author: FLY, C. J.

text:
    ROACH, STANSELL & CRANE v. GREEN et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1914.
    Rehearing Denied March 11, 1914.)
    Cowtiíacts (§ 16) — Breach — Right of Action'.
    Where plaintiff,’ who was employed by defendants to work with his teams on an irrigation canal, knew, when he took his teams to the place of work without defendants’ request, that the right of way-had not been secured, and was told by defendants to see the irrigation company, for which defendants were constructing the canal, and defendants’ only promise as to giving plaintiff work was to give him work in two days if the right of way was not obtained, which promise was not renewed, and plaintiff was not asked to remain after such two days, plaintiff was not entitled to damages for being kept- from working because of failure to procure the right of way.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 71-92; Dec. Dig. § 16.]
    Appeal from Medina County Court; H. E. Haass, Judge.
    Action by C. N. Green against Roach, Stan-sell & Crane, in which defendants set up a cross-action against the Medina Valley Irrigation Company. From a judgment for plaintiff against the original defendants, and in favor of the Irrigation Company, such defendants appeal.
    Judgment as to Irrigation Company affirmed, and judgment for plaintiff reversed and rendered.
    P. H. Swearingen, of San Antonio, for appellants. V. H. Blocker, of Hondo, Wm. Aubrey and Duval West, both of San Antonio,' and De Montel & Fly, of Hondo, for appel-lees.

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

   FLY, C. J.

This is a suit for damages instituted by G. N. Green against appellants, the cause of action being based on the allegation that appellants had employed him to work on the irrigation canal of the Medina Irrigation Company, and that he had moved his teams and outfit to the place where the work was to be performed and offered to perform the work, but could not do so because the right of way .had not been procured, and that he held his teams at said place for 21 days upon the constant assurance of appellants that .the right of way would be procured. .Appellants defended on the ground that Green could have prevented the damages by obtaining othet work, pleaded a release from Green, and set up a cross-action against the Medina Valley Irrigation Company, formerly the Medina Irrigation Company, alleging that they had made a contract with that company to build the canal, and that the company had agreed to furnish the right of way, but had failed so to do, and; they prayed for judgment over against the Irrigation Company for any sum that might be recovered by Green. A trial by jury resulted in a verdict and judgment in favor of Green against appellants for $840, and in favor of the Irrigation Company as to appellants’ , demand.

, The grounds of recovery alleged in the petition were that appellant employed Green to perform work on the irrigation canal; that he took his teams to the place where the work’ was to be performed; ■ that appellants “informed and caused plaintiff to believe that he could begin work on said canal, as stipulated in their contract, at once, and that the engineers of said Irrigation Company had secured the right of way, located and staked out the bounds of said canal, when in fact and in truth said right of way and the bounds of said canal had not then been secured or obtained, nor thereafter up to said date of June 13, 1912, by said Irrigation Company.” The evidence of Green shows that when he took his teams to the place where the canal was to be dug he knew that the right of way had not been obtained, and when he inquired of appellants about it they told him to go to the Irrigation Company about it. Crane, one of the appellants, with whom Green had all his dealings, did not tell Green to move to the place. There was no promise upon the part of appellants to give work to Green, except to give it in two ‘days if the right of way was was not obtained, and that was not renewed, so 'as to keep Green idle after that time. No inducement was held out to Green to stay after the expiration of the two days. Green admitted this. Green knew the condition of affairs as well as appellants. He knew that the right of way had not been obtained, and knew that appellants could not obtain it. They did not tell Green to remain. There was a total failure to make out a case, and a verdict should have been instructed for appellants.

The judgment as to the Irrigation Company is affirmed, but the judgment in favor of O. N. Green, as against appellants, is reversed, and judgment here rendered that he take nothing by his.suit, and pay all costs of this court and the lower court

Affirmed in part, and reversed and rendered in part.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    Criminal Law (§ 938) — New Trial — Newly Discovered Evidence in General.
    The overruling of a motion for a new trial, presenting affidavits of two witnesses that they heard a conversation in which the prosecuting witness authorized defendant to sell the animal he was charged with stealing, qualified by the court’s statement that it was not filed until 30 days after trial, was contradictory of defendant’s own testimony, and was not newly discovered evidence, in that defendant knew or could have known of their testimony, was not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    Appeal from District Court, Grimes Coanty; S. W. Dean, Judge.
    Sam Smith was convicted of cattle theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of cattle theft; his punishment being assessed at two years in the penitentiary.

There are no bills of exceptions in the record. The state contends that appellant sold the animal in question. This is conceded by appellant. Appellant’s contention is that he had authority from the Richardsons to sell the calf in question, and for which they paid him. This is denied by the Richardsons. They claim they had authorized him to sell one yearling, but not the calf in question. Appellant sold two, for which he received the money. We are of opinion the jury was justified in finding appellant guilty under the state’s ease.

Among other things, appellant moved for a new trial, alleging newly discovered evidence. This was to show in effect by two witnesses that Richardson authorized appellant to sell the calf in question; that they heard Richardson tell defendant to sell it. In other words, without going into a detail statement of the affidavits of the two witnesses, it is' shown by them that they overheard a conversation between Richardson and defendant, in which defendant was authorized by Richardson to sell the animal. These affidavits, the judge' says, were not filed for 30 days after the trial, and were contradictory of appellant’s testimony on the trial, he having testified in his own behalf, and were not newly discovered, in that these witnesses overheard the conversation and placed them in such position as defendant knew or could have known of their testimony. In the light of the record, we do not feel authorized to overrule _ the judge’s conclusion on this matter.

The other matters set up in the motion for new trial are so generally stated that they are nonreviewable.

The judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    1. Criminal Law (§ 507*) — Testimony of Accomplices — Corroboration — Pandering.
    In a prosecution for pandering, the female procured is not an accomplice within the statute relating to corroboration of accomplices.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 10S2-1096; Dec. Dig. § 507.*]
    2. Criminal Law (§ 811*) — Instructions — Undue Prominence.
    A requested instruction that a house of ill fame cannot be proven to be such by mere reputation, but other evidence must be offered, is properly refused as singling out evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.*]
    '3. Criminal Law (§ 789*) — Instructions— Reasonable Doubt — Pandering.
    In a prosecution for pandering, the court affirmatively charged that the jury must believe beyond a reasonable doubt that accused caused the procured female to become an inmate of a house of ill fame, with other requisites of the offense, before they could convict, and also charged that, if the jury believed that the house where the accused procured a room for the female was not a house of ill fame, they must acquit. Held, that an exception that the general charge nowhere affirmatively charged that the jury must find beyond a reasonable doubt that the house where he procured a room was a house of ill fame was not sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.*]
    Appeal from District Court, Potter County; James N. Browning, Judge.
    Roscoe C. Smith was convicted of pandering, and he appeals.
    Affirmed.
    Fletcher & Carlisle, of Amarillo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the offense of pandering, and his punishment fixed at the lowest prescribed by law.

The indictment had eight counts. The court submitted only the eighth, excluding all the others. It charged, in accordance with the statute, that on August 20, 1913, appellant did unlawfully and willfully procure, and attempt to procure, and was concerned in procuring, Nora Kelley, a female person, to become and be an inmate of a house of ill fame and prostitution in said county, in which said house prostitutes and lewd women were permitted to resort and reside for the purpose of plying their vocation as prostitutes.

The evidence, without reciting it, was clearly sufficient to establish appellant’s guilt

The said woman, Nora Kelley, whom appellant is alleged to have procured as an inmate of said house testified. The appellant claimed that she was an accomplice under the law, and asked the court to so charge, and to charge that she had to be corroborated. The court refused to charge on the subject. This court has already passed upon that question in the case of Jones v. State, 162 S. W. 1144, from Wichita county, and therein held: “Does the statute defining this offense [pandering], and stating who are competent witnesses, take these witnesses out of the general rule as to accomplices’ testimony as in gambling and other cases? We think so. Under the law of our state an accomplice cannot testify for a codefendant; while in this law it is specifically provided that the wife of the person accused may testify, and the female for whom the accused is alleged to have procured a room in a house of prostitution may ‘testify for or against the accused.’ This clearly evidences the intention of the Legislature not to bring such witnesses within the rule governing accomplice testimony.” So that the court did not err as claimed by appellant.

Appellant complains that the court refused to give this charge requested by him: “A house of prostitution cannot be proven to be such by mere reputation; but other evidence must be offered.” The court correctly refused this charge. It is true that no person can be convicted for keeping a given house as a house of prostitution solely by reputation. There was ample other evidence in addition to the general reputation of the house in this case to show that it was a house of prostitution in connection with the testimony of its general reputation. The court correctly submitted the question to the jury. It would have been improper for the court to have singled out this evidence and given the charge requested. The court affirmatively charged, in submitting the case to the jury for a finding, that the jury must believe beyond a reasonable doubt that appellant caused said female, Nora Kelley, to become an inmate of a house of ill fame and prostitution, with the other requisites of said offense, before they could convict appellant. The court in the charge also correctly told the jury what was a house of prostitution, or a house of ill fame, to which there is no objection by appellant.

Appellant made this general objection to the court’s charge, to wit: “The defendant comes now and excepts to the court’s general charge because the same nowhere affirmatively charges the jury that they must find beyond a reasonable doubt that the house of Mrs. Watson was a house of prostitution before they can convict the defendant.” As ■ stated above, the court’s charge did specifically require the jury to believe that said house was a house of prostitution, with the other requisites of said offense, before they could convict appellant, and in addition charged: “Or if you believe from the' evidence that the house kept by Mrs. Watson, where he procured a room for said Nora Kelley, was not a house of ill fame or prostitution, and that prostitutes and lewd women were not permitted to resort to or reside therein for the purpose of plying their vocation as prostitutes, then you will acquit the defendant, and say by your verdict not guilty.” And in addition charged that the burden of proof was on the state, and also charged the reasonable doubt in appellant’s favor.

In appellant’s motion for a new trial he complains that the court permitted certain testimony about certain other occupants of said house; but the point is not reserved by any bill of exceptions, and cannot be considered in the absence of a bill. However, even if it had been preserved by a bill, the evidence was admissible.

No error is pointed out, and the judgment will be affirmed.


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

text:
    FORD v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.)
    1. Criminal Law (§ 1169) — Appeaj>-Ground for Reversal — Admission oe Evidence.
    . In a prosecution for violation of the local option law, the admission of evidence of other sales of whisky than the one specifically charged was not ground for reversal, where it appeared that defendant was following the business and occupation of selling intoxicating liquors.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 754, 3988, 3130, 3137-3143-, Dec. Dig. § 1169.]
    2. Criminal Law (§ 1170%) — Appeal — Ground eor Reversal — Exclusion oe Evidence.
    The sustaining of an objection to a question, propounded to a witness on cross-examination in a prosecution for violating the local option law, as to whom he had bought whisky from other than defendant was not ground for reversal, where the witness stated, in answer to the question, that he did not ask their names.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    3. Intoxicating Liquors (§ 236*0 — Violation oe Local Option Law — Sufficiency oe Evidence.
    Evidence, in a prosecution for selling intoxicating liquors in a prohibition county, held to sustain a conviction.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Davidson, J., dissenting.
    Appeal from District Court, Lamar County ; Ben I-I. Denton, Judge.
    Babe Eord was convicted of violating the local option law, and appeals.
    Affirmed.

      Birmington & Calvin, of Paris, for appellant. R. T. Lipscomb, Dist. Atty., of Bon-ham, and C. B. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for unlawfully engaging in and pursuing the occupation or business of selling intoxicating liquors in Lamar county, after an election had been properly held and the law prohibiting the sale of intoxicating liquor therein had been put in force. His punishment was assessed at two years in the penitentiary, the lowest prescribed by law.

The indictment followed the law and is in the form held sufficient by this court in an unbroken line of decisions. The court correctly overruled appellant’s motion to quash it. The court committed no error in overruling appellant’s second application for a continuance. The application showed a total lack of diligence. Besides, the testimony of the absent witness was not shown to be material.

Appellant has several bills of exceptions to the admission of certain testimony and to the court’s refusal to sustain his objections to specific questions. They are all headed with the style and number of the cause and the court in which the trial was had, and then, after the formal “Be it remembered, etc.,” in one, he states that the ■court, over his objections, permitted the state to ask Bob Sanders this question: “Q. How long after the first time was it before you bought the other whisky from him?” Then the bill proceeds to state his objections. The court said, in approving it, that his only objection was: “Defendant objects to that.”

In another bill he complains in the same way that the court, over his objections, permitted the state to ask the witness Frank Mullens this question: • “Did you buy any other whisky from him at any time last fall?” Then proceeds to state his objections to the question. The court explains this by stating that the only objection appellant made was: “The defendant objects to that because it is not alleged in the indictment.” And the court further states that the testimony of the witness would show that the defendant was following the business and occupation of selling intoxicating liquors.

In another like bill he complains that, while he was cross-examining said witness Mullens, he asked him as follows: “Q. Did you ever buy any whisky from any one else? A. Yes, sir. Q. When? A. I have bought from several. Q. Who?” And that .the state then objected to the questions because immaterial and irrelevant, which the court sustained. The court, in approving the bill, said that the witness did answer the question as follows: “I did not ask their names; I would not ask them their names.”

In another like bill, he complains that the court, over his objections, permitted Jack Miller, a state’s witness, to testify as follows: “I live at Jennings, Lamar county, Tex. Bob Sanders lived with me in 1912, and worked on the farm. Q. Do you know whether or not ho had any whisky in 1912? A. Yes, I saw him with whisky.” Then his bill proceeds to tell what his objections were to these questions and answers of the witness.

In another like bill he objected that the state permitted said witness Miller to testify: “He (Bob Sanders) was in Paris in the summer and fall of 1912, every Saturday evening. I don’t know as he missed a Saturday evening, I would see him with whisky on Saturday night. When I would see him with this whisky, it would be after he had been to Paris.” The bill then proceeds with his objections. The court qualified each of these bills by stating that the appellant made only these objections: “Defendant objects to the testimony because there is no proof that he took any whisky home with him. In the defendant’s absence, whatever he might have had is no proof from him that he had ever bought any from the defendant, hearsay testimony, and further, if your honor please, it is a matter occurring between others that don’t affect the defendant in the slightest degree.”

And the court qualifies these bills by further stating that the court did not allow any testimony of what the witness Sanders said to be repeated by the witness Jack Miller. Sanders had already testified that he bought whisky every other Saturday from the defendant, and sometimes every Saturday, and that he had been living in Jennings, with Bob Sanders (Jack Miller), for three years.

We have stated all these bills so as to pass upon them together. Each and every one of them are so wholly insufficient as that neither of them can be considered by this court. They, nor either of them, show any such error as would justify this court, even if it could consider them, to reverse this ease. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and cases therein cited.

The evidence in this case shows that it was admitted that the law prohibiting the sale of intoxicating liquors in Lamar county was then in effect and had been for several years past. Bob Sanders testified: That he first bought whisky from appellant in the summer of 1912. “It is hard to tell how many times that I bought whisky from him.” That, at the time he bought, whisky from him, appellant was working in the shop of John Baird pressing clothes, and that the first whisky he 'bought from him was one Saturday. That the witness was down there at John Baird’s shop and appellant “asked me did I want anything, and I didn’t know what he was talking about, and I whispered and asked what was he talking about, and he asked me did I want some whisky, and I told him ‘Yes,’ and we went down to a bam where there were a lot of horses, and got some whisky down there. I got a pint of whisky at that time and paid him $1 for it. * * * I bought whisky from him every other Saturday that I came to town, sometimes every Saturday. That is where I would always buy it. I would go down there at John Baird’s. * * * I bought whisky from him a-fter that (the first time) sometimes every week and sometimes every other week. The last that I bought from him was in September. The sales that I have been speaking about occurred in 1912, and each time we were down there at the barn on Bonham street, in Paris. I bought a pint at a time. I paid him $1 for each one of the purchases. X would get with him there at the shop or else I would go around there to Baker’s furniture store and go from there down to the barn, and there is where he would let me have the whisky. Sometimes he would not say anything when I would go and ask him for it, and sometimes he would say, ‘I can’t get it right now; I will see you after while and after while I would see him and get it from him. * * We would go down to the stable and first walk around out there just as though we were looking at some horses, walk around out there, and then we would go on 'back up on the west side and go in the stable, and he would hand it to me, and he handed it to me two or three times right out there in the lot among the horses. He would get it out of his inside coat pocket.”

Prank Mullens testified that he knew the appellant for many years, and they played together when they were boys; that in 1912 appellant was in the pressing shop down there on Bonham street, in Paris, and he drove the ice wagon some too, and he also worked at the drug store some. “I have bought whisky from him. I bought whisky, from him when he was running that clothing store, down there pressing clothes. I went in there several times. * * * I went in there and got whisky and got it from him and paid him a dollar a pint for it and bought five pints from him. I bought that along in the summer and up in the fall of last year (1912), in Lamar county, Tex. He would get the whisky out of the clothes back in the back end. There was a barber shop in the front end and clothes in the back end, and I would go back in the back to get it, and sometimes there would be a pair of pants hanging up by the side of the wall, and he would, run his hand in the pocket and pull out a pint, and I would give him a dollar. The whisky was in one of those flat bottles.” On cross-examination he further testified: “The defendant sold me whisky five times down there where they press clothes on Bonham street. Sold me five pints, and I paid him a dollar a pint for it. I would not get at all at once, because a man buying bootlegging whisky, you know, he don’t never want but one to start off, and as regular as Saturday night comes, as long as he has got §1 and can get bootlegging whisky, he will buy it.”

Appellant did not testify.

The court did not err in refusing to give appellant’s peremptory instruction to find him not guilty, because, as he contended, the evidence was insufficient to convict him. It was amply sufficient.

The court gave a full, correct, and apt charge and submitted and required the jury to find everything necessary to show his guilt, beyond a reasonable doubt, before they could convict him. He correctly defined, as has many times been approved by this court, what is meant by engaging in and pursuing the business of selling intoxicating liquors in prohibition territory. None of appellant’s objections thereto are well founded.

There is no error shown by the record, and the judgment will be affirmed.

DAVIDSON, J.

(dissenting). The whisky about which Miller testified was not shown nor attempted to be shown to come from defendant, and was in no way connected with the transaction between appellant and the purchaser. The fact that the purchaser had whisky at Jennings, or at Miller’s, was not evidence he purchased it from defendant. Miller’s evidence was res inter alios acta and ought not to be admitted against appellant unless in some way connected with him. I cannot agree to the affirmance.


author: HARPER, J.

text:
    MOONEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    1. Criminal Law (§ 1098) — Appeal—Statement ox Facts — Form.
    Under Acts 32d Leg. e. 119, § 5, requiring the official reporter to transcribe the testimony and file it in the clerk’s office, and section 6, providing that, when filed, the appellant shall prepare a statement of facts in succinct manner, without unnecessary repetitions, the statement of facts must be reduced to a narrative, and not in question and answer, form.
    '[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dec. Dig. § 1098.]
    2. Ceiminai. Law (§ 1092) — Appeal-Bill op Exceptions — Time pok Filing.
    Under the express provisions of Code Or. Proc. 1911, art. .634, a bill of exceptions complaining of the denial of a change of venue must be filed during the term.
    '[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    3. Ceiminal Law (§ 400) — Evidence—Best and Secondary Evidence.
    On a trial for receiving and concealing stolen cattle, a witness was properly permitted to testify as to the ownership of certain cattle, though the brand on such cattle was recorded, where he did not testify that he knew the cattle by the brand, but independent of the brand.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dee. Dig. § 400.]

      4. Ceiminail Law (§ 393) — Privilege from Self-Incrimination.
    Evidence as to testimony given by accused in another court in which he took the stand and testified voluntarily was not inadmissible, as compelling accused to testify against himself.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 871-874; Dec. Dig. § 393.]
    5. Criminal Law (§ 406) — Evidence—'Voluntary Confessions.
    The voluntary testimony of accused in another court was admissible; as a person’s voluntary statements, when not under arrest, are always admissible against him.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. § 406.]
    6. Criminal Law (§ 547) — Evidence—Best and Secondary Evidence.
    The- testimony of accused in another court could be proved by any person who heard it; it not being necessary to produce the stenographer’s report.
    '[Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1237-1246; Dec. Dig. § 547.]
    7. Criminal Law (§ 1059) — Appeal—Reservation of Grounds of Review — Exceptions.
    There was no error in admitting a subpoena in evidence, where the only exception reserved was to the remarks of counsel, and not to the admission of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059,]
    8. Receiving Stolen Goods (§ 7) — Indictment — Knowledge.
    An indictment alleging that accused unlawfully received and concealed certain cattle, that such cattle had theretofore been acquired by another person in such manner that its acquisition was a theft, and that accused received and concealed the cattle knowinv them to have been so acquired, sufficiently alleged accused’s knowledge that the cattle were stolen at the time he received them.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig. § 7.]
    9. Criminal Law (§ 814) — Instructions ■ Applicability — Venue of Offense.
    Where an indictment found in W. county charged that cattle were stolen and were received and concealed by accused in W. county, an instruction that, if accused in C. county received and concealed such cattle, knowing that they had been stolen in W. county, to find him guilty was erroneous, as it authorized a conviction upon a state of facts which would not have been provable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 18S3, 1890, 1924, 1979-1985, 1987; Dee. Dig. § 814.]
    Appeal from District Court, Wheeler County; F. P. Greever, Judge.
    M. L. Mooney was convicted of receiving and concealing stolen cattle, and he appeals.
    Reversed and remanded.
    G. H. Culp, C. C. Small and R. H. Temple-ton, all of Wellington, and W. F. Ramsey and C. L. Black, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of receiving and concealing stolen cattle, knowing they were stolen at the time he received and concealed them, and his punishment assessed at four years’ confinement in the state penitentiary.

A statement of facts was filed in question and answer form with the clerk, ■just as reported by the stenographer. Section 5 of chapter 119 of the Acts of the 32d Legislature provides: “In case an appeal is perfected from the judgment rendered * * * the official shorthand reporter shall transcribe the testimony and other proceedings recorded by him * * * in the form of questions and answers, * * * and shall file the same in the office of the clerk of the court within such reasonable time as may be fixed by written order of the court.” Section 6 provides that, when this transcribed record in question and answer form shall be filed, the party appealing, shall prepare a statement of facts, in succinct manner, without unnecessary repetitions. At one time the law authorized the filing of statement of facts in question and answer form, but this necessitated so much labor on the part of the appellate courts this law was soon repealed, and the duty was placed on the party appealing to reduce the statement of facts to a narrative form, without unnecessary repetitions, and we can no longer sanction the filing of statement of facts in question and answer form. Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370; Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927; Claussen v. State, 157 S. W. 477. Therefore the motion to strike out statement of facts is sustained.

There are several bills of exception in the record, and we must view them from the statements and allegations therein contained, as we have no statement of facts we can consider. The first bill of exceptions relates to the action of the court in overruling appellant’s motion for a change of venue. Appellant was tried at a term of court which ended October 25, 1913. The bill of exceptions relating to this matter was not filed until the 18th day of December, 1913— nearly three months after the adjournment of the court for the term. Article 634 of the Code of Criminal Procedure provides that this bill must be filed in term time. Cravens v. State, 103 S. W. 923; Canon v. State, 59 Tex. Cr. R. 398, 128 S. W. 143; Bink v. State, 50 Tex. Cr. R. 445, 98 S. W. 863; Gibson v. State, 53 Tex. Cr. R. 359, 110 S. W. 41; Branch’s Crim. Law, § 201. •

The second bill of exceptions complains that Champ Davis was permitted to testify as to the ownership of certain cattle found in. possession of appellant; the contention being that, as the. brand of these cattle was of record, the best evidence was the record of the brand. Champ Davis did not testify that he knew the cattle by the brand, but independent of the brand. Under such circumstances, there was no error in admitting the testimony.

It is also complained that it was error to permit this witness to testify to what he heard appellant testify in a case pending in the federal court, wherein appellant swore that he knew the cattle in question was the property of Ed Davis and Champ Davis, and he put them in a certain pasture to keep the owners from finding them; the contention being that the stenographer’s report was the best evidence, and that this would be compelling the appellant to testify against himself. As appellant voluntarily took the stand as a witness in the trial of the case in the federal court, to permit a witness to testify to what he there stated under oath would not be requiring a defendant to testify against himself. Whatever a person voluntarily stated, when not under arrest, is admissible against him in the trial of a criminal case. That the record made by the stenographer is the best evidence cannot be sustained. Any other person who heard the statements can so testify.

In the next bill of exceptions appellant complains of the action of the court in admitting a certain subpoena in evidence. The court, in allowing the bill, states: “No exception was made by counsel for defendant to the action of the court in admitting the testimony. The only exception reserved was to the remarks of counsel, which objection was sustained by the court.” As thus qualified, the bill presents no. error.

Appellant in this court for the first time attacks the indictment herein. The indictment reads, omitting formal parts: “That M. L. Mooney on or about the' 1st day of November one thousand nine hundred and twelve (1912), and anterior to the presentment of this indictment, in the county of Wheeler and state of Texas, did then and there unlawfully and fraudulently receive .from a person to the grand jprors unknown, and did fraudulently conceal certain property, to wit, 12 head of cattle, the same then and there being the property of and belonging to E. T. Davis and Champ Davis, which said cattle had been theretofore acquired by another in said county and state, in such manner as that the acquisition thereof comes within the meaning of the term theft; and the said M. D. Mooney then and there received and concealed the said cattle, knowing the same to have been so acquired.” The contention is that the indictment does not allege that appellant knew the cattle were stolen at the time he received them. We think the concluding line of the indictment above copied answers this objection; for it is there alleged that he received and concealed the cattle, “knowing the same to have been so acquired,” and had theretofore alleged that they had been acquired by theft from the Messrs. Davis. However, it will be noticed that the indictment alleges that the cattle were stolen in Wheeler county, and received and concealed by appellant in Wheeler county.

The court in his charge twice uses language which would authorize his conviction, if he received and concealed the cattle in Collingsworth county. In submitting the issue for a finding, the court instructed the jury; “Now, if you find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant M. L. Mooney, in county of Collingsworth and state of Texas, did on or about November 1, 1912, or within five years prior to filing of indictment herein, receive and conceal the 12 head of cattle, and that said 12 head of cattle had been stolen from E. T. Davis and Champ Davis in Wheeler county, Tex., by some person whose name was to the grand jurors unknown, and that the defendant knew the said 12 head of cattle were acquired by theft, then you will find the defendant guilty as charged in first count in the indictment, and assess his punishment at confinement in the penitentiary for a period of time not less than two years, nor more than four years.” It will be noticed that the indictment charges not only that the theft took place in Wheeler county, but also that the receiving and concealing by appellant also took place in Wheeler county. Under such allegations, would testimony have been admissible that appellant received and concealed cattle in ColliDgsworth county? We think not, and if not, then the court’s charge authorized the conviction of appellant upon a state of facts which would not have been receivable in evidence over objections timely made. If he, in fact, received the cattle in Collingsworth county, this indictment would not bar a prosecution for that offense; for the cattle he is here prosecuted for receiving and concealing are alleged to have been received and concealed by him in Wheeler county. The district court of Wheeler county would have venue of the offense, if it had been alleged that the cattle had been stolen in Wheeler county, carried into Col-lingsworth county, and there received and concealed by appellant; but the indictment contains no such allegations, and appellant has been convicted in this case upon a state of facts which were not admissible in evidence under this indictment.

The judgment must therefore be reversed, and the cause remanded.


text:
    OSWALD v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.
    Rehearing Denied March 18, 1914.)
    Criminal Law (§ 1076) — Appeal — Recognizance.
    The Court of Criminal Appeals is without jurisdiction, if no proper recognizance is given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2708-2716, S201; Dec. Dig. § 1076.]
    Appeal from Bowie County Court; Lee Tidwell, Judge.
    Joe Oswald was convicted of unlawfully carrying a pistol, and he appeals.
    Dismissed.
    F. M. Brooks and E. Newt Spivey, both of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100.

The recognizance in this case is insufficient in law to confer jurisdiction on this court, and the case must therefore be dismissed, but, if it was properly before us, there is no ground in the motion for a new trial that would authorize a reversal of the case. There is no variance in the date of the offense in the complaint and information and the date as stated in the charge of the court as contended by appellant, in the record before us.

The appeal is dismissed.


author: PRENDERGAST,' P. J.

text:
    McDONALD v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    1. Libel and Slander (§ 152*) — Proof—Variance.
    There was a -fatal variance in a prosecution for slander in falsely imputing unchastity, where the information alleged that accused stated that the woman “was a woman of ill fame, and that eight different parties had intercourse with her,” while the competent proof only showed that accused had upbraided the woman for her ill feeling because he had told her of bad reports concerning her.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417, 419 — 424, 426, 427; Dec. Dig. § 152.*] ■
    2. Libel and Slander (§ 154*) — Burden oe Proof.
    In a prosecution for slander in imputing want of chastity to a female, it is not necessary to prove all of the language charged in the information, but only the imputation of unehas-tity.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 428, 429; Dec. Dig. § 154.*]
    3. Libel and Slander (§ 148*) — Criminal Responsibility — Privileged Communication.
    A statement by accused to a husband, made on the latter’s request as to the cause of the trouble between accused and the husband’s wife, that accused had heard that the wife had had intercourse with other men, was privileged as a confidential communication.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 407-411; Dec. Dig. § 148.*]
    4. Libel and Slander (§ 155*) — Criminal Responsibility — Prosecution — Admission oe Evidence.
    Under Pen. Code 1911, art. 1180, requiring that language imputing unchastity to a female be false and malicious to constitute the offense of slander, and article 1181, permitting accused to show the truth of the imputation and the female’s general reputation for chastity, evidence was admissible that the woman had told accused, before his interview with her husband in which accused told him that she was unchaste, that she had had intercourse with others than her husband.
    . [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. § 155.*]
    5. Libel and Slander (§ 155*) — Criminal Responsibility — Admission oe Evidence.
    In a prosecution for slander in imputing unchastity to a female, evidence of abusive statements made by accused concerning the female was admissible to show ill will and malice.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 430-436; Dec. Dig. § 155.*]
    6. Criminal Law (§§ 763, 764*) — Trial—Instructions — Weight oe Evidence.
    An instruction, in a prosecution for slander in imputing unchastity to a female, that the statement of a small number of persons as to reputation is insufficient to make a general reputation, especially if the small number testifying are influenced by the same persons, or move in the same circles, was erroneous as on the weight of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.*]
    7. Libel and Slander (§ 156*) — Truth oe Statement— Sufficiency of Evidence.
    In a prosecution for slander in imputing unchastity to a female, accused need not establish beyond a reasonable doubt that her reputation for chastity was bad; it being sufficient if the jury believe’ from the evidence that it is bad.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 437-441; Dec. Dig. § 156.*]
    8. Libel and Slander (§ 156*) — Truth of Statement — Sufficiency- of Evidence.
    In a prosecution for slander in imputing' unchastity to a female, accused need not establish the truth of the alleged slanderous statement ; it being sufficient as a defense that the jury believe its truth, or have a reasonable doubt of its truth.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 437-441; Dec. Dig. § 156.*]
    Appeal from Matagorda County Court; W. S. Holman, Judge.
    J. R. McDonald was convicted of falsely and maliciously imputing a want of chastity to a female, and appeals.
    Reversed and remanded.
    Gordon Lawson, of Palacios, and Linn & Austin, of Bay City, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST,' P. J.

Upon the complaint of A. T. Whyman, the county attorney filed an information, in both of which — the complaint and information — it was charged that appellant falsely, maliciqusly, and wantonly did impute to Neva E. Whyman a want of chastity, in that in the presence of A. T. Whyman he said of Mrs. Whyman “that she was a woman of ill fame, and that eight different parties had intercourse with her.” The jury convicted appellant, assessing his punishment at a fine of $500 and 90 days in jail.

We will not give in full the evidence, nor specially discuss it, but will state only so much of it as is necessary to show the questions raised and decided.

Neva E. Whyman was the wife of said complainant, A. T. Whyman.- He was a mail carrier in July, 1913, and on some occasions, it seems, his wife carried the mail in his place. On July 30th appellant wrote to Mrs. Whyman, stating, in effect, that he had given her 50 cents to mail a parcels post package which cost only 7 cents, and he demanded the return by her of the difference, 43 cents. In the letter he also said that it looked like a small matter to ask for the return of the 43 cents, but that it was not near as little as the way she had acted toward him, and as she had no favors for him, he had none for her; that when he heard bad reports about her, like a friend, he told her, but by doing so he gained her everlasting enmity, and the last two times he was at her house she took particular pains to show it. He advised her not to attempt to carry the mail again, and if she did, she would meet with serious opposition, which in all probability would cause her husband to lose his job. “You know the reason why.” Mr. Whyman saw this letter before starting out on his mail route on July 31st. When he reached appellant’s place he saw appellant off some 30 or 40 yards working in his yard. He called him out to him, and asked him what was the trouble between him and his wife, and why he had written said letter. The appellant, according to said Whyman’s evidence, stated to him he hated to tell him, but that he considered it right to do so, and thereupon he told said Whyman that his wife, Neva E., “had had intercourse with eight different parties.” Whyman stated that appellant did not then tell him that his wife was a woman of ill fame.

Appellant’s version of the matter is substantially this: That on July 31, 1913, when Mr. Whyman stopped at appellant’s mail box, he was at work in his yard, and Why-man called to him to come out to the buggy, saying that he wished to talk to him. That he went out in answer to his call, and Why-man asked him what was the trouble between him and his wife. “I replied that I did not wish to tell him what the trouble was, but that there was trouble enough, and I told him that it was her place to tell him, to which Mr. Whyman replied that he wanted me to tell him what it was. I replied to him that I did not want to tell him what the trouble was, but that if he wanted to know, I would tell him. Mr. Whyman replied that, he thought it was my place to inform him fully in regard to this trouble. I then told him that I would only tell him what was true, and that if he believed that his wife was true to him, he was the worst deceived man in Matagorda county. I told him that I-had heard that his wife was having sexual intercourse with divers persons, and that one J. R. Wagoner had told me that eight different men had of their own accord told, him that they had had intercourse with her, to which Mr. Whyman replied that he did not believe that any man had had intercourse with her.” That he then told Why-man that he himself had had intercourse with her. That Whyman stated that it was awful mean for him to do it, and he told Whyman it was just as mean of her as it was of him. That Whyman then asked him how he had managed it, and he went into the details of the several acts of intercourse he had with Whyman’s wife, and how he had managed it, and he detailed what had occurred and where.

Appellant introduced 11 different witnesses, who testified that they each knew the general reputation of Mrs. Whyman in the neighborhood in which she lived for chastity and virtue, and that her reputation was bad. The state introduced a like number of witnesses, who testified that each knew her general reputation in the particular mentioned, and that it was good.

Appellant introduced some corroborating testimony which tended to support his testimony, showing that he had sexual intercourse with Mrs. Whyman, and testimony by others tending to show a state of facts that showed she was not a chaste woman. The state introduced witnesses who flatly contradicted appellant in some of his testimony, but no one disputed what occurred between appellant and Mr. Whyman when appellant told Whyman about his wife.

Appellant makes the point that there is a fatal variance between the allegation and the proof. The allegation in the 'complaint and information is clearly sufficient, without any innuendo, to show slander under our statute. But the proof is clear and positive that appellant did not use to Mr. Whyman the first part of the language charged, to wit, “that she (Mrs. Whyman) was a woman of ill fame.” We seriously doubt if the other language charged, to wit, “that eight different parties had intercourse with her,” is sufficient to charge an offense under our statute without an innuendo of what is meant thereby. It is true that it is well settled by our decisions that it is not necessary to prove the whole of the -language charged, but that it is necessary that what of it is proven shall show the imputation of the want of chastity upon the female. Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388, and cases there cited. Under this decision we believe there is a fatal variance between-the allegation and the proof.

Again appellant makes the point that the communication between appellant and Mr. Whyman, under the circumstances as shown by the evidence, was a confidential communication, and that alleged could not be made the basis of a charge against appellant under our statute. This contention of appellant, in our opinion, is well founded. Davis v. State, 22 S. W. 979; Hix v. State, 20 S. W. 550; Rosenbaum v. Rosche, 46 Tex. Civ. App. 239, 101 S. W. 1165. We aye not discussing that part of his communication to Whyman that he himself had had sexual intercourse with Mrs. Whyman, if false.

Appellant also complains that the court erred in refusing to permit him to testify in effect that Mrs. Whyman had told appellant, prior to the said interview between him and Mr. Whyman, that she had had sexual intercourse with others than her husband. Under our statute it is necessary to show that the language, imputing a want of chastity to a female, was falsely and maliciously, or falsely and wantonly, made by the accused. P. C. art. 1180. Also that in such prosecution the defendant may, in justification, show the truth of the imputation, and the general reputation for chastity of the female alleged to have been slandered. P. C. art. 1181. This being the case, the testimony of appellant on this point was admissible. McMahan v. State, 13 Tex. App. 222; Van Dusen v. State, 34 Tex. Cr. R. 456, 30 S. W. 1074; Humbard v. State, 21 Tex. App. 209, 17 S. W. 126.

In our opinion the other testimony, objected to by appellant, of other statements soon afterwards, made by him concerning Mrs. Whyman, and on some occasions cursing and abusing her, was all admissible for a like purpose of showing his ill will towards her, and his wanton and malicious statements, if so, about her.

The court in his charge told the jury, among other things: “The statement of a small number of persons as to reputation is insufficient to make a general reputation, especially if the small number testifying are influenced by the same persons, or if they move in the same business or social circles.” Appellant justly complains of this charge of the court. It is not the law, and should not have been given. It is a clear comment upon the weight of the testimony.

The court also charged as .follows: “If on inquiry as to general reputation of the female, the evidence satisfies you beyond a reasonable doubt that her reputation for chastity is bad in the community in which she lives, then you should acquit the defendant, or if you believe that the defendant has established the truth of the alleged statement, then and in that event you will also acquit the defendant.” He also complains of this part of the court’s charge. It is not necessary under the law that appellant should establish beyond a reasonable doubt the reputation of the female for chastity is bad, but it is sufficient if the jury believe from the evidence that her reputation is bad.

Also as a defense it is not essential that the defendant shall establish the truth of the alleged statement, but merely that if the jury believe the truth of it, it is sufficient. The charge on this subject in effect should be that, if the jury believe that the female’s reputation for chastity is bad, etc., or they have a reasonable doubt about it, appellant should be acquitted; or, if the jury believe that the alleged statement is true, or they have a reasonable doubt of its truth, they should acquit appellant.

It is unnecessary to discuss any of the other questions raised in the ease. None of them present any reversible error.

For the errors above pointed out, the judgment is reversed and the cause remanded.


author: HARPER, J. DAVIDSON, J.

text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    1. Criminal Law (§ 165)—Former Jeopardy —In General.
    Within Bill of Rights, § 14, and Code Cr. Proc. 1911, art. 9, a person is in legal jeopardy when he is put upon trial before a court of competent jurisdiction upon an indictment or information sufficient to sustain a conviction, and a jury has been impaneled and sworn to try the case, except where defendant, by motion, claims surprise, and asks for a continuance, or asks for and is granted a new trial, or appeals and secures a reversal, or in any instance where, on his motion, the case has been postponed and withdrawn from the consideration of of the jury.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 290-298; Dec. Dig. § 165.]
    2. Criminal Law (§ 182)—Former Jeopardy-Plea Entered by Court..
    Defendant, when his case was called, and a jury was selected and sworn, and after his motion to postpone for two days, in which to prepare written pleadings was overruled, declined to plead; whereupon the court entered a plea of not guilty for him, but, before further steps were taken, the court granted such time, as required by Code Cr. Proc. 1911, art. 578, and defendant, when so informed, declined to agree to a discharge of the jury, but insisted upon his motion; whereupon the court withdrew the case from the jury, and continued the case for two days. Held, that such facts did not constitute former jeopardy.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 330-332; Dec. Dig. § 182.]
    3. Weapons (§ 11)—Carryins Weapons— Defenses—Mistake oe Law.
    That defendant carried a pistol as a deputy constable under the apparent authority conferred by a constable, who, however, under Rev. St. 1911, arts. 7137, 7138, was without authority to appoint deputies, was a mistake of law, which was no defense to a prosecution for carrying a pistol.
    [Ed. Note. — Por other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.]
    Dayidson, J., dissenting.
    Appeal from Burnet County Court; J. G. Cook, Judge.
    Green Johnson was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Jas. Elack and E. D. Dodson, both of Llano, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was .prosecuted and convicted of unlawfully carrying a pistol, and his punishment assessed at a fine, of $100.

It appears that a complaint was filed in the county court of Burnet county on July 7th charging appellant with unlawfully carrying a pistol, and his case was called for trial on July 28th. When the case was called for trial, appellant moved to postpone the case because of the absence of one of his attorneys, which motion was by the court overruled. It appearing that no information had been filed, the county attorney then prepared and filed an information, when appellant moved to postpone the case, the motion reading: “Now comes Green Johnson, by his attorney E. M. Dodson, and begs leave of the court for two days in which to file a written plea.” ’Signed by counsel. The court overruled this motion. A jury was duly impaneled and sworn, and the county attorney presented the information, when the court called on the defendant to enter his plea, when defendant’s counsel stated that he would refuse to enter any plea at that time. The court then announced he would enter a plea of “not guilty” for him, and did so. Before any other proceedings were had, the court reconsidered his action in refusing to grant the motion of appellant in which he requested two days’ time in which to file written pleadings, having ascertained that he was legally entitled thereto under article 578 of the Code of Criminal Procedure. See, also, Reed v. State, 31 Tex. Cr. R. 35, 19 S. W. 678; Evans v. State, 36 Tex. Cr. R. 32, 35 S. W. 169. In Reed’s Case it was held by this court, in an opinion by Judge Davidson, that a plea entered under compulsion does not serve as a waiver of the time granted by law. The court announced to appellant’s counsel that, as under the statutes he was entitled to the two days, he Would grant it, and asked if he would agree to a discharge of the jury. Appellant and his counsel still refused to “talk,” merely stating that “we make no agreement — that the request for two days was made before the court entered a plea of not guilty for defendant.” The court then withdrew the case from the consideration of the jury, before any other proceedings were had or any evidence introduced, and postponed the case until July 31st, thus granting appellant’s motion for time to file written pleadings.

When the case was called on July 31st, appellant entered a “plea of former jeopardy,” setting up these facts. When it was filed, the county attorney filed a motion to strike it from the record upon various grounds, one of which was that no plea had ever been entered by the defendant. This motion was sustained by the court, to which action appellant excepted, and presents as his first ground why the judgment should be reversed and remanded.

Article 9 of the Code of Criminal Procedure is but a repetition of section 14 of the Bill of Rights, and reads: “No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense after a verdict of not guilty in a court of competent jurisdiction.’-’ Our courts have been very liberal in construing this article of the Constitution. In many jurisdictions it is held that this plea is not a good plea until the verdict has been rendered by the jury, but our court, when this question first came before it, held to the more liberal interpretation that, when a person was arraigned in a court of competent jurisdiction upon a valid indictment or information, a jury impaneled and sworn, and a valid plea entered, jeopardy attaches. In the case of Powell v. State, 17 Tex. App. 345, this rule was announced, specifically overruling the case of Moseley v. State, 33 Tex. 671. In the Moseley Case the court was inclined to the opinion that jeopardy did not attach until verdict was rendered, but in the Powell Case, supra, the correct rule was announced to be “a person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment or information * * * sufficient in form and substance to sustain a conviction, and a jury has been * * * impaneled and sworn” to try the case. This rule announced by Judge Hurt has been adhered to, except, as we understand the cases, where the defendant, by a motion made, has claimed surprise and asked for a continuance, or where he has asked for and been granted a new trial, or has appealed the ease and secured a reversal thereof, or in any instance where, on his motion, the case has been postponed and withdrawn from the consideration of the jury.

In this case it appears that, when the case was called, appellant filed a motion to postpone on account of the absence of one of the attorneys. This was overruled, when a jury was selected and sworn. It was then discovered no information had been filed, when the county attorney prepared one and filed it. Appellant then filed a motion to postpone the case for two days in which to prepare written pleadings. This was overruled, when he declined to plead to the information, and the court entered a plea for him, but, before any other steps were? taken, the court, upon reflection, decided to grant the time requested in appellant’s motion and to which he was entitled in law. He called appellant’s counsel’s attention to the matter, and he declined to take any action. Had he then waived the two days, and the court then, without his consent, discharged the jury, etc., his contention would be sound, but, having excepted to the action of the court in overruling his motion to grant a postponement for two days in which to file written pleadings to which he was legally entitled, and when the court called his attention to the error of the court, he not only declined to withdraw this exception, but refused to do anything, the court did not err in withdrawing the case from the jury, and granting to appellant the time which the law. accorded to him to prepare for trial. Any other course on the part of the court would have been improper. The law is written, and courts are organized to secure justice between man and man, and between the state and its citizens, and any construction of the law which would deprive a citizen of his legal rights would be wrong, as would any construction which would prevent justice from being meted out. If, at the time the court overruled appellant’s application for two days’ postponement for time in which to file written pleadings, appellant had entered a plea and proceeded with the trial, and then, over his protest, the court had withdrawn the case from the jury, there would be merit in his contention. But, instead of this, when the court overruled his motion, he excepted to the action of the court, refused to plead to the information, and in every way at his command he showed he was insisting on his motion and not waiving his rights thereunder, and by his persistence caused the court to make an investigation, and ascertain that he (the court) was in error in his ruling, and appellant was doing nothing more than insisting on his plain legal rights, and then he granted appellant’s motion, giving him the two days requested by him, at this time appellant not protesting to such action, nor taking any exception to the action of the court. Yet two days later, when the case was again called for trial, although the two days ‘ had been granted at his request, he undertakes to file a plea of former jeopardy. The court did not err in striking out the plea, as the allegations in the plea were insufficient, in that in the plea it was shown that the time was granted on appellant’s original request, and which he had never withdrawn nor waived.

Chas. Ooe was the constable of the Marble Falls precinct, justice precinct No. 4. On June 19, 1913, an emancipation celebration was held, and appellant desired to prove by himself and Constable Coe the following state of facts, which he says they would have sworn -to: “That Coe came to defendant and deputized him to go to the emancipation celebration and stay there during the day, to act in the place of the constable, and to keep the peace; that defendant in good faith believed that the constable had a perfect legal right to confer upon him this authority to carry the pistol.” Objection to this testimony was by the court sustained, and appellant excepted to the action of the court. It is admitted in the record that the town of Marble Falls did not have 2,500 population. Articles 7137 and 7138 of the Revised Statutes furnishes the .only authority for a constable to appoint deputies, and therein it is provided that in a precinct containing a city of more than 8,000 population a constable may appoint two deputies, and in a precinct containing more than 2,500 population and less than 8,000, a constable may appoint one deputy. So that it is seen that, justice precinct No. 4 of Bur-net county having no city or town of at least 2,500 population, the constable had no authority in law to appoint a deputy constable.

Article 45 and the provisions of chapter 4 of title 3 of the Code of Criminal Procedure authorizes special deputation in certain-instances, but it is not claimed that the facts in this case would authorize the constable to make an appointment, or call for aid under those provisions of the Code. In fact, in the brief it is not insisted that the constable had the legal or lawful authority to appoint appellant a deputy on that occasion, but it is insisted that, as he assumed authority to make the appointment, and appellant believed he had the authority, appellant would not be guilty of the offense, as he acted in good faith in carrying the pistol.

It resolves itself into this question: Does it present a question of mistake of fact or mistake of law? If a mistake of fact, then the court erred in his ruling, but if it was a mistake of law, then the court ruled correctly. The bills allege that both the constable and appellant would swear that the constable appointed him a deputy and authorized him to carry the pistol, and, if the constable had the authority to make the appointment, though not made in legal form, yet this would present a question of mistake of fact alone. However, if the constable had no authority to appoint a deputy under the circumstances, then the fact he had attempted to do so would not present a question of mistake of fact, but the belief of appellant that he had been appointed would be a mistake of law; for the person from whom he claims to have received the deputation had no authority in law to make the appointment. We are'referred by appellant’s able counsel to Blair’s Case, 26 Tex. App. 393, 9 S. W. 890, as sustaining his contention. In that ease it will be noted that the officer who made the appointment introduced in evidence was a sheriff, who in law had authority to appoint deputies, while in this case the appointment was made, as contended by appellant, by a person who in law had no authority to appoint a deputy. Any citizen oí Marble Palls had as much lawful power and authority to empower appellant to carry a pistol as did Mr. Coe, under the evidence in this case, and would it be contended for a moment that, if some citizen of the town, other than Mr. Coe, had armed appellant and sent him to the grounds to keep the peace, this would be any defense? We think not. In fact, this court, in the case of Shannon v. State, 65 S. W. 1065, clearly draws the distinction that the appointment claimed must have been made by some one authorized in law to make the appointment. A similar question to this was presented in that case, and this court said: “These instructions were Justified under Blair’s Case. Since the rendition of the Blair Case, article 4896, Rev. Civ. St. 1895, has been amended so as to limit the number of deputy sheriffs to be appointed by the sheriff of the county. This amendment of the statute, as we understand, was ingrafted for the purpose of meeting cases of this character.” Thus clearly announcing that, if the officer 'making the appointment had no authority to do so, an appointment by him would be no defense, even though made with all the formalities of law; for then it would be a mistake of law, and not a mistake of fact. The opinion in the Shannon Case, supra, is but following the plain provisions of articles 46 and 47 of the Code of Criminal Procedure. The exercise of the least care or diligence on the part of Mr. Coe or appellant would have enabled them to ascertain, if they already did not know, that Mr. Coe had no more authority in law to deputize appellant under the circumstances than did any other citizen. Consequently a mistake of fact would not be presented by the evidence offered, but a mistake of law. Jones v. State, 32 Tex. Cr. R. 533, 25 S. W. 124; Medrano v. State, 32 Tex. Cr. R. 216, 22 S. W. 684, 40 Am. St. Rep. 775; Thompson v. State, 26 Tex. App. 97, 9 S. W. 486; Chaplin v. State, 7 Tex. App. 88. As the constable had no authority in law to deputize appellant, if he did attempt to do so°, we do not think the court erred in excluding the testimony.

Neither of the special charges requested were called for under the evidence adduced, and the court did not err in refusing them.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). Appellant’s conviction resulted in punishment of a fine of $100 for carrying a pistol. When the case was called for trial, he asked a postponement on account of the absence of his attorney. This was overruled, but a bill of exceptions was1 not reserved, therefore it will not be considered. The application for a continuance was overruled, but no exception reserved. The case was called for trial on the 28th of July. It was ascertained that an information had not been filed when the case was called. A complaint had been filed. The county attorney requested permission to file an information, which, being granted by the court, was presented and signed by the county attorney in open court. When this was done, appellant moved to postpone for two days, in order that he might, have the statutory time of two days in which to file his written pleadings. This was promptly overruled, and he was placed upon his trial. He refused to plead, whereupon the court entered a plea of not guilty. When this was done, the county attorney read the information to the jury, and called upon defendant to plead. Failing to respond the court entered his plea of not guilty. After the jury had been impaneled and sworn, plea of not guilty entered, and pleadings read to the jury, the court stated that defendant was entitled to the two days allowed by the statute, and asked appellant’s counsel if he would agree to discharge the jury and postpone the ease. The attorney replied: “We make no agreement.” Appellant was not requested to make any announcement in regard to this matter. The attorney further remarked that the request for two days, time was made before the court entered the plea of not" guilty for the defendant. The court thereupon discharged the jury, stating to defendant’s attorney that the cause would be set for Thursday at 10 o’clock. Thursday was the 31st of the month, at which time appellant was placed upon trial and convicted. The plea of jeopardy set up all these matters. The court sustained the exception and demurrer of the county attorney to the plea and struck it out. That question, therefore, did not become a matter before the jury on the trial. It will be noted that appellant did not reserve a bill of exceptions to the action of the court overruling his plea or request for two days’ time, and the record shows no bill of exception was reserved to this action of the court. Therefore that question was waived. If that question was presented to this court, and appellant was insisting that the court erred in not allowing the two days, my Brethren would promptly affirm the case, so far as that question is concerned, on the ground that he had not perpetuated it by bill of exceptions, and therefore had waived it. Appellant com tends his plea of jeopardy should have been sustained, and that the court erred in not so doing, and further erred in sustaining the county attorney’s demurrer. It will also be observed that appellant reserved no bill of exception to the action of the court permitting the county attorney to file an information, and refusing him the statutory two days in which to file his pleadings. He did not except to any of these matters, so far as a bill of exceptions is concerned, and they are not perpetuated, except as stated in the plea of jeopardy. The absence of Ms counsel, and the application for a continuance, and refusal to grant Mm the two days are matters which the defendant could waive, and, in the absence of bills of exception, those matters cannot be considered, and will be considered as waived. In other words, without bills of exception perpetuating these matters, they would not be so presented that this court could consider the questions in revising the appeal. The court had no authority to withdraw the case from the jury, over the protest of appellant, after his plea of not guilty had been entered. He was then placed in jeopardy. The issue had been formed, the jury had been sworn, plea of not guilty had been entered, and, of course, jeopardy had attached under all of the authorities. This plea of jeopardy should have remained in the case, and the court erred in sustaining the demurrer to the plea of jeopardy. -If the facts sustained the allegations, appellant was entitled to an acquittal under his plea of former jeopardy. The complaint and information were valid on their face, and the only question of which appellant could complain in this connection at that juncture was the failure of the court to allow him two days after the information was filed in which to prepare written pleadings. This was authorized by the statute. This he could waive. He made the point, but reserved no exception; therefore that question could not be considered here on appeal. It was waived by appellant.

Two bills of exception were reserved to the ruling of the court rejecting testimony offered by the defendant. The case presented itself in this way: Appellant was a negro. There was a social gathering of negroes on the 19th of June, and the constable, Mr. Ooe, appointed or deputized or requested, as the case may be, appellant to attend this gathering as an officer or as an assistant to him, to preserve the peace, and keep order at the gathering. To this end he authorized appellant to carry his pistol while temporarily acting as his deputy or posse comitatus, or whatever he may be termed. Appellant offered evidence to sustain this matter both by himself and the constable, and they would have testified fully to those matters. It is unnecessary to go into a detailed statement of this evidence. Appellant carried the pistol in pursuance of this authority. The state’s contention is that the constable had no legal authority to summon appellant to assist him in keeping order at the 19th of June celebration, and appellant should have known this under the law. The proposition is that appellant carried the pistol in good faith, and did so with no intention of violating the law, and believed Mr. Coe had authority to summon or appoint Mm, and that he was acting in obedience to what he believed to be legal authority, and, there being no purpose or intent to violate the law, he was entitled to have this issue submitted to the jury. The court declined to submit the issue. My Brethren sustain the ruling of the court on this proposition, as they do on the other questions discussed. I am of the opinion they are in error on both questions. See Blair v. State, 26 Tex. App. 387, 9 S. W. 890; Lyle v. State, 21 Tex. App. 154, 17 S. W. 425; Branch’s Crim. Law, § 188; Jenkins v. State, 47 Tex. Cr. R. 224, 82 S. W. 1036; O'Conner v. State, 40 Tex. 27; Black v. State, 48 Tex. Cr. R. 63, 85 S. W. 1143. It will be noticed that appellant was not acting under general authority or deputyship, but was specially summoned for the occasion, and our law draws a distinction, as do all the decisions, between a party who undertakes to act without proper appointment and the citizen who is summoned or acts temporarily at the command, summons, or appointment of an officer. Appellant as a citizen could not act as a regular deputy, unless the appointment is in conformity with the statute, but this does not apply where the citizen is temporarily summoned to discharge the duties for the time being. Under this state of case, he would be entitled to carry his pistol while his duties, lasted. This has been the subject of many decisions in this state. A citizen specially deputized for the occasion, but not generally speaking, can carry a pistol without violating the law. O'Neal v. State, 32 Tex. Cr. R. 44, 22 S. W. 25; Snell v. State, 4 Tex. App. 171; Trawick v. State, 22 S. W. 593; Strey v. State, 40 S. W. 997; Gonzales v. State, 53 Tex. Cr. R. 430, 110 S. IV. 740; Baker v. State, 53 Tex. Cr. R. 29, 108 S. W. 684. The case of Baker v. State, 61 Tex. Cr. R. 193, 134 S. W. 686, is relied upon by the state as having overruled the Blair and other cases. The Baker Case follows the cases of Schroeder v. State, 50 Tex. Cr. R. 111, 99 S. W. 1003, West v. State, 21 Tex. App. 427, 2 S. W. 810, and Mangum v. State, 15 Tex. App. 362. These cases, if viewed in the proper light, are not in conflict with the other cases. Even in the Baker Case the question was submitted to the jury, and the jury found against the accused. Judge Prendergast, writing that opinion, held, the matter being properly submitted, and the jury finding against the accused, it would not constitute reversible error; but in the instant case the court refused to permit appellant to introduce evidence showing his defensive matter. This, in my judgment, was clearly error. I do not care to amplify these matters. This ■negro ought not to have been convicted in the first place, and his plea of jeopardy was good in the second place. The court had no legal authority to withdraw the ease.from the jury, unless with the consent of the defendant. He was not even asked to consent to it. His attorney said he refused to make an agreement about the matter; he therefore did not consent to withdraw the case from the jury. He objected, it is true, to the court putting Mm to trial without the two days, and made the motion. The court overruled it. He does not even assign that as error. He reserved no exception to it, and it passed out of the case. If the matter had come up on that question without bill of exceptions, my Brethren would have promptly affirmed the case, holding'that he had waived that matter, and it was not perpetuated so this court could consider it. They, however, would affirm the case from that viewpoint, if it had come up on that question only. Appellant was placed in this position: If he refused the summons of the constable, he was punishable; if he obeyed the summons, he is forced to pay a fine for carrying the pistol. Can anything be more illegal or unjust? I think not.

This judgment ought to be reversed, and this negro ought not to be convicted. For the reasons indicated, I respectfully enter my dissent.


text:
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1913.
    Rehearing Denied March 11, 1914.)
    1. Witnesses (§ 40)--Competency — Children.
    A child under six years of age, who had sufficient capacity to remember ordinary occurrences, and understood that it was wrong to testify falsely under oath, and that she would not only be punished hereafter, but would be sent to the penitentiary for perjury, is competent to testify.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    2. Rape (§ 51) — Prosecution—Evidence— Sufficiency.
    In a prosecution for rape, evidence held sufficient to support the conviction.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-77; Dec. Dig. § 51.]
    3. Infants (§ 66) — Criminal Responsibility.
    Under Pen. Code 1911, art. 34, providing that no person shall be convicted of any offense committed before he was of the age of nine years, except for perjury, and for that only when it shall appear that he had sufficient discretion to understand the nature and obligation of an oath, the statutory discretion means more than the minor’s knowledge between good and evil, but he must know the nature and illegality of the particular act.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.]
    4. Witnesses (§ 40) — Competency—Infants.
    Pen. Code 1911, art. 311, provides that, when perjury is committed on the trial of a capital felony, and the person guilty of such perjury has sworn falsely to a material fact tending to produce conviction, and the person so accused is convicted and suffers the penalty of death, the punishment of the perjury so commit-' ted shall be death. Articles 34 and 35 provide that no person shall be convicted of any offense committed before he was of the age of 9 years, except for perjury, and for that only when he had sufficient discretion to understand the nature and obligation of an oath, and that, for an offense committed before he arrived at the age of 17 years, no person shall be punished with death. Held that, notwithstanding the provision of Const, art. 1, § 5, that oath and affirmations shall be taken subject to the pains and penalties of perjury, an infant of under 7 years of age is competent to testify in a capital felony, even though she is not subject to the punishment of death, where the death penalty is not inflicted upon the accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 97, 98; Dec. Dig. § 40.]
    5. Constitutional Law (§ 70) — Pbovince OF JUDICIARY.
    The wisdom of a law cannot be questioned by the courts.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.]
    Appeal from District Court, Jefferson County; John M. Conley, Judge.
    Douglass Smith was convicted of crime, and he appeals.
    Affirmed.
    Herbert W. Reed and Fred L. Williams, both of Beaumont, for appellant C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of rape, his punishment being assessed at 15 years’ confinement in the penitentiary.

A bill of exceptions recites that in making out the case the witness Cleo Johnson, the little girl alleged to have been raped, was sworn to testify in the case. Objection was urged on the ground that it had been proved by the witness Taylor Johnson, father of the witness, that she was not quite six years of age, therefore was not competent to testify in a capital case. In answer to this objection, the court said he would examine the child to ascertain something about her, whereupon counsel renewed objection. After examining the child, the court pronounced her competent, and permitted her testimony. Counsel objected that witness was incompetent to testify by reason of the fact she was under seven years of age, and, as a matter of law, irrespective of intelligence, a child under seven years of age is incompetent to testify in a capital case. After hearing argument of defendant’s counsel that, inasmuch as the only penalty affixed to perjury committed in a capital case is death, and since it was impossible to know what punishment would be given the defendant, and since a person under 17 years of age cannot be punished in this state by the death penalty, therefore the 6 year old witness would not be amenable to punishment for perjury, should the death sentence be inflicted, and consequently she could not testify subject to the pains and penalties of perjury provided in section 5 of article 1 of the Constitution. All the objections were overruled, and the witness testified. The court qualifies this bill as follows: “The court carefully examined this witness as to her understanding of the nature and obligation of an oath. The examination disclosed that she had gone to school and knew her A B C’s; she told the name of her teacher, the names of her brother and other relatives, the school her brother attended; that her mother was dead, hat her father was living, and gave his name; that she was not living now with her father, but with her auntie, giving her name; told how many children her auntie had, and gave their names; that she lived there; that they were good to her; that she went to Sunday school out at her auntie’s church; that she heard about God, that God was up in heaven; that she knew about the devil—he was a bad man; that, if she was good, when she died she would go to heaven, and, if she was bad, she would go to the bad man; that she knew what it was to tell stories; that the knew what it meant to hold up her hand and swear she would tell the truth; and that, if she did not tell the truth, she would go to the bad man and the penitentiary. The child was quite above the ordinary in intelligence for one of her age, and had the mental capacity to qualify her as a witness in the case.”

The court permitted her to testify, and these matters and facts are set up in the bill of exceptions as qualified by the judge. Under the authorities in this state, she seems to have met the requirements of the law as to competency, and the court did not err in permitting her to testify. See White’s Ann. Code Or. Proc. art 768, subd. 2. For collated authorities see sections 951, 952, 953, 954.

The evidence in the case is approved for its brevity, succinctness, and directness, covering only a page.- The statement of facts recites the parties agreed that on the trial Oleo Johnson, prosecutrix, testified the defendant had carnal intercourse with her; that he penetrated her female organ with his male organ, in the state of Texas and county of Jefferson, at a time before the presentment of this indictment, and within one year prior to the presentment of the indictment. That no other testimony was introduced to prove penetration or the commission of the necessary acts essential to constitute the crime of rape. However, the brother, aged nine, of the prosecuting witness testified that on or about the time of the commission of the alleged offense that the defendant met him and his sister, Oleo Johnson, the prosecuting witness, near the house where the crime was alleged to have taken place, and gave him a nickel and sent him off to get firecrackers, and that he left his sister, Gleo Johnson, with the defendant. There was testimony of other witnesses to the effect that the defendant lived in a house a few doors from where prosecuting witness lived, with an aunt, and that appellant was often at the aunt’s house; that, in the absence of her testimony, the commission of the crime of rape on her person was not proved to have been committed by the defendant, Douglass Smith; that the witness Cleo Johnson was a girl under six years of age at the time she testified in said cause; that her age was established by her father and not contradicted. This is the testimony. Taking the statement of facts, the rape was admitted, that is, it was admitted she swore to penetration, and there was no contradiction of that fact. We are of opinion that, under the authorities, the court was not in error in permitting the little girl to testify, and that the evidence presented by this record is sufficient to sustain the conviction. Certainly, if appellant had intercourse with the little girl—that is, if penetration occurred—she' being under 15 years -of age, the offense of rape is shown.

Appellant’s contention is that, under the facts, the little girl was incompetent, not by reason of her intelligence, but by reason of the fact that the offense was a capital one, and, being under 17 years of age, the girl was incompetent, because she could not be punished with death. The statute (article 34, Penal Code) provides that: “No person shall in any case- be convicted of any offense committed before he was of the age of nine years, except perjury, and for that only, when it shall appear by proof that he had sufficient discretion to understand the nature and obligation of an oath; nor of any other offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.” It has been held that the statutory discretion means more than the minor’s knowledge of the difference between good and evil. He must know the nature and illegality of the particular act Parker v. State, 20 Tex. App. 451; Keith v. State, 33 Tex. Cr. R. 341, 26 S. W. 412; Linhart v. State, 33 Tex. Cr. R. 504, 27 S. W. 260; Price v. State, 50 Tex. Cr. R. 71, 94 S. W. 901. This is a matter for the court, not the jury.

The rule with reference to governing the discretion of witnesses under such circumstances has been discussed in Wusnig v. State, 33 Tex. 651; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905. Article 35, Penal Code, provides: “A person, for an offense committed before he arrived at the age of seventeen years, shall in no case be punished with death; but may, according to the nature and degree of the offense, be punished by imprisonment for life, or receive any of the other punishments affixed in this Code to the offense of which he is guilty.” It has been held also that first degree murder by a person under 17 years of age is not a capital offense. Ex parte Walker, 28 Tex. App. 246, 13 S. W. 861.

Article 311, Penal Code, is in the following language: “When the perjury is committed on a trial of a capital felony, and the person guilty of such perjury has, on the trial of such felony, sworn falsely to a material fact tending to produce conviction; and the person so accused of the capital felony is convicted and suffers the penalty of death, the punishment of the perjury so committed shall I be death,”

Section 310, Penal Code, provides that: “The crime of perjury, except as in cases provided for in article 311 of the Penal Code, shall be punished by imprisonment in the penitentiary for a term not more than ten years nor less than two years.”

Appellant’s contention, and his main contention, is that the witness, being a minor under 17 years of age, could not be capitally punished under the statute, and therefore, under the articles quoted, the child could not be used as a witness at all, because, by virtue of the terms of article 311, the perjury, if perjury, was committed in a capital case. We have read with great interest the learned argument of counsel for appellant, in which the reasons are stated why his position should be sustained. It shows wonderful research and profound erudition, but we are of opinion that, by the terms of article 311 of the Penal Code, his position is not sound. In order to make his position tenable, the conviction in this case should have been for the death penalty. Had the jury awarded the defendant in the case the death penalty, the question would have been fraught with many difficulties, but, unless the perjury, if perjury, is committed as to a material fact before a jury in a case in which the witness testified resulted in the death penalty, we are of opinion that the terms of article 311 of the Penal Code would not apply. The perjury must not only be in a capital case, but it must be as to a material fact, and the result of the trial must end in the death penalty conviction in which the party suffers death. It is a peculiar statute in some respects, but the Legislature saw proper to enact it in the form in which it is enacted, and, having the power to do so, this court would be without authority to construe the meaning of that statute otherwise than expressed on the face by its terms. Therefore appellant’s contention is not brought within the terms of the article, because the defendant was only allotted 15 years in the penitentiary ; he was not convicted of the death penalty. We are of opinion that appellant’s contention is not sound that, as the death penalty might be inflicted therefor, the witness was incompetent. The statute requires more than this, not only that the death penalty might be inflicted, but, as a matter of fact, it is inflicted, and that the witness testified to some material fact bringing about or tending to bring about that conviction. That the witness testified to the material facts in the case is conceded in the statement of facts. The main fact, perhaps, in the case, or at lease one of the most cogent facts necessary to conviction for rape, is penetration. This occurred. It is not every perjury committed in capital cases that would justify a prosecution or conviction for perjury with a view of obtaining the death penalty. In order to obtain the death penalty in death cases, the terms of the statute must be met, and the record must show that these terms were fully met. As we view the case, and as we understand the law from these statutes, appellant was not brought within the terms of article 311 of the Penal Code, and therefore his position that the child was incompetent for these reasons is not well taken.

Whether it be wise or not that the Legislature should make the exception in favor of perjury authorizing the conviction of children is not for this court to say. The Legislature saw proper to do so, and excused from punishment all children under nine years of age, except in perjury cases. They had the authority, under the Constitution, to enact the statute, and this court is not empowered to revise their authority. The wisdom of it may or may not be questioned. The authority is a different proposition.

Finding no such error in the record as requires a reversal of the judgment, it is ordered that it be affirmed.