text:
    VILLAREAL v. STATE.
    (No. 4228.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. JURY <&wkey;110(14) — Preservation of Objections.
    Accused, not having exhausted peremptory challenges, learning on voir dire examination that the juror was employed by one who had contributed funds to prosecute accused, and, failing to challenge, cannot complain after verdict.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. § 520; Dec. Dig. &wkey;110(14).]
    2. Larceny <&wkey;51(l) — Evidence—Admissibility.
    In prosecution for theft of buggy, hauled some distance by the culprits to a pasture from which a horse was stolen and hitched to it, witness could testify that he afterwards saw the stolen horse in possession of accused and one indicted jointly with him.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 144, 146; Dec. Dig. &wkey;51(l).]
    3. Criminal Law <&wkey;76 — “Accessories” — Failure to Report Theft.
    Mere failure to report seeing persons in possession of stolen property to an officer will not alone make one an accessory, if he has no other connection with the theft.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. § 93; Dec. Dig. <®=^76.
    For other definitions, see Words and Phrases, First and Second Series, Accessory.]
    4. Criminal Law t&wkey;1120(3) — Review—Exclusion of Evidence — Showing Answer.
    In prosecution for theft of a buggy, the court cannot say that exclusion of testimony as to value of that type of buggy after 60 days’ use was erroneous, where the bill fails to show what the answer would have been..
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§2931,2932; Dec. Dig. &wkey;1120(3).]
    5. Criminal Law &wkey;722(3) — Conduct of Trial — Argument of Counsel.
    Where one accused of larceny of a buggy admitted his prior conviction of murder, the district attornev could refer to him as a murderer in discussing his testimony on the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1764; Dec. Dig. &wkey;722(3).]
    6. Jury <&wkey;110(9) — Summoning Jury — Waiver of Objections.
    Accused, being fully cognizant of the fact that the sheriff had employed special counsel to aid in the prosecution, could not wait until after verdict to object that the sheriff should not have been permitted to summon the jury.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 512, 513; Dec. Dig. &wkey;110(9).]
    7. Criminal Law <&wkey;1092(6), 1099(5) — Appeal —Time for Filing Bill of Exceptions.
    Order overruling motion for new trial on the ground of newly discovered evidence cannot be reviewed when presented by bills and statements of facts filed after term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2847, 2878; Dec. Dig. &wkey; 1092(6), 1099(5).]
    8. Criminal Law <&wkey;814(17) — Instructions —Circumstantial Evidence.
    Where a witness testifies that accused admitted to him his guilt of larceny, refusal of charge on circumstantial evidence is not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883, 1979; Dec. Dig. <&wkey; 814(17).]
    Appeal from District Court, Kleberg County ; W. B. Hopkins, Judge.
    Gorgonio Villareal was convicted of theft, and he appeals.
    Affirmed.
    See, also, 182 S. W. 322.
    Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of a buggy, and his punishment assessed at 2 years’ confinement in the state penitentiary. There was no error in refusing to quash the indictment, as decided by this court in the companion case of Vgnacio Martinez, 188 S. W. 1000, decided at our last sitting; appellant in that case being jointly indicted with this defendant.

J. B. Wyatt answered on his voir dire examination that he was employed by a lumber company in which R. J. Kleberg owned an interest. The record discloses that Mr. Kleberg had contributed to the employment of private prosecution in this case. The juror also testified that he would not be influenced by that fact. With a knowledge of Such facts appellant accepted the juror, and it is too late to complain after verdict. At the time the juror so answered appellant had not exhausted his peremptory challenges, as disclosed by the record, and he assigns no reason for not challenging the juror peremptorily at the time he was made aware of the facts.

By the record it is disclosed that when Peoples’ buggy was stolen it was dragged by hand by two persons some distance; that it was then stopped, and a horse hitched to it Without objection Mr. Schultz was permitted to testify that Mr. Lehman, who lived near where a horse was hitched to the buggy, had a horse stolen that same night. When Nicolas Guerrero was testifying for the state he was permitted to testify that he saw this horse in the pasture of appellant’s father subsequent to this time, and that appellant and Vgnacio Martinez were then in possession of the Lehman horse, and took it out of the pasture and turned it over to Rafaela Martinez. This testimony of Guerrero was objected to on several grounds, but under the facts of this case it was clearly admissible.

Appellant contends that if he had been permitted to prove by Pablo Rowland, who testified that he saw appellant and Martinez deliver the buggy to Guerrero, that he did not report such fact to the officers, that this would have made him an accessory to the theft. Mere failing to report to an officer, when one has no other connection, will not constitute one an accessory. Pinchard v. State, 62 Tex. Cr. R. 602, 138 S. W. 601, and cases there cited.

In bill No. 4 it is shown that appellant offered to prove by Albricht “the value of a Moline buggy that had been used 60 days.” In the first place the bill does not disclose what the answer of the witness would have been, nor what he would have testified the value of the buggy was, consequently it is impossible for us to tell whether or not the answer would have been beneficial to appellant. Had the^ bill recited he would have testified that the value was less than $50, a serious question would be presented, for in that event such testimony would have had a tendency to reduce this offense to a misdemeanor. But as the bill contains no such allegation, we can indulge no presumption in favor of the bill. Again it may be said in support of the ruling of the trial court that the question did not take into consideration the facts proven in this case. "While the alleged owner did testify that he had owned the buggy 60 days, yet he further testified that the buggy had been used but little, and had not been driven exceeding 75 miles. Under such circumstances we cannot say the court erred in not permitting a question that embraced 60 days’ use, when there was no basis in the testimony for such question.

In the next bill complaint is made that the district attorney in his argument had referred to appellant as a murderer, and that he then had three or four eases pending against him. Appellant testified in his own behalf, and on cross-examination admitted that he had been convicted of murder, and that he was under indictment charged with other felonies. Such testimony being in the record, it was legitimate for the district attorney to refer to it in discussing the testimony given by him on this trial.

Appellant insists that as the sheriff had employed private prosecution in this case, at the instance of R. J. Kleberg, he ought not to have been permitted to summon the jury in the case. He alleges no improper persons were summoned, and in approving the bill the court says:

“No objection was urged to the sheriff summoning the jury, although these facts were known to defendant and his counsel prior to the jury being summoned.”

Appellant could not wait until after verdict and then raise such question when he was fully cognizant of all the facts prior to the trial.

In bills Nos. 8, 9, 10, and 11 appellant presents various phases of his objection to the action of the court in overruling the ground in his motion alleging newly discovered evidence. In the bills none of the testimony heard is incorporated; they were filed long after the adjournment of court for the term. In the statement of facts is copied what testimony is claimed to have been heard when the motion for a new trial was acted on by the court. This statement of facts was filed some 60 days after the adjournment of court for the term. This question was so thoroughly discussed in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, we are surprised that attorneys still undertake to present these matters in statement of facts and bills presented after the adjournment of court. In Knight v. State, 64 Tex. Cr. R. 565, 144 S. W. 967, we collated the decisions following the rule announced in the Black Case, supra¡ and under the rule of law announced in those cases, the ground in the motion for a new trial alleging newly discovered testimony is not presented in a way we can review the action of the court in that respect.

In another bill it is contended the evidence is insufficient. To this we cannot agree, for if the witnesses for the state are believed, it shows the guilt of appellant beyond question, and as Gil Guerrero testified that appellant admitted to him he had stolen the buggy from Mr. Peoples, there was no error in refusing to charge on circumstantial evidence. Wampler v. State, 28 Tex. App. 352, 13 S. W. 144, and cases cited in Branch’s Grim. Law, § 203.

The judgment is affirmed.
      •&wkey;}For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    LIEBERMAN v. STATE.
    (No. 4231.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Indictment and Information <&wkey;132(7) — Election of Counts-—Intoxicating Liquors.
    In trial for unlawfully selling intoxicating liquors in quantities less than one gallon in nonprohibition territory without first having paid a license as a retail liquor dealer to so sell, where the complaint and information were in two different counts, each alleging the commission of the offense on the same day, and in the first the unlawful selling was alleged to one party, and in the second count to another party, such pleading was permissible, and the state was not bound to elect on which count conviction was sought.
    (Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. § 447; Dec. Dig. &wkey;132(7).]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Louie Lieberman was convicted of unlawfully selling intoxicating liquors, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of unlawfully selling intoxicating liquors in quantities less than one gallon in nonprohibition territory without first having obtained a license as a retail liquor dealer to so sell. The complaint and information were in two distinct counts, each alleging the commission of the offense on the same day. In the first, the unlawful selling is alleged to one party, and in the second count to another party. The allegations in each count follow the statute, and each is clearly sufficient. Winterman v. State, 179 S. W. 704; Trezevant v. State, 66 Tex. Cr. R. 172, 145 S. W. 1191.

This being a misdemeanor case, and each count alleging the same character of Offense, such pleading was clearly permissible, and the state was not bound to elect on which count conviction was sought.

There is no statement of facts nor any bills of exceptions in the record. There is nothing further that can be considered in the absence of a statement of facts and bills of exceptions.

The judgment is therefore affirmed.
      íSmoFor olher cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    COGBURN v. STATE.
    (No. 4216.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Criminal Law <&wkey;763, 764(1) — Instruction —Evidence—Weight.
    In prosecution for selling intoxicating liquor in prohibition territory, instruction predicating guilt upon whether accused showed a bottle of whisky to state’s ■ witness before or after he paid such witness’ money to a person selling such whisky, held erroneous as being upon the weight to be given the testimony.
    [Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1737, 1742, 1743, 1746; Dec. Dig. &wkey;763, 764(1).]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Joe Cogburn was convicted of selling intoxicating liquor in prohibition territory, and appeals.
    Reversed and remanded.
    H. W. Jones, of Mabank, and S. J. Osborne, of Kaufman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of selling intoxicating liquor in prohibition territory.

The only exception in the record is to one paragraph of the court’s charge. It reads:

“In this connection you are instructed that if the defendant showed the bottle of whisky to John Tally before he paid the money over to Zack Woods, then you are authorized to find that he was apting with the said Zack Woods in the sale of the whisky to John Tally, and would be a principal in the sale of the whisky, and if you so find and believe from the evidence, beyond a reasonable doubt, you will find the defendant guilty as charged,” etc.

Appellant objected to the charge as being upon the weight to be given the testimony, and because it sets out facts constituting proof of sale which are erroneous in law. We do not think the charge correctly presents the law as applicable to the evidence in this case. State’s ■ witness admits that appellant told him he had no whisky for sale, but thought he could get some for him; that appellant then went up the railroad and around a box car, and when appellant came back he set down a bottle and motioned him to go get it. Appellant testified, in substance, to the same facts, hut says he acted for the accommodation of Tally; that Zack Woods was selling whisky there that day, and'he had bought some from him for himself; that when Tally approached him he went around the ear to Zack Woods, got a bottle of whis-ky from him, and carried it back, and set it down, and motioned Tally; that he had no interest in the whisky, and gave all the money to Woods that he received from Tally. The issue of agency should have been properly submitted, and his guilt or innocence not be made to depend on whether he delivered the money to Woods before or just after he motioned to Tally to go and get the whisky.

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


text:
    REDWINE v. STATE.
    (No. 4218.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Criminal Law <&wkey;1088(10) — Appeal — Record.
    The stenographer’s report of trial, not agreed to by any attorney in the case, and not approved by the trial judge, cannot be considered by the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2794, 2795; Dec. Dig. &wkey; 1088(10).]
    Appeal from District Court, Mills County; F. M. Spann, Judge.
    S. W. Redwine was convicted of rape, and he appeals.
    Affirmed.
    See, also, 184 S. W. 196.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of rape, ahd his punishment assessed at life imprisonment. This is the second appeal in this case. The first is reported in 184 S. W. 196.

There is no statement of facts in the record. Appellant has some bills of exception, but none of them can be considered in the absence of a statement of facts. There is on file here, and which was also filed in the lower court, the stenographer’s report of the proceedings of the trial. It is in no way agreed to as correct by the attorneys, or either of them, and it is in no way approved by the trial judge. It cannot be considered by this court.

The judgment is therefore affirmed.


author: HABPER, J.

text:
    BUSH v. STATE.
    (No. 4168.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Criminal Law <&wkey;476 — Opinion Evidence —Cause and Defect — Wounds.
    The testimony of a surgeon is admissible to prove the nature of a wound and the probable cause and effect.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1062; Dec. Dig. &wkey;j476.]

      2. Witnesses <&wkey;34f>(4) — Impeaching — Proof of Indictment.
    In a murder trial, proof by the state that a witness for accused had been indicted was admissible as to his credit, although sentence upon his subsequent conviction was suspended.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1127, 1128; Dec. Dig. &wkey;>345(4).]
    3. Homicide &wkey;>163(2) — Evidence—CHARACTER of Deceased.
    In murder trial, exclusion of proof by accused that deceased had a bad reputation as a bootlegger of whisky, and that he had been convicted of illegal liquor selling, was proper, since deceased’s credit as a truthful man was not in issue; no res gestee or other statement of his being introduced in evidence against accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 312-317; Dec. Dig. &wkey;163(2).]
    4. Criminad Daw <&wkey;823(6) — Instruction-Self-Defense.
    In a murder trial, where accused testified deceased threatened to take his life about a girl, and that he armed himself at the time of the homicide for that reason, and admitted that at night he stopped an automobile in which deceased and the girl were riding, the state’s evidence being that he did so by waving a pistol- with a threat to kill if the car was not stopped, and that he then assaulted one of the occupants, an instruction that if accused made an attempt to stop the car for an unlawful purpose, by drawing his pistol and intimidating the driver, and then brought on the difficulty resulting in the homicide, with the intention to kill deceased if he resented the act, he would not be justified in killing deceased, although it became necessary for him to kill deceased to prevent deceased from killing him, etc., was proper, where in another paragraph of the charge the jury were instructed that defendant did not waive his right of self-defense by arming himself and seeking an interview with deceased for the purpose of inquiring of deceased as to threats made by him against accused, and were also instructed when, under the claimed facts, if found true, accused would be guilty of murder and manslaughter.
    [Ed. Note. — For other cases, see C-riminal Law, Gent. Dig. §§ 1992-1994, 3158; Dec. Dig. &wkey; 823(6); Homicide, Cent. Dig. §§ 718, 719.]
    5. Criminal Law <&wkey;829(l) — Trial — In-steuction — B-equests.
    A «requested charge copied in the main charge given was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829(l).]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Henry Bush was convicted of murder, and appeals.
    Affirmed.
    King & Seale, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HABPER, J.

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

From the evidence it is apparent that trouble, prior to the fatal encounter, existed between deceased, Bud Lewis, and appellant on account of attentions each was paying to a colored girl, Willie May Bonnepart. The state introduced threats appellant had made, and appellant introduced evidence of threats deceased had made, thus both sides introduce ing evidence of previous ill will. Both sides agree that the evening of the homicide deceased carried Willie May Bonnepart, Lollie Tolbert, and Jessie Brantley to Caro, Clifford .Sleet driving th,e automobile. The state’s case is, when appellant learned of these facts he stationed himself on a bridge he knew they would pass in returning to the home of Willie May Bonnepart, and when the party was driving across the bridge appellant drew his pistol, flagged the car, and said, “If you don’t stop that car I will kill you.” As the car came to a stop the driver, Sleet, undertook to gpt out, when appellant struck him with the pistol; that he struck Sleet the second time, felling him to his knees, when Sleet crawled away. Sleet says that just about this time he heard deceased say, “Wait a minute, Henry, and let me explain,” when a shot was fired. There is no question that a number of shots were fired, and deceased was found some distance from the automobile, shot twice — once from in front, and once from behind; his head also had two blows upon it, one in the forehead, and the other in the back of the head.

Appellant contends that he went to take Willie May Bonnepart to church that night, when he was informed she had gone to Caro with deceased; that the reason he had the pistol in his pocket was on account of the threats he had been informed deceased had made; that he was on his way home, he living near the bridge, when he saw the automobile returning; that he waved to the car to stop, intending to ask the Bonnepart girl to get out and go to church with him; that when the car stopped, deceased and Sleet both got out, and deceased drew a pistol; that Sleet was between him and Lewis, deceased, and after deceased had drawn his pistol, he drew his pistol and struck Sleet to knock him from between him and Lewis; that he and Lewis then grappled and scuffled around for some distance, deceased in the meantime firing two shots; that after deceased had shot twice, he shot deceased and continued to shoot until deceased fell. He contends that deceased also continued to shoot.

As to whether deceased was armed that night was a very closely contested issue, and a jury would be authorized to find either way on that issue.

Dr. T. J. Blackwell was the physician who examined deceased, and he testified that he examined the wound in the forehead, describing it, and that in his opinion it was caused by a blow from some blunt instrument, and that the nature of the blow was such that it would have felled deceased and rendered him unconscious. This testimony was objected to by appellant on the ground that it was an opinion of the witness. The court committed no error in overruling the objection made. In the case of Waite v. State, 13 Tex. App. 180, Judge White approved the rule, as stated in Wharton’s Crim. Evidence. The testimony of “a surgeon is admissible to prove the nature of a wound and its probable cause and effect,” and this is the rule always adhered to In this court where the physician is shown to be a competent one, as in this case.

On cross-examination of John Balling-er, a witness for appellant, the state was permitted to elicit from the witness that he had been indicted and convicted of theft. The defendant then developed that the sentence in that case had been suspended, and asked that the testimony .of his indictment and conviction be excluded. The court excluded all testimony as to his conviction, and instructed the jury not to consider it, but permitted evidence that he had been indicted for theft to remain before the jury. In so doing the court committed no error, .as it was admissible on the credit to be given the testimony of the witness.

The testimony complained of in the third 'bill of exceptions was admitted for the purpose of the impeachment of the state’s witnesses, Lollie Tolbert and Jessie Brantley, and the court so held. It was not admissible as original testimony, as it consisted of statements made by these women after the difficulty was over.

The court permitted appellant to prove that deceased had a bad reputation as a peaceable, law-abiding citizen, and as being a dangerous man. There was no error in refusing to permit appellant also to prove that he had a bad reputation as a bootlegger ■of whisky. This testimony could and would shed no light on this difficulty. Nor was it permissible to show that deceased had been convicted in the federal court of selling liquor without obtaining license. Deceased was not a witness. No res gestee or other statement of his was introduced in evidence against appellant, thus his credit as a truthful man was not an issue in the case.

After giving a full and fair charge on self-defense, as made by the testimony offered in behalf of appellant, and which charge is in no way complained of by appellant, the court instructed the jury:

“You are further instructed on the question of self-defense that if you find from the evidence, beyond a reasonable doubt, that the defendant, Henry Bush, made an attempt to stop the ear that Bud Lewis was in, for an unlawful purpose, and that in stopping said car, if he did so, the defendant drew his pistol and intimidated the party driving said car and knowingly brought on the difficulty with said Lewis by such acts, if any, with the intention of killing said Lewis, if the said Lewis should resent the same, the defendant would not be justifiable in killing said Lewis, although after the starting of such trouble, if any, by the defendant, if you find he did so, it become necessary to kill said Lewis to prevent Lewis from killing him; but if you have a reasonable doubt as to whethei or not the defendant stopped the car and made an attack on the occupant of said car with a pistol for an unlawful purpose, you will give the defendant the benefit of such doubt and consider and apply the rules of self-defense as above given you in charge.”

Appellánt in Ms bill of exceptions and in the brief filed in tMs court says such a charge was uncalled for; that it was an undue limitation on his right of self-defense; that it is upon the weight of the evidence, and because the court did not instruct the jury that appellant had the right to stop the car for the purpose of asking an explanation and having an interview with deceased, etc.

We do not think the charge is upon the weight to be given the evidence, but a mere statement of the law in case the jury finds a certain state of facts to be true. As to the charge being uncalled for by the testimony, we think it aptly presents the law as applicable to the evidence in tMs case. Appellant himself testifies that deceased had made ■threats to take his life about this girl, and he armed himself on tMs occasion for that reason; he admits stopping the car; the state’s evidence is that he stopped the car by waving a pistol with the threat, “If you do not stop it, I will kill you.” As soon as the car stopped, he began striking, one of the occupants of the car over the head—not the man he killed, but another man. If he committed such acts, Ms right of self-defense would be impaired, and the court should have so instructed the jury. In another paragraph of the charge, the court informs the jury, under such a state of facts, if found true, when appellant would be guilty of murder and manslaughter; and out of an abundance of precaution in another paragraph of the charge he instructed the jury:

“In connection with the charge of self-defense, you are further instructed that the defendant did not waive his right of self-defense by arming himself with a pistol and seeking an interview with the deceased. Bud Lewis, for the purpose of inquiring of said Lewis an explanation of threats, if any, made by said Lewis against the defendant, or to have a conversation with Willie May Bonnepart.”

Taken as a whole, the court’s charge presented very fairly the law as applicable to the two theories upon which the case was tried and as made by the testimony, and is not subject, to the criticism of appellant; only two paragraphs of the charge being complained of.

Special charge No. 1 requested was apparently copied in the main charge as given, and, of course, under such circumstances there was no error in marking it refused. Special charges Nos. 3 and 4, requested by appellant, were fully covered by the court’s charge. In the record there ist no special charge numbered 2, and if any such was requested, it was omitted from the record now before us.

We have carefully studied the record, and are of the opinion no matter is presented which would call for or authorize a reversal of the case.

The judgment is affirmed.
      <fc»3Tor other cases see same topic and KEY-NUMBBR in all Key-Numbered Digests and Indexes


text:
    GUTHRIE v. STATE.
    (No. 4222.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Criminal Law <@=>370 — Evidence—Other Oeeenses — Guilty Knowledge.
    In a prosecution for keeping a house where prostitutes were permitted to reside, testimony of an officer as to the character of other houses formerly kept by defendant was admissible to show guilty knowledge on her part of the character of the women she permitted to reside at and resort to her house.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 825-829; Dec. Dig. <@=>370.]
    2. Criminal Law <s=>678(1) — Election Between Oeeenses.
    In a prosecution for keeping a house where prostitutes were permitted to resort and reside, the information, in one count, charging the commission of keeping a certain house, the court erred in giving a blanket charge authorizing a conviction for running any one of three houses with which the evidence connected defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1580; Dec. Dig. <@=>678(1).]
    3. Disorderly House <@=>2 — Grade oe Offense.
    The offense of keeping a house where prostitutes are permitted to resort and reside is a misdemeanor.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 1, 2, 9; Dec. Dig. <@=>2.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Julia Guthrie was convicted of keeping a house where prostitutes were permitted to resort and reside, and she appeals.
    Judgment reversed, and cause remanded.
    McCutcheon & Church, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of keeping a house where prostitutes were permitted to resort and reside. There was only one count in the information, and it charged the offense to have occurred on or about October 10, 1915.

The state called Policeman McCullough, and he testified to visiting the house at 2905 Gaston avenue, when Mrs. Guthrie resided there, and testified to facts which would authorize a finding that she permitted prostitutes to resort and reside and ply their vocation there. The state then proved by the officer that prior to this time when appellant lived at 2,901 Gaston avenue he was called to that place, and testified to facts and circumstances which would authorize a jury to find that it was a house where prostitutes were permitted to resort and ply their vocation. The state then proved by the officer that some time ago Mrs. Guthrie lived on Nussbaumer street, and when she resided there she ran a house of prostitution.

After the state had proven the facts regarding the house at 2905 Gaston avenue, appellant objected to any proof of the character of houses she had lived in prior to her moving to 2905 Gaston avenue. The court, we think, correctly admitted the testimony for the reason stated in his qualification to the bills of exception. The court says:

“The testimony complained of as to the witness Emma Hable was admitted in evidence before the jury as a circumstance tending to show the knowledge of the defendant as to the kind and character of women she permitted to resort and reside at her home; the testimony showing that the said Emma Hable had resided with the said Mrs. Guthrie at both 2901 Gaston avenue and 2905 Gaston avenue. The testimony as to Mrs. Guthrie’s stepdaughter and the witness Doris was admitted in evidence as a circumstance tending to show defendant’s guilty knowledge.”

But the court failed to so limit this evidence in his charge to the jury. Instead of doing so, under his charge as given, the jury would have been authorized to convict appellant if she ran such a house either when she lived on Nussbaumer street, at 2901 Gaston avenue, or at 2905 Gaston avenue.

When the state concluded its testimony, the appellant filed a written motion, asking the court to require the state to elect on which occasion it would seek a conviction — when she lived on Nussbaumer street, or when she lived at 2901 Gaston avenue, or when she lived at 2905 Gaston avenue — that she might make her defense as to the time and the place at which a conviction would be asked. The court overruled the motion. When the testimony was closed, appellant renewed the motion, asking the court to require the state to elect at which house the state would seek to convict her as running a bawdykouse. This was again overruled. Appellant then asked special charges instructing the jury that she could only be convicted of running a bawdyhouse at 2905 Gaston avenue, as this was the first place testified about by the officer. This was refused. In fact, in every conceivable way, appellant sought to have the court to so restrict the issue in the case that she could be convicted only in the event they found she ran a house of prostitution when residing at some one of the three places, instead of having the charge so framed the jury would be authorized to convict if they found she ran either of the houses as a baw-dyhouse when she resided in either of them. The court gave a “blanket charge,” and refused to confine the state to any one house or occasion.

As they were separate and distinct offenses, occurring at different periods of time and at different houses, although she may have committed the same offense in each of said houses, the court was in error in authorizing a conviction at either of the said houses. If the indictment had contained three counts, alleging the offenses to have occurred at different dates, in accordance with the proof offered, no election could have been required, but she could have been convicted upon each of the counts; this being a misdemeanor. But as she was charged with committing only one offense, she should have been placed on trial for only one offense. We discussed this question fully in Golden v. State, 72 Tex. Cr. R. 19, 160 S. W. 957, and do not deem it necessary to do so again.

Eor the error pointed out the judgment is reversed, and the cause remanded.
      <5to>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WALTER v. STATE.
    (No. 4234.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Criminal Law <@=»594(1) — Continuance-Right of Accused.
    Refusal of continuance was not erroneous where the testimony of the absent witnesses appeared immaterial, and the court offered to postpone the case until the next morning to give defendant time to get his witnesses from a place 23 miles away.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1321; Dee. Dig. <@=>594(1).]
    2. Criminal Law <@=>1091(1) — Bill of Exceptions — Qualification of Bill of Exceptions.
    Where, in allowing accused’s bill of exceptions to his action in overruling motion for continuance, the court did so with the qualification stated that he offered to postpone the case until the next morning, which offer was not accepted by defendant, affidavits contradicting such qualification were correctly refused as a bill of exceptions, and could not be considered as such by the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2828-2830; Dec. Dig. <@=>1091(1).]
    Appeal from District Court, Bowie County; I-I. F. O’Neal, Judge.
    Gerald Walter was convicted of violating the prohibition law, and appeals.
    Affirmed.
    J. S. Crumpton and Joe Hughes, both of Texarkana, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for violating the prohibition law in making a sale of intoxicating liquor. The evidence by the state’s witness was amply sufficient to sustain the conviction. Appellant did not testify.

He made a motion for a continuance, which the court overruled, in the morning when the case was first called for trial. The court immediately had issued an attachment and sent an officer after the witnesses to Texarkana about 23 miles distant. The trial proceeded until some time in the afternoon. The court thereupon recessed to await the arrival of appellant’s witnesses, who were expected to be brought in by the officer under the attachment. After being thus at recess for one hour, one of appellant’s attorneys, according to their statement, informed the judge that none of their witnesses had appeared, and that he would be forced to close without offering any testimony, and thereupon the trial proceeded and was concluded without his witnesses. We have carefully read appellant’s motion for a continuance and the proposed testimony of his absent witnesses, and think the court was correct when he stated, at the time he overruled their motion for a continuance, that their testimony would be immaterial.

In allowing their bill of exceptions to his action in overruling their motion for a continuance, the court did so with this qualification:

“I approve and order filed this bill of exception with the explanation I offered to postpone the case until the next morning to give defendant time to get his witnesses from Texarkana, a distance of 23 miles. This offer was not accepted by defendant, and defendant closed.”

Appellant, after accepting and filing this hill as qualified, undertook to contest the qualification by the affidavit of his attorneys. In their affidavit, they stated in substance that, after the state introduced its testimony in chief, they renewed their application for a continuance, which the court overruled, but stated that they would recess for a while and maybe their witnesses would appear. That after the court had been in recess for an hour, one of appellant’s attorneys, Mr. Hughes, informed the court that none of his witnesses had appeared, and that he would' be forced to close without offering any testimony, and thereupon the trial proceeded and was concluded. They claimed that this was all that occurred in this connection. The district judge, the district attorney, and the deputy sheriff, who was in attendance and waited upon the court at the time, each and all swore positively that the court, as stated in his qualification quoted above, did offer to postpone the case until the next morning and give defendant time to get his witnesses, but that the offer was not accepted, and the defendant closed the case. Under the circumstances, we must take the judge’s said qualification as true, and therefore the judge’s action in overruling their motion for a continuance presents no error.

The affidavit of appellant’s attorneys, as stated, together with the affidavits of three other persons appended thereto, under the circumstances, was correctly refused as a bill of exceptions by the trial judge and cannot be considered by us as such. Under the circumstances stated, it is a mere contest of the judge’s said qualification to their bill. No other error is pointed out.

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


author: DAVIDSON, J.

text:
    HILL v. STATE.
    (No. 4276.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    1. Criminal Law <@=>598(2) — Continuance-Due, Diligence.
    An indictment was returned June 3d, process issued for absent witnesses the 21st, .the ease called the 27th, and application for continuance then made, setting out the names of several witnesses by whom accused expected to prove threats made by the assaulted party, and the case was postponed to the following day and process issued, three of the alleged absent witnesses being produced and testifying on the trial. The case being again called on the 28th, accused urged the continuance on the previously filed motion, which was denied. The application was insufficient as to diligence, the three witnesses who testified failed entirely to testify to what was set out’in the application as to threats, and none of the witnesses were produced on a motion for new trial. There was nothing to show injury from the denial. Held, that there was no error.
    [Éd. Note. — For other casos, see Criminal Law, Cent. Dig. §§ 1336, 1341; Dec. Dig. 598(2).]
    2. Witnesses @=337(5) — Cross-Examination of Accused — Previous Conviction and Confinement in Penitentiary.
    In an assault trial, it was proper to ask accused, testifying in his own behalf, if he had not been indicted, convicted, and confined in the penitentiary.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1132, 1140-1x42, 1146-1148; Dec. Dig. <$=>337(5).]
    3. Homicide @=257(1) — Assault to Murder —Evidence—Sufficiency.
    Evidence held sufficient to support conviction of assault to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543, 544, 552; Dec. Dig. <§=> 257(1).]
    Appeal from District Court, Tarrant County; Ben M. Terrell, Judge.
    John Hill was convicted of assault to murder, and appeals.
    Affirmed.
    John L. Poulter, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of assault to murder, the jury assessing his punishment at five years’ confinement in the penitentiary.

The indictment was returned the 3d of June, current year; process was issued for absent witnesses on 21st of June; the case was called for trial on the 27th of June; and application for continuance was made setting out the names of several witnesses, by whom he expected to prove threats made by the assaulted girl. Some of the threats were alleged to have been accompanied by a statement that if appellant did not marry her she would kill him. The case was postponed to the following day and process issued. Three of the alleged absent witnesses were produced and testified on the trial. The case was again called on the 28th; the state announced ready; the defendant not ready. He urged a continuance on previously filed motion. The application alleged that all of the witnesses lived in thé city of Ft. Worth, where the difficulty occurred. The application is clearly insufficient as to diligence. The process is not attached to the application, and we know nothing of it except as stated, that the witnesses were not found. Three of the witnesses, Gage, Arthur Hill, and Mary Lee Hill, are shown to have testified as witnesses, and failed to testify to what was set out in the application, and testified to no remark of the girl pertaining to threats to take the life of appellant. The statement as to the evidence of threats is too general; does not specify with any particularity when they were made or where made. To illustrate this matter more definitely, the application for a continuance shows appellant expected the witness Gage to swear that a short while before the alleged offense, while defendant was working for Gage in the barber shop of Gage, that the alleged injured party came to the barber shop where defendant was at work and exhibited a pistol and then and there threatened to kill the defendant Gage’s testimony was to the effect that she came to the barber shop on more than one occasion. He does not testify to threats or the exhibition of a pistol. By the witnesses Arthur Hill and Mary Lee Hill he says he expected to prove that a short time before the alleged offense the injured party went to said witnesses and told them to tell the defendant that if he did not marry her she intended to kill him, which information was after-wards conveyed to defendant and before the date of the offense. Going to the statement of facts we find that the witness Gage testified: That he had known defendant two or three months, and knew the alleged injured party, Beulah Norris, by sight and knew her voice. That appellant worked for him about two weeks a month or so ago; maybe longer than that. That while appellant was working there he saw Beulah Norris come to the barber shop. That she was on the inside of the shop once. “When she came in the shop she had a pocketbook or something like that in her hand. I don’t know what she came for then. While he (appellant) was working for me she came there several times; I don’t know how many. One time she came to the door and talked to John Hill, but I don’t recall the conversation between them.” He further stated he would see her on the street by the shop and she would just walk up the street and back part of the time on the other side of the street. When she would go up and down the street Hill would go off and talk with her, and 'then' come back. Mary Lee Hill testified: That she was the wife of Arthur Hill, brother of defendant, and knew Beulah Norris. That on one occasion she went to the hospital with her husband to see Beulah Norris after this trouble, and had a conversation with h,er about the cutting, and she said it was a drunken fight. This was three or four days after she was placed in the hospital. Arthur Hill testified that he was a brother of the defendant, and had known Beulah Norris about four years, and learned of the trouble between John and Beulah after its occurrence. That three or four days afterwards he saw Beulah Norris, and she told him, when asked about the trouble, they had been drinking and had a fight. That was about all she said to him.

It will be seen these witnesses testified to nothing indicating the statement to be true as made by appellant in his application for a continuance. In fact, each one of them flatly contradict his statements. Concede the fact that he did not employ a lawyer until the 21st of June, eighteen days after the indictment was found, still there was no diligence; he could not excuse diligence because he had not employed counsel; he does not seem to have made any particular effort to secure an attorney, but he could have had process issued preparatory for his trial whether he had counsel or not. If these witnesses would testify to what he states he expected them to swear, he knew that and could have had process issued. Conceding the diligence is not as urgent in the first application as in a subsequent application, there was no showing made when the ease was again called for trial after postponement, except he simply relied on his former application. Taking this record as presented under the facts, this testimony, viewed in the light of what was revealed on the trial, would hardly be stated by the absent witnesses as alleged. None of the witnesses were produced on the motion for new trial, though all lived in the city of Ft. Worth, and no excuse is given why there was not something before the court to show appellant was injured legally in some way; and the further fact that the application for a continuance was not applied for subsequent to postponement, in the light of this record we are of opinion that the court was not in error in refusing to continue the case. Court began on the 5th of June and terminated on the 2d of September. Under any sort of showing these witnesses, if they lived in Ft. Worth, could have been obtained, unless something was before the court to indicate a reason why they could not be found. For these reasons we think the court was not in error in refusing the continuance.

The second ground alleged for reversal is the admission of testimony on cross-examinations of the defendant. He was asked if he had not been indicted and convicted and confined in the penitentiary prior to this trouble. He answered, over objection, that he had been in the penitentiary. This was not original testimony, but was asked by the state on cross-examination for the purpose of attacking his credibility; in other words, it was introduced to impeach him. There was no error in this.

The facts are ample. The testimony of the witnesses shows that the girl was cut with a razor and stabbed with a pair of scissors; one of the wounds being a dangerous one. One of the wounds entered one of her lungs; one of the razor cuts was across the throat. It was not a very serious wound, by reason of the fact it did not reach the artery. There is some testimony showing it was prompted by jealousy on his part. They were both married; neither divorced. They were lovers; he keeping her as his mistress. The details of the testimony are not necessary to be stated. We are of opinion there is no error in this record requiring a reversal.

The judgment, therefore, is affirmed.
      <&=For other oases seé same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    MILLER v. STATE.
    (No. 4261.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    1. Criminal Law '@=3535(2) — Evidence — Confession — Sufficiency of Corroboration.
    Evidence held to sufficiently corroborate confession of accused that he and another committed a burglary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1226; Dec. Dig. @=535(2).]
    2. Criminal Law @=459 — Evidence—Opinions — Identity of Property.
    Though the owner of a store which was burglarized could not positively identify snuff found in a store to which accused said he had taken snuff stolon from witness’ store, he could state his best judgment and belief as to the identity thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1048-1050; Dec. Dig. @= 459.]
    3. Criminal Law @=806(3) — Instructions— Repetition.
    After instructing that, to convict, the jury must find beyond a reasonable doubt that the house was entered by force in the nighttime, it is not error in instruction precluding conviction on uncorroborated confession to fail to‘ reiterate such charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1973, 1991; Dec. Dig. @= 806(3).]
    4. Criminal Law @=3535(1) — Evidence—Confession — Corroboration—Corpus Delicti.
    The 'corpus delicti of burglary need not be proved independent of accused’s confession.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1225; Dec. Dig. @=3535(1).]
    5. Burglary @=46(3) — Instructions—Forcible Entry.
    Instruction that “entry” means every kind of entry but one by free consent of the occupant, and that it was not necessary that there should be any actual breaking, was erroneous for failure to require that the entrjr be made by force or to define entry by force, in view of Pen. Code 1911, art. 1303, requiring a burglarious entry to be made by force, threats, or fraud.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 113; Dee. Dig. @=46(3).]
    6. Burglary @=46(4) — Instructions — Nighttime Entry.
    Under indictment charging burglary in the nighttime, failure to require the jury, as a condition to conviction, to find that the entry was in the nighttime, is error.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 114; Dec. Dig. @=46(4).]

      Appeal from' District Court, De Witt County; John M. Green, Judge.
    Blake Miller was convicted of burglary, and be appeals.
    Reversed and remanded.
    R. J. Waldeck and A. C. Hartman, botb of Cuero, for appellant. C. C. McDonald, Asst. Atty. Gen., for tbe State.
   HARPER, J.

Appellant was) convicted of burglary, and bis punishment assessed at two years’ confinement in tbe state penitentiary. Appellant earnestly insists that the crime of burglary is .not shown independent of tbe confession of appellant, and that bis confession is not corroborated as to the breaking and entering tbe bouse — that this fact is proven alone by bis confession.

Something occurred, not disclosed by tbe record, to cause tbe arrest of appellant, and the morning after bis arrest be sent for Mr. Eugene Bonham, a merchant in Cuero, for whom he had been working as porter. He told Mr. Bonham be had burglarized tbe store and gave him a description of tbe goods taken, and that a portion of the goods bad been taken to Sam Macey’s store by himself and Sam Macey. Acting on tbe information be received from appellant Mr. Bonham and an officer went to Macey’s store and found some snuff hidden in tbe store, and found a box of tobacco bidden under tbe counter wrapped up in some butter trays; the snuff found was 10-cent Garret snuff. Mr. Bonham thought this snuff was his property, although it had no particular mark on it. He judged this snuff to be his from the information he received from appellant, and the fact that he looked at his stock after getting this information and missed snuff of this character and kind. On cross-examination he would not swear positively that the snuff he found was his property, as other merchants in the town handled Garret snuff also. He could not say whether the property was taken, if it was his property, in the daytime or nighttime. In addition to this confession made to Mr. Bonham, the state also introduced a written confession made by appellant thereafter to the county attorney, in which appellant said, at the instance of Sam Macey, he had left the door unlocked (only closing it) ; that he and Sam Macey went to the store at night in the latter part of April, and that he watched and held the elevator while Macey opened the door and brought out one ease of Durham tobacco, one case of Brown Mule tobacco, one case of bottle snuff, and one sack of beans; that they placed this in Macey’s automobile and carried the snuff to Macey’s store.

Appellant’s confession to the county officer makes a complete case of burglary, for he says, they at night opened a closed door and stole the property. As Mr. Bonham says he does not know when the property was taken out of his store, appellant contends that there is no corroboration of appellant’s confession that they opened the door of the store in the nighttime and took the property. The only corroboration is circumstan-' tial. Harvey Shaw says that about two weeks before appellant wasi arrested one night he saw appellant at the back of Bon-ham’s store — appellant’s confession Is, they entered the back door. Mr. Shaw says the same night he saw Sam Macey driving his automobile, naming the places he saw him drive it, and that he stopped the car at the back end of the block where Bon-ham’s store was situated. On cross-examination he said the reason he knew it stopped was he could not hear it any more, when he had been able to follow it by the noise up to that time.

In' the confession appellant says that it was the latter part of April when they entered the store, and he is shown to have been arrested and made his confession on May 11th. gome two weeks prior to his ajrrest, as testified to by Marshal Shaw, would make it the latter part of April when he saw appellant at the back of Bonham’s store, and saw Macey drive his car to the back end of the block on which Bonham’s store is situated. As Mr. Bonham testified that he missed the goods appellant says were taken out of the store, when his attention was called to it, and also testifies that he found the door closed but unlocked on one occasion about this time, we think the confession is sufficiently corroborated by circumstantial evidence. If Mr. Bonham had not testified that goods of the character and kind appellant says they stole had been taken out of his store without his consent, the corpus delicti would rest alone upon the confession, but as the owner missed the goods and said they were taken without his consent, the proof of the crime does not rest upon appellant’s confession alone.

Although Mr. Bonham was not able to identify positively the snuff at Macey’s store as his property, yet when he testified that he found, at the place where appellant said the stolen goods had been carried, goods of the character and kind that had been taken from his store hidden, there was no error in refusing to withdraw Mr. Bonham’s testimony from before the jury. A witness may state his best judgment and belief as to the identify of the property found. Osgood v. State, 49 S. W. 94; Turner v. State, 48 Tex. Cr. R. 585, 89 S. W. 975; Harris v. State, 62 Tex. Cr. R. 235, 137 S. W. 373; Williams v. State, 63 Tex. Cr. R. 507, 140 S. W. 447. In this case Mr. Bonham was told by appellant that he and Macey had stolen a case of snuff from his store and carried it to Macey’s store; he went to Macey’s store and found a case of snuff hidden of the character and kind he says was taken from his store without his consent In the absence of any other expía-nation of where this snuff came from, it is but a natural inference that it was Bon-ham’s snuff. After confessing he had stolen a box of snuff and carried it to a place where snuff of the character and kind was found, if, now, when relying on his plea of not guilty, there is any other explanation of how this snuff got in that store and was hidden, he by the testimony offered in his behalf should give some explanation of its presence, and not rely on mere proof that other people in the town, who are not shown to have missed any snuff, also handled this character of snuff.

The court instructed the jury:

“You are instructed that in this state no person can be convicted upon his confession unless there is other evidence corroborative of said confession proving that the offense with which the defendant is charged was committed. Therefore, unless you believe from the evidence beyond a reasonable doubt that there is other evidence in the case corroborative of said confession, which proves that the offense with which defendant is charged was committed, you will acquit the defendant.”

This charge is assailed by appellant, because it does not require the jury to find beyond a reasonable doubt that the house was entered by force and at nighttime. Other paragraphs do so instruct the jury, and it was not necessary to reiterate such charge in this paragraph.

This paragraph of the charge was but correctly instructing the jury that the confession alone was not sufficient to prove that a crime had been committed. It is not necessary to prove the corpus delicti independent of the confession. Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Harris v. State, 64 Tex. Cr. R. 605, 144 S. W. 232, and cases cited. In Attaway v. State, 35 Tex. Cr. R. 403, 34 S. W. 112, it was held, if the fact that a crime was committed can be proven aliunde, the confession of the party is sufficient to connect him with the offense.

All) these contentions of appellant hang around the proposition: First, that the crime must be proven independent of the confession; and that if this is not correct, then the corroboration of the confession is insufficient. The first contention is not the law, and as to the second, after a careful study of the record, we are of the opinion that the facts and circumstances sufficiently corroborate the confession to support the verdict. Mr. Bonham testifies that cases of snuff had been taken out of his store; that they were so taken without his consent. This is evidence of theft by some one. Defendant in his confession says he and Sam Macey took the snuff out of Bonham’s store at night. Mr. Bonham finds snuff of the character and kind he says was taken from his store, hidden at the place appellant told him he took the stolen property. This is sufficient corroboration of the confession to show theft beyond question, when there is no other explanation of how snuff of this character and kind came to be at Sam Ma-cey’s place. The defendant was not convicted of theft, but burglary.. His confession shows these goods were taken out of the store in the night by pushing open an unlocked closed door. About the time he says these goods were taken he was seen in the night at the back of this store. He says Sam Macey drove around there, and they carried the goods away in his automobile, and Sam Macey was seen with his automobile at the back of this store about this time. Independent of the confession, we have the owner testifying that goods were taken from his store without his knowledge or consent; we have appellant at the back of the store at night; we have Sam Macey there the same night in his aujtomobile; we find goods of the character taken out of Bon-ham’s store hidden in Sam Macey’s place of business. Alone these would be suspicious circumstances and not enough evidence to authorize a conviction; but these are such circumstances as would cause suspicion to fall on these two men, which apparently it did, and when arrested appellant makes an oral confession, and subsequently a written confession, and such circumstances would be corroborative testimony tending to connect appellant with the offense.

The court instructed the jury:

“By the term ‘entry’ into a house is meant every kind of entry but one made by free consent of the occupant or of one authorized to give such consent. It is not necessary that there should be any actual breaking to constitute burglary.”

This is virtually copying article 1306 of the Penal Code, but in defining burglary in the nighttime in article 1303, it is seen that an entry must be made by force, threats, or fraud, and in construing these two articles of the Code in Hamilton v. State, 11 Tex. App. 116, this court held that the indictment must allege, and the proof show, that an entry at night was made by force, threats, or fraud to constitute burglary. Appellant objected to this paragraph of the charge because it did not require the entry to be made by force, and nowhere in the charge did the court define what was meant by an entry by force. See, also, Newman v. State, 55 Tex. Cr. R. 275, 116 S. W. 557; Bates v. State, 50 Tex. Cr. R. 569, 99 S. W. 551; Ross v. State, 16 Tex. App. 559.

Again in the indictment the burglary is alleged to have occurred in the nighttime, and nowhere in the charge does the court require that the jury find the entry was in the nighttime.

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


text:
    MENDLOVITZ et al. v. STATE.
    (No. 4247.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Bail <§==>94 — Appeal — Failure to Pile Beiefs — Dismissal.
    Under Code Cr. Proc. 1911, art. 960, providing that appeals from judgments on bail bonds shall be governed by the rule governing appeals in civil cases, an appeal will be dismissed where no briefs have been filed in the court below and in the Court of Criminal Appeals.
    [Ed. Note. — Por other cases, see Bail, Cent. Dig. §§ 418-428; Dec. Dig. <&=94.]
    Error from District Court, Payette County; Frank S. Roberts, Judge.
    Proceedings by the State against Philip Mendlovitz and others on a bail bond. Judgment for the State, and defendants bring writ of error.
    Dismissed.
    See, also, 158 S. W. 1198.
    John T. Duncan, of La Grange, for plaintiffs in error. C. C. McDonald, Asst. Atty. Gen., for the State
   HARPER, J.

The appellants bring this case to this court on writ of error, sued out the 26th day of last June, the bond being filed on that day. The district and county attorneys accepted service on the writ on the 27th day of June, the transcript being filed in this court on the 19th day of September, 1916. The transcript before us contains only the judgment nisi, citation to appellants showing service on each of them, their answer, filed on May 10, 1916, and the final judgment of the- court entered on May 17, 1916.

No bill of exceptions reserved to any action of the court had on the trial of the case is presented in the record. No statement of the evidence adduced on the trial accompanies the record. As the case was tried before the court, no motion for a new trial was filed, or, if so, it does not accompany this record. No assignments of error were filed in the trial court, and no brief filed in this court.'

If we look to the answer of the appellants we see that therein are presented several exceptions to the sufficiency of the judgment nisi, but if such exceptions were ever presented to the trial court, his action thereon is not shown by the record. After answer filed, this judgment would have been subject to amendment, and if the exceptions had been presented to the court, doubtless he would have permitted it to be amended in the respects complained of; and if such exceptions were in fact presented to the trial court, and his action thereon was shown by this record, such order might also show an amendment of the pleadings and judgment to cure the alleged defective entries. Code Cr. Proc. 1911, art. 499.

But there is one feature of this case that prevents us from giving consideration to any or all the grounds alleged in the answer. which is the only paper we have before us making any complaint whatsoever, and it was filed before final judgment; and that is, no brief has ever been filed in this case. The statute (Code Cr. Proc. 1911, art. 960) provides that on appeal these cases shall be governed by the rule governing appeals in civil cases on appeal, and it is the rule that unless briefs have been filed in the court below and in the Court of Criminal Appeals, such appeal will be dismissed. Jay v. State, 34 Tex. Cr. R. 98, 29 S. W. 472; Lewis v. State, 38 S. W. 205; Sparks v. State, 47 S. W. 976.

Under the uniform decisions of this court, the prayer of the state asking that this case be dismissed must be sustained.

The appeal is dismissed.


text:
    MARTIN v. STATE.
    (No. 4246.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    1. Ckiminal Law <§=>190 — Poemee Acquittal —Effect of Granting New Teial.
    Where accused had previously been tried upon two counts, the first charging forgery and the second passing a forged instrument, and was convicted under the second count, thereby acquitting him of the first, he could not again be tried on a count for the forgery, although he was granted a new trial on the charge of passing a forged instrument, on the ground that one of the jurors was a minor, since the first trial was not a nullity; the minority of a juror being only a ground for challenge and not invalidating a verdict.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 375; Dec. Dig. <§=>190.]
    2. Criminal Law <§=j539(2) — Evidence—Sig-natuee of Accused.
    In trial for passing a forged instrument, signatures of accused, written by him at a former trial as a means of comparison of the names written on the alleged forged instrument, was admissible in a subsequent trial for comparison with such instrument, where it was not written in the presence of the jury for comparison purposes.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1230; Dec. Dig. <§=>539(2).]
    3. Foegery <§=>47 — Passing Forged Instruments — Sufficiency of Evidence.
    Where accused denied under oath execution of a forged instrument he was accused of passing, and the only evidence in regard to it in reference to comparison of handwriting was the signature of defendant, which was subsequently handed to the jury, there was not sufficient evidence to take the question of forgery to the jury, in view of the statute providing that where the execution of the instrument is denied under oath, proof of comparison only is not sufficient to establish the fact that defendant made the writing.
    [Ed. Note. — Por other cases, see Forgery, Cent. Dig. § 123; Dec. Dig. <®=>47.]
    4. Indictment and Infoemation <§=>184 — Proof and Variance — Person Unknown.
    Where an indictment alleged that the forged name was somebody to the grand jury unknown, it was necessary on trial thereof, where the diligence of the grand jury to ascertain the name of the party was put in issue, to show that the grand jurors used due diligence in order to ascertain the name.
    [Bd. Note.—Bor other cases, see Indictment and Information, Cent. Dig. § 674; Dec. Dig. <®=sl84.]
    6. Witnesses <©=5337(5)—Credibility of Accused-Conviction on Former Trial.
    Evidence of conviction on a former trial in the instant case cannot be used to impeach an accused testifying for himself.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 1132, 1140-1142, 1146-1148; Dec. Dig. <$=>337(5).]
    Appeal from District Court, El Paso County; Dan M. -Jackson, Judge.
    C. G. Martin was convicted of passing a forged instrument, and he appeals.
    Reversed and remanded.
    John T. Hill, of El Paso, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment contains two counts, the first charging forgery, and the second, passing a forged instrument. The conviction was had under the second count.

There had been a previous conviction under the second count, which was set aside by the trial court because it developed on motion for new trial that one of the jurors was a minor. During this trial appellant in various ways sought to prevent the trial of appellant on the first count, for forgery. The court overruled all of his grounds and tried him on both counts. The court refused to consider appellant’s grounds for the same reason that he granted the new trial in the former conviction; that is, the incompeteney of the juror who was a minor. We suppose the idea of the trial court was that the first trial was a nullity. To this position of the court we cannot agree. The minority of a juror is a cause for challenge, and seems to have been so from the enactment of the original Penal Code in 1856. This question came for consideration by the Court of Appeals in Trueblood v. State, 1 Tex. App. 650. It was there held the verdict would not be set aside for that reason alone. It is unnecessary to discuss reasons that would require a revision of that case. It has never been overruled, so far as the writer is aware. Therefore we sustain the contention of appellant that the conviction under the second count on the former trial acquitted appellant of the forgery set out in the first count, and he should not have been tried on this trial under that count. The court submitted the first count to the jury in this trial, as he' did in the former. The jury convicted under the second count in both instances.

Appellant also in proper time reserved an exception to the court’s charge, submitting the first count of the indictment to the jury for their consideration in this trial. The court was in error in doing so under the authority already mentioned.

Another bill recites appellant testified in his own behalf on the former trial, and while testifying wrote his name. The bill recites that he objected to it at that time. It seems to have been written for the purpose of using it as a means of comparison with the name written on the alleged forged instrument. Various objections were urged,. and the court in signing the bill says he permitted it because W. H. Fryer testified he saw defendant do the writing at the former trial after having taken the stand in his own behalf. The bill is not full enough, we think, to show error. Names written by the accused in this manner can be used for comparison in regard to forged instruments. There seems to be a qualification to this, however, by the decisions to the effect that it would not be admissible if written in the presence of the jury for comparison purposes. These cases will be found collated by Mr. Branch in his Annotated Penal Code on page 863. This bill does not show such to have been the case in reference to this particular matter.

Appellant, however, moved to withdraw and exclude from the consideration of the jury the signature and paper previously mentioned. The court refused, and appellant excepted. The basis of this contention seems to be that it could not become evidence before the jury for the reason that the execution of the instrument set out in the indictment was not shown to have been executed by the defendant, and this evidence in regard to the writing was introduced as a means of comparison to show, if it could by this means, that the handwriting in the alleged forged instrument was in the same writing as the name written by appellant. The only evidence in regard to it in reference to comparison of bandwriting was the signature and the subsequent handing of it to the jury. The jury passed it among themselves, and this seems to have closed this part of the case. No experts were placed on the stand, and no evidence in regard to the similarity was introduced. The name of appellant as written and the view of it by the jury was all that constituted this part of the ease. Appellant denied the execution of the forged instrument under oath, and testified to facts and circumstances showing that he did not forge the instrument or write any part of it. This was a serious question in the case, the state relying upon the fact that he passed the instrument to show that it was a forgery, and that he knew it was a forgery. The jury acquitted him of the forgery, and convicted him of passing it. It was necessary for the state to show that he knew the instrument was a forgery when he passed it. The statute provides that where the execution of the instrument is denied under oath, proof of comparison only is not sufficient to establish the fact that defendant made the writing. Mr. Branch has collated these authorities on page 863 of his recent Annotated Penal Code, citing Spicer v. State, 52 Tex. Cr. R. 180, 105 S. W. 813; Mahs v. State, 54 Tex. Cr. R. 393, 113 S. W. 11; Brooks v. State, 57 Tex. Cr. R. 251, 122 S. W. 386; Batte v. State, 57 Tex. Cr. R. 125, 122 S. W. 561. There are other circumstances relied .upon by the state to show that he knew the instrument was a forgery, yet it was a disputed issue, and the jury should haye been cautioned that this alone would not form the basis of a conviction. Under the circumstances of this case the writer does not believe this ought to have gone before the jury. There ought to have been other testimony than the mere passing of the signature to the jury. What the jury discovered, or thought they discovered, from comparison is not shown by any testimony. The only means of arriving at what they did discover is to be found in the verdict they rendered.

Appellant asked a special charge to the effect that the jury should be informed that they could not convict appellant on this trial for forgery. This was refused. This, from what is said in the previous portion of this opinion, should have been given. Exception was taken to the court’s charge, submitting that issue to the jury, and this requested instruction refused. He could not be tided on the count for which he was acquitted.

Appellant asked another special instruction which was, refused, as follows:

“You are instructed that it is necessary to a conviction of defendant in this cause that the evidence should show upon the issue in the second count in the indictment that the grand jury used diligence to ascertain the name of the party who forged .said instrument, and you are instructed that the state has failed to show that any diligence was used by the grand jury to ascertain the forger of said instrument, and you will therefore return a verdict of not guilty upon the second count.”

This was refused. Proper. exception was taken to the court’s charge for refusing, in the first instance, to. give such charge,, and an exception was also reserved to the court’s refusal to give appellant’s special requested instruction. The evidence on this question was to the effect, both by bill of exceptions and statement of facts, that the grand jurors had no evidence before them on this question; that they knew of none, and seemed to have sought none; that they returned this bill only upon the testimony taken before the examining court. This was upon the theory that the indictment alleged that.the forged name was somebody to the grand jurors unknown. The name of Foord was signed to the document. There was a witness named Ford who testified that it was not his signature, and that he knew of no man by the name of Foord; that he had known of two or three other Fords; that one of them 'had been dead for about a year, and there was one at Ft. Bliss, close to the town of El Paso, but he was under the impression .that that Ford had died very--recently. Wherever the grand jury alleges a necessary party’s name to be unknown and it becames an issue on the trial of the case, in order to sustain such allegation it must be shown that the grand jury used due diligence in order to ascertain the name. Here it is alleged'it was forged by somebody to the grand jurors unknown, but there was no effort on their part to ascertain who that party was. One of the grand jurors, in a general way, stated that they had no way of ascertaining, but that is his conclusion. He states no fact except that the- indictment was returned from the testimony taken in the examining court. Whether that testimony disclosed the name or did not disclose the- name of the party who is supposed to haye forged the instrument is not stated anywhere in the record. The state shows other parties were with appellant at the time he passed the instrument, and there are detailed conversations between the parties. We are of opinion that appellant’s contention is correct. There should have been some evidence when the question was raised as to what diligence was exercised by the grand jury in regard to this question. This has been the settled rule in Texas since the case of Jorasco v. State, 6 Tex. App. 238. The question came in Jorasco v. State, who seems to have been the same party, in 8 Tex. App. 540. These cases have been followed since their rendition.

While appellant was on the stand testifying he was asked if he had ever been convicted in this case and in Colorado. Various objections were, urged to this, and especially that part of it which refers to the previous conviction in this case.' Appellant’s contention is correct, so far as it applied to the conviction in this case. Evidence of the conviction in the instant case, occurring on a former' trial, cannot be used. This has been the subject of prior decisions. Upon another trial the court will not permit this testimony to go. to the jury.

For the reasons stated, the judgment is reversed, and the causé remanded.
      <S=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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text:
    MARTIN v. STATE.
    (No. 4204.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Intoxicating Liquors <@=236(11) —- Offense — Sufficiency of Evidence.
    In a prosecution for an unlawful sale of intoxicating liquor in prohibition territory, evidence field to sustain a finding that defendant had not ordered the whisky for and at the instance of his uncle.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 313-315; Dec Dig. <@= 236(11).]
    2. Criminal Law <@=684 — Trial—Admission of Evidence — Statute.
    Under Code Or. Proc. 1911, art. 718, providing- that the court shall allow testimony to be introduced at any time before the argument is completed if it is necessary to the due administration of justice, there was no error in permitting the state to introduce another witness where its only witness had not rebutted the testimony of a witness for the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1615, 1618; Dec. Dig. &wkey; 684.]
    8. Ckiminal Law <&wkey;683(l) — Trial—Ijítro--duction of Evidence — Rebuttal.
    In a prosecution for an unlawful sale of intoxicating liquor, where the defendant on the cross-examination of a state’s witness had asked him all the details of the alleged purchase of whisky from the defendant as testified to by the witness’ brother, and had also introduced another witness who testified as to such purchase, the admission of the testimony of the brother in rebuttal was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§1615,1617; Dec. Dig. &wkey;683(l).]
    4. Criminal Law &wkey;>695(6) — Objection to Evidence Admissible in Part.
    Where evidence is introduced over objection, some of which is admissible, and some of which is not, but the objection goes to the whole of it, no error is shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1637; Dec. Dig. <&wkey;695(6).]
    5. Witnesses <&wkey;321 — Impeaching Own Witness-Statute.
    Under Code Cr. Proe. 1911, art. 815, providing that a party introducing a witness whose statements are injurious to his cause may attack his testimony, the state where its' witness testified on direct that he bought -whisky from defendant and on cross-examination testified that the transaction was not a sale, but that the whis-ky was only ordered by defendant for his father, and where another state’s witness testified that he and the first witness and another purchased whisky from defendant, the state might recall its first witness to show that his testimony that the whisky had been ordered by defendant for his father was an afterthought which he did not state in the court of inquiry or before the grand jury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1094, 1099, 1100; Dec. Dig. &wkey; 321.]
    6. Criminal Law <&wkey;829(4) — Requested Charges — Given Charges.
    Where the court’s charge in a prosecution for an unlawful sale of liquor fully covered the subject of defendant’s'agency for his father, the refusal of defendant’s special charges thereon was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;>829(4).]
    7. Criminal Law <&wkey;1064(7) — Appeal — Instruction.
    Under the statute providing that unless a rharge is excepted to when given or on motion for new trial, it is not ground for reversal, error in a charge not assigned in a motion for new trial will not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2683; Dec. Dig. <&wkey;1064(7).]
    Appeal ‘ from District Court, Somervell County; W. J. Oxford, Judge.
    Boone Martin was convicted of making an unlawful sale of intoxicating liquor in prohibition territory, and lie appeals.
    Affirmed.
    Levi Herring, of Glen Rose, and W. E. Myres, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for making an unlawful sale of intoxicating liquor in the prohibition county of Somervell ánd assessed the lowest punishment.

By its first witness, D. M. (or Dock) Martin, on direct examination, the state clearly and positively made out its case against appellant, and rested-without'introducing any other witness. Appellant did not testify. His claim was that he had ordered the whisky for and at the instance of his uncle, Mess Martin. He then introduced Mess Martin, who was quite an old man, 84 or 85 years old; he himself testifying that he did not know his exact age. On direct examination, Mess Martin’s testimony supported his contention, but on cross-examination he testified that it was in the summer of 1915 when he attended the Confederate Reunion and stayed at appellant’s father’s; that he then told appellant to order for him some whisky. That he sent for it two or three times, but that in some two or three weeks thereafter he sent and got the whisky that he then ordered. According to the testimony, he never ordered but once. The alleged sale in this case occurred on or about January 31, 1916. The court in a full and correct charge, to which there was no objection, submitted this question to the jury and told them that if Mess Martin ordered the liquor that he delivered, which was alleged to have been a sale, and he derived no profit from handling it, but simply acted as the agent of his uncle in procuring the same for him, or if they had a reasonable doubt of this, to acquit him. The jury evidently, as the evidence clearly justified them to find, found against him on this issue.

In one of his bills. of exceptions, he complains that the court erred in permitting the state to introduce any other witness after Mess Martin had testified for him and only one witness had theretofore testified for the state, because the testimony of such other witness was not in rebuttal of what his witness had testified, but was independent evidence and should have been introduced before the state first rested. The statute (article 718, O. O. P.) and all the decisions thereunder are directly to the reverse of appellant’s contention. See section 766, White’s An. O. O. P., where some of the cases are cited. There are many others to the same effect.

In another bill, appellant objected to this testimony of the state’s witness Arch Martin, viz.:

“I remember the transaction that occurred in January, 1916, in which myself, my brother Dock, and Marcelus Slater chipped in and got some whisky. We came here to town on January 30th, I think it was, in 1916, and we asked Dock if he would go to Boone Martin’s and get some whisky. He said he would. I gave him a half dollar, and Marcelus gave him a half dollar, and he went up there and got a quart, and we went down on the creek and divided up,” on various grounds.

The court, in approving the bill, qualified and explained it as follows:

“The above testimony of Arch Martin was introduced by the state in rebuttal, after the defendant, on cross-examination of the state’s witness, D. M. Martin, had asked said D. M. Martin all the details of the transaction testified to by said witness Arch Martin, and after defendant had also introduced witness Marcelus Slater who had also testified as to the matters so testified about by the witness Arch Martin, and as to what was said between Dock Martin and Arch Martin and Marcelus Slater was injected into the case on cross-examination of Dock Martin and by defendant’s witness Marcelus Slater, ■and the court permitted the state to introduce ■said testimony in rebuttal as to what was said •upon said issue injected into the case by the defendant.”

As qualified, the bill presents no error.

In addition, to this, it is well settled that where evidence is introduced over objection, some of which is admissible and some of it is not, but all is together objected to, no error is shown. That in order to point out any error, the objection must be specially to the particular portion which is inadmissible. Clearly, all of the testimony of this witness was admissible except what they asked Dock and his reply. He did not object to this specially, but included it, as stated, in his objections to the whole. This presents no error. Ortiz v. State, 68 Tex. Cr. R. 526, 161 S. W. 1056; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Gaines v. State, 37 S. W. 333; Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872; Hughes v. State, 68 Tex. Cr. R. 587, 152 S. W. 912; Pinkerton v. State, 71 Tex. Cr. R. 203, 160 S. W. 87; Boyd v. State, 72 Tex. Cr. R. 523, 163 S. W. 67; Lopez v. State, 73 Tex. Cr. R. 625, 166 S. W. 154; Francis v. State, 170 S. W. 782; Zweig v. State, 171 S. W. 751; Ghent v. State, 176 S. W. 568; Aven v. State, 177 S. W. 82; 1 Thomp. on Tr. (2d Ed.) § 696.

After the state’s first witness D. M. (or Dock) Martin, on his direct examination, had made out a clear case of sale by appellant to him as alleged and claimed by the state, the appellant took him on cross-examination and elicited testimony from him tending- to show that the whisky he got at the time was for his father, the appellant having ordered it for him and he secured the delivery of it to -him for his father; in other words, tending to show not a sale, but that appellant was acting as the agent solely for his father in getting the whisky and delivering it to him for his father. The state thereupon, in examination of him, produced his written sworn testimony before the grand jury in conflict with his then testimony as to the order and delivery of the whisky thereunder and examined him thereabout. Appellant objected to this, claiming that the state could not impeach its own witness, and the testimony before the grand jury could not be used for that purpose anyway. In approving appellant’s bill on this subject, the court did so with this statement and qualification:

“The witness D. M. Martin testified on direct examination that he bought a quart of whisky from the defendant Boone Martin in January, 1916, and paid him $2 in silver for the whisky. On cross-examination, he was a very willing witness for the defendant, and testified to facts and circumstances tending- to show that the transaction was not a sale, and would answer in the affirmative almost any question asked him by defendant’s counsel, tending to prove that the whis-ky in question had been ordered by defendant for his father Mess Martin. This witness seemed to be very hostile to the state and very, much in sympathy with the defendant, they being cousins. Thereafter Arch Martin was called as a witness for the state and testified that said witness and Marcelus Slater and Dock Martin made up the $2 and gave it to Dock, and Dock went off and came back with the whisky, and that said three parties took it to the creek and divided it up, and that there was no order about said liquor. And thereafter the state recalled the witness D. M. Martin, also known as Dock Martin, and asked the question and elicited the testimony as set out in the bill, and sought to show that (by) said witness’ testimony that said whisky had been ordered by the defendant for Mess Martin was an afterthought, and that he did not state it either in the court of inquiry or before the grand jury, but testified on both occasions the facts showing a straight sale to him by the defendant of the whisky. The said witness D. M. Martin having on cross-examination testified to facts injurious to the state’s cause, and the state having shown by other witnesses that the transaction under investigation was in fact a sale, the court considered that the examination by the state, as complained of in this bill, was proper.”

As qualified, the bill presents no error. Besides, the statute and the decisions are all against appellant on this point. Article 815, O. O. P.; sections 1116 and 1046, White’s An. O. O. P.

The only other matter complained, of is the refusal of the court to give appellant’s special charge on the subject of the claimed agency of appellant. The court’s charge had covered this point fully, and there was no error in refusing his special charge. Besides, the point is not raised in such a way’that it can be considered. Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878, Byrd v. State, 69 Tex. Cr. R. 35, 151 S. W. 1068, and a large number of other cases.

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

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text:
    SUGGS v. STATE.
    (No. 4273.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Ckiminal Law <&wkey;1144(14) — Appeal — Presumption.
    In the absence of statement of facts and bill of exceptions, it will be presumed that the charge presented the law, and all of it, applicable to the evidence.
    [Ed. Note. — Eor other cases, see- Criminal Law, Gent. Dig. §§ 2767, 2901, 3032; Dec. Dig. <&wkey;>1144(14).]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.

      Harry Suggs was convicted, and appeals.
    Affirmed.
    O. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of vagrancy in the county court of Tarrant county, from which judgment he prosecutes this appeal.

In the absence of a statement of facts and bills of exception, we must presume the court presented the law, and all the law, applicable to the evidence in his charge.

The judgment is affirmed.
      <S=M?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes