text:
    HILLIS v. STATE.
    (No. 3124.)
    (Court of Criminal Appeals of Texas.
    May 6, 1914.)
    1. Homicide (§ 118) — Self-Defense—Right OF LANDLORD.
    A landlord who let farm land for crop rent, the tenant agreeing to work the crops, may, upon the tenant’s failure, enter and work the crop for the benefit of both, and, where he peacefully acquired possession, .he is not a trespasser, and, if the tenant attempts by display of force to drive him from the land, may defend himself.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 168-171; Dec. Dig. § 118.].
    2. Homicide (§ 276) — Trial—Instructions.
    Where accused claimed that he entered upon his land to work the crop for the benefit of himself and his tenant who *had abandoned it, and that upon the tenant’s attempting to drive him therefrom by display of force he killed deceased in defending himself, he is entitled to have his theory of the ease submitted, and it i§ improper for the court to charge that he was under no circumstances entitled to go upon-the land.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 569; Dec. Dig. § 276.]
    3. Homicide (§ 192) — Evidence—Admissibility.
    Where accused, who had rented his land for crop rent, entered and commenced cultivation when the tenant abandoned the crop, and, upon the tenant and deceased attempting to drive him therefrom by display of force, killed deceased, evidence of the advice given by a justice of the peace whom accused consulted before he entered on the land is admissible to show that he had no intention of provoking a difficulty and killing the tenant or any one who attempted to assist him.
    [Ed. Note. — Eor other cases, see Homicide, Cent Dig. § 415; Dec. Dig. § 192.]
    4. Homicide (§ 182) — Evidence—Admissibility.
    Where accused, who leased his land for crop rent, killed deceased when he and the tenant attempted to drive accused from the land, upon which he entered to work the crop, claiming that the tenant had abandoned it, evidence of the condition of the crop is admissible on the question of abandonment.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 386; Dec. Dig. § 182.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Wylie Hillis was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    R. H. Jones, of De Kalb, and R. D. Hart, of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

On an indictment charging murder, appellant was convicted of manslaughter and his punishment assessed at three years in the penitentiary.

The material facts are practically undisputed. They show that appellant, Hillis, rented to Anias Griffin from 12 to 18 acres of land for the year 1913. Griffin was to pay one-third of the corn and one-fourth of the cotton as rent. Appellant testified, and Griffin did not deny it, that Griffin first applied to appellant to rent the land for his (Griffin’s) brother. Appellant declined to rent to Griffin’s brother, and, upon further negotiations to rent it himself, appellant said he knew Griffin had a hired hand and he asked him, in case the hired hand quit, would he work the crop on his land anyway, and Griffin told him he would; that if he rented it he would work appellant’s land if he had to let the other that he had lie out; and that he thereupon rented him the land under said agreement. Griffin planted some 7 acres of the land in cotton in the early part of April, 1913, but failed to work it at all. He also failed to plant several acres of it in cotton until the last of May. On May 23d, appellant saw.him, and he then promised that on the following Monday hie would work out the 7 acres of cotton. On that day Griffin and his hired hand plowed two furrows only in this cotton, then loaded up their plows, and carried them away. About 12 o’clock that day appellant went to see him again and asked Ijim how he came to quit working that cotton, and he said it was so rough he could not plow it. 1-Ie asked him then what he was going to do with it, and he said he did not know; that he thought maybe he had better hoe it before he tried to plow it, but that he did not know when he would do that, not that week anyhow; that he had other work to do and did not know when he would get to that. Appellant then offered to work the cotton out for him and let him pay him for working it that fall when he gathered his crop; or, if he would hire anybody else, he would advance him the money to pay for it and wait till the fall for his money. Griffin refused to give him any satisfaction and would not say what he would or would not do. Appellant then went to town to see what he could do — whether he could work the crop or have it worked, or what to do with it. He went to the justice of the peace and talked to the justice of the peace. The court, on the state’s objection, refused to let appellant tell what the justice of the peace advised him about it. Appellant then went back to work in that 7 acres on Tuesday morning, which was May 27th. He worked therein until the afternoon Thursday. Thursday afternoon Griffin and his brother-in-law, Hill, came down to where he was and saw him about going to work again in that cotton, and, learning from him that he was going to continue his work, Griffin refused to let him do it, warned him not to do it, and ordered him away. Appellant refused to go, claiming that he had a right to work the crop for their mutual benefit. Griffin thereupon got a club and with his brother-in-law threatened to beat him up with it and ran him out of the field and forbade him to come back therein. Appellant swore that Griffin then said to him, “I am not going to work it, and, you damned son of a bitch, you are not going to work it.” Appellant then asked him to go to town with him and he would prove to him he had a right to work it, and Griffin replied that he made his own law and refused to go with him to town or see anything further about it. Appellant borrowed a gun, took it with him, and he and his wife went down in the same cotton field and went to work therein the next morning. He also hired Mr. Stout and Mr. Stout’s daughter to work with him in that cotton. He testified he carried the gun to the field with him to protect himself and prevent his being run out of the field by Griffin. After appellant and his wife and Mr. Stout and his daughter had been at work some time in this cotton, the deceased, Mr. Barlow, and Griffin came into the field. Barlow and Griffin saw appellant and said parties with him in the field, and, as soon as he got in hallooing distance, he hallooed: “Hey! Hey! Get out of there, you damned sons of bitches. I will kill every one of you.” This seems to have been repeated. Barlow had a gun with him, holding it in his hands somewhat presented. He and Griffin kept approaching appellant in that attitude. When they got in 75 or 80 yards, Mr. Stout told appellant not to do anything; that he would go and stop them. He attempted to do so. As soon as Barlow recognized Stout, he apologized to Stout and said to him, pointing to appellant, “There is the damn son of a bitch I am after,” and continued approaching until he got 15 or 20 steps from appellant. Appellant in the meantime had gotten back by a tree against which his gun was leaning and picked up the gun and got behind, or attempted to get behind, the tree. Barlow said, “Look out, everybody,” threw his gun to his shoulder, and fired at appellant. His gun was loaded with buckshot. Some of the shot struck the tree about even with appellant’s head. Appellant was not struck. When Barlow said, pointing to appellant, “There is the damn son of a bitch I am after,” and, “Look out, everybody, God damn you,” threw his gun to his shoulder, appellant then leveled his gun at deceased, and they both shot almost simultaneously. Some of the witnesses said deceased, Barlow, shot first. One of them thought appellant shot first, but the effect of the testimony of all is that the shots were almost simultaneous, whichever one shot first. Appellant’s gun was loaded with squirrel shot — small shot. Several of them struck deceased about the breast and face. One only went into his eye, and thence into his brain, which killed him. The others would not have killed him.

Appellant has many objections, timely and properly made, to the charge of the court. The case seems to have been tried under the theory that appellant had no right whatever to work this crop or to go on the land for that purpose. Among other things, the court charged the jury: “Under the undisputed facts in this ease, you are instructed that the defendant had no right to forcibly go on the land and premises for the year 1913, and to work and cultivate the cotton thereon situated over the protest and against the consent of the said Griffin.” In our opinion the case was tried on the wrong theory, and this charge was erroneous.

The appellant contended, and his evidence tended to show, if it did not show, that Griffin, in fact, had abandoned the cultivation of the crop, and under the terms of their contract appellant would not have been a trespasser if, as contended and testified by him, he went upon the land to work out the crop for the mutual benefit of both of them, and not for the purpose of taking the crop away from Griffin. Besides this, 'the court in his charge seemed to treat the facts as if Griffin was in -actual possession of the field at the time and appellant was forcibly attempting to take possession thereof and ejeet Griffin. The evidence does not establish any such state of facts. It shows that appellant, under the claim of right, had gotten actual possession of this field and was working it out for his own and Griffin’s benefit, and that Griffin and Barlow — his uncle, the deceased — were themselves attempting to forcibly put appellant out of possession and to actually kill him because he was in possession, and, under the facts, to entirely deprive appellant of the right to defend his very life, which is not the law applicable to this casé at all. The ease should have been submitted, by the charge of the court, under appellant’s theory and testimony, as well as that of the state, and under the appellant’s theory and his testimony he had the right to go upon said land and work out said crop for the mutual benefit of himself and Griffin. Bettis v. Key (Civ. App.) 128 S. W. 1160. See, also, Rogers v. Frazier (Civ. App.) 108 S. W. 727.

Appellant has some bills of exceptions to the exclusion by the court of some of his tes-*-timony. The state objects to the consideration of these bills because they are wholly insufficient. The state’s contention, we think, is perhaps correct; but, in view of the fact that the case must be reversed, it is necessary to pass upon some of these questions, in view of another trial.

A material question was as to the intent of appellant in going upon the land and cultivating this cotton crop. The state’s theory was that he was a trespasser, without any rights on the property; that he went there armed with a gun and was going thereon and working the crop against the will of Griffin and against his positive orders; and that his object and purpose was to provoke a difficulty and get an opportunity to kill Griffin, or any one who attempted to assist him. His contention was that he had no such intent, but that under the terms of the contract he had a right to go there and work the crop; that Griffin had failed and refused to do so, and in effect had abandoned the crop; and that he took his gun with him solely to protect himself. Under such circumstances, it was very material for appellant to show, and he had the right to show, that before he went on the land to work the crop he had advised with the justice of the peace, and, if the justice of the peace had advised him that under the circumstances he had a right to go upon the ground and work the crop, he was entitled to make such proof; and the court erred in not permitting him to show that he had advised with the justice of the peace, and 'that the justice of the peace, if he did so, advised him that he had a right to go upon the land and work the crop.

We are also of the opinion that the court erred in excluding all testimony as to the condition of the crop, under the circumstances of this case. In.our opinion that was a material inquiry, and appellant was entitled to the evidence to show the condition of the crop, in view of the lateness of the season, so that the jury could determine, under appellant’s theory and testimony, whether Griffin had in fact abandoned or neglected the crop so as to practically amount to the same thing, and, under the terms of the contract, to go upon the land and work the land for his own protection and benefit.

There are other complaints to several portions of the court’s charge, some of which we think are well taken. We deem it unnecessary to discuss them in view of what we have said about the case above. • Doubtless, upon another trial, the case will be tried upon the right theory, and the charge of the court will be so drawn as that the present objections thereto will not be applicable.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: PRENDERGAST, P. J. DAVIDSON and HARPER, JJ.

license: Public Domain

text:
    SOMERS v. STATE.
    (No. 3119.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    Criminal Law (§ 927) — Trial—Conduct ox Jury — Separation.
    In a felony case a juror, after the evidence was all in and argument begun, and while they were in charge of an officer going to supper, slipped off and went three or four blocks and got his horse and took him to a livery stable. He was gone between 15 and 30 minutes, and admitted talking to two people. The only evidence heard on the motion for new trial was the testimony of the juror, the state contenting itself with showing that the juror was favorable to defendant. Held, that defendant should have been granted a new trial because of such separation, since, under the statute, when a separation was shown, the burden was upon the state to show that nothing improper took place during the separation, and should have called the two witnesses to whom the juror admitted to have talked.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 2257-2262; 927.] see Criminal Dec. Dig. §
    Prendergast, P. J., dissenting.
    Appeal from District Court, Washington County; Ed R. Sinks, Judge..
    Aaron Somers was convicted of an assault with intent to murder, and he appeals.
    Reversed and remanded.
    Buchanan & Stone and Mathis, Teague & Embrey, all of Brenham, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for an assault with intent to murder. The punishment for said offense is not less than 2 nor more than 15 years’ confinement in the penitentiary. His punishment was fixed at 2 years, the very lowest. There is no statement of facts on the merits of the case. I take it none was deemed necessary. There is no bill of exceptions and no complaint in any way of the charge of the court. I must therefore conclude that without any doubt he had a fair and impartial trial and the evidence established his guilt. The 12 jurors found that he was guilty beyond a reasonable doubt. The learned trial judge must have so found; otherwise he would have granted a new trial.

The sole and only ground appellant has, or urged in the lower court, or this, is that, because one of the jurors separated from the others before verdict, this, and this alone, entitles him to a new trial. He in no way intimates that the juror who separated from the others acted corruptly, was approached in any way by any person about the case, or that he said anything to any one, or that any one said anything to him about the case, while he was separated from the jury. As stated, his sole and only ground is that one juror separated from the others — that and nothing else.

The uncontroverted facts on this matter are shown by a properly agreed statement of the evidence which was heard by the court on the trial of the motion for new trial on said ground. It shows: After all the evidence was in, and one argument by the state’s attorneys and one by the defendant’s attorney had been made, supper time arrived, just before night. The trial was suspended so that all parties could go to supper. The court was to reconvene after supper and hear the concluding arguments. The jury was placed in charge of the proper officer, who started with them to a restaurant, a block or two away, to get their suppers. The juror Breedlove, while the jury was on the ground floor in the courthouse, going to supper, without the knowledge of the officer, or any of the other jurors, slipped away from them, for the sole purpose of going to a wagon yard where he had tied his horse that day, to procure the horse, take him to a livery stable, and have him watered, fed, and kept till next morning, His horse was tied in a wagon yard a little more than three blocks from the courthouse. He passed up the street from the courthouse to his horse, going along the street; he saw a large number of persons in the street, hut said not a word to any one, and no one said a word to him; he got on his horse, rode him down the street past the courthouse to about two blocks, in the opposite direction from where he had his horse tied, to a livery stable. He there turned his horse over to a negro boy he found there, telling him simply and solely to water and feed his horse and keep him till the next morning. Immediately upon giving these directions and turning the horse over to the boy, he started back to find and get with the jury. The other jurors, in the meantime, had gone to the restaurant, ordered, and were eating, and had probably about concluded their meal when the sheriff discovered that one of the jurors was absent. He thereupon gave instructions to another party to hunt and find and bring back this juror. This party started out to hunt him, and found him on the same block where the jurors were eating their suppers in the restaurant, seeking them. He was on the sidewalk. The party hunting him was on the opposite side of the street, and when he saw him, hailed him and told him that they were looking for him, and indicated where they were, pointing towards the restaurant. The juror then went in the restaurant to the other jurors, and stayed with them until after the verdict was rendered. On the first ballot the jury stood six for conviction and six for acquittal; said juror voting for acquittal. On a second ballot all of the other jurors voted for conviction, but this juror still stood out for acquittal, and so voted. Later he agreed to the verdict of conviction, and the jury so found. At no time did this juror seek to use his influence with any of the other jurors to have them find appellant guilty. From the time this juror first left the other jurors until he returned to them he says was from 10 to 15 minutes; others say it was 15 or 20 minutes- — a mere estimate as to the time. Neither apjjellant, nor his attorneys knew or heard anything of this juror separating himself from the others or what had occurred thereabouts until the next day after the trial was concluded, and after the verdict was rendered.

The question then is: Does this separation of this juror from the others entitle appellant to a new trial?

The statute, article 745, O. O. P., is: “After the jury has been sworn and impaneled to try any case of felony, they shall not be permitted, to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorney representing the state and the defendant, and in charge of an officer.”

Article 837, C. C. P., is: “New trials, in cases of felony, shall be granted for the following causes, and for no other." Then the statute gives nine separate and distinct grounds which would authorize a new trial. Not one of them says that the separation of the jury shall be such ground. The only one of these several grounds which could at all be construed to embrace the separation of the jury is the eighth, which is: “Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial; and it shall be competent to prove such misconduct by the voluntary affidavit of a juror; and a verdict may, in like manner, in such cases be sustained by such affidavit.” That this juror separating himself from the others was misconduct by him there can be no question. But the statute says that for such misconduct to authorize a new trial it must be when “the court is of opinion that the defendant has not received a fair and impartial trial." Not that-separation alone would authorize or require a new trial, but only when the court is of the opinion that because thereof the defendant has not received a fair and impartial trial.

Unfortunately the decisions of this state are not uniform on this subject. These articles of our Code, 745 and 837, have been therein continuously, at least since 1856, when the Codes were first adopted. The Supreme Court of this state, when it had jurisdiction, in construing these articles held that before the court was authorized to grant a new trial because of the separation of the jury, the appellant had to show that because thereof he had not had a fair and impartial trial. In other words, unless he showed injury he was not entitled to a new trial.

On this subject, in Jack v. State, 26 Tex. 4, the Supreme Court said: “There may have been misconduct on the part of some of the jurors; but, when a new trial is sought on the ground of misconduct of the jury, it must be shown to have been such misconduct as has affected the fairness and impartiality of the trial.”

In Wakefield v. State, 41 Tex. 557, the Supreme Court said: “It is not pretended that the juror conversed with any person in regard to the case, or that the defendant has not received a fair and impartial trial because of any misconduct of the jury. The juror may have been guilty of misconduct but it is not shown that it has had any influence on the fairness of the trial, and that the discretion of the court was not properly exercised in overruling that ground of the motion. Jack v. State, 26 Tex. 4; and Jenkins v. State [41 Tex. 128], decided at Austin during the last term.”

In Ogle v. State, 16 Tex. App. 361, this court, through Judge Willson, said: “The mere separation of a jury [pending verdict] is not cause for a new trial. In addition to the separation in contravention of the law, * * * it must be further made to appear that by reason of such separation probable injustice to the accused has been occasioned.” He cited the statute and Davis v. State, 3 Tex. App. 91; Cox v. State, 7 Tex. App. 1; West v. State, 7 Tex. App. 150; Russell v. State, 11 Tex. App. 288.

In Stewart v. State, 31 Tex. Cr. R. 154, 19 S. W. 908, where it was shown that two jurors, unaccompanied by any officer, had separated from the others, took some bedclothes upstairs, went into a friend’s room, got a drink of whisky, and upon being asked by him they told him the jury had not agreed upon a verdict, the court said: “This, however improper and suspicious, would not of itself warrant a reversal; it not being shown that probable injustice was done.”

In Boyett v. State, 26 Tex. App. 703, 9 S. W. 277, where the jury separated and appellant sought a new trial on that account which was a murder case with a life sentence and affirmed, Judge Hurt said: “In cases like the one in hand, and where the jury separated without permission of the court, to reverse, it must appear that the juror conversed with others about the case, or was guilty of misconduct to the prejudice of the accused.” He cited Jones v. State, 13 Tex. 168, 62 Am. Dec. 550, and the Jack and Wakefield Cases, supra, and March v. State, 44 Tex. 64; De Friend v. State, 22 Tex. App. 570, 2 S. W. 641.

Judge White, in section 865, p. 559, of his Annotated Criminal Code Procedure, says: “To reverse because the jury separated without the consent of the court, it must appear that the separating juror conversed with other persons about the case, or committed other misconduct to the prejudice of the accused.” He treats this subject on two grounds: First, “separation by consent”; and, second, “separation without consent.” The statute and decisions also make this distinction. This case comes within the second class.

We have many cases more recently decided, and even almost down to this very date, citing and approving the rule above announced and the decisions cited in this second class. However, other decisions may be found indicating, and perhaps holding, that when a separation of the jury has occurred by permission of the judge, contrary to the statute, the court will not look into the question at all to see whether any injury has occurred or might have occurred. These decisions are more especially under said first class. Olearly the trend of the later decisions under both classes go no further than holding that when a separation has occurred, the burden is on the state to show that no injury occurred. This may perhaps be regarded now as the rule. Certainly it is as liberal to an accused as the statute authorizes or the courts should require.

In Dowd v. State, 55 Tex. Cr. R. 367, 116 S. W. 571, in considering the misconduct of the jury in one separating from the other jurors and talking about the very case on trial, this court said: “In appellant’s motion for a new trial he complains of the misconduct of the jury in that, after the jury retired to consider their verdict, one of them talked with the county judge of the county. In the course of said conversation, the county judge remarked to the said juror, Lyon, that the defendant (meaning this defendant) was guilty of murder. That said judge did not know until said juror was leaving his office .that he was a juror in the case. That the juror was absent from the others, and defendant says that such separation was not had by his knowledge or consent, nor by the knowledge or consent of his counsel. This motion is sworn to by the defendant, but we find no evidence in the record to support the affidavit; but the judgment of the court recites that the court heard the evidence on the motion, and that same should be overruled. This is -the only matter complained of in the motion for a new trial.” And the court affirmed the case.

In Robinson v. State, 58 Tex. Cr. R. 556, 126 S. W. 278, in which the court affirmed a death penalty, this court, through Judge McCord, said: “The mere separation of a jury pending verdict is not cause for a new trial; in addition to the separation, in contravention of law, it must be further made to appear by reason of such separation probable injustice to the accused has been occasioned” — citing and reviewing many of the cases cited supra and others.

In Barnes v. State, 61 Tex. Cr. R. 44, 133 S. W. 887, the court, through Judge Davidson, said: “One of the grounds of the motion for new trial is that the jury separated after being impaneled. The facts show that the horse of one of the jurors had gotten out of the pasture where he had placed it for safekeeping during the trial, and was passing along the street dragging a rope; that the juror left th^ jury and caught the horse a distance of 25 or 30 steps away, and that an attorney in the case walked up and took the horse to take care of, or at least to relieve the juror of the trouble of the matter. There was nothing said by the juror to the attorney or the attorney to the juror, or by anybody to the juror in regard to the case. The above is the substance of the matter in regard to the separation. We are of opinion that this is not of sufficient importance to require a reversal.”

In Galan v. State, 150 S. W. 1172, the court, through Judge Davidson, in discussing appellant’s bill complaining that the court permitted part of the jurors to separate and intermingle with other people in the courtroom without being accompanied by proper officers, and in violation of the statute, said: “It does not undertake to show that the jurors had anything to do with the people, or talked with them, or had any discussion with them, or that anybody spoke to them.” See, also, to the same effect Kinney v. State, 148 S. W. 783; Phillips v. State, 59 Tex. Cr. R. 537, 128 S. W. 1100; Cabrera v. State, 56 Tex. Cr. R. 156, 118 S. W. 1054; Jones v. State, 153 S. W. 897; Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759. A large number of other cases to the same effect could be cited, but we deem it unnecessary to do so.

The record does not intimate that the juror Breedlove, on the motion for new trial heard by the court, did not testify the truth, the whole truth, and nothing but the truth. His reputation for truth and veracity was not attacked. The court saw and heard him when he testified. His testimony must have undoubtedly convinced the judge that he was swearing the truth. Besides, if he had talked to any one, or any one had talked to him, about the case or any other matter other than what he testified, it séems to us witnesses could have been found and produced who would have disputed him. The fact that he had separated and where he had been and what he had done was learned just after the trial was concluded. Everything then was fresh. Taking the whole matter, we are satisfied that the trial judge, a very careful, fair, and impartial one, was thoroughly convinced that no injury whatever to appellant was shown by the separation of said juror from the others. This court, through Judge Hurt, in Davis v. State, 28 Tex. App. 560, 13 S. W. 997, said: “To reverse in the absence of probable injury would be contrary to principle.”

Again, there is no circumstance or intimation in this record that said juror had any cause or reason whatever to testify falsely or to act corruptly. His action and vote on the jury demonstrates that he was not against, but for, appellant. Certainly, it cannot be contended with any show of reason that said juror would ignore, or did ignore, his oath, wherein he swore to render a true verdict according to the law and the evidence. Being a fair and impartial juror, there is no intimation in the record to even suggest that his verdict was not rendered in accordance with tfie law and the evidence. Because a juror who has no motive whatever to do otherwise s’ts in a case, and, where the evidence and tne law shows a man is guilty beyond a reasonable doubt, so finds, can be no imputation against him that because of this he would swear falsely or act corruptly or do other than obey his oath, as was done in this ease. He is not a criminal, nor in any way charged as such, and should not be so treated, by implication or otherwise. Even where an accused is properly indicted, charged with a crime, he is presumed to be innocent until his guilt is established beyond a reasonable doubt. Formerly, whenever a trial of one accused of a felony began, the sheriff had to take charge of him, and, pending the trial, incarcerate him in the jail. Such is not the law now. Even a criminal, pending t?ial, if on bail before, continues on bail until his conviction, and even after conviction, when the penalty assessed is confinement in the penitentiary for less than 15 years and he appeals he can still remain on bail and .be at his liberty while appealing. While the statute requires that after a trial for felony begins the jury shall be kept in charge of the sheriff, and that they shall not be permitted to separate nor converse with any one about the case, because an ignorant juror, without the slightest corrupt motive, absents himself from the jury for a short time, he should not be regarded as a criminal, nor the trial whereon he sits as a juror, held absolutely void because thereof.

The judgment of the court overruling appellant’s motion for new trial expressly states that the judge heard evidence on said ground of appellant’s motion. The evidence referred to doubtless is the said statement of facts in the record on that question. Thereby the judge unquestionably must have believed and held, as the evidence clearly justified him to do, that it was clearly shown that no injury whatever did occur, or could have occurred, to appellant by the separation of said juror. The evidence, I think, without contradiction clearly shows no injury to appellant. Again, as shown above, the evidence must have established unquestionably and beyond a reasonable doubt the guilt of appellant, that no error whatever was committed in the trial of his case, and that he, without any doubt, had a fair and impartial trial. The jury assessed the lowest penalty that could be assessed under the law, and in my opinion the court below correctly overruled appellant’s motion for new trial, and the judgment shopld be affirmed, and I respectfully dissent to the reversal, which the court orders.

DAVIDSON and HARPER, JJ.

We cannot agree to the above opinion, and think the case should' be reversed. It is shown that the juror, without the knowledge of the officer in charge of the jury, intentionally left the jury, and he says he went a distance of between three and four blocks to where his horse was tied; that he then got on his horse and went a distance of seven or eight blocks to Mr. Machett’s stable, and turned his horse over to the person in charge of the stable, and told' him to keep him and' feed him; that he'did not then know where the remainder of the jury was, and he went in search of them, traveling the streets of the town of Brenham; that there were lots of people on the streets; that he saw one Mc-Adoo, who was not an officer, and who told him they were looking for him, and told him the jury was in a certain restaurant, and he went to this restaurant and joined the jury. The record shows he was separated from the remainder of the jury for from 15 to 30 minutes. In the opinion by Presiding Judge PRENDERGAST it is admitted that under all the decisions, where a separation is shown, the burden is upon the state then to show that nothing improper took place during the time the juror was separated from the others, and all the cases cited in the opinion so holding, and in which it was held not to present reversible error, the state assumed the burden, and brought the witnesses before the court. In this instance the state did nothing of the kind. The defendant placed the juror Breedlove on the stand and proved the separation, and proved by him that he thought he could “get back before the officer found it out”; that he saw lots of people, but denied he spoke to but two men, McAdoo and the man in charge of the livery stable. ■ The state called neither McAdoo nor the man at .the stable to the witness stand. It contented itself with proving that the juror first voted for an acquittal, and then for conviction and two years in the penitentiary. If anything improper took place, the juror could hardly be expected to tell about it, and a juror, “like Caesar’s wife, should be above suspicion.” The court has gone as far as it should go in holding that if the prosecution takes the laboring oar and shows that the separation was temporary, unintentional, and the juror came in contact with no one on the outside, or if he did come in contact with any one to bring such person before the court, and fully investigate all that took place while the juror was separated from the others, it presents no reversible error. In this case we have a man who intentionally slipped off from the others, hoping to get back before his absence was discovered, he says. It is further shown that he was traveling up and down a street filled with people, going about alone. The Legislature, in providing that “after a jury has been sworn and impaneled to try any case of felony, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of defendant, and in charge of an officer,” meant no separation should take place unless an officer was with the juror. This statutory law prohibits any separation unless the juror is accompanied by an officer. As before said, our court has gone a long way in order to uphold the trial court in holding that, after a separation is shown to have taken place, if it is then shown that the defendant suffered no injury, the case will not be reversed. This statute was passed, we think, as much to protect, the public as the defendant. The public has a right under it, for it is of the highest public importance that proper punishment be meted out to those guilty of crime, and if all that was necessary to be shown was that the “defendant got the lowest punishment,” then the fact that a juror was “influenced” to vote for an acquittal, but, if he could not secure an acquittal, then compromise on the lowest punishment, and when that was shown, no further inquiry be made might result in untold harm. There may be some conflict in the decisions, but not any very serious one, we think. It has always been held that an incidental separation, where the juror came in contact with no outside person, would not be cause for a reversal; that talking over the telephone would be no ground for reversal, where the parties were brought before the court and detailed the conversation, although highly improper; that when the separation was caused by sickness or some unavoidable cause, or incidentally arose, and the parties were brought before the court and examined, and the trial court found that nothing improper had taken place, we would not reverse his action. But we do not think the authorities have gone so far that, where a juror intentionally slipped off, traveled the streets of a town,, on which many people were gathered, and where he admits speaking to two, and neither of these two brought before the court, we should lend our sanction to it. It opens the door too broadly, and would in effect render meaningless that provision of the Code, for such holding would mean that, if a juryman who intentionally absented himself should first vote for acquittal, and subsequently agree to a conviction for a minimum term, no testimony other than that of the juryman was necessary, and, of course, he would not admit improper conduct on his part. We are of the opinion that this is such a separation as the law prohibits, and the state has not met the burden of showing nothing improper could have or did take place, and the case therefore should be reversed. McCampbell v. State, 37 Tex. Cr. R. 607, 40 S. W. 498; Boyett v. State, 26 Tex. App. 690, 9 S. W. 275; De Friend v. State, 22 Tex. App. 570, 2 S. W. 641; Neal v. State, 50 Tex. Cr. R. 585, 99 S. W. 1012; Barnett v. State, 50 Tex. Cr. R. 542, 99 S. W. 556; Gant v. State, 55 Tex. Cr. R. 284, 116 S. W. 801, and cases there cited.

The judgment will be- reversed.


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

text:
    SASSER v. STATE.
    (No. 3067.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    Rehearing Denied May 13, 1914.)
    1. Criminal Law (§ 720) — Conduct of Trial — Misconduct of District Attorney.
    Where two defendants were indicted for the same offense, the action of the district attorney in stating, in the presence of the jury when calling as a witness one of the defendants on the trial of the codefendant that he would dismiss the case as against the defendant because he was satisfied that he was not guilty, was improper, and the dismissal should have been made by the court without the knowledge of the jury if the court approved the action of the district attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    2. Criminal Law (§ 421) — Hearsay—Reputation.
    On a trial for violating the local option law, it is error to permit a witness to state that he had heard people say that they believed accused was selling whisky.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 976-983; Dec. Dig. § 421.]
    3. Intoxicating Liquors (§ 36) — Local Option Law — Validity or Adoption.
    Under Rev. St. 1911, art. 5728, authorizing the contest of a local option election, provided the contest is instituted within 30 days after the declaration of the result, otherwise it shall be conclusively presumed that the election and the result are valid, a local option election, alleged to have resulted in prohibition, cannot be attacked after 30 days after the declaration of the result, on the ground of irregularities in the order declaring the result and the publication thereof.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 43, 44; Dec. Dig. § 36.]
    4. Intoxicating Liquors (§ 227) — Unlawful Sale — Reputation oe Accused.
    On a trial for violating the local option law, a witness, knowing the reputation of accused as a bootlegger of whisky in prohibition territory, may testify as to whether his reputation is good or bad.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 287; Dee. Dig. § 227.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Marion County ; H. F. O’Neal, Judge.
    Jessie Sasser was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    T. D. Rowell, of Jefferson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, J.

Appellant was convicted of violating the local option law, and his punishment assessed at one year in the penitentiary.

After the election is said to have been held, the commissioners’ court met to declare the result of the election. The order declaring the result is as follows; “Oct. 8, 1910. Ordered by the court, that the election for local option for precinct No. 5, the same was this day tabulated by the court, as follows, to wit: For prohibition 105; against prohibition, none. Said election occurred September 24, 1910.” The above is recited from the bill of exceptions. This is all of the order, shown by the bill of exceptions and statement of facts both, with reference to the order of the court declaring the result of the election. When this was offered various and sundry and divers objections were urged to its introduction, which we deem unnecessary to state. The objection covered every possible phase. The statute (article 5721, Revised Civil Statutes) reads as follows: “Said court shall hold a special session on the eleventh day after the holding of said election, or as soon thereafter as practicable, for the purpose of opening the polls and counting the votes; and, if a majority of the votes are ‘For prohibition,’ said court shall immediately make an order declaring the result of said vote, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, • except for the purposes and under the regulations specified in this title, until such time as the qualified voters therein may at a legal election held for that purpose by a majority vote decide otherwise; and the order thus made shall be held to be prima facie evidence that all the provisions of law have been complied with in giving notice of and holding said election, and in counting and returning the votes and declaring the result thereof.” Then follows article 5722, which provides that the order, after properly being entered, shall be published for four successive weeks in some newspaper, or in the absence of a newspaper in the county, then by posting copies for said length of time. An inspection of article 5721 shows there was no order entered, in this case declaring the result and putting prohibition in force, as provided by the statute. There is simply a tabulation or statement of the votes as being favorable to prohibition. There was no order of the court following this, as the statute requires. The objections should have been' sustained, and the order excluded.

Another bill was reserved to the publication by the judge, among others ‘things, because there had been no legally declared result, and that the publication was not authorized until the proper order had been entered declaring the result. It is unnecessary to discuss this question. The basis of this publication was the proper order declaring the result of the election. For authorities on the first proposition see* Branch’s Crim. Law, § 550, and the statute above quoted. The contest provided by article 5728 is only authorized after the proper order declaring the result has been made of record, and the election has been declared to be in force by the proper authorities; therefore that question cannot arise in the case. The time for contesting the election had not arisen, and that phase of the law cannot be applied in this case. There is nothing to contest until the result has been declared and proper order entered as contemplated and required by the statute. The trial judge seems to have taken the same view of it as shown by the bill of exceptions, to the effect that when objection was made to the introduction of the order undertaking to declare the result of the election, the court stated from the bench he really believed the exception to the introduction of the order was well taken, yet Re permitted it to go to the jury. We are oí opinion that the trial judge was correct in stating that the law was not in effect, and, instead of permitting it to go to the jury, he should have excluded it.

Another bill recites that when the state introduced the witness Welborne, who was indicted also for making the same sale of liquor for which defendant was being prosecuted, and which indictment was then pending on the court docket, the district attorney stated, in the presence and hearing of .the jury, as follows: “I am going to dismiss the case against this man because I don’t believe Mr. Welborne sold any whisky. I have looked into and I don’t believe he sold any whisky.” Exception was taken to this remark. We are of opinion that this should not have occurred in the presence and hearing of the jury. Welborne was indicted for selling the same whisky, and the belief of the district attorney in dismissing the case against him, when he tendered him as a witness, should not have gone to the jury. The belief of the district attorney, or his action in dismissing this case, was not a matter for the jury, but for the court alone; and, if the district attorney saw proper to dismiss the prosecution against Welborne, it should have been, done in writing, and his reasons stated in writing, subject to the approval of the court. If the court approved it, then the indictment or prosecution could have been dismissed. See White’s Ann. Penal Code, §§ ■37, 630, 709. These articles are the same in the Revised Statutes of 19X1; the numbering, however, is different from what it is in White’s Annotated Penal Code. Upon another trial this matter should not occur.

Another bill recites that M. C. Stall-cup, justice of the peace in precinct No. 5, in which it is alleged this sale occurred, was called as a witness for the state. While upon the stand he was asked this question: "Do you know what defendant’s reputation is in the community in which he lives, on the question of whether or not he is a bootlegger of liquor?” to which the witness answered: “I have heard that he sold whisky before this trouble. I heard a year or two back that Jessie Sasser was selling whisky; those people told me they believed he was selling whisky.” Objection was urged to this testimony. On the question of reputation we do not believe this testimony was admissible as to what people told witness they believed about it. What people believed about his selling whisky would not be admissible against appellant. We are of opinion this testimony, under the circumstances and manner detailed in this bill of exceptions, should not have been permitted to go to the jury. In view of the fact that he was charged with selling whisky, what the people believed about his being a bootlegger, or selling whis-ky, may have influenced the jury to determine this question adversely to appellant. Matters of that sort become more or less important, according to the facts of the case. Appellant’s evidence placed it beyond his power to have been guilty. 1-Ie proved a clear case of alibi by several witnesses, who show that he could not have been guilty. The sale occurred at night, and he had to be identified at night, and he denies his presence and the entire transaction. Welborne and two or three others had some whisky independent of the bottle supposed to have been bought from defendant, and with which they became very much intoxicated, and spent the night in reveling. As this record is presented, we do not believe that this conviction ought to stand, and that these matters discussed are erroneous.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., and HARPER, J.

Being unable to concur in that part of the opinion holding that prohibition is not in force in precinct No. 5 in Marion county, we will state our reasons for so holding. The record discloses that the commissioners’ court of the county on September 5, 1910, ordered an election to be held September 24, 1910; that in accordance with said order the election was held on that day, and thereafter the commissioners’ court met and tabulated the returns, and declared the result, showing that the vote was unanimous for prohibiting the sale of intoxicating liquors, being 105 for and none against. The record further discloses that the following publication was had in the Jefferson Jimpleeute: “Order Declaring Result of Local Option Election Held in and for Justice’s Precinct No. 5 of- Marion County, Texas, on September 24, A. D. 1910. Whereas, an election was duly and legally petitioned for and ordered to determine whether or not the sale of intoxicating liquors should be prohibited in justice precinct No. 5 of Marion county, described and bounded as follows, to wit: [See original boundary in commissioners’ court records.] And, whereas, said election was by the honorable commissioner’s court of said county, on September 5, 1910, duly and legally ordered and held on Saturday, September 24, A. D. 1910; and, whereas, the result of said election were duly made to said commissioners’ court, and were duly opened and counted on the 8th day of October, 1910; and it appearing to the court that a majority of the votes cast at said election held in said precinct on the day aforesaid were for and in favor of prohibition: It is therefore now ordered by the court that the sale of intoxicating liquors within the limits of said justice precinct No. 5 of Marion county, Tex., as heretofore defined by metes and bounds, be and the same is hereby absolutely prohibited, except for the purposes and under the regulations specified by the law (title 69, art. 3385, of the Local Option Laws of Texas) until such time as the qualified voters of said precinct may by a majority vote otherwise decide. The total number of votes cast at said election was 105. The number for prohibition was 105. The number against prohibition was none. It is hereby declared by this court that the result of said election held on September 24, 1910, is that prohibition has carried in said precinct No. 5, by a majority of 105 votes. It is further ordered that this order declaring the result of said election shall be published for four successive weeks in some newspaper published in Marion county, Tex., to be selected by the county judge of Marion county, Tex., for that purpose. It is further ordered that the sale of intoxicating liquors, except as hereinbefore mentioned, within the above-described justice precinct No. 5, of Marion county, Tex., shall be absolutely prohibited, and that said prohibition shall begin and take effect immediately, and shall be enforceable from and after the date of the last aforesaid publication of this order. R. A. Loomis, County Judge, Marion County, Tex.” It further appears that this publication was made in the paper selected by the county judge, and for the length of time required by law. It apparently appears that, more than three years after the election had been held and result thereof declared, for the first time the contention is made that the order declaring the result is insufficient in law to put prohibition in force, as the minutes of the court do not specifically show thát in declaring the result they at that time entered an order prohibiting the sale of intoxicants, although the publication shows such an order was made. That is, though it appears that such" an order was made, the failure of the clerk to enroll it on the minute book prevents prohibition going into effect until he does so enroll, and another publication is had. We are frank to admit that the decisions of this court rendered prior to 1907 would support such contention, and this was the reason for the Legislature passing an act that, unless a contest of the election is instituted “within thirty days after the result has been declared,’’ it shall be conclusively presumed that said election as held and the result thereof declared are in all respects valid and binding,, upon all the courts. Article 5728, Rev. Stats. And in this article it is provided that the district court shall have jurisdiction to try and determine all matters ■connected, with said election, including the petition for the election and all proceedings and orders relating thereto, embracing final count and declaration and publication of result putting local option into effect, etc. So it is thus seen that the Legislature provided that all matters relating to the sufficiency of any of these steps must be contested within 30 days after the court has declared the result, and, if it is not done, the courts must conclusively presume that all necessary legal steps were taken. If one three years after the result has been declared can contest the sufficiency of the order declaring the result ■and prohibiting the sale, then why not contest the sufficiency of the petition for the election, the sufficiency of the order ordering the election, the fact that the notice had not been posted, or any other step provided in the law? This law was intended to put an end to all these matters after the lapse of time provided for the contest, and it has 'been so held in an unbroken line of decisions by this court since the passage of the act.

This court, in the case of Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167, held that this act of the Thirtieth Legislature, regulating the contest of local option elections and providing for the conclusiveness thereof, was constitutional, and “it follows therefore that the court did not err in refusing to permit appellant, after the expiration of 60 days, to introduce evidence going to show irregularities or defects in the initiatory steps necessary to place local option into effect. It was proper for the court to have the county attorney to introduce sufficient number of the orders of the commissioners’ court to show that the county had adopted local option. It was also proper, as stated, to refuse to permit appellant to contest the validity of said orders after the expiration of the 60 days.”

In Doyle v. State, 59 Tex. Cr. R. 61, 127 S. W. 816, it was held: “It is contended, among other things, that the precedent steps necessary to put local option in force in Johnson county had not been complied with, and that for many reasons, urged in bills of exception and insisted on in brief of counsel, said election was invalid and nugatory. Whatever we might conclude in respect to these several matters, in the absence of the statute passed by the Thirtieth Legislature (Acts 30th Leg. c. 8), requiring contests to be made of local option elections theretofore or to’ be thereafter held, it is sufficient to say that, in the absence of a contest, we must and shall assume that 'the judgment and decree putting local option in force and the proclamation of the county judge had the effect to institute the law in that county, and that this presumption and conclusion are conclusive on us and on appellant.”

In Harryman v. State, 53 Tex. Cr. R. 474, 110 S. W. 926, it was held: “Where upon trial of a violation of the local option law it appeared that the publication was made as provided by law, the court correctly charged the jury that the sale of intoxicating liquors was at the time * * * prohibited in said county.”

In Alexander v. State, 53 Tex. Cr. R. 505, 111 S. W. 145, it was held: “Various objections to the orders of the commissioners’ court are in the record, but, under an act of the Thirtieth Legislature that went into effect August 11, 1907, which provides that contests of elections, where the local option law was in force at the time the act was passed, should be contested within 60 days, none of the objections to the orders can be considered. The record shows there was no civil contest of the local option law. For a discussion of this matter see Wilson v. State, 107 S. W. 818; Hardy v. State, 52 Tex. Cr. R. 420, 107 S. W. 547.”

In the case of Ex parte Thulemeyer, 56 Tex. Cr. R. 337, 119 S. W. 1146, where it was contended, that no order appeared on the minutes of the commissioners’ court showing a creation of the justice precinct in which it was alleged that an election had been held and prohibition had been adopted, it was held that his remedy was by contest of the election under the above provisions of the statute, and the question could not be inquired into on habeas corpus.

In the Jerue Case, 57 Tex. Cr. R. 215, 123 S. W. 415, it was held: “The other question relates to the supposed invalidity of the local option election under which appellant was sought to be held, for the reason, in substance, that the notice of the election was not completed and published in the manner required by law. Since the passage of the act of the Thirtieth Legislature, in respect to contests of local option elections and the presumption of validity, in the absence of such contest, this point is no longer available to appellant.”

In the case of Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550, it was held: “Many of the questions raised on the appeal relate to the sufficiency of the orders, judgments, and decrees of the commissioners’ court of Howard county putting local option into effect. Since there was no contest as provided by the act of the Thirtieth Legislature, these matters cannot be considered by us, but we must assume and hold, as the court below did, that the law was in all respects regular and valid.” See, also, Coleman v. State, 54 Tex. Cr. R. 396, 112 S. W. 1072; Gipson v. State, 58 Tex. Cr. R. 404, 126 S. W. 267; Wilson v. State, 107 S. W. 818; Hardy v. State, 52 Tex. Cr. R. 420, 107 S. W. 547; Romero v. State, 56 Tex. Cr. R. 435, 120 S. W. 859. Many other cases might be cited in which it is held that, after the lapse of time in which a contest may be filed, no question can be raised as to the sufficiency of the petition, the sufficiency of the order ordering the election, or any other order made by the court, but we do not deem it necessary to do so, and will only add that in no event would this render invalid the election, but if in fact the order putting in effect prohibition in that precinct is not of record in the minutes of the court, the court can now enter up an order in its minutes so declaring, and no other election would be necessary. Crockett v. State, 40 Tex. Cr. R. 173, 49 S. W. 392.

Another matter we would mention is that, while it was not permissible for Judge Stallcup to answer the question as he did, yet under the facts in this case it was permissible to ask him if he knew, the reputation of appellant as' a bootlegger of whisky in prohibition territory where he lived, and, if he answered that he knew it, it would then. be permissible to be asked if it was good or bad, and the witness answer good or bad as the facts authorized, but on direct examination he could' not tell what others had said to him.


author: HARPER, J. HARPER, J.

text:
    ANDERSON et al. v. STATE.
    (No. 3069.)
    (Court of Criminal Appeals of Texas.
    April 1, 1914.
    Motion to Reinstate April 22, 1914.
    On Motion for Rehearing, May 13, 1914.)
    1. Bail (§ 94) — Forfeiture of Bail — Appeal — Dismissal—Defective Appeal Bond.
    On an appeal from a judgment forfeiting a bail bond, an appeal bond which recited that notice of appeal was given to the “Supreme Criminal Court of Appeals,” and was conditioned for the payment of costs in the “Supreme Criminal Court of the State of Texas,” was insufficient to confer jurisdiction upon the Court of Criminal Appeals, and the appeal will be dismissed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418-423; Dec. Dig. § 94.]
    2. Bail (§ 94) — Forfeiture — Appeal — Defective Appeal Bond — Filing New Bond.
    On appeal from the forfeiture of a bail bond, the same rules govern as govern in civil matters, and, where the appeal is dismissed for a defect in the appeal bond, the appellants may still prosecute their appeal by filing a proper bond.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418-423; Dec. Dig. § 94.]
    Motion to Reinstate.
    3. Bail (§ 59) — Bond—Appeal from Justice Court — Validity.
    A bond on appeal from the justice court conditioned upon the defendant making “her appearance before the county court” is in substantial. conformity with the statutory requirement that it be conditioned to “make her personal appearance.”
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 256ya-262; Dec. Dig. § 59.]
    4. Bail (§ 75) — Liability on Bond — Appeal from Justice Court — Breach.
    Under Pen. Code 1911, art. 921, requiring, a bond on appeal from a justice court to be conditioned to the appearance of defendant, a bond: may be forfeited if the defendant fails to appear, even though her attorney did appear and announce ready for trial.
    [Ed. Note. — For other cases, see Bail, Cent., Dig. §§ 309-312, 315-321; Dec. Dig. § 75.]
    5. Ball (§ 94) — Liability on Bail Bond— Actions — Appeal.
    An objection that a bond given on appeal' from a conviction in a justice court was invalid because it was not in an amount double the fine and costs, which objection was not supported by proof in the record, and was first made in the amended motion for a new trial, will not be considered on .appeal from the forfeiture of the bond.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418-423; Dec. Dig. § 94.]
    Appeal from Nacogdoches County Court; Geo. F. Ingraham, Judge.
    Johnnie Anderson was convicted of a misdemeanor in a justice court and appealed to the county court. From a judgment of the county court forfeiting the bond given on such appeal, the defendant and her sureties appeal.
    Appeal dismissed, but reinstated on tender of a sufficient bond, and judgment affirmed.
    B. E. Amonette, of Navasota, for appellants. O. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Judgment final was entered against appellants • at the November term, 1913, of the county court of Nacogdo-ches county on a forfeited bail bond, from which judgment appellants gave notice of appeal to this court, but a few days later gave a bond on appeal which recites that notice of appeal was given to the “Supreme Criminal Court of Appeals,” and is conditioned for the payment of all costs which may accrue in the “Supreme Criminal Court, of the State of Texas.” There being no such court in this state, this bond does not confer jurisdiction on this court. This court is termed by the Constitution and laws of this state the “Court of Criminal Appeals,” and, as the bond given is not conditioned for the payment of such costs as may accrue in this court, and we could enter no judgment thereon, it does not confer jurisdiction on this court, and the cause is dismissed from the docket.

As it appears from the transcript that notice of appeal was given to this court, and the same rules govern in this character of proceedings that govern in civil matters, appellants, if they so desire, may still prosecute their appeal to this court by filing a proper bond and taking proper proceedings to bring the matters before this court.

The appeal is dismissed.

Motion to Reinstate.

This case was dismissed at a former day of this term on account of defective appeal bond, and appellant now asks that the case be reinstated, tendering a sufficient bond, and it is so ordered, and the case will now be considered on its merits.

Johnnie Anderson was, on March 27, 1912, convicted of a misdemeanor, and her punishment assessed at a fine of $10, from which judgment she gave notice of appeal to the county court, and executed the following appeal bond:

“The State of Texas v. Johnnie Anderson. No. 971. In Justice Court of Precinct No. 1, Nacogdoches County, Texas. Whereas, on the 27th day of March, A. D. 1912, in the above-styled and numbered cause, at a term of said court then in session, the defendant, Johnnie Anderson, was convicted on a complaint charging her with a misdemeanor, and fined by the court in the sum of ten dollars and cost, from which said judgment the defendant has appealed to the county court of Nacogdoches County, Texas: Now, therefore, we, the said Johnnie Anderson, as principal, and-and-, as sureties, acknowledge ourselves bound to pay the state of Texas the sum of eighty ($80.00) dollars, conditioned that the defendant, Johnnie Anderson, shall well and truly make her appearance before the county court of Nacogdoches county, Texas, at the next regular term, to be begun and holden on the third Monday in April, A. D. 1912, the same being the 15th day of said month, at the courthouse in said county, in the city of Nacogdoches, and there remain from day to day and from term to term to answer in said cause on trial in said court, then this obligation to become null and void, otherwise to remain in full force and effect. Johnnie Anderson. B. E. Stra-han, Surety. M. S. Lloyd, Surety. G. U. Davis.

“Approved this 27th day of March, A. D. 1912. J. E. Perritte, Justice of the Peace, Precinct Number One, Nacogdoches County, Texas.”

The first contention made by appellant is that this bond is not a statutory bond, in that the word “personal” is omitted; the conditions being that she “shall make her appearance before the county court, and there remain from day to day,” etc., while the statute provides it shall be conditioned to “make her personal appearance.” The bond is in substantial compliance with the Code, and was not void because the word “personal” was omitted therefrom. Cyechawaich v. State, 23 Tex. App. 430, 5 S. W. 119, and cases cited.

His next contention is that, when the case was called, while the appellant did not appear in court, yet her attorney did appear and announce ready for trial, therefore no forfeiture could be declared. This construction had been given article 921 of the Code prior to its amendment in 1901 (Laws 1901, p. 291). Before amendment the bond was conditioned for the payment of the fine and costs adjudged against the appellant in the county court; but as amended in 1901 the bond is conditioned solely for the appearance of the defendant, and in no way binds the sure'ties on the appeal bond to pay the fine and costs. So the bond now required by law binds the defendant to make his appearance before the county court, and, in the event he fails to do so, it may be forfeited, if the county attorney is unwilling to proceed with the trial in the absence of the defendant. It is now nothing more than an appearance bond.

While in the amended motion for a new trial it is alleged that the bond is not in an amount double the fine and costs in the justice court, this ground is supported by no proof in the record. It is true appellant, in a bill of exceptions, recites that the fine was $10 and the costs $33.10, aggregating $43.10, yet the court, in approving the bill, says this question was not raised on the trial of the case, nor in the original motion for a new trial, but was first sought to be raised in the amended motion for a new trial filed more than two weeks after the entry of final judgment, and that he held it came too late. Did the record disclose that any proof was offered in support of the allegation, a serious question might be raised; but we do not deem it necessary to pass on this question, it being sought to be raised by an unsworn plea after judgment, and, the record before us containing no proof that the bond was not in fact double the fine and costs, the judgment is now affirmed.

DAVIDSON, X, absent at consultation.

On Motion for Rehearing.

HARPER, J.

Appellant, in his motion for rehearing, asks us to allow him to make proof in this court of a fact not made in the court below, or, if made, not included in the bill of exceptions filed in the court below.

This is not a trial but an appellate court, and we pass on the ease on the record made in the court below, and do not hear evidence in addition to that contained in the record. All other questions raised were passed on in the original opinion.

The motion for rehearing is overruled.


author: HARPER, J.

text:
    FIELDS v. STATE.
    (No. 3122.)
    (Court of Criminal Appeals of Texas.
    May 6, 1914.)
    Weapons (§ 9)— Carrying Weapons — Liability.
    An owner who lives on his premises, and who has rented a part thereof on shares, and who with his tenant jointly cultivates_ the crops, is on his own premises, and his act in carrying a pistol while there is not punishable.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 8; Dec. Dig. § 9.]
    Appeal from San Jacinto County Court; E. W. Love, Judge.
    Jiles Fields was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded.
    J. M. Hansbro, of Cold Springs, and A. T. McKinney, of Huntsville, for appellant.' C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol. Appellant’s first assignment of error is: “There was error in the judgment of the trial court because the verdict of the jury is contrary to and .not supported nor justified by the evidence adduced upon the trial of said cause in this: (a) All of the evidence adduced upon the trial of said cause, and which was uncontroverted, showed that the defendant, at the time he was charged with having carried the pistol, was upon his own premises, and which said premises were held and occupied by himself and family as a homestead, and that at no time was he off of his said premises, (b) The undisputed evidence shows that, if the witness Tot Dunnam was a tenant of the said Jiles Fields, he was not such tenant as was, under the law, entitled to the exclusive possession (as against defendant) of the lands cultivated by him; the evidence showing that both the defendant Jiles Fields and the said Dunnam worked the lands jointly and together, and the said defendant had never parted with his right of possession to said premises, nor that said Dunnam had had such a contract as entitled him to the exclusive possession, as against this defendant, the owner of said premises, (c) The undisputed evidence shows that the defendant Jiles Fields, with his family, occupied said premises as his home, and had never parted with his right to so occupy the same, nor had invested the said tenant, Dunnam, with any right to the .exclusive possession of the same, and that, if said Dunnam had any rights of possession whatever, it was simply a joint right with defendant, (d) The undisputed evidence shows that, if the said Dunnam was the tenant of the said Jiles Fields, they, the said Fields and the said Dunnam, worked the said premises jointly; the said Fields furnishing the teams and tools with which the lands were cultivated, and the said parties, Fields and Dunnam, ‘working the said lands through and through,’ as expressed by the witnesses — that is, the said lands were cultivated, planted, and gathered by the said Fields and Dunnam, jointly.”

The evidence and all the evidence sustains this assignment, and is insufficient to sustain the verdict. Appellant lived on the premises, and, while he had rented a portion of the place to Tot Dunnam on halves, yet it is shown that appellant and Dunnam worked the crops “through and through”; that they jointly cultivated the crops. Appellant helped Dunnam break the land, plant the crop, cultivate it, and gather it, and Dun-nam worked in appellant’s crop the same way; appellant owning all the land.

The judgment is reversed, and the cause remanded. '


author: DAVIDSON, J.

text:
    IRVING v. STATE.
    (No. 3102.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    1. Husband and Wife (§ 312*) — Abandonment of Wife — Indictment.
    An indictment which charged that the defendant deserted and abandoned his wife, but did not directly allege that he had a wife or give her name, was insufficient to charge an offense.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 1109; Dec. Dig. § 312.*]
    2. Parent and Child (§ 17*) — Abandonment of Child — Prosecution — Sufficiency of Evidence.
    In a prosecution for the abandonment of defendant’s minor son, -evidence which does not establish the name of the son as charged in the indictment is insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 176-181; Dec. Dig. § 17.*]

      3. PARENT AND CHILD (§ 17)—INDICTMENT— Sufficiency—Name of Child.
    In an indictment for the abandonment of defendant’s minor child, it is necessary to allege the name of the child.
    [Ed. Note.—For other cases, see Parent and Child, Cent. Dig. §§ 176-181; Dec. Dig. § 17.]
    4. Husband and Wife (§ 313)—Abandon-ment—Prosecution—Sufficiency of Evidence.
    In a prosecution under an indictment charging in separate counts the abandonment by defendant of his wife and of his minor child, evidence held to show that defendant had merely left his family temporarily in order to secure work, and to make a new home for them, and therefore not to sustain a conviction.
    [Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]
    6. Husband ' and Wife (§ 304)—Abandon-ment and Npnsuffort—Construction of Statute.
    The statute making punishable the abandonment of a wife and minor child by a husband and father does not impose a penalty for mere temporary separation due to inability to furnish support, but implies a purpose on the part of the defendant not to support his family, where there is no justification or excuse for his failure to do so.
    [Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 1102; Dec. Dig. § 304.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge..
    Earnest Irving was convicted of abandoning his wife and minor son, and he appeals.
    Reversed and remanded.
    G. R. Bipscomb, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

The information contains two counts. In,the first count, omitting formal parts, it is alleged appellant “did then and there unlawfully, without justification or excuse, desert and abandon his wife, leaving her in destitute and necessitous circumstances, without support, and in danger of becoming a public charge.” In the second count it is alleged appellant “did then and there unlawfully, without justification or excuse, desert and abandon his minor child, Robert Irving, leaving him in destitute and necessitous circumstances, without support, and in danger of becoming a public charge, against the peace and dignity of the state.”

The first count is attacked because of the failure to name or state the name of the defendant’s wife, or that he had any wife; defendant having no notice of having deserted any certain person, and only has notice of having deserted an unknown and uncertain person occupying a legal status, to wit, a wife. Appellant further alleges that same is vague, uncertain, and indefinite, and wholly insufficient in law. We are of the opinion that count is subject to the motion to quash, and that it should have been been sustained. The statute reads as follows: “Any husband who shall willfully or without justification desert, neglect or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous circumstances shall be deemed guilty of a misdemeanor.” Acts 33d Leg. c. 101. The count criticised does not contain an allegation even that defendant had a wife, except inferential^ by charging he did abandon his wife. It does not even undertake to give a name, and there is no reason given why the pleader failed to insert the name of the wife. From the record, it is clearly evident that the name of the wife was known, because she was used as a witness in the case. The court should have sustained this motion to quash.

The second count, which charges appellant with abandoning the son named Robert, in our judgment, is not proved by the evidence. It did not undertake to prove the name of the child by the .witnesses. There is evidence in the record to the effect that he left his wife in August, 1913, and contributed very little money to her support subsequently. With reference to the child, the evidence shows the baby was born to the wife of appellant during the month of January, 1914, and the further fact is stated by her that “I was at- home with my father and mother when he was born.” So it would seem from this evidence that a child was born to appellant’s wife in January, 1914, and it is supposed to be a boy by reason of the fact he is referred to as “he.” The in’ormation charges that it was a son, and his name was Robert Irving.

The evidence does not identify Robert Irving set out in the information as the child of whom the witnesses spoke. It may have been, or it may not have been; but, the name having been alleged, it was necessary to prove it, and in fact it was necessary to allege it.

Generally under the facts we do not believe the state has made out a case against appellant. It is shown that he and his wife had married about 18 months or such matter prior to the institution of this prosecution; that they lived with his father-in-law and mother-in-law for some time, who rendered them some assistance, and finally, doubtless with the assistance of the father-in-law, appellant and his wife secured a home of their own, or a place to which they could move, and to which they did move. After they had moved into this place, the brother of appellant’s wife also came and occupied part of the house. On account of the ill treatment, threats, violence, etc., of his brother-in-law, appellant left this house with his wife and went back to the home of his father-in-law, at which place they remained a while. Then he and another negro secured a room or place in another part of the city and instituted what they called a pressing club. While at this pressing club, his mother-in-law and another woman came there and with a piece of cord-wood gave appellant rather a severe beating. He says he could not afford to fight a woman, and' lie got away. He went to see Ms wife and told her that he was going away, and would corue back and get her as soon as he could get money enough to set up housekeeping. The wife says: “We got along all right during the time we stayed together; he was good to me and supported me to the best of his ability. He never told me that he would not come back to me; hut on the two nights that he stayed with me, after leaving in August, he stated that he would come back and get me as soon as he could get money enough to set up housekeeping.” The wife says she did not know how much he worked while he was gone from her, or how much money he earned. After he left in August he visited his wife on two different occasions. Appellant testified: That, when he was first married, he and his wife were very poor and lived with her father and mother for some time, and, with their assistance, they started to housekeeping and rented a part of the house to his wife’s brother. That on account of mistreatment by his brother-in-law, threats, etc., he went back to his father-in-law’s with his wife and continued to live there, and he supported his wife there until August, 1913, at which time he and one of his friends attempted to establish a cleaning and pressing shop on Mills street in the city of Et. Worth, and during the month of August — the exact date he did not remember — his mother-in-law and another woman came to the shop and seized a stick of cordwood and began beating him, and gave him an “awful beating.” He says: “I was afraid to strike her; I didn’t want to get arrested, and X was afraid to go back home, as I thovht I would get into trouble with them again, and I did not want to get into trouble with any of them. I did not have any money to move my wife with, and I did not have any property from which I could realize money, or I would have moved her away from her parents. X decided that the best thing that I could do would be to mové away and earn enough money to begin keeping house anew.” He says he went from Tarrant county to Hill county and there worked on a farm; that he could not get steady work, but worked at odd jobs as best he could. Appellant, speaking of himself and wife, uses this language: “We are like all negroes, both me and my wife work; she washes and irons for the white ladies, and I work at anything that I can get to do. She has always worked that way since we were married, and has practically supported herself, or at least has contributed a great deal to the' support of ourselves.” He says: “I love my wife, and I want to live with her, and I also love my child, and want them both, and I would have lived with my wife during this time if she had not been at her parents, or, if I had the money to moved them with, I would have done so. I left them for the purpose of trying to get us a home of our own. I always told my wife that as soon as I could we would go to living together, but that I could not live with her and her at her parents. I did not know when my child was born, and I have never contributed anything to his support.”

There is nothing in this record, under this testimony, as we understand it, that would justify the conclusion that appellant had deserted his wife. He had gone away under the circumstances, and under the testimony of he and his wife the idea of permanent desertion or abandonment is utterly wanting. There is no evidence in the case that the wife was in necessitous circumstances, and the state did not undertake to prove it. Nor is there anything to indicate, as charged in the indictment, she was likely 'to become a charge upon the public. The evidence shows, and it is all there is in the record, that these two people were negroes; they both worked as indicated by the testimony, and the wife had all along supported herself practically, and had at least contributed to the support by washing and things of that sort that negro women do. He had gone away temporarily to seek a place to get money to get a home for them to go together.

It would not do to hold that every temporary separation of husband from the wife would subject him to a prosecution under this statute. Nor do we believe it would be anything like a reasonable or fair construction to place upon this statute that the Legislature intended it to so operate; that is, because of the poverty of the husband, and his inability to make money, he should be subject to a prosecution and a fine of from $25 to $500 and imprisonment in the county jail for a year, under evidence of the character here mentioned. This statute carries with it the idea of willfulness on the part of the husband or father, as the case may be, and the purpose not to support his wife or child, either or both, which does not mean, and was not intended to mean, that, because a man is unfortunate in not having money to support Ms wife, therefore he should be subject to criminal prosecution. The law carries the distinct basic proposition with it that it must be willful or without justification or excuse. This testimony does not only not carry this idea but seems to exclude it — the testimony of the wife and the defendant both.

Believing that this conviction was wrong, the judgment is reversed, and the cause remanded.


text:
    LAFOON v. STATE.
    (No. 3106.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.
    Rehearing Denied May 27, 1914.)
    Rape (§ 64) — Excessive Punishment.
    Where a grown man was convicted of statutory rape upon testimony showing intercourse with a girl under the .age of 15 years, the assessment of his punishment at confinement in the penitentiary for nine years, which is within the limits fixed by the statute, is not excessive.
    TEd. Note. — For other cases, see Rape, Cent. Dig. § 105; Dec. Dig. § 64.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Claude Lafoon was convicted of statutory rape, and Ms punishment assessed at nine years’ imprisonment in the penitentiary, and he appeals.
    Affirmed.
    Cunningham & Oliver, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of statutory rape, and his punishment assessed at nine years’ confinement in the state penitentiary.

There are no bills of exception in the record in regard to the introduction of testimony, and the only grounds in the motion allege the insufficiency of the testimony and that the punishment is excessive. The punishment is within the limits fixed by the Legislature for this character of offense, and is therefore not excessive. It appears that Rosa Lee Finch is certainly under the age of 15 years, and she swears positively to an act of intercourse. Appellant is a grown man, and under such circumstances, if the jury believed the testimony offered in behalf of the state, as they evidently did, we are not surprised at the punishment inflicted.

The judgment is affirmed.


text:
    MARTONI v. STATE.
    (No. 3094.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.
    On Motion for Rehearing, May 6, 1914.)
    1. Bail (§ 65*) — Recognizance on Appeal-Dismissal.
    Where the recognizance fails to specify the punishment imposed in the trial court, an accused’s appeal must be dismissed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. § 65.*]
    On Motion for Rehearing.
    2. Vagrancy (§ 3*) — Evidence—Admissibility.
    Under an indictment, charging vagrancy for loitering in a disorderly house from the 1st of October until the date of the filing of the complaint, evidence that accused was seen in disorderly houses more than a year before is inadmissible, where there was no showing that he was at such places between that time and the time specified in the complaint.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. § 3.*]
    3. Criminal Law (§ 1139*) — Evidence—Admissibility.
    On appeal from a conviction in the corporation court, accused is entitled to a trial de novo in the county court, and hence the judgment rendered against him in the corporation court is inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3000; Dec. Dig. § 1139.*]
    4. Vagrancy (§ 3*) — Prosecution—Evidence.
    Evidence in a prosecution for vagrancy for loitering in disorderly houses held insufficient to support a conviction.
    [Ed. Nóte. — For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. § 3.*]-
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Sil Martoni was convicted of vagrancy, and lie appeals.
    Reversed and remanded.
    F. M. Brooks and Rogers & Dorough, all of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

On motion of the Assistant Attorney General this appeal will have to be dismissed. The recognizance fails to specify the amount of the punishment imposed in the trial court. This is a statutory requirement, without which the recognizance will not be sufficient. For this reason the motion will be sustained, and the appeal dismissed.

On Motion for Rehearing.

On a former day of the term the appeal herein was dismissed for want of a sufficient recognizance. In compliance with the law this defect has been cured as authorized by the statute, and the appeal will be reinstated and disposed of on its merits.

Appellant was tried in the justice court on a charge of vagrancy for loitering in and around houses of prostitution. The complaint and information charge that from about the 1st of October, 1913, and before the making and filing of this complaint, appellant did unlawfully, and thence continuously up to the date of the filing of this complaint, the said Sil Martoni being a male person, habitually associate with prostitutes, and the said Sil Martoni during said time did then and there habitually loiter in and around houses of prostitution. Upon his conviction in the corporation court he prosecuted an appeal to the county court. In that court the punishment was assessed in excess of $100, and from this conviction he appealed' to this court.

During the trial, over objection of appellant, evidence was introduced showing that he was seen at a house of prostitution in April, 1912, and seen to carry his trunk away from this house of prostitution. Various grounds of objection were urged; among others that it was too remote, and not included within the charge filed against him, it being specified he was guilty as a vagrant in that he loitered around and visited these houses of prostitution from about the 1st of October to the time of making the complaint, which was the 7th of November. We are of opinion these objections are well taken. Having specified the time at which he was a vagrant, the state would be relegated to the charge set forth in the complaint. There was no evidence showing his being in houses of prostitution between tbe date mentioned in April, 1912, and that set forth in the complaint from October 1, to November 7, 1913.

Another bill of exceptions recites that the. judgment of conviction in the corporation court was admitted in evidence against him in the trial in the county court. The judgment recited that he pleaded guilty in the corporation court. Various objections were urged to this. The statute provides that where the conviction occurs in an inferior court and appeal is prosecuted to the county court, the trial in the county court shall be de novo as if there had not been a trial in the inferior court. It might be sufficient to state this was a trial de novo, and this evidence was not admissible. This was the judgment from which he had appealed.

It is also urged the evidence is not sufficient. Under the case of Ellis v. State (Tex. Cr. App.) 145 S. W. 339, we are of the opinion appellant’s contention should be sustained. The witness Hawkins testified he had seen defendant at Willie Williams’ house about three times between October 1, 1913, and November 7, 1913. Jennie Dorsch testified she saw him there once or twice. These visits were all in the daytime; that he only stayed a few minutes and went away. De Fee testified that during the time specified he searched Willie Williams’ house a number of times; sometimes in- the daytime, and sometimes at night; saw defendant there once during that time. Brywn testified he was deputy sheriff, and during the time alleged in the complaint he saw the defendant at Willie Williams’ house two or three times. On • cross-examination he said he saw him there once or twice; it was in the daytime when he saw him there. This is the state’s case. We are of the opinion that this evidence does not sustain the conviction.

The judgment is reversed, and the cause is remanded.