text:
    JONES v. STATE.
    (No. 5247.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    Criminal Law <£=1144(13,17) — Matters Review able — Presumptions—Record.
    Where there are no bills of exceptions complaining of any action of the trial court, its officers or the jury that rendered the verdict, or any statement of facts embodying the evidence, it will be presumed that proceedings in homicide case were regular, and that evidence justified a conviction and sentence of death assessed.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Jesse Jones was convicted of niurder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted, tried, and convicted of murder and pursuant thereto is under sentence of death.

We have discovered no departure from the legal requirements in any of the proceedings. No bills of exception are found in the record complaining of any action of the trial court, its officers, or the jury that rendered the verdict, nor is the record accompanied by any statement of facts embodying the evidence upon which the prosecution and conviction are based. We must therefore presume that the proceedings were regular, and that the evidence justifies the conviction and the punishment assessed.

The judgment of the district court is affirmed.
      ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    REAGAN v. STATE.
    (No. 5204.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    1. Criminal Daw <®=38S — Powder Burns— Experiments.
    In homicide case, question being whether deceased was close to defendant when shot, evidence of experiments on behalf of state in which white paper was used to find distance at which a pistol fired would cause powder bhrns, was improperly admitted, where evidence showed that the deceased wore dark clothes at time he was shot, and there was no evidence that effect of powder on cloth would be similar to that on paper.
    2. Criminal Law <S=813 — Instructions— Abstractions.
    Instructions of a court in criminal cases should not contain abstract propositions of law, as they might mislead.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Julia Reagan was convicted of manslaughter, and she appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Under an indictment for murder, appellant was convicted of manslaughter.

One of the issues submitted to the jury by the trial court was that of self-defense. The ■theory of appellant on this issue was that at the time the fatal shot was fired the deceased was so near the appellant that he was able to reach her with his hand, and that he was in the act of attempting to make an assault upon her and to take from her the pistol •with which the homicide was committed. The theory of the state was that deceased was not making any assault, and was not near to the appellant at the time the shot was fired, but was at some distance from her. The deceased was wearing dark clothes of a texture undisclosed by the evidence, and a white cotton shirt with black stripes in it. One shot was fired, and the bullet is described as entering the body between the second and third ribs on the right chest coming out at the armpit. The bullet would go through the upper part of the left lung. A state’s witness testified as follows:

“I examined him very particularly as Ms body lay there on the floor, and I made an examination for powder burns. * * * There was no powder burns on the shirt or on his clothing anywhere.”

The state introduced before the jury several sheets of white cardboard paper at which the same pistol with the same kind of cartridges used by appellant had been fired by some officers who were witnesses in experimenting in order to determine the distance at which a pistol fired at paper would cause powder burns. Three tests appear to have been made: one at 18 inches, the others at various distances up to 5 feet and the paper exhibited was stained with powder from the pistol. This evidence was objected to on various grounds.

The admissibility of experiments similar in their nature to the original transaction have often been before the judicial tribunals; and the general proposition laid down that if an experiment is made under similar conditions, and tends to elucidate some contested issue, it ought to be received. Clark v. State, 38 Tex. Cr. R. 30, 40 S. W. 992; Wharton’s Crim. Ev. vol. 1, p. 610. Applying this rule to facts substantially like those arising in the present instance, this court, in Morton v. State, 71 S. W. 281, rejected evidence disclosing a test for powder burns made upon pasteboard. Prom that case we take the following quotation:

“Evidence was introduced of experiments made by the sheriff and another party in regard to the effect of powder fired from a pistol upon a pasteboard at distances ranging from 10 down to 3 feet. This seems to have been admitted in order to show the distance of the weapon from deceased’s head at the time of the homicide. Some of the witnesses testify to powder burns on the head and neck near where the bullet entered. For a discussion of this matter, see Clark v. State, 38 Tex. Cr. R. 30, 49 S. W. 992; 12 Am. & Eng. Enc. Law (2d Ed.) p. 407. Under the rule laid down in these authorities, we do not believe this testimony was admissible. The text in the twelfth volume of the Encyclopedia of Law, supra, thus states the rule: ‘Where a party seeks to show, by evidence of experiments, that the alleged result would or would not follow from the conditions proved, the experiments, evidence of which is sought to be introduced, must have been made under circumstances and conditions similar to those constituting, as it were, the promises from which the original event is alleged to have been the conclusion. .Thus, where a material question was the distance between the muzzle of the gun and the body of the victim of an alleged murderous design, evidence was excluded of the result of experiments as to powder marks made upon pasteboard targets by firing a gun at varying distances, upon the ground that the human body is fundamentally different in nature and texture from the substance upon which the experiments were made.’ See notes 1 and 2, for collation of authorities, on page 407. The requirement of this rule is that there shall be similar, or nearly similar, circumstances and conditions in order to admit this character of evidence; and it does not exact more than what is denominated ‘substantial’ or ‘reasonable’ similarity, and this means such a degree of similarity as that evidence of the experiments will accomplish the desideratum of assisting the jury to intelligently consider the issue of fact presented in regard to this matter. See note 2, on page 408, and note 1, on page 409, for collation of authorities. Under this rule, and the cited authorities, we are of opinion the evidence of experiments testified to by the sheriff should have been excluded. Test on the pasteboard was not similar, or nearly so, to firing at skin of the human being.”

Cases in which, a like decision has been rendered are: People v. Solans, 6 Cal. App. 103, 91 Pac. 654; Hisler v. State, 52 Fla. 30, 42 South. 692; State v. Fletcher, 24 Or. 295, 33 Pac. 575; People v. Fiori, 123 App. Div. 174, 108 N. Y. Supp. 416.

The rejection of the evidence in Morton’s Case is not upon the ground that it is an experiment or hearsay, but upon the ground that the conditions are not sufficiently similar to render the evidence admissible. The application of this rule to the evidence in this case is obvious. The deceased wore dark clothes, whether wool or cotton is not shown. He wore a cotton shirt, but it is not shown that the position of the wound was such that powder burns would have been upon the part of the shirt bosom which was exposed. We infer from the evidence, showing the location of the wounds that the first contact of the bullet was with.the coat which deceased wore. The dissimilarity of the coat from the paper that was used m the experiments is manifest, and there is an absence of evidence that the effect of powder on the cloth would be similar to that on paper, and, in our judgment, the facts bring it clearly within the rule applied by the court in the case mentioned.

The court’s charge upon the subject of provoking the difficulty is criticized, and upon another trial, if that issue is submitted, the court writing the charge should follow the established precedents. In the present instance it, instead of informing the jury that if appellant, designing to kill or seriously injure the deceased, intentionally provoked the difficulty by the use of/ means reasonably calculated thereto for the purpose of bringing on an attack, told the jury that:

“If she was engaged in the commission of a felony and to prevent its commission the party seeing it, or about to be injured thereby, makes a violent assault upon her, calculated to produce death or serious bodily harm, and in resisting such assault she slew her assailant, the law would impute the original wrong to the homicide, and make her offense murder.”

And in the charge applying the law of pro-Toldng the difficulty to manslaughter he used similar language with reference to an .act which would be a misdemeanor.

These doubtless are correct propositions of law, but they are abstract, and might be misleading.

We order a reversal of the case, not because of an error in the charge but because of the error in the admission of the evidence discussed. We do not approve of the charge, however, and suggest that upon another trial it be differently framed.

The judgment of the lower court is reversed, and the cause remanded.


author: LATTIMORE, J.

text:
    Ex parte JONES.
    (No. 5258.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    Arrest ⅞=63(1) — Constitutional Law 262 — Due Process — Arrest Without Warrant — Yerbal Request of Draft Board Chairman.
    Act of sheriff in arresting relator for failure or refusal to register, without warrant or ■other process, on verbal request of chairman of local exemption board under federal Selective Draft Act (U. S. Comp. St. 1918, §§ '2019a, 2019b, 2044a — 2044k), held violative of Const. U. S. Amend. 5, forbidding that any citizen shall be deprived of liberty without due process of law, and similar provision of Texas Constitution, neither TJ. S. Comp. St. §§ 1534-1706, 'nor Selective Draft Act, authorizing any such proceeding.
    Appeal from District Court, Rockwall ■County; Joel R. Bond, Judge.
    Habeas corpus on behalf of Epsy Jones. From an order remanding relator to custo•dy, he appeals.
    Relator ordered discharged.
    H. M. Wade, of Rockwall, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This is an appeal from .an order of the district court of Rockwall county, remanding the relator to the custody of the sheriff of that county after a hearing awarded him upon his petition for a writ of habeas corpus, having for its object his discharge from the custody of said sheriff, which custody he alleges in his petition to be without any warrant or other process or authority of law. The respondent, the sheriff of Rockwall county, answered upon the hearing before said court that he arrested the relator upon the verbal request of the chairman of the local exemption board, doing service in said county under the federal Selective Draft Act (Act Cong. May 18, 1917, c. 15, 40 Stat. 76 [U. S. Comp. St. 1918, §§ 2019a, 2019b, 2044a-2044k]); and it appeared from the evidence that the original arrest was made upon said verbal request, and that he held relator in jail from Monday until Saturday, and on Saturday filed a. complaint against relator, charging him with vagrancy; same being filed, however, after the writ of habeas corpus herein had been served upon him.

These facts appear to be without dispute in the record. After the order of the judge remanding the relator was made, he brought the case before this court by regular appeal. No brief is on file' for the respondent.

The Fifth Amendment to the federal Constitution forbids that any citizen shall be deprived of life or liberty without due process of law, and substantially the same provision is contained in the Constitution of eyery state in the Union, and in Texas.

The provision of chapter 18, title 13, U. S. Statutes, regulating the procedure in cases of offenders against federal laws, nowhefe authorizes such proceeding as was had in this case, nor is there any authority to be found anywhere in the Selective Draft Act therefor. The federal practice is expressly made by statute to conform to the state practice in similar matters, except where otherwise especially provided for, and in consonance with our state practice, requires that in cases where an arrest is permissible without warrant the offender shall be at once carried before some magistrate or other persons authorized to hear the cause and remanded to custody or bail fixed as the case may demand.

We have examined the Selective Draft Act and are unable to find there or anywhere else any authority holding that one who is claimed to be guilty only of a misdemeanor, such as the statute makes the act of one who fails or refuses to register under the Selective Draft Act, may be prosecuted in a different manner than one who is guilty of any other federal misdemeanor. We nowhere find any authority given to the chairman of the local or district exemption board to direct or authorize the arrest of one whom he may suspect of being guilty of evasion of the terms of said act, other than to proceed to make the usual and necessary complaint before some officer or grand jury authorized to receive it.

Respondent, ifi his answer, sets up the fact, as before stated, that after he held relator in his custody and after he was served with the writ herein, he then held him also under a state warrant. Said action came too late to be effective, relator being then held by virtue of the writ of habeas corpus served Upon the sheriff. We are unable to find any authority justifying the arrest and detention of this relator in the manner as disclosed by the record in this case, and we therefore feel compelled to reverse the decision of the lower court and to here direct the sheriff of Rockwall county to discharge the relator from custody.

Relator ordered discharged.
      <§uu>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JUDGE LYNCH INTERNATIONAL BOOK & PUBLISHING CO. v. STATE.
    (No. 5253.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)

      1. Corporations <§=>526 — Partnership <§=> 175 — Liability to Criminal Prosecution.
    There is no provision of law in Texas under which a firm or corporation can be indicted or tried under the criminal laws.
    2. Licenses <S=>42(3) — Firms or Corporations — Liability to Criminal Prosecutions.
    Information, alleging that the Judge Lynch International Book & Publishing Company then and there as a firm . and private employment agency carried on the business of an emigrant agent without first having obtained a license, charges either a firm or corporation and is insufficient, since Act 35th Leg. (3d Called Sess.) c. 36, § 6 (Vernon’s Ann. Pen. Code Supp. 1918, art. 999½), mentions “any person” only as punishable.
    3. Licenses <®=>40, 42(3) — Firms or Corporations — Liability to Criminal Prosecutions — Indictment.
    Any person who does acts inhibited by Act 35th Leg. (3d Called Sess.) c. 36 (Vernon’s Ann. Pen. Code Supp. 1918, arts. 5246 — 101 to 5246— 107, 999½), without license as required, may be prosecuted although using a guise or trade-name, but in such case the indictment should be. against the individual whose acts constitute a violation.
    Appeal from Galveston County Court, at Law; J. C. Canty, Judge.
    The Judge Lynch International Book & Publishing Company was convicted of carrying on the business of an emigrant agent without first having obtained a license therefor from the Commissioner of Labor Statistics, and appeals.
    Reversed, and prosecution ordered dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State. t
   LATTIMORE, J.

This is an appeal from a judgment of conviction of the Judge Lynch International Book & Publishing Company, sometimes called the Judge Lynch International Book Publishing Company, in the county court of Galveston county at law.

The defendant was adjudged guilty and its punishment fixed at a fine of $100 and 30' days’ confinement in the county jail.

The Assistant Attorney General for the state, in his brief, has confessed error, in that a firm or corporation cannot be criminally prosecuted under the laws of this state.

There are no ’bills of exception in the record, so that none of the errors complained of by appellant are properly before this court. No motion to quash upon any proper ground was made, but, as stated by the Assistant Attorney General, there is no provision of law in this state under which a firm or eorporation can be indicted or tried under the criminal laws, as seems to have been the effort here.

It is alleged in the information that the Judge Lynch International Book & Publishing Company is a firm and a private employment agency, of .which E. C. Branch is president, and that a capias can be served upon him. This is the end of any description of the defendant in either the affidavit or the information. It is also alleged as follows:

“The said Judge Lynch International Book & Publishing Company, sometimes known and called the Judge Lynch International Book Publishing Company, then and there as a firm and private employment agency carrying on the business of an emigrant agent without first having obtained a license therefor from the Commissioner of Labor Statistics,” etc.

We are clearly of opinion that the affidavit and information charge either a firm or a corporation, it is not clear which, and therefore charges no offense. In this connection, and as the act under which this prosecution is had is a new one, and possibly of some importance, we observe that said act, which is the work of the Third Called Session of the Thirty-Fifth Legislature, and ap--pears on page 108 of the printed laws of said called session (Vernon’s Ann. Pen. Code Supp. 1918, arts. 5246 — 101 to 5246 — 107, 990½), penalizes any person who violates its provisions, and we call attention to the fact that section 6 of said act (Vemon’s Ann. Pen. Code Supp. 1918, art, 999½), which is the one containing the penalty clause, only mentions “any person” as punishable, and this, in a criminal statute and prosecution, must be a natural person, and omits reference to any firm or corporation. Any person, therefore, who does the inhibited acts, without license as required, may be prosecuted, and the fact that such person uses any guise or trade-name in carrying on the business will make no difference in the form of prosecution and will be no defense, but in such case the indictment should be against the individual whose acts constitute a violation of the law. The pleader might, in a proper case, allege that such person was doing business under whatsoever trade-name might be used.

For the reasons stated, the judgment of the trial court is reversed, and the prosecution ordered dismissed.
      (SsaFor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    VAUGHN v. STATE.
    (No. 5263.)
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1919.)
    1. Criminal Law @=31064(7) — Appeal—Refusal to Charge. .
    In the absence of any statement of the grounds upon which defendant regarded his requested charge applicable, embraced within the exception to its refusal or the motion for new trial, the matter is not so presented as to demand attention "on appeal in view of Acts 33d Leg. c. 138, relating to criminal practice which has been construed consistently with the constructions of chapter 59, on civil practice, relating to the absence of assignments of error in criminal practice.
    2. Criminal Law @=>829(12) — Possession-Explanation — Request Covered by Charge.
    In a prosecution for theft of grain, where defendant’s possession was explained only by his borrowing money from witness to buy the grain, and defendant requested a special charge relating to explanation, given instructions that if the jury believed defendant was not present and did not break into the house, but subsequently received the property or they had reasonable doubt as to his presence, or believed that defendant did not buy the grain, they could not convict, ■ held to sufficiently present defendant’s rights.
    -3. Criminal Law @=>511(3) — Accomplice Testimony— Sueficiency to Sustain Verdict.
    Where grain was of a character difficult to ■identify with such certainty as would justify a conviction for its theft, evidence of an accomplice corroborated by circumstances held sufficient to sustain a verdict of guilty.
    Appeal from District Court, Taylor County ; Joe Burkett, Judge.
    Espia Vaughn was convicted of burglary, and appeals.
    Affirmed.
    H. Rob Keeble and Harry Tom King, both of Abilene, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for burglary.

The fact that a warehouse was broken into .and four sacks of oats mixed with wheat stolen was established by the testimony of the owner of the premises.

To connect the appellant with the offense, the state relied on the testimony of an ac-- • complice and on circumstances corroborating him, proved by other witnesses. The accomplice testified that appellant proposed to get. the feed out of the warehouse, and that he (the accomplice) declined to go with him, but ■ offered to let him have a wagon for the purpose of hauling it; that later, according to. agreement, appellant called him, and he went, with appellant and found that he had two: sacks of oats in the wagon, and two other sacks nearby. These two sacks were loaded in the wagon by the accomplice and the appellant, and hauled first to the premises of the accomplice, where two sacks of the oats were left hidden, and then driven to the home of appellant, where a like disposition was made of the remainder. The course taken was traced by the sheriff. He identified the horse track by a peculiarity in the foot of the animal, and by the presence of oats and wheat along the route described by the accomplice. The grain found at appellant’s house was of the same class and description as that lost, and the testimony was to the effect that the mixture was not usual.

The appellant lived with his stepfather, who testified to appellant’s, absence from his home on the night of the offense, and that the grain was not on the premises on the evening before the burglary, but was there the morning following it. There was other evidence showing appellant’s presence near the burglarized house about 1 o’clock on the night the offense was committed, and that at the time he was in the company of the accomplice, Henery.

The appellant addressed no objections to the charge given by the court, but requested some special instructions, some of which were given and others refused. The refusal of one of these special charges embracing the law applicable to the effect of a reasonable explanation by one found in possession of property, recently stolen is made the basis of complaint.

In the absence of any statement of the grounds upon which he regarded this charge applicable, embraced within the exception to the refusal of the charge or the motion for new trial, the matter is not so presented as to demand ¿ttention. Bain v. State, 73 Tex. Cr. R. 528, 166 S. W. 505; Goldstein v. State, 73 Tex. Cr. R. 558, 166 S. W. 149; Berg v. State, 64 Tex. Cr. R. 618, 142 S. W. 884. The civil practice relating to complaints of the charge is in chapter 59, Acts Thirty-Third Legislature, and the criminal practice on the subject in chapter 138, of the same acts. The construction of the former by the Supreme Court in Ry. v. Dickey, 108 Tex. 126, 187 S. W. 184, is not in conflict with the rule stated in Berg v. State, 64 Tex. Cr. R. 618, 142 S. W. 884, particularly when the practice relating to assignments of error obtaining in civil matters, and the absence of such practice in criminal matters, is recalled. See Sessions v. State, 197 S. W. 718. The complaint of appellant is not, in our opinion, well founded, even if properly presented.

The appellant made no declaration explanatory of his possession of the oats. The only evidence on the subject of an honest claim to them is found in the testimony of a witness who claims to have loaned appellant $1.50 on his statement that he desired to give it to I-Iarry Harper for some feed. This, as we understand the record, occurred on the night of the offense, but prior to its commission. The special charges given at appellant’s request, we think, in connection with the main charge, fairly presented ap7 pellant’s rights under this testimony. One of the charges given involved the proposition that if they believed appellant was not present and did not take part in breaking into the house, but subsequently received the prop-' erty, or they had a reasonabe doubt as to whether he was present and took part, to acquit. And in another they were instructed that they could not convict unless they believed from the evidence beyond a reasonable doubt that appellant did not buy the oats from Harper as testified by the witness Gar-ves. Cleveland v. State, 57 Tex. Cr. R. 356, 123 S. W. 142; Kinkead v. State, 61 Tex. Cr. R. 651, 135 S. W. 573; Baldwin v. State, 31 Tex. App. 589, 21 S. W. 679; Reed v. State, 46 S. W. 931; Smotherman v. State, 47 Tex. Cr. R. 309, 83 S. W. 838; Michie’s Crim. Digest, Tex. Dec., vol. 5, p. 293; also p. 364.

The character of the property stolen is such as to be difficult to identify with such certainty as to' justify a conviction resting alone on its possession. Such, however, is not the case presented. The burglary was shown without dispute by competent evidence. The accomplice’s testimony connected appellant with its commission, and the circumstances corroborating him are sufficient to support the verdict.

The judgment is affirmed.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J. LATTIMORE, J.

text:
    McNEW v. STATE.
    (No. 5038.)
    (Court of Criminal Appeals of Texas.
    Nov. 13, 1918.
    On Motion for Rehearing Feb. 12, 1919.)
    1. Criminax, Law @=627(5) — Service of Indictment-Omission of Letter.
    Defendant’s motion that he had not been served with copy of indictment, and asking postponement for service, was correctly overruled, where indictment as served merely omitted letter “e” in the word “corporeal” describing- property defendant had intended to steal.
    2. Burglary <®=>28(4) — Charge of Nighttime Burglary.
    Indictment for burglary of building not a private residence, which alleged that defendant broke and entered, but did not allege whether it was a daytime or nighttime burglary, charged a nighttime burglary, and court correctly tried case on such theory.
    3. Criminal Law <⅝=>1111(3) — Appeal—Acceptance of Bills of Exception as Qualified.
    Defendant, having accepted bills of exception as qualified by the trial court, is bound by the qualification.
    4. Criminal Law @=726 — Argument of Counsel.
    In prosecution for burglary, district attorney’s remark calling jury’s attention to defendant’s thievish appearance, asking jury to consider his appearance, etc., Jield not reversible error, having been occasioned by remarks of defendant’s counsel.
    On Motion for Rehearing.
    5. Burglary @=9(1) — “Breaking.”
    If defendant entered a barn to steal maize in the nighttime by force applied to the building, as by pushing open a door held shut only by friction, under Pen. Code 1911, art. 1308, in law his act amounted to a “breaking.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Breaking.]
    6. Burglary @=>46(3) — Instructions — Breaking.
    In prosecution for burglary of barn in nighttime, indictment merely charging entry by breaking, trial court did not err in simply telling jury that, if defendant entered by force, he was guilty, omitting to define “breaking.”
    7. Criminal Law @=>419, 420(4), 596(3) — Hearsay — Continuance—Impeaching Evidence.
    Testimony that state’s witness, an accomplice, had stated he and not defendant had committed the burglary charged, was hearsay as to defendant and admissible only to impeach the witness if he denied the statements, and a continuance to obtain such testimony was properly denied.
    Appeal from District Court, Dawson County; W. R. Spencer, Judge.
    Frank McNew was convicted of burglary, and appeals.
    Affirmed.
    Gordon B. McGuire and V. O. Key, both, of" Lamesa, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the-State.
   PRENDERGAST, J.

Appellant was convicted of burglary with the lowest punishment assessed.

The indictment averred that—

On or about February 10, 1918, appellant “did’ then and there unlawfully and by force, threats and fraud break and enter a house there situate and owned by C. Still, without the consent of the said C. Still, and with the intent then and there to fraudulently take from the said house corporeal personal property therein being and belonging to the said C. Still, from the possession of the said C. Still, without his consent and with the intent to deprive the said C. Still, the owner, of said corporeal personal property, of the value of the same, and to appropriate the same to the use and benefit of him, the said Frank McNew.”

Appellant was arrested and placed in. jail March 21st. On that date the clerk issued the proper writ commanding the sheriff to serve him with a copy of said indictment, a properly certified copy thereof being duly attached to the writ and which was on that date served upon him. The copy served was a literal copy of the indictment, except that the word “corporeal” first used in that part of the indictment copied above was spelled “corporal,” evidently by mistake omitting the letter “e” in the latter part of said word. When the case was called for trial on March 26th, appellant made a motion setting up that he had not been served with a copy of said indictment and asking that he be duly served and that the case be postponed for that purpose. The court correctly overruled his motion. The omission of the letter “e” in the word stated was wholly immaterial and was completely corrected by the balance of the indictment. No possible injury could have occurred to appellant by reason of the omission of said “e” in copying said word in the indictment. Johnson v. State, 4 Tex. App. 268; Barrett v. State, 9 Tex. App. 33; Hargrove v. State, 51 S. W. 1124; Luster v. State, 63 Tex. Cr. R. 541, 141 S. W. 209, Ann. Cas. 1913D, 1089; Somerville v. State, 6 Tex. App. 438; Hudson v. State, 10 Tex. App. 227, 228, and cases therein cited; Bailey v. State, 63 Tex. Cr. R. 586, 141 S. W. 224; Reyes v. State, 196 S. W. 532.

The uncontradicted proof shows that the burglary occurred at night. The house burglarized was not a private residence. The indictment alleging that appellant did “break and enter,” and not alleging whether it was a daytime or a nighttime burglary, under the authorities clearly charged a nighttime burglary, and the court in trying the case and in his charge so treated the case. Appellant’s theory, it seems, was that, the indictment not charging specifically a nighttime burglary by alleging that it occurred at night, the indictment alleged only a daytime burglary, and on his theory, which was incorrect, he made objections to the court’s charge which were untenable. The authorities are uniform and many that the indictment herein clearly embraced a nighttime burglary and the court correctly tried the ease on that theory. See cases collated in 2 Branch’s An. P. 0. § 2327. It is therefore unnecessary to take up appellant’s objections to .the court’s charge based on his theory of what the indictment charged.

The alleged owner, 0. Still, whose testimony was not disputed, testified in substance that he was the owner by being in charge and control of the alleged burglarized house, and that he had feed, maize stored therein; that he kept the door locked; that the barn looked like it was entered by the door first. The lock was broken off, staples pulled out, and then two planks were torn off the north side of the barn.

G. R. Brown testified, in substance, that appellant, Bud Wright, and Sam Brown together went from his father’s to said barn about a mile distant about 10 o’clock at night, going on their horses; that he, himself, that night went from his father’s afoot and got .within about 75 or 100 yards of the barn; and that the said three persons entered the barn and took therefrom the maize. Nothing in his testimony or that of any other witness shows, or tends to show, that he was in any way a party to the crime or in any way participated with the parties who did commit the offense.

J. S. or Sam Brown testified that he, appellant, and said Wright together went to said barn that night and took the maize out in cotton sacks on horseback.

Appellant denied the whole transaction and said he knew nothing about it except what he had'heard.

The court gave a proper charge telling the jury that said J. S. or Sam Brown was an accomplice and properly required the corroboration of his testimony. -Appellant asked him if he (the witness) had. not told Walter Long of Howard county and W. O. Cline that he himself (the witness) had committed this burglary and stole said maize and that appellant had nothing to do with it. He denied he told these witnesses any such thing. 'Appellant sought a continuance in order to get these witnesses to dispute Sam Brown on this point. The court overruled his motions, and in qualification of the bills stated that the absent witnesses’ testimony would have been for the purpose of impeachment only. Appellant accepted these bills with this qualification and is bound thereby. Whether said testimony would have had the effect to impeach only may not be correct. His motions show that neither of these witnesses had been subpoenaed and that they lived in other counties. No subpoena was issued until just the day before the case was tried, and one of them on the day the case was tried, though he sets up reasons for this. The court committed no reversible error in overruling the motion for a continuance.

His only other bill is very meager and complains that in the argument of the district attorney he turned and pointed to the defendant and remarked:

“Gentlemen, I want you to look at that. If it does not bear all the earmarks of a thief, then I wouldn’t know it if I should see it.”

To which appellant excepted, etc. The court in approving the bill qualified it by stating that appellant’s attorneys in their argument had asked the jury to consider the appearance and demeanor of the defendant, and the state’s witness said Brown; that the defendant had the appearance of an honest man and that “the Brown demeanor and appearance of pupitess and thieves.” The bill was accepted as qualified, and defendant is bound thereby. Therefrom it is clearly seen that the district attorney’s remark was directly in reply to and occasioned by the appellant’s attorneys’ arguments, and hence, under all the authorities, presents no reversible error.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

This case was at a former day of this term, affirmed, and is now before us upon appellant’s motion for rehearing, in which his counsel, ably and at length, presents certain grounds therefor which we will notice in their regular order.

Three objections are raised to the soundness of this court’s former opinion: First, that this court erred in holding that there was no variance between the copy of the indictment served on appellant and the indictment itself. It appears from the record that the copy used the word “corporal” instead of the word “corporeal.” We do not think there was any error in holding against appellant on this, as it has -been frequently held by this court that the mere misspelling of a word in an immaterial matter is not reversible.

Again, complaint is made that the court erred in misapprehending appellant’s contentions as to errors in the trial court’s charge relating to “entry, breaking, force,” and in erroneously attributing to appellant a theory as follows:

“Appellant’s theory, it seems, was that the indictment not charging specifically a nighttime burglary by alleging that it occurred at night, that the indictment alleged only a daytime burglary, and on this theory, which was incorrect, he made objections to the court’s charge which were untenable.”

Regardless of the verbiage of the opinion heretofore rendered, it is true that appellant’s counsel in an argument, more ingenious than sound, has ably and at length argued that the trial court erred in charging the law applicable only to a nighttime bur- • glary, instead of charging “what the indictment alleged.”

As stated in the original opinion herein, the indictment charged that accused “did then and there unlawfully and by force, threats and fraud break and enter, etc.,” there being no allegation in the indictment whether the same was in the daytime or the nighttime, but the testimony showed without question a nighttime burglary, if any, and an entry through the door of the alleged burglarized building. Nor was it contended in the lower court that, if force was used to effect an entry, it was other than as applied to the building itself. Bearing in mind these facts, and that article 1308, P. G., defines a “breaking” as “the slightest force,” and also that this court has uniformly held that such slight force as pushing open a door held shut only by friction against the frame thereof,, or raising a window that is down, is such force as to constitute a breaking, we are unable to see any force in the position of appellant. If he entered the building at night by force, and by force applied to the building, this, in law, would amount to a “breaking.” In other words, if we rightly comprehend appellant’s contention on this point, it is briefly, that the indictment charges an entry by breaking, and, notwithstanding the evidence shows an entry by force which in law amounts to a breaking, that a wrong is done him by not defining “breaking,” but by simply telling the jury that if appellant entered the house by force he would be guilty. We cannot agree with this interpretation of the law. If there was ■ evidence, even the slightest, raising the question as to whether the entry was by force other than as applied to the building, or if there was any doubt as to whether the slightest force applied to the building to effect an entry constitutes a legal breaking, in either event we might hold otherwise ; but such is not the case here.

The remaining contention of appellant is that the trial court erred in overruling his application for a continuance, same being for some witnesses by whom he expected to prove statements made by a state’s witness who was an accomplice to the effect, that he (said witness), and not appellant, had committed the burglary. We are clearly of the opinion that such evidence as to this appellant was hearsay and would have been admissible only for the purpose of impeaching said state witness in the event he denied making the alleged statements, and denials of applications for continuances have been upheld by this court when it appeared that the absent witness was only for the purpose of impeachment. Counsel for appellant cite, in support of their contention that this evidence is admissible for purposes other than impeachment, the case of Harrison v. State, 47 Tex. Cr. R. 393, 83 S. W. 699. That was a homicide case in which the court, by some limitations in his charge, deprived the jury of the right to consider certain testimony which clearly appears to have been admissible as original testimony on that trial. The other case cited by counsel is that of Tull v. State, 55 S. W. 61. In that case the application for a continuance was for absent witnesses by whom appellant expected to prove a statement made by the deceased mother of the prosecutrix in a rape case to the effect that her daughter was born at a certain time, which would make her over the age of consent at the time of the rape; by the other witness that he had heard the prosecutrix’s father make statements as to her age, and had seen the family Bible in which the age of the prosecutrix was written down, and that such testimony would show that she was beyond the age of consent. This court has held that testimony such as this, going to show the age, could in some cases, be proved by hearsay, which would mate same admissible as evidence in chief, and we do not think this case is' authority for appellant’s contention.

Counsel for the appellant have shown great research and ability in the preparation of their motion for a rehearing, but we are unable to agree with them in the soundness of their propositions.

The motion for rehearing is overruled.
      ®s>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte HARDCASTLE.
    (No. 5230.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.)
    1. Habeas Corpus <®=>13 — Persons Held Under Quarantine.
    Relator, held under order of city health officer by virtue of quarantine regulation established in accordance with Acts 35th Leg. (4th Called Sess.) c. 85, under a statement of order of arrest that according to information of health officer she is affected with gonorrhea, had the right to have the legality of her detention inquired into in a habeas corpus proceeding.
    2. Health <§=»21 — Police Power — Quarantine Regulations.
    Legislature under police power has authority to authorize establishment of quarantine regulations for protection of the public against contagion, and incident thereto to authorize arrest and detention of persons, whose condition is such as to spread disease.
    3. Constitutional Law <@=»306 — Due Process — Persons Held Under Quarantine.
    Under Acts 35th Leg. (4th Called Sess.) c. 85, as to quarantine regulations for prevention of contagion, the proper health officer may issue a warrant by virtue of which a lawful arrest may be made without affording the person affected -a preliminary hearing.
    Original application for a writ of habeas corpus by Emma Hardcastle.
    Writ ordered granted.
    Fred N. Cowen and Leonard Brown, both of San Antonio, for appellant.
    B. E. Looney, Atty. Gen., D. A. McAskill, Dist. Attjr., of San Antonio, Geo. M. Thurmond, Asst. Dist. Atty., of Del Rio, and W. A. Keeling, C. M. Cureton, and E. B. Hendricks, Asst. Attys. Gen., for the State.
   MORROW, J.

This is a habeas corpus proceeding in which the relator is held under an order of the city health officer of San Antonio, by virtue of quarantine regulations established in accord with chapter 85 of the Acts of the Fourth Called Session of the Thirty-Fifth Legislature under a statement of the order of arrest that, according to the information of the health officer, relator is affected with gonorrhea.

The form of the order is not involved, the agreed statement of facts containing the following: ■ ■

“It is further agreed that the sole issue iu the case is whether or not the decision of the proper health officer is final or whether the same can be inquired into by writ of habeas corpus.”

The Legislature, under the police power, has authority to authorize the "establishment of quarantine regulations for the protection of the public against contagion from those persons whose condition is such as to spread disease, and, incident thereto, to authorize the arrest and detention of such persons; and such, we understand, is the purpose of the statute in question. Under its terms, the proper health officer may issue a warrant by virtue of which a lawful arrest may be made without preliminary thereto affording the person affected a hearing; but if, after arrest, such person challenges the right of the authorities to continue the detention, the fundamental law accords him the right to have the legality of his detention inquired into by a proper court in a habeas corpus proceeding. The law denies to no one restrained of his liberty without a hearing the right to prove in some tribunal that the facts justifying his restraint do not exist. Ruling Case Law, vol. 6, p. 435, § 449. The health authorities causing the arrest of relator derive their power to do so from the alleged existence of the fact that the relator is affected with the disease mentioned, and that her detention is required in the public interest to prevent contagion. If those facts do not exist, the officer has no jurisdiction to continue the restraint and the court in the habeas corpus proceeding has authority to inquire whether the facts essential to jurisdiction exist. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111.

The decision of the Supreme Court of Washington (State v. Superior Court for King County, 174 Pac. 973), to which we have been referred as illustrating an exception to this rule, does not, we think, extend so far as to support the contention of the respondent that the decision of the health officer who ordered the arrest of the relator is conclusive against her right to an inquiry in a habeas corpus hearing touching the existence of the facts ‘upon which such officer acted. The Washington decision construed a statute passed under a special provision of the Constitution of that state, authorizing the “establishment of boards of health with such powers as the Legislature may direct.” Const, art. 20, § 1. The statute enacted under this power did not make the initial order of arrest conclusive, but established the board of health as a forum of appeal, and specially provided that its •decision reviewing that of the health officer ■should be final.

Our Constitution, unlike that of the state ■of Washington, contains no special provision •on the subject; but the power to establish quarantine, as existent under our Constitution, is an incident of the police power vested in the Legislature under the gener■al power to pass laws. Our statute does not declare that the initial order of arrest shall be conclusive; nor does it designate any tribunal to whom one detained under an order of arrest issued by the health officer may appeal for a hearing. The fair and reason•able interpretation of the statute under which relator is held, we think, is that which accords the health officer the power to order the arrest and detention, leaving to the person detained the right to invoke the decision of the established judicial tribunals of the state on questions raised, either of fact ■or law, involving the validity of the detention.

We conclude that under the act of the Legislature in question the relator had the right to a hearing on writ of habeas corpus, and therein to prove the nonexistence of the facts necessary to authorize her continued detention and thereby obtain release. Pacts essential to determine whether she should or should not be held not being available in this court, it is ordered that the writ of habeas corpus prayed for be granted, and that it be referred for hearing to Hon. R. B. Minor, Judge of the Fifty-Seventh judicial district of Texas.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J! LATTIMORE, J.

text:
    STANDFIELD v. STATE.
    (No. 4920.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.
    On Motion for Rehearing, Jan. 22, 1919.)
    1. Criminal Law <@=>511(1) — Accomplice Testimony!
    In prosecution for cattle theft, testimony, ■even if that of accomplices, held sufficiently-corroborated to sustain conviction.

      2. Criminal Law <@=>741(5) — Accomplices— Question eor Jury,
    In prosecution for cattle theft, trial court properly submitted to jury question whether some, any, or all of certain witnesses were accomplices.
    On Motion for Rehearing.
    8. Criminal Law <@=>701(13) — Instruction Assuming Guilt.
    In prosecution for cattle theft, charge on accomplice testimony held erroneous, as assuming defendant was guilty, if accomplice testimony was true.
    4. Criminal Law <@=>511(1), 560 — Accomplice Testimony — Conviction.
    To justify conviction, jury must not only believe accomplice testimony to be true, and that it is corroborated, but such testimony, .with other testimony, must make out case beyond reasonable doubt.
    5. Criminal Law <@=>780(3) — Accomplice. Testimony — Instructions.
    Charge on accomplice testimony, to be sufficient, should (1) define accomplice; (2) give statutory inhibition against conviction on uncorroborated accomplice testimony; (3) state that corroborated evidence must be as to some material matter, etc.; and (4) apply law to facts.
    6. Criminal Law <@=>1059(2) — Appeal—Specific Exception to Instruction.
    Exception of appellant from conviction of cattle theft to paragraph of charge complained of as assuming that appellant was guilty, if accomplice testimony was true, held sufficiently specific in pointing out error complained of.
    Appeal from District Court, Cottle County ; J. H. Milam, Judge.
    Tom Standfield was convicted of cattle theft, and appeals.
    Reversed, and cause remanded.
    J. Mr Hawkins, of Hempstead, and Williams & Williams, of Waco, for appellant.
    Moses & Rowe, of Pt. Worth, and E. B. Hendricks and E. A. Berry, Asst. Attys. Gen., for the State.
   PRENDERGAST, J!

Appellant appealed from a conviction of cattle theft, with a penalty of three years assessed against him.

He claims that three of the state’s witnesses, Alex Shinault, Alvie Tucker, and his wife, Etta Tucker, were accomplices, and that their testimony showing the offense was not sufficiently corroborated to justify conviction.

The animal was alleged to have been taken from Johnnie Jones, the owner, on or about January 18, 1914. The indictment was preferred on April 4, 1917.

The testimony shows that said Jones had the care, control, and management of what is called the OX ranch, in Cottle county. This ranch was apparently quite a large one. It was on both sides of the Pease river. In February, 1914, there were about 2,000 head of cattle on said ranch, owned by said Jones, as stated. The owner’s brand on said cattle was OX- Their mark was “7 under Bit” in each ear. Appellant owned at that time a 100-acre place just across the road and along the side of said ranch. ' His 160 acres ran down very close to the Pease river. Jones swore that he never gave appellant or any other person permission to handle or kill a red yearling or coming two year old heifer, and he did not give anybody permission to handle, dispose of, or kill any QX cattle, nor did he sell any heifers around in ’that country at that time; that they never sold anything, only what went out of the country, or to be shipped and slaughtered; and that he never gave appellant or any one else permission to handle, kill, or dispose'of any OX cattle. On cross-examination he swore that he knew nothing about the facts of this alleged theft, nor of appellant’s connection with the alleged stolen animal. He swore:

“I do know that our cattle get out on the river once in a while. The fence up there right across from appellant’s wasn’t extra good.” That he did not miss any cattle, and with the large number they had they never could tell — that they couldn’t miss one yearling.

On appellant’s place there were two sets i of small houses, about 300 yards apart. Said Alvie Tucker and his wife, Etta, his tenants, lived in one, and the Shinaults in the other. It seems he was in and out of his place, and part of the time boarded and stayed at Tuck■er’s — not any great length of time, nor continuously, but occasionally from time to time. The Shinaults had moved on his place in January, 1914. He had 15 or 20 head of cattle in February, running in a stalk field on his place. On or about February 12, 1914, appellant was at Shinault’s, as well as some relatives of the Shinaults by the name of Hicks. At that time Mr. and Mrs. Shinault had some six minor children living with them. Among them was their son, Alex Shin-ault, a boy about IS years old, and a daughter, Safronia. A few days after the alleged theft, old man Shinault became sick and remained so until he died on February 24th. "The Hickses, who were visiting Shinaults at that time, were related to the Shinaults— Mrs. Shinault’s nephews. There were four •of the Hickses there on the day the animal was butchered.

The proof shows that old man Shinault at that time owned a Jersey steer or bull yearling and that it was in the pasture on appellant’s place that Shinault then had rent■ed; that old man Shinault needed provisions and intended to slaughter his said yearling for beef at that time, and so announced to ■the company, including his wife and daughter and said son and the Hickses and appellant. Appellant thereupon said to Mr. Shin-ault that he had a red heifer yearling which he would trade him for said steer yearling, if Shinault would give him the hide of the heifer yearling to boot between them. Mr. Shinault told appellant that if his red heifer was fit for beef he would trade with him. Thereupon appellant asked Alex Shinault to get on his (appellant’s) horse, go down in the stalk field, and drive up all of his cattle. The boy, Alex Shinault, complied with this request, went down in the field, and drove up into Mr. Shinault's lot what appellant said were his cattle, including the said red heifer. Then appellant pointed out to Mr. Shinault his claimed red heifer as the one he proposed to trade for Mr. Shinault’s Jersey steer or bull. Upon looking at it and asking Mr. Tucker, who was also present, if the red heifer was fit for beef, and Mr. Tucker telling him he thought it was, they traded. Mr. ■Shinault then shot and killed said red heifer. He and his son Alex, Mr. Tucker, and appellant skinned and dressed it for beef. Mr. Shinault at the time sold to Mr. Tucker half of the beef, for which Mr. Tucker paid him $8, the value of it. Mr. Tucker then took his part of the beef to his home, hung it up in his barn, and he and his wife ate it until they ate all of it. Appellant a.t the time was staying at Mr. Tucker’s.

So far as the Shinaults, Tuckers, and Hickses were concerned, the testimony was sufficient to show, and we 'think did show, that they each and all were acting in the utmost good faith, and that neither of them believed or had any reason to believe that any of them were at the time in any way par-ticeps criminis in the theft of said red heifer by appellant from said Jones.

We will give in substance briefly the testimony of several of the witnesses. Alex Shinault testified that his father at said time owned a Jersey year old past steer running in the pasture where they then lived, and that he determined to kill it for beef; that appellant was present when he announced this, and told his father that he had a red heifer yearling he would trade him for said steer, and that his yearling was larger than his father’s and proposed to trade his red heifer for said steer if Shinault would give him the hide of the red heifer to boot; that appellant called him, and told him to get on his horse, go down in the field, and drive up his cattle, which he did, there being some 15 or 20 head of them; that appellant then pointed out to his father said red heifer yearling, and that they then traded yearlings on the terms proposed by appellant; that they then turned out of the lot all of the other cattle, and his father then shot and killed for beef the red heifer which appellant had just traded to him for said steer yearling; that his father, he, appellant, and said Tucker then skinned and dressed the beef; that his father sold half of it to Tucker at the time for $8, which Tucker then and there paid him for; that appellant rolled the hide up, put it in a sack, and carried it over to and put it in, Tucker’s barn; that at the time that appellant started to roll the hide up he noticed that the brand was OX and that the earmark was “7 under bit” in each ear; that, when appellant and his father traded as stated, he, his father, Alvie Tucker, and four of the Hicks men, his uncles, were present, and that his mother and his two grown sisters and the other little folks were also there. On cross-examination he testified that he thought the cattle he ran up at appellant’s instance and drove into his father’s lot were appellant’s; that at the time appellant and his father traded that he did not pay the yearling any mind, than that he saw it and looked at it. He did not look close enough at that time to see the brand.

Alvie Tucker testified, among other things, that he moved on appellant’s place about January, 1913, and continued to live on it until about June, 1914; that he lived in one of the two houses on appellant’s place, and Shin-ault, at the time said alleged animal was slaughtered, lived in the other, with his family ; that on that occasion some of Shinault’s kinsfolk were visiting him — the Hickses— and he was up at Shinault’s at the time; that Mr. Shinault had'a little Jersey steer yearling, which he had determined to kill that evening for beef, and that appellant told him he would trade him a heifer he had for that steer, he (appellant) keeping the hide to boot, and Mr. Shinault told Mm he would trade with him if his (appellant’s) was fat enough for beef; that appellant then had Alex Shinault to get on his (appellant’s) horse, and go down in the stalk field, and drive up the bunch of cattle, which Alex then did; when they got the cattle in the pen, appellant pointed out the heifer yearling, and he and Shináult then traded, and Shinault shot and killed and slaughtered the heifer for beef; that he helped to slaughter it, and that he bought half of it from Mr. Shinault at the time and paid him $8 for it; that when he bought it he carried it home and put it in his barn; that at the time appellant put the hide of the animal in a sack and carried that over and put it in his barn; that he saw the brand on said hide, which was the OX brand, and that he knew at the time that Jones had charge of the OX cattle; that the next evening late appellant carried this hide off down in the OX pasture, and that he (the witness) was there when appellant returned, and he asked him what he had done with the hide, and appellant said he had carried it down and scattered it out in the pasture for the coyotes; that at the time old man Shin-ault butchered said heifer he, Aiex Shinault, three of the Hicks boys, old man Shinault, and his wife and two daughters were there. On cross-examination he testified that the animal killed on this occasion was a red heifer; that when Alex Shinault drove it in his father’s lot, as stated, he did not notice any particulars, just .noticed it was fat enough for beef; that Mr. Shinault asked him if it was, and he replied to him that he thought it was; that he did not at that time examine it enough to see whether it had a brand on it.

Mrs. Etta Tucker, the wife of Alvie Tucker, testified that she remembered of the beef being killed at Mr. Shinault’s; that her husband brought part of the beef home with him, when he and appellant came to her home from where the beef had been slaughtered; that the next morning appellant brought into her kitchen a piece of the fresh hide with the OX brand on it, and also the ears of the animal, and burned that piece of the hide and said ears! On cross-examination she testified that, when her husband brought this beef to her house, she did not ask him where he got it, because she knew they had killed a beef at Mr. Shinault’s, and that she could see them out there at the time; that where she lived was just a short distance from where they slaughtered the beef; that she did not tell any one except her husband about appellant’s burning said ears until some time in the spring of 1917; that she was not at Shinault’s the day the yearling was killed, but that she was in her home standing in the door when she saw them and they were killing the yearling. Erom where she was she could not tell whether it was branded or not. On redirect examination she swore that, on the evening of the morning on which appellant burned the ears and piece of hide on which the brand was, appellant was at her house, and went off, and came back, and that her husband asked him where he had been, and he laughed, and said he had scattered that hide out for the coyotes.

Appellant reintroduced Alvie Tucker, who testified that his wife told him at the time about appellant’s burning said piece of the hide, and that she did the cooking — cooked the meat and ate part of it; that they continued to eat that meat until it was all eaten up. He also reintroduced Mrs. Tucker, who on this point testified substantially to the same thing.

The state introduced Mrs. Safronia Callo-way, daughter of Mr. and Mr. Shinault, 'Mrs. Mattie Shinault, widow of Mr. Shinault, who died about ten days after said animal was slaughtered, and Rankin Hicks, each of whom corroborated said witnesses Alex Shinault and Mr. and Mrs. Tucker.

Mrs. Calloway testified that, on the evening said animal was killed and slaughtered for beef by her^father, she was present with several others when appellant and her father traded yearlings as shown above; that for some reason appellant wanted the steer yearling owned by her father, wMcli he proposed to kill for beef; that the yearling her father owned and intended to kill was a Jersey bull yearling, and that appellant traded the said heifer for her father’s steer yearling, appellant reserving the hide of the slaughtered animal to boot; that at the time this trade was proposed between them she and others were out at the windmill where the trade was proposed; that she could not say who drove them up and put them in the pen; that she did not actually see the animal killed at the time, but that she was in the house, and heard the shot fired, and saw part of the meat that was brought to the house; that she did not know for sure whom the animal belonged to at the time it was killed. On cross-examination she stated that when she was out at the windmill, where the trade was proposed by appellant, that her father, brothers, appellant, Sir. Tucker, and four of the Hicks men were present. She swore:

“I do know that the yearling was killed there and some of the meat was brought into the house. It was a red yearling. I saw it. I saw it when they drove it up. I never saw the brand on it. I just saw it at a distance. I think it was the only yearling that they drove up. I was there where I could see it.”

Mrs. Mattie Shinault, the widow of the old man, who died shortly after the slaughter of said animal, swore that she remembered a heifer yearling being killed at her husband’s about the time alleged; that her husband had a steer yearling which he started to kill for beef; that appellant traded them the heifer yearling for that steer, and they butchered the heifer that appellant then traded to her husband; that the trade made between appellant and her husband at the time was that appellant was to take the hide to boot between the two yearlings; that, when they first commenced talking about that yearling, it was down in the field with other cattle ; that Alex drove up the cattle, and this yearling they killed; that she did not actually see the yearling killed, for she was in the house, but she heard the shot fired; that there were other cattle driven up with this heifer at the time; that she saw appellant and Alvie Tucker leave there after the animal was slaughtered, and that Tucker took part of the beef away with him; that she saw Tucker pay her husband for some of the beef, but she did not know how much he paid. She said:

“I know Tom Standfield [appellant] put that hide in a sack and taken • it down to Alvie Tucker’s. I do not know what brand was on that animal that was killed there that day. I did not know who that animal belonged to. I did not have any knowledge that the animal killed that day was a stolen animal.”

On cross-examination she swore that the yearling her husband- killed on that occasion was a red yearling.

Rankin Hicks testified that he was present at the old man Shinault’s at the time appellant traded him said red heifer yearling for Shinault’s Jersey steer yearling or bull; that his uncle, old man Shinault, had a Jersey steer out there in the pasture and said he was going to kill it; appellant said he had a red heifer and would trade for it and take the hide to boot, and that his uncle, old man Shinault, took him up; that Alex Shinault drove up the cattle, including said red heifer yearling, and that, after the trade was consummated between appellant and his uncle, his uncle killed it by shooting it; that his uncle kept part of that meat, and Alvie Tucker took the other part; that Tucker bought the part he had from his uncle; that appellant rolled the hide up, put it in a sack, and carried it over to Alvie Tucker’s barn; that he noticed that the mark on the animal slaughtered was a “7 under bit” in each ear; that he did not notice the brand; that this animal was butchered about the 11th or 12th of February.

Appellant himself testified, and stated that at the time of the trial he lived near Waco, Tex.; that at the time he is alleged to have traded a yearling to Mr. Shinault he did not then remember just where he did board, but that part of the time he boarded at the jail with Mr. Baecus. He denied boarding with Tucker at that time, but said, in passing back and forth, that when he came through near night he" would stay there all night sometimes with them. He denied that, at the time in February when the other witnesses swore, he traded with Mr. Shinault a red heifer for a Jersey steer. He did not help Tucker at that time, or at any other time, or old man Shinault skin a yearling. 'He never took a hide from Shinault’s to Tucker’s barn, and never kindled a fire and burned a hide with an OX brand on it at Mrs. Tucker’s. He denied the conversation with Tucker and his wife about scattering the hide of that animal out for the coyotes, and denied that he was at Tucker’s or Shinault’s on or about the 10th or 12th of February, 1914, and said:

“I know nothing about a calf or heifer calf being killed at that time.”

The evidence as a whole was clearly sufficient for the jury and lower court to believe, as they did, that appellant stole from said Jones said red heifer, and the testimony of the witnesses Alex Shinault, Alvie Tucker, and Mrs. Etta Tucker, even if they or either of them were accomplices, was amply and fully corroborated by the other witnesses as shown above. So that, if it could be held that said three witnesses claimed by appellant to be accomplices were accomplices, then their testimony was amply corroborated and altogether showed appellant’s guilt.

Appellant’s other contention is that the court committed a reversal error in not charging as a matter of law that Alex Shin-ault, Alvie Tucker, and Etta Tucker were accomplices. The court on this point charged the jury as follows:

“A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense, and one accomplice cannot corroborate another accomplice. An accomplice, as the word is here used, means any one connected with the offense committed, either as principal offender, as an accomplice, as an accessory, or otherwise. It includes all persons who are connected with the crime by unlawful acts or omission on their part, transpiring either about, at the time, or after the commission of the offense, and whether or not he or she was present and participated in the commission of the crime or not. Now, if you should be satisfied from the evidence that the witness Alex Shinault, Alvie Tucker, or Mrs. Etta Tucker, or either one of them, was an accomplice, or if you have a reasonable doubt as to whether they, or either one of them, or not, as that term is defined in the foregoing instruction, then you are further instructed that you cannot find the defendant guilty upon their testimony, unless you are satisfied beyond a reasonable doubt that the testimony of said witness or witnesses is true, and you are further satisfied by other evidence, beyond a reasonable doubt, that the said testimony of said witness or witnesses have been corroborated by other evidence tending to establish beyond a reasonable doubt that defendant did commit the offense as charged.”

Therefrom it is seen that the court’s charge copied literally the statute (article 801, C. O. P.) applicable to the testimony of an accomplice, and in addition defined who an accomplice was in its broadest and most comprehensive sense, in accordance with the uniform and many decisions of this court, and is strictly in accordance with section 702, 1 Branch’s An. P. C., and cases there cited.

Whether or not any witness is an accomplice, particeps criminis as to the crime charged, is a question of fact, and must ordinarily be left for the jury to find under a proper charge defining who is an accomplice. This may not apply to the crime of seduction, for the statute (article 789, O. C. P.) in effect makes the seduced female as a matter of law an accomplice, and requires that her testimony shall be corroborated.

Bearing on the question of whether or not said Alex Shinault and Alvie Tucker were accomplices, it is proper to state that they each 'had been indicted at a different time, and before appellant was indicted, for the theft of said red heifer, and Tucker had agreed with the state in effect to testify as a witness for the state in this case, on the state’s agreeing to dismiss the case against him, and on the further agreement by Alex Shinault to plead guilty and get a suspended sentence.

In the opinion of this writer it is doubtful if the evidence as a whole was sufficient to show that either of said three witnesses was an accomplice.* But, at any rate, the evidence as a whole would not have justified the court in taking the question of whether or not either of the said witnesses were accomplices away from the jury, and charged as a matter of law that they or either of them were accomplices. The question was properly submitted by the trial judge to the jury to determine this question.

In Zollicoffer’s Case, 16 Tex. App. 317, one Green, as the court stated, “was unquestionably an accomplice.” He had been indicted for the same offense and turned state’s evidence in order to avoid being prosecuted himself. The court therein submitted the question to the jury for it to decide whether he was an accomplice and if he was he had to be corroborated. The appellant therein contended that the court submitting the question to a jury was error, and that the court should have told the jury in his charge that such witness was an accomplice; this court holding:

“Whilst it would not, under some facts, be improper for the court in its charge to assume, and to instruct the jury, that a witness is an accomplice (Williams v. State, 42 Tex. 392; Barrora v. State, 42 Tex. 260), still we do not think it is error to submit the question to the jury. It has been the practice in such cases to submit this issue to the jury, and, believing the practice to be a safe and proper one, and in harmony with the spirit of our system of procedure, we are not disposed to change it.”

In Ransom v. State, 49 S. W. 582, this court, through Judge Brooks, stated that the appellant therein complained that the court erred in submitting to the jury the issue as to whether or not a certain witness was an accomplice, and said: ,

“The court committed no error in this regard. While it would not, under certain states of fact, be improper for the court in his charge to assume and instruct the jury that a witness is an accomplice, still we do not think it is-error to submit the question to the jury. In such cases it has been the practice to submit this issue to the jury, and, believing the practice to be a safe and proper one, and in harmony with the spirit of our system of procedure, we are not disposed to change it. Zollicoffer v. State, 16 Tex. App. 317.”

In Hankins v. State, 47 S. W. 992, on this question Judge Henderson, speaking for the court, said:

“The question as to whether or not a witness is an accomplice is always a question of fact, and it is always proper for the court to leave this matter to the jury, even though the evidence should be overwhelming to the effect that: a witness or witnesses are accomplices.”

In Carroll v. State, 62 S. W. 1061, on this-point Presiding Judge Davidson, speaking: for the court, held:

“It is true the court might have charged the jury that the witness was an accomplice, as it is an unquestioned fact; but it is not reversible error for the court not to do so. The court submitted it as an issue of fact.”

In Dill v. State, 28 S. W. 950, this court,, through Judge Davidson, again said:

“Whether or not a witness is an accomplice is a question of fact, and the charge may be-so framed as to submit this as an issue to the jury. It was not necessary in this case to-instruct the jury that Anderton was an accomplice, and in submitting this as an issue to be passed upon by the jury the court did not err, although he is clearly shown to be an accomplice. No jury of ordinary intelligence could have failed to find that he was an accomplice. Elizando v. State, 31 Tex. Cr. R. 237 120 S. W. 560].”

Again in Vails Case, 59 Tex. Cr. R. 342, 128 S. W. 1117, this court, through Judge McCord, on this point, after discussing and citing some cases where it had been held that it was proper to instruct that certain witnesses under certain circumstances were accomplices without submitting that question to the jury, held:

“We do not believe that a well-considered case can be found where this court has reversed the case because of the failure of the court to instruct the jury that certain witnesses are accomplices. In the Zollicoffer Case, 16 Tex. Cr. R. 312, this court, speaking through Judge Willson, says: ‘It is insisted by appellant that the court erred in submitting to the jury the question as to whether or not the witness Green was an accomplice; that the court should have directly charged the jury that he was an accomplice, the evidence being so conclusive of that fact. Whilst it would not, under some facts, be improper for the court in its charge to assume and to instruct the jury- that a witness is an accomplice, still we do not think it is error to submit the question to the jury. It has been the practice in such cases to submit this issue to the jury, and, believing the practice to be a safe and proper one, and in harmony with the spirit of our system of procedure, we are not disposed to change it.’ The doctrine laid down in the Zollicoffer Case was approved in the case of Elizando v. State, 31 Tex. Cr. R. 237 [20 S. W. 560]. In the case of White v. State, reported in 30 Tex. Cr. R. 652 [18 S. W. 462], this court, speaking through Judge White, says: ‘The charge is objected to because it did not instruct the jury in so many words that the witness Powell was an ac- * complice. The charge submitted this question" to the jury. * * * The court did not err in submitting this question to the jury for their determination.’ This rule seems to have been followed by this court in the case of Hilton v. State, 41 Tex. Cr. R. 190 [53 S. W. 113]; Moore v. State, 47 Tex. Cr. R. 410 [83 S. W. 1117]; Davis v. State, 55 Tex. Cr. R. 495 [117 S. W. 159]. We therefore hold that it is not reversible error to submit the question as to whether the witness is an accomplice to the jury to be found by them as a fact.”

On this point also see Creech v. State, 70 Tex. Cr. R. 238, 158 S. W. 277, and cases there cited, and 1 Branch An. P. 6. § 712.

There might be some cases in which the court should he required to charge that a certain witness is an accomplice as a matter of law, yet this is not that kind of a case. The court correctly submitted the question to the jury, for them to determine whether or not the said witnesses, or either of them, were accomplices, and then substantially told the jury in accordance with the law that their testimony had to be corroborated before a conviction could be predicated upon their testimony. No error was committed by the court in refusing to charge that the said witnesses were as a matter of law accomplices.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

This case is before us on appellant’s motion for rehearing.

Complaint is made that in the former opinion of this court a most serious contention of appellant was not discussed or passed upon, to wit, that the court’s charge on accomplice testimony was erroneous in assuming that the accused was guilty if the accomplice testimony was true.

An inspection of the former opinion convinces us of the justice of the complaint. The charge objected to is as follows:

“Now, if you should be satisfied from the evidence that the witness Alex Shinault, Alvie Tucker, or Mrs. Etta Tucker, or either one of them, was an accomplice, or if you have a reasonable doubt as to whether they, or either one of them, or not, as that term is defined in the foregoing instruction, then you are further instructed that you cannot find the defendant guilty upon their testimony, unless you are satisfied beyond a reasonable doubt that the testimony of said witness or witnesses is true, and you are further satisfied by other evidence, beyond a reasonable doubt, that the said testimony of said witness or, witnesses has been corroborated by other' evidence tending to establish beyond á reasonable doubt that defendant did commit the offense as charged.”

It will be seen that this charge authorized a conviction of appellant if the jury believed the testimony of these three named witnesses to be true, and that there is other evidence tending to establish that appellant committed the offense.

This is not the law. Not only must the jury believe the accomplice testimony to be true, and that it is corroborated, but it and the other testimony must make out the case beyond a reasonable doubt, and the jury should be so told directly and pertinently. Stripped of verbiage and stated positively, instead of in the negative, this charge instructs the jury that if they believe the accomplice testimony is true, and that there is other evidence corroborating it which tends to establish appellant’s guilt, they could convict. This might be true, m fact, in some cases, and not true in others, and it is not the correct announcement of a legal principle. It is a direct charge on the weight of the evidence, and assumes that„ if the testimony of these witnesses be found true, it would justify a conviction, provided there be corroborating evidence. As stated, it might and it might not justify such conviction ; this being for the jury and not for the court. A charge almost exactly similar to this was condemned in Grant’s Case, 60 Tex. Cr. R. 358, 132 S. W. 350.

A charge on accomplice testimony, to be sufficient, ought to, first, define what is an accomplice; second, give substantially the statutory inhibition against conviction on accomplice testimony without being corroborated ; third, tell the jury in substance that the corroborating evidence, to he sufficient, must be as to some material matter, and must tend to connect the accused with the commission of the offense; and, fourth, must apply the law to the facts, and tell the jury that they cannot convict on the testimony of -, who is an accomplice (if they find him to be an accomplice), unless they believe from the testimony of said accomplice, taken with all the other testimony in the case, beyond a reasonable doubt, that the accused is ■guilty as charged, and unless they further find" and believe there is other evidence than fhat of the accomplice as to some material matter, which corroborates said accomplice and tends to connect the accused with the commission of the offense.

There are many approved charges on this subject in the books, which we commend to the trial judges.

It was contended by the state on this rehearing that the exception to this paragraph of the court’s charge is not specific enough, and that it did not point out the error complained of. Let us see. Appellant excepted to paragraph 7 of the court’s charge which is the one under consideration, as follows:

“For the reason that said paragraph assumes that the testimony of Alex Shinault, Alvie Tucker, and Mrs. Tucker, or some of them, make out a case of theft against the defendant.”

The court in said paragraph had told the jury they could not convict on the testimony of these same people, “unless you are satisfied beyond a reasonable doubt that such testimony is true.” Appellant might have used-different words in his exception, and might have said he excepted to paragraph 7 of the court’s charge, because the same stated, substantially, that if the jury believed the testimony of Alvie Tucker, Mrs. Tucker, and Alex Shinault was true they should convict; but we fail to see any appreciable difference between his statement that said charge assumed that their testimony made out a case, and the instruction, if their testimony was true, appellant might be convicted thereon. We think the two statements substantially the same, and the exception is sufficient.

The motion for rehearing is granted, and the judgment is reversed, and the cause remanded for a new trial.
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