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

text:
    CARTER v. STATE.
    (No. 3808.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    State’s Rehearing Denied March 8, 1916.)
    1. Homicide @=286 — Trial—Error in Instruction.
    In a prosecution for murder, the insertion of the word “not” before the word “presumed,” in a charge otherwise correct under the statute, relating to the presumption of intent from the use of a deadly weapon, was reversible error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. @=286.]
    2. Homicide <s=30O — •'Trial—Instructions.
    In a prosecution for murder, a charge on the subject of self-defense, that there must be evidence of some act manifesting an intention to execute the threats mentioned, but omitting the words “or that it so reasonably appeared to the defendant at the time,” was erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. @=300.]
    3. Homicide @=300 — Trial—Instructions.
    In a prosecution for murder, where the court had in its charge fully presented the proposition that. if defendant killed deceased, not to protect himself from some unlawful violence, and not because of reasonable apprehension of violence, he could not justify the act as done in lawful defense, it was error to unduly emphasize that element of the case by again charging thereon.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. @=300.]
    4. Criminal Law @=418 — Evidence—Admissions — Acquiescence or Silence.
    In a prosecution for murder, remarks made mostly out of the hearing of the defendant by the witness and a third person were inadmissible, though such remarks were related to the defendant in a friendly conversation which took place on the following day.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 968-972; Dec. Dig. @= 418.]
    5. Witnesses @=352 — Impeachment — Competency ojt Evidence.
    In a prosecution for murder, the fact that a witness, after testifying, was seen talking to his mother and sister in a “suspicious attitude,” without showing something that was said or done that would reflect on his testimony, was inadmissible to impeach the testimony of the witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1152; Dee. Dig. @=352.]
    6. Witnesses @=318 — Corroboration—Evidence — Hearsay.
    In a prosecution for murder, the testimony of a witness that neither of her daughters, also witnesses, had told her after a former trial that they were going to change their statements because they could not stand to see the defendant go to the penitentiary, was inadmissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. @=318.]
    7. Witnesses @=374^-Impeachment — Evidence.
    In a prosecution for murder, a letter addressed to a person not a witness, written by a witness who was adverse to defendant and a brother of the deceased, tending to prove that he was suppressing and fabricating the testimony, was admissible as showing the intent and interest of the witness in the case, as well as that he was trying to suppress or fabricate the testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. @=374.]
    8.Homicide @=158(4) — Evidence — Other Offenses.
    In a prosecution for murder, evidence of the fact that the defendant had threatened to shoot his father-in-law on a former occasion was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 296; Dec. Dig. @=158(4).]
    Prendergast, P. J., dissenting in part.
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Bill Carter was convicted of murder, and he appeals.
    Reversed and remanded.
    S. W. Bishop and J. B. McEntire, both of Gorman, and J. R. Stubblefield, of Eastland, for appellant. Gib Callaway, Dist. Atty., of Comanche, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was allotted 25 years in the penitentiary for murder.

This is the second appeal, the first being reported in 170 S. W. 739. The case is practically as before, with the exception that two of the witnesses, Bertha and Nellie King, testified this time for appellant. On the former trial they were state’s witnesses. This involved some change in the testimony so far as their evidence is concerned. There was a witness named Wilson who testified on this trial in regard to a difficulty between himself and appellant; which was not in evidence on the former trial. Quite a number of exceptions were reserved to the charge of the court and refusal to give special charges. These will be noticed in a general way so they may not occur upon another trial.

Among other things, this Quotation Is made from the court’s charge:

“When a homicide takes place to prevent murder or the infliction of serious bodily injury, and the weapon or means used by the person attempting to commit such murder, or to inflict such injury, is such as would have been calculated to produce that result, it is not to be presumed that the person so using or attempting to use such weapon designed to commit murder or to inflict serious bodily injury.”

This would have been a correct charge with the underscored word “not” omitted from the charge, but as given it was exactly the reverse of the statutory requirement.

This quotation is also made:

“When a defendant accused of murder seeks to justify himself on the ground of threats to do him serious bodily injury, he is permitted to introduce evidence of the threat or threats so made; but the same are not to be regarded as affording a justification unless it be shown that, at the time of the homicide, by some act then done an intention was manifest to execute the threat or threats so made.”

Upon another trial, we suggest that this phase of the charge he amended so as to include the idea that “or that it so reasonably appeared to the defendant at the time.”

This expression also occurs in the charge:

“If however, you believe from the evidence beyond a reasonable doubt that the defendant with a shotgun fired upon and killed the deceased, Clyde Graham, not for the purpose of protecting-. his person from unlawful violence from the said Clyde Graham, and not because of reasonable apprehension at the time that the said Clyde Graham was using, or was about to use, unlawful violence upon him, the defendant, then he cannot justify the killing of said Graham, if he did kill him, as done in his lawful defense.”

In view of the whole charge and the emphasis of the various provisions of the charge in regard to the question of self-defense, we are of opinion this should not have been given. We suggest upon another trial this clause be omitted. It is deemed unnecessary to go into a discussion of those matters further than above stated.

A bill of exceptions recites that Jim Graham was permitted, over objection of appellant, to testify as follows:

“I remember an occasion some time before the killing, when Bill Cartel-, Clyde Graham, and I and Iva Lee Stephenson, Bertha King, and Nellie King, went to Oakland to preaching. We walked, and we went from Carl’s house and back to Carl’s house. I went with Nellie King, Clyde Graham went with Iva Stephenson, and Bill Carter went with Bertha to Oakland, and on return from, Oakland, at the request of Bill Carter, we changed partners, and Bill Carter came home with Iva Lee, I came home with Nellie King, and Clyde Graham came home with Bertha King. At the time Bill wanted me to change partners we were about 150 or 200 yards from Oakland. Nellie and I and Bertha King and Clyde Graham went on home, and we had been there some time before Bill Carter and Iva Lee Stephenson came up. I do not know whether Bill and Iva Lee went the same road which we went, or not. When Bill Carter and Iva Lee came up to Carl’s house, I went with her to her home. Bill Carter and Iva Lee Stephenson came to Carl’s gate, and Bill came in, and told me to go home with Iva Lee Stephenson, and I did not know why he wanted me to do that, and, when I got out there, Iva Lee Stephenson told me she would not go on the rest of the way with him. I then went on home with Iva Lee Stephenson. She said she would not go on any further with Bill Carter. I did not know what Bill had done, or tried to do.”

■ We are of opinion these matters that occurred between the witness and Iva Lee Stephenson and the conversation, being out of the presence and hearing of the defendant, should not have been permitted to go to the jury. Various objections were urged, which we deem unnecessary to discuss. We think this testimony should be excluded upon another trial. The court let it in upon the theory, it seems from his explanation, that most of this was in the presence of the defendant, except the statement of Iva Lee Stephenson made to Jim Graham as they started to the home of Miss Stephenson, and these statements were told to the defendant the next day, when the witnesses state that they talked and laughed about what transpired the night before, the information being brought home to the defendant on the next day after the trip to Oakland, referred to in the bill. We do not think this statement of the judge cures this error. This testimony should not go to the jury. The same may be said of bill No. 14, referring to the same matter.

Another bill shows that the witness Carl Graham at the request of appellant went with him to Cameron for the purpose of seeing appellant’s wife; that witness had a conversation with the wife in reference to inducing her to go back and live with her husband, which she declined. He then repeats what was said by the wife in regard to the matter, in which she declined to live with appellant. What the wife said in regard to this matter seems to be inadmissible. The fact, however, that appellant sought to obtain the consent of his wife to live with him again, perhaps, was admissible; but her statements in regard to the matter would not be. Upon another trial, such testimony will not be permitted to go to the jury.

Another bill shows that Arnold King testified for the state, and on cross-examination stated that on the night of the homicide Bill Carter came to his father’s house and made the statement that Clyde Graham had raped his sister, and that he was seeking and trying to get the officers after the said Clyde Graham. Be it further remembered that, prior to the time that the said Arnold King went on the stand, Jim Graham had testified, at the instance of the state, and on cross-examination by defendant stated that, at a former trial of the case, he had not given to Arnold King a knife while in the town of Comanche, and during the trial of the case, and further that he had not seen a knife lying near where his brother had been killed, and further, on cross-examination of the witness Arnold King, the said witness had made a statement at a former trial of this case, and during the trial, and while in Comanche, the witness, Jim Graham, had delivered to him a knife, and at the time of doing so the said Jim Graham had made the statement that they might want to see the knife, and that he would tell them the knife was at home. And further be it remembered that after the witness Arnold King had testified to the said facts, and had retired from the witness stand, the state then placed witnesses B. T. Simmons and M. L. Harris on the witness stand, and they testified in the presence and hearing of the jury, and over the protest and objections of the defendant, that, soon after the witness Arnold King had retired from the witness stand, they had seen the said witness, Arnold King, in close consultation with his mother and with Bertha King, in the office of the county attorney, and while talking to his mother and sister, Bertha King, who were witnesses in the case, was in a suspicious attitude, but that they did not know what the said Arnold King told his mother or sister. Various and sundry objections were urged to this. We believe that this should not have gone to the jury as impeaching testimony of Arnold King. The mere fact that he talked to his mother and sister after he had testified before the jury, without showing something that was said or done that would reflect on his testimony, would not afford a ground of impeachment. It was admitted by the court, as shown by the explanation, as bearing on the credibility of Arnold King. Arnold King had not been asked about it, and the state simply introduced the fact that after he had retired as a witness he had a conversation with his mother and sister, without stating what that conversation was, or that it had any reference whatever to anything connected with the case. It certainly ought not to be a ground of impeachment that a son and brother would talk to his mother and sister, unless that was in some way connected with the case to show something was said or done that would reflect upon him as a witness.

Another bill recites Mrs. J. K. King testified for the defendant. On her cross-examination counsel for the state asked the following question:

“Did your daughters, Bertha King and Nellie King, ever tell you, after the last trial, that they were going to change their statements, because they could not stand to see Bill go to the penitentiary?”

In response to this, the witness stated that neither of her girls made such a statement to her. Appellant excepted to this, and the court then made this statement:

“The court instructs the jury that so far as any other trial is concerned the jury will not consider that, if they know about that, for any purpose, but that the court will let the question and answer stand, with the understanding that the jury will not consider a former verdict for any purpose.”

On another trial this testimony should not be permitted.

Another bill recites that Carl Graham testified for the state. On cross-examination he admitted that on the night of the homicide he, in company with Mark Mahan, went to the home of J. W. King, the father of the witness Bertha King, and that he went there for the purpose of telling J. W. King and wife that there was nothing in the charge which was being made by Bill Carter against his brother, Clyde Graham, to the effect that Clyde Graham had raped Bertha King, the daughter of J. W. King; and on cross-examination by the defendant the witness testified that he signed the letter hereinafter set out and correctly copied. Bertha King testified in the presence and hearing of the jury that the witness Carl Graham wrote and signed the letter hereinafter set out and fully copied, and delivered the same to her, with the request that she deliver the said letter to Miss May Roe. The witness Carl Graham testified to material facts, in behalf of the state, at the instance and request of the state, and also testified to facts tending to show that Clyde Graham did not drop his knife near where he was killed on the night of the homicide, and at the instance of the state, and in the presence of the jury, testified to facts tending to show that Bill Carter was jealous of Clyde Graham. The letter is then set out directed to Miss May Roe:

“Dear Friend: I will try to write you a few lines to let you know what about that trouble. Say May Mr. Bishop is going to have you in this trial he is going to try to prove by you that Cly raped you dont you swear no such He cant prove it for I am the best witness you would have and they dont care for ruining your car-ácter, and I can save it for you if you will just sware he never done it so I would like to see you Sunday if you can come to Mr. Kings You let Bertha no whether you can come sun-day or not and I will come up here and see you and tell you how to work it if you dont they are going to ruin your carácter for ever and it would kill your ma if she knew it strait so dont let her no it please As ever Carl Graham.”

Appellant ’ offered this for the purpose of showing that Carl Graham, one of the principal witnesses in behalf of the state, was seeking to suppress testimony, and thereby aid the state in the prosecution, and also as a circumstance tending to corroborate the testimony of Bertha King to the effect that Carl Graham had induced her to swear in favor of the state, on a former trial of the case, and for the purpose of showing that Carl Graham, Mark Mahan, and Jim Graham had entered into a conspiracy to send Bill Carter to the penitentiary on false testimony, and for the purpose of showing that Carl Graham was seeking to suppress testimony, in order to accomplish the said purpose. The court excluded this letter and refused to allow same tp be introduced as evidence. The court explains this by saying that he desired to say that Miss May Roe did not testify as a witness in this case, and he could not see that the letter to her had any relevancy to the issues in this case. The letter was addressed to Miss May ROe, who, as the court understands, was a reputable young lady in the Sipe Springs community, and nothing to the contrary was argued or stated by the defendant’s witnesses or his counsel; that he felt that it would be improper and indelicate to inject her name into the case and cause her to be humiliated by giving publicity to a letter which did not in fact reflect upon her character in any way, but indicated a desire upon the part of the writer to save it from being smirched and to save her from being scandalized. The witness was an adverse witness to appellant, and a brother of the deceased, and for the purpose of showing that he was suppressing testimony, and as a general reflection upon him, and as fabricating testimony and as bearing upon his feelings and interest, etc., in that case, we are inclined to the opinion that this testimony was introducible.

Another bill recites practically the same matters as did the former bill, and includes the letter above quoted. The letter, in the attitude of the bill of exceptions, was admissible as stowing intent and the interest that this witness was taking in the case, as well as on the issue of whether or not he was trying to suppress testimony or to fabricate it.

Another bill recites that Bill Wilson testified: That he was the father-in-law of defendant. That about three years ago appellant had married his daughter. That he now lives in Milam county, having moved from Love county, OkL, to Milam county. That he only lived in Oklahoma less than twelve months. That some time in the latter part of November, 1912, he had started to Gorman, and while on the road he met a man named Pritchard. Pritchard got in witness’ buggy, and they started en route to Gorman. Soon afterward, while in the road, he met parties whom he took to be movers. There were several of them and a wagon or two. His mule became frightened at the vehicles, and the first thing he knew Bill Carter jumped out of the first wagon or came from behind it, and had a brand new shotgun in his hands, and presented it on witness and demanded him to halt a time or two. That he did not remember whether he said halt or not, but he said, “I am going to kill you,” and he took deliberate aim at him, and he jumped out of the buggy and hid behind the buggy and mule, and when he jumped behind the buggy the man Pritchard was right behind him. That he must have been close to him when he jumped out of the buggy. That defendant dropped down on his knees and was trying to shoot him under the mule, and Pritch-ard ran in between himself and appellant. That Pritchard began to talk to him and urge him not to shoot, and that appellant continued in his attempt to shoot undfer the mule. There are several pages of this testimony, going into the details of this assault and incidents and matters growing out of the matter. This testimony was not admissible, and, to say the least of it, was very hurtful and harmful. Upon another trial, this matter should not be permitted to go before the jury. If appellant had taken the stand as a witness, and an indictment had been preferred against him for this attack, that fact or the indictment or prosecution might be used, under our authorities, as a means of attacking the testimony; of appellant, or it might be used if he was prosecuted as affecting the issue of the suspended sentence reguest.

Another bill shows the wife of appellant was called as a witness in the presence and hearing of the jury. Upon another trial, this will not occur. As explained by the court, however, it may have amounted to nothing, inasmuch as the court says he suspected that Mrs. Myrtle Carter, wife of defendant, who was called as Mrs. Myrtle Wilson, was the wife of defendant, but called by her maiden name, and upon inquiry ascertained such to be the fact. He then informed the district attorney she would not be a competent witness, and she was not placed upon the stand. As explained, there was no error shown; but upon another trial the wife of appellant should not be so called.

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

PRENDERGAST, P. J.

Evidently the word “not” was not in the court’s charge, for no complaint was made thereof in the court below; its insertion must have been an error of the clerk in copying.

I think the court’s charge, wherein he told the jury if they believe from the evidence beyond a reasonable doubt appellant shot and killed deceased, “not for the purpose of protecting his person from unlawful violence from Clyde Graham, and not because of reasonable apprehension at the time that the said Clyde Graham was using or was about to use unlawful violence upon him, the defendant, then he cannot justify the killing of said Graham, if he did kill him, as done in his lawful defense.” This unquestionably is the law, was applicable in this case, and was presenting the question from the state’s standpoint.
      @=For other cases see same topic and KEY-NUMEER in ali Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    WRIGHT v. STATE.
    (No. 3841.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.
    Rehearing Denied March 8, 1916.)
    1. Criminal Law <§=>1144— Appeal — Presumption.
    It will on appeal be presumed that the action of the trial court was correct unless it appears' to the contrary by the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. <§=>1144.]
    2. Criminal Law <§=>1099 — Appeal—Statement op Facts.
    On stated facts, held that accused, who was convicted on a plea of guilty, entered when he was unable to obtain counsel to represent him, did not show sufficient diligence in obtaining a statement of facts; hence denial of motion for new trial will not be reviewed on affidavits.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <§=> 1099.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    J. R. Wright was convicted of crime, and he appeals.
    Affirmed.
    McOutcheon & Church, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was given two years in the county jail on a plea of guilty, and a waiver of jury, the case being tried by criminal district court No. 2 of Dallas county.

There are no bills of exception and no statement of facts in the record. The attorney for appellant files affidavit, setting up strong grounds why he, appellant, should have been awarded a new trial, and why a refusal to do so would authorize a'reversal of the judgment. This affidavit is met by the affidavit of the district judge, the assistant county attorney, the stenographer, and clerk of the court, which sharply contravenes the affidavit of counsel for appellant. These contradictions are of such a nature this court would not feel justified in reversing. On appeal this court will presume the correctness of the decision of the trial judge. This is the legal presumption. The party who attacks the ruling of the trial court must show that error was committed. In other words, legal presumption of the correctness on the part of the trial court must be properly and legitimately overcome in order to require a reversal. The affidavit of counsel for appellant is rather lengthy, the s.ub-stance of which is that at the time this case was called for trial in criminal district court No. 2 he was in the prosecution of a felony in criminal district court No. 1. The judge of criminal district court No. 2 sent for counsel, and advised him of the situation. The attorney’s statement is to the effect that he asked for a postponement of the ease until he could finish the trial in the other court, which was refused by the judge who tried this case, and appellant was required to go to trial. Counsel who makes the affidavit was in partnership with another attorney, who did not appear in the case. The affidavit further shows that he sought to employ Mr. Baskett, another member of the bar, to take his place by tendering him his fee. This was declined by Mr. Baskett, and appellant was then permitted to go with an officer in quest of an attorney to represent him. After being absent for half an hour or more, he returned and reported his failure to find an attorney, whereupon he pleaded guilty. It is shown that testimony was introduced as to the facts under the plea of guilty, with the result that the court gave him two years’ imprisonment in the county jail, and on the last day of the term motion for a new trial was overruled. Facts were introduced on this motion. It seems from the affidavit it took a wide range, and covered, not only the trial of the motion, but the facts of the case as well; at least that seems to be a proper conclusion from the affidavit. Court adjourned so shortly afterwards appellant’s counsel did not have time to obtain a statement of the facts, either on the trial or on motion for new trial. A stenographer did not take down the testimony on the original trial, but did on the new trial. Mr. McCutcheon further states he was unable to get the statement of facts, and was therefore deprived of a hearing in this court on his appeal. It may also be stated an order was entered in the minutes of the court, granting him time, for the reason that as the term was at its close the statement of facts could not be gotten up before adjournment, the court stating he would see that appellant lost nothing of his rights by reason of that fact. He asked the stenographer to make out a statement of the facts as quick as possible, so as to show no delay. This was on Saturday. On Monday he says he called on the stenographer, and found he was absent in attendance upon the Court of Criminal Appeals as a witness in a case pending in that court. Upon his return the stenographer made out a statement of facts, which was never approved by the county attorney, and after a long delay he failed to get a statement of facts; that he was unable to get a statement of facts on the merits of the case because of want of stenographer, and he was unable to produce it, and the county attorney who tried the case did not make out one. This is in substance the affidavit of counsel for appellant.

The district judge filed an affidavit, stating that he sent for counsel when the case was called for trial, and that his partner, Mr. Church, was in the courtroom at the time; that he informed him of the situation, and counsel withdrew from the case; that Mr. Baskett was in the courtroom and refused to take the case, and Mr. Church, his partner, also refused to have anything to do with it, assigning reasons unnecessary to state; and that he gave appellant time to secure an attorney, but, after looking around for a while, he failed to obtain the service of counsel, and came back and announced he would plead guilty. In this connection it might be stated it is also shown in appellant’s counsel’s affidavit that appellant had been addicted to absinthe drinking, and at the time of the trial was under its influence. The district judge states at the time of the trial appellant appeared to be duly sober, and gave no evidence of being under the influence of any whisky or drug, and seemed to be normal every way. He states that counsel for appellant drew up the order at his (the district judge’s) request that went into the minutes, authorizing the subsequent filing of a statement of facts, stating as the reason the shortness of the term prevented their being filed before it did adjourn. This, of course, was in reference to the evidence introduced on the motion for new trial. The time allowed by him would apply anyway to the facts introduced on the merits of the case. The district judge states the statement of facts was not presented to him by counsel, and he knew nothing of it until subsequently; that his attention was called on the street to the fact that the statement of facts had been on the clerk’s desk for some time, and. he immediately went to the courtroom and read the statement of facts and approved same; that appellant’s counsel never did present him any statement of facts. The clerk filed an affidavit, substantially, that some time after the statement of facts was made up by the stenographer, counsel brought the statement of facts to him and left it with him, and it remained there on his desk for some time until the judge signed same, and that counsel did not file the statement of facts, but took it away, and it has not been returned to him, and therefore has never been filed. The county attorney states he knew nothing about it until one day counsel passed his office door and called his attention to the fact that the statement of facts was on the clerk’s desk, or something of that nature, and that the statement of facts was never presented to him otherwise. The stenographer testifies, within four or five days after court adjourned, he furnished counsel with a statement of the facts, and had received $10 of the $12.50 due for the work. The court at which the conviction occurred adjourned on the 2d day of October. The transcript was certified by the clerk on the 25th day of October. While we have not gone fully into detail, for these affidavits are rather voluminous, this is a substantial statement of the merits of the affidavit and counter affidavits.

In this manner the record is presented to us, and we are of opinion that the showing of diligence on the part of appellant is not sufficient. If appellant had been diligent in the matter and failed to get a statement of facts, we would have a different question, but where the issue is placed as these affidavits place it, in view of the general presumption that the action of the court must be shown to be illegal and incorrect when an attack is made upon it, this showing is not sufficient. If appellant had even filed a statement of facts when he did get the approval of the judge, showing an excuse why this was not done earlier, the showing would be more equitable. This was not done, nor was the statement of facts filed in the trial court, nor tendered to this court with a reason why it was not filed in the trial court.

We do not think the shaving is of such a nature that requires a reversal of the judgment, and it 'is therefore ordered to be affirmed.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    HUDSON v. STATE.
    (No. 3971.)
    (Court of Criminal Appeals of Texas.
    March 1, 1916.)
    Larceny @=368(1) — Issues—Evidence.
    Where defendant was accused, under Pen. Code 1911, art. 1353, of having stolen a horse, evidence that, when he took possession thereof, he did so under claim of ownership, telling witnesses that he had bought the animal, is insufficient to require submission of the issue whether defendant was guilty of willfully driving stock from its accustomed range under Pen. Code 1911, art. 1356.
    [Ed. Note. — Eor other- cases, see Larceny, Cent. Dig. §§ 180, 181; Dec. Dig. <S==>68(1).]
    Appeal from District Court, Crosby County; W. R. Spencer, Judge.
    Willis Hudson was .convicted of larceny, and he appeals.
    Affirmed.
    J. W. Burton, of Crosbyton, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of a horse, the property of C. D. Caldwell, and his punishment assessed at two years’ confinement in the state penitentiary.

No exceptions were reserved to the introduction of any testimony, and no exceptions reserved to the charge of the court. However, appellant in his motion for a new trial complains that the court erred in not submitting the issue of whether or not appellant was guilty of willfully driving stock from its accustomed range as defined in article 1356 of the Penal Code, claiming the evidence raised that issue, and, if they so found, to acquit him, as he was charged with theft of the horse under article 1353.

According to our view of the testimony, there was no evidence raising that issue. It is true there is a suggestion the animal might have been on the range when he took possession of it, but the evidence and all the evidence is that, when he took possession he did so under a claim of ownership, telling two men that he had bought the animal from a man he did not know, near Lubbock.

This issue was fairly submitted in the charge, and the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    GALINDO v. STATE.
    (No. 3982.)
    (Court of Criminal Appeals of Texas.
    March 8, 1916.)
    1. Criminal Law <§^1690(17) — Bill oe Exceptions — Motion in Arrest.
    A record which contained neither a statement of fact nor a bill of exceptions presented nothing for review on appeal except a ruling on motion in arrest, on the ground that the indictment was fatally defective.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3294; Dec. Dig. <S^1090(17).]
    2. Intoxicating Liquors @=^216 — Indictment — Sufficiency.
    An indictment for violation of the local option liquor prohibition law in selling beer need not allege that the beer was an intoxicating liquor.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 230-233; Dee. Dig. 216.]
    Appeal from District Court, Presidio County; W. C. Douglas, Judge.
    Pancho Galindo was convicted of a violation of the local option liquor prohibition law, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for the violation of the local option liquor prohibition law, a felony, and his punishment assessed at the lowest prescribed by law.

There is neither a bill of exceptions nor a statement of facts in the record. The only question, in the absence of these, which can be reviewed is appellant’s motion in arrest of judgment, wherein he contends that the indictment is fatally defective, in that the liquor alleged to have been sold by appellant was beer, contending that in addition to such allegation, it is necessary to allege that beer was an intoxicating liquor. This question has been expressly decided against appellant in Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 156, Ann. Cas. 19140, 863. Hence the court did not err in overruling his motion.

The judgment will be affirmed.
      <g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HAMPTON v. STATE.
    (No. 3920.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.
    Rehearing Denied March 1, 1916.)
    1. Juey <@=>116 — Quashing Venire — Grounds.
    In a prosecution for murder, the clerical error of writing the name of a venireman in the list served on defendant as J. Stam Davis, while in drawing the venire the clerk drew the name of J. Stam Davenport, was not .ground for quashing the venire.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 542, 543; Dec. Dig. <@=>116.]
    2. Homicide <©=>174 — Evidence.
    In a prosecution for murder, where the evidence showed that at the time of deceased’s death she had on her $4.30 in small change, which was not found upon her body, evidence that quarters, nickels, and dimes were plowed up in the back yard of the place occupied by defendant at the time of the murder, was admissible.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 359-371; Dec. Dig. <©=>174.]
    3. Criminal Law <©=>338 — Evidence.
    In a prosecution for murder, evidence that defendant’s dog was seen coming from deceased’s house and going toward defendant’s was admissible, where evidence of footprints and horse tracks tended to show that defendant was traveling in the same direction near where the dog was.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. <©=>338.]
    4. Criminal Law <©=>393 — Evidence.
    In a prosecution for murder, the fact that defendant was under arrest when his foot was fitted to a barefoot track found at the scene of the crime did not render the evidence inadmissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 871-874; Dec. Dig. <©=> 393.]
    ■5. Criminal Law <©=>338 — Evidence.
    In a prosecution for murder, where the hoof of defendant’s horse was measured and shown to have fitted the tracks leading from near ' decedent’s body to defendant’s premises, where the horse was, evidence that a pony was ■tracked from near decedent’s home to defendant’s lot was admissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. <©=>338.]
    6. Criminal Law <©=>534 — Evidence — Confession — Corroboration.
    Where a confession by defendant was in evidence, circumstances tending to connect defendant with the crime, such as that a horse was tracked from decedent’s premises to defendant’s, were admissible to support the confession.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1202-1205; Dec. Dig. <©=> 534.]
    7. Homicide <©=>170 — Evidence*.
    Testimony of a witness that he saw human tracks inside decedent’s field, and they compared closely with defendant’s track, was admissible where the-witness also testified that he measured the tracks and compared them.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 305; Dec. Dig. <©=>170.]
    8. Homicide <©=>170 — Evidence.
    Testimony of a witness, who saw another party measure a barefoot track at the scene of the crime, after such other party had testified to the measurements, that the track appeared to be the same as he saw in defendant’s field was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 305; Dec. Dig. <@=>170.]
    9. Criminal Law <©=>338 — Evidence.
    Where it was evident that there had been a struggle in the killing, and that the murderer might well have become bloody, evidence that a sifting of defendant’s fireplace ashes yielded a set of overall buttons and a set of shirt bottons, other testimony showing that he had worn overalls and a shirt on.the day of the crime, was admissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. <©=>338.]
    10. Witnesses <©=>193 — Evidence — Privilege.
    Testimony that when witness was visiting defendant and his wife she heard the wife, quarreling with defendant, charge him with the crime, which he admitted, was admissible; the matter not being privileged.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 740, 741; Dec. Dig. <©=>193.]
    ill. Witnesses <©=>352 — Impeachment—Reputation for Veracity.
    Where defendant did not offer to prove the reputation for veracity of a witness whom he sought to impeach within the 12 years immediately preceding trial, offered testimony as to her reputation 12 years before was properly excluded as too remote.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1152; Dec. Dig. <©=>352.]
    12. Criminal Law <©=>338 — Evidence.
    The court’s refusal to permit defendant to testify that since his arrest the sheriff had allowed him to go at large was proper.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dee. Dig. <@=>338.]
    j.3. Homicide <©=>252 — Guilt — Sufficiency of Evidence.
    In a prosecution for murder, evidence held sufficient to support verdict of guilty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 518-522; Dec. Dig. <@=>252.]
    14. Criminal Law <@=>361 — Evidence. ,
    Where the state introduced as evidence that blood had been on defendant’s hat, testimony of a witness that when he arrested defendant his hat was slightly burned, also evidence that his arm was scratched, testimony of such witness as to the explanation defendant gave at the time as to why the scratches were on his arm and how Ms hat got burned was improperly excluded.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, 803; Dec. Dig. 361.]
    15. Criminal Law (⅞=»1170 — Appeal—Harmless Error — Exclusion oe Evidence.
    The exclusion of the testimony of the witness who arrested defendant as to the explanation given by the latter of a scratch on his arm and burns on his hat, claimed by the state to have been made to remove blood, was harmless error, where defendant was allowed to testify as to the explanation he had made, and the state did not question it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. 1170.]
    16. Criminal Law <§=»1092 — Appeal and Error-Consideration op Bills op Exception.
    The Court of Criminal Appeals cannot consider bills of exception which the trial court declined to approve on the ground of incorrectness, where there is attached to them no proof, as by bystanders, of their correctness, as required by statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <S=3l092.]
    Appeal from District Court, Franklin County; H. F. O’Neal, Judge.
    Wade Hampton was convicted of murder, and he appeals.
    Judgment affirmed.
    T. C. Hutchings, of Mt. Pleasant, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 99 years’ confinement in the state penitentiary.

Mrs. Talitha Caroline Casey was murdered and her body crowded into a box in her smokehouse October 12, 1891. Appellant was arrested the next day and placed in jail. The grand jury failed to indict him, and he was released. In 1914, 23 years after Mrs. Casey was murdered, additional testimony was discovered, and the grand jury of Franklin county November 4, 1914, returned an indictment charging appellant with the crime. Thereafter he was arrested in Marion county, where he had been since he was released from jail in 1891. The evidence shows beyond a shadow of doubt that Mrs. Casey was brutally murdered; her throat being cut and other wounds inflicted. There were evidences that a severe struggle occurred, and she had fought for her life, but to no avail.

The first two bills in the record complain that the court erred in not permitting appellant to withdraw his announcement of ready and in not quashing the venire drawn. The ground relied on is that in drawing the venire the clerk drew the name of J. Stam Davenport, but in the list served on appellant this name was written J. Stam Davis. This would be good ground for challenge to this juror when called, but a clerical error of this character would be no ground to quash the venire drawn, and the court did not err in overruling the motion to quash the venire. Apparently the court sustained the challenge to the juror, for it does not appear that he served on the jury. Bowen v. State, 3 Tex. App. 617; Mitchell v. State, 36 Tex. Cr. R. 301, 33 S. W. 367, 36 S. W. 456, and cases cited.

Bills of exception Nos. 3 and 4 show that Aaron Brown was permitted to testify:

“That 20 years after the death of Mrs. Casey he plowed up in the back yard of the place occupied by defendant in 1891 some quarters, nickels, and dimes; that the dates on these coins show they were minted in 1855, 1859, 1868, 1876, 1877, 1887, and 1888, ah prior to the death of Mrs. Casey.”

The court did not err in admitting this testimony, for the evidence shows that at the time of the death of Mrs. Casey she had in her purse (which was in her pocket) $4.30, all in small change — no greenbacks; that in the box where she was found, and loose in her clothing at the time of her death, only 85 cents was found; the remainder of the money being missed. It was further shown that appellant lived at the place where the money wag found at the time of the death of Mrs. Casey; that he immediately left, and no other person had occupied that place until this money was plowed up; that it bore evidence of having been buried for a long túne, it being corroded and black. Under such circumstances the evidence was admissible that the jury might determine from all the evidence whether or not this was the money taken from Mrs. Casey at the time she was killed. The court, in approving the bill, states:

“I admitted the coins because they were found in the back yard of defendant, who was the last person who lived on the place up to the time these coins were plowed up. The evidence shows that the deceased, Mrs. Casey, had such coin at the time sbe was murdered, and all the coin bore date prior to the time of Mrs. Casey’s death, and it was admitted as a circumstance for the jury to consider.”

In the next bill it is stated that Marion Ravine was permitted to testify that on the day Mrs. Casey was killed he saw appellant’s dog about 1. o’clock coming from the direction of Mrs. Casey’s and going towards defendant’s house. If this was all the testimony, it would be slight, if any, evidence that appellant also traveled along this way about this time, for Ravine does not claim to have seen appellant on that occasion. But this is not all the evidence. A man’s barefoot track was found in the smokehouse, full of blood, and so clotted that the track could he dug out. Not far from this smokehouse it was found where a horse with a small foot had been hitched; the track of this horse was followed to where it jumped a fence into appellant’s field, and a man’s barefoot track was there found, which corresponded with the track found in the’ smokehouse by the dead body of Mrs. Casey. The horse’s' track was then traced through appellant’s field into Ms lot The track made by appellant’s gray horse found in the lot was measured, and it corresponded with the tracks found where the horse was hitched near Mrs. Oasey’s house, and traced from that point to the place where the fence had been partially taken down, and the horse jumped over the remainder, and with the horse track leading from this place to appellant’s lot. The dog of appellant the witness was permitted to testify about seeing was traveling in the same direction, and near the place where the horse’s tracks were discovered and traced. This rendered the testimony admissible, and especially is this true when the track that was dug up in the smokehouse was fitted to appellant’s foot The fact that appellant was under arrest when this track was fitted to his foot would not render such evidence inadmissible. Walker v. State, 7 Tex. App. 245, 32 Am. Eep. 595; Guerrero v. State, 46 Tex. Cr. R. 447, 80 S. W. 1001; Meyers v. State, 14 Tex. App. 48; Thompson v. State, 45 Tex. Cr. R. 192, 74 S. W. 914; Squires v. State, 54 S. W. 771.

The evidence of the witnesses that they “tracked a pony from near deceased’s home to the back of defendant’s field across the woods and into and through defendant’s field up to the back of his lot” was clearly admissible under all the authorities, and the bills complaining of this matter present no error. Goldsmith v. State, 32 Tex. Cr. R. 112, 22 S. W. 405; Parker v. State, 46 Tex. Cr. R. 465, 80 S. W. 1008, 108 Am. St. Rep. 1021, 3 Ann. Cas. 893. Especially in this case is the testimony admissible, as the record shows the foot of appellant’s gray horse found in his lot was measured and shown to have fitted the tracks leading from near where the deceased’s body was found to appellant’s lot. Of course, tMs does not conclusively prove appellant was riding the horse on this occasion, yet it is a circumstance tending to connect him with the offense. And as a confession of appellant is testified to by another witness, all these circumstances are admissible in evidence, tending to support and show the truth of the confession.

Appellant also objected to Marion Ravine being permitted to testify that he saw in the smokehouse, near the body of deceased, a barefooted human track, which looked to be a grown man’s track, and it appeared to be the same kind of track as that he saw in defendant’s field where the horse jumped the back fence, and objected to the testimony of Bill Stokes that he saw the human tracks inside the field near the fence, and they compared favorably with tracks made by defendant Many and numerous objections were urged to this testimony; but, inasmuch as Stokes testified he measured the tracks and compared them, and by comparison it was his opinion it Was the same track, this testimony was properly admitted. It is true he says:

“The soil was very loose sand, and a correct measurement would be hard to get. We could not get it absolutely correct, but we did the best we could.”

He also says;

“We measured the pony’s tracks and compared them with the tracks found, and they corresponded very well.”

That he gave the measurements to Mr. Langston, who in 1891 was sheriff of the county, and he did not know where they now are. As said in Cordes v. State, 54 Tex. Cr. R. 210, 112 S. W. 943:

“If measurements were made at the time, it is not necessary to produce the stick with which the tracks were measured, on the trial, before proof of result of the measurements is admissible.”

It would be rather remarkable if the measurements, made at the time, 24 years ago, had been preserved, but a witness can testify he measured the tracks at that time and remembers they corresponded. Weaver v. State, 46 Tex. Cr. R. 618, 81 S. W. 39; McLain v. State, 30 Tex. App. 483, 17 S. W. 1092, 28 Am. St. Rep. 934; Goldsmith v. State, 32 Tex. Cr. R. 115, 22 S. W. 405; Thompson v. State, 45 Tex. Cr. R. 192, 74 S. W. 914; Meyers v. State, 14 Tex. App. 48; Weaver v. State, 43 Tex. Cr. R. 344, 65 S. W. 534. While it is true Mir. Ravine Mm-self did not do the measuring, or any measuring, he was with Mr. Stokes, who did the measuring, and after Mr. Stokes had testified to the measurements, the testimony of Mr. Ravine, as well as that of himself, became admissible.

Appellant objected to witnesses being permitted to testify that they at the time— “sifted the ashes in defendant’s fireplace and found a set of buttons which were overall buttons, and a sot of shirt buttons, less one.”

Witnesses who saw appellant on the morning of the homicide testify that he was wearing a pair of overalls, and had on a shirt. When arrested the day after the homicide appellant had on a pair of dark pants and a new shirt. His place was searched for a pair of overalls, and none could be found, when the ashes in the fireplace were sifted and these buttons found. Witnesses testified Mrs. Casey was found in a box in the smokehouse.

“Her throat was slashed on both sides and, as well as I remember, hung down this way (indicating), and one arm or both arms and hands were cut pretty severely. I observed the other conditions in the smokehouse. There had been a terrible fight put up in there. It was a dirt floor, and the ground was all scarred up from the footprints, you know, on the floor; the walls, too, had blood on them, and there was a general disorder of things in there — all torn up, you know — which indicated that there had been a considerable struggle.”

This testimony would indicate that the person who killed Mrs. Casey doubtless would have blood spattered on his clothing, and it was permissible to prove that the overalls appellant had on that day could not be found, and that a set of buttons of a pair of overalls was found in the ashes in the fireplace. This would lead to and authorize the inference that a pair of overalls and shirt had been probably burned in the fireplace but a short time prior to the discovery of the buttons.

Susan Davis testified:

“That about 10 or 12 years ago, while she was visiting the defendant and his wife, Martha Hampton, near Jefferson, Marion county, Tex., she heard a conversation between defendant and his wife at the time they were in a row, in which conversation witness testified that defendant’s wife, Martha Hampton, told defendant that he had killed Mrs. Oasey, deceased; that she knew it; and that he knew at the time that she knew it, and that if he had his just dues he would have been hanged long ago; and that he knew he tried to get her to go with Mm and pretend that they were buying syrup from the deceased and help Mm kill her; and that he came home with bloody clothes and admitted he killed deceased, and asked her (Martha Hampton) not to give him away, and that defendant, in reply to said statement made by his wife, stated that he did kill Mrs. Casey, but if he did so Ms wife and her folks could not prove it on him, and had not been able to have Mm hanged; and that said Martha Hampton used sundry epithets to and concerning defendant.”

Appellant objected to this testimony on the ground that it was a privileged communication, and that as the wife could not he made to testify against her husband, the testimony was inadmissible, hearsay, etc. The court committed no error in admitting the testimony. When third persons hear a conversation between the husband and wife, such person can testify as to what was said, if the testimony is material to the case on trial. Cole v. State, 51 Tex. Cr. R. 93, 101 S. W. 218; Richards v. State, 55 Tex. Cr. R. 280, 116 S. W. 587, and cases cited. This was in no sense a privileged communication, but was a charge made by the wife, in the presence of others, that appellant killed Mrs. Casey, and according to the witness, he not only did not deny it, but admitted he did so.

In bills Nos. 16 and 17 it is shown that appellant offered to prove by J. A. Dozier and others that they knew the witness Susan Davis up to some 10 or 12 years before the trial, and her reputation for truth and veracity at that time was bad. The court sustained an objection to the testimony, and in approving the bills states as his reason for doing so:

“This testimony was excluded because I believed it too remote. The testimony showed that the witness Susan Davis had lived 5 or 6 years in Hunt county, Tex., prior to this trial, and defendant did not attempt to show that her reputation for truth and veracity was bad there, and did not attempt to show that her reputation for truth or veracity had been bad for 12 or 15 years prior to this trial.”

As thus qualified, the bill presents no error. Leach v. State, 180 S. W. 122. Had appellant offered to prove by other witnesses that her reputation, at the time of the trial and shortly prior thereto, for truth and veracity was bad, then all the above testimony would have been admissible. But, as the court says, appellant did not offer to prove the reputation of the witness for any time for 12 years immediately preceding the time she testified, we cannot say he erred in holding it too remote.

There was no error in refusing to permit appellant to testify that since his arrest the sheriff had been allowing him to go at large. The sheriff had no right to do so, if he did; and, if such testimony was admissible, it is apparent, and the jury was informed that the sheriff did permit him to go at large, for such fact is sworn to by several witnesses as shown by this record.

There was no error in refusing the charge, asking the court to instruct the jury peremptorily to acquit. The evidence, and all the evidence, will support a verdict of guilty.

There are two other bills in the record, and we are of the opinion they both present error. In bill No. 10 it is shown that Mr. Stokes, while testifying, stated when he arrested appellant in 1891, he found “some scratched places on defendant’s arm,” and his hat was “slightly burned or scorched.” The state introduced these circumstances, with other testimony, that the burned place on the hat, when scraped, showed evidence of blood having been on the hat, as evidence tending to prove his guilt. Appellant desired to prove by Mr. Stokes the explanation he gave at the time as to why the scratches were on his arm and how his hat got burned. The court should have admitted this testimony. The statement was made contemporaneous with finding the scratches on the arm and the burnt place on the hat. The record shows that the court did permit the witness to testify: “The defendant explained how the scratches came to be on his arm,” etc. As before stated, the court should have permitted the witness to state the explanations in full; but, inasmuch as he did not do so, but did permit appellant to testify:

“I heard Mr. Stokes tell about the scratch on my arm. I guess that was made by me fighting with them big yearling calves in the lot. I expect that is how come that. In that day and time I mostly goes with my sleeves rolled up. I was covering a little house at that time, and it might have been done up on the house. It was just a little scratch on the arm. I heard them talking about the burnt places on my hat. My little kid that morning — I don’t know, but I think we were eating breakfast, but my hat was lying in a chair or maybe on an old stool bench, and the kid picks the hat up and throws.it in the fire, and Martha hadn’t raked up the embers where she had been cooking with skillets. We had big skillets in that day and time. That is how come them burnt places on the hat, them cinders had burnt the hat, and it is a wonder they hadn’t burnt it up. I testified that to those white men in regards to that hat. It has been a long time, but I testified to that”

—no reversible error is presented. TMs shows the explanation got in evidence before the jury, and as the state did not cross-examine him on that explanation, nor seek in any way to question that it was the explanation he gave to Mir. Stokes at the time of his first arrest, and is the same explanation that the bills say Mr. Stokes would have testified to, we do not feel authorized to reverse the case because Blr. Stokes was not permitted to so testify. If the explanation had not been in evidence, or if the state had questioned it was not the explanation he gave at the time, we would view the matter differently. But as the explanation was before the jury, and it was unquestioned it was the explanation he gave at the time, the bills do not present reversible error.

These are all the bills in the record, but to an affidavit filed by appellant’s counsel there is attached five other bills, each of which is marked:

“I decline to approve this bill of exception because in my opinion it is not correct.
“[Signed] H. F. O’Neal, Judge.”

As the court declines to approve the bills, on the ground they are incorrect, we cannot consider them. Under the state of facts as sworn to by appellant, had he proven up these bills by bystanders, we would consider them, even though filed subsequent to the time allowed to file "bills. But with no proof offered that the bills present questions raised ■on the trial, we are not authorized to review them. The fact must be evidenced in some way that the bills correctly present the exception reserved, and that the exception was reserved during the trial of the case at the proper time. The court says no such bills of ■exception were reserved. Appellant offers no proof that they were reserved, or the matters complained of in them occurred. It is true appellant swears he presented the bills to the court and asked that they be allowed at the same time he presented the other bills; that in returning the bills these five were returned unsigned, when he filed the others and sent these five back to the court for his signature; that the court kept them for some time and then returned them, declining to approve them for the reasons stated. If appellant, expected us to consider them, he ■should have attached to them some proof of their correctness, as provided by statute. In the absence of such proof, they cannot be considered.

The judgment is affirmed.

DAVIDSON, J., not present at consultation.
      <S=oFor other cases see same topic and KEY-NUMBBP. in all Key-Numbered Digests and Indexes

      (g=3jPor otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. HARPER, J.

text:
    GLEASON v. STATE.
    (No. 3913.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.
    On Motion for Rehearing, March 1, 1916.)
    1. Seduction <§=w45 — Sufficiency of Evidence.
    In a prosecution for seduction, evidence held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 80-S2; Dec. Dig. <§=>45.]
    2. Seduction ⅞=>34 — Promise—Baboain and Sale.
    It is only in eases where no previous relations existed that would suggest love and confidence existed, if prosecutrix yielded solely in consideration of defendant’s promise to marry her if she would yield to him, that an issue of bargain and sale can arise.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 58-60; Dec. Dig. <§=s>34.]
    3. Witnesses <§=>410 — Impeachment — Cor-BOBORATION.
    In a prosecution for seduction, where the defendant introduced the testimony of prosecu-trix on the former trial to impeach her as to a prior existing promise of marriage, the state in corroboration might show by her mother that prior to the alleged intercourse she had told her that she and defendant were. engaged, and by testimony of another witness that she helped her in making the wedding clothes.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. <§=>410.]
    4. Witnesses <§=240 — Leading Questions— Permissibility.
    In a prosecution for seduction, it was not improper to permit such questions as: “State whether or not you loved the defendant.” “State whether or not you would have submitted to the defendant that night if you had not loved him.”
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig, <§=>240.]
    5. Seduction <§=>40 — Evidence—Promise.
    In a prosecution for seduction after prose-cutrix had testified to meeting defendant several times after she was aware of her pregnancy, and that he always promised that he would marry her, it was not improper to permit her to testify that shortly before the birth of the child he said that he was not going to marry her, and “that she could go to hell, or any other damn place,” and then fled the country and was gone for some six or eight months.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dec. Dig. <§=>40.]
    6. Criminal Law <§==>361 — Evidence—'Whole Conversation.
    In such prosecution, where a witness testified that defendant, when asked if he “used any preventative or anything to protect the girl, said he didn’t, he took it straight,” and that “he would not mind marrying her if he could get a divorce, and that if he had to marry her and live with her he would rather go to the pen,” it was proper to permit the entire conversation, amounting to a confession of intercourse, to be put in, to make defendant’s statements intelligible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, 803; Dec. Dig. <§=> 361.]
    7. Seduction <¾=46 — Corroboration—Promise.
    Such statement of defendant, read in the light of the entire conversation, amounted to an admission that he felt obligated to marry the prosecutrix and was corroborative of her statement that they were engaged.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dee. Dig. <§=46.]
    8. Criminal Law <§==>1120(3) — Bill of Exceptions — Evidence.
    A bill of exceptions, not stating what the answer of a witness would have been to question propounded, or that it went to any material fact in the past, presented nothing for review.
    [Ed. Note. — For other cases, _see Criminal Law, Cent. Dig. §§ 2931, 2932; Dec. Dig. <§=> 1120(3).]

      9. Witnesses @=393 — Credibility—Inconsistent Statements.
    In a trial for seduction, where the testimony of a witness for defendant tended to show that prosecutrix was not a virtuous and chaste female, it was proper to allow testimony showing that witness had made contrary statements on the former trial; nor was it necessary to limit such impeaching testimony having no tendency to show defendant’s guilt and bearing only on the weight to be given the witness’ testimony as affecting the reputation of the prosecutrix.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. @=393.]
    10. Witnesses @=414t-Cross-Bxamination —Credibility:
    In a trial for seduction, where defendant cross-examined the prosecutrix, and introduced her testimony on the former trial to impeach her, and asked what the attorneys had said to her since the former trial to create the impression that her additional testimony on the second trial was a recent fabrication, it was proper to permit the state’s counsel to ask her in rebuttal to state whether he told her the case had been reversed and wanted to know if there was anything she had forgotten.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. ©=414.]
    11. Seduction @=48 — Tbia:i>-Pbesence oe Child.
    In a trial for seduction, the fact that the prosecutrix, when called as a witness, came into the courtroom with her child in her arms, but as soon as the court’s attention was called to that fact the child was taken out of the courtroom, it not appearing that the jury saw more than that she merely carried the child, presented no error.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 87; Dec. Dig. @=348.]
    12. Seduction @=>42 — Corroboration—Character.
    In a prosecution for seduction, where defendant had severely attacked the chastity and virtue of the. prosecutrix to show that he would not be guilty even if he had promised to marry her, evidence that she was a church member, that her reputation was good, that she attended church, parties, etc., and associated generally with the young people of the community, was admissible.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 73-75; Dec. Dig. @3=42.]
    13. Seduction @=34 — Oeeense — Reliance on Promise.
    To constitute a case of seduction, the pros-ecutrix must have implicit faith in, and rely on, the promise of marriage.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 58-60; Dee. Dig. @=34.]
    14. Seduction @=49 — Trial — Peremptory Instruction.
    In a trial for seduction, where the testimony of a witness as to the admissions of defendant corroborating prosecutrix as to both a promise of marriage and an act of intercourse, a peremptory instruction for defendant on the ground that there was no evidence corroborating the testimony of prosecutrix, as to those 'matters, was properly refused.
    [Ed. Note. — For other eases, see Seduction, Cent. Dig. § 88; Dec. Dig. ⅞=49.]
    15. Criminal Daw @=829 — Requested Instruction-Given Instruction.
    In a prosecution for seduction, where the court gave approved charges on accomplice testimony, it was not necessary to give the special charge requested on that issue.
    [Ed. Note. — For other eases, see Criminal Daw, Cent. Dig. § 2011; Dee. Dig. @=829.]
    16. Criminal Daw @=829 — Requested In- ■ structions — Given Instructions — Reasonable Doubt.
    In a prosecution for. seduction, where the whole defense, outside of the plea of not guilty, was based on evidence that the prosecutrix was not a virtuous and chaste girl, and where the court fully instructed the jury on the presumption of innocence and reasonable doubt, there was no necessity to give the special charges requested thereon.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dec. Dig. @=829.]
    17. Seduction @=46 — Instructions — Corroboration — “Accomplice.”
    In a prosecution for seduction, the prosecu-trix was in law an accomplice, and defendant could not be convicted upon her testimony alone, unless it was believed to be true, to connect him with the offense, and was corroborated by evidence tending to connect him with the offense, which corroboration could not be supplied by the prosecutrix.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 83-86; Dec. Dig. @=46.
    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    On Motion for Rehearing.
    18. Witnesses @=414^0orroboration.
    In a prosecution for seduction, whore defendant attempted to show that the additional testimony given by prosecutrix on the second trial was a recent fabrication, the testimony of prosecutrix might be supported by the testimony of her mother and sister that she had made statements prior to the prosecution agreeing with her testimony on the trial; such testimony bearing upon whether she was telling the truth on the trial, and not permitting her to corroborate herself.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 12S8; Dec. Dig. @=414.]
    19. Seduction @=36 — Defenses—Scope.
    In a prosecution for seduction, the defense that the transaction was a bargain and sale would be included in the defense that prosecu-trix was not virtuous and chaste.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 62; Dec. Dig. @=36.]
    20. Seduction @=34^-Elements oe Oeeense —Promise.
    In a prosecution for seduction, it is the yielding relying on the promise and defendant’s conduct that authorizes a conviction.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 58-60; Dec. Dig. @=34.]
    21. Seduction @=45 — Sueeiciency oe Evidence.
    In a prosecution for seduction, the fact that the child was born in about eight months from the time prosecutrix fixed as the date of intercourse would not render the testimony wholly insufficient to sustain a conviction, in view of testimony that children who are born in eight months from conception frequently live.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 8CP-82; Dec. Dig. @=45.]
    Appeal from District Court, Jack County; F. O. McKinsey, Judge.
    Wilburn Gleason was convicted of seduction, and he appeals.
    Affirmed.
    Stark & Stark, of Jacksboro, and Fitzgerald & Cox, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Prom a conviction for the offense of seduction with punishment assessed at two years’ confinement in the penitentiary, appellant prosecutes this appeal. This is the second appeal, the opinion on the former appeal being reported in 178 S. W. 506.

The case on the former appeal was reversed because the evidence was insufficient to support the conviction. The state on this trial developed its case more fully, and the prosecutrix testified to many additional facts. On direct examination this time she testified:

“My name is Maggie Davis. On the 28th of November, 1912, I was 20 years old. I know the defendant. Pie used to come to. see me. I have been knowing him all my life. We have been raised together; played together when we were children. He had been coming to see me about two years before November, 1912. He came as my regular suitor. He went out in public with me, to church and singings and parties, and called on me at my house. lie courted me. He proposed marriage to me, at my home, about six months before November, 1912. We became engaged at that time. He had mentioned marriage to me before that, about a month before, and I did not accept him then; but we became engaged about six months before the 28th of November, 1912. The defendant went with me continuously after he became engaged to me. I was with defendant on the night of November 28, 1912. We went to a little entertainment that night at his brother’s. The defendant came to my house after me. Going over there, the defendant tried to get me to show him a good time. He put his arm around me. He took me home that night after the entertainment. Just as soon as we left the party _, he began to insist on me showing him a good time, and he begged me until we got about a mile of home, and he promised that he would marry me if I would show him a good time. He says, ‘You know we intend to marry, and what will this amount to?’ And he kept on begging me to show him a good time, that he was a man of his word and knew that he would marry me, and so I submitted to him. We were in the buggy when I submitted to him. I mean, he had sexual intercourse with me. I believed at that time we would become man and wife. I would not have submitted to him if I had not thought that, and if he had not promised it. That operation gave me pain. The defendant and I were sweethearts when we were boy and girl together.-
“After that occurrence, I next saw the defendant Christmas week. He came down to our house to use our telephone. I didn’t talk to him of my condition. I afterwards told him of my condition, on the 13th of January, at my house. I reminded him of his promise at that time. He said he would see me out; that he would fill his promise. I bore a child by the defendant. He is the father of the child I bore. After I talked to the defendant, on the occasion last mentioned, I next saw him in about two weeks, I guess; something like that. He was at our house at that time, after water. I saw the defendant at Hamilton’s. That was in February, if I am not mistaken. I told him then about my condition. He said, T will see you out.’ I made preparations to get married to the defendant. I did part of my sewing, and my sister helped me, my sister Etta Stewart. The defendant never did marry me. About a month before the child was born, the defendant, Wilburn Gleason, refused to marry me. He was at our house, and I reminded him of it and asked him what he was going to do, and he said, ‘Nothing.’ He said he wasn’t going to do anything; that I could go to hell, or any other damn place I wanted to. Before that he had at all times said he would carry out his promise. At the time I had intercourse with the defendant in the buggy, I was not married to him nor to any one. This act of intercourse that I have testified about,' with the defendant, took place in Jack county, state of Texas.”

By reading this evidence and her evidence on the former trial, quoted in the opinion on the first appeal, it will be seen she testifies to many facts and circumstances which go to make a case of seduction that she did not testify to on the first trial. In the first ease, from her testimony, it would appear that the promise of marriage took place at the time of the alleged act of intercourse. On this trial she testifies that they had been engaged some six months prior thereto, and appellant had been coming to see her and courting her for two years next preceding the date of the alleged act of intercourse. Such additional facts furnish grounds for her reliance on his promise, and that she was led away from the path of virtue by the deceitful promises, acts, and conduct of appellant. Young people who have associated together from childhood, and who while children are “sweethearts,” as she testifies in this instance, ordinarily trust each other and place more reliance in promises made than they do in a person whom they have only casually met since becoming grown. If appellant had been “courting” the girl for two years, became engaged to marry her some six months prior to the first act of intercourse, the fact she testified she yielded to him because of the promise of marriage, and but for such relation existing she would not have yielded to him, does not raise the issuo of “barter and sale,” where other facts are detailed as the prosecutrix détails them on this trial. It is only in eases where no previous relations existed that would suggest love and confidence existed, if she yielded solely in consideration of the man telling her he will marry her if she will yield to him, that such an issue can arise. No such state of case is presented on this trial. The evidence on the former trial, not being fully developed, did present such a state of case; but, as before said, the case was more fully developed on this trial, and this led appellant to give the girl a most severe and rigid and cross-examination as to what she had sworn to on the former trial; that she had not testified to him courting her for two years prior to the alleged act, and had not testified to the engagement to marry being of six months’ standing at that time. This cross-examination might not, in and of itself, have authorized the 'state to support the girl by proof of prior statements made before the date of the alleged act of intercourse; but, where appellant introduced her testimony on the former trial to impeach her as to a prior existing promise of marriage, then the state could support her testimony and prove by the mother that, some two or three months prior to the alleged act of intercourse, the witness had told lier about she and appellant being engaged to be married. Whenever the opposite side seeks to impeach a witness as to any statement material to the case, then the party calling the witness can support the witness by proving that she had made statements consistent with her testimony on the trial, prior to the time any occasion had arisen for her to testify falsely. This rule of law also renders admissible the testimony of Mrs. Etta Stewart, who testified she helped the prosecu-trix in making her wedding clothes. This testimony supported the girl that an engagement to marry existed prior to the date of the alleged seduction, and, appellant having sought to impeach her on that issue, she could be supported. Williams v. State, 24 Tex. App. 665, 7 S. W. 333; Jones v. State, 38 Tex. Cr. R. 103, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Keith v. State, 44 S. W. 849; English v. State, 34 Tex. Cr. R. 200, 30 S. W. 233; Reddick v. State, 35 Tex. Cr. R. 469, 34 S. W. 274, 60 Am. St. Rep. 56; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456.

A number of questions to the prosecuting witness, such as, “State whether or not you loved the defendant,” “State whether or not you would have submitted to the defendant that night if you had not loved him,” were objected to by appellant as leading. Under the record in this case it was not improper to permit such questions to be propounded. Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 222; Fine v. State, 81 S. W. 723; Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477. And after Miss Davis had testified to meeting appellant several times after she became aware she was pregnant, and he always promised that he would carry out his promise and marry her, it was not improper to permit her to testify that, shortly before the birth of the baby, appellant was at her home, and at that time said he wasi not going to marry her, and “that she could go toi hell, or any other damn place,” and then fled the country and was gone for some six or eight months.

Walter Hamilton was testifying to a conversation he had with appellant, and appellant objected to the witness stating what he (witness) said to appellant, as it was necessary to render intelligible the statements of appellant on that occasion, the court committed no error in permitting the entire conversation to be testified to. On that occasion, appellant, when asked if he “used any preventative or anything to protect the girl, appellant said he didn’t; he took it straight.” This expression would not be intelligible without the entire connection being stated; but, when the whole conversation is related, it amounts to a confession of illicit intercourse. Likewise, the statement of appellant when he said “he would not mind marrying her if he could get a divorce, if he would not have to live with her. He said if he had to marry her and live with her he would rather go to the pen.” This statement, when read in, the light of the entire conversation, amounted to an admission that he felt legally obligated to marry the girl and is corroborative of her statement that an engagement to marry existed between the parties. Davis v. State, 3 Tex. App. 91; Stockman v. State, 24 Tex. App. 387, 6 S. W. 298, 5 Am. St. Rep. 894; Gaither v. State, 21 Tex. App. 527, 1 S. W. 456.

As in bill No. 9 it is not stated what the answer of Dr. Key would have been to the question propounded, the bill is incomplete, and presents nothing for review. The testimony expected to be elicited must always be shown, and that it is as to some material fact in the past. May v. State, 25 Tex. App. 114, 7 S. W. 588; Schoenfeldt v. State, 30 Tex. App. 695, 18 S. W. 640.

As defendant introduced Tom Allen as a witness on this trial, and the said witness testified to a state of facts material to his defense, it was not improper to permit witnesses to testify that they had talked with Allen at the former trial, and he had then stated he knew nothing derogatory to Miss Davis, the prosecuting witness. On this trial he testified to a very damaging state of facts, which, if believed, would have a material tendency to show that she was not a virtuous and chaste female, and it was proper to permit testimony to be introduced showing that he had made contrary statements at the time of the former trial. Nor was it necessary to limit this impeaching testimony, as it had no tendency to show appellant’s guilt of the charge. All it would and could be used for by the jury was in passing on what weight they would give Allen’s testimony as affecting the reputation of the girl. Brown v. State, 24 Tex. App. 170, 5 S. W. 685; Poyner v. State, 40 Tex. Cr. R. 640, 51 S. W. 376; Schwartz v. State, 53 Tex. Cr. R. 451, 111 S. W. 399; Thompson v. State, 55 Tex. Cr. R. 120, 113 S. W. 536.

As hereinbefore stated, appellant was severe in his cross-examination of Miss Davis, introduced her testimony' on the former trial to impeach her, and on his cross-examination asked what the attorneys had said to her since the former trial, etc. Thus it is seen that an effort was made to create the impression that her testimony was of recent fabrication, and the attorneys at least had suggested to her wherein it was necessary that her testimony be added to. Under such circumstances, there was no error in permitting state’s counsel to ask her, in rebuttal of such cross-examination:

“Miss Maggie, state whether or not it is a fact that Mr. McComb and I told you the case had been reversed, and we wanted to know if there was anything you had forgotten; that we wanted to know the truth, the whole truth, and nothing but the truth.”

And in permitting her to answer the question. The defendant in his cross-examination had already brought out the fact that the case had been reversed on appeal. The court in approving the bill says:

“Approved with the explanation that the pros-ecutrix was asked about a number of matters that she was not asked about on the former trial, and her doings and relations with the defendant were, by questions propounded by state’s counsel, much more fully developed than had been done on the former trial. She was severely cross-examined by defendant’s counsel on the difference between her present and former testimony, and the impression sought to be made that the new facts testified to by her were fabrications suggested to her by state’s counsel.”

'When Miss Davis was called as a witness, she came into the courtroom with her baby in her arms. As soon as the court’s attention was called to that fact, he had the baby carried out of the courtroom. As it does not appear that the jury saw more than she merely had a baby, and that fact was testified to by a number of witnesses, the bill presents no error.

The court did not err in refusing to give peremptory instructions to acquit. The facts on this trial will and do sustain the verdict of the jury.

The fact that Mrs. Davis, the mother of the prosecutrix, was permitted to incidentally state that she was a member of the church, without stating what church, or any fact connected with her membership, is not a matter that could have had any bearing on the issues in the ease. The severe assault appellant made on the character of the girl, in an effort to show that she was lacking in chastity and virtue, and therefore he would not be guilty, even if he had had intercourse with her, certainly rendered testimony admissible that the girl’s reputation for virtue and chastity was good; that she moved in the best circles of "society, attended church, attended the singings, dances, and parties, and associated generally with the young people of the community, and if in connection therewith it was shown her mother was a member of the church, if error, it was not such error as would call for a reversal of the ease. The mother, in a measure, was attacked as well as the girl, by the witness Allen.

If the young lady had submitted her person to appellant without relying on a promise of marriage, there could be no case of seduction; therefore the court did not err in refusing the special charge asking him to instruct the jury:

“If you find that the prosecutrix, Miss Maggie Davis, submitted to appellant wholly on account of his said promise to marry her, you will acquit him.”

This is not the law, but, on the contrary, she must have implicit faith in and rely on the promise of marriage to constitute a case of seduction.

Appellant asked for peremptory instructions on the ground that there was no evidence corroborative of her testimony as to a promise of marriage, and on the ground that there was no testimony corroborative as to her testimony as to an act of intercourse, and then asked a charge that, if she was not corroborated both as to promise of marriage •and an act of intercourse, they would acquit. As hereinbefore shown, the testimony of Walter Hamilton as to admissions of appellant would corroborate her as to both a promise of marriage and an act of intercourse, for he told that witness he used no preventative, but took it “straight,” and said he would not mind marrying her if he did not have to live with her, but rather than live with her he would go to the pen. In addition to this testimony, there are other facts and circumstances in evidence tending to corroborate the girl’s testimony. The court gave the charges on accomplice testimony approved by this court in the case of Campbell v. State, 57 Tex. Cr. R. 301, 123 S. W. 584, and it was not necessary to give the special charges requested on that issue.

As the court fully instructed the jury on the presumption of innocence and reasonable doubt, there was no necessity to give the special charges requested on this matter. The court instructed the jury:

“The term ‘seduce,’ as used in this charge, means to lead a woman away from the path of virtue. Now, if you believe from the evidence beyond a reasonable doubt that the defendant, Wilburn Gleason, did in Jack county, Tex., on or about the 28th day of November, 1912, by promise of marriage, seduce the witness Maggie Davis and did have carnal knowledge of her, and that said Maggie Davis was at the time an unmarried female under 25 years of age, you will find the defendant guilty as charged in the indictment and assess bis punishment at imprisonment in the penitentiary not less than two nor more than ten years.
“Before you can convict the defendant, you must believe from the evidence beyond a reasonable doubt: (a) That said witness Maggie Davis was at the time in question under 25 years of age; (b) that the defendant had carnal knowledge of her on or about the 28th day of November, 1912; (c) that up to the time that the defendant had carnal knowledge of Miss Maggie Davis, if he did have carnal knowledge of her, she was a chaste female; and (d) that the defendant had carnal knowledge of said Maggie Davis by promise of marriage. And if you have a reasonable doubt as to either one of the matters submitted and designated in this paragraph as ‘a,’ ‘b,’ ⅛,’ and ‘d,’ you will acquit the defendant, and say by your verdict ‘not guilty.’ ”

After having thus instructed the jury, it was wholly unnecessary to give the special charges requested by defendant. Outside of his plea of not guilty, his whole defense was based on evidence introduced by him that the girl was not a virtuous and chaste girl, and this defense was fully presented in the charge above. In addition to the above paragraphs, the court instructed the jury:

“I instruct you that the witness Miss Maggie Davis is what is known in law as an ‘accomplice,’ and I further instruct you that you cannot convict the defendant upon her testimony alone, unless you first believe her testimony to be true, and that it connects the defendant with the offense charged, and then you cannot convict him upon the testimony of said witness unless you further believe that there is other testimony in the case corroborative of such accomplice’s testimony, tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense charged; and in passing upon this issue you may look to all the facts and circumstances in evidence in this case. You are further instructed that the witness Maggie Ha-yis cannot corroborate herself.”

The criticisms of this charge present no error, and the judgment is affirmed.

DAVIDSON, J., not present at consultation.

On Motion for Rehearing.

HARPER, J.

This case was affirmed at a former day of this term, and appellant has filed a motion for rehearing in which he assigns five grounds in which he thinks the court erred in the original opinion, conceding that the court was perhaps correct in passing on the other propositions presented. Owing to the earnest insistence of appellant’s counsel, we have again reviewed the five questions presented.

The first contention is that the evidence of the young lady would not make a case of seduction, hut shows a case of barter and sale. Her testimony on direct examination is copied in full in the original opinion, and we think it shows a case of seduction, and not barter and sale, and would justify a conviction if corroborated.

The next contention is that the court erred in holding that the testimony of the prosecuting witness could be supported by the testimony of her mother and sister. If appellant had made no attack on the witness, his contention would be sound; but it has always been the rule in this court that if defendant’s case is that the witness testified under corrupt motives, or where it is sought to show that the testimony is of recent fabrication, state may sustain witness by proof of similar statements in harmony with her testimony, made before any motive existed to testify falsely. English v. State, 34 Tex. Cr. R. 200, 30 S. W. 233; Reddick v. State, 35 Tex. Cr. R. 469, 34 S. W. 274, 60 Am. St. Rep. 56; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; Williams v. State, 24 Tex. App. 665, 7 S. W. 333; Jones v. State, 38 Tex. Cr. R. 103, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Ballow v. State, 42 Tex. Cr. R. 266, 58 S. W. 1023.

Appellant certainly cannot contend that he was not endeavoring to show that the additional testimony she gave on this trial to what she had given on the former trial was not of recent fabrication, and cannot contend that he was not insisting that it was conceived by her after a conference with attorneys representing the state. And certainly this was the purpose of appellant introducing, in rebuttal of her testimony on this trial, her testimony given at the former trial, and that she had made contradictory statements. Certainly, under such circumstances, the state could support its witness by showing that she had made statements prior to the institution of this prosecution in conformity with her testimony on this trial. It was not permitting a conviction by allowing her to corroborate herself, but such testimony was admissible to aid the jury in determining whether or not she was speaking the truth on this trial. The court in his charge instructed the jury that “the witness Maggie Davis could not corroborate herself.”

The next contention is that we erred in holding that the testimony of Walter Hamilton corroborated the prosecuting witness both as to promise of marriage and sexual intercourse. Appellant concedes that the testimony of this witness does corroborate the prosecutrix as to an act of intercourse, but earnestly insists that it does not corroborate her as to a promise of marriage. We have again read this witness’ testimony, and, while the witness does not use the words “he told me he promised to marry her,” yet no other deduction could be drawn from the testimony of the witness.

He insists we erred in stating that appellant’s defense, in addition to a plea of not guilty, was that the girl was not a virtuous and chaste girl, and that he had the additional defense that the transaction was one of barter and sale. This would be included in the statement that she was not virtuous and chaste. But we did not hold that such an issue was not in the case, but, if raised, it was sufficiently presented in the court’s charge, and the jury found against such contention. It was not proper to charge the jury, as requested by appellant, that if the prosecutrix relied solely on the promise of marriage in yielding to appellant, he should be acquitted. It is because of the yielding, relying on the promise, and appellant’s conduct, that a conviction is authorized.

The fifth contention is that we did not pass on the assignment that the evidence was insufficient to sustain the conviction. We certainly thought that it could be gathered from the opinion that we thought the evidence ample to sustain the verdict. It is true that the baby was born in about eight months from the time the young lady gives as the date of the act of intercourse, but this fact would not render the testimony wholly insufficient. As testified to by the doctor in this case, children who are bom in eight months from conception frequently live. The fact that it was born in eight months, its size, condition, etc., are to be considered with all the facts in the ease, and we suppose appellant’s able counsel presented this circumstance to the jury with the same force and ability that they present it in their brief and in this motion; yet the jury found adversely to their contention, and we cannot say they were not authorized under all the evidence to do so.

The motion for rehearing is overruled.
      <§=>For other oases 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