text:
    REED v. STATE.
    (No. 3938.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.
    Rehearing Denied March 15, 1916.)
    1. Criminal Law <⅜^594(3) — Trial — Continuance — Absence oe Witnesses.
    Continuance of trial on a charge of perjury cannot be granted on the ground of absence of a witness who is a fugitive from justice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1332; Dee. Dig. <®=>594(3).]

      2. Criminal Law <©=594(1) — Trial — Continuance-Absence oe Witnesses — Ese ox Testimony.
    Continuance of trial on a charge of perjury cannot he granted where the testimony of the absent witness, given on a former trial, is admitted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. <S=>594(1).]
    3. Witnesses ©=>340(3) — Impeachment-^Admissibility ox Testimony.
    Where it is in issue whether a witness is of chaste- character, and she had testified that she was, testimony of lascivious acts on her part is admissible as impeachment.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1121; Dec. Dig. <©=>340(3).]
    4. Criminal Law <©=>1111(3) — Bill ox Exceptions — Conclusions.
    One who accepts a bill of exceptions with the judge’s qualification cannot be heard to dispute the truth of the qualification.
    LEd. Note. — Eor other cases, see Criminal Law, Dec. Dig. <©=>1111(3).]
    5. Criminal Law <©=>608 — Trial—Continuance — Absent Witnesses — Character ox Testimony.
    Where the evidence introduced showed that an absent witness would not, if present, testify as claimed by defendant, or that she was not in a position to have seen the acts as to which defendant alleged she would testify, refusal of a continuance was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. <©=>608.]
    6. Criminal Law <©=>614(2) — Trial — Continuance — Absent Witnesses — Second Motion.
    A second motion for continuance will not be granted, where the absent witness’ testimony will be merely cumulative.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. <©=> 614(2).]
    7. Criminal Law <©=>448 — Opinion Evidence-Statement ox Fact.
    Testimony of physicians that they had examined a witness alleged to be of unchaste character, and that she had never had intercourse with a man, giving the facts as to her physical condition, is not opinion evidence, but a statement of fact known by them to be true because of their medical knowledge.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. ©=>448.]
    8. Perjury ©=>34(4) — Evidence—Corroboration — Sufficiency.
    Where accused was charged with having falsely sworn that he had had sexual intercourse with a woman, who denied it, and physicians, after examination, stated facts from which they concluded that she had never had sexual intercourse with any man, there was sufficient corroboration of the woman to support a conviction for perjury under Code Cr. Proc. 1911, art. 806, permitting conviction for perjury only on testimony of two credible witnesses or one credible witness strongly corroborated.
    [Ed. Note. — For other eases, see Perjury, Cent. Dig. §§ 129, 132; Dec. Dig. ©=>34(4).]
    9. Criminal Law ©=>815(1) — Evidence—Instructions.
    Where further corroborative testimony was offered, refusal of an instruction, that the physicians’ testimony alone was insufficient corroboration, was not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1986; Dee. Dig. <©=>815(1).]
    10. Witnesses <©=>360 — Impeachment — Rebuttal.
    _ Where defendant, charged with perjury in having falsely sworn that he had had sexual intercourse with a woman, defended on thel ground that his statement was true, evidence as to her reputation for chastity and virtue was admissible.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1165, 1166; Dec. Dig. ©=>360.]
    11. Perjury <©=>37(1) — Elements —Voluntary Testimony.
    One accused of perjury is not entitled to a charge that he could not be convicted unless he testified voluntarily, where he, without subpoena, came into the county, and his only objection was to ask the court whether he had to answer whether he had had intercourse with the prosecutrix.
    [Ed. Note. — Eor other cases, see Perjury, Cent. Dig. § 134; Dec. Dig. <©=>37(1).]
    12. Criminal Law ©=>396(2) — Evidence— Affidavits — Admissibility.
    Where a portion of an affidavit was admitted only for the purpose of identifying it, after the state had been forced to introduce it, the defendant was not entitled to introduce the whole of it; the remainder being immaterial.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 862; Dec. Dig. ©=>396(2).]
    13. Criminal Law <©=>656(2) — Procedure— Examination ox Witness by Court.
    Qualifications of bill of exceptions to examination of witness by the court in the absence of the jury held to show no error in the examination, where defendant had alleged that it was calculated to intimidate the witness.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1525; Dec. Dig. ©=>656(2).]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Pleas Reed was convicted of perjury, and he appeals.
    Affirmed.
    J. M. Wagstaff and S. P. Hardwicke, both of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

This is the second appeal in this case, the opinion on the former appeal being reported in 174 S. W. 1065. As the facts are so fully stated in that case, and in the companion cases of Cutbirth v. State, 174 S. W. 1066, and Cox v. State, 174 S. W. 1067, we do not deem it necessary to state them again.

Appellant again moved to quash the indictment. A copy of the indictment is set forth in the Cox Case, supra, and on the former appeal we held the indictment valid in all three cases, and we do not deem it necessary to again discuss that feature of the case. Anderson v. State, 56 Tex. Cr. R. 361, 120 S. W. 462; Jernigan v. State, 43 Tex. Cr. R. 114, 63 S. W. 560; Washington v. State, 22 Tex. App. 27, 3 S. W. 228; Chavarria v. State, 63 S. W. 313; Yardley v. State, 55 Tex. Cr. R. 487, 117 S. W. 146.

When the case was called for trial, appellant moved to continue the case on account of the absence of two witnesses, Ed Carter and Mrs. Ruth Aired. As to the witness Carter, the record discloses he was a fugitive from justice, and, of course, there was no error in overruling the motion as to him. Godwin v. State, 44 Tex. Cr. R. 600, 73 S. W. 804; Anderson v. State, 53 Tex. Cr. R. 344, 110 S. W. 54; Deckard v. State, 58 Tex. Cr. R. 34, 124 S. W. 673; Harris v. State, 8 Tex. App. 90; Vann v. State, 48 Tex. Cr. R. 11, 85 S. W. 1064. In addition, the witness Carter had testified on the former trial of this case, and appellant was permitted to introduce his testimony given at that trial on this trial. As to the witness Mrs. Aired, it may be said that the diligence is sufficient, and it appears that she was expecting to be shortly confined. So the sole question is: Was the testimony of such a material nature as the court should have granted the continuance? In the motion it is stated that the witness would testify that she was at a party at the house of Emmett Taylor, and “game of good night” was played at said party; that the prosecuting witness, Miss Simpson, and Ernest Cox were partners while playing the game, and that Miss Simpson conducted herself in a lewd and lascivious manner; that Cox embraced her, and she lovingly laid her head on Cox’s shoulder. Miss Simpson denied any such conduct, and denied that Cox was her partner in the game. So the testimony would be. admissible to impeach Miss Simpson. Again, it was an issue in the case as to whether Miss Simpson was a virtuous and chaste female, and the testimony would be admissible as original, testimony on that issue, as well as for impeaching purposes. Appellant contends that this was his first application for a continuance, but the court in approving the bill states it was the second application, and the court gives this as the ground for overruling the application when first presented. Appellant accepts the bill with this qualification, and he cannot be heard to dispute that fact. Again when the matter was presented to the court again in the application for a new trial, the court calls attention to the fact that the defendant’s witnesses Emmett Taylor and Eugene Gist place Mrs. Aired in such position that she could not have seen Ernest Gox and Miss Simpson while playing the game of good night. Mr. Gist says he was the partner of Mrs. Aired while playing that game, and he testifies to no such facts as it is alleged Mrs. Aired woul'd testify to. The appellant’s witness Emmett Taylor testified on the trial:

“In going around the house that night, Ernest Cox and Miss Minnie Simpson were the last couple to come around. When they came around the house, I was squatting down at the west end of the house at the end of the kitchen. I saw Ernest Cox and Miss Minnie Simpson come around the house. They were talking. I did not hear what they said. Mr. Ernest Cox had his arm around Miss Minnie Simpson, and she was leaning her head against his shoulder, and they were walking very slow.”

He testifies he was the only person in position to see them, but that he afterwards told Mrs. Aired what he saw. It is thus seen that the testimony adduced by defendant on the trial shows that if Mrs. Aired was present she would not testify as contended, but her information as to the conduct of Miss Simpson on that occasion was received from Emmett Taylor, and the record discloses that Emmett Taylor was present and testified at the instance of appellant, and as stated in Branch’s Crim. Law, § 253, in passing on supposed error in refusing continuance, the court will look to evidence adduced on the trial. Willison v. State, 7 Tex. App. 400; Clampitt v. State, 9 Tex. App. 31; Dowdy v. State, 9 Tex. App. 292; Bronson v. State, 59 Tex. Cr. R. 17, 127 S. W. 175. And where it appears from the evidence on the trial that the absent witness could not have known anything about the facts which it is alleged that she would testify to, it was held that the application was properly overruled. Lindsey v. State, 35 Tex. Cr. R. 164, 32 S. W. 768; Boyd v. State, 50 Tex. Cr. R. 139, 94 S. W. 1053; Wigfall v. State, 57 Tex. Cr. R. 639, 124 S. W. 649. Appellant’s witnesses Eugene Gist, who was Mrs. Alred’s partner in the game of good night, and Emmett Taylor, place Mrs. Aired in such position that she could not have seen what took place while Ernest Cox and Miss Simpson were playing this game, if they in fact were partners on that occasion. And, according to the court’s qualification, this was a second application for a continuance, and if Mrs. Aired would testify as alleged, such testimony would be but cumulative of the testimony of Emmett Taylor, and it has always been the rule in this court that a second application for a continuance will not be granted to secure testimony that is merely cumulative of testimony adduced on the trial. Harvey v. State, 35 Tex. Cr. R. 559, 34 S. W. 623; Shackelford v. State, 53 S. W. 884; Grimsinger v. State, 44 Tex. Cr. R. 1, 69 S. W. 583; Dobbs v. State, 54 Tex. Cr. R. 583, 113 S. W. 921; Bearden v. State, 47 Tex. Cr. R. 276, 83 S. W. 808.

It appears on the trial of this case that one Henry Ethridge was prosecuted for slander, in that he had said of and concerning Miss Simpson that “she was nothing but a damned whore.” On that trial appellant testified as a witness, and testified he himself had had carnal knowledge of Miss Simpson. On that statement this prosecution is based. Dr. Alexander and three other physicians testify to having made an examination of Miss Simpson, and from that examination they testify that Miss Simpson had never had carnal intercourse with any man. Appellant objected to this testimony, claiming that it was but the opinion of the witnesses. The witnesses testify fully as to the examination, the condition they found her private parts, and gave the facts as to why they say she was a virgin. Such testimony is not an opinion, but a statement of a fact they know to be true from their medical knowledge. Appellant says that, if the testimony was admissible, then the court ought to have instructed the jury as requested by him:

“You are instructed that the corroboration required by law requires the proof of facts, and the mere opinion of medical experts alone is not such corroboration in law as will authorize you to find the testimony of Miss Simpson sufliciently corroborated.”

Article 806 of the Code of Criminal Procedure 1911, provides that in trials for perjury no person shall be convicted except upon the testimony of two credible witnesses, or of one credible witness corroborated strongly by other evidence as to the falsity of the defendant’s statement.

Appellant had testified, on the trial of Henry Ethridge for slandering Miss Simpson, that he (appellant) “had had carnal intercourse with the said Minnie Simpson at a bridge west of Potosí” Miss Simpson testified on this trial that that statement was not true. That is one witness as to the falsity of the statement. Now, is she strongly corroborated? Pour doctors testify to examining her, and they and each of them swear positively that Miss Simpson had never had intercourse with any man. If that is not strong corroboration of her testimony, we do not understand how her testimony could be corroborated when appellant places himself and Miss Simpson alone at the bridge. The court, at the request of appellant, instructed the jury:

“Before you can convict the defendant, you must believe beyond a reasonable doubt that Miss Minnie Simpson is a credible witness, and, if you have a reasonable doubt as to whether or not she is a credible witness, you will acquit the defendant.”

And in the main charge had instructed the jury they could not convict appellant unless the falsity of the statement had been established by the testimony of one credible witness strongly corroborated. In addition to this, the fact that Miss Simpson’s reputation for truth and veracity was good was sworn to by a dozen or more witnesses, and that her reputation for virtue and chastity was good was sworn to by some twenty or more ladies and gentlemen residing in the community where she lived. So it is seen the state did not rely on the medical men alone to establish that she was a credible witness, or to corroborate her testimony, and under no phase of the case was the above special charge requested by appellant called for, and there was no error in refusing to give it.

However, appellant insists in another bill that the court was in error in permitting witnesses to testify that the reputation of Miss Minnie Simpson for virtue and chastity was good. Appellant called a number of witnesses who testified to facts, if true, which would have a tendency to show that Miss Simpson was not a virtuous and chaste woman. In fact, his defense was predicated upon the theory that what he swore to in the Ethridge trial was true, and he introduced witnesses to prove that Miss Simpson was the character of woman who would likely engage in such acts. Whether or not she was a virtuous girl was an issue in the case, and put into the case by the testimony offered by appellant, and it was in rebuttal of this testimony that the court permitted the state to introduce witnesses who testified that Miss Simpson’s reputation for virtue and chastity was good. In this case appellant by his testimony had attempted to prove that Miss Simpson was a woman of lewd and lascivious character, and, having done so, he cannot be heard to object to testimony tending to show that she was not that character of woman. This question was discussed by Judge White in Wilson v. State, 17 Tex. App. 583, and he there held that, when the defendant by his testimony had attacked the reputation of a woman for virtue and chastity, then the state in rebuttal could prove her reputation for virtue was good. Anri it has always been the rule in this court when the defendant by his testimony injects any issue in the case, material to the case on trial, the state can meet that proof by appropriate testimony. We discussed that question at length in Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 974, and cited the authorities in this and other states.

Appellant requested the court to instruct the jury that, before they could convict the defendant, the state must show that he voluntarily and willfully testified in the county court, in the case of Henry Ethridge, and, if they find that he was compelled to do so over his protest, defendant should be acquitted. The bill shows that the court approves it with the following qualification:

“Refused, because the uncontroverted evidence shows that, without having been subpoenaed, the defendant voluntarily came from his home in Callahan county to testify in the trial and behalf of Henry Ethridge in the county court of Taylor county, and did testify voluntarily without' process, and that it was only when he was asked, while on the stand, whether he had intercourse with Minnie Simpson, that he asked the court if he would be required to answer that question, and the court said, ‘Yes,’ whereupon defendant testified without further protest.”

As thus qualified, the court did not err in his ruling. The record discloses that appellant lived in Callahan county, and without being summoned voluntarily went to Taylor county as a witness and testified without having been served with any process requiring him to do so.

It is made to appear by the record that Sid Richardson, ás a witness for appellant, had given testimony damaging to the reputation of Miss Simpson for virtue and chastity. On cross-examination he was asked if he had not gone to the home of Miss Simpson’s brother and told him about making this affidavit, and that it was untrue, and that he was going to get the affidavit back. After such examination, so much of the affidavit was introduced in evidence as related to the matter about which he was cross-examined, when appellant desired to introduce the remainder of the affidavit, which related to a different matter. The court declined to permit the remainder of the affidavit to be introduced in evidence, his reasons for so doing he stated at the time being as follows:

“Mr. Stenographer, you will note that the state did not offer the affidavit until. counsel for the defense forced them to offer it in order to identify the affidavit concerning which the witness was talking to Miss Simpson on the night in question, when he stated that he would try to get the affidavit back, and the court sustained the defendant’s objection that the state would first have to show what affidavit was referred to; in other words, that the affidavit referred to showed the language which was then under investigation, to wit, that of going to the circus at Abilene, and it was only for the purpose of identification, and only for the purpose of showing that this particular affidavit was the one referred to, that the court permitted it to be introduced, and the part attempted to be offered by the defense now is not germane to any matter that was brought out in connection with the affidavit, or by any witness concerning the affidavit, and it would be — the court holds that this witness Richardson is here, and the court will permit counsel to interrogate him on this point if they wanted to. If they want to ask this witness any questions concerning Miss Minnie Simpson’s general reputation for •chastity and virtue, why the court will permit them to ask Richardson those questions if they so desire.”

The remainder of the bill relates to •questions propounded by the court to the witness Sid Richardson. Before asking the questions, the court had the jury retire, and the jury heard none of the questions and no .answer of the witness. After said questions had been propounded, appellant objected to the proceedings on the ground that it was calculated to intimidate the witness, as the questions were such as to lead the witness to believe that a prosecution for perjury might •be expected. The court states:

“The court understood from the state that they had finished their cross-examination with one exception, and that was to lay a predicate, and the state asked for time in which to go out .and speak to a witness before they laid that predicate. I understood that the examination was over. That is what he said, and during the recess, while the state’s attorney was out ■questioning the witness, the court took a recess and sent the jury out, and then made the examination that the record shows, and during none •of which the counsel raised any objection what•ever, and the court wants the bill to show that the jury was out and heard nothing of it, and that none of the questions which the court has asked the witness, the court will-not let the .state ask them. The court will not let the state .ask any question that the court has asked.”

As qualified, the bill presents no error.

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

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


source: Caselaw Access Project

author: PRENDERGAST, P. J. DAYIDSON, J.

license: Public Domain

text:
    ORNER v. STATE.
    (No. 3674.)
    (Court of Criminal Appeals of Texas.
    Jan. 5, 1916.
    Rehearing Denied Feb. 2, 1916.
    Dissenting Opinion March 6, 1916.)
    1. Criminal Law <&wkey;1158 — Motion for New Triai>-Reading oe Original Indictment.
    On an amended motion for a new trial on the ground that the certified copy of the indictment was read to the jury instead of the original indictment, evidence held to justify the trial judge’s belief, on denying the motion, that the original indictment had been read to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3061-3066, 3070, 3071, 3074; Dee. Dig. &wkey;ll§8.]
    2. Criminal Law <&wkey;683(2) — Trial — Reading Original Indictment to Jury — Waiver.
    Where a certified copy of an indictment was read to the jury in the presence of, and with the knowledge of, defendant and her counsel without objection, until after the trial and in an amended motion for a new trial,, such inaction was a waiver of the reading of-the original indictment, expressly authorized by Code Cr. Proc. 1911, art. 22.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1454; Dec. Dig. <&wkey;j633(2).]
    3. Criminal Law <&wkey;859 — Trial—Additional Instruction to Jury — Written Testimony.
    Under Code Cr. Proe. 1911, art. 755, providing that, if the jury disagree as to statement of any particular witness, they may, upon applying to the court, have such witness again put upon the stand and directed to testify as to the particular point of disagreement, the court, where each side introduced the written testimony of different witnesses at the former trials, and where the jury returned in open court and stated that they did not remember the names of those witnesses and wanted their testimony read, and especially asked as to the testimony of one named witness at a former trial, the court properly permitted the testimony of such witness to be read to the jury; their question showing a disagreement as to it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1600, 2064; Dee. Dig. <&wkey;> 859.]
    4. Homicide <&wkey;169 — Evidence—Knowledge of Poisons.
    In a trial for the poisoning of defendant’s daughter by arsenic, where it appeared that defendant had killed her husband by poisoning him with arsenic about 19 months before, that at the time of her husband’s death she was suspected of having poisoned him, that while a post mortem examination of his remains was'made, yet no chemical analysis w'as made of the organs to ascertain what poison if any had been administered to him, that the daughter repeatedly told defendant that she knew that she had killed her father, and that defendant knew that she knew it, whereupon defendant would tell her not to talk too much, evidence that after the death of her husband and before the death of her daughter defendant told the witness that she knew-of the poison which, when administered, could not be detected by a physician, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. &wkey;»169.]
    5. Criminal Law <&wkey;1170½ — Review — Harmless Error — Evidence.
    In such trial, the district attorney’s cross-examination of defendant by asking her if she was ever at a certain place in another state, and upon. her affirmative reply asking her if she knew a man there of a certain name, and on reply that she did not, asking her whether she had gone there with a view to marrying him, which she denied, by asking her if she remembered when she was tried in the county court for insanity, to which she replied affirmatively ; by asking her if that was before a certain named child died, to which she replied she did not know; and, after her testimony on direct that deceased was the only child she_ had and that she was devoted to her; by eliciting her testimony that she had had two other children, one of whom died in infancy of summer complaint, and by asking her how many children she had, and, after she had replied three, by asking her when the two died, and eliciting the answer that the first lived to be 9 months old and died of pneumonia, while improper as to some of the questions asked, was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129 — 3135; Dec. Dig. irroy2.]
    6. Criminal Law <©=31169 — Harmless Error —Evidence Admissible in Part.
    Where objectionable questions are answered and the court then withdraws the matter from the jury and instructs them not to consider it, no reversible error is presented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dee. Dig. <§=»1169.]
    7. Homicide <&wkey;166 — Evidence—Motive.
    In the trial of defendant for poisoning her daughter, evidence that the child after the death of her father under suspicion of having been poisoned by defendant would say to defendant that she knew she had killed her father, and that defendant knew that she knew it, was admissible as tending to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. <&wkey;166.]
    8. Homicide <&wkey;108 — Evidence—Relevancy —Motive.
    In a trial of defendant for the murder of her daughter by poisoning with arsenic about 19 months after defendant had poisoned her husband with arsenic, where it appeared that the daughter had repeatedly accused defendant of the murder of her father, testimony of a physician attending the father shortly before he died that he suspected that he had been poisoned and made a post mortem examination, but no chemical analysis of the organs, without which arsenic poison could not be detected, and that after exhumation the organs were chemically examined and found to contain arsenic sufficient to produce death, was admissible to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. &wkey;166.]
    9. Criminal Law <&wkey;>1093 — Appeal—Exceptions — Scope.
    A bill of exceptions including a number of statements objected to, some of which are clearly admissible, not directly pointing out the supposed objectionable parts thereof, presents no error.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dee. Dig. &wkey;1093.]
    10. Homicide &wkey;>287 — Evidence — Instructions.
    In a trial for the murder of defendant’s daughter by poisoning, an instruction that all the evidence introduced with reference to the defendant’s previous poisoning of her husband, if considered at all, could be considered only for the purpose of showing motive, if any, for the killing of the daughter, properly presented the issue raised by the evidence and. protected defendant in the consideration of the case by the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §.592; Dec. Dig. &wkey;>287.]
    Davidson, J., dissenting.
    Appeal from District Court, El Paso County ; Dan M. Jackson, Judge.
    Agnes Orner was convicted of murder, and she appeals.
    Affirmed.
    Moore & Harris, Chas. Owen, and T. A. Falvey, all of El Paso, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the murder of her own daughter by poison, and her punishment assessed at life imprisonment.

This is the second appeal of this case. The first is reported in 65 Tex. Cr. R. 137, 143 S. W. 935. No question which was decided on the first appeal arose on the last triai. After the other reversal the venue was changed from El Paso county, and trials, or mistrials, had in four other counties, to which the case was respectively transferred on change of venue. The venue was at last changed back to El Paso county, and this trial had therein. Before the venue was first changed from El Paso county, this record shows that appellant was properly arraigned and pleaded not guilty.

This trial was begun February 23, and was concluded March 3, 1915. On March 5th, appellant filed a motion for a new trial on various grounds. That motion, as this record shows, did not then in any way claim that the indictment was not read to the jury when the trial began. Later, appellant had leave of the court to file her amended motion for .a new trial, and, on March 20, 1915, for the first time set up as one of her grounds for new trial that the indictment was not read, but that a certified copy thereof was read instead. Her amended motion was supported by the affidavits of two of her attorneys, who, in effect, swore that a certified copy, and not the original, was read to the jury. The affidavit of each of her attorneys contains allegations tending to show that they were correct in stating that a certified copy, and not the original, was read. The district attorney, who in connection with an assistant represented the state on the trial, under his official oath denied that the copy was read, and as pointedly alleged that the original was, and not the copy. The assistant district attorney made an affidavit, wherein he swore positively that the original was read, and that the copy was not, and therein he alleged other facts borne out by the record, which tended to support him in his affidavit. The said motion and amended motion and all of said affidavits were heard by the trial judge on March 20, 1915, whereupon he overruled appellant’s motion for a new trial on that ground, and every other as well. In addition to this, the judgment specifically states that, when the case was called for trial, the state appeared, as did the defendant in person, and her counsel also being present, when both parties announced ready for trial. It proceeds:

“The indictment was read to the jury, and the defendant, Agnes Orner, in open court pleaded not guilty to the charge contained in the indictment herein.”

There can be no question but that from all this the conclusion is certain that the judge was authorized to believe, and must have believed, that the original, and not said copy, was read to the jury, and that it was to the readingtof the original, and not the copy, that appellant pleaded not guilty.

The record in some particulars on this point is not clear. In approving appellant’s bill on this subject, it appears that the judge did so on March 15th, which was 5 days before said affidavits and the motion for a new trial presenting that question were filed and heard. By his qualification of the bill at that time, the judge states that some time at or about the close of the evidence, something was said by defendant’s counsel that the indictment had not been presented, but that in lieu thereof a certified copy of it had been read to the jury. Whereupon he examined all the papers in the cause, which were voluminous, and in said papers was found a certified copy of the indictment, and the said assistant district attorney, representing the state, shortly thereafter presented to him the original indictment, at the time stating to him that it was the original which was read to the jury. He then states:

“The court has no way of determining which instrument was read to the jury, as he does not know.”

Erom this, we take it, it is reasonably certain that the judge at that time, and at the time he made this qualification, had not heard the motion, nor said affidavits, but he states what he did at about the time of the conclusion of the evidence in the case on his own independent investigation at that time. Hence we conclude that his then qualification in no way militates against his action ■when he heard the motion and all the affidavits, as shown above.

In addition, both the original and a certified copy thereof, under the order of the lower court, were sent up and constitute a part of this record. We have examined and carefully compared the copy with the original, and find there is no particle of difference between them. Every word, letter, and figure in the original is copied precisely in the certified copy. If it had been the copy instead of the original which was read, no possible injury occurred to appellant thereby or could have occurred. If it be true that the copy, and not the original, was read, it was all done in her presence, and must have been with her knowledge, and it was also in the presence of her attorneys, and must have been, and was, if they are correct, within their knowledge at the very time it occurred. Neither she nor her attorneys, or any of them, at that time, or at any other time, until the close of the evidence, at least intimated or suggested that it was the copy and not the original which was read. She, and neither of them, objected to it at all in any way until after the trial was concluded, and in her amended motion, for new trial, which was filed some 17 days after the verdict and judgment. The slightest intimation of this mistake, if it was a mistake, to the court, or the state’s attorney, at the time would have righted the matter immediately. Under the circumstances, we think that her action and her attorneys’ action, or rather their inaction, at the time was a waiver of the reading of the original, if, as a matter of fact, the copy instead was read. That she could waive it is both statutory (article 22, O. O. P.), and has repeatedly been decided by this court. Barbee v. State, 32 Tex. Cr. R. 170, 22 S. W. 402; Essary v. State, 53 Tex. Cr. R. 603, 111 S. W. 927; Davis v. State, 70 Tex. Cr. R. 563, 158 S. W. 283. See, also, Johnson v. State, 171 S. W. 1128; Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939.

On the doctrine of the waiver, Mr. Bishop in his New Criminal Procedure (volume 1, § 117), says:

“In natural reason, one should not complain of a thing done with his consent. And the law, in all its departments, follows this principle. It is analogous to estoppel, or a species of it.”

In section 119 he says:

“Necessity is the chief foundation for this doctrine. Without it, a cause could rarely be kept for miscarrying. The mind, whether of the judge or the counsel, cannot always be held taut like a bow about to send forth the arrow; and if every step in a cause were open to objection as well after verdict or sentence as before, a shrewd practitioner could ordinarily so manage that a judgment against his client might be overthrown. Even by lying by and watching, if he did nothing to mislead, he would find something amiss, to note and bring forward after the time to correct the error had passed.”

While introducing the evidence, each side introduced the testimony of different witnesses, which was given by them in former trials and taken down in writing. In other words, these witnesses were not on the stand, but, Instead, their testimony as transcribed was introduced. Among these was Mr. Van Horn. After the jury had been charged and retired, they returned in -open court, whether at different times or at the same time is not made certain, but, at any rate, stated in writing that they did not remember the names of these several witnesses and wanted their testimony read. They mentioned several of these witnesses. Among them, they wanted Van Horn’s, and asked the court:

“Did Mr. Van Horn testify at Pecos, Tex., in the trial of Agnes Orner that he (Van Horn) heard Mrs. Orner tell Mrs. Archer that she (Mrs. Orner) killed Lillie Orner?”

Over title appellant’s objection, the court permitted the testimony of said Van Horn to then be read, which was:

“Mrs. Riley [now Mrs. Archer] and myself were at the side of the bed, and Harry Shap-perd was standing at the foot like, in the room, and she [defendant] was talking to Mrs. Riley, and she turned over and had her arms around her neck that way, and made the remark, she [defendant] said: T have killed Lillie! What shall 1 do! What shall I do!’ At that moment I reached and pulled Mrs. Archer’s dress and motioned for her to go away, and she walked away from the bed. Mrs. Orner said: T have killed Lillie! What shall I do! What shall I do!”’

Appellant objected that the jury had not disagreed as to Yan Horn’s testimony, but had forgotten his testimony, and that the' reading of it again would prejudice the jury against her and give undue emphasis to his testimony. We think the questions by the jury to the judge sufficiently, if they do not clearly, show, when properly construed, that the jury did disagree as to the statement of this witness, and it was the duty of the court, under the circumstances, in the proper and due administration of the law under article 755, O. O. P., to have read, as he did, said testimony of Yan Horn. It is literally his testimony as introduced on the trial. No question is made of this. In Clark v. State, 28 Tex. App. 196, 12 S. W. 729, 19 Am. St. Rep. 817, it appeared that the trial judge permitted the testimony of the deceased witness taken at an examining trial to be reread for the third time to the jury after they had been in retirement considering their verdict 2 days and nights. The court held that, by the provisions of the statute, if the witness had testified orally, he could be recalled and detail his testimony again as to the points of disagreement, and held that that statute did not expressly provide for the reading of written testimony or the deposition of the witness. The court said:

“Where the evidence is by deposition, or in writing, taken on examining; trial, we can see no good reason why, if the jury so desire, they cannot have it re-read to them where they have disagreed about it. Such written testimony cannot be easily altered. At all events it is to be presumed that it has not been altered until the contrary is shown, and where this is not done, we cannot perceive how its being re-read in the same identical language could mislead the jury, or unjustly prejudice the defendant. We are unable to see that any error has been committed or wrong done the defendant in this regard. * * *” Galan v. State, 177 S. W. 124.

We think no reversible error is shown in this matter.

The testimony, without reciting it, was amply sufficient to justify the jury to believe that appellant killed her husband by poisoning him with arsenic just about 19 months before her daughter Lillie was unquestionably killed by the same kind of poison. The testimony, without contradiction, shows that at the time of the death of her husband, she was suspected of killing him by poisoning, and at the time a post mortem examination was made of him to ascertain if he was killed in that way, but for reasons un-nessary to state here, it was shown that no chemical analysis whatever was made of the organs of his body, or the contents of his stomach or ¡intestines to ascertain what poison, if any, had been administered to him. The testimony further showed that her daughter Lillie repeatedly, when out of humor with her after her father’s death, said to her, in substance, “I know you killed papa, and you know that I know it,” and, when her daughter would so state to her, she would send her away to play, and tell her not to talk too much, and one witness swore that appellant told her that she was thinking of putting Lillie in a Catholic school, or something of the kind, because Lillie talked too much. It was clearly shown that Lillie, appellant’s daughter, was killed by arsenic poison. Erom the fact that the post mortem examination of Mr. Orner at the time failed to disclose arsenic poison, the jury were authorized to believe that appellant concluded that, when a person was killed by arsenic poison, it could not be detected by a physician. Under these circumstances, the court therefore committed no error in permitting Lee Newman to testify over her objections that Mrs. .Orner, after the death of her husband and before that of her daughter, told him she knew of a poison which, administered to a person, could not be detected by a physician. This evidence, we think, under the circumstances of this case, was clearly admissible.

In her direct examination, she testified she traveled considerably with her daughter Lillie, and among other places took her to Los Angeles, and from Los Angeles to Denver, and from Denver to a spring in Kansas, stating the doctor told her to go to the springs with her, and she went there and stayed two months. One of her bills shows that, on cross-examination of her, the district attorney asked if she was at Lundsberg, Kan. She answered, “Yes.” He then asked her if she knew a man there by the name of Alvin Carlson. She answered, “I don’t know.” He then asked her, “Didn’t you go there with a view of marrying him?” She answered, “No, sir; never.” The district attorney then asked her if this man Carlson didn’t die rather suddenly. Appellant objected to this last question. The court promptly sustained her objections, and instructed the jury not to consider the same.

By another bill, it is shown that the district attorney, on cross-examination of her, asked if she remembered when she was tried in the county court for insanity. She answered, “Yes; I guess so. You prosecuted me.” He asked if that was before this Lucas child died. She answered, “I don’t know.” He asked, “Was it before or after the Lucas child died?” Whereupon appellant objected to this last question, and the court promptly sustained her objection and instructed the jury not to consider the same.

In her direct examination, she testified that Lillie was the only child she had when she lived in El Paso, and was the only kin she had in this world. She further testified to her great love for, close attention to, and devotion she had for, her daughter Lillie. It is unnecessary to go into details of her testimony along this line. And, on cross-examination, she was asked, and testified that she had had two other children; that one of these died in infancy of summer complaint in Globe, Ariz. In one of her bills it is shown that the district attorney asked her if she had not testified in the insanity trial that this child took suddenly sick, and after it died she opened its hand and found a scorpion in it. Her attorney objected to this, and the court overruled the objection and allowed the district attorney to ask said question. The bill in no way shows what her answer was or that she answered the question at all.

She has another bill, in which it is shown that on cross-examination, she was asked how many children she had. She answered, “Three,” and was asked, “When did those two die?” She answered, “The first lived to be 9 months old, and died with pneumonia.” This referred to the child who died in Minnesota. Her attorneys objected to these questions, and their objections were overruled.

We have stated these last four bills so as to consider them together. While we think some of the questions were improper and should not have been asked, yet none of them, nor all of them together, show any prejudice to appellant, nor any reversible error. Such questions, unanswered, or where answered as in this instance, have been many times and repeatedly held by this court to present no reversible error. No injury is shown by any or all of them that could have affected her. There are so many cases by this court holding as Stated, we deem it unnecessary to discuss the question. We will cite some of them. They are all applicable on this point and are decisive against appellant. Phillips v. State, 59 Tex. Cr. R. 534, 128 S. W. 1100; Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596; Morrow v. State, 56 Tex. Cr. R. 521, 120 S. W. 491; Hart v. State, 57 Tex. Cr. R. 24, 121 S. W. 508; Warthan v. State, 41 Tex. Cr. R. 387, 55 S. W. 55; Belcher v. State, 39 Tex. Cr. R. 123, 44 S. W. 1106; Renn v. State, 64 Tex. Cr. R. 639, 143 S. W. 167; Sweeney v. State, 65 Tex. Cr. R. 597, 146 S. W. 883; Hearne v. State, 73 Tex. Cr. R. 302, 165 S. W. 596; Poulter v. State, 70 Tex. Cr. R. 200, 157 S. W. 166.

It is also well established that, even where such questions are answered and the court then withdraws the matter from the jury and instructs them not to consider it, no reversible error is presented. Kinney Miller v. State, 185 S. W. 29, recently decided, but not yet officially reported, and cases therein cited, among them Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836, Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 349, and cases therein cited. The questions presented by these bills must have been regarded by appellant and her attorneys at the time as insignificant, for they did not in either instance regard the matter as of sufficient importance to request the judge in writing to charge the jury to disregard the matters. They certainly thought at the time that the action of the court and his instructing the jury where he did not to consider the matters was amply sufficient as showing no-material error against appellant. So that in any event, neither of said bills shows any reversible error.

The testimony' of Mrs. Lueile Archer- and that of her husband to the effect that they repeatedly heard Lillie Orner, the deceased, after the death of her father and before her death, say to appellant, in substance, “I know you killed papa, and you know that I know it,” was clearly admissible. This unquestionably would show, or-tend to show, the motive for appellant killing deceased, and would form a very material link in the evidence against appellant. Appellant’s two bills on this subject show no-error.

The only other question is presented by appellant’s last three bills. The first of these is to the testimony of Dr. Wright, which gives in substance the facts within his-knowledge, showing that he was called by appellant to attend her husband, Mr. Orner,, a few hours before Orner died. This testimony succinctly states the condition he found Orner in when he was called, what occurred between appellant, Orner, and himself about, his illness at the time, and what occurred between them between that time and the death of Orner that night. That the next day, upon-it being suspected that Orner had been killed by poison, he held a post mortem examination, took out the organs of his body and placed them in a vessel for the later purpose-of having them analyzed to determine whether he had been killed by poison or not That,, because the vessel wherein they were placed contained formaldehyde, a poison itself, the-organs and contents were not then chemically analyzed, and that, without such analysis,, arsenic poison could not be detected. That, upon reaching this conclusion, all the organs of the body, except the stomach, were replaced in the body and interred with it. The-effect of his post mortem examination disclosed, and he testified, that nothing was-shown to indicate the man died from any disease.

The next of these bills was to the testimony of Mr. Keaster, the undertaker, who-buried the body of Orner. His testimony shows that he was present when Dr. Rogers. and others disinterred Orner’s body, took out the organs thereof, and that they were taken away by Dr. Rogers for the purpose of making a chemical analysis thereof. He further briefly testified which organs were thus taken out, their state of preservation, and the identity of the body of Orner thus disinterred.

The last of these bills was to the testimony of Dr. Rogers. His testimony was to the effect that he had exhumed Orner’s body, or what was shown to him to be Orner’s body, and that he opened the body where it had been opened previously in said post mortem examination and took out several organs of the body for chemical examination, and that he then did chemically examine these organs and found arsenic in the liver alone sufficient to unquestionably produce death from this arsenic poison.

These bills are lengthy, but we deem it wholly unnecessary to copy the testimony therein complained of in full. We have stated briefly the substance of it. Appellant made the same objection to the testimony of each of these witnesses, Dr. Wright, Keaster, and Dr. Rogers, which was that it was immaterial and incompetent, and calculated to influence the jury to her prejudice. That it was incompetent in that it goes into the detail of the death of Orner and prejudiced the jury. That it was incompetent and an attempt to charge and prove she was guilty of causing the death of Orner on this trial, without showing any connection between the death of Orner and the deceased herein, and was an attempt to show the commission of an independent crime, and at a time and place other than that to which she was on trial, without same having any relation to or connection with this case. That there was no legal proof of the death of Orner being unlawfully caused by appellant, and said evidence was immaterial and irrelevant to any issue in the case, and prejudicial to her rights before the jury. This is the substance in full of her objections to the testimony of each of said witnesses. They are mere objections and are not statements of fact. We have carefully read the testimony of each of these witnesses objected to by appellant. It will be specially noted that in the objections to neither does she in any way point out or specify what of it, if any, went into the details unnecessarily or improperly of the death of Orner. It was important, quite so, for the state to prove a motive on appellant’s part for poisoning her own 11-year old daughter. The testimony was sufficient clearly to show that this daughter had repeatedly accused appellant of the murder of her father, and stating that appellant knew that she knew it. Then it became proper for the state to show that, as a matter of fact, the deceased’s accusations were true, and, in order to prove that they were true, it was proper and necessary for the state to show, in substance, as it did, by the testimony of these witnesses, that Orner did not die a natural death, but was killed by arsenic poison. And the testimony of these witnesses was sufficient, clearly so, to justify the jury to believe that appellant killed her husband by arsenic poison, that her daughter Lillie knew it, that she knew that Lillie knew it, and that therefore this showed the motive for the killing of her own child. We have carefully, as stated, read this evidence, and have failed to find any unnecessary detail therein of the death of Orner. Appellant, neither by her bill nor by her objections, points out any such unnecessary detail. Under such circumstances, it is well settled by the decisions of this state, as stated in the death penalty case of Ortiz v. State, 68 Tex. Cr. R. 526, 151 S. W. 1056, that, when a bill of exceptions includes a number of statements objected to, some of which are clearly admissible, and there is nothing in the objection directly pointing out the supposed objectionable portions thereof, such bill presents no error. Judge Davidson in that case cites Branch’s Orim. Law, § 47; Payton v. State, 35 Tex. Cr. R. 508, 34 S. W. 615; Tubb v. State, 55 Tex. Cr. R. 606, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872. Many other cases could also be cited. But we regard the question as so well settled and established that it is unnecessary to collate any of the others. That some of the testimony, if not all of it, of each of these witnesses so generally objected to was admissible, there can be no doubt.

The evidence was conflicting. Some of the witnesses were impeached by showing contradictory statements by them, and 'in some instances of additional testimony which they did not give in previous trials. Mrs. Orner herself testified, denying that she killed by poison either her husband or her daughter, and in effect denied every other criminative fact and circumstance against her. However, the testimony as a whole, and that of the state without doubt, was amply sufficient to show that appellant was guilty of the crime for which he was convicted, and that no other person than she killed deceased.

The state did not try, nor pretend to try, appellant for the killing of her husband in this case. The testimony that was introduced to prove that she killed her husband was clearly admissible, as stated, and the court plainly told the jury in his charge that all the evidence introduced with reference to the death of Orner, if considered by them at all, could be considered only for the purpose of showing motive, if any, for the killing of Lillie Orner, and could be considered by them for no other purpose whatever. In fact, the charge is a most admirable one. It presents every issue raised by the evidence, and in every way protects, so far as a judge should, the appellant and her rights in the consideration of the case by the jury. No complaint whatever is made of the charge of the court No reversible error whatever is shown by this record. The penalty for murder by poisoning is fixed by the statute at either death or imprisonment for life. The jury assessed what is universally regarded as the lowest penalty they could in a case of this character, life imprisonment.

The judgment is therefore affirmed.

DAYIDSON, J.

(dissenting). I wrote an opinion reversing and remanding, but my Associates, believing the judgment ought to be affirmed, took the record and' affirmed. I cannot agree with their conclusion.

The testimony, and the case generally, is materially changed on this appeal from what it was when before the court on former appeal, found reported in 65 Tex. Or. R. 137, 143 S. W. 935. After the reversal on the former appeal the case was transferred to Pre-sidio county, thence to Reeves county, thence to Culberson county, and back to El Paso county, its initial point. There seems to have been hung juries in all counties except El Paso.

The witnesses Van Horn and Mrs. Archer testified on this trial that appellant stated, in effect, that she killed her child. Yan Horn seems to have been a new witness, coming into the case after the former appeal. Mrs. Archer had always denied, until Vkn Horn became a witness, in all of her testimony and at all times, that appellant ever made a statement indicating that she was connected with the death of her child. There is considerable testimony in the record bearing on this feature of the change she made in her testimony. It seems it was due almost entirely, largely at least, to the influence of Van Horn and conferences she had with the judge and prosecuting attorney. During the trial at which she changed her testimony she had positively denied any confession or remark of any sort by appellant incriminating herself. After the new male witness came into the case, and after the judge and prosecuting attorney had interviewed her, and during the argument of the ease, she went back upon the stand and testified as stated above, indicating that appellant had virtually made a confession to killing the child. This was a radical change in her testimony and in direct contradiction of what she had always theretofore sworn. There is also testimony in connection with the immediate sickness of the deceased child that one J. D. Lea may have administered poison to the child. The theory of the state was that appellant administered arsenic to the child in a cup of coffee. Appellant introduced evidence showing that if arsenic was administered to the child it was done by Lea. Lea did not testify on this trial. In this connection it is shown that Lea boarded with appellant, and that he and the deceased girl ate dinner together. Appellant was not at the table, but was ironing a dress for her little girl to wear to a social function later in the day and during that evening. While Lea and the child were at the table Lea called for coffee. Appellant took from the kitchen to the table the coffee, and it seems to have been poured out by Lea into two cups, one for himself, and one for the child. There may be some issue as to whether appellant or Lea poured out the coffee, but as I understand the record Lea poured it out for himself and the little girl. Lea took one of the cups of coffee and the little girl the other cup. The little girl drank her coffee, but Lea did not drink his, but called for tea. Appellant brought him the tea, which he drank. Lea also did the carving and serving at the table for the two, he and the little girl being those at the table. Immediately after drinking his tea he got up, excused himself, and went away hurriedly, stating he had a business affair that called for his immediate attention. The little girl went out to play and shortly afterwards came in complaining of being very sick at her stomach. The evidence clearly shows that Lea had made, before the above-mentioned occurrences, indecent proposals to appellant, which she indignantly spurned. After the death of her child he again approached her on more than one occasion. These matters she again emphatically declined. These matters occurred several times, and, accompanying her declinations, he made statements to the effect that she would regret it, and that he could be of great service to her, etc. This is some of the evidence for defendant’s side of the case. She took the stand and emphatically denied poisoning her child. The state further introduced evidence to the effect that the little girl when angry with her mother, or her mother had declined to let her have her way about things, stated on one or more occasions that appellant had killed her father, Capt. Orner, and that appellant knew that she (the child) knew that fact. The father died some years previously. This seems to have been introduced by the state and relied upon as a motive against appellant and over her objections. The state further introduced facts, circumstances, and details of the sickness as well as many other matters which resulted in the death of Capt. Orner. Without burdening this opinion with these occurrences, it is sufficient to say that the state introduced all facts connected with the sickness of Capt. Orner and the doctor’s visit and his refusal to return when called by appellant over the telephone several times to the bedside of her sick husband, and that another party also called the physician, who finally came, but too late. This covers several pages of the record. Capt. Orner had died before the physician reached the house. He made an autopsy of the body and discovered no evidence of poison. He was buried, and 5 years later his body was exhumed, and a portion of the liver and stomach were taken as a basis for chemical analysis, the result of which was the chemist stated that this analysis indicated the presence of arsenic enough to have produced death. All details of this whole matter were gone into from the time of Ms sickness until the exhuming of the body, and all facts in minute detail connected therewith, and it covers a great portion of this record. It would be fully difficult to ascertain from the testimony whether the state was prosecuting appellant for the death of the husband or that of the child. The trial court admitted, and the majority of this court sustained, the regularity of this matter on the theory that it showed motive. It would be more than doubtful if appellant had been on trial under an indictment charging her with the death of her husband that the state would have had sufficient evidence to have asked the jury for a conviction. So the whole thing amounted to a full trial of appellant for the killing of her husband as a preliminary motive for the killing of the child. There was an attempt also to prove that two of her young children had died suddenly, one in Arizona, and the other in Minnesota. The state also placed testimony into the case or sought to do so that appellant had gone to some point in Kansas in answer to an advertisement, apparently of marriage, and the man who did the advertising also died suddenly. Defendant had to meet all these things either by objection or testimony. Her two children died, one from what the physicians termed “summer complaint,” and the other from pneumonia. What the Kansas man died with is not established. This going there to meet tMs man she denied, but all these matters in one way or another were brought to the attention of the jury. Some were excluded, it is true. In other words, briefly summed up, the state sought to try appellant on the theory that she had a confirmed mania for killing people by poison, and especially arsenic poison.

That the state may introduce evidence to show motive does not authorize the going into the trial of another case or other cases. If there was a motive wMch prompted the accused to kill or do a certain thing, evidence of that motive may be introduced if it tends to solve the action of the defendant in doing the act then under investigation. Eor instance, the state could show that appellant killed her child by poisoning, if the testimony was at hand, for fear she might divulge something that could incriminate her in the death of the husband or ill will towards the child. A motive for a homicide is legitimate testimony, but it cannot be held for this reason that the state can turn aside from trying the main case to try another homicide in all of its details and circumstances. If the state should be permitted to do so the accused would have the right to meet all these facts and circumstances by the best testimony available. This is so well settled it is not a question now to be debated. It is the universal rule that where one side puts in a fact damaging to the other side, that that party may meet this fact by any testimony within its power. It is not clear to the mind of the writer but what the state prosecuted appellant in this case with equal vigor, if not with more determination, for the death of Oapt. Orner than that of the child. Appellant received life imprisonment in the penitentiary on what the writer believes to be anything but a clear case of circumstantial evidence. The jury went out to find a verdict with full details of both homicide cases before them. There can be no question in the mind of the writer, under the authorities in tMs state, that this was clearly erroneous. It has been the subject of numerous decisions, none of which are overruled. I might refer to the cases of Menefee v. State, 149 S. W. 142; Chandler v. State, 60 Tex. Cr. R. 337,131 S. W. 598; Ware v. State, 36 Tex. Cr. R. 598, 38 S. W. 198; Pace v. State, 58 Tex. Cr. R. 94, 124 S. W. 949; Brown v. State, 54 Tex. Cr. R. 129, 112 S. W. 80.

In the Menefee Case, supra, this question was one of the most serious in the case, and it was one of the grounds upon wMch the judgment was reversed. It may be a serious question even that the statement of the little girl was admissible, but what I have said has been on the theory that such statement was admissible. But what I have said is further based on the theory that the statement of the child was made to or in the hearing of her mother and charged her with the killing of her deceased husband. This was all denied on the trial. It will be noticed in the statement of the child that nowhere does it include the idea that Capt. Orner died from poison. All she stated was that appellant knew that she (the child) knew that appellant had killed her father. These other circumstances with reference to the sickness and manner of death, the exhuming of the body 5 years later, and all these matters, were injected into the case in order to show that he died from poison, and this was ingrafted into the statement of the child not as a fact, but a presumption only. It seems to me it was one presumption based upon another presumption, and should not have been permitted. The whole matter seems to be but presumptions upon presumptions.. The little child was very small at the time of the death of Capt. Orner, she being only about 10 years of age at the time of her death. It was sought to prove, and was gotten before the jury, but which was partly excluded by the court, that prosecutrix had a system or general plan of killing people by poison. TMs was all woven into the trial, and its effect evidently remained. There is much of this in the record; so much so it could not have been otherwise than very injurious to appellant. TMs of itself should have been held sufficient error to reverse. It was not admissible testimony, and the state now seeks to avoid the consequences by urging to this court, and was sustained by the majority of. the court, that it was excluded from the jury. There was testimony also with refer-enee to tlie fact tliat two of appellant’s children had died suddenly, one in Minnesota and the other in Arizona. These are mentioned simply to show how the prosecution was- conducted. These children did not die from poison. This manner of trying a case is violative of the rules of evidence and fairness, and should not have been permitted. Just what effect it had upon the jury would be somewhat speculative, but the verdict indicates it, for she received the life sentence. All this evidence may have been and doubtless was the turning point against appellant, resulting in her conviction. It has been so often decided in Texas that guilt cannot be imputed to a defendant by proving that other offenses were committed by somebody in a similar manner to the one for which the accused is being tried, or that, the other offense having been committed by the accused, therefore this case was. It is deemed unnecessary to cite authorities. Sometimes extraneous crimes are admissible to show intent, to connect the defendant with the offense on trial, show system, res gestae, and matters of that sort, but nowhere, so far as the writer is informed, has it -been held the state can prove that because an offense was committed at some time and place under similar circumstances to the one on trial that the state can introduce those facts or that case and attendant circumstances to show thereby or draw the conclusion therefrom that the accused may have committed the other offense, therefore he committed this offense. There are many reasons why this cannot be done. One of the most familiar, I may state, is that it is a turning aside to try other offenses which involve the guilt or innocence of the accused, not in this case but in the other case, and that by being guilty of the other offense, therefore, she might be guilty of the offense for which she is being tried. There is also another; that is, the state or defendant will not be permitted to turn aside and try another case in detail, even on the question of motive or for any other reason. See cases already cited.

There was also evidence permitted to go to the jury which the writer thinks inadmissible, to the effect that appellant made a statement to one of the witnesses that she knew a secret poison which would kill, but which could not be detected in the body. Various objections were urged to this in the light of the record which the writer thinks ought to have been sustained. The little girl was poisoned by means of arsenic — the easiest of all poisons detected in the body of a deceased person. It was following out the general line of introducing facts that ought not to have been introduced to influence the jury in regard to their verdict. In other words, it is the purpose of the writer to say that appellant was entitled to a fair trial on legitimate testimony, and it would be difficult to find a case where a judge should be more careful In the admission of illegal testimony and guarding the rights of the accused than is presented by the record in this case. An innocent 10-year old child alleged to have been killed by her mother by administering arsenic as a poison was and is of itself a serious charge and one likely to affect the jury at the beginning and before testimony was introduced. But all these other matters, the details of the life of the accused, the details of other supposed offenses, and the impressions sought to be made upon the jury that she was an arsenic fiend, and that it was her business in life to thus kill people, and especially by poisoning with arsenic, and those nearest and closest to her, was permitted to go to the jury as evidence. It would be useless to answer this from the standpoint of human nature. There is evidence also that appellant was thought to be insane, and that she was tried in the county court under a charge of insanity after the death of her child, and was prosecuted there on that issue by state’s counsel. If all these matters introduced were introduced in the county court, I might express a little surprise that the jury did not find her insane.

There are other questions that are, in my judgment, reversible, but I do not purpose to go further into these matters. I believe and am firmly convinced this judgment ought not to have been affirmed. Appellant was entitled to at least a fair trial, and this case especially called for extreme caution because of the condition of things that environed this case on the trial. I therefore respectfully dissent.

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

      <S=3For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    HICKMAN v. STATE.
    (No. 3966.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    1. Courts &wkey;43 — Appellate Jurisdiction-County Court.'
    Under Const, art. 5,_ § 16, giving the county court appellate jurisdiction in all cases arising in the justice court, and section 22, giving the Legislature power to increase, diminish, or change the criminal jurisdiction of county courts, the Legislature has full authority to confer on the county court jurisdiction to entertain appeals from the corporation court.
    [Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 164-170, 181-183; Dec. Dig. &wkey;43.]
    2. Courts <&wkey;42(5) — Creation op Courts— Statutory Provisions.
    Under Const, art. 5, § 1, which after naming certain courts provides that the Legislature may establish such other courts as it may deem necessary and prescribe their jurisdiction and organization and conform the jurisdiction of the district and other inferior courts thereto, the corporation court created by Acts 26th Leg. c. 33, is a valid court with authority to try persons charged with offenses either for violation of city ordinances or state laws.
    [Ed. Note. — Por other cases, see Courts, Cent. Dig. §§ 168, 181-183; Dec. Dig. &wkey;42(5)J

      3. Municipal Corporations <&wkey;642(l) — Violation of Ordinance — Appellate Jurisdiction — County Court — “Criminal Offense.”
    Under Const, art. 5, § 22, giving the Legislature power to confer on the county court jurisdiction of appeals from the corporation court, and Acts 26th Leg. c. 33, § 2, giving the corporation court jurisdiction over criminal cases arising under ordinances of the city and the criminal laws of the state, and section 16, giving the right of appeal to the county court from a conviction in the corporation court, and Code Cr. Proc. 1911, art. 101, conferring on the county eoui’t appellate jurisdiction of criminal cases of which justice courts and other inferior tribunals have criminal jurisdiction, the county court has jurisdiction of an appeal from conviction in the corporation court of violation of a city ordinance; such violation being recognized as a criminal offense by section 2 of the act of 1899.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent.Dig. § 1412; Dee.Dig. <&wkey;642(l).
    For other definitions, see Words and Phrases, First and Second Series, Criminal Offense.]
    Appeal from Lampasas County Court; J. Tom Higgins, Judge.
    Pinlc Hickman was convicted of violating an ordinance of the City of Lampasas and his appeal to the county court dismissed for want of jurisdiction, and he appeals.
    Reversed and remanded, with instructions.
    Matthews & Browning, of Lampasas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted in the corporation court of the city of Lampasas for violating an ordinance of that city, from which conviction he prosecuted an appeal to the county court of Lampasas county. When the cause came on to be heard, the county judge held that no appeal would lie to the county court from a conviction in the recorder’s court for violation of a city ordinance, and dismissed the appeal. From this order of dismissal appellant has appealed to this court, and the question presented is: Will an appeal lie to the county court from a conviction for violating a city ordinance had in the corporation court of such city?

This question first came before this court in the case of Bautsch v. City of Galveston, 27 Tex. App. 342, 11 S. W. 414, and it was held that such an appeal would lie, and this court has uniformly followed that opinion since its rendition. Lopez v. State, 17 S. W. 1090; Taylor v. State, 16 Tex. App. 514; Robbins v. State, 20 S. W. 359; Thielen v. State, 43 Tex. Cr. R. 310, 65 S. W. 533; Martin v. State, 44 Tex. Cr. R. 197, 69 S. W. 508; Strauss v. State, 173 S. W. 663; Buchanan v. City of Whitesboro, 37 Tex. Cr. R. 121, 38 S. W. 1003; Ex parte McNamara, 33 Tex. Cr. R. 363, 26 S. W. 506. And, so far as we are aware, it is the practice in this state to permit and entertain appeals from a conviction for a violation of city ordinances in virtually all the county courts in this state, following the above line of decisions.

However, our attention has been called to the case of Jarvis v. Taylor County (Civ. App.) 163 S. W. 334, wherein, in a well-considered and ably written opinion, Chief Justice Conner, of the Ft. Worth Court of Civil Appeals, has taken a different view of the law, and holds that an appeal will not lie from a conviction for a violation of a city ordinance in the corporation court to the county court, and we suppose the trial judge in this case was following that opinion.

We would feel loth to disturb the unbroken rule of decision of this court covering a number of years, and would not do so, unless fully convinced that the court was in error. However, having great respect for the court rendering the opinion in Jarvis v. Taylor County, supra, and especially for the opinion of the learned Chief Justice who wrote that opinion, we have again entered into a study of this question, with the view that, if we became convinced this court was in error, to frankly so say.

The provisions of the Constitution governing the jurisdiction of the county courts is found in sections 16 and 22, art. 5, of the Constitution. In section 16, the county court is specifically given appellate jurisdiction in all cases arising in the justice court; and, in section 22, the Legislature is given power to increase, diminish, or change the criminal jurisdiction of county courts. So the Legislature has full authority to confer jurisdiction on the county court to entertain appeals from the corporation court, and the question is: Has it done so?

There was formerly a conflict in the decisions of the courts of this state as to whether or'not city courts could try criminal cases, for violation of laws of the state, and, in order to avoid this conflict, an amendment to the Constitution was adopted in 1891, it being provided in section 1 of article 5, after naming certain courts:

“The Legislature may establish such other courts as it may deem necessary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.”

Since the adoption of that provision of the Constitution, our Supreme Court and this court have been called upon to pass upon the amendment, and in Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650, it was held that the Legislature might and had created a corporation court, with power and authority to enforce both laws of the state and city ordinances, and this holding was upheld by this court in Ex parte Abrams, 56 Tex. Cr. R. 468,120 S. W. 883,18 Ann. Cas. 45. So it is now uniformly held that the corporation court is a valid court, with authority to try persons charged with offenses either for violation of city ordinances or infractions of the law of the state. I do not understand Chief Justice Conner to hold that, if one is tried in the corporation court for a violation of a state law, no appeal would lie to tlie county court; but his opinion seems limited to the holding that, if tried for a violation of a city ordinance, the judgment of the recorder’s court is final and no appeal to the county court will lie.

After the adoption of the amendment to the Constitution above quoted in 1891, the Legislature passed an act (it being chapter 33, Acts of the 26th Leg. p. 40) in which, in section 1, a court to be known as the corporation court was created, and, in section 2, it gave this court jurisdiction over all criminal cases arising under the ordinances of the city, town, or village, and jurisdiction concurrently with any justice of the peace in all criminal cases arising under the criminal laws of this state in which the punishment is by fine only in not excess of $200. Section 3 provided for the election of a judge to be known as recorder to preside over said court. Section 6 provides that the rules of pleading, practice, and procedure established for the county court shall apply to such corporation court. Section 8 provides that, whether the prosecution be for violation of a city ordinance or law of the state, the complaint shall commence, “in the name of the state of Texas,” and conclude, “against the peace and dignity of the state,” and, if a violation of an ordinance, may also read, contrary to the said ordinance. Section 10 provides that all fines imposed by said court shall be paid into the city treasury, and section 16 gives the right of appeal to the county court from a conviction in said corporation court, and, in Martin v. State, 44 Tex. Or. R. 197, 69 S. W. 508, this right of appeal from the corporation court to the county court is specifically recognized, and we think correctly so under this act of 1899.

The Constitution, in section 22 of article 5, gives the Legislature the authority and power to confer jurisdiction on the county court to entertain appeals from the corporation court, and by section 16 of the act of 1899 the Legislature gave the right of appeal in all cases tried in the corporation court Section 16 of the act of 1899 provides ■for an appeal to the county court and trial de novo in that court, and article 101 of the Code of Criminal Procedure, 1911, specifically confers upon the county court appellate jurisdiction of criminal cases of which justices’ courts and other inferior tribunals have original jurisdiction. There are no other inferior tribunals in this state with authority to try criminal cases other than corporation courts. It may be contended that a violation of a city ordinance is “not a criminal offense,” but section 2 of the act of 1899 so specifically defines it, and it must be so held as applicable to our Code of Procedure in passing on what are criminal cases within the meaning of the words therein used.

In 28 Cye. p. 821 et seq., it is shown that this right of review of judgments of municipal courts for violations of city ordinances is generally recognized in all the states, and it is in our opinion specifically conferred on the county courts by the statutes of this state.

Being of this opinion, the judgment of dismissal is reversed, and the cause remanded to the county court, with instruction to that court to reinstate the cause and try the same.

Reversed and remanded, with instructions.
      (&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: KEY, C. J.

text:
    CASTLEMAN BLAKEMORE CO. v. LEWIS.
    (No. 5544.)
    (Court of Civil Appeals of Texas. Austin.
    Jan. 5, 1916.
    Rehearing Denied March 1, 1916.)
    Principal and Agent &wkey;>81(4) — Agent’s Right to Commission — Quasi Estoppel.
    Where a salesman’s contract provided that his employer would pay “commissions on net amount of all sales made by him and accepted and shipped,” but stipulated that the salesman should receive commissions on all sales made to a grocery company, with which he was to. cooperate, however the order should be received by his employer, such salesman could recover commission for an order secured by him from the grocery company, which he forwarded to Ms employer and which the latter accepted, but on which it refused, without legal excuse, to ship the goods, in view of the fact that after the contract of sale to the grocery company was made the salesman at his own expense secured orders in his territory by which all of the goods ordered would have been sold, had they been delivered, and that he weekly reported such orders to his employer, without objection from the latter.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 196-198; Dec. Dig. <&wkey;> 81(4).]
    Appeal from McLennan County Court; Geo. N. Denton, Judge.
    Suit by J. S. Lewis against the Castleman Blakemore Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Scott & Ross, of Waco, for appellant. Davis & Cocke, of Waco, for appellee.
   KEY, C. J.

This is a suit by an agent to collect commissions for effecting sales of merchandise. The plaintiff recovered judgment, and the defendant has appealed. The proof shows that the plaintiff procured an order from the Cooper Grocery Company, which he forwarded to the defendant and which the latter accepted, but subsequently, without legal excuse, refused to ship the goods called for by the order. It is true that one paragraph of the contract creating the plaintiff’s agency reads:

“The company agrees to pay the salesman commissions on net amount of all sales made by him and accepted and shipped by the company, at the following rates,” etc.

But by another paragraph it is stipulated that:

“The salesman is to work with and through the Cooper Grocery Company of Waco, Hills-boro, and Temple, Tes., and is to receive commissions on all sales made to the Cooper Grocery Company in whatever manner the order shall be received by the company.”

Considering all these provisions of the contract together, we are not willing to sustain appellant’s contention to the effect that ap-pellee is not entitled to recovér because appellant never shipped the goods ordered by the Cooper Grocery Company, although it obligated itself by written contract so to do, and breached that contract when it failed to ship them. The proof shows that after the contract of sale was made appellee at his own expense secured orders in the territory represented by him by which all of the goods referred to would have been sold by the Cooper Grocery Company, if they had been delivered to that company by appellant, and that he made weekly reports of such orders to appellant and the latter made no objection thereto. If those facts do not-constitute an estoppel, strictly speaking, they at least illustrate the hardship that might result from adopting appellant’s construction of the contract of agency, and justified the court below in adopting the other and more equitable construction of that instrument.

Judgment affirmed.
      <5&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    BURTTSCHELL et al. v. COLORADO COUNTY.
    (Court of Civil Appeals of Texas. Austin.
    (No. 5524.)
    Dec. 1, 1915.
    Rehearing Denied March 1, 1916.)
    1. Counties <&wkey;99 — County Treasurer — Action on Bond — Defenses.
    In a suit on a county treasurer’s bond for an alleged shortage of funds, it is a defense to show that the shortage occurred during the term of his predecessor.
    [Ed. Note. — Eor other cases, see Counties, Cent. Dig. §§ 144 — 146, 148; Dec. Dig. <§=399.]
    2. Counties <&wkey;>99 — Officers’ Bonds — Liability of Sueety.
    In a suit on a county treasurer’s bond for an alleged shortage of funds, it is a defense that the funds were trust funds held by the treasurer, which without consent of the beneficiary he deposited in the county depository as county moneys; for the sureties are not responsible for moneys which did not come into the hands of their principal by virtue of his office.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 144-146, 148; Dee. Dig. &wkey;99.]
    3. Counties &wkey;>101(7) — Oofficees’ Bonds — Liability of Surety — County Commissioners — Determination.
    Where a county treasurer improperly deposited trust funds as county funds, and his report was approved by the county commissioners, such approval is not conclusive on the sureties on his bond that the funds were county funds.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 158; Dec. Dig. &wkey;101(7).]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Action by Colorado County against E. C. Burttschell and others. From a judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    Townsend & Quin, of Columbus, and Man-gum & Townsend, of San Antonio, for appellants. Lester Holt, W. L. Adkins, and Grobe & Miller, all of Columbus, for appellee.
   RICE, J.

This suit was brought by Colorado county against appellants, E. C. Burtt-schell, as county treasurer, and Henry Burtt-schell, Geo. Geggenworth, C. A. Burttschell, R. H. Beyer, John Herder, and H. A. Johnson, as sureties on his bond as such, for an alleged shortage as such treasurer of the county funds, and likewise alleged a shortage of the city funds of the city of Columbus, with which he was charged as custodian by virtue of his office, said city having abolished its charter; and for interest on funds which he, as county treasurer, should have deposited in the county depository, but which it was alleged was not earned because of his failure to so deposit same.

Appellants denied specially the allegations of plaintiff’s petition, and pleaded that all sums received by said Burttschell as county treasurer from and after the execution of the bond sued on until his resignation had been faithfully and truly accounted for by him, and, if there was any shortage, the same occurred during the term of his predecessor, Joseph Burttschell as county treasurer, who was the father of E. C. Burttschell. They likewise pleaded that E. C. Burttschell succeeded Joseph Burttschell as county treasurer of Colorado county by appointment, and was thereafter elected to said office at the general election in November, 1910; that on or about the 25th of August, 1910, the commissioners’ court of said county approved a report covering the administration of Joseph Burttschell, and that on said date Joseph Burttschell was short with said county in the sum of $9,000. They also, in effect, pleaded that during the administration of his office E. C. Burttschell deposited in the county depository in his name as county treasurer of said county the sum of $8,400 which belonged to his mother, which had been left with him by her as a trust fund, and that he so deposited it in the county depository without her knowledge or consent, and that his account should be credited with said amount, and, if the same were so credited, then and in that event there would be no shortage.

Appellee excepted to said answer on the ground that the defenses noticed were irrelevant and immaterial, and that they did not state facts, but were mere conclusions of the pleader, which exceptions were sustained by the court, and appellants excepted. There was an instructed verdict in favor of appellee for the sum of $7,773.92, with 6 per cent, interest from date of judgment, from which appellants prosecute this appeal.

The action of the court in sustaining said demurrers is complained of in numerous assignments on the part of appellants, presenting the same question in various forms. In suits of this character it is always competent, as we understand the law, to show that the alleged shortage, if any, occurred during the administration of the predecessor of the person charged therewith; such proof being material and relevant to the issue under consideration. Hence it was error, we think, to sustain the exceptions.

We also think that the court erred in sustaining exceptions to that part of the answer setting up the fact that $8,400 of the money in the county treasury did not belong to E. 0. Burttschell, but was the property of his mother, for whom he held the same in trust, which had been so deposited by him without her knowledge or consent. The sureties are not responsible for any money which does not come into the hands of the county treasurer by virtue of his office. See Henderson County v. Richardson, 15 Tex. Civ. App. 699, 40 S. W. 38. It is contended on the part of appellee, however, that, since appellant treasurer had made reports showing that the $8,400 belonged to the county, which reports had been approved by the commissioners’ court and entered of record, they were conclusive of the question, and appellants were bound thereby. But the contrary seems to have been held in Broad v. City of Paris, 66 Tex. 119, 18 S. W. 342, and in Llano County v. Moore, 77 Tex. 515, 14 S. W. 152.

The remaining assignments complain chiefly of the exclusion of evidence to support these pleas. It will be unnecessary for us to discuss those assignments, because our ruling on the demurrers involves the same question.

Eor the reasons indicated, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      <g^>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McNEESE et al. v. FIRST NAT. BANK OF WACO et al.
    (No. 5595.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 2, 1916.
    Rehearing Denied Feb. 23, 1916.)
    Trial <&=»3 — Separate Issues — Cosureties.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6331, provides that when any suit is brought against two or more defendants, any one of whom is surety for the others, the surety may cause the question of suretyship to be tried and determined either on the trial or at a subsequent term, but such proceedings shall not delay plaintiff’s suit. Article 6333 provides that when a surety is compelled to pay a judgment, it shall not be discharged, but shall remain in force for Ms use as if assigned to him to the extent of his payment. Cross-petitioner was a defendant in an action on a note on which he was surety for his codefendants, and sought judgment in his favor against his codefendants under the above statutes. The codefendants were not cited to appear and received no notice of the cross-petition. Meld, that the judgment in his favor on the cross-petition was erroneous, since he in effect became a plaintiff and could not have judgment without notice, regardless of whether the cross-action arose out of the demand connected with the original suit.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 6, 7; Dec. Dig. <S=>3.]
    Error from District Court, McLennan County; Tom L. McCulloch, Judge.
    Action by the First National Bank of Waco against R. H. Kimsey and others, in which Charles L. Sanger filed a cross-bill against his codefendants. From a judgment for the cross-petitioner, defendants Frank McNeese and W. J. Duncan bring error.
    Reversed and remanded.
    Alva Bryan and J. A. Stanford, both of Waco, for plaintiffs in error. J. D. Williamson, of Waco, for defendants in error.
   RICE, J.

On July 28, 1914, the First National Bank of Waco brought suit in said court against R. H. Kimsey, W. J. Dunken, Charles L. Sanger, and Frank McNeese. alleging that on the 24th of March, 1913, said parties made, executed, and delivered to it their certain promissory note for $4,327.90, due on demand, bearing 8 per cent, interest from date, and providing for 10 per cent attorney’s fees, upon which there were certain credits, amounting to $3,775, praying for judgment for its debt, interest, and attorney’s fees. All of said parties, except Sanger, were duly cited to appear and answer said petition at the next term of said court to be held on the 5th of October, 1914, but none of them answered, except Sanger, who admitted the truth of the allegations of plaintiff’s petition, but alleged that he executed the note at the request and for the benefit and accommodation of his codefendants; that he received no benefit therefrom, and that, as between him and his said codefendants, he was surety and only secondarily liable thereon, and prayed for judgment over against them for any amount which he might be required to pay upon any judgment which might be rendered thereon in favor of plaintiff. The other defendants were not cited to answer such cross-action against them. Thereafter on the 6th of October, 1914, judgment was rendered therein in favor of the First National Bank of Waco against all of said parties jointly and severally for the balance due on said note, to wit, $761.42, together with interest thereon; but said judgment provided that as between the defendant Sanger and his codefendants, that he was a surety on said note and only secondarily liable thereon, and that he was entitled to judgment over against said other defendants for any amount which he might be required to pay thereunder. It was therefore ordered, adjudged, and decreed that the said Sanger should have his execution against said other defendants, naming them, jointly and severally for any amount which he might be required to pay on the judgment in favor of plaintiff against them, from which judgment Frank MeNeese and W. J. Dunken alone have prosecuted this writ of error, urging that the court erred in rendering judgment in Sanger’s favor as surety against them, on the ground that they had no notice of his cross-action, for which reason said court was without jurisdiction to render any judgment in his favor against them. So that the sole question for our consideration is whether or not judgment was properly rendered in behalf of Sanger, as surety, against plaintiffs in error without their having been served with his cross-action.

This question, so far as we are advised, has never been passed upon by the courts of this state. Our statute upon this subject provides that:

“When any suit is brought against two or moje defendants upon any contract, any one or more of the defendants being surety for the others, the surety may, upon a written statement of the matter being set out in his answer, cause the question of suretyship to he tried and determined upon the issue made for the parties defendant at the trial of the cause, or at any time before or after the trial, or at a subsequent term; but such proceeding shall not delay the suit of the plaintiff.”

See 4 Vernon’s Sayles’ Rev. Civ. Stats., art. 6331. Article 6333, Id., provides that when a surety is compelled to pay any judgment or any part thereof, or shall make any payment which is applied on such judgment by reason of such suretyship, the judgment shall not be discharged by reason of such payment, but shall remain in force for the use of such surety and shall be considered as assigned to him, together with all the rights of the creditor thereunder, • to the extent of the payment thereof made by such surety, and that the surety shall be entitled to have execution thereon in the name of the creditor for his benefit against the principal debtor for the full amount of such payment, interest, and costs, which execution shall be issued upon the application of the surety to the clerk or court, as the case may be, and shall be levied, collected, and returned as in other cases.

The suit was brought against all of said defendants as joint obligors-'on the note, and judgment went against them as such. Hence they and each of them were liable for the full amount thereof. In order for Sanger to claim the benefit of the statutes above quoted, it became necessary for him, not only to plead, but to prove the fact of suretyship and have the matter adjudicated. See Tarlton v. Orr, 40 Tex. Civ. App. 410, 90 S. W. 534; Bank v. Daugherty, 81 Tex. 301, 16 S. W. 1028; Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Huggins v. White, 7 Tex. Civ. App. 563, 27 S. W. 1066; Wiley v. Pinson, 23 Tex. 488; Holliman v. Rogers, 6 Tex. 97; Deleshaw v. Edelen, 31 Tex. Civ. App. 416, 72 S. W. 413; Polk v. Seale, 144 S. W. 332. By reason of which, we think Sanger, as to these matters, became plaintiff as against his codefendants. If it became necessary to plead and prove the question of suretyship, then it seems to us that it goes without saying that they would be entitled to notice of his cross-action asserting such right. Not to so hold we think would be to declare that a plaintiff would be entitled to judgment in his favor against a defendant whom he had failed to cite to answer his petition. It is elementary law that a defendant against whom a right is asserted is entitled to notice and to his day in court before judgment can be rendered upon the demand against him. It has been frequently held that where one defendant has an independent cross-action against another defendant, who is not summoned and did not appear, that no judgment on the cross-action can be rendered against the latter. See Swift v. Beemer, 160 S. W. 989; Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172; Pena v. Pena, 43 S. W. 1027; Roller v. Reid et al., 87 Tex. 69, 26 S. W. 1060. Is this any the less true- where such cross-action arises out of some demand related to or connected with the original suit? We think not.

It follows from what we have said that we conclude that the court erred in rendering judgment in Sanger’s favor on his cross-action against his codefendants without citing them to appear and answer same; for which reason the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.
      ©ssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes