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

text:
    JOHNSON v. STATE.
    (No. 3258.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.
    Rehearing Denied Dec. 2, 1914.)
    1. Intoxicating Liquors (§ 6) — Power off State to Define Offenses.
    The Legislature may pass laws defining offenses for new conditions arising under the prohibition law, to aid in the prevention of illegal sales. ' .
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 4; Dec. Dig. § 6.]
    2. Intoxicating Liquors (§ 14) — Prohibition Territoky — Statutes—'Validity.
    The Allison Act (Acts 33d Leg. Ex. Sess. c. 31), prohibiting the shipment of intoxicating liquors into prohibition territory, is constitutional.
    [Ed. Note. — Por other eases, see Intoxicating Liquors, Cent. Dig. § 16; Dec. Dig. § 14.]
    3. Intoxicating Liquors (§ 205) — Transportation into Prohibition Territory-Indictment — Requisites.
    An indictment charging the transportation and delivery of intoxicating liquor in prohibition territory, which alleges that on a designated date an election was held under proper authority and that prohibition was adopted, was sufficient, without naming the various voting precincts in the county.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    4. Indictment and Information (§ 125)— Duplicity.
    An indictment charging conjunctively a violation of Allison Act, § 4, making it unlawful, except as otherwise' provided, for any person to ship, transport, carry, or deliver intoxicating liquors to any other person in prohibition territory, charges but one offense, committed in any one of the ways specified.
    [Ed. Note. — Por other cases, see Indictment and Information, Cent. Dig. §§ 334^-400; Dec. Dig. § 125.]
    5. Criminal Law (§ 404) — Demonstrative Evidence — Admissibility.
    Where, on a trial for carrying into prohibition territory intoxicating liquor, there was evidence that a valise -containing whisky was the property of accused, and that he had transported the same into prohibition territory from a point in the state, the action of the court in allowing the district attorney to open the valise in the presence of the jury, and introduce it and the whisky contained therein in evidence, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.]
    6. Intoxicating Liquors (§ 231) — Violation of Prohibition Law — Evidence—Admissibility.
    On a trial for carrying intoxicating liquor into prohibition territory, the testimony of an officer, seizing a valise of accused which he had carried into the prohibition territory, that the bottles in the valise contained whisky, was admissible.
    [Ed. Note. — Por other eases, see Intoxicating Liquors, Cent. Dig. § 291; Dec. Dig'. § 231.]
    7. Criminal Law (§ 338) — Evidence—Relevancy.
    Where, on a trial for carrying into prohibition territory intoxicating liquor, the evidence clearly showed that a valise containing bottles of whisky was carried into the territory by accused, the testimony of an officer that he saw a third person go to a negro coach, and saw a negro’s arm handing the valise out to him, and that when the third person saw the officer he threw the valise under the coach, was admissible as against the objection that it was not shown that accused handed the valise to the third person; the evidence excluding every other reasonable hypothesis than the fact that accused was the one who handed the valise to the third person.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dee. Dig. § 338.]
    8. Indictment and Information (§ 125)— Statutory Offenses.
    Where several offenses are embraced in the same general statutory definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count, and a conviction may be had on proving the commission of the offense in any of the ways alleged.
    [Ed. Note. — F'or other cases, see Indictment and Information, Cent. Dig. §§ 334-400; Dee. Dig. § 125.]
    9. Intoxicating Liquors (§ 236) — Violation of Prohibition Law — Evidence — Sufficiency.
    On a trial for unlawfully transporting and delivering intoxicating liquor in prohibition territory from another point in the state, evidence held to sustain a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Davidson, J., dissenting.

      Appeal from District Court, Lampasas County; John D. Robinson, Judge.
    Cooper Johnson was convicted of crime, and he appeals.
    Affirmed.
    T. S. Alexander and Word & Walker, all of Lampasas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

The indictment in this case alleges that prohibition was in force in Lam-pasas county, and that appellant .on or about March 11, 1914, did unlawfully transport, carry, and deliver one quart of intoxicating liquor to Horace Griffin, within prohibition territory in this state from a point within ■this state to the grand jurors unknown.

Appellant moved to quash the indictment, because the act of the Legislature under which this prosecution was brought was enacted after prohibition had been adopted in Lampasas county, making the same argument as heretofore made that the Legislature was without power to adopt remedial legislation in aid of the enforcement of the prohibition law, and to prevent illegal sales being made. This question was so thoroughly discussed in the case of Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040, we do not deem it necessary to do so again. The contention that the Legislature was without power and authority to pass the law was also held adversely to appellant in the Pitch Case, supra. As said in that case, “it would be a monstrous doctrine to hold that the Legislature is powerless to enact legislation defining offenses * * * for the new conditions that may arise” under the prohibition law, and if the new enactment has for its object and purpose to aid in the prevention of illegal sales it is to be commended, and not condemned. As to the constitutionality of what is known as the “Allison Law,” this court has heretofore upheld its constitutionality. Ex parte Muse, 168 S. W. 520, and Ex parte Peede, 170 S. W. 749, decided at this term ■and not yet ofiieially reported.

Neither was it necessary in the indictment to,allege the names of the various voting precincts in the county. The allegation that on the 30th day of November, 1910, an election was held under proper authority, and that prohibition has been adopted, etc., was sufficient, without naming the various voting boxes in the county.

The complaint that the indictment charges three offenses, and is therefore void, is, we think, without merit. Section 4.of the Allison law (page 63, Session Acts 33d Leg.) makes it an offense for any person to ship, transport, carry or deliver intoxicating liquor to any other person in prohibition territory, except as otherwise provided in the act. The offense may be alleged to have been committed in all of these ways, and proof that the offense was committed in either of the ways alleged would sustain a conviction. The fact that the pleader could have elected to charge that he committed the offense defined in this section in only one of the ways does not prevent him from also charging that defendant committed the offense in all of the four ways mentioned, by use of the conjunction “and,” instead of “or.” In Comer v. State, 26 Tex. App. 509, 10 S. W. 106, it was held by this court that if several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count. See, also, Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Laroe v. State, 30 Tex. App. 374, 17 S. W. 934; Holman v. State, 90 S. W. 174; Prendergast v. State, 41 Tex. Cr. R. 358, 57 S. W. 850; Morris v. State, 57 Tex. Cr. R. 163, 121 S. W. 1112, and cases cited.

facts in this ease would authorize a jury to find that appellant approached Hor-HorGriffin, who was in Lampasas, Lampasas county, a county where prohibition was in force, and solicited an order for intoxicating liquors, in that he told Griffin he was going after whisky, and asked him if he wanted some. Griffin replied that he wanted two quarts. He then paid appellant $2, and told him he wanted bonded goods, either Hill & Hill or Jersey Cream. Appellant then told him his part of the expense would be 55 cents, and Griffin paid this amount in addi-addito the price of the whisky. Appellant for some reason did not want to take his valise on the train, and asked Griffin to have Ford Mitchell do so, and this Griffin did. Ford Mitchell carried the grip or valise to the train, and procured Douglass Einley to carry it on the train. This grip had appel-appelname on it, and witnesses testify that it was light at this time and did not have anything in it, unless some light clothing. Appellant is traced on this train to Belton, where he tells witness Barnes he is going to Temple. He is traced back from Belton to Lampasas. When he gets back to Lampasas, he hands the valise out of the car window to Ford Mitchell, and then gets off the train. Officer Mace, sees Ford Mitchell take the va-vaout of the window, and, when he at-atto arrest him, Mitchell throws the valise under the train. The officer has Mitch-Mitchto secure the valise, and when appellant is apprehended the key to the valise is se-sefrom him, and in the valise are found 12 quarts of whisky — 5 Jersey Cream, CasCas-cade, 4 Sunny Brook, and 1 Hill & 1-Iill, all bonded goods, 2 of which were intended for Griffin. It is thus made apparent appelappel-lant secured 12 quarts of whisky either in Belton or Temple, carried and transported it to Lampasas, and handed it to Ford Mitchell. These facts we think the record bebe-yond question.

Bill of exceptions No. 4 is not in the record before us, and in bill No. 5 appellant complains of the fact that the court allowed the district attorney to open the valise in the presence of the jury and introduce it and its ! contents in evidence, on various grounds. This valise had been identified as the one carried to the depot by Ford Mitchell and placed on the train by Douglass Finley, aá the valise handed out of the car window to Ford Mitchell, and which the officer secured from him at the time of the arrest. The officers testified it was in the same condition that it was in at the time it was taken from Mitchell’s possession, and under such circumstances there was no error in admitting it and its contents in evidence. ¡

It also appears by another bill that, when Mr. Mace testified that the bottles contained whisky, the defendant objected to him being permitted to so testify, “because the bottles were sealed up,” and the contents was the best evidence. The court then permitted the district attorney to unseal one of the bottles and hand it to the witness Mace, who then swore that he knew it contained whisky. As appellant was being prosecuted for carrying, transporting, and delivering whisky in prohibition territory for illegal purposes, there can be no question of the admissibility of this testimony. It would settle, and did settle beyond question, as to what was the contents of the.valise.

Appellant also objected to Officer Mace being permitted to testify:

“I saw Ford Mitchell going to the negro coach, and saw a negro’s arm handing this grip out to him, and when Ford Mitchell saw him, he (Ford) run and shot the grip under the coach”

—the objection being that it was not shown that it was defendant who handed the grip to Ford. Several witnesses testify that there were but two negroes in this coach when it got to the depot — appellant and John Barnes. John Barnes testified that when he went out of the coach he left appellant, and appellant alone, in the coach. The grip had appellant’s name thereon, and by exclusion at least the evidence makes it virtually impossible for it to have been any other person than appellant who handed it out. The facts and circumstances render it as certain as it is possible for circumstantial evidence to show any fact. It excludes every other reasonable hypothesis.

The contention that it was not shown to be appellant’s grip cannot be sustained. The evidence, and all the evidence, shows this beyond question. Neither did the court err in permitting the entire contents of the grip, the 12 bottles of whisky, to be introduced in evidence, even though appellant was charged with carrying, transporting, and delivering only one bottle. The evidence was res gestee of and a part of the transaction alleged.

Appellant objected to the charge of the court in one particular only. The indictment alleging that appellant “did carry, transport, and deliver,” he insists the court erred in authorizing a conviction if the jury found appellant “carried, transported, or delivered”— this time contending that the indictment al- ! ¡ leged only one offense, and appellant must be shown to have carried, transported, and delivered, all three, before a convictioh could be had, while in the motion to quash he had contended that it charged three separate and distinct offenses. As before stated, if several offenses are embraced in the same general definition, and are punishable in the ■ same manner, they are not distinct offenses, and may be charged conjunctively in the same count, yet a conviction may be had if the offense is committed in either of the ways alleged. Copping v. State, 7 Tex. App. 61. This rule of law has always been followed in this court, and is stated to be the correct rule by Mr. Bishop and other text-book writers.

The court did not err in refusing the peremptory instructions requested, nor did he err in refusing the instructions that if a delivery was not made to Horace Griffin in person to acquit. -We are of the opinion that, under the facts and circumstances in this case, the delivery to Ford Mitchell was a delivery to Horace Griffin; but, if that be not a correct deduction from the evidence, • a conviction would be authorized under the other means alleged in the indictment of violating the law. We do not think the evidence raises the question of appellant being an agent of Horace Griffin, but, on the other hand, shows an illegal solicitation of an order for the sale of intoxicating liquor, which contemplated a delivery by appellant to Griffin of the liquor in prohibition territory, and as he received a profit over and above the price of the whisky —55 cents — this would constitute a sale in the prohibition territory. But inasmuch as my Associates on the bench hold that the evidence would not support a finding that it was a sale (in which view I do not concur), the evidence beyond peradventure of doubt shows that appellant approached Griffin and, to use Griffin’s own language, the following took place:

“I know Cooper Johnson. I saw him in Lampasas about the 11th day of last March. I was employed then at the Wachendorfer Hotel. It was before noon. He said he was going down the road, either to Temple or Bel-ton. It was in the morning, before the Santa Fé was due. He asked me if I wanted to send down there for some booze. I gave him $2.55. It was for two quarts. I told him to bring me two quarts of bonded whisky. I said Hill & Hill or Jersey Cream. I gave him $2 for whisky and the 55 cents was for railroad fare. He did not say what the railroad fare would be, but said my part was 55 cents. He said he would be back that evening.”

Taking all other facts and circumstances in evidence, the writer thinks it but a cloak for a sale, and if a proper submission of the issue, under an indictment charging him with making a sale, had be.en given the jury, he would sustain a finding that it was a sale. However, as my Associates view the testimony otherwise, I will not place the affirmance on that ground, but will discuss the case from their standpoint, that it made appellant the agent of Griffin. This I do not understand to be a correct view, since section 6 of tbe Allison law makes it a felony to solicit of take orders for whisky in prohibition territory. Under the evidence he could be prosecuted for soliciting this order from Griffin for whisky, getting thereby a part of his railroad fare paid, to say the least, and this court would sustain such conviction, and, therefore, he would be carrying and. transporting this whisky for an illegal purpose, to fill an order he had theretofore solicited.

But, in the event it is held that he by these acts was merely the agent of Griffin, and that he was merely carrying the whisky to his principal, having no other connection therewith, the evidence in this case wholly fails to show what use Griffin intended to put the whisky to when he received it, and the question of whether one can have whisky shipped to him for personal use is not raised by the evidence, and need not be and should not be discussed. Griffin testified he was not a member of Cooper Johnson’s family; that he was not a minister of the gospel; in fact, there is no evidence tending to bring appellant within the exceptions — that he was carrying or transporting it to Griffin for any of the purposes which have been excepted from the provisions of the law. Section 4, as applicable to this case, reads:

“Except as otherwise provided in this act, it shall he unlawful for any person * * * to ship, transport, carry or deliver any intoxicating liquor to any other person, * * * in this state.”

The offense is thus defined, and in the indictment it is not necessary to negative any of the exceptions. And when the state, proves on the trial that the person on trial did carry and transport to another in prohibition territory Intoxicating liquor, it has made its case. If the defendant wishes to bring himself within any of the exceptions, he must offer some proof, else.the issue is not raised. If one kills another, upon proof of that fact, the state has made its case. If a defendant relies upon that portion of the statute which exempts him from punishment,- he must offer proof of that fact; otherwise the issue of self-defense is not raised. If one carries a pistol, proof by the state that he did have a pistol, makes its case; if appellant relies on the exceptions, that he was a traveler, or that he was merely carrying it to his home, he must offer proof of that fact, else the issue is not raised, and a conviction is authorized on mere proof that he had a pistol.

' So in this case, when the state proved that appellant had carried and transported whis-ky from Temple or Belton for delivery to Griffin in Lampasas (where prohibition prevails) the state has- made its case, and a conviction was authorized and will be sustained. If appellant desired to bring himself within any of the exceptions, being separate articles of the statute, and not included in the definition of the offense, he should have offered some proof. The record is plain that appellant carried it to be delivered to Griffin; the record is silent as to the use Griffin intended to put the liquor to. So the question of whether one may carry or transport liquor to another in prohibition territory for the personal use of such person is not raised, nor even suggested, by the testimony, and therefore we do not deem it necessary to discuss that question. And the mere fact that appellant was the mere agent of Griffin does not raise that question, when there is no evidence as to the use Griffin intended to put the whisky to. Griffin himself had no right to carry the whisky into the territory, except for his own use, and his agent could have no greater right than the principal, and if Griffin had carried the whisky into the prohibition territory, and the state proved that fact, he could be convicted, unless he should offer some evidence that it was for his own use, or the use of members of his family. And as there is no testimony that the whisky was so intended to be used, even if appellant should be held to be merely an agent of Griffin, we will not discuss that theory of the case, although my Associates do so, taking opposite views on that question.

The only other bill of exceptions in the record complains of the action of the court in refusing to give a special charge wherein appellant requested the court to charge the jury that they should acquit unless they found beyond a reasonable doubt that appellant carried,, transported, and delivered the liquor to Griffin — that is, did all three things alleged. This is not the law, for he could be convicted for having done either of three things alleged.

The facts in this ease, to our minds, show that the whisky was being carried into Lam-pasas county for a purpose prohibited by ■law. The evidence shows that appellant approached Horace Griffin and asked if he wanted some whisky, and Griffin told him he did — he wanted two quarts. Appellant accepted the money for the whisky, with an understanding that he was to secure the whis-ky and deliver it to Griffin in Lampasas. He not only accepted the price of the whisky, but collected 55 cents extra — getting a profit over and above the price of the whisky for himself. The facts show an illegal transportation and carriage. There has never been any doubt in our minds, and since the passage of the Webb-Kenyon Act (U. S. Gomp. St. 1913, § 8739) we do not think there can longer be any question, that a law of the state prohibiting the carrying and transportation of intoxicating liquors into prohibition territory for the purpose of making illegal sales thereof, or for any other illegal purpose, is valid and violative of no provision of the Constitution, either state or federal.

Being of the opinion that the law prohibiting the carrying, transportation, and delivery of whisky into prohibition territory for the purpose of making sales thereof in violation of law, or for any other illegal or unlawful purpose, is valid, and that the evidence in this ease makes it clear that appellant was carrying and transporting this whisky into prohibition territory for an illegal purpose, the judgment is affirmed.

PRENDERGAST, P. J.

(concurring.)

As the indictment alleged, and the proof showed, appellant procured intoxicating liquor from some other point in this state, and did “transport, carry, and deliver” it to Griffin in Lampasas county, in this state, where prohibition was in effect, he is guilty, and I agree to the affirmance of the judgment. To “transport” means exactly the same thing as to “carry.”

I base my concurrence in the affirmance of the judgment solely on the ground that appellant carried and delivered the liquor to Griffin in prohibition territory, wholly regardless of what use Griffin, had for it, or intended to put it to, and wholly regardless of what appellant did, other than that he carried it and delivered it to Griffin. Section 4, Allison Act, approved August 21, 1913, p. 62. There is no evidence which shows or tends to show that Griffin intended the liquor for any unlawful purpose whatsoever; but, as I understand it, it tends to show he had it brought and delivered to him for his own use.

Appellant was in no way prosecuted for selling the liquor to Griffin, and, as I understand the evidence, he in no way made a sale of it to Griffin; but, as I understand the law and the uniform decisions of this court, some of which are cited in section 569, Branch’s Grim, Law, he acted in the transaction merely as the agent of Griffin and not otherwise. However, even if he had made a sale of it to Griffin, that could not affect the question, for he was in no way prosecuted for making a sale to Griffin, nor for carrying it and delivering it in Lampasas county for that purpose, but solely for carrying and delivering it to him. So, even if he illegally solicited an order for the sale of it, that could have no bearing whatever on the case, or any question in it, for he was in no way prosecuted for that offense.

The Webb-Kenyon Act of the Congress has no possible bearing on this case, or any question in it.

DAVIDSON, J.

(dissenting).

I cannot agree with the result reached in this case. Judge HARPER holds that the facts show a sale, and therefore punishable under the charge of carrying intoxicants into local option territory. Presiding Judge PRENDERGAST holds the facts do not show a sale, but only an agency on part of appellant, and nothing else. I agree with Judge PRENDERGAST on this phase of his concurring opinion. Appellant was charged with violating what is known as the Allison bill, the allegation being that he transported, carried, and delivered to Griffin whisky in local option territory. The state’s case, therefore, must rest upon these allegations. Griffin gave appellant $2 with which to buy for him two bottles 'of whisky, and 55 cents' to pay or assist in paying his railroad fare to Belton or Temple and return. Appellant bought the whisky in one of the towns mentioned for Griffin with Griffin’s money. This constituted him the agent of Griffin. I do not see how, by any possible construction of this testimony, it could be correct to hold, that appellant sold Griffin the whisky. If it was a sale, appellant violated the local option law in Lam-pasas county; but he was not charged with this offense, and the facts do not support it. The authorities sustaining my views of it are found collated in Mr. Branch’s work on Criminal Law, § 569. Quoting from that work:

“If defendant is in no way interested on behalf of the seller, but is simply acting as agent of prosecutor, he is not guilty of making a sale.” Key v. State, 37 Tex. Cr. R. 78, 38 S. W. 773; Reed v. State, 44 S. W. 1093; Crawford v. State, 76 S. W. 576; Blasingame v. State, 47 Tex. Cr. R. 587, 85 S. W. 275,; Rector v. State, 90 S. W. 41; Short v. State, 49 Tex. Cr. R. 244, 91 S. W. 1087; Bowman v. State, 35 S. W. 382; Brignon v. State, 37 Tex. Cr. R. 71, 38 S. W. 786; Kirby v. State, 46 Tex. Cr. R. 584, 80 S. W. 1007; Way v. State, 36 Tex. Cr. R. 40, 35 S. W. 377; Gaston v. State, 102 S. W. 116; Hood v. State, 35 Tex. Cr. R. 535, 34 S. W. 935; Crawford v. State, 58 S. W. 1006; Johnson v. State, 44 S. W. 834; Phillips v. State, 40 S. W. 270.

It was also held, if there is evidence that the accused bought liquor from another as agent of the purchaser and that he was in no way interested on behalf of the seller, it is error to refuse a charge affirmatively presenting this issue. Campbell v. State, 37 Tex. Cr. R. 572, 40 S. W. 282; Treue v. State, 44 S. W. 829; Strickland v. State, 47 S. W. 721; Driver v. State, 48 Tex. Cr. R. 20, 85 S. W. 1056; Golightly v. State, 49 Tex. Cr. R. 45, 90 S. W. 26, 2 L. R. A. (N. S.) 383, 122 Am. St. Rep. 779, 13 Ann. Cas. 827; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167; Wright v. State, 35 Tex. Cr. R. 582, 34 S. W. 935. These authorities settle the question that this was not and could not constitute a sale. If any illegality existed or could possibly arise under the facts of this case, it was that appellant bought whisky in Temple or Belton for Grif fin and carried it to him at Lampasas, and was therefore acting as his agent. If he violated any law, it is that clause of the Allison bill which prohibits transporting, carrying, and delivering whisky in local option territory. Judge PRENDERGAST holds this part of the Allison bill valid. With this view I cannot concur. Some of our courts have gone far enough to say that the citizen may be punished for storing intoxicants in local option territory for illegal selling purposes, and this seems to rest upon the theory that this can be prevented because of anticipated sales to occur in the future. That question does not arise in this case, because the evidence is conclusive that the whisky belonged to Griffin and was carried by his agent, appellant, to him in Lampasas county.

So we have this question: Can a citizen be punished by confinement in the penitentiary for carrying whisky into local option territory with no possibility of violating the local option law?' The Allison law is dependent for its existence on the local option law. When the local option law passes out, that dies for want of something to keep it alive. With whatever far-reaching power and authority. the Legislature may be clothed under the Constitution of Texas (article 16, § 20), that power is circumscribed to prohibiting selling in local option territory. There is no question, I would suppose, at this late day in Texas that this law does not authorize the punishment of the citizen for giving away whisky aiid cannot legally — the Allison bill to the contrary notwithstanding. Under ali the authorities it has been held that the giving of intoxicants in local option territory could not constitute a violation of that law. This has been held even as to giving it to minors. If the party gave to minors, he would have to be punished for violation of the local option law. Atkinson v. State, 40 Tex. Cr. R. 229, 79 S. W. 31, 3 Ann. Cas. 839 ; Tracy v. State, 48 Tex. Cr. R. 50, 85 S. W. 1056; Tompkins v. State, 49 Tex. Cr. R. 155, 90 S. W. 1019. This court has held the Legislature had no authority to authorize an election to determine whether the gift of intoxicating liquors shall be prohibited— whether the gift was with intent to evade the law or not. Holley v. State, 14 Tex. App. 505; Bottoms v. State, 73 S. W. 16; Steele v. State, 19 Tex. App. 425. It was also held in Stallworth v. State, 16 Tex. App. 345, that an indictment for ordinary local option violation which charges a gift charges no ’ offense. For many cases deciding this particular phase of the law, see Branch’s Criminal Law, § 567.

As I understand the law, viewed in the light of the constitutional guaranty and wording of section 20, art. 16, the Legislature-cannot prohibit the citizen of this state from conveying to his friend, or giving to his-friend, or to his principal as his agent, intoxicating liquors in local option territory, so-long as he does not violate some of the inhibitions with reference to sales or illegal matters of that character. An accused does not have to prove his innocence; the state must prove guilt to secure a conviction. In other words, the Legislature cannot make it a felony and incarcerate our citizenship in the penitentiary, even in local option territory, where one friend gives to another intoxicants, or where one citizen gives to another citizen intoxicants, or buys it as agent of the principal; and I understand the law to be further that the Legislature cannot abrogate or abolish the law of principal and agent; that the . Legislature is powerless to abolish the law and doctrine of agency. If appellant was guilty, I do not understand' why Griffin was not, on the theory of agency. Griffin could be an accomplice on that theory. This certainly would pass even the limit of the power of the Legislature. The principal may do through his agent what he himself may do. The Allison law authorizes the principal to carry the whisky into local option territory for his own use. I therefore-agree with Judge PRENDERGAST that appellant was only the agent of Griffin, but disagree with him as to his conclusion of the validity of the Allison bill on this question, and disagree with Judge HARPER that the facts constituted a sale by appellant to-Griffin.

With due deference to the opinion of my Brethren, I respectfully enter this dissent.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    LEMPKE v. STATE.
    (No. 3388.)
    (Court of Criminal Appeals of Texas.
    Jan. 20, 1915.)
    Sunday (§ 6*) — Offenses—Moving Picture Snow.
    The opening of a moving picture show and the performance of an exhibition there on Sunday is a violation of the statute (Pen. Code 1895, art. 199) prohibiting the opening on Sunday of places of public amusement, including theaters and such other amusements as are exhibited and for which an admission fee is charged.
    [Ed. Note. — For other cases, see Sunday, Cent. Dig. §§ 11, 12; Dec. Dig. § 6.*]
    Davidson, J., dissenting.
    Appeal from McLennan County Court; •George N. Denton, Judge.
    J. A. Lempke was convicted of violating
    •the Sunday law, and lie appeals.
    Affirmed.
    ■O. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The complaint and information charge appellant w-ith violating the -Sunday law, in that he ran a-moving picture show on Sunday. In order to obtain the enhanced punishment, other clauses were added in the pleadings charging prior convictions of a similar offense. There are two reasons why it is contended the pleading is not sufficient, as well as in failing to charge an offense. Under Muckenfuss v. State. 55 Tex. Cr. R. 216, 117 S. W. 853, the complaint and information sufficiently charge prior convictions of similar offenses, and under Ex parte Lingenfelter, 61 Tex. Cr. R. 30, 142 S. W. 555, Ann. Cas. 1914C, 765, the opening of a moving picture show' on Sunday is an offense. The writer has not agreed with the majority holding that the opening of a moving picture show on Sunday is a violation of the statute. These matters have been discussed by this ■court, and the majority have held it to be an ■offense. The waiter has seen no reason to change his view's expressed in the dissenting opinion. Under the authority of the above cases the judgment will be affirmed.

There are no bills of exception or statement of facts. The matters urged with reference to the charges therefore cannot be intelligently revised.

As the record is presented, the judgment will be affirmed.


author: HARPER, J.

text:
    LEWIS v. STATE.
    (No. 3275.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.
    On Motion for Rehearing, Dec. 9, 1914.)
    1. Larceny (§ 13) — “Swindling”—“Theft.”
    Pen. Code 1911, art. 1332, provides that, if money be obtained by any false pretense with intent to deprive the owner of the value thereof and to appropriate it to the benefit of the j>er-son taking, such person is guilty of theft. Article 1421 declares that the acquisition of money by any false or deceitful pretense with intent to appropriate it to the use of the person acquiring is swindling-. Held that, where by the fraud practiced the title to money is passed, the offense is “swindling” and not theft, but if mere possession is obtained by false pretenses, and title does not pass, the person acquiring the money is guilty of “theft.”
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 32, 33; Dec. Dig. § 13.

    For other definitions, see Words and Phrases, First and Second Series, Swindling; Theft.]
    2. Larceny (§ 55) — Prosecution—Evidence —Sufficiency.
    In a prosecution for theft of money by false pretenses, evidence held to warrant a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §| 152, 164, 165, 167-169; Dec. Dig. § 55.]
    3. Criminal Law (§ 603) — Trial—Continuance.
    Under Code Cr. Proc. art. 60S, providing that an affidavit for a continuance shall state the diligence used to procure the attendance of the absent witness, and it shall not be held sufficient diligence merely to apply for a subpoena, where the law authorizes an attachment, the application must not only show the materiality of the testimony sought, but diligence in applying for process to compel the witness’ attendance or facts to excuse the failure.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    On Motion for Rehearing.
    4. Larceny (§ 68) — Prosecution—Evidence —Jury Question.
    In a prosecution for theft of money by false pretenses, evidence held not to raise the issue whether the money was loaned to accused.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ ISO, 181; Dec. Dig. § 68.]
    5. Criminal Law (§ 922) — Presentation of Grounds of Review in Court Below — Objections to Instructions.
    Under Acts 33d Leg. c. 138, providing that before the charge is read to the jury accused or his counsel shall have a reasonable time to examine it and shall present his objections thereto in writing, objections to the charge cannot for the first time be made on motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    J. Vance Lewis was convicted of theft, and he appeals.
    Affirmed.
    J. M. Gibson, W. W. Wander, and Norman G. Kittrell, Sr., all of Houston, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

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

The evidence in this case would show that Ida Childress was arrested in Harris county, charged with a misdemeanor alleged to have been committed in Nacogdoches, Tex. When she was so arrested, she was in Harris county. As to who employed J. Vance Lewis to represent her is a disputed question. The state’s evidence is tliat lie was employed by a sister o£ Ida CMldress, Annie Baxter, wlio says that he charged her a fee of $10 and she paid it to him.

Appellant’s contention is that he was not employed by Annie Baxter to represent Ida Childress, but he was employed by Hattie Bullock, and that his fee was $125, and all the money he received from Hattie Bullock was in payment of that fee. Hattie Bullock and Annie Baxter deny this, and say that Annie Baxter employed appellant and paid him, and all the money received by appellant from Hattie Bullock was money to be used as bond for Ida Childress. Anyway, it appears conclusively from this record that appellant was employed to represent Ida Childress; that he sued out a writ of habeas corpus before Judge Robinson, and no "bond of any character was required on the hearing. Now, the state’s testimony is that when the hearing was had appellant went to Hattie Bullock, a cousin of Ida Childress, and represented to her that the bond of Ida Childress was fixed at $100, and he wanted her to assist in making the bond. She said she did not have that much money, but had $50 which she would put up, and did put up, on the bond for Ida Childress. Appellant said this was all right; he would put up the remainder. Ida Childress was discharged by Judge Robinson. Several days thereafter appellant approached Hattie Bullock and told her that the bond of Ida Childress bad been increased and he needed $75 additional to put up as bond for Ida Childress, which would be returned to her in 60 days. Hattie Bullock gave appellant this $75, and on this transaction this prosecution is based.

The state’s contention is that under article 1332 of the Penal Code this constituted “theft”; that article providing that if the money was obtained by any false pretext, with the intent to deprive the owner of the value thereof, and with the intent to appropriate the money to the use and benefit of the person taking it, it would constitute theft.

Appellant’s contention is that, even though the money was obtained under the circumstances detailed by the state’s witnesses, the crime proven would be “swindling” under article 1421 of the Penal Code, and appellant could not be convicted under an indictment charging him with theft. Article 1421 provides that the “acquisition of any * * * money * * * by means of some false or deceitful pretense or device, or fraudulent representation, with intent to appropriate the same to the use1 of the party so acquiring,” is swindling.

These two articles of the Code, which to a casual reader would indicate that the Legislature had defined the same state of facts to constitute two separate and distinct offenses —theft by fraudulent pretext, and swindling —have often been before this court, and a line of demarcation has been clearly and distinctly marked out, as to what will constitute theft under article 1332, and what acts will constitute swindling under article 1421. In Underwood v. State, 49 Tex. Cr. R. 285, 91 S. W. 572, this court, speaking through Judge Brooks, said:

“The unbroken line of authorities in this court lay down the proposition that where the money is obtained by false pretenses, and the party intended at the time the same was obtained to part with both the title and possession of the money, these facts make out a case of swindling, and not theft. The facts before us, as stated above, show that prosecutor intended to part both with the title and possession of the money; and hence this prosecution should have been brought for swindling and not theft. Taylor v. State, 32 Tex. Cr. R. 110, 22 S. W. 148; Prank v. State, 30 Tex. App. 381, 17 S. W. 936; Pitts v. State, 5 Tex. App. 122; Williams v. State, 34 Tex. Cr. R. 523, 31 S. W. 405; Powell v. State, 44 Tex. Cr. R. 273, 70 S. W. 968; Price v. State T49 Tex. Cr. R. 131, 91 S. W. 571], decided at Tyler term, 1905.”

In the case of Bink v. State, 50' Tex. Cr. R. 448, 98 S. W. 865, this court, speaking through Judge Henderson, said:

“The material question is whether this conviction can be sustained for theft. Appellant contends that it cannot; that if he is guilty of any offense it is swindling and not theft, inasmuch as the evidence without controversy shows that the fee in the property was acquired by him by means of a false pretext, and not the mere possession of the property. We understand our decisions on this point to hold that the acquisition of the title to the property— that is, the fee in the property — if it is acquired by means of the false pretext, it is swindling; whereas, if the mere possession of the property is parted with by means of the false pretext, it is theft. Articles 861, 674, Penal Code; State v. Vickery, 19 Tex. 326; May v. State, 15 Tex. App. 430; Sims v. State, 28 Tex. App. 447 [13 S. W. 653]; Price v. State, 49 Tex. Cr. R. 131, 91 S. W. 571; Curtis v. State, 31 Tex. Cr. R. 39 [19 S. W. 604]; Johnson v. State, 46 Tex. Cr. R. 415 [80 S. W. 621].”

And in the case of Bink v. State, 50 Tex. Cr. R. 452, 98 S. W. 250, this court, speaking through Judge Davidson, said:

“There is and has been, in England and America, and it is true in Texas, a marked distinction between theft and swindling. Article 861, Penal Code, provides, in substance, that if the possession of the property is wrongfully obtained, it is theft if the purpose at the time of obtaining the property was to appropriate it, or if it was obtained by false pretenses for the purpose of appropriating it. Article 877 provides that, wherever property is obtained by contract of borrowing or other bailment, and the property is subsequently appropriated, it constitutes theft. But, under these statutes and all of the law of theft, the distinction between that crime and swindling is found in this: That in theft the title to the property is not an issue. In swindling the passing of the title is necessary. The rule may be stated in this way: ‘The true distinction between theft and swindling, where the property is acquired by/means of false pretenses, is this: If the owner was induced to part with his property finally by means of the false pretenses, the offense is swindling. But where the possession delivered by the owner was obtained in a manner not sufficient to pass title to the property, the owner only intending to part with the possession and custody and not the title to his property, and. the party so acquired possession then and there entertaining the fraudulent intent to appropriate it and did appropriate it, the offense is theft.’ In this state, this is the distinction made by the statutes in regard to swindling and theft, and has been recognized by all the decisions in an unbroken line, commencing with White v. State, 11 Tex. 769. See, also, State v. Vickery, 19 Tex. 326; Cline v. State, 43 Tex. 494; Pitts v. State, 5 Tex. App. 122; Hudson v. State, 10 Tex. App. 215; Frank v. State, 30 Tex. App. 381 [17 S. W. 9361; Curtis v. State, 31 Tex. Cr. R. 39 [19 S. W. 604]; Taylor v. State, 32 Tex. Cr. R. 110 [22 S. W. 148].”

It is thus made plainly manifest that, if by the fraud practiced the title to the property passed to the person obtaining it, the offense is swindling and not theft; on the other hand, if the mere possession of the property was obtained by the fraud practiced, and the title to the property did not pass to the person obtaining it, such acts constituted theft under the provisions of the Code hereinbefore cited. So the question in this case is: Does the evidence offered in behalf of the state show that the mere possession of the property passed to appellant, or does it show that the title to the property passed to appellant? If the title passed, the conviction cannot be sustained; if the mere possession of the money passed and not the title to it, the acts constituted theft and not swindling. The law is thus made plain, and it only remains to be determined what the facts would show.

Hattie Bullock testifies that the $75 was obtained from her by appellant by the representation that the bond of Ida Childress had been increased, and that she gave him the money to be deposited in lieu of a bond, to be returned to her in 60 days. Annie Baxter also so testifies. Under this testimony, ■the title to the money did not pass to appellant — merely the possession of it, to be deposited in lieu of a bond, and the prosecution, if maintained at all, was necessarily brought under the article of the Penal Code charging appellant with theft of the money by fraudulent pretext, for the identical money was to be returned in 60 days. The evidence does not raise the question, of a loan to appellant. He says this $75 was paid to him as a fee in the Ida Childress case, and at the request of appellant the court instructed the jury that if the money was paid to appellant as a fee they would acquit him. This was a submission of the defensive theory of the case, and the jury found adversely to him.

The contention that the court erred in overruling the application for a continuance cannot be sustained. The application shows the materiality of the testimony of the absent witnesses beyond question, but it fails to show that process of any character had been issued to secure their attendance. Article 60S, Code of Criminal Procedure. The indictment in this case was returned March 26, 1914, and the trial was not had until May 13, 1914. No process had been issued for the absent witnesses; no application made for process to issue for them; and no reason stated in the application for continuance why process had not been issued, nor applied for. Under such circumstances, the court did not err in overruling the application for a continuance, for the law is that the application must not only show the materiality of the testimony, but must also show the.diligence used to secure the attendance of the witnesses, or state the reason why process had not been applied for. Snodgrass v. State, 36 Tex. Cr. R. 207, 36 S. W. 477; Sykes v. State, 53 Tex. Cr. R. 165, 108 S. W. 1179; Townsend v. State, 41 Tex. 135; Hill v. State, 36 Tex. Cr. R. 441, 37 S. W. 736. As the application for continuance does not show that any process had ever been issued for the absent witnesses, nor any reason shown why process had not been issued, it is insufficient in law, and the court did not err in overruling it.

There is in the record no exception to the admissibility or rejection of any testimony introduced on the trial of this cause. The record does not disclose that there was any objection made to the charge of the court as given at the time it was submitted to counsel for their inspection. The special charges requested and not given were fully covered by the court in his charge to the jury, and under such circumstances we can only affirm the judgment of the trial court.

The judgment is affirmed.

On Motion for Rehearing.

This case was affirmed at a former day of this term, and on the motion for rehearing very able and interesting briefs have been filed both by the attorneys who tried the case, and by Judge Norman G. Kittrell, who has been retained since the trial to assist in briefing the case on appeal.

In the motion for rehearing it is not contended that we did not correctly state the law as to the true distinction between the offenses of swindling and theft by fraudulent representations, but it is contended that we misconceived the testimony of Hattie Bullock, and that her testimony does not show that it was not her intention that the title to the money should not pass to appellant at the time it was delivered to him. We have again very carefully re-read the testimony, and, as stated in the original opinion, the defense was that Hattie Bullock had paid ap-Xjellant the money as a fee. This she denied. That issue was submitted to the jury by the court, as shown in the original opinion, and the jury found against appellant on that contention, and it is not surprising they did so, for the testimony shows that, when appellant learned that Hattie Bullock had reported the matter to the district attorney and had gone before the grand jury, he' called her over the telephone and asked her about it, and, upon being informed that she had done so, he told her to call at hjs office, as he had some money for her. This she declined to do at that time, but later she consulted with the district attorney’s office, and was told to accept the money if appellant desired to repay her her money, and, when appellant learned she would accept the money, his wife did pay to Hattie Bullock the money. If appellant was sincere in his contention that he had received the money as a fee in the Ida Childress habeas corpus, he would hardly have repaid it to Hattie Bullock as soon as he learned that she had reported the transaction to the district attorney, and had gone before the grand jury. If he had come by the money honestly, and relied on that defense, he would not so hastily have refunded the money, upon learning of her appearing-before the grand jury, and the fact that he did refund it when he learned she had been before the grand jury would not relieve the transaction of its criminality, as the offense was committed, if any, at the time he obtained possession of the 'money by fraudulent representations with the intention to appropriate it to his own use, and which he did for some six months appropriate it to his own use, only refunding it after he was notified that steps had been taken to institute a criminal prosecution.

But appellant’s able counsel contend, even if that be true, that the testimony would show a loan to appellant of the money. If that be true, we concede that, if the loan was obtained by fraudulent rexiresentations, it would be a swindling as we endeavored to make plain in the original opinion, but evidently did not do so, or counsel have not carefully considered the opinion. What we meant to say was that the testimony did not tend to raise the issue that the money was loaned to him by Hattie Bullock, or that the possession of it was delivered to him to be used as he saw proper as his property. The testimony of appellant’s witnesses did not tend to raise that issue, but was wholly on the issue that it had been paid to him as á fee. Neither does the state’s testimony tend to raise such an issue, in our opinion. Appellant in his cross-examination of Hattie Bullock asked her if the money was not loaned to apx>ellant, and her answer was:

“He has not borrowed any money from me— never borrowed any money from me. I have never loaned him any money.”

As appellant’s witnesses do not contend that it was a loan, the authorities where a loan was obtained by fraudulent representations have no application to this case. The testimony of the state’s witnesses show that, when Judge Robinson had agreed to discharge Ida Childress, appellant did not so tell the negro women, but told Hattie Bullock that Ida’s bond had been fixed at $100, and at that time obtained from her $50; that a few days later he went to Hattie Bullock’s home and told her that Ida’s bond had been increased, and he would have to have $75 more on the bond, that this money would be returned to Hattie Bullock in 60 days. Hattie Bullock gave him a check for the $75,. but he did not cash the check, returning it to her, saying the bank would not pay it. Hattie Bullock then went to the bank and got the money and delivered the $75 to appellant to be used as a bond, to be returned by appellant in 60 days. Under this state of case,- we cannot conceive how it can be contended that the money ever became appellant’s money, or gave him the right to dispose of it for his own use and benefit. To constitute swindling, the title to the money must have passed to appellant — become his property to be used and disiiosed of as he saw proper. This testimony does not raise that issue, but shows, if true, that the mere possession of the money was obtained by appellant by the fraudulent representation that it was. needed to be used to secure bond for Ida Childress, and that the money was only needed temporarily, and would be returned in 60 days. The money would have had to become the property of appellant before the offense of swindling could have been committed, and, in this case, in no event was the money to become the property of appellant.

We are criticized mildly for not passing on some of the grounds presented in the original brief of one of counsel for appellant. These grounds criticized the charge of the court. As no objections were made to the charge when presented to counsel for their inspection, such grounds could not be raised after verdict. The old rule, that errors in the charge, if errors there be, can be presented for the first time in the motion for new trial, is no longer the law in this state, but that rule was changed by chapter 138 of the Acts of the 33d Legislature. That chapter provided:

“Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.”

And then provided that, if such objections are not filed at that.time, we shall not reverse the case because of any errors in the-charge, unless it appears from the record as a whole that the defendant has not had a fair and impartial trial. The issues raised by the record in this case were presented in the charge given to the jury; no exceptions were reserved to any evidence introduced or excluded, if any. Under such circumstances, we cannot consider the complaints of the charge made after verdict is rendered, and we thought counsel would so understand without us reiterating this rule of law; it having been expressly stated in many opinions heretofore rendered.

We have carefully considered every ground assigned in the case and are still of the opinion that.there is no reversible error presented, and the motion for rehearing is overruled.


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

text:
    COY v. STATE.
    (No. 3209.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    State’s Rehearing Denied Dec. 2, 1914.)
    1. Bigamy (§ 7) — Evidence — Burden of Proof
    Under Pen. Code 1911, art. 52, declaring that on the trial of a criminal action, when the facts have been proven which constitute the offense, it devolves upon the accused to establish the circumstances which he relies on to excuse or justify his act, one accused of bigamy, who admitted a second marriage while a first wife was living, has the burden of proving that he contracted the second marriage while laboring under a mistake of fact.
    [Ed. Note. — Bor other cases, see Bigamy, Cent. Dig. 34-40; Dec. Dig. § 7.]
    2. Criminal Law (§ 77S) — Prosecutions— Instructions — Burden of Proof.
    In a prosecution for bigamy, a charge, which cast upon accused the burden of proving that he aontracted a subsequent marriage under a mistake of fact beyond a reasonable doubt, is erroneous, casting upon accused a greater burden than the law imposes.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 185<L-1857, 1960, 1967; Dec. Dig. § 778.]
    3. Witnesses (§ 277) — Cross-Examination of Accused.
    Where accused, who claimed that he contracted his subsequent marriage under a mistake of fact, believing that his former wife had procured a divorce, took the stand and testified that his former wife wrote him that she had procured a divorce and that he showed the letter to his subsequent wife, etc., it is not improper for the state to bring out on cross-examination that he had children by his former wife, that he knew where they and their mother lived, and that he was traveling near to the place; such matters being material on the question whether his mistake arose from a want of proper care.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.]
    4. Witnesses (§ 277) — Examination—Cross-Examination.
    Where accused testified that his former wife wrote him that she had procured a divorce, that relying upon this he contracted a subsequent marriage, but that the letter which he showed to his subsequent wife had been lost, accused may be cross-examined as to the contents of the letter to enable the state to show that he was mistaken as to the statements therein contained.
    [Ed. Note. — Por other eases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.]
    5. Bigamy (§ 8) — Evidence—Admissibility.
    In a prosecution for bigamy, it appeared that accused had been married three times. His first marriage had been dissolved by a valid decree of divorce, and accused claimed that,_ relying upon a letter written by his second wife informing him that she had procured a divorce., he celebrated a third marriage. On cross-examination it was brought out that he was informed of the dissolution of his first marriage by his sister, who wrote him that his first wife had procured a divorce and that in the same letter she inclosed a certified copy of the divorce decree. The copy was produced and identified. Held, that the copy of the decree, where limited solely to the question whether accused had used due care in ascertaining whether his second wife had procured a divorce before celebrating another marriage, was admissible; such decree not being necessary to show the dissolution of accused’s first marriage, he having testified to that fact himself.
    [Ed. Note. — Por other cases, see Bigamy, Cent. Dig. §§ 41-49; Dec. Dig. § 8.]
    6. Criminal Law (§ 440) — Evidence—Records.
    Por the decree to be admissible for the purpose desired, it was unnecessary to file it and1 give three days’ notice of the filing.
    [Ed. Note. — Por other cases, see Criminal' Law, Cent. Dig. § 1026; Dec. Dig. § 440.]
    7. Bigamy (§ 13) — Prosecution — Peremptory Instruction.
    Where the indictment charged that accused, having a wife in New Jersey, unlawfully married another, the fact that he had previously been married in Michigan will not justify a peremptory charge on the ground that the New Jersey marriage was invalid, where accused himself testified that his first marriage had been dissolved by a decree, of divorce.
    [Ed. Note. — Por other cases, see Bigamy, Dec. Dig-. § 13.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Payette County; Prank S. Roberts, Judge.
    Louis J. Coy was convicted of bigamy, and! he appeals. Reversed and remanded.
    C. G. Krueger, of Bellville, and Mathis, Teague & Embrey, of Brenham, for appellant.
    O. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of bigamy. The indictment charged that he married Nellie May England in Camden county, N. J., on December 4, 1905, and had her for his wife, and while she was living, on May 1, 1912, in Payette county, Tex., unlawfully married and had for his wife one Irma E. Heilig, and on and after-wards did unlawfully and feloniously have both of said women for his two wives at one and the same time. Appellant’s motions for a continuance were overruled, and he was forced to trial on May 11, 1914. On the trial before the court and jury, he admitted the marriage to and having for his wife said Nellie May England as alleged, and while she was living married Miss Heilig, as alleged, and afterwards he had both of said women for his two wives at one and the same time and that both were living and are now living. He made these admissions subject to his defense. The state, upon this admission, which proved its case in. full, rested.

Appellant’s sole defense was that he was laboring under the mistake of fact that his said wife, Nellie May, had procured a divorce from him before he married Miss I-Ieilig, and that this mistake of fact did not arise from a want of proper care on his part.

Under this condition the burden was on him to establish his said defense, for article 52, P. C., specifically enacts:

“On the trial of any criminal action, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission.”

See, also, the decisions noted under this article of the Code. There are many others to the same effect.

However, this provision, and no other, of the law requires that an accused shall establish his defense beyond a reasonable doubt. On this subject the court gave this charge:

“You are further instructed that, if you believe from the evidence in this ease, beyond a reasonable doubt, that the defendant had been informed that his former wife was divorced from him when he married Irma E. Heilig, and if you further find that defendant believed such information to be true, and that such belief did not arise from a want of proper care on the part of the defendant, or if you have a reasonable doubt as to whether the defendant was so informed and so believed, then you will acquit him. However, should you find from the evidence in this case, beyond a reasonable doubt, that such belief, if any, on the defendant’s part, arose from a want of proper care on his part, then the defendant cannot be acquitted on the ground of a mistake of fact.”

By a timely objection, properly made and evidenced by a proper bill of exceptions, appellant specifically excepted to this charge, among other reasons, because it placed a greater burden upon appellant than the laws of this state do as to the proof of his defense, and because it required greater and more conclusive proof of his defense than the law requires.

There is quite a difference between the burden of proof and the proof establishing a fact beyond a reasonable doubt. While appellant had the burden of proof to establish his said defense, he did not have to do so beyond a reasonable doubt which this charge, we think, clearly required, taken as a whole. For this error the judgment must be reversed.

The disposition of the case makes it unnecessary to pass upon whether or not the court erred in overruling appellant’s motion for a continuance and not granting him a new trial after the conviction, because thereof. This matter doubtless cannot arise on another trial. However, the proposed testimony of Miss Heilig and the witness Barton would be admissible, as it was stated in said motion they would give.

The issue being as stated above, and after the state had rested, the appellant took the stand. He testified fully to the same effect as his admissions upon which the state rested: He then further testified, to make out his defense, that after he left his New Jersey wife, and before he married Miss Heilig, his New Jersey wife wrote to him that she had procured a divorce from him. He claims he showed that -letter to Miss Heilig and when he married her he turned that, with other letters from his New Jersey wife, over to her, and that that letter and others had been lost or destroyed; that he relied upon and believed the statements in that letter and in good faith married Miss Heilig. As a necessary part of his defense, he had to show that his mistake about his New Jersey wife having procured a divorce from him did not arise from a want of proper care upon his part to discover the truth. He undertook to do this by his testimony to a considerable extent, unnecessary and probably improper to here state. When he was turned over to the state for cross-examination under such circumstances, clearly the state had the right to show that he had two children by this New Jersey wife, where they and their mother lived, and his knowledge thereof, and his movements with reference to his traveling around and being in close proximity to. them, so that the jury could determine whether or not he had the opportunity to ascertain the truth and that his mistake did not arise from a want of proper care on his part. Especially was this true on cross-examination, for this would materially aid the jury in arriving at a correct verdict.

Also, clearly under the circumstances and in view of this testimony on direct examination, and especially as to the contents of the letter he claimed to have received from his wife notifying him that she had procured a divorce from him, did the state have the right to cross him as to the contents of that letter and develop from him, if it could, that he was mistaken about the contents of that letter, and it was not as he claimed, but otherwise.

On his cross-examination, the state further showed by him that before his marriage to his New Jersey wife he had married a woman at Saginaw, Mich., and that prior to his marriage to the New Jersey wife he had been divorced from the Saginaw wife. For the purpose of showing the diligence he had used to ascertain the fact of his divorce from the Saginaw wife, the state, on his cross-examination, had him testify that prior to his marriage to the New Jersey wife his sister had written to him that his Saginaw wife, in effect, had a divorce from him, and that she had remarried, and in the same letter in which she gave him this information she also inclosed to him a certified copy of the divorce decree that his Saginaw wife had procured. The original paper thus sent to him by his sister and received by him was produced, identified by him as that paper, and on the issue, and that only, of whether or not he had used proper care to ascertain whether his New Jersey wife had procured a divorce from him before he married Miss Heilig, the court permitting that paper, the certified copy of the divorce decree by his first wife against him, to be introduced. It was admissible for that purpose, being so limited expressly by the court. It is just the same as if it had not been a decree of the court, but some other information received by him upon which he relied. It would not have been admissible in the condition it was under the act of Congress for the purpose of proving that he was legally divorced from the Saginaw wife before he married the New Jersey wife, and it was not offered for that purpose, as expressly stated at the time, and the court expressly stated it was not admissible for that purpose, but limited it to the other purposes for which it was admissible. Without reference to the decree, he swore that he had been divorced from the Saginaw wife before he married his New Jersey wife. So that it was unnecessary to introduce it for establishing that fact; he having sworn to it at the time. It was wholly unnecessary to file it and give three days’ notice of the filing to introduce it for that purpose or any other. Clayton v. State, 149 S. W. 124. So that the court committed no error in any of these matters as complained of by appellant’s bills.

The court did not err in excluding from the evidence the doctor’s affidavit as to the condition of Miss Heilig, and, of course, did not err in refusing to give a 'peremptory charge to acquit appellant because of the proof that before he married his New Jersey wife he had been married to the Saginaw wife; the evidence by his own sworn testimony showing that he was divorced from the Saginaw wife before he married the New Jersey wife.

We have not undertaken to take up each of appellant’s bills and discuss them, but what we have said applies to all the questions raised by them.

For the error in the charge of the court, the judgment is reversed and the cause remanded.

DAVIDSON, J.

I concur in the reversal of the case, but believe my Brethren are in error in not reversing the ease on the last proposition discussed in the majority opinion. The state elicited, over the objection of appellant, that when he married the New Jersey wife he had a living wife in Saginaw, Mich. Having proved this over the objection of appellant, the state introduced the decree of some court in Michigan showing the divorce. Various objections were urged to this which are acknowledged to be well taken. This decree was not properly authenticated so as to be used as the judgment of another state, nor was it filed with the records of the court so as to be used as evidence. Therefore it was not evidence in the case. My Brethren seek to avoid this by seeking to show it was introduced to show a want of diligence in ascertaining whether or not he was divorced from his New Jersey wife at the time he married in Texas. I cannot concur with that view. When the marriage in Saginaw was proved, if the decree of the court showing a divorce prior to the time he married the New Jersey wife was relied upon, then it was necessary to have the decree properly certified as required by the statute under the, act of Congress, in order to be used as evidence in the trial of this case, and was necessary to have it filed with the records of the court as required by the statute of this state, three days before the trial. This was fully as damaging as any testimony introduced in the ease. When the Michigan marriage was proved, this, of course, preceded the New Jersey marriage. If at the time he married in New Jersey his Michigan wife was still living and undivorc-ed, the New Jersey marriage was bigamous; and, having alleged that marriage in the indictment as a legal marriage, it must be proved. If the Michigan wife was living un-divorced at the time he married in New Jersey, that was a bigamous marriage, and that part of the indictment would not be sustained, as it could not constitute a valid marriage. So the importance of this decree as a fact in the case was almost paramount, because, the moment the proof of the Michigan marriage was introduced, the state, in order to prove the valid marriage in New Jersey, was compelled to get rid of, in some way, the Michigan marriage, because if that was existing — a wife living and undivorced — the New Jersey marriage was a nullity and the state would then lose its case at once.

This question was thoroughly adjudicated in McCombs v. State, 50 Tex. Cr. R. 490, 99 S. W. 1017, 9 L. R. A. (N. S.) 1036, 123 Am. St. Rep. 855, 14 Ann. Cas. 72. In that case it was laid down as essential to the crime of bigamy that the preceding marriage, alleged in the indictment, must be a legal one and not illegal; and if that was a bigamous marriage, of course, this was not illegal, and that part of the indictment must necessarily fail. The court, it is claimed, undertook to limit this testimony to the proof of a want of diligence on appellant’s part in ascertaining the fact that he was divorced from the New Jersey wife, but it was illegal testimony and, that being true, under all the decisions, the court cannot by the charge limit its effect. The error cannot be thus cured. The illegality of admitted testimony cannot be cured by changing its effect to some particular thought and effect in the case. If that decree had not been introduced, the state, in this particular case, had failed to make out a case against the defendant. I do not care to go over what was said in the McCombs Case, supra. That case reviews the authorities and correctly decides the question and is conclusive of this case on that question. Therefore I cannot agree with my Brethren on that particular phase of their opinion. If it only affected this case, perhaps it would not make so much difference, as it Is reversed and will go back for trial in view of the decision; but the question may arise again. The ruling of my Brethren ought not to become a precedent.

I think the judgment ought also to have been reversed on these bills of exceptions reserved by appellant. Concurring in the re-' versal of the case, I dissent from that part of it, and file this brief statement.


text:
    WERTHEIMER v. STATE.
    (No. 3315.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.)
    1. Cbiminai. Haw (§ 1099*) — Appeal—Statement op Facts — Reversal.
    Where accused, through no fault of his own, but through the refusal of the judge to consider the matter, because leaving on his vacation, is unable to file a statement of facts until after expiration of the 90 days allowed, the judgment should be reversed on appeal.
    [Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    2. Criminal Haw (§ 1099*) — Appeal—Statement op Facts — Filing—Validity op Order.
    An order of the trial court that the statement of facts, filed in a criminal case on September 26th, be filed as of July 27th, being unauthorized the clerk properly refused to obey such order.
    [Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    S. Wertheimer was convicted of embezzlement, and appeals.
    Reversed and remanded.
    W. W. Nelms and A. S. Baskett, both of Dallas, for appellant. C. E. Dane, Asst. Atty. Hen., for the State.'
   DAVIDSON, J.

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

The statement of facts was filed in the trial court on September 26, 1914, “as of July 27, 1914, by order of the court.” The record shows that court adjourned on the 4th of July, entering an order allowing 30 days, following a previous order for 30 days, in which to file statement of facts and bills of exception. The previous order reached to July 6th. ■ This would have given appellant until August Cth in which to file his statement of facts and bills of exception. But, conceding he had 90 days from the adjournment of court on June 6th, this would have terminated on September 6th. It is shown without controversy that .the statement of facts and bills of exception reached the judge on July 27th. The statement of facts was approved by counsel for both sides before reaching the judge. The judge refused to consider the same because he was leaving the state on his vacation, and about the 28th or 29th of July he left Texas and went to the state of Colorado, returning from that state about the 6th or 7th of September, possibly the 5th. Before leaving the state the judge entered an order authorizing appellant to file a statement of facts by September 15th. This would have been about 10 days beyond the 90 days allowed by law. Without going into further detailed statement of the matter, the showing is made that, without fault of defendant, he failed to get a statement of facts filed until September 26th. To cover his absence the judge extended the time to file the facts of his own volition to September 15th. Returning about the 5th of September, which would have been .the end of the 90 days, the judge did not approve the facts until the 26th of September.

The court had no authority to order the statement of facts filed back, and the clerk was correct in not obeying the order. There is some question of diligence on the part of appellant with reference to the bills of exception. It seems these reached the judge in time, but had not been presented to the county attorney for his inspection and approval. There was no want of diligence on the part of appellant’s counsel to obtain a statement of facts, and it is shown the statement of facts was filed beyond the 90 days, which, under the authority of Fowler v. State, 158 S. W. 1117, could not be done. It is unnecessary to cite further authorities on this proposition. It follows, under all the authorities, that appellant is deprived of his statement of facts without his fault, and entitled to a reversal of the judgment for want of a statement of facts. See Branch’s Criminal Haw, § 41, for collation of authorities; Parker v. State, 145 S. W. 347.

Without the statement of facts, many questions cannot be reviewed, and are therefore not discussed.

The judgment is reversed, and the cause is remanded.


text:
    ALEXANDER v. STATE.
    (No. 3339.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.)
    Criminal Haw (§ 1134) — Appeal—Scope of Review.
    On appeal from a conviction for unlawfully carrying a pistol on the street, defenses not supported by any evidence will not be considered.
    [Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. § 1134.]
    Appeal from Ellis County Court; J. C. Humpkins, Judge.
    Clatie Alexander was convicted of unlawfully carrying a pistol, and appeals.
    Affirmed.
    Clyde F. Winn, of Waxahachie, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of the offense of unlawfully carrying a pistol.

The evidence offered in behalf of the state clearly shows that appellant had a pistol on her person in .the streets of the city of Wax-ahachie. Appellant testified in her own behalf and admitted that on the occasion when she was arrested for carrying a pistol, she went to her safe and. got a pistol and went to the front door of her store. She says she was greatly excited and mentally disturbed, and if she went out in the streets with the pistol she did so unconsciously. However, Messrs. Carlisle and Hull state positively •that she did have the pistol out in the street.

There were, no exceptions reserved to the introduction, of any testimony. The defense .that if she did not go off her premises she would not be guilty was affirmatively submitted by the court, he giving the special charge requested on that issue. Appellant in her brief asks:

“If you are in yonr own house and have a pistol in your pocket and the house catches fire and you forget about having the pistol and you rush out onto the sidewalk which bounds and adjoins your lot, would you violate the law against carrying a pistol? The chances are that you would involuntarily rush out of the house— would unconsciously carry the pistol onto the sidewalk. If you should be in your own yard with a pistol in your pocket, and an automobile come rushing down the street and you should see a little child in the street that was walking out in front of the automobile, and you should rush out of your front gate and onto the sidewalk and out into the street to rescue the child from danger, you forgetting for the instant about having the pistol in your pocket, would you be guilty of unlawfully carrying arms and thereby subject to a fine of $100 and costs or 30 days in jail and costs or a fine of $100 and 30 days in jail and costs? Would this make a criminal out of you? If you should be on your own lot with a pistol and should accidentally back off onto the sidewalk, would you be guilty of carrying a pistol? Or if you were on your own lot and near your own line, with a pistol, and should get overbalanced and fall over onto the sidewalk, would you be guilty of carrying a pistol? Or if you are near your own line with a pistol and the wind should blow and overbalance you or some person should shove you and you fell over on the sidewalk with the pistol, would you be guilty of violating the law against carrying a pistol?”

As there is no evidence that a wind was blowing that day, nor that her house caught on fire, nor that an automobile came running by, or that she accidentally fell off or backed off her lot, we do not feel called upon to answer the questions propounded. If there was anything of that character occurred, appellant ought to have some evidence of it in the record.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    SWAFFORD v. STATE.
    (No. 3340.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.)
    1. Criminal Law (§ 359) — Evidence—Relevancy — Admission or Other Evidence by Adverse Party.
    Where, in a prosecution for cattle theft, defendant claimed he had bought the animal from N., and on a former trial prove'd by G. that N. had sought to bribe M. to testify that defendant had admitted to him that he had stolen the animal. but on the trial in question G. testified for the state that his former testimony was un-time, and that he in fact, representing himself as N., went with defendant’s brother to M. and sought to bribe Mm to testify that defendant had told him he had stolen the steer, the court properly permitted the state to prove by N. that he in fact never went to M.’s house or made any such proposition to him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 789, 790; Dec. Dig. § 359.]
    2. Criminal Law (§ 1170%) — Appeal—Prejudice.
    Where, in a prosecution for cattle theft, one jointly indicted turned state’s evidence, and the case was dismissed against him. and defendant proved that such codefendant’s reputation was bad, he was not prejudiced by a question on cross-examination as to why, under such circumstances, he associated with the codefend-ant, to which he answered that the latter wanted to buy beef, and that he would as soon sell to him as any one.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    3. Criminal Law (§ 728) — Trial—Instructions.
    Where no objection was made to questions asked by the county attorney during the trial, the court did not err in refusing a special charge that the jury should not consider the questions as any evidence of defendant’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 16S9-1691; Dec. Dig. § 728.’--]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Eulis Swafford was convicted of cattle theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of cattle theft, and assessed the lowest punishment.

There is much conflict in the testimony. That of the state, and the state’s theory of the case, is amply sufficient to show that appellant and one Luther Simpson stole a steer at night, drove it several miles from the pasture out of which they took it, and killed and slaughtered it in an out of the way place. Appellant’s defense was that he bought the steer from the young 17 year old son, Roy Naney, of J. M. Naney, the owner. This was the main issue. Appellant introduced sufficient evidence, if believed, to have established his defense. On the contrary, the state introduced ample evidence to the reverse effect. . ,

The court’s charge, in addition to requiring the jury to believe beyond a reasonable doubt all the requisites that the appellant stole the steer, as alleged, before they could convict him, in a separate paragraph told the jury:

“If you believe that defendant bought the animal in question from Roy Naney, or if you have a reasonable doubt thereof, you will acquit the defendant.”

In addition to this, he charged that the burden of proof was on the state, that defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, and in case they had a reasonable doubt as to biis guilt to acquit Mm, and also told .them that .they were the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony.

tThe state, over appellant’s objection, was permitted to have Curtis Gorman, one of its witnesses, testify in substance that at appellant’s instance and solicitation he went to the home of Mat Manuel with Bill Swaf-ford, appellant’s brother, and represented that he (Gorman) was Roy Naney, and offered Manuel $50 to swear that appellant had told him that he (appellant) stole the alleged stolen animal; that he did do this, as requested by appellant, and reported to appellant that Manuel refused to so swear; that appellant was to pay him (Gorman) whatever it was worth for doing what he did. Over his objections, the state was also permitted to prove by Roy Naney that he did not go to said Manuel’s home with Curtis Gorman and offer Manuel $60 to so testify. The court, in approving one of the bills, explained .the matter thus:

“In order that the court may understand the connection and the matter to which this bill refers, it is explained that at a trial of this case at a former term the witness Curtis Gor-man was placed upon the witness stand by the defendant, and at that time testified that he went to Mat Manuel’s house with Roy Naney, and heard Roy Naney tell Mat Manuel that he was Roy Naney, and would give him (Manuel)' $50 to testify that Swafford had admitted to him (Manuel) that he (Swafford) had stolen the steer. Upon the trial of the case at this time Gorman was placed upon the stand by the state, and he testified that he did not go to Mat Manuel’s house with Roy Naney, but in truth and in fact went with a brother of the defendant there at the defendant’s request, and represented himself to be Roy Naney. Under this state of the record the court believed it permissible for the state to put Roy Naney upon the stand to show that he in fact had never gone to Mat Manuel’s home and made any such proposition. The court believed that this was true, although upon the trial of the case at this time the defendant had Offered no testimony that Roy Naney had gone to the home of Mat Manuel.”

We take it from these bills that the appellant had sought by this evidence to show that Roy Naney, one of the state’s material witnesses, had tried to manufacture testimony against appellant, and that by showing this he would destroy the effect of Roy Naney’s testimony before the jury, and thereby lead them to believe that Roy Naney had really sold him the animal, or stolen it, and thereby secured his acquittal. It turned out that, instead of showing .that Roy Naney was seeking to manufacture testimony against appellant, appellant was seeking 'to manufacture testimony for himself and against Roy Naney. Under the circumstances, we .think the court committed no error in admitting the testimony objected to.

At the same, time appellant was indicted for this theft, the grand jury also indicted Uuther Simpson for .the theft. Simpson turned state’s evidence with the state’s consent, and the case was to be dismissed as to him; he testifying against appellant. Appellant proved by many witnesses that Simpson’s reputation was very had, but also showed that he had known him for several years. The appellant himself testified fully. On cross-examination, the state asked him if he did not know of the bad reputation of Simpson. He answered .that he had heard it was bad, but did not know. The state then asked him this question:

“Didn’t you know it was; heard people talking it, heard he was unworthy of belief, and so on? What did you want to get tangled up with him for, if he was that kind of a fellow ?”

To this latter question the appellant objected, on the sole ground that it was argumentative. He- answered the question:

“Simpson wanted to buy a beef, and I had one to sell, and would as soon sell to him as to any one.”

This shows no reversible error.

made no objection to the court’s charge, as this record shows. He asked this special charge:

“You are further charged that you must not consider as any evidence of guilt of defendant the insulting questions of the county attorney, such as ‘Don’t you know it is a he?’ ‘Why don’t you tell the truth?’ etc.”

Nothing in the record indicates when this charge was asked. No objection was made to such questions, if .they were asked, during the trial. The fact that he asked a charge on the subject, even if he had asked it in the time and manner required by law, would he no evidence that any such questions were asked. The record does not show that the charge was asked at such a time as to authorize this court to review it; but, if it did, the court’s refusal to give the charge shows no error.

In one ground of appellant’s motion for new trial it is set up that he had been indicted for the offense of subornation of perjury in connection with said Ourtis Gorman; that Gorman and other witnesses had gone before the grand jury long prior to that indictment, and it was not returned until June 26, 1914; ■that at the time he was out on bond in this case; that he was arrested on the subornation of perjury indictment on June 30.th, and placed in jail, a short time before Ms trial in this case, and not brought-into court or allowed to see his attorney until this case was called; that the state announced ready in this case, and he also; that he was not served with the indictment for subornation of perjury until convicted in this case; that he was not guilty of subornation of perjury, and with proper opportunity could have so proven; that after his conviction in this case he demanded trial on the other, and had his witnesses present and ready to prove that he was not guilty, when the county attorney with the consent of the court dismissed that case against him. To this ground of his motion he attached what purports to be a copy of the state’s motion to dismiss the subornation of perjury case against him. T5le ground of tire motion to dismiss that case is, in substance, that the state would have to depend upon the testimony of Curtis Gorman, who, in effect, had sworn both ways on the question, and the state was unable to corroborate Curtis Gorman; that the appellant had had him go to Mat Manuel’s house and attempt to bribe him to .testify, as shown above.

The state made a motion to strike out that paragraph of appellant’s amended motion for new trial, on the ground that it was immaterial, irrelevant, and incompetent, threw no light on this case or any feature of it, and only incumbered the record. He also alleged that the matters set out in that ground of the motion were untrue, and did not set out the facts therein referred to. We cannot tell, and the record does not disclose, whether the court heard evidence on this matter. At any rate, the court struck out that ground of the motion for new trial. As the matter is presented, we think it was insufficient to require the court below to grant him a new trial, and that therefore the court did not err in striking out that ground of his motion; at least, that it does not present reversible error.

The judgment is affirmed.