence would justify the jury in finding, that this rooming house was a house in which prostitution was permitted, and by all the testimony it is shown that appellant carried Mary Pitts to this house and registered there with her as his wife. If we eliminate the testimony of Mary Pitts on the trial altogether, the evidence would sustain a conviction, and, as she swore one way on the trial and another on the hearing of the motion for a new trial, we feel that it should be eliminated in considering this case. But take the testimony she gives on the motion for a new trial alone and it shows she and appellant lived together as husband and wife; that she was a prostitute, and appellant knew that fact; and that he carried her to this rooming house, and she received other men while at this rooming house.

only other question presented by the record we deem it necessary to mention is: It is made to appear while the jury was considering the case they propounded to the court the following question:

“ ‘To the Hon. Judge of the Sixty-Seventh District Court: Please instruct the jury what is meant by the indeterminate sentence law. B. B. Getzerdiner, Foreman.’ And the court, after receiving said inquiry, answered as follows: ‘Under the indeterminate sentence law the court sentences a defendant to a term not less than the lowest penalty prescribed by law, and not more than the penalty prescribed by law and not more than the penalty fixed by the jury; if the convict behaves himself and makes a model prisoner, lie lias a chance to be pardoned after serving 'the lowest term that is the substance of the law.’ ”

As the jury has nothing to do under the indeterminate sentence law, it would have been proper for the court to have so informed them; but, as he gave a correct definition of the term, is it ground for reversal of the case? Had the jury assessed against appellant a very severe penalty, we would feel that perhaps this instruction might have been instrumental in causing them to do so; but they assessed against him only seven years, while the minimum term is five years, and the maximum life imprisonment. We do not feel, under such circumstances, that this instruction in any wise contributed to the punishment assessed.

The sole defense in this case was predicated upon the issue that 66 rooming house was not a house of prostitution, or a iilace where prostitution was permitted. It is not questioned that appellant carried Mary Pitts to this house, and they stayed there. It is shown beyond question that M'ary Pitts lived the life of a prostitute while at this place. The question of whether or not the house was a house where prostitution was permitted was fairly submitted to the jury, and they find it was such a house, and the judgment is affirmed.
      <&wkey;Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SCHENK v. STATE.
    (No. 3430.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    1. Larceny <§=30 — Indictment—Description on Property.
    An indictment for theft of “one engine lubricator of the value of $12.00, two oil cups of the value of two dollars, three hard oil cups of the value of three and 50/ioo dollars, one ‘fan leather belt of the value of ten dollars, one condensor leather belt of the value of twelve dollars, one distributer leather belt of the value of thirty dollars, two lead mill leather belts of the value of eleven dollars,” sufficiently described the property.
    [Ed. Note. — For other eases, see Larceny, Cent. Dig. §§ 64-75, 99; Dec. Dig. &wkey;30.]
    2. Indictment and Information <&wkey;160— Amendment — Striking Out.
    Where an indictment charged the theft of “one distributer leather belt,” and a witness testified that he would call it a distributer leather belt or a distributer drive belt, the court had no authority to strike from the indictment such description because of alleged variance of testimony.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 515; Dec. Dig. <&wkey;>160.]
    3. Criminal Law &wkey;>696 — Indictment—Issues and Peoof — Striking Evidence.
    Where an indictment described the theft of “one distributer leather belt,” and the witness testified that “the distributer leather belt 1 refer to is a large leather belt attached to another part of the machinery and also the dis-tributer and drives the distributer belt. I don’t know what they call the leather belt, but I call it a distributer leather belt, or a drive belt. The distributer belt proper is a canvas belt that distributes the cotton” — it was not error to refuse to strike the testimony as tending to prove theft of a belt other than the one alleged.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1639-1644; Dec. Dig. <&wkey;> 696.]
    4. Larceny &wkey;>52 — Evidence — Thefts by Other Persons.
    In a prosecution for theft of oil cups, lubricator, belts, etc., from a cotton gin, defendant was not entitled to show theft of furnace grates from the gin by other persons.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 137, 147; Dec. Dig. &wkey;52.]
    5. Witnesses <&wkey;277 — Cross-Examination of Accused.
    Where, in a prosecution for theft of property from a cotton gin owned by a company, defendant testified that he owned stock in the company, the state might, on cross-examination, ask him when he purchased the stock and what he paid for it, to ascertain if his claim was made in good faith.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dee. Dig. &wkey;277.]
    6. Larceny &wkey;>40 — Indictment—Issues and Proof.
    Proof of the theft of one of several articles described and alleged to have been stolen in an indictment would support a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 102-126, 160; Dec. Dig. &wkey;40.J
    7. Larceny <&wkey;68 — Identification of Property-Question for Jury.
    In a prosecution for. theft, the sufficiency of the identification of the property held for the jury.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 180, 181; Dec. Dig. <®=68.]
    8. Criminal Law <§=1172 — Instructions — Harmless Error.
    Where, in a prosecution for theft, it was not in issue that the defendant had taken the property in payment of a debt to him, an instruction placing the burden of proof of such an issue on the defendant was not ground for a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. <§=1172.]
    9. Larceny <§=40 — Indictment—Issues and Proof.
    On indictment for theft ownership must be proven as alleged.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 102-126, 160; Dec. Dig. &wkey;40.]
    10. Criminal Law <&wkey;1056 — Reservation of Error — Instructions.
    Where the court had not specially charged that the jury must find that the ownership of the property stolen was in a 'person named in the indictment as special owner, and defendant’s exception to the charge stated “that, under the indictment, the jury should be instructed that they must believe that such person was entitled to the exclusive management and control of said property,” and then presented a special charge on the issue, though incorrect, he had sufficiently called the court’s attention to the fact that he was complaining that the issue of ownership was a contested one and had not affirmatively been presented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. <§= 1056.]
    Appeal from District Court, Archer County; Edgar Scurry, Judge.

      L. N. Schenk was convicted of theft, and appeals.
    Reversed and remanded.
    Henley & McComb, of Jacksboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of misdemeanor theft, and his punishment assessed at one day imprisonment in jail and a fine of $25.

The indictment in this case charged appellant with the theft of the following property:

One engine lubricator of the value of $12.00 Two oil cups of the value of two dollars Three hard oil cups of the value of three and /ioo dollars
One fan leather belt of the value of ten dollars One condensor leather belt of the value of twelve dollars
One distributer leather belt of the value of thirty dollars
Two lead mill leather belts of the value of eleven dollars.

A motion was made to quash the indictment, alleging that the description was insufficient. The court did not err in overruling the motion. Green v. State, 28 Tex. App. 493, 13 S. W. 784, and cases cited in section 1481, White’s Ann. Pen. Code.

O. W, Tschoepe testified to the loss of the above-described property, saying:

“I am manager of the Farmers’ Union Gin Company, at Scotland. X held that position in this last ginning season -and in July of this year; since the beginning of the ginning season of 1913. I went through the gin in June, 1914, and all the property, belts, cups, etc., were there at that time. I went through it in July again and found several things missing: A lubricator, two soft oil cups, three hard oil cups, one fan leather belt, one condensor leather belt, one distributer leather belt. I saw these things later on Schenk’s thresher and engine.”

By bill No. 1 it is shown that on cross-examination he testified in regard to the alleged distributer leather belt:

“The distributer leather belt I have reference to is a large leather belt that is attached to another part of the machinery and also the distributer and drives the distributer belt. 1 don’t know what they call the leather belt, but I call it a distributer leather belt, or a drive belt. The distributer belt proper is a canvas belt that distributes the cotton. I would also call the leather belt that drives this distributer a distributer leather belt or a distributer drive belt.”

The defendant moved the court to withdraw all the witness’ testimony in regard to the distributer leather belt, “and to strike from the indictment the item of ‘one distrib-uter leather belt,’ because the state, having alleged a specific belt, to wit, a ‘distributer leather belt,’ should have been confined to proof of said belt as alleged; and such proof was not made by proving a ‘distributer drive belt,’ or a ‘large leather belt that drives the distributer belt,’ or a ‘drive belt,’ nor that a distributer belt was a canvas belt; that such proof was at fatal variance with the express allegations in the indictment and did not prove said allegations.” Of course, the court had no authority to strike that item from the indictment, and we do not think the court erred in not withdrawing the testimony. The testimony of the witness tended to prove that a leather belt was missing, called by him a “distributer leather belt.”- It may be its proper name was something else, but the witness described the use of the belt, and the reason why he called it as he did.

The next bill complains that the court erred in not permitting him to prove by Joe Brown that August Bomhardt and others took from the gin some furnace grates and put them in a threshing machine furnace belonging to August Bomhardt and Joe Moore. It may be that these gentlemen had authority from the owners to take the furnace grates. At least the bill does not negative such fact. But if they took the grates without authority, and were liable to prosecution for so doing, neither of the gentlemen were witnesses in this case, and to prove such fact would have no tendency to show whether or not appellant took the property he is alleged to have taken. Neither did the court err in refusing to permit Jim Vickers to testify that he saw the above-named gentlemen and Joe Moore take some other property from the gin. If they were guilty of wrongdoing, it would be no justification of appellant. It- was not contended that they took the property, or any part thereof, with which appellant was charged with taking, and, no matter how many other men may have taken property from the gin, it would not authorize appellant to also take property therefrom without the owner’s consent, if he did so.

The gin Tschoepe had in his charge, according to the testimony offered by the state, was owned by a company, and appellant testified he owned a part of the stock, and was therefore part owner of the gin. The state on cross-examination asked when he purchased the stock, and what he paid for it. These questions were objected to by appellant, but his objections were overruled, and he answered that he gave some cotton seed to one man for his stock, and had paid another man $1 to bind the trade for the stock he had purchased from him. When he sought to prove that he was part owner of the gin, and therefore had a right to take the things he was charged with taking, if he did take them, the state had a right, on cross-examination, to ascertain if such claim was made in good faith, and appellant in fact owned any stock in the gin. These questions and the cross-examination were permissible on this issue, and the court did not err in so holding.

A number of special charges were requested, the first of which was a request for peremptory instructions. Appellant seems to proceed upon the theory that, the state having alleged the theft of a number of articles, it would be entitled to a conviction only on proof that appellant had stolen all the arti-eles alleged. This is not the law; proof of the theft of either one of the articles would support a conviction.

As to the lubricator he is charged with stealing, Albert Ordner testified appellant admitted to him that he had the gin’s lubricator, and would take it back when the company got ready for it. Tschoepe testified to the loss of all the property described in the indictment, and that he saw all these things in the possession of appellant. As to identity of the things, his testimony was weakened on cross-examination; he saying he could not swear positively as to the identity of the property, but it looked like the gin’s property to him. Adolph Winkler testified to identifying a portion of the property, saying he recognized the lubricator, oil cups, and fan leather belt. On cross-examination he also said he could not be positive, but it looked like the gin’s property. Thus it is seen the specific identification is not very strong, yet the number and character of things missing are found in appellant’s possession, and they were similar to the stolen ones, and we cannot say, under such circumstances, that the court erred in not giving peremptory instructions, and in leaving the question to the jury for their determination, and especially so in the light of Mr. Ordner’s testimony, who said appellant admitted to him he had the gin’s lubricator.

It is true that appellant testified that the gin company was indebted to him, but he did not testify nor claim that he had taken the property or any part thereof in payment of the debt. He denied most emphatically that he had taken any of the gin property; and there is no testimony suggesting that he may have taken it in payment of. the debt due him; consequently the court did not err in refusing the special charge presenting that issue. However, the court in his main charge does charge on that issue, but places the burden of proof on defendant. This would be such error as would require a reversal of the case if the testimony raised the issue; but inasmuch as in the testimony, and in all the testimony, there is no such issue presented, the charge, while erroneously worded, was on an issue not raised, and should not be ground for reversal of the case. However, on another trial, if the court thinks the evidence raises the issue, he should not instruct the jury that they must find, beyond a reasonable doubt, that he had a right to take it, but instead give the defendant the benefit of a reasonable doubt on this as well as other issues.

There was no error in refusing the special charges requesting the court to instruct the jury:

“If you have a reasonable doubt as to whether the state has proved the identity of any one or more of the articles alleged to have been found in the possession of defendant to be the identical property alleged in the indictment beyond a reasonable doubt, then as to such articles you must find the defendant not guilty.”

As hereinbefore stated, it was not necessary for the state to prove the theft of all the articles alleged; if proof was made that either one of them had been taken by appellant without lawful authority, he would be guilty. When an article is known and called by a given name, although it may in fact have another and different name, such proof would not present a variance; and even though the belt termed in the indictment “one distributer leather belt” was in fact “one drive leather belt,” when the ginner testified it was called and known as a distributer leather belt, the proof would sustain the allegations, and the court did not err in refusing the special instructions requested in regard to this matter.

The fact that Tschoepe was special owner of the property was alleged in the indictment, and it was a fact to be proven as any other fact alleged. Defendant excepted to the court’s charge because in it he did not require that fact to be found. We are inclined to think the court, in a general way, so instructed the jury; but as appellant by bis testimony raised the issue, and asked a special charge presenting the matter affirmatively, and instructing the jury, if they found that the alleged special owner was not in possession of the property, to acquit, the court should have submitted this issue affirmatively. The special charge as requested does not correctly present the law, and the court did not err in refusing it; but as appellant excepted to paragraph 5 of the charge as given, “and says that under the indictment the jury should be instructed that they must believe, beyond a reasonable doubt, that O. W. Tschoepe was entitled to the exclusive management and control of said property,” and then presented a special charge on the issue, which, although not a correct exposition of the law, sufficiently called the court’s attention to the fact that he was complaining because, as the issue of ownership was a contested issue, he had not affirmatively in his charge presented the issue to the jury, with instructions that, if Tschoepe was not the owner in law, he would be entitled to an acquittal. Ownership must be proven as alleged. Williams v. State, 26 Tex. App. 131, 9 S. W. 357, and eases cited in section 1507, White’s Ann. Pen. Code.

We do not deem it necessary to discuss the other questions raised, as they present no error, and the rulings herein made sufficiently indicate the law applicable to such questions.

The judgment is reversed, and the cause remanded.
      @=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes