text:
    BROOKS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Larceny (§ 70) — Trial—Instructions— Application to Issues.
    In a prosecution for the theft of a horse, where the facts raised the issue as to whether defendant had traded a mule for the horse at the time he drove the horse off, an instruction that if defendant got the horse in exchange for the mule, or if there was reasonable doubt as to whether the trade was made, he should be acquitted, was a specific presentation of the issue.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 182, 183, 186, 186; Dec. Dig. ' 70.]
    2. Larceny (§ 68) — Trial — Question for Jury.
    On evidence in a prosecution for the theft of a horse, held, that a peremptory instruction of acquittal was properly refused.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 180, 181; Dec. Dig. § 68.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Jim Brooks was convicted of the theft of a horse, 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

   HARPER, J.

Appellant was convicted of the theft of a horse and prosecutes this appeal from such conviction.

The facts would show that appellant was the owner of a mule and drove it to Emilio Ruiz’s home and offered to trade the mule for a horse owned by Ruiz. Ruiz says: That no trade was made. That they discussed trading, and that he wanted to see how the mule traveled. That in discussing the trade he had Marcos Mendosa to catch his horse and bring him to them. That they decided 'to drive over to the store to see how the mule traveled, and they led the horse so that if a trade was made the exchange could be made. That when they got to the store he told appellant that he would not trade, and they went in the store and got a glass of beer. Upon coming out of the store, appellant suggested that, as they had driven the mule down there, to put the horse to the buggy and drive him back. That this was agreed to, and they started back in the buggy, leading the mule. Before getting to Ruiz’s home, appellant stopped at a house, and informed Ruiz he was going to stay all night there, when Ruiz began taking the horse from the buggy to lead him. Appellant objected, and, being the stronger man, prevented him from taking the horse, and, after-Ruiz left, appellant did not stay all night at this house, but got in the buggy and drove the horse off, leaving the mule. Ruiz was-corroborated by Marcos Mendoza. Appellant testified: That he went to Ruiz’s house and that he and Ruiz traded; that Ruiz traded the horse to him for the mule, and, when this was done, he invited him to go to the store and get a drink, and they drove the mule, at Ruiz’s suggestion, leading the horse. That, when they got to the store, they did take a drink, when the horse was put in the buggy, and they started back, leading the mule. That when they got to Frances Walker’s house, he intending to spend the night, they stopped, when Ruiz desired to rue the-trade, and started to take out the horse, when he stopped him. That he offered to rue the trade for $10, but Ruiz offered only $5. That when Ruiz left, he decided to go home, so he left the mule at Frances Walker’s.

This is in substance the testimony, and the court instructed the jury: “If you find from the evidence that the defendant and the said Ruiz traded, Ruiz trading the horse in question .for a mule given him in exchange by defendant, or if you have a reasonable doubt as to whether the trade was made, you will acquit the defendant.” This was a specific presentation of really the only contested issue in the case.

No exceptions were reserved to the introduction of testimony, and no special charges requested, except one requesting a peremptory instruction of acquittal, which was properly refused.

Under such circumstances, the court in his. charge having fairly and fully presented the only real issue made by the testimony, the criticism of the court’s charge is without merit, and the judgment is affirmed.


source: Caselaw Access Project

author: PBENDEBGAST, P. J.

license: Public Domain

text:
    Ex parte HIGGINS.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    Grand Jury (§ 36) — Witnesses—Provisional Immunity — Contempt.
    Unless a witness is offered complete immunity by the prosecuting officers and the offer is approved by the court, the witness cannot be put in contempt of court for refusing to answer the questions of the grand jury as to a criminal offense in which the witness was probably a participant.
    [Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §§ 75-78; Dec. Dig. § 36.]
    Original application of Lizzie Higgins for writ of habeas corpus to petition her discharge in a contempt proceeding for refusing to answer questions before the grand jury.
    Belabor discharged.
    Ward & Ward, of Cleburne, for appellant. Jno. K. Bussell, Co. Atty., of Cleburne, W. E. Myres, Asst. Co. Atty., of Ft. Worth, and 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

   PBENDEBGAST, P. J.

This is an original application to this court for a writ of habeas corpus in a contempt- proceeding against the relator for refusing to answer a question or questions before the grand jury of Johnson county.

The record shows that the relator was a young unmarried girl under 15 years of age and only about 14 years of age; that the grand jury was investigating the question of rape upon this girl; that she had given birth to a child on May 11, 1913, and when asked who was the father of this child she positively refused to answer, without, at the time, stating any reason before the grand jury. The record further shows that the county attorney thereupon offered her complete immunity if she would testify, but she still refused; whereupon, the grand jury, properly, in open court, brought the relator in the presence of the court and stated that she had refused to answer said question when they had under consideration a felony. The record does not disclose in any way that at that time the court understood what the felony charge was nor that the investigation was for rape upon relator, nor that the county attorney had offered her complete immunity. The record now before us discloses, further, that it was not brought to the attention of the court that her answer would subject her to a prosecution for incest with her grandfather, whom it appears was claimed to be the father of her child, and the record in no way discloses that the court sanctioned the immunity offered to her by the county attorney.

In the case of Ex parte Muncey, 162 S. W. — , this day decided, the question of whether or not, when a witness is offered complete immunity by the prosecuting officer, which is sanctioned by, the court, such witness can be compelled to testify, is fully discussed and decided in an opinion by Judge Harper. The discussion and decision in that case is so full and clear that it is altogether unnecessary to again discuss it in this case. We think it clear that the county attorney or other prosecuting officer and the grand jury alone cannot give such immunity so as to compel the witness to answer. But that such immunity by the prosecuting officer must be sanctioned and approved by the court, and, unless and until this is done, complete immunity is not offered, and the witness cannot be compelled to answer. If the record had disclosed that the court sanctioned the complete immunity in this case, as it did in the Muncey Case, we would hold that the relator was in contempt of the court and the judgment of the court so adjudging was correct, and refuse to discharge the relator.

It is always better, if not actually essential, that the court should make it a matter of record at the time that complete immunity was offered the witness by the prosecuting officer, with the sanction and approval of the court, and it even might be better for the offer of such immunity by the prosecuting officer to be in writing, but it is unnecessary for us to decide now that the offer of immunity by the prosecuting officer should be in writing. It is, of course, better practice for the court’s sanction and approval to be made a matter of record.

Because the record in this case does not disclose that the offer of immunity to the relator was with the approval and sanction of the court, this court must order the discharge of the relator, which is accordingly done.


author: PRENDERGAST, P. J.

text:
    BUSSEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Homicide (§ 310) — Instbuctions — “AGGRAVATED Assault.”
    On a trial for assault with intent to murder, where the state’s evidence showed a deliberate and willful assault with a shotgun within a distance of only 12 to 15 feet, while accused testified that he shot solely in self-defense and did not testify that he did not intend to kill the party assaulted, the court .properly refused to submit aggravated assault under Pen. Code 1911, art. 1022, subd. 7, providing that an assault becomes aggravated when a serious bodily injury is inflicted upon the person assaulted, or subdivision 8, providing that an assault is aggravated when committed with deadly weapons, under circumstances not amounting to an intention to murder or maim, since the evidence showed an assault with a deadly weapon in such a way as to show an intention to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661;. Dee. Dig. § 310.

    For other definitions, see Words and Phrases, vol. 1, pp. 270, 271.]
    2. Criminal Law (§ 822) — Instructions— Construction as a Whole.
    In determining whether the charge is erroneous, it must always be taken as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig-. § 822.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Douglass Bussey was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Stephen Chamness, of Tempson, and Carter & Walker, of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to murder, and his punishment fixed at two years in the penitentiary. This is the second appeal in this case. The first is reported in 153 S. W. 874.

Appellant’s main contention now is, and he so contended on the other appeal, that the court should have submitted aggravated assault under subdivisions 7 and 8 of article 1022, Pen. Code 1911. We have again carefully considered the evidence on this appeal. It is in no way substantially different from what it was on the other appeal. In fact, it is substantially the same on this point. We are still of the opinion that the court should not have submitted aggravated assault under either of the subdivisions of said article, as contended by appellant. See the opinion on the other appeal and the cases therein cited. The evidence shows, from the state’s standpoint, that the appellant deliberately and willfully shot the assaulted party with a shotgun, which was a deadly weapon, within a very short distance — only 12 to 15 feet distant. His side would show self-defense, and that only, and the court properly submitted that; the jury finding against him. The appellant in no way testified that he did not intend to kill the assaulted party, but in effect testified that he shot at him solely and only to defend himself, in self-defense. We think the line of eases cited and relied upon by appellant are not in point, because in those cases the assaults were usually committed with an ordinary pocketknife or with such an instrument as was not necessarily a deadly weapon, and, in effect, the testimony in those cases showed, or raised the question, that the injuries inflicted were inflicted without any intention of killing. This case comes under that line of decisions cited in the opinion on the other appeal, which are to the effect that the assault was inflicted with a deadly weapon in such way as to show an intention to kill, and without showing or tending to show that there was no intention to kill.

Appellant' complains at that part of the court’s charge defining sudden passion, and what was necessary and proper to be considered in determining whether the assault was committed with sudden passion, «etc., to the effect that the charge makes no reference on this subject to aggravated assault, but claims that it tends rather to be applicable to the charge on self-defense only. We think the appellant’s contention is not borne out at all by the record, but that, to take the charge as a whole, which must always be done, it of and within itself shows that it was intended to apply, and does apply, to the charge on aggravated assault, and has no application to the charge on self-defense.

Neither is appellant’s criticism of a portion of the court’s charge on the ground of threats correct, his contention being that by this portion of the court’s charge he limited it to the consideration of the charge of an assault with intent to murder, and does not permit it to be considered with reference to his charge on aggravated assault. Clearly we think the charge is not restricted, as appellant contends, but embraces wholly and fully both offenses — assault with intent to murder and aggravated assault — and the jury could not have otherwise understood.

The evidence was clearly sufficient to sustain the verdict, and appellant’s contention that it was wholly insufficient to sustain an assault with intent to murder, and that it was only sufficient to sustain an aggravated assault, is untenable. There being no reversible error, the judgment is affirmed.


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

text:
    MEEK v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.
    Rehearing Denied Nov. 19, 1913.)
    1. RbceivxNG Stolen Goods (§ 8) — Prose-ctjtion — Admission or Evidence.
    In a prosecution for receiving or concealing stolen goods, which were shown to include certain pipes, evidence that witness found two pipes buried in the ground, which were part of the stolen property, and delivered them to the owners, was admissible over an objection, shown by bill of exceptions, only, that it was not shown that accused was connected with the hiding of the pipes or knew of their being stolen at the time, so that the evidence was hearsay and immaterial.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig." §§ 15-18; Dec. Dig. § 8.]
    2. Receiving Stolen Goods (§ 8) — Admission op Evidence— Confession op Thief.
    In a prosecution for receiving or concealing stolen goods, the sw®rn written confession of the original thief that he stole the property, as well as the indictment charging him therewith, and the verdict and judgment of conviction and sentence were admissible in evidence to show that the property was stolen, but not as substantive evidence of accused’s guilt; the court limiting their consideration to that purpose.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. § 8.]
    3. Criminal Law (§ 538) — Confessions.
    A confession alone is not sufficient to support a conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1227-1229; Dec. Dig. § 538.]
    4. Criminal Law (§ 538) — Confession — Proof of Corpus Delicti.
    A confession may be used to aid the proof of the corpus delicti, and the conviction will be sustained if it, with the other evidence, satisfies the jury of accused’s guilt beyond a reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1227-1229; Dec. Dig. § 538.]

      5. Receiving Stolen Goods (§ 9) — Instruction s — Applicability of Evidence.
    In a prosecution for receiving or concealing stolen goods, accused requested an instruction that the corpus delicti consists of two facts, first, of the fact that the property received had been stolen, and, second, that accused received it, and that to authorize a conviction the jury must believe from evidence outside of accused’s confession that the property was stolen, and that accused received it, .and that the state must prove such facts be.yond a reasonable doubt, which instruction was refused, but the court charged that to warrant a conviction the evidence must show beyond a reasonable doubt that the property was acquired by theft, and that accused, knowing it to have been stolen, received and concealed it, and that the jury could not convict accused unless they believed, beyond a reasonable doubt, that the alleged thief took the property from the owners wihout their consent, or the consent of either of them, with intent to deprive them of its value, and that accused knew that •the property had been stolen and received and concealed it. Held that, in view of accused’s full confession and other evidence tending to show that he knowingly received and con-•eealed stolen property,’ the requested charge was properly refused as not called for by the evidence and as improperly limiting the effect of part of it, and the charge given was correct.
    [Ed. Note. — For other cases, see Receiving ‘Stolen Goods, Cent. Dig. §§ 19-22; Dec. Dig. -§ 9.]
    ■6. Criminal Law (§ 1172) — Appeal—Harmless Error — Instructions Favorable to Complaining Party.
    Since Pen. Code 1911, art. 1349, punishes •one who shall* receive “or” conceal property known to have been stolen,_ a charge that accused must have “both received and concealed” the stolen property erred in favor of accused, •so that he cannot complain thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 315-1-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    7. Criminal Law (§ 1137) — Appeal—Invited Error.
    Accused cannot complain of an erroneous •charge which he induced the court to give by his own requests.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dee. Dig. § 1137.]
    & Receiving Stolen Goods (§ 9) — Instructions — Applicability to Evidence — Intentions.
    While it might be proper to charge on the ■subject, where the evidence tends to show that accused’s intention in receiving or concealing property was innocent, the refusal of such a charge is not reversible error, where the evi-•denee does not suggest that accused’s intention was innocent.
    [Ed. Note. — For other cases, see Receiving "Stolen Goods, Cent. Dig. §§ 19-22; Dec. Dig. ⅞ 9.]
    :9. Criminal Law (§ 1043) — Appeal—Objections to Instructions.
    A general objection that an instruction is ■on the weight of the evidence, without pointing out how, is too general to be considered on •appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    10. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence.
    The court instructed, in a prosecution for receiving or concealing stolen goods, that the confession of the original thief, and the verdict and judgment and sentence of conviction against him, were not original evidence against accused and could not be considered for that purpose but only to show that the thief was guilty of stealing the property described in the indictment, and also instructed that the jury could not convict accused unless they believed beyond a reasonable doubt that the thief fraudulently took the property from the owners without their consent with intent to deprive them of its value and appropriate it to his own use, and that accused knew that the property had been sto],en and received and concealed it. Held, that the instruction was not on the weight of evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752,1768, 1770; Dec. Dig. §§ 763, 764.]
    11. Criminal Law (§ 1043) — Appeal—Objections to Instructions.
    An objection that an instruction is ambiguous, conflicting, and misleading to the jury and prejudicial to the accused is too general to be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    12. Receiving Stolen Goods (§ 9) — Instructions — Consent on? Owners.
    An instruction, in a prosecution for receiving or concealing stolen goods, that the jury could not convict unless they believed beyond a reasonable doubt that the original thief took the property from the owners’ possession without their consent, or the consent of either of them, with intent to deprive them of its value and appropriate it to his own usé, and that accused knew the property was stolen and received and concealed it, was not objectionable on the ground that it authorized a conviction, even though one of the owners consented to the taking of the property.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 19-22; Dec. Dig. § 9.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Titus County; H. F. O’Neal, Judge.
    James Meek was convicted of receiving or concealing stolen property, and appeals.
    Affirmed.
    Ward & Ward and Rolston & Rolston, all of Mt. Pleasant, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

The appellant was convicted of the offense of receiving or concealing stolen property, and his punishment fixed at two years’ confinement in the penitentiary, which is the lowest prescribed by law.

The law prescribing this offense (article 1349, P. C.) is: “If any person shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired, he shall be punished in the same manner as if he had stolen the property.”

The state proved up and introduced, without objection by appellant, his written sworn confession, which unquestionably shows his guilt. In addition to his confession, the state introduced other facts and circumstances tending to show and showing that he received and concealed the stolen property, knowing at the time that it had been stolen.

The only bill of exception in the record is very meager and wholly insufficient to require this court to pass upon the question attempted to be raised. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112. However, if we could consider it, it complains of the testimony of Mr.' Williams to the effect that he found two pipes buried in the ground, which were part of the stolen property, and that he delivered those pipes to the owners. The court, in allowing the bill, qualified it by stating: “I only permitted the state to prove by the witness .Williams that the two pipes were found buried and identified as a part of the property stolen. Just as I did in permitting the state to prove that a part of the property stolen was found in Arkansas in the grip of appellant, James Meek.” If we could look to the record, the uncontradicted testimony would show that a part of the stolen property was some pipes. Appellant, in his confession, swears that, at the time the alleged thief induced him to agree to receive and ship to Arkansas some of the stolen property, the thief then told him that a part of the stolen property was some pipes, and from what the thief then told him he knew that they were stolen property. Appellant in the bill only, and not by a statement of facts to that effect approved by the court, objected that appellant was not shown to be connected with the hiding of the pipes or knew of their being stolen at the time, and hence that said testimony was hearsay, irrelevant, immaterial, and prejudicial. We think clearly the testimony was admissible over anything shown by appellant’s bill.

The indictment alleges that appellant received the property from Raymond Riddle and concealed it, and properly charges that said Riddle had stolen the property, and that appellant, when he received and concealed it, knew that it had been so acquired by Riddle. Properly, and without any exceptions thereto by appellant, the court admitted the written sworn confessions of said Riddle to the effect that he had stolen the property alleged to have been stolen in the indictment. Also the indictment against Riddle to that effect, the verdict and judgment of conviction and the sentence therefor. The court, in his charge to the jury, expressly and pointedly and correctly instructed them that the said confessions of Riddle, the indictment, judgment, and sentence of the court against him, and the statements of Riddle in his confessions as to the whereabouts of the two pipes, and any other statements made by him, were not original evidence against the defendant and could not be considered by them for that purpose, but that they could consider them as they might tend to show Riddle guilty of the theft of the property described in the indictment, if it so tended, but they could not consider them for any other purpose. The appellant’s claim, therefore, in his motion for a new trial, in effect that said Riddle’s statements in his confessions could not be considered is without foundation and was fully met. The jury could consider it, as told by the court, for the sole purpose of tending to show, if it did, that said Riddle was guilty of the theft of the property described in the indictment.

By a special charge appellant requested the court to instruct the jury that the corpus de-licti of the offense “consists of two parts: First. The fact that the property alleged to> have been received by the defendant had been acquired by Raymond Riddle in such manner that the acquisition comes within the-meaning of theft. Second. The fact that James Meek, the defendant, received it. Under the law the corpus delicti of an offense-cannot be proved by the confession of the defendant alone. In order to justify a conviction the jury must believe from the evidence outside of the confession of the defendant that the property was stolen by Raymond Riddle and that James Meek received it. Now, therefore, unless you find from other evidence in this case than the confession of the defendant that he did receive the alleged stolen property, then*you will find him not guilty. The burden is on the state to prove beyond a reasonable doubt that the defendant did receive the alleged stolen-property, and this cannot be done by the confession alone of the defendant. If, after considering all of the testimony in evidence before you, you have a reasonable doubt as-to the guilt of the defendant, under the instructions given you, you will find him not guilty.”

Instead of giving this requested charge, the court gave the following: “In order to warrant a conviction for receiving and concealing stolen property, it must be made to appear by the evidence, satisfactory to the jury, beyond a reasonable doubt: (1) That the property alleged to have been stolen was acquired by theft. (2) That the defendant, knowing it to have been stolen, received and concealed the same. If either of these two essential elements are wanting, then the defendant cannot be convicted and is entitled to be acquitted. Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, James Meek, in the county of Titus and state of Texas, on or about July 13, 1911, received and concealed the-property described in the bill of indictment herein, and that the same was of- the value-of $50 or over, and that the defendant knew that said property was acquired by theft, then you will find the defendant guilty as charged in the indictment and assess his punishment at confinement in the penitentiary for any period of time not less than two-years nor more than ten years.” And in addition the following: “You cannot convict defendant in this case unless you believe from the evidence beyond a reasonable doubt that the said Raymond Riddle fraudulently, in Titus county, Tex., on or about July 13, 1911, took the said corporeal personal property of Swint and Fleming from their possession without their consent and without the consent of either the said W. S. Swint or the said T. M. Fleming, with the intent to deprive the owners of the value of the same, and to appropriate it to the use and benefit of the said Raymond Riddle; and you must further believe beyond a reasonable doubt from the evidence that the defendant, James Meek, knew that said property had been stolen, and that he received and concealed same.” And still in addition that the defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and, in case you have a reasonable doubt as to his guilt, you will acquit him and say by your verdict not guilty.

It is the settled law of this state “that a confession alone in and of itself is insufficient to support a conviction.” It is also as well established that the confession of the accused “may be used to aid the proof of the corpus delicti, and, if all of it together is sufficient to satisfy the jury of the truth of the charge beyond a reasonable doubt, the conviction must be sustained.” See Harris v. State, 144 S. W. 238, 239, for a collation of some of the authorities.

In addition to appellant’s confession, which was full and complete and of itself showed lie was guilty of the offense, there was much other evidence and many circumstances established, without contradiction, which tended to show and showed that he received this stolen property from said Riddle, put in his (appellant’s) grip or suit case, shipped it from Bit. Pleasant, in Titus county, whence it was stolen, to Little Rock, Ark., and in a few. days thereafter followed it him•self and was arrested in Arkansas, his grip with this stolen property in it taken from him, and his grip thereafter delivered back to him. So that it would have, been improper, under the circumstances, for the court to have given appellant’s • said special charge, because it was not called for by the testimony, singled out only a part of it, and .attempted to exclude the consideration of that part for the purpose of establishing the necessary facts; and that the court’s charge on the subject was proper and correct and is the charge which should have been given under the circumstances, and there was no error in the court’s refusal to give appellant’s special charge, nor in giving the charges above by the court, complained of.

As shown above, the statute under which this offense was prosecuted was expressly followed in the charge of the court, except that while the statute says, “If any person shall receive or conceal property,” etc., the charge of the court required that the defendant, knowing it to have been stolen, must have both “received and concealed the «ame.” Of course appellant cannot complain that the court required the jury to find more than the statute required before they could convict, for that was in his favor and not against him.

It is also the well-settled law of this state that the doctrine of invited error applies. That, where the defendant has induced the court by requested charge to in effect give in the court’s charge what is requested by appellant, he cannot complain, even if such charge may be erroneous. Cornwell v. State, 61 Tex. Cr. R. 122, 134 S. W. 221, Ann. Cas. 1913B, 71; Carbough v. State, 49 Tex. Cr. R. 452, 93 S. W. 738. As shown above, in the appellant’s special requested charge, which the court substantially followed in his charge, it is not made a requisite that the court shall require the jury expressly in his charge to find that the appellant fraudulently received and concealed the property. Neither does the statute so require. The appellant not only requested the charge above given and thereby invited the court to so charge but made no exception thereto at the time and requested no charge at the time that the word “fraudulently” should have been used in the charge. Besides this, the evidence in no way suggests or intimates that the appellant had any innocent purpose or intention in receiving or concealing the stolen property, but, on the contrary, the evidence all shows, and without any contradiction, that his purpose and intention was anything else than innocent or without wrong.

It might be in some cases that, where the innocent intention and purpose of the party in receiving or concealing stolen property is suggested or the evidence tends to show such innocent purpose and intention, it would be proper for the court to submit a correct charge on that subject, but this case in no way raises any such question, and the court did not commit any reversible error in not so charging.

In another ground of appellant’s motion for new trial he quotes a portion of the court’s charge wherein, as stated above, the court limited the jury to the purposes for which they could consider the said confessions of Riddle and the latter part of the court’s charge last above quoted. 1-Iis objection to this portion of the court’s charge is: (a) That it is on the weight of the evidence. How it is on the weight of the evidence is in no way attempted to be pointed out. This is too general to be considered, but, if not, in our opinion it is not on the weight of the evidence, (b) That it is ambiguous and conflicting, and misleading to the jury, and prejudicial to the defendant. This is too general to be considered and points out no error at all. And (c) that it is not the law of the case in that, if Riddle had the consent of one of the owners of the stolen property at the time he took it, he could not have been guilty of theft, and that the charge authorizes his conviction even if he had the consent of one of the owners to take the property. This objection is without any foundation. Not only does the court tell the jury that Riddle must have fraudulently taken the property of Swint and Fleming, without their consent but without the consent of each of them. Both of these owners swore positively and unequivocally -that this property was stolen from them without their consent. The uncontradicted evidence establishes that the store of Swint and Fleming was burglarized and about $300 worth of property stolen from them out of their store at the time, and that they recovered the property described in the indictment which was of more than the value of $100, and that Riddle was one of the principals and guilty parties in the theft and burglary. The court did not err in charging that said Riddle was an accomplice. Riddle did not testify, and the jury were excluded from considering any statement in his confession for any purpose whatever, as stated above, except whether or not he was the thief who stole the property. The evidence is clear, uncontradicted, and without doubt establishes the guilt of the appellant.

The judgment is affirmed.

DAVIDSON, J.

I do not believe the judgment and sentence against the principal were admissible in evidence in the case. I place this qualification as to my views so as not to agree to that question. The evidence was admitted without objection, but it occurs to me that the opinion indicates it was proper testimony. I do not so believe.


author: HARPER, J.

text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    1. Indictment and Ineobmation (§ 119)— Construction — Surplusage.
    A complaint, charging that accused “did on November 10th, and before the making of this complaint, then and there did” assault another is not bad for indefiniteness, for the first “did” may be disregarded as surplusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    2. Assault and Battery (§ 96) — Prosecution — Instructions.
    In a prosecution for aggravated assault, where the court defined simple assault as the use of any unlawful violence upon the person of another with the intent to injure him, and charged that a simple assault becomes aggravated when the instrument used produces serious bodily injury, the omission of the words “with intent to injure” in the latter charge does not constitute reversible error.
    [Ed. Note. — For other eases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    Appeal from District Court, Young County; E. W. Fry, Judge.
    Cabell Johnson was convicted of aggravated assault, and he appeals.
    Affirmed.
    Arnold & Arnold, of Graham, for appellant. C. E. Lane, Asst. Atty. ,Gen., for the-State.

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

   HARPER, J.

Appellant was convicted of aggravated assault, and his punishment assessed at 60 days’, confinement in the county-jail.

In the agreed statement of facts it is admitted that appellant assaulted Bryan Terrell, striking him on the head with a bottle of whisky, and inflicting serious bodily injury.

The record presents but two questions for review. Appellant moved to arrest the judgment, the complaint alleging that appellant “did on or about the 10th day of November, 1912, and before the making of this complaint, then and there did,” etc; he contending that the use of the word “did” twice, as above stated, rendered the complaint vague, indefinite, and meaningless. The court correctly overruled the motion. The use of the word twice does not render the complaint meaningless, nor uncertain, but the complaint succinctly charges the offense of aggravated assault when taken as a whole, and by treating the word “did,” where first used, as surplusage, the offense would be charged accurately in the complaint, and by leaving it in the complaint no other meaning could be given to the language of the complaint. Branch’s Crim. Law, § 905.

The other complaint is that in submitting the assault the court did not fequire the jury to find that appellant assaulted Terrell with the intent to injure him. In defining assault the court instructed the jury: “The use of any unlawful violence upon the person of another, with the intent to injure such a person, is a simple assault, and a simple assault becomes aggravated when the instrument used produces serious bodily injury.” As there is no question of innocent intent raised by the evidence in the case, and as the court had thus defined- assault, the omission of the words, “with intent to injure” later in the charge, no reversible error was committed. This is a misdemeanor, and no special charge was requested in regard thereto. Did the evidence raise the issue that there was no intent to injure, a more serious question would be presented.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    BROUGHTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.)
    Indictment and Information (§ 161) — Amendment — Procedure.
    The date in an information based on a complaint charging accused with carrying a pistol is a matter of substance, and cannot be amended during the trial either by the court or the county attorney; the proper procedure, if the county attorney desires to change the date, being to move to quash the information and discharge the jury.
    [Ed. Note. — For other cases, see Indictment and Information, Gent. Dig. §§ 516-523; Dec. Dig. § 161.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Sam Broughton was convicted of carrying a pistol, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of carrying a pistol; his punishment being assessed at a fine of $100.

After the case had proceeded to trial, and the jury impaneled and sworn, the county attorney was reading the information to the jury, and he discovered the fact that there was a variance as to the time alleged in the information and that set forth in the complaint. The information charged the offense to have been committed in December, 1913; whereas, the complaint charged it in December, 1912. With the permission of the court the county attorney amended the information so as to make the date correspond with that in the complaint, to wit, December, 1912. This was all verbal. There was no motion entered, and no judgment entered of record, and no steps taken; but he requested the court’s permission to do so, and the court granted it. The court qualified the bill of exceptions by stating the defendant and his counsel did not object; in other words, they remained silent. The bill recites that the defendant did not consent, nor did his attorneys. The court says when the county attorney moved for -permission to amend the information he granted it. The court thereupon, without any objection being offered on the part of defendant or his attorney, granted the motion on the part of the state, and the county attorney thereupon proceeded to and did amend said information in accordance with the order of the court. Motion in arrest of judgment was made upon this ground, and these matters are all shown by bill of exceptions qualified, as stated, by the court. So far as we are aware, under all the authorities this was error. See Williams v. State, 34 Tex. Cr. R. 100, 29 S. W. 472; Wade v. State, 52 Tex. Cr. R. 619, 108 S. W. 677, for collation of Texas cases; Edwards v. State, 10 Tex. App. 25; Branch’s Crim. Law, § 894; White’s Ann. C. C. P. § 386. The date is a matter of substance and cannot be amended either by the court, or by the county attorney. If the county attorney, upon discovering his information, was at variance with the complaint, he should have taken the necessary steps to quash the information, and discharged the jury, and, if he purposed to use his original complaint, he-should have filed another information in accordance with the allegation of the complaint. We do not purpose to review these matters; they have been reviewed time and time again, and various cases cited.

This matter was such error as requires a reversal of the judgment, and it is, accordingly, so reversed, and the cause remanded.


text:
    WHITE v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Criminal Law (§ 1083*) — Appeal—Effect oir Transfer — Supplying Lost Records.
    Where a criminal case was tried in the-county court at the January term on an indictment substituted for the original indictment, which was lost, orders could not be entered at the August term after an appeal had been taken and the jurisdiction of the Court of Criminal Appeals had attached, substituting such indictment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. § 1083.*]
    2. Criminal Law (§ 1083*) — Appeal—Effect —Supplying or Restoring Lost Records.
    Pending an appeal, lost papers may be substituted, but only when they are lost subsequent to the trial of the case and after the attaching of the jurisdiction of the appellate court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. § 1083.*]
    3. Indictment and Information (§ 14*)— Loss of Indictment — Substitution—Supplying or Restoring Lost Records.
    Under Code Cr. Proc. 1911, art. 482, providing that, where an indictment has been lost, the district or county attorney may suggest that fact to the court and it shall be entered upon the-minutes of the court and another indictment máy be substituted upon the written statement of the district or county attorney that it is substantially the same as the one lost, where there was no written statement that the substituted indictment was substantially the same as that lost and no written request or pleading of any sort filed, the judgment would be reversed.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 77-82; Dec.. Dig. § 14.*]
    Appeal from Nacogdoches County Court t Geo. F. Ingraham, Judge.
    Charley White was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    V. E. Middlebrook, of Nacogdoches, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted-of violating the local option law; his punishment being assessed at a fine of $100 and-50 days’ imprisonment in the county jail.

Without going into a detailed statement, this record presents this question: When the case was called for trial there was no indictment; it was lost. The county attorney verbally asked permission of the court to substitute. This was granted by the court The county attorney wrote out an indictment which lie read to the jury. Objection was urged to all this, and it was insisted that the law be complied with, if substitution was to be had. This trial occurred January 31st. In August following the county attorney undertook to comply with the law by filing a written request and such other incidental matters as the law required as preliminary to substituting the indictment. This was not done, however, at the January term of the court. This, it will be recollected, was the county court. The conviction occurred in January, and notice of appeal was given. Court had adjourned and the jurisdiction of this court attached. There was no authority for entering orders at the August term of the court. All such proceedings were not authorized by our law.

Pending appeal lost papers may be substituted, but only when they are lost subsequent to the trial of the case after the attaching of the jurisdiction of this court. That statute has no reference to substituting lost informations and indictments under circumstances occurring in this trial.

The substitution of such pleadings must he had under article 482, Revised Code of Criminal Procedure. That article provides: “Where an indictment or information has been lost, mislaid, mutilated or obliterated, the district or county attorney may suggest the fact to the court; and the same shall be entered upon the minutes of the court; and, in such case, another indictment or information may be substituted, upon the written statement of the district or county attorney that it is substantially the same as that which has been lost, mislaid, mutilated or obliterated. Or another indictment may be presented, as in the first instance; and, in such case, the period for the commencement of the prosecution shall be dated from the time of making such entry.” So it will be seen that the county attorney did not undertake to comply with the terms of this law. There was no written statement by him that the document he proposed to substitute for the lost or mislaid indictment was substantially the same as that lost and no written request or pleadings of any sort filed at that term of. the court This matter has been gone into in quite a number of cases, so we deem it unnecessary to review them or go into any extended discussion of the matter. It is stated that the order of the court is indispensable to the substitution of a record or filed paper. Burrage v. State, 44 S. W. 169; Strong v. State, 18 Tex. App. 19; Rogers v. State, 11 Tex. App. 608. And the record must affirmatively show that the substitution was actually made. Turner v. State, 7 Tex. App. 596, and cases therein cited. See, also, Rogers and Strong Cases, supra. See, also, Graham v. State, 43 Tex. 550; Clampitt v. State, 3 Tex. App. 641; Carter v. State, 41 Tex. Cr. R. 608, 58 S. W. 80. Por a review of this matter, see, specially, Carter v. State, supra. This necessarily causes a reversal of this judgment. Branch’s Crim. Law, § 751.

The other questions in the case are not discussed. They may not arise upon another trial as they occurred upon this. They relate to questions of practice in regard to time allowed for filing bills of exception and statement of facts.

The judgment is reversed, and the cause is remanded.


text:
    THOMPSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    Criminal Law (§ 823) — Instructions—Conversion of Property.
    On a trial for embezzlement, after the court had charged that defendant’s agency, whereby he was charged with the duty of receiving the property in question, the-receipt of the property, its receipt by virtue of his agency, and the fraudulent conversion or misapplication of the property by him, were requisite to the offense of embezzlement, it further charged that, if accused was the agent of J., and came into possession of money, the property of J., as agent or attorney in fact, and if he did “fraudulently embezzle, misapply, or convert to his own use without the consent of the said J.” and if each of the four essential requisites previously set forth had been established beyond a reasonable doubt, to find him guilty of embezzlement. Held that, taking the charge in its entirety, the failure of the instruction last mentioned to state that accused must fraudulently embezzle, misapply, and convert to his own use the property in question could not have misled the jury.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1992-1995, 3158; Dec. Dig. § 823.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    William Thompson was convicted of embezzlement, and he appeals.
    Affirmed.
    Green & Boyd, 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. Series & Rep’r Indexes

   DAVIDSON, J.

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

The statement of facts adduced upon the trial is not before us, nor are any bills of exception incorporated in the record. The only complaint is to a section of the court’s charge, which is as follows: “Now, if you believe from the evidence, beyond a reasonable doubt, that Wm. Thompson was the agent or attorney in fact of Mary S. Jones, alias Mary E. Jones, a private person, and did, in the county of Harris and state of Texas, on or about the 8th current day of August, 1911, come into possession of $234, money of the'United States of America, the corporeal personal property of said Mary S. Jones, alias Mary E. Jones, as the agent or attorney, in fact of the said Mary S. Jones, alias Mary E. Jones, and that the defendant did fraudulently embezzle, misapply, or convert to his own use, without the consent of the said Mary S. Jones, alias Mary E. Jones, and you further believe that each of the four essential requisites of embezzlement as above set forth in this charge has been established by the testimony, beyond a reasonable doubt, then and in that event you will find the defendant guilty of embezzlement, and, if yon further believe, beyond a reasonable doubt, that the value of the property embezzled amounted to the sum of $50, then you will assess his punishment at confinement in the state penitentiary for any term of years not less than two nor more than ten.”

The contention of appellant is that this charge is defective, and fatally so, because it fails to state that appellant must fraudulently embezzle, misapply, and convert to his own use the said property. In other words, the charge fails to instruct the jury that it was necessary that the property be converted. Taking the section together in connection with the four requisites mentioned by the court in the quoted charge, it is sufficient. These as given in the charge are as follows: “Eour things are essentially requisite to constitute the offense of embezzlement: (1) The defendant’s agency whereby he was charged with the duty of receiving the property. (2) The receipt of the property. (3) Its receipt by virtue of his agency. (4) The fraudulent conversion or misapplication of the property by him.” Taking the charge in its entirety and in the form given by the court, we are of opinion that the jury could not have been misled by this omission.

Believing there is no reversible error in the record, the judgment is affirmed.


text:
    BISHOP v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Criminal Law (§ 377) — Evidence—Character — Particular Traits.
    In a prosecution for seduction under promise of marriage, defendant was not limited to proof of Ms character for morality and chastity, but was entitled to prove that his general reputation as a peaceable law-abiding citizen was good.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 836, 837, 840; Dec. Dig. § 377.]
    2. Criminal Law (§ 724) — Triai>-Prosecut-ing Officer — Misconduct.
    A prosecuting officer under no circumstances should resort to vituperative and abusive language in arguing a case to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1679; Dec. Dig. § 724.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Willie Bishop was convicted of seduction, and he appeals.
    Reversed and remanded.
    Callaway & Callaway, of Comanche, and J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

This is the third appeal in this ease, the opinions on the two former appeals being found reported in 151 S. W. 821, and 144 S. W. 278, and we deem it unnecessary to recite again the evidence, but merely refer to those opinions. In the first opinion the case was reversed on account of an error in the court’s charge on corroboration of an accomplice; on the second appeal the case was reversed on account of the district attorney referring to the former conviction of appellant, and the failure of the court to give a special charge requested by appellant in regard to letters introduced in evidence, and which were proven up only by the accomplice, it being held she could not corroborate herself. On this trial it seems the case must be reversed again.

The defendant, on the trial, tendered witnesses whom it is shown would have testified that they knew appellant; knew his reputation in the community where he resided, and that his reputation as a peaceable, law-abiding citizen was good. The state’s objection to -this testimony was sustained, and appellant reserved a proper bill of exceptions. The court, in approving the bill, states: “In explanation of the above bill, I desire to say the defendant not having gone on the stand, and the state in no way attacked his character in any respect, and being prohibited by law from so doing, the law making it a penal offense to seduce a woman under promise of marriage, I concluded that the particular trait of character involved the offense, to wit, morality or chastity would be as far as the defendant would be permitted to go in proof and that he could not in such a case prove his general reputation as being law-abiding and peaceable, and this view is sustained by the case of Jones v. State, 10 Tex. App. 558; Greenleaf on Evidence, 25; Underhill on Evidence (2d Ed.) § 77, pp. 137-139. With this explanation bill is approved and will be made a part of the record.” The authorities cited by the court we do not think sustain his ruling. Under the cases and authorities cited by him it is held that, wherever criminal intent is an issue in the ease, his general reputation as a law-abiding citizen is admissible, if the defendant desires to put his reputation in issue. A case of seduction proceeds upon the theory that by seductive wiles the man obtained the love of the woman, her trust and confidence, and he had entered into an engagement to marry her, leading her to believe that he intended to carry out the promise, yet in fact had no such intention, was not sincere in his promise, and used the blandishment, wiles, and promise but to accomplish her ruin; that this was his intention, and necessarily this would involve a criminal intent, and under all the authorities would render his general reputation as a law-abiding citizen admissible, if he desired to place it in issue. In Branch’s Criminal Law, the rule is said to be: “Defendant may prove his general good character when criminal intention is of the essence of the offense” — citing Poyner v. State, 48 S. W. 516; House v. State, 42 Tex. Cr. R. 128, 57 S. W. 825; Jones v. State, 10 Tex. App. 558; Coffee v. State, 1 Tex. App. 548; Lincecum v. State, 29 Tex. App. 332, 15 S. W. 818, 25 Am. St. Rep. 727; Lann v. State, 25 Tex. App. 497, 8 S. W. 650, 8 Am. St. Rep. 445; Lockhart v. State, 3 Tex. App. 569.

It is true that, in the section of Mr. Under-hill on Evidence cited by the court, it is held that in prosecutions for rape his general reputation as a law-abiding citizen is not admissible, but the inquiry should be restricted as to his reputation for chastity and morality, but this has never been the rule in this state. In the ease of Jones v. State, 10 Tex. App. 552, also cited by the court, this very question was involved, and this court held that, in prosecutions for rape, evidence of general reputation as a law-abiding citizen was admissible, and that the court erred in excluding such testimony. The decision in the Jones Case, supra, was followed in the case of Lincecum v. State, 29 Tex. App. 332, 15 S. W. 818, 25 Am. St. Rep. 727, and in all our decisions, and, wherever criminal intention is the essence of the offense, such evidence has always been held admissible. And, as we have said, the crime of seduction is based upon the theory that the defendant used the means and made the promise to accomplish the ruin of the girl, with no intention of fulfilling his promise of marriage. This character of evidence comes clearly within the rule.

Appellant’s bill as to the testimony of Miss Ethel Harrison, as qualified by the court, presents no error. The court stated the witness 'was unlettered and unable to understand and was a reluctant witness. Under such circumstances, questions leading in their nature may be propounded. Again, appellant groups a number of questions and answers, and makes a general objection to all of them. Some of the questions embraced were not leading, and this general exception would be insufficient to present any question for review. Ortiz v. State, 151 S. W. 1056.

Bills of exceptions Nos. 1 and 2 were reserved to the argument of the district attorney. As to the remarks actually made there is some confusion, the bills as offered not making it clear what lánguage was in fact used by the district attorney, but the court in approving the two bills says: “I withdrew from the jury all vituperation and abuse used in argument.” This would evidence that the district attorney was vituperative and abusive in his argument, and, as this case must be reversed on other grounds, we take occasion to say that under no circumstances is a prosecuting officer justified in resorting to vituperative and abusive language, and, if this practice is carried too far, we might feel called upon to reverse a case for that reason alone.

The two bills relating to the evidence of Lena Harrison and Mrs. Harrison, as qualified and explained by the court, present no error.

The judgment is reversed and the cause remanded.


text:
    CALHOUN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    Criminal Law (§ 1099) — Bill op Exceptions — Time oe Filins.
    Bill of exceptions and statement of facts filed by accused more than 20 days after the adjournment of the trial term cannot be considered by the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.] •
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    J. T..Calhoun was convicted of unlawfully injuring another’s fence, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

The appellant, under a proper complaint and information under article 1240, Pen. Code 1911, was charged with unlawfully breaking, pulling down, and injuring the fence of another without his consent. The jury found him guilty and assessed his punishment at the lowest fine.

The court at which he was tried adjourned July 5, 1913. The bills of exceptions and statement of facts found in the record were filed more than 20 days thereafter. The Assistant Attorney General objects to the consideration of these bills and statement of facts. Under the uniform holding of this court, neither can be considered by this court. It is unnecessary to collate the authorities. There are many and they are uniform, but see Durham v. State, 155 S. W. 222. There is no question raised that can be considered in the absence of a bill of exception and statement of facts.

The judgment is therefore affirmed.


text:
    DANIELS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Homicide (§ 310) — Assault to Murder— Issues.
    Where defendant shot prosecutor on their first meeting after being informed of prosecutor’s insulting remarks and misconduct toward defendant’s wife, so that if prosecutor had died the offense would have been manslaughter, it was error to omit to charge the elements of manslaughter as a predicate for conviction of aggravated assault, for which offense defendant might under the facts have been convicted.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    2. Homicide (§, 310) — Assault to Murder.
    Where accused shot prosecutor on their first meeting after being informed of the latter’s insulting remarks and misconduct toward accused’s wife., the court erred in failing to charge, as a criterion of assault to murder, that such offense was not committed unless malice was proved, so that had death resulted it would have been murder.
    [Ed. Note.- — Por other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. § 310.]
    3. Homicide (§ 7) — Decree oe Oeeense.
    A voluntary and intentional killing may be manslaughter or murder, according to the attendant circumstances, and to elevate the offense from manslaughter to murder, or from aggravated assault to intent to murder, there must be malice express or implied.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 12; Dec. Dig. § 7.]
    4. Criminal Law (§ 713) — Trial—Misconduct oe Attorney — District Attorney.
    In a prosecution for assault with intent to murder, the district attorney in his argument tp the jury stated that human life was too cheap in C. county, that there were too many men going around the country with human blood dripping from their fingers, and that the way to stop murder was to convict men who were guilty of attempt to murder. On objection, the court refused to instruct the jury not to consider such remarks, and the attorney proceeded by asking the reason why defendant shot prosecutor, and stated that it might have been because he was that type and character of a man that was walking around the. country with a loaded pistol in his grip looking for some good citizen like prosecutor to kill. An objection to this statement was overruled, and the attorney proceeded by stating that the reason why he asked certain questions concerning the jurors’ qualifications in their examination on voir dire was because he had tried the case in another county in which there was no defense, but the jury found defendant not guilty, that he considered the verdict an outrage and that he intended to remind every man accepted by him on the jury of his oath and obligations to return a verdict according to law and the evidence in cases of that character. Held, that the remarks were improper.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678; Dee. Dig. § 713.]
    5. Homicide (§ 166) — Evidence—Relevancy.
    In a prosecution for assault with intent to murder, alleged to have grown out of misconduct by prosecutor concerning defendant’s wife, evidence that a year prior to the difficulty defendant filed a suit for divorce was inadmissible.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    Appeal from District Court, Caldwell County; Prank S. Roberts, Judge.
    Wesley Daniels was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    E. B. Coopwood, of Lockhart, and N. H. Clark, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of assault with intent to murder John Dillard; his punishment being assessed at two years’ confinement in the penitentiary.

The shooting seems to have occurred about or had its origin in insulting remarks about appellant’s wife as well as conduct towards her. The difficulty occurred upon the first meeting after appellant was informed of such words and conduct. Without going into the immediate details of the difficulty, there is evidence on the part of the defendant showing that Dillard, in addition to matters above mentioned, acted in such manner as to provoke the difficulty or produce the occasion for it. This is denied by the state, however. Wherever evidence is pro and con on any given question arising on the facts of the case, it forms an issue which must be decided by the jury under appropriate instructions from the court as to the law governing such issue or issues. The court charged the jury upon the general definition of malice and murder in the second degree as a basis and predicate for conviction for assault to murder, but failed to charge the elements of manslaughter as a predicate for conviction of aggravated assault. Appellant excepted to the court’s charge and requested charges submitting the following questions of law to the jury: First, that as a criterion for a conviction for assault to murder, the killing, had it occurred, would have been murder; second, had a killing resulted under such circumstances as would have authorized the jury to convict of manslaughter, the conviction could have been no higher than aggravated assault, the difficulty not having resulted in a homicide. It is also urged that the court should have given a charge on manslaughter as a predicate for conviction for aggravated assault, if the jury had believed such to be the offense under the facts, and especially was this error in view of the fact that the court had charged upon murder in the second degree with its definitions.

The court did not give the law with reference to manslaughter, nor did he charge the jury as a criterion of assault to murder that it would be an assault to murder had the killing been upon malice, nor did he charge the jury that it would have been aggravated assault if the killing had occurred under circumstances that would reduce the killing to manslaughter. We are of opinion, under tlie facts of tMs case, these exceptions are well taken, and upon another trial the court should submit these issues. It is not every intentional killing that constitutes murder.

A voluntary and intentional killing may as well be manslaughter as murder. The grade of the homicide would depend,_ of course, upon the attendant circumstances. If the evidence brought it within the law of manslaughter, it would make no difference that he intended to kill; it still would be manslaughter, because manslaughter is voluntary and intentional killing. To elevate it from manslaughter to murder, or' from aggravated assault to intent to murder, there must be malice, either express or implied, shown. It would make no difference whether the malice was express or implied if it in fact existed to constitute assault with intent to murder. There are no grades in assault to murder as there formerly was in murder.

We are of opinion, if the facts developed by the defense upon another trial are as shown by this record, then appellant is entitled to the submission of the law of self-defense. The state denies this under its evidence, but the defendant’s testimony raises the issue. Wherever an issue is raised, though it may not be strongly raised, yet if the facts suggest that issue, and it is favorable to the defendant, it would be error on the part of the court to disregard it and not instruct the jury on that issue.

Appellant applied for a continuance. It is deemed unnecessary, under the view taken of the case, to discuss this question. Upon another trial the absent witnesses can be obtained.

Bills of exceptions were reserved to the argument of the prosecuting attorney. There are three of these bills. The first recites that in his closing argument the district attorney used the following language: “Gentlemen of the jury, human life is too cheap in Caldwell county. There are too many men going around the country with human blood dripping from their fingers. The way to stop murder is to convict men who are guilty of assault with intent to commit murder.” Exception was taken to this, and appellant requested the court to stop counsel and to instruct the jury not to consider said remarks, which the court, refused to do.

Another bill recites that while the district attorney was making his closing argument he used this language: “Gentlemen of the jury, Mr. Coopwood, the attorney for the defendant, asked you if the defendant did not shoot the assaulted party, Mr. Dillard, on accounts made about his wife, what did he shoot him for? I don’t know why he shot him. It may be he shot him because he is that type and character of man that is walking around the country with a loaded pistol in his grip, looking for some good citizen like John Dillard to kill.” The same objections, requests, etc., were made in this bill as in the former.

The third bill recites that while the prosecuting attorney was closing his remarks to the jury he said: “Gentlemen of the jury, the attorney for the defendant objected to my asking you certain questions when we were testing your qualifications as jurors in this case. The reason I asked you those questions was that I tried a case some time ago in Austin county wherein the defendant had absolutely no defense and in which the court did not submit self-defense in his charge to the jury; the jury were all sworn that they would render a verdict in that case upon the evidence and the law, but went out and in a few minutes returned a verdict of not guilty. I consider that verdict a great outrage, and I intend to remind every man accepted by me on a jury of his oath and obligations to return a verdict according to the law and evidence in cases of this character.” Again, the appellant excepted and asked the court to stop counsel and instruct the jury not to consider said remarks, and these objections were overruled as in the other bills, and the court refused to stop counsel or instruct the jury as requested. These remarks should not have been indulged. These matters have come before the court frequently, and in many cases reversals have been caused for such indiscretions. Prosecuting attorneys ought not jeopardize their cases by using such remarks and arguments. It is always error for the state’s counsel to place before the jury in argument a fact which he would not be entitled to prove, and the effect of which is damaging to the defendant. Jenkins v. State, 49 Tex. Cr. R. 461, 93 S. W. 726, 122 Am. St. Rep. 812; Rodriquez v. State, 125 S. W. 404; McKinley v. State, 52 Tex. Cr. R. 184, 106 S. W. 342; Askew v. State, 54 Tex. Cr. R. 416, 113 S. W. 287; Baughman v. State, 49 Tex. Cr. R. 34, 90 S. W. 166; Coleman v. State, 49 Tex. Cr. R. 86, 90 S. W. 499; Battles v. State, 53 Tex. Cr. R. 207, 109 S. W. 195; Turner v. State, 39 Tex. Cr. R. 329, 45 S. W. 1020; Pollard v. State, 33 Tex. Cr. R. 203, 26 S. W. 70; Branch’s Crim. Law, § 62, for collation of authorities; Johnson v. State, 148 S. W. 328; Brock v. State, 101 Ark. 147, 141 S. W. 757. We deem it unnecessary to comment further or to cite any more cases in regard to this matter. This argument was highly improper. Prosecuting officers should refrain from such remarks, especially such as set out in last bill.

Another bill recites that the state introduced a petition for divorce filed by the husband against the wife a year or such matter previous to the difficulty, in which it was alleged as a ground that she had been guilty of adultery. Various objections were urged, but the defendant was required to answer in the affirmative. The court qualifies this bill by stating that he permitted proof of the fact that the suit for divorce had been brought, but the witness was permitted to answer the question only that he had filed the suit against his wife for divorce. As qualified by the judge this testimony was inadmissible. The state could not prove that he had brought suit for divorce against his wife. This was not a relative or pertinent fact standing by itself.

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


text:
    EDWARDS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.
    Rehearing Denied Nov. 19, 1913.)
    1. Peejuey (§ 32) — Evidence—Petition in Divorce Suit.
    In a prosecution for perjury committed in a divorce suit by the plaintiff therein, the petition in the divorce suit was properly admitted in evidence.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    2. Witnesses (§ 52) — Competency — Husband and Wife.
    In a prosecution for perjury committed in a divorce suit by the plaintiff therein, by his testimony that his wife was afflicted with a natural and incurable impotency, it was not error to admit evidence of an examination of the wife’s person over an objection that this would permit the wife to testify against her husband.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§, 124, 126-136, 165, 415-417, 419, 424; Dec. Dig. § 52.]
    3. Criminal Law (§ 863) — Additional Instructions — Practice .
    Where the jury, after retiring in an adultery case, returned, and propounded a question to the court, it was not error for the court to give no additional instructions, but to tell the jury to look to the charge as given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2065-2067; Dec. Dig. § 863.]
    4. Criminal Law (§ 1090) — Appeal — Bill oe Exceptions — Necessity.
    The refusal of the trial court to appoint a commission of physicians to make a physical examination will not be reviewed on appeal in a criminal case in the absence of a bill of exceptions thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §•§ 2653, 2789, 2808-2822, 2S25-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§, 687) — Motion por Examination of Wife’s Person — Time for Making — Waiver.
    Where, in a prosecution for perjury committed in a divorce suit by the plaintiff therein, in his testimony that his wife was afflicted with a natural and incurable impotency, accused failed to move for the appointment of a commission of physicians to make an examination until after he had closed his evidence, such motion, being then too late, was properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §■§ 1621, 1622, 1625; Dec. Dig. § 687.]
    Appeal from District Court, Throckmor-ton County; Jno. B. Thomas, judge.
    T- J. Edwards was convicted of perjury, and appeals.
    Affirmed.
    R. B. Humphrey and B. F. Reynolds, both of Throckmorton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

The evidence would show that on the 11th day of March, 1911, appellant married one Effie May Williams, and lived with her as his wife for three months and three days, when he took her to her father’s, and abandoned her; thereafter, on the 7th day of October, 1912, he brought suit for divorce, alleging that his wife was afflicted with a natural and incurable impotency of the body, in that her sexual organs were not natural, setting out in detail the way she was afflicted. The divorce suit was tried, and appellant was sworn, and testified to the allegations in the petition; the truth or falsity of such statements being the issue in that case. His wife answered the suit, and appellant was indicted for perjury; the indictment alleging in detail the alleged false statements. The appellant testified on this trial, and admitted he had so testified in the suit for divorce, contending that it was the truth, and that he did so testify was amply proven. So it might be said that on the trial for perjury the real contested issue was, Was Mrs. Edwards afflicted as alleged? Much testimony pro and con on this issue was submitted; the court fairly submitted it to the jury, and the contention that' the testimony will not support the verdict cannot be sustained.

The first contention is that the court erred in admitting the petition filed by appellant in the divorce suit in evidence. Appellant admits in his brief that this assignment should not be sustained, and it is unnecessary to discuss it. See Davidson v. State, 22 Tex. App. 372, 3 S. W. 662; Washington v. State, 23 Tex. App. 336, 5 S. W. 119; Maines v. State, 23 Tex. App. 568, 5 S. W. 123.

The defendant had testified to a natural impotency of the body. The evidence, both in behalf of the state and defendant, embraced the time from the birth of Mrs. Effie May Edwards until the date of this trial. Consequently there was no error in admitting the testimony of the father, and mother, and Dr. L. H. Hardy. The doctor examined Mrs. Edwards after the separation,

and just before the trial of the divorce suit, and said she was a natural woman, and had no- such growth or defects as testified to by appellant. The contention that, because Mrs. Edwards was appellant’s wife, the doctor and her mother would not be permitted to testify as to her condition in the respects named — that this would be permitting the wife to testify against the husband — cannot be sustained. It is true that Mrs. Edwards could not and was not permitted to testify; the law closed her mouth. Then to further hold that she was not permitted to submit her person to examination, and the persons making the examination not permitted to testify, would be monstrous. Appellant •could testify to any falsehood he might desire, and the falsity of it never shown, if such were the rule. The doctor and the mother merely testified to the condition of the sexual organ of Mrs. Edwards from an examination of her person, and this was not permitting his wife to testify. The fact that they were persons of her own choosing might go to the weight to be given their testimony, but not to its admissibility.

The jury, after retiring, returned into court, and propounded a question to the court. The court gave no additional instructions, hut instructed the jury to look to the charge of the court as theretofore given them. In this the court did not err, for, if there was error in the charge, either of omission or commission, the proper practice would be to complain of the charge in that respect. However, we might say there was no error either of commission or omission in the charge, but it was a fair and full presentation of every issue in the case.

It appears that appellant appeared and announced ready for trial; the state introduced its testimony, and the appellant his testimony when the state replied in rebuttal. Both sides announced they would close, when court adjourned until next morning. Upon the convening of court next morning, appellant filed a written request that Mrs. Edwards be compelled to submit her person to a commission of five physicians; he naming them, three of them residing at towns other than the county site. The court overruled the application; but no bill of exceptions was reserved to the action of the court, at least none appears in the record before us; consequently this questions is not presented in a way we would be authorized to review it. Gaston v. State, 11 Tex. App. 143. However, if a bill of exceptions had been reserved, we do not think the action of the court in overruling the application would present error. In overruling the motion, the court entered the following order: “On this day came on to be heard the motion of defendant in this cause for leave to withdraw his announcement that he had closed his evidence in this ease, and have a commission of physicians appointed to examine the private female organs of Effie May Edwards, and, it appearing to the court that this case has been pending in this court, and defendant having been under bond to answer same for six months, and it appearing to the court that on May 13, 1913, defendant announced ready for trial, and it further appearing that both the state and defendant at the hour for evening adjournment on May 13, 1913, both announced that they were through with the evidence, and announced to the court that the evidence was closed for both, and this being the first time this matter has ever been called to the attention of the court or any such request made, this being the morning of the 14th day of May, 1913, the hour set for the argument in the case, and for these reasons, said motion is overruled, to which defendant excepts.”

The record discloses that the divorce case was tried at the preceding term of court (when appellant was indicted); that Dr. Hardy and Mrs. Williams both testified on the trial of the divorce suit; and appellant consequently knew what their testimony would be on this trial, which occurred six months later, yet, with a knowledge of these facts, he announces ready, proceeds with the trial, and makes no motion in regard to this matter until the testimony had closed. If in his application he had claimed he was surprised by the testimony offered by the state, there might be merit in appellant’s contention. But, of course, he did and could not make that contention, for he had heard this testimony adduced on the trial of the divorce suit, six months prior to this trial, and, if he desired a commission appointed, he should have made this application before announcing ready for trial. It came too late after the close of the testimony. The court could not be expected to suspend, while it sent to distant points for physicians to make the examination, keep a jury locked up, and thus delay the court in the transaction of its business. Such motions must be timely made; otherwise we will not review the action of the court in overruling them.

The judgment is affirmed.


text:
    FITZHUGH v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    Criminal Daw (§ 1114) —Appeal — Questions Presented for Review-Limitation by Scope oe Record.
    Where the only ground assigned in the motion for a new trial of a criminal case is that the verdict is contrary to the law and the evidence, and there is neither a statement of facts nor bills of exception in the record, no question is presented for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig'. § 1114.]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    Ed. E. Fitzhugh, Jr., was convicted of swindling in an amount less than $50, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of swindling, in an amount less than $50, a misdemeanor.

There is neither a statement of facts nor bills of exception in the record. The only ground assigned in the motion for a new trial is, “because the verdict is contrary to the law and the evidence.” In the absence of a statement of facts there is nothing presented for review.

The judgment is affirmed.


text:
    VEHERANA v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.)
    1. Criminal Law (§ 995) — Judgment and Sentences — Showing Conviction.
    In view of the verdict of guilty, as charged, copied in the judgment, and the indictment properly charging the engaging in and pursuit of the business of selling intoxicating liquors after the prohibition law was properly and legally put in force, held, the judgment and sentence, when taken together, were not insufficient, as not showing that defendant had been convicted of any offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2521, 2523-2526, 2528½, 2530, 2536-2543; Dec. Dig. §, 995.]
    2. Criminal Law (§ 1184) — Appeal — Correcting Judgment and Sentence.
    Even if the judgment and sentence be insufficient, as not showing defendant had been convicted of any crime, the court on appeal should, under the power given by Code Or. Proc. 1911, art. 938, to reform and correct the judgment, enter the proper judgment and sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.]
    3. Criminal Law (§ 1159) — Appeai^-Review oe Verdict.
    The testimony for the state, if believed, being sufficient to sustain the conviction, the verdict cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    Appeal from District Court, Reeves County; S. J. Isaacks, Judge.
    Thomas Veherana was convicted, and appeals.
    Affirmed.
    Ben Palmer, of Pecos, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for unlawfully engaging in and pursuing the business of selling intoxicating liquors in Reeves county, after prohibition had been legally put in force therein, and his punishment fixed at the lowest — two years in the penitentiary.

Appellant makes but two questions by his brief. The first is, he claims the evidence is insufficient to sustain the verdict. The next is, he claims the judgment and sentence are void because neither shows that the defendant has been convicted of any offense.

The verdict of the jury found the defendant guilty as charged in the indictment. The judgment copies the verdict and then adjudges appellant guilty of engaging in the business of selling intoxicating liquors as found by the jury. The indictment correctly followed the statute and charged that appellant unlawfully engaged in and pursued the occupation and business of selling intoxicating liquor in Reeves county after the prohibition law, prohibiting the sale of such liquor in said county, was properly and legally put in force. The sentence, among other things, states that appellant was brought into open court for the purpose of pronouncing sentence against him in accordance with the verdict and judgment theretofore rendered, and then proceeds to order that, as the defendant had been adjudged to be guilty of engaging in the business of selling intoxicating liquors and his punishment assessed at two years’ confinement in the penitentiary, he be immediately delivered by the sheriff to the superintendent of the penitentiary and confined therein for the period of two years in accordance with the provisions of law. Taken altogether the judgment and sentence are sufficient. Even if they were not, this.court, under the law, would have the power and authority, and it would be its duty, to enter here and now the proper judgment and sentence. Article 938, C. C. P.

The testimony of the state, if believed by the jury, which was evidently done in this case, was amply sufficient to sustain the conviction. The appellant’s contention and his testimony was sufficient, if believed, for the jury to have found that he did not make the sales, but that he purchased, as the agent only from third parties, intoxicating liquor which he delivered to the alleged purchaser. This question was pointedly submitted by the court'in his favor, and the jury were told that if he did not sell the liquor to the alleged purchaser, but that he acted as her agent in purchasing from third parties and delivering to her, that they would find him not guilty. No complaint is made of the charge of the court in submitting this question to the jury. The jury found against appellant, and their finding is supported by the evidence, and we are not authorized to disturb the verdict.

There is nothing else requiring discussion.

The judgment will be affirmed.