author: MORROW, J. PRENDERGAST, J.

text:
    WOOL v. STATE.
    (No. 4547.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. Criminal Law <@=>371(2) — Evidence—Other Oeeenses — Admissibility.
    In prosecution for receiving stolen goods, where the state relied on circumstantial evidence, it could show that several burglaries had occurred in the vicinity about the time of the offense alleged, where the stolen goods had been identified in the possession of accused, for the purpose of showing criminal intent, but such evidence should not be extended to other burglaries unless accused subsequently possessed the stolen goods.
    2. Criminal Law <@=425 — Evidence—Admissibility.
    In prosecution for receiving stolen goods, statements of accused’s ex-partner, after termination of partnership, were not admissible against accused.
    3. Receiving Stolen Goods <@=9(1) — Questions for Jury.
    In prosecution for receiving stolen goods, where accused’s ex-partner testified that accused told him he bought the goods, a defensive theory was raised which should have been submitted to the jury.
    4. Receiving Stolen Goods <§=>3 — Elements of Offense.
    Knowledge of fact that goods were stolen is an essential element of the offense of receiving stolen goods.
    Prendergast, J., dissenting.
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    J. Wool was convicted of receiving stolen property and he appeals.
    Reversed and remanded.

      Martin. ■& Oneal, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of receiving stolen property. This is a companion case to No. 4546 (201 S. W. 1002); and the facts, while not identical, are so similar as to make, I think, the same principles with reference to introduction of proof of other acts applicable to each.

In this case there is no definité proof as to the identity of the thief. There is evidence, however, that the stolen property taken from several houses burglarized were received by appellant at the same time that there were previous negotiations with reference to it with unknown parties, and the state, relying upon circumstantial evidence to show criminal intent, was, we think, entitled to prove the burglaries with reference to those transactions in which the stolen property was identified in the possession of appellant. Such evidence, I think, however, should be limited to such transactions,' and not extended to evidence of transactions in which the possession of the stolen property by the witness Mike Levine tended to connect him alone wtih the particular collateral crime.

The statements and transactions of Mike Levine, after the termination of his connection with appellant, were not admissible against appellant. As they were not made at a time when the evidence discloses that appellant and Levine were acting together, their subsequent acts, in the nature of a confession by Levine, are not binding upon appellant.

The state’s testimony given by the accomplice, Mike Levine, to the effect that appellant bought the stolen goods, is quite confusing and contradictory. 1-Ie states in one place, “I didn’t know whether it was stolen goods or not.” He claims that appellant told him he bought the goods, and I think the issue of purchase without knowledge of the theft was raised. These facts present a defensive theory, which, on request of appellant, should have been submitted to the jury. It was not submitted, and the appellant, in a charge couched in appropriate language, requested the court to tell the jury that the receipt of the goods by appellant alone was not sufficient to convict; that it must be accompanied by proof that he knew they were stolen.

Knowledge of the fact that the goods were stolen is an essential element of the offense, and, the state’s testimony tending to suggest that they were purchased without guilty knowledge or intent, a charge on the subject should have been given. Cases will he found listed in Branch’s An. P. C. pp. 1365-1367.

The judgment of the lower court should be reversed and the cause remanded.

PRENDERGAST, J.

(dissenting);

This is a companion, case to No. 4546, against the same appellant, this day decided, and is applicable to the latter. On February 23, 1917, the grand jury of Wichita county returned an indictment against appellant for unlawfully and fraudulently receiving from a person to the grand jurors unknown, 68'-pairs of men’s pants of the value of $5 per pair, 31 suits of men’s clothes of the value of $15 per suit, 70 yards of silk goods of the value of $1 per yard, and 1 lady’s coat suit at value of $20, the property of C. A. and W. J. Galbraith, which said property had been theretofore acquired by another, so that the acquisition thereof was theft, and that appellant then and there received and concealed it knowing it to have been so acquired. The indictment followed the statute and the approved forms therefor. There was no complaint of its insufficiency in any particular. Appellant was convicted, and his punishment assessed at the lowest prescribed by law.

Mr. G. A. Galbraith, one of the alleged owners of the stolen goods, testified that he and his father, the other alleged owner, in August, 1916, were engaged in the dry goods business at Kirkland, Tex.; that on the night of August 28, 1916, their store building was burglarized, and about 30 suits of clothes, between 60 and 70 pairs of men’s pants, 1 lady’s coat, and other property was at the time stolen from said store; that on January 6th following he found in appellant’s possession and store in Wichita Falls 12 pairs of pants and 3 coats of said stolen property; that later he found some other of his said stolen property in Ft. Worth, Dallas, and Paris, Tex. These goods, recovered from these other places, were brought from there to Wichita Falls, and were in the sheriff’s office and in the courtroom while the case was being tried, and he identified these goods as those stolen from him and his father. He testified to the value of the goods stolen and those he recovered, which showed that they were of a much greater value than $50. There was no question raised as to the property being worth less than $50. Nor was there any question of the sufficiency of the evidence to show that he positively identified the goods which were recovered as his. Some of the cards were on some of them, but torn off of others.

It was proven by other witnesses that for some time prior to March or April, 1916, Mike Levine had been in the business of dealing in secondhand clothing in Wichita Falls; that about that date appellant bought a half interest from Levine in that business, and went into partnership with him, but that after he and Levine were in partnership some seven or eight months they fell out and dissolved partnership.

Mr. Dwight, the sheriff of Childress county, testified that he knew appellant and Levine. On January 6, 1917, lie went to Wool’s said place of business in Wichita Palls with the witness Galbraith looking for Galbraith’s stolen goods. He testified also that he and Mr. Galbraith at the time found in appellant’s store the amount of said stolen goods which Mr. Galbraith identified.

Mr. W. W. Viles testified, in substance, that he had been engaged in the dry goods business at Burkburnett, Tex.; that his store was burglarized October 25, 1916, and there was stolen from him at the time 400 pairs of men’s shoes, 84 men’s suits, 12 pairs of boys’ suits, 6 or 8 pairs of ladies’ shoes, and other property unnecessary to mention, and that he found some of his goods in appellant’s store in Wichita Palls, and he recovered some other of his property from Ft. Worth, Dallas, and Denison.

Mr. Kincade, Mr. Viles’ clerk, and later his partner in said business, testified substantially to the same thing.

A. Devine, who lived in Dallas, testified that on January 30, 1917, he bought from Mike Devine 56 pairs of shoes, 17 suits, paying $226.25 for the whole, and that he sold these goods to K. Wolf, on which he made a profit.

Said K. Wolf testified that he bought said goods from A. Devine in Dallas on the same date that A. Devine bought them from Mike Devine; that later the sheriff of Wichita county and a Pt. Worth detective, with said Mr. Kincade, came to his place in Dallas and' got the goods he had so bought; that that was the stuff that came from Mr. Viles’ store at Burkburnett.

Mr. Maloney testified, in substance, that he lived in Goree, in Knox county, and had been engaged in the mercantile business there; that on August 18, 1916, his store was burglarized, and at the time suits, hats, raincoats, silks, and gloves were stolen therefrom; that later he identified and recovered from Mike Devine’s store in Paris some of his said stolen goods.

Mr. Hawkins testified he was along when they got some of said stolen goods from Pt. Worth, Dallas, Sherman, and Denison. ⅜

The state introduced Mike Devine, who testified, .in substance, that he had been in the business of dealing in secondhand clothing for some time before he formed partnership with appellant, and had a stock worth about $550 at the time he formed the partnership with appellant; that he formed the partnership, and was in business, with him about a year or more; that appellant did not pay him any money in entering the partnership, but was to furnish an amount with which to buy other goods to the same amount as his stock was worth; that after they had been in business for some time they fell out and dissolved; that Wolf kept the store and part of the stock therein, and turned over to him (De-vine) certain goods that were then in the store. He testified that he himself did not buy any of said stolen goods, hut that Wool bought them himself; that the first time he ever saw them they were in their store in a box; that when Wolf turned them over to him, after the dissolution of the business, he first took them to his house, and later took some of them to Dallas, Pt. Worth, and Paris, and that he sold to A. Devine the goods that Devine testified he bought from him. In other words, by his testimony he showed that he did not buy any of said stolen goods, but that appellant bought them, and that in the dissolution appellant turned them over to him, and that the stolen goods that were procured by the respective owners at Pt. Worth, Dallas, Paris, Denison, and Sherman were the goods that he got from Wool and took to some of the other of these places and sold them out. He said appellant did not tell him what he paid for the goods, and that he did not ask him, and that he did not know where they came from. He was sub« jected to a long and severe cross-examination,. and the appellant introduced testimony which had the effect of tending to impeach him in several particulars; but all this was for the jury.

I have not given the testimony of any of the witnesses in detail, merely a brief outline of the substance and conclusion to be drawn from the whole evidence of the witnesses stated.

Appellant has one bill showing that he objected to the testimony of Kincade wherein he testified to the burglary of the Viles’ store and the theft of the goods therefrom on October 25th, and the finding of them in appellant’s store and possession, and another bill objecting to the testimony of Viles to the same effect. He has another hill objecting to the testimony of Maloney and others as to the burglary and theft of the property from Maloney, which was also found in appellant’s store and possession. He has other bills objecting to the testimony of Wolf, A. Devine, and of Hawkins by which these stolen goods were traced from appellant’s store and possession through Mike Devine to the parties to whom some of them were sold. Appellant’s contention is that all this testimony was inadmissible because it proved other offenses, which he claims was inadmissible in the case against him. All of this testimony was admissible under the circumstances of this case, and the court did not err in admitting it over appellant’s objections.

In describing the offense of receiving or concealing stolen property the statute itself makes it requisite to show that the accused knew', at the time he received or concealed it, that it had been stolen. Therefore knowledge by the accused that the property had been stolen is one of the necessary elements of the offense. Ordinarily, in most offenses," proof of the commission of other crimes is not admissible; but all of the text-book writers and cases hold that, when it becomes necessary to prove scienter or guilty knowledge, the evidence of other crimes committed along about the same time, whether before or after the one charged against an accused, is admissible. Mr. Wharton, one of the ablest law writers in this country, volume 1, § 31, in his work on Criminal Evidence, expressly holds that proof of such other crimes is admissible to prove scienter or guilty knowledge, and to prove intent and to prove system. In section 35 he says:

“Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter, or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution, and evidence of collateral offenses is admissible to establish such knowledge.”

In section 39 he says:

“When the object is to show system, subsequent as well as prior collateral offenses can be put in evidence, and for such system, identity, or intent can often be shown. The question is one of induction, and the larger number of consistent facts the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate that they are a part of the system! In order to prove purpose and design, evidence of system is relevant; and in order to prove system, collateral and isolated offenses are admissible from which system may be inferred.”

This court has uniformly held that such evidencé in eases of this character is admissible. No case holds to the contrary. Kaufman v. State, 70 Tex. Cr. R. 441, 159 S. W. 58, and authorities there cited; Gray v. State, 17 Tex. Cr. R. 226, 178 S. W. 337, and authorities there cited. This principle is so well settled we regard it as unnecessary to cite other authorities or discuss the matter further.

Appellant objected to the court’s charge because it omitted to tell the jury, in substance, that, if appellant received or concealed said stolen property, they must believe “that he received the same with the fraudulent intent of appropriating it to his own use and benefit, and with the intent of depriving the owner of the value thereof, before they can convict”; and he complained in the same connection of the court’s refusal to give his specially requested charge embodying the above as a requisite to his conviction. In this offense it is not necessary to make any such allegation in the indictment or to make any such proof, as has uniformly been held by this court. Nourse v. State, 2 Tex. App. 313; Brothers v. State, 22 Tex. App. 462, 3 S. W. 737. For other cases, see Judge Willson’s Texas Criminal Forms for Indictment, p. 351.

That Levine said appellant told him he bought the stolen goods does not present any defensive theory whatever. Buying stolen goods is known of all men as the choice way of receiving them. That is what the thief steals them for — to sell to some one who thereby receives or conceals them. The evidence clearly establishes appellant’s guilt.

By every principle of law and justice this case should be affirmed. I dissent to its reversal.
      <&^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    HAMILTON v. STATE.
    (No. 4578.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.
    Rehearing Denied March 27, 1918.)
    1. Criminal Law @=>1090(3) — Application por Change op Venue — Review.
    Where the evidence heard on application for change of venue was not filed and verified during the term at which the case was tried, the court on appeal is not privileged to consider it in view of Code Cr. Proc. 1911, art. 634, providing that an order of the judge granting or refusing a change of venue shall not be reversed upon appeal, unless the facts upon which the same are based are presented in a bill of exceptions prepared, signed, approved, and filed at the term of the court at which such order was made.
    2. Criminal Law @=>1120(5) — Introduction op Exhibits — Harmless Error.
    Where the record does not disclose whether deceased’s shoes had cut marks on them, no harmful error is shown by their introduction, as if the shoes had such marks they would be admissible to corroborate the state’s testimony that defendant was striking at deceased’s feet with a knife, while if they had no such marks their introduction would contradict the state’s theory.
    3. Criminal Law @=>719(1) — Remarks op Counsel — Reversible Error.
    There being evidence that deceased was stabbed in the breast, and that -there was an absence of provocation, the remark of the county attorney that defendant drove his knife into the heart of deceased without provocation will not justify reversal, where there was no request or special charge to cure remark, and the ground of objection which did not set out the evidence on the subject was that there was no evidence that deceaséd was stabbed in the heart.
    4. Criminal Law <8=855(8) — Conversation op Jury, with Outsider — Evidence.
    That an old man who inadvertently entered the jury box, and, upon learning he was out of place, excused himself and left, did not show injurious conversation by the members of the jury with -an" outsider.
    5. Criminal -Law @=>1170½(1) — Questioning Witnesses — Reversible Error.
    That the state’s attorney asked a witness if he did not wink at defendant while testifying at the examining trial, held not to show reversible error.
    6. Criminal Law @=>404(3) — Instrument Not Per Se Deadly — Admissibility.
    The pocket knife By which the homicide was occasioned was properly admitted in evidence in view of Pen. Code 1911, art. 1147, making it incumbent on the state where the instrument is not per se deadly to prove that by using it accused intended to slay deceased.
    7. Homicide @=>338(2) — Evidence op Threats — Admissibility.
    Where objection was to remoteness of evidence of threats, and the fact of reconciliation is not made clear by the record, assignment that court erred in overruling objection will not be sustained, as threats are not to be excluded because of lapse of time alone.
    8. Homicide @=>332(3) — Verdict Based on Conflicting Evidence — Review.
    There being evidence supporting theory of murder, the court on appeal is not authorized to determine its truth, though the evidence as to the incidents of the tragedy is conflicting, and part of it tends to show manslaughter.
    Appeal from District Court, Newton County; W. T. Davis, Special Judge.
    Albert Hamilton was convicted of murder, and appeals.
    Affirmed.
    Forse & Ferguson and A. D. Shaw, all of Newton, and Martin & McDonald,- of Austin, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder of Ben I-Iolmes. The homicide took place at a dance at the residence of Joe Roff. Appellant and his two sisters and his brother were at the dance, and in an altercation in which .the deceased and appellant and appellant’s brother took part deceased was stabbed with a pocket knife one time, of which he expired. The theory of appellant was that deceased was at fault in the quarrel, and that he made an assault on the brother of appellant, striking him with a lantern, and that appellant struck in defense of his brother. . The issues of manslaughter and defense of another were properly submitted to the jury.

An application for change of venue was made and overruled. Evidence was heard controverting its truth, but the evidence is not .brought before this court in a manner that it can be considered. Article 634, C. C. P., is as follows:

“The order of the judge granting or refusing a change of venue shall not bo revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made.”

This article has frequently been held to deny this court authority to review action of the trial judge in refusing change of venue where the evidence heard on the application was not verified and filed during the term at which the case was tried. Where this has not been done, we are not privileged to consider it. Bowden v. State, 12 Tex. App. 246, and numerous other cases listed in Vernon’s C. C. P. p. 342, and Branch’s Ann. P. C. p. 181, § 301.

There was evidence that at the time of the homicide, which was about 12 o’clock at night, the deceased was standing on-the porch or gallery of the house, holding a lantern in his hand; that he had forbidden Henry Hamilton, the brother of appellant, coming into the house; and that Henry Hamilton was striking at the deceased’s feet with, a pocket knife. This was a controvert■ed issue, as was also whether deceased either struck Henry Hamilton or struck at him with a lantern. The state introduced in evidence the shoes worn by deceased at the time he was killed. The record does not make it clear as to the condition of the ■shoes. It appears that when they were first offered in evidence the court declined to admit them, but subsequently did so. At the time they were offered it - was shown that no one had made any cut marks on them since the homicide; that nothing had been done to them, except they .had been washed. Whether they had or had not cut marks on them is not disclosed. In this state of the record we are unable to say that there is error shown. If they had cut marks on them it would not have been error to admit them, as they would have tended to corroborate the state’s testimony that Henry Hamilton was striking at deceased’s feet with a knife he had -in his hand, which was also controverted. If they had no cut marks on them their introduction could not have been harmful, as they would have tended to contradict the theory of the state. Be this as it may, the matter as presented shows no harmful error.

The remark of the county attorney that the defendant drove his knife into the heart of Ben Holmes without provocation was not, as shown by the bill, such an argument as would justify a reversal of the cause. The ground of objection was that there was no evidence that deceased was stabbed in the heart. It does not set out the evidence upon the subject, and the fact that there was no stab in the heart is not verified by the bill. It has often been declared that a mere statement of the ground of objection is not a verification of the fact. It simply shows an objection was made. It should show that the objection was founded in fact. Smith v. State, 4 Tex. App. 626, and other cases listed in Branch’s Ann. P. C. p. 134, § 209. There was evidence that deceased was stabbed in the breast, and that he died in a very few minutes after the wound was received. There is also evidence that there was an absence of provocation by the deceased. This, of course, was a controverted issue. In view of this condition of the record it cannot be said that the remark of the county attorney, even if it did not accurately state the evidence, was so prejudicial that it could not have been cured by special charge, and, none having been requested, the complaint cannot be sustained. Kennedy v. State, 19 Tex. App. 634; Felder v. State, 5 Tex. Cr. R. 145, and other cases. cited in Branch’s Ann. P. C. p. 204, § 362.

The conclusion of the trial judge on hearing the evidence that there was no injurious conversation by members of the jury with an outsider is sustained by the evidence introduced thereon. Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370. The matter complained of is that an outsider entered the jury box and had a whispered conversation. The facts show that an old man inadvertently got among the jurors, and, upon learning he was out of place, excused himself and left. Another complaint is that while the jury was forming the sheriff took them to a meal, where there were a number of other people dining. It appears affirmatively that he took them to a separate table, and that there was no mingling or communication with them, and that he was present with them. We think that the record discloses that the state discharged the burden which rested upon it to show an absence of injury. Parshall v. State, 62 Tex. Cr. R. 177, 138 S. W. 759, and other cases cited in Vernon’s C. C. P. p. 791. We have examined this record, though it was not filed within the time to require it. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116.

The bill complaining of an argument with reference to the testimony of Leonard Roff, as qualified by the court showing that the argument was invited, presents no error. Smith v. State, 21 Tex. App. 277, 17 S. W. 471, and other cases listed in Branch’s Ann. P. C. p. 205, § 363. As presented in the bill, the fact that the state’s attorney asked Leonard Roff if he did not wink at appellant while' testifying at the examining trial does not show reversible error. It appears from the statement of facts, which is referred to, that the witness said he did not remember doing so. If the answer had been in the affirmative, it is not clear that it would not have been admissible as tending to show bias.

The homicide was occasioned by a stab with a pocket knife, which was introduced in evidence. The complaint of the introduction of the knife in evidence cannot be sustained. The statute (article 1147, P. C.) makes it incumbent upon the state, where the instrument producing homicide is not per se a deadly weapon, to prove by evidence that in using it the accused intended to slay the deceased. The decisions excluding the clothing worn by the deceased under certain circumstances are based upon the proposition that such evidence is admissible only when it tends to prove a controverted fact. The knife in question not being a deadly weapon per se, the burden was upon the state to prove that in its use appellant intended to kill deceased. Its introduction upon that issue was not unauthorized. Vernon’s P. C. p. 717; Branch’s Ann. P. C. p. 1031, § 1855; Wharton’s Crim. Evidence, vol.—, § 311.

A witness testified that about two years before the homicide the deceased and appellant were at a dance; that the boys were all drinking, and that Ben Holmes, deceased, and-Albert Hamilton, the appellant, got into a dispute, the cause of which the witness did not remember, and appellant said if “I ever live to get grown I will kill him.” This was objected to on the ground that it was too remote. If the question were an open one, the writer would be disposed to agree with this contention. It seems to be foreclosed against appellant. Mr. Wharton, in his work on Criminal Evidence, vol. 2, p. 1706, § 911, lays down the following rule on the subject:

“The relevancy of threats as evidence against the accused is not affected by the fact that, they were near or remote to the homicide in question, as the length of time intervening is a circumstance to be considered by the jury in determining whether or not there was a connection between the threat and the homicidal act. The length of time intervening does not affect the relevancy of the testimony; but its nearness or remoteness to the act is a circumstance affecting its weight and credibility.”

Supporting it are cited a number of cases, including decisions-by this court. Leech v. State, 63 Tex. Cr. R. 347, 139 S. W. 1147. It is suggested by the record, though not made clear either in the bill of exceptions or statement of facts, that the transaction in which the threats took place did not interrupt the friendly relations between the appellant and the deceased, but that they continued on friendly terms up to the time immediately preceding the homicide, and that the occasion of the homicide was a quarrel occurring out of incidents attending the dance and the conduct of deceased and appellant while there. If it were made clear that there was complete reconciliation, the writer would hesitate to hold the evidence of the threat detailed admissible. As to whether remote threats, followed by complete reconciliation, are admissible, there seems to be a conflict of opinion. This court, in Brown v. State, 56 Tex. Cr. R. 392, 120 S. W. 444, indicates that under such circumstances the threat should be rejected, citing McLain’s Grim. Law, § 419, where the text supports this doctrine, citing Hyndman’s Case, 99 Cal. 1, 33 Pac. 782, where the evidence of threats and reconciliation was admitted; the jury being authorized to disregard the threats if the reconciliation was in good faith. In State v. Barnwell, 80 N. C. 466, the subject was discussed and the conclusion of the court reached in the following language in the syllabus:

“Where, on a trial for murder, express malice is shown to have once existed, but a subsequent reconciliation, followed by fresh provocation, is proved, the law will refer the motive of the slayer to the recent provocation, and not to the antecedent malice, unless the special circumstances of the case forbid such a presumption.”

To the same effect is Cannon v. State, 57 Miss. 147; State v. Johnson, 47 N. C. 247, 64 Am. Dec. 582.

This court, in Powdrill v. State, 155 S. W. 236, received evidence of remote threats followed by evidence of a partial reconciliation, holding that the facts were for the-jury to enable them to determine the weight of the evidence. In view of the fact that the authorities are practically in accord upon the proposition that threats are not to-be excluded because of lapse of time alone, the fact that reconciliation is not made clear, and the fact that the objection made in the instant case is confined to the remoteness, of the threats, we are constrained to overrule the assignment.

The appellant suggests that murder should not have been submitted to the jury. It is not to be questioned that much of the evidence tends to show manslaughter. There is evidence, however, that the homicide was unprovoked. The evidence showed, without dispute, that shortly before the trouble arose appellant had missed his hat, and that the deceased got it and gave it to him. There is also some evidence that appellant cursed in the house, and that deceased remonstrated with him on account of the presence of his wife and other ladies. Mrs. Ben Holmes, widow of deceased, said that just before the difficulty appellant came in the house cursing, and that deceased told him not to curse before his wife; that appellant said he wanted his hat, and deceased got it, and said, “Albert, don’t swear in the house; come on out here and let’s you and I talk about this thing,” and walked out on the porch and said, “Now, Albert, I am a friend to you boys; you come on and dance, and I will take care of you.” Appellant said that he was going home, and deceased said, “Wait, and let me hold the lantern for you,” and he got the lantern, and was standing on the steps holding the lantern, and Henry Hamilton came up and cut at his feet, and he hit at Henry Hamilton, and knocked the licks off, and Albert Hamilton came up and stabbed him. There was not a word said before he stabbed him. Albert ran up the steps, had one foot on the bottom step, and had his knife in his right hand, and grabbed hold of the post with his left hand and stabbed him. Deceased was standing there, leaning over. He did not have anything in his hand but a lantern, tie had the lantern in his left hand. He was holding the lantern for the girls to go down. The daughter of deceased gave substantially the same testimony as her mother. There was some other testimony that appellant and his brother were mad and cursing out in the yard. There is much testimony to the effect that deceased hit Henry Hamilton a blow on the face or head with the lantern, causing a somewhat serious injury; that he also struck at appellant or threw the lantern at him.

The evidence being conflicting as to the incidents of the tragedy, and there being evidence supporting the theory of murder, we are not authorized to determine its truth.

The judgment is affirmed.

PRENDERGAST, J., absent.
      <@^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    SHEELY v. STATE.
    (No. 4922.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. Criminal Law <§=5421(1) — Evidence — Reputation.
    In prosecution for murder, general reputation as to illicit relations of accused and deceased’s wife was not admissible, though the relations might be otherwise proved.
    2. Homicide <§=5300(7) — Instructions—Self-Deeense — Provokinu Difficulty.
    That accused was alleged to have been criminally intimate with deceased’s wife did not warrant submission of self-defense limited by provoking difficulty, on theory that such intimacy provoked the difficulty.
    3. Homicide <§=5112(6) — Instructions—Self-Defense — Provoking Difficulty.
    To preclude reliance on self-defense, the provoking of the difficulty must have been with felonious intent and as a pretext for killing deceased.
    4. Homicide <§=5300(7) — Instructions—Self-Defense — Threats.
    Where one accused of murder proved that deceased’s threats against his life had been communicated to him, it was error to refuse instruction on communicated threats.
    Appeal from District Court, Webb County; J. E. Mullally, Judge.
    Encarnación Sheely was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    John L. Dannelley, of Laredo," for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State,
   DAVIDSON, P. J.

Appellant was convicted of manslaughter, and awarded two years’ confinement in the penitentiary.

Briefly stated, the case is this: The state introduced evidence to the effect that the deceased, Sarli, was incarcerated in jail at Cotulla. The facts show that he had been convicted of murder, and on appeal this court reversed the judgment. Pending another trial and while in jail his wife, in the town of Cotulla, ran a restaurant. Appellant was a barber; his shop being a short distance from the restaurant of deceased’s wife. There was evidence introduced by the state showing or tending to show illicit relations between appellant and wife of deceased while he was in jail. On change of venue deceased’s case was transferred to Laredo, Webb county, where he was awarded an acquittal. Information had been conveyed to deceased while in jail of the supposed illicit relations between appellant and his (deceased’s) wife. Deceased made threats against the life of appellant supposedly on account of these matters. These threats were communicated to appellant. When the deceased was released from jail either upon the first or second meeting with appellant a difficulty ensued in which deceased lost his life. The immediate facts substantially show that deceased was sitting in a pool room having his shqes shined when appellant and another party appeared in the door of the pool hall. They stood at the door; appellant leaning against the right-hand side of the door. Upon discovering the presence of appellant deceased made some insulting remarks, also informing appellant this was where he wanted to get him, and that they were going to settle their troubles now. He reached in his pocket, got out his knife and held it in his hand on his lap, saying to the boy shining his shoes to he quick about it. Whether deceased was getting up or in the act of getting up is left in doubt. Appellant walked to a pool table, picked up a ball, and threw it supposedly at deceased. It struck the boy who was shining his shoes. Deceased with his knife rushed upon appellant, and the shooting occurred. There is an issue as to the intimate relations between appellant and wife of deceased sharply controverted. Appellant and the woman both swear positively that such relations did not exist and had not existed. When deceased’s case was changed on venue from Cotulla to Laredo, Webb county, it seems that the wife of deceased and Sheely also went to Laredo. The acts of the parties immediately connected with the killing are in controversy. There is evidence showing that deceased did not have a knife. This is a sufficient statement of the case to dispose of the questions involved.

There are several hills of exception reserved to the introduction of testimony by the state to the effect that it was generally understood in the community of Co-tulla that the illicit relations existed between appellant and deceased’s wife. In other words, the general reputation as to the existence of this fact was introduced over objections of appellant. There is another hill also reserved to the refusal of th'e court to exclude this testimony after it had been admitted. These exceptions should have been sustained, and the testimony excluded. Such illicit relations cannot be shown by general reputation. This is not a ease of manslaughter by the husband produced by adequate cause under the statute with reference to that offense. If such relations existed, it might be proved, but the general reputation of the existence of such fact is not admissible testimony. This was error for which this judgment must be reversed.

The court submitted the question of self-defense limited by provoking a difficulty. The charge with reference to this is based upon the idea that, inasmuch as appellant had been intimate with the wife of deceased, he thus provoked the difficulty which later occurred between the parties, and therefore appellant forfeited his right of self-defense, and under such circumstances he would be guilty of manslaughter. We do not understand this to be the law. This doeg not come within the rule laid down with reference to imperfect self-defense as enunciated by this court in Reed v. State, 11 Tex. App. 509, 40 Am. Rep. 795, and Franklin v. State, 30 Tex. App. 628, 18 S. W. 468. It is unnecessary to go into a discussion of those cases. They speak for themselves, and show that the deceased husband was killed by the paramour of deceased’s wife, and that the tragedy began by finding the accused in the room of the wife. This case is not analogous to the proposition enunciated in those cases. The general proposition may be correctly stated as Mr. Branch puts it in section 464 of his Criminal Law, as follows:

“If he, the slayer, provoked the combat or produced the occasion in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing would he murder, no matter to what extremity he may have been reduced in the combat. But if he, the slayer, provoked the combat or produced the occasion without any felonious intent, intending, for instance, an ordinary battery merely, the final killing in self-defense will be manslaughter.”

The authorities are collated by Mr. Branch. It is unnecessary to burden this opinion with citations. It will be noticed that, in order to have a pretext for injuring the party at whom the provocation is directed, it must be done for that purpose. Applying the test of these authorities to the case in hand, there would seem to be no just reason for sustaining the proposition that, if appellant had intercourse with the wife of deceased, it was for the purpose of provoking deceased into a contest of any sort. In fact, the inference would naturally be the other way; that it was not intended to provoke a difficulty; not only so, but it was not intended the husband should be aware of the fact. In any event there is nothing to indicate in' the facts of this case that, if appellant had intercourse with the wife of deceased, it was done with any intention to provoke him into a difficulty. This intercourse had occurred,. if at all, months before the killing and while deceased was in jail, and under such circumstances that deceased was not in position to be provoked into a difficulty. It must be remembered always in cases of this sort that it is the accused who is being tried, and not the deceased. Had deceased killed appellant on account of illicit relations between appellant and his wife, we would have a different proposition. The whole case would have changed front so far as the trial under the facts is concerned. There was nothing that occurred at the time of the homicide on the part of appellant to indicate to deceased that he had had intercourse with his wife, with or without the purpose of provoking him into a difficulty. In fact, the matter was not mentioned unless it be inferred by the remark of deceased that he had him now where he wanted him and they were going to settle their trouble. The court was in error in submitting the case as indicated and in limiting his right of self-defense on account of such intercourse, had it existed.

There is another question that requires a reversal. Threats were shown to have been made by deceased and communicated to appellant. The court not only failed to charge the law of threats, but refused a special requested instruction. In this there was error. Appellant was entitled to a charge'upon the law of threats in connection with his theory of self-defense:

For the reasons indicated, this judgment is reversed, and the cause remanded.
      <8=5Foc other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DODD v. STATE.
    (No. 4820.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    On Motion for Rehearing, March 20, 1918.)
    1. Criminal Law <§=1092(6) — Appeal—-Bill of Exceptions — Time of Filing.
    Bill of exceptions, containing evidence, to denial of change of venue on account of prejudice, filed more than a month after court adjourned, and without showing that the delay was caused by the court officers, cannot work reversal of conviction, in view of Code Or. Proc. 1911, art. 634, precluding review of order denying change of venue unless bill of exceptions is filed at the term.
    2. Criminal Law <§==31150 — Appeal—Record —Change of Venue.
    In the absence of arbitrary action or abuse of discretion in denying change of venue, the judge’s decision will not be overturned.
    3. Witnesses <§=211(2) — Physicians—Privilege.
    In prosecution for rape, where accused claimed temporary insanity, his examining physician having testified, it was not error for the state to call him in rebuttal, and on objection of the witness, setting up privilege, to excuse him without instructions to disregard the incident; there being no statute exempting communications between patient and physician, in the absence of which they are admissible.
    4. Criminal Law @=3465 — Defenses—Insanity — Evidence—Admissibility.
    Where insanity is an issue, it is competent for the state to call witnesses to prove the conversations and conduct of an accused, not admitting guilt, while in jail, as a basis for an opinion as to the sanity or insanity.
    5. Rape <§=319 — Principals—Criminal Liability.
    Where accused held the victim while another raped her, accused was guilty of rape, under the law of principals, unless insane, in view of Pen. Code 1911, arts. 74, 75, defining principals.
    6. Rape <§=320 — Principals—Criminal Liability-Indictment.
    To convict one of rape under law of principals, the indictment need not allege the acts making accused a principal, but may directly charge the crime of rape.
    7. Criminal Law <§=3078(5) — Election after Reception of Evidence.
    Where accused was charged with rape, and evidence showed that he raped the victim and also held her while another also raped her, if he desired the state to elect the offense, it was incumbent on him to move for election.
    8. Rape <§=>59(24) — Election—Necessity of Demand.
    Where accused was charged with rape, and evidence showed that he raped the victim and also held her while another also raped her, accused’s instruction that conviction could be had only for actual rape by personal intercourse was properly refused, since it does not lie with accused to select the transaction which shall be abandoned.
    9. Criminal Law <§=>419, 420(4) — Evidence-Admissibility.
    In prosecution for rape, question addressed to physician whether the victim had told him that her hymen had been ruptured by a prior operation was properly excluded, being hearsay; for the victim should have been asked„directly as to such fact.
    10. Criminal Law <§=1153(4) — Review—Discretion — Leading Questions.
    While leading questions are not generally permissible, ordinarily determination of their admissibility is within -the discretion of the trial judge, reviewable only for abuse.
    11. Criminal Law <§=1091(3) — Bill of Exceptions — Leading Questions.
    When leading questions are complained of,, it is incumbent upon the appellant to show by his bills - of exception that they were allowed under circumstances which should have caused their exclusion.
    12. Criminal Law <§=52 — Intoxication — Temporary Insanity — Instructions.
    In prosecution for rape, where defendant set up temporary insanity on account of drunkenness, the court properly limited the defense to a state of mind rendering accused incapable of distinguishing between right and wrong, since it is-such condition, and not mere intoxication, that mitigates the offense.
    13. Criminal Law <§=1119(4) — Question Presented — Argument. • •
    Arguments referred to in the motion for new-trial, but not .verified by bills of exception, will-not be reviewed.
    14. Criminal Law <§=1092(6) — Filing of-Bill of Exceptions.
    Bill of exceptions preserving evidence on motion for new trial, not filed until some weeks-after close of term, cannot be considered.
    On Motion for Rehearing.
    15. Courts <§=1 — Powers.
    It is the courts’ duty to observe, and not disregard, statutory provisions.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Leonard Dodd was convicted of rape, and-he appeals. Affirmed. On motion for rehearing.
    Motion overruled.
    H. G. Wills and J. H. Synnott, both of Dallas, for appellant. Mike T. Lively, Dist.. Atty., of Dallas, and E. B. Hendricks, Asst-Atty. Gen., for the State.
    Mike T. Lively, Dist..
   MORROW, J.

Appellant was convicted of rape, and the death penalty assessed. The-subject of the rape was Miss Florence Or-cutt. The indictment contained but. one-count, and therein charged appellant with rape by force.

On the night of June 25, 1917, Miss Florence Orcutt was riding in a jitney driven by a man by the name of Savage. According to> their testimony, they were on their way to the residence of a man living some miles-out of the city of Dallas on a business mission ; Miss Orcutt having employed'. Savage-to make the trip. They claimed by mistake to have taken the wrong road, getting into a narrow lane, and while looking for a place to turn their car around heard an automobile overtaking them. They stopped on one side-to allow the approaching car to pass. The-car in which appellant and Walter Stevenson were riding was stopped, and some conversation took place with reference to a road to a certain village. Appellant and Stevensom passed on after this conversation, and Miss Orcutt and Savage turned and drove back into the pike road. Soon after reaching it they were overtaken and stopped by Stevenson and appellant. Savage was struck by one of them with a hammer, and while he was helpless from the blow or blows Miss Orcutt was taken out of his car and put into that of appellant and Stevenson, appellant driving the car, and Stevenson sitting on the back seat with Miss Orcutt. They drove toward the city of Dallas, passed through a part of the lighted portion, and again drove into a dark portion of the country, where they forced and dragged Miss Orcutt out of the automobile and assaulted her. That Stevenson raped her while appellant held her is not questioned; that appellant tried to rape her while Stevenson held her is definitely established; that appellant succeeded in penetration is controverted, though there is evidence to sustain the affirmative finding upon the issue. Miss Orcutt was told by them that they would keep her until morning and kill her to prevent her from disclosing the facts. While they were still -with her they were discovered by a man in an automobile. Stevenson ran; and appellant remained, his person exposed, threatening the man who discovered them with a hammer, trying to drive him away. The young lady screamed, however, and jumped onto the automobile and was rescued. She exhibited evidence of abuse in the way of the disarray of her clothing and numerous wounds about her face and head which she testified were given by the appellant and his companion during her struggles resisting violence.

A motion for change of venue on the ground of prejudice was made. Evidence was heard for and in opposition to it. The bill of exception containing this evidence was not filed until November 9th, while court adjourned September 29th. Objection to its consideration is made by the state based on article 634, C. C. P., which is as follows:

“The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made.”

This statute has frequently been held to deny this court the right to review the action of the trial judge in refusing a change of venue where evidence was heard in the absence of a bill of exception preserving the evidence and filed during the term of court at which the order was made. Bowden v. State, 12 Tex. App. 246; Bink v. State, 50 Tex. Cr. R. 445, 98 S. W. 863; and numerous cases collated in Branch’s Ann. P. C. p. 181, § 301.

The record does not disclose a state of fact showing the officers of the court are responsible for the delay so as to require a reversal because of the failure of appellant to secure his bill, as was done in Miller v. State, 52 Tex. Cr. R. 72, 105 S. W. 502. The transcribed notes of the stenographer appear to have been available some days before the end of the term. A reading of the evidence adduced at the hearing for a change of venue does not indicate arbitrary action or abuse of discretion by the trial judge in overruling the motion in the absence of which his decision will not be overturned. Dupree v. State, 2 Tex. App. 613; Bohannon v. State, 14 Tex. App. 302; Branch’s Ann. P. C. § 299, and eases cited.

Appellant set up insanity as a defense. An expert on this subject was asked a hypothetical question, to which objection was made “for the reason that the same was not a complete nor a true statement of the testimony and states facts as proven, which were contradicted by the testimony and by the confession in evidence.” The trial judge in qualifying the bill says that the hypothetical question was a fair, full, and complete statement of matters in evidence. Such is our view of it after reading the bill. Nothing is pointed out in the bill as going beyond the evidence. Mr. Branch, in his Ann. P. C. p. 18, § 31, deduces from the decisions of this court the following rule: -s

“Each side has a right to an opinion from the expert witness upon any hypothesis reasonably consistent with the evidence, and if meagerly presented on one side, it may be fully presented on the other, being within the control of the court, whose duty it is to see that the examination is fairly and reasonably conducted. In putting hypothetical questions, counsel may assume the facts in accordance with his theory of things, and it is not essential that he state, all the facts to the witness as they have been proved.”

This is supported by the decisions which he cites, including Burt v. State, 38 Tex. Cr. R. 444, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330, and Morrisson v. State, 40 Tex. Cr. R. 494, 51 S. W. 358.

Dr. Turner, an expert on insanity, who appears to have been present at the trial as a witness, was called by the state in rebuttal, and objected to testifying because he had been employed by appellant to make an examination of him with reference to his sanity, and that he desired to be exempt from the necessity of giving his opinion on account of the confidential relationship existing between him, a physician, and the appellant, his patient. The court, without objection from appellant, 'excused the witness, and at the end of the trial the appellant requested the court to instruct' the jury to disregard the incident just related. Appellant presents no authority sustaining the contention that there was error thus disclosed, and we have found none. Dr. Turner was a witness, and the state’s counsel appears to have been within his rights to call him to testify, and so far as we are advised, to require him to testify, so far as the inhibition of privileged communications touches the subject. The general rule is that communications between physician and patient in the absence of statute are not privileged. Wharton’s Crim. Law, p. 1059, § 516. The courts recognize that there are many reasons for regarding the communications between physician and patient as privileged where the patient seeks the physician for medical aid, and in many states statutes have been enacted on the subject. It has been held, however, that where the consultation is not for medical aid, these reasons do not obtain. Bower v. Bower, 142 Ind. 194, 41 N. E. 523. Whatever the rule, there is no statute in this state exempting such communications.

Where insanity is an issue, it is competent for the state to call witnesses to prove the conversations and conduct of an accused, not admitting guilt, while in jail as a basis for an opinion as to the sanity or insanity. Adams v. State, 34 Tex. Cr. R. 470, 31 S. W. 372; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; and other cases cited in Branch’s Ann. P. C. p. 17.

The -court in submitting the case to the jury authorized conviction on the theory presented by the evidence that appellant accomplished penetration, and also on the theory that he aided Stevenson, and might be held as a principal in the rape by Stevenson. Appellant, by objecting to the charge, complained of submitting the law of principals, and in a special charge insisted that conviction should be authorized alone on the theory that appellant succeeded in penetration and accomplished the rape by his own act. The evidence was undisputed that Stevenson committed the rape while appellant held the victim, and, unless insane, he was guilty of the offense under the law of principals (Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858; P. C. arts. 74 and 75); and in order to convict him under the law of principals it was not necessary to allege in the indictment the acts which made him a principal.

“A principal offender may be charged directly with the commission of the offense although it may not actually have been committed by him.” Branch’s Ann. P. C. p. 344, § 676, and cases cited, including Cruit v. State, 41 Tex. 477; Williams v. State, 42 Tex. 392; Bell v. State, 1 Tex. App. 598; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858.

It follows that under the indictment it was competent to prove that appellant was guilty of rape as a principal without allegation showing that it was the intent of the state to support- the prosecution upon evidence that by his aiding another in the act he became guilty of it under the law of principals.

When it was developed by the evidence that the facts were such as would support two prosecutions for rape against appellant, one for his own act of having carnal intercourse, and one for the act- of Stevenson aided by him, it was his right and duty, if he desired the state to elect to abandon the prosecution for one of the offenses and confine itself to the other, to make a motion that the state be so required. Lunn v. State, 44 Tex. 85; Dalton v. State, 4 Tex. App. 335; Simms v. State, 10 Tex. App. 159; Blackwell v. State, 51 Tex. Cr. R. 25, 100 S. W. 774; Walker v. State, 72 S. W. 401; Bishop, New Crim. Procedure, § 462; Collins v. State; 77 Tex. Cr. R. 156, 178 S. W. 349. There was no motion or other effort so far as disclosed by the record to require the state to make an election.

The appellant, after the evidence had closed, in his objections to the court’s charge and in a special charge insisted that the prosecution under the indictment could only rest upon facts tending to show the rape by appellant; that is to say, that his efforts at penetration were successful; the view of counsel being that the indictment would not sustain a prosecution -under the law of principals. This view, as indicated by the authorities as cited hereinabove on the subject, is not sound in our opinion. In so far as this attack upon the charge may be regarded as suggesting the ideia ■ of election, it is ineffective for the reason that it does not lie with an accused to select the transaction w£ich shall be abandoned where the facts are such as to require an election. That is the privilege of the state. Walker v. State, 72 S. W, 401; Bradshaw v. State, 32 Tex. Cr. R. 381, 23 S. W. 892.

The state relied for a conviction wholly upon the direct evidence. The rape by Stevenson with appellant’s aid was proved without dispute both by the testimony of Miss Orcutt and the confession of appellant, and to prove penetration by appellant the state relied upon the direct testimony of prose-cutrix that he did so. One of the incidents of the transaction testified to by the pros-ecutrix was that appellant put his fingers in her person, and he complains in one of his bills of exception that while Miss Orcutt was on the stand the court sustained an objection to a question, as follows; “Do you remember Dr. Pence speaking to you about your hymen having been shattered before that morning -before the crime.” He states in his bill that he expected her to answer that her hymen had been destroyed by an operation before the date of the offense. Under the circumstances disclosed by the record we do not think there is harmful error shown by the bill. If evidence that the hymen had been ruptured by an operation was material and admissible, the proof of it should have been made by direct inquiry of the witness as to the fact. Her statement to Dr. Pence would have been hearsay, not competent to prove the fact, but available only to impeach the prosecuting witness if on inquiry of her she had denied the fact, that the operation had taken place.

Some leading questions were asked prosecutrix by the state’s attorney, and complaint is made thereof. Leading questions are generally objectionable. There are exceptions, however, to the rule prohibiting them, and ordinarily the determination of their admissibility is left to the discretion of the trial judge, not subject to review except in instances where the discretion has been abused or where by the liberal exercise of it injustice has been done. Wharton’s Crim. Ev. § 454a; Branch’s Ann. P. C. § 158, and cases cited; Campbell v. State, 62 Tex. Cr. R. 563, 138 S. W. 607.

When leading questions are complained of, it is incumbent upon the appellant to show by his bills of exception that they were allowed under circumstances not bringing them under any of the rules excluding them. Branch’s Ann. P. C. § 159, and cases cited; Montgomery v. State, 4 Tex. App. 142; Henderson v. State, 5 Tex. App. 138; Harris v. State, 37 Tex. Cr. R. 446, 36 S. W. 88; Hamilton v. State, 41 Tex. Cr. R. 601, 58 S. W. 93; Green v. State, 148 S. W. 593; Jones v. State, 65 Tex. Cr. R. 69, 144 S. W. 252; Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 728. The bill in the present case as qualified by the court and accepted by appellant shows that the circumstances justified the resorting to leading questions to the extent that the bill shows it to have been done. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 217; Harris v. State, 37 Tex. Cr. R. 441, 36 S. W. 89.

The record shows that appellant on the day of the offense had been drinking intoxicating liquor, and he interposed that fact and the consequences following it in mitigation of the penalty as provided by article 41, P. C. The court instructed the jury on the subject, and the terms in which he gave the charge are criticized in the exception to the charge, the exception made being that the charge was too restrictive of his rights in defining temporary insanity embraced in the statute; that it was such as would render the appellant incapable of knowing the act he was doing was wrong or criminal. The court told the jury, if the appellant was laboring under such temporary insanity produced by the voluntary recent use of ardent spirits, it should be taken into consideration in mitigation of the punishment in the event they found appellant guilty. It was the duty of the court to instruct the jury in regard to the meaning of the term “temporary insanity,” and we have been referred to no authority which indicates that the definition given was not a proper one. It is in accord with the definition approved by this court in Evers v. State, 31 Tex. Cr. R. 319, 20 S. W. 744, 18 L. R. A. 421, 37 Am. St. Rep. 811. It is the temporary insanity produced by the ardent spirits that may mitigate. Mere drunkenness does not do so. Branch’s Ann. P. C.

Counsel in his argument laid some stress upon the introduction of appellant’s confession. Erom our examination of the record we are unable to discern any irregularity in it or in the manner in which it was taken. McDonald v. State, 55 Tex. Cr. R. 210, 116 S. W. 47; Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Harris v. State, 64 Tex. Cr. R. 594, 144 S. W. 232.

In their brief counsel makes some complaint of arguments which are referred to in the motion for new trial, but not verified by bills of exception, and which' under the established practice are not before us for review. The bill of exceptions .which preserves certain evidence as it was introduced on the motion for new trial was not filed until November 9th, which was some weeks after the term at which the trial was had and the term ended. The law, before permitting us to consider the evidence heard on a motion for new trial -as a basis for review, requires that the bill containing it be filed during the term at which the case was tried. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116. The evidence taken on motion for new trial would not, if considered, justify the conclusion that the trial was had under the influence of a mob spirit or that the verdict was responsive to any illegitimate influence. The difficulties in obtaining a jury appear not to have been such as indicate extensive prejudgment in the case or prejudice against the accused. The crime was characterized by extreme brutality accompanied by incidents of the most shocking nature. Appellant’s participation in it was not in doubt, and, unless the jury accepted as true his defense of insanity or felt inclined to mitigate his punishment under his plea of temporary insanity resulting from the use of intoxicants, the severity of the verdict is not a subject of wonder. The evidence touching his defensive pleas, while conflicting, were such as to sustain the finding against the defense of insanity and the plea in mitigation of temporary insanity. The trial appears to have been a fair one, legally conducted, and we are not authorized to overturn its result.

The judgment is affirmed.

On Motion for Rehearing.

Responding to the motion for rehearing, in which counsel for the appellant earnestly urges the court to reverse its holding affirming this case, we have reviewed the record. He suggests that, notwithstanding article 634, C. C. P., declares that this court shall not review the order of the trial judge refusing to -change the venue, in the absence of a statement of facts upon which the trial judge acted, approved-by him, and filed during the term at which the order was made, that in view of the serious nature of the charge against the appellant, this court should consider the statement of facts which was not filed during the term time, and upon them reverse the ruling of the trial court in refusing to change the venue. To do so would involve setting aside the precedent established in numerous cases decided by this court as listed in Branch’s Ann. P. 0. § 301, and would amount to a disregarding of the provision of the statute prescribing the procedure in this court and the trial court.

The duty of the courts is to observe statutory provisions. It does not lie with them to arbitrarily disobey them. Bishop v. State, 194 S. W. 389. The rights of the public and the citizen are best protected by an observance of the law as it is written where it does not overstep constitutional provisions. If hardship or injustice result in individual eases, the remedy is not with the courts, but lies in the hands of those vested with the right to exercise executive clemency.

The position of counsel for appellant, presented with great force, is that, inasmuch as the indictment charged appellant, Leonard Dodd, with having carnal knowledge with the injured party by force as defined in the statute on rape, it was not competent for the state to sustain this charge by proof that Walter Stevenson had such carnal knowledge with her while appellant was present, and, knowing the unlawful intent of Stevenson, by his acts aided him in committing the rape. The Supreme Court, in the case of Williams v. State, 42 Tex. 394, says:

“It has been repeatedly held that it is not necessary to allege in the indictment the facts relied upon to show the defendant to be a principal, although the offense with which he is charged may not have been actually committed by him.”

In Mills v. State, 13 Tex. App. 489, Judge Hurt, writing the opinion, says:

“It appears from the statement of facts that Henderson Dart shot the prosecutor, Isham Berry. Mills [the appellant] was indicted , separately ; there being no mention of Dart in the indictment.
“Upon the trial the defendant excepted to all evidence tending to prove that Dart shot Berry, upon the ground that there was no allegation in the indictment to that effect. The court overruled the objection, and the defendant excepted. We are of the opinion that the ruling of the court was correct. The state proved that Dart did the shooting, and that defendant was present, and, knowing the unlawful intent of Dart, abetted and encouraged him in the commission of the offense.
“The question here raised is this: Must the indictment charge all of the parties engaged in the commission of the offense, in order to the admission of evidence to prove that a party not on trial committed the act, and that the defendant [the party on trial] was present, and, knowing the unlawful intent of such person, aided him by acts or encouraged him by words or gestures? We are of the opinion that this question must be answered in the negative, if the party is present and knows of the unlawful intent, aids by acts or encourages by word or gestures the party who actually commits the unlawful act, he is held a principal actor, and can be prosecuted and convicted as such.”

This case states and applies the rule which has been consistently and uniformly adhered to. Mr. Branch in. his Ann. P. C. p. 342, § 677, collates the cases.

The points raised in the motion for rehearing are a reiteration of those urged on the original presentation of the case. Without reviewing them in detail, we have again considered them, and are constrained to believe that they were decided in accord with the rules of law.

We therefore overrule the motion.

PRENDERGAST, J., absent.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    STEVENSON v. STATE.
    (No. 4819.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    Rehearing Denied March 20, 1918.)
    Appeal from Criminal District Court, Dallas County; C. A. Pippen,. Judge. .
    Walter Stevenson was convicted of rape, and he appeals.
    Affirmed.
    H. G. Wills and J. H. Synnott, both of Dallas, for appellant. Mike T. Lively, Ddst. Atty., of Dallas, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The death penalty was assessed against appellant under an indictment charging rápe.

This record in all substantial matters,- except the issue of insanity which was not raised in this record, is the same as that in the case of Dodd v. State, 201 S. W. 1014, to which this is a companion case, this day decided. The action of the court overruling the motion to change venue, as well as the motion for new trial, is presented in the same way as those questions are presented in the Dodd Case, as is also the question of confession, the recall of the witness Miss Orcutt, and the bill in reference to leading questions. After reviewing the two cases and the opinion in the Dodd Case, we see no reason why an opinion should be written in this case reviewing those questions. They were fully discussed and decided in the Dodd Case, and a further review of the questions would be of no practical utility.

Following the decision in the Dodd Case, this judgment will be affirmed.


author: DUNKLIN, J.

text:
    LANE v. SANDERS et al.
    (No. 8743.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 22, 1917.
    Rehearing Denied Feb. 23, 1918.)
    1. Evidence <®=»157(6) — Admissions — Best and Secondary Evidence.
    In a suit to recover half interest in land by one claiming a§ heir by adoption of defendants’ stepmother’s first husband, defendants claiming under will of their stepmother, who, unless plaintiff were legally adopted, inherited her first husband’s undivided half interest in the land, parol proof of oral admissions by the alleged adopting parent and the stepmother in their lifetime that they had adopted plaintiff as their son were admissible as against the objection that it was secondary evidence only, that a written instrument of adoption was the best evidence, and that no sufficient predicate was laid for introduction of secondary evidence of its contents.
    2. Adoption <®=j17 — Evidence — Generad Reputation.
    In such action plaintiff could not prove legal adoption by general reputation of the adoption.

      3. Evidence <©=»236(3) — Admissions — Best and Secondary Evidence.
    In such action, plaintiff having offered evidence that his stepmother was required by her second husband to deed him all her land, her statements that she owned but a half interest in the land in controversy and deeds by which she conveyed to her second husband only a half interest therein were admissible as showing she recognized that plaintiff owned the other half-interest; such admissions by her being admissions against her interest and binding upon defendants, claiming title through her and her first husband.
    Appeal from District Court, Bosque County ; O. L. Lockett, Judge.
    Action by A. G. Lane against R. E. Sanders and others. From judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    Walker & Baker, of Cleburne, and S. R. Carruth, of Morgan, for appellant. W. B. Thompson and J. P. Word, both of Meridian, and A. J. Power, of Ft. Worth, for appellees.
   DUNKLIN, J.

A. G. Lane instituted, this suit against R. E. Sanders, Mrs. Audie Collins, and Walter Collins to recover an undivided one-half interest in four tracts of land situated in Bosque county, and from a judgment in the defendants’ favor plaintiff has appealed.

Plaintiff claimed to be the adopted son of Dr. B. F. Lane, and claimed the property as heir of his foster father. Both Dr. Lane and Mrs. M. M. C. Lane, his wife, who later married T. D. 'Sanders, were dead at .the time the suit was instituted, and the tracts of land in which plaintiff claimed one-half interest were their community property at the time of the death of Dr. Lane. Dr. Dane died intestate. He never had any natural children, so that, if plaintiff had ever been legally adopted by Dr. Lane, then he inherited Dr. Lane’s undivided one-half interest in the land. Articles 1 and 2467, V. S. Texas Civil Statutes. Mrs. M. M. C. Lane survived Dr. Lane a number of years, .during which time she married T. D. Sanders. The defendants are the children of T. D. Sanders by his former marriage. They alleged that their father, T. D. Sanders, died prior to the death of their stepmother, Mrs. M. M. C. 'Sanders, and that plaintiff was never legally adopted by Dr. Dane; that on the death of Dr. Lane his surviving wife inherited his undivided one-half interest in the land and they claimed that interest under and by virtue of a will alleged to have been made in their favor by their stepmother, Mrs. M„ M. C. Lane.

Plaintiff did not introduce in evidence upon the trial any written statutory instrument of adoption executed by Dr. Lane; nor does the record show that he offered any proof of his inability to find such an instrument or the record thereof in the county clerk’s office of any county where Dr. Lane was known to have resided, further than the circumstances of the long period of time that had elapsed since plaintiff was adopted, if adopted at all, but he sought to introduce as primary evidence parol proof of admission by Dr. Lane that he had adopted plaintiff as his son, and all the assignments presented here are addressed to the action of the trial court in rejecting such proffered evidence and in peremptorily instructing a verdict in favor of the defendants.

The objections sustained to all of such testimony were, in effect, that it was secondary evidence only; that the written instrument of adoption itself, if in fact any such was ever executed and recorded, was the best evidence, and no sufficient predicate was laid for the introduction of secondary evidence of its contents.

A portion of the evidence excluded was the deposition of T. B. Wright, who testified:

, “That he was 77 years old, a resident of Hill county, had lived in that community for-40 yearsthat.he first got acquainted with Dr. Lane in 187Ó, and lived in his home in the year 1872, also with Dr. Lane on his farm the year 1874; that Dr. Lane told witness that plaintiff, A. G. Lane, was his adopted son; that witness heard him .make the same statement repeatedly to different people; that he also heard him make the same statement in the presence of his wife, who did not deny or question it.”

Said deposition was further:

That Dr. Lane told him “that A. G. Lane’s parents died with cholera when he was an infant, and that he, Dr. Lane, had legally adopted A. G. Lane; that he introduced A. G. Lane to the witness as his adopted son; that he had heard Dr. Lane tell the plaintiff that he should take an interest in keeping up and improving the farm, as he, A. G. Lane, would get it when he, Dr. 'Lane, was gone.”
Mrs. Sue Stansell, 60 years of age, niece of Dr. B. F. Dane, and who had known him since the year 1865, would have testified for plaintiff if permitted to do so:
That Dr. Lane told her “that he had legally adopted A. G. Dane, and that the records of the county in which the adoption paper was recorded had been destroyed 'by the burning of the county records; that' if he stated to her what county or what state it was she did not remember.”

By several other witnesses plaintiff offered to prove repeated declarations and statements by Dr. Lane extending over a long period of time to the effect that plaintiff, A. G. Lane, was his adopted son. Plaintiff also offered to prove by the witness Lon Sanford that he was present when Dr. Lane died, and that shortly before his death and while on his deathbed he called to his bedside his wife, Mrs. M. M. O. Lane, and told her “that he wanted her to have the use and occupation of their land -while she lived, and that after her death he wanted it all to go to his adopted son, A. G. Lane,” and that Mrs. Lane said it should be done. Plaintiff also offered to prove that after the marriage of T. D. Sanders to Mrs. M. M. O. Lane there was a temporary separation, during which time T. D. Sanders refused to again live with his said wife unless site would deed to Mm all her land, and that in compliance with that demand she did deed to him an undivided one-half interest in tho tracts of land described in plaintiff’s petition. Plaintiff also offered to prove by several witnesses that while advising with others as to whether or not she would comply with that demand of her husband she stated to those witnesses that she could not convey the entire title to those tracts because A. G. Lane, plaintiff, owned one-half interest therein.

All the testimony referred to above was excluded upon the objections mentioned; and in excluding it we think there was error.

In section 50 of Starkie on Evidence, the following is said:

“Another class of evidence, which is admissible, though the usual tests are inapplicable, consists of declarations made by one of the parties to a suit, in the nature of a confession or admission contrary to his interest. Whatever a party voluntarily admits to be true, though the admission be contrary, to his interest, may reasonably be taken for the truth. * * * As to such evidence, the ordinary tests of truth are properly dispensed with; they are inapplicable; an oath is administered to a witness in order to impose additional obligation on his conscience, and so to add weight to his testimony; and he is cross-examined to ascertain the means of his knowledge, as well as his intention to speak the truth. But where a man voluntarily admits a debt or confesses a crime, there is little occasion for confirmation; the ordinary motives of human conduct are sufficient warrant for belief.”

And again in section 506 the same author says;

“But upon consideration the courts have held that admissions by a party bound, when used against himself, do not fall within the reason of the rule which forbids the reception of secondary evidence until the absence of primary evidence has been satisfactorily accounted for. That reason is that the introduction of secondary evidence when primary evidence can be produced, the former being in its nature derived from the latter, necessarily raises a suspicion that the latter would have been unfavorable to the party who does not produce it. To what a party himself admits to be true it is obvious that this reason does not apply; and therefore admissions made by a party are evidence against him of the contents of a document without producing it or calling the attesting witness.”

See, also, 1 Greenleaf on Evidence, § 97; 2 Elliott on Evidence, § 1260.

In 1 R. C. L. p. 489, § 27, it is said:

“While many early decisions hold that verbal admissions as to the contents of a writing are inadmissible in evidence, and the position has frequently been taken that verbal admissions as to the contents of a writing are incompetent unless the absence of the writing is first accounted for, the rule generally adopted at the present time is that oral admissions as to the contents of a written instrument are competent evidence of its contents, although the failure to produce the instrument itself is not explained. The better view seems to be that the general principle respecting the production of written evidence as the best evidence does not apply to the admissions of parties. The early rule was that tho admissions of a party are insufficient to dispose with the production of attesting witnesses in order to establish the execution of the instrument; but recent authorities are to the contrary.”

Slatterie v. Pooley, 6 M. & M. 664, seems to be the leading ease in which that doctrine is announced, and it has been frequently cited. The following excerpt from the opinion of Justice Parke in that case is quoted in 2 Wigmore on Evidence, § 1255, where the rule is discussed:

“If such evidence were inadmissible, the difficulties thrown in the way of almost every trial would be nearly insuperable. The reason why such parol statements are admissible is that they are not open to the same objection which belongs to parol evidence from other sources where the written evidence might have been produced; for such evidence is excluded from the presumption of its untruth arising from the very nature of the case where better evidence is withheld; whereas what a party admits to be true may reasonably be presumed to be so. The weight and value of such testimony is quite another question.”

In sections 1256 and 1257 the author cites some decisions in conflict with Slatterie v. Pooley, and others limiting its application to admissions made in the course of judicial proceedings, of collateral matters, or in instruments in writing, etc. But in subdivision 5 of section 1257 the author says an admission of the execution of a document is always receivable, and in volume 3, § 2105, that the terms of the document need not be precisely given.

In Smith v. Palmer, 6 Cush. (Mass.) 513, it was held that the admissions of the defendant that a former action had been prosecuted to final judgment was admissible as primary evidence.

In Morey v. Hoyt, 62 Conn. 542, 26 Atl. 127, 19 L. R. A. 611, the following was said:

“The rule that the oral admissions of a party against himself and those claiming under him, although relating to the contents of a writing, are primary evidence, seems to be well established, whatever we may think of its wisdom. So far as we are aware, this court has never had occasion to consider this rule, but elsewhere the weight of authority is in its favor. It is established in England, as shown by the authorities cited: ‘Primary evidence means the document itself produced for the inspection of the court, or an admission of its contents proved to have been made by a party whose admissions are relevant.’ Stephen, Dig. art. 64; Earle v. Picken, 5 Car. & P. 542; Slatterie v. Pooley, 6 M. & W. 664; Reg. v. Basingstroke, 14 Q. B. 611; Taylor, Ev. par. 410. It seems to be the prevalent rule in this country. 1 Greenleaf, Evidence [15th Ed.] par. 98; Smith v. Palmer, 6 Cush. [Mass.] 513; Loomis v. Wadhams, 8 Gray [Mass.] 557; Blackington v. Rockland, 66 Me. 332; Wolverton v. State, 16 Ohio, 173, 47 Am. Dec. 373; Edgar v. Richardson, 33 Ohio St. 581, 31 Am. Rep. 571; Edwards v. Tracy, 62 Pa. 374; Taylor v. Peck, 21 Grat. [Va.] 11.”

In Combs v. New Albany R. M. Co., 146 Ind. 688, 46 N. E. 16, the Supreme Court of Indiana held that the deposition of a party to the suit in answer to questions by the opposing party containing an admission of the contents and legal import of attachment proceedings in another state were held to be admissible over an objection that such testimony was secondary, and that the best evidence would be an authenticated copy of such judicial records. In that case the court said:

“The rule that parol evidence is not admissible to prove the contents of documents and other -writings or other facts shown by the decree of a court or other public record does not apply in all its strictness to the admissions of a party. Such admissions are received as primary evidence.”

In support of that announcement a long list of authorities is cited.

In Edgar v. Richardson, 33 Ohio St. 581, 31 Am. Rep. 571, the Supreme Court of Ohio held that a judicial decree of divorce could be proven by the declaration of the defendant that she had been divorced.

In Chew v. Jackson, 45 Tex. Civ. App. 656, 102 S. W. 428, which was a suit in trespass to try title, where the issue was a delivery of a deed by a testator to his grandchildren, a declaration of the testator that “he intended to give and had given the boys the land in question” was held by this court to be admissible, as an admission against Interest. To the same effect are Matador Land & Cattle Co. v. Cooper, 39 Tex. Civ. App. 99, 87 S. W. 235, and Wilson v. Simpson, 80 Tex. 279, 16 S. W. 40.

In Hoefling v. Hambleton, 84 Tex. 519, 19 S. W. 689, it was held that the defendant’s admission upon cross-examination that he had sold and conveyed the land in controversy as was alleged by plaintiffs were admissible to prove such conveyance as against the objection that parol testimony was incompetent to show the sale of land; and in so holding our Supreme Court used the following language:

“It is, we think, a proper case for the application of the doctrine that the admissions of a party of the contents of a written instrument may be received in evidence without the production of the writing or accounting for its absence” — citing many authorities.

See, also, Moore v. Bryant, 10 Tex. Civ. App. 131, 31 S. W. 223.

Counsel for appellees, in support of their contention that the evidence excluded was not admissible, has cited Powell v. Ott, 146 S. W. 1019, Conrad v. Herring, 36 Tex. Civ. App. 616, 83 S. W. 427, and McColpin v. McColpin, 75 S. W. 824, all decided by our Courts of Civil Appeals, and decisions from other states such as McCollister v. Yard, 90 Iowa, 621, 57 N. W. 447, Quinn v. Quinn, 5 S. D. 328, 58 N. W. 808, 49 Am. St. Rep. 875, and Harris v. Harris, 10 Wash. 555, 39 Pac. 149.

In Powell v. Ott, supra, it was said:

“The testimony relied upon to prove that appellant had been adopted by said L. C. Powell as his heir consisted alone of declarations by said L. C. Powell and his wife that he was their adopted child. That testimony was not sufficient to establish that he had been lawfully adopted by L. C. Powell as his heir. McColpin v. McColpin’s Estate, 75 S. W. 824; Moore v. Bryant, 10 Tex. Civ. App. 131, 31 S. W. 223.”

Practically to the same effect are Conrad v. Herring and McColpin v. McColpin; but in all of those eases it seems that the oral declarations of adoption were introduced in evidence without objection thereto; and the discussion was as to their sufficiency of themselves, without aid from other corroborative evidence to constitute proof of adoption. But these decisions seem in conflict with White v. Holman, 25 Tex. Civ. App. 152, 60 S. W. 437, in which it was held that an admission contained in a will by a testatrix that her former husband had adopted a girl named Kate as his heir, who was entitled to his half of the community landed estate, was sufficient to establish the fact that Kate had been legally adopted as such heir, and was entitled to his half of such estate. In that case, however, it was expressly stated that no objection had been urged to the admission of such declaration and that therefore the question whether or not the adoption papers would be the best evidence did not arise. We shall not undertake to review the decisions of other states cited by appellee to show that the testimony offered was not admissible. In addition to those, many others might be added that would support that conclusion, but we think the great weight of authorities announce a contrary view, and that they have a better support in reason and principle, and that they should be followed in this case, especially in view of the long period of time which has elapsed since the instrument of adoption was executed, if executed at all, and the further fact that Dr. Lane is now dead. Chew v. Jackson, supra, and authorities there cited.

For the reasons indicated, we conclude that the evidence. offered by plaintiff and excluded by the court referred to in appellant’s assignments of error 1 to 6, and the testimony referred to in the ninth assignment to the admissions by-Mrs. Sanders also that plaintiff had been legally adopted by Dr. Lane should have been admitted, but that the proffered testimony mentioned in the ninth assignment to prove general reputation of the alleged adoption was not admissible. We are also of the opinion that the testimony of plaintiff himself which was offered and excluded, and which is set out in the eighth assignment of error, with respect to declarations made to him by Dr. Lane and his wife, that Dr. Lane had adopted him as his son, and their treatment of him as such, were also admissible as against the objection urged thereto that the same was secondary evidence, and no proper predicate had been laid for its admission.

We are of the opinion further that the deeds to one-half interest in the property executed by Mrs. M. M. G. Sanders and her husband to R. E. Sanders and the deed from R. E. Sanders reconveying the same property to T. D. Sanders were admissible in connection with the proffered testimony of several witnesses already mentioned tending to show that those instruments were ex-eeuted for the purpose of vesting in T. D. Sanders an undivided one-half interest only-in the land, and that Mrs. -Sanders then recognized that plaintiff owned the other half interest. Such admissions, by Mrs. Sanders were’ admissions against her interest, and like admissions of adoption by Dr. Dane were binding also upon the defendants who claimed title through her and Dr. Lane.

For the reasons indicated, the judgment is reversed, and the cause remanded. ■ /

CONNER, O. J., not sitting, serving on writ of error committee at Austin.
      i£te»For other cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      t§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes