text:
    MILLER v. STATE.
    (No. 3301.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    Animals (§ 45) — Malicious Poisoning — Evidence.
    In a prosecution for willfully and maliciously poisoning a chicken with intent to injure the owner, evidence held insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 123-140, 191, 192; Dec. Dig. § 45.]
    Appeal from Delta County Court; J. N. Viles, Judge.
    J. C. Miller was convicted of willfully and maliciously poisoning a chicken with intent to injure' the owner, and ’ he appeals.
    Reversed and remanded.

      Newman Phillips, of Cooper, for appellant. C. E. Dane, 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 charged with willfully and maliciously poisoning a chicken with intent to injure the owner.

There is no evidence that the chicken died from being poisoned. Appellant and Mr. J. W. White were neighbors. Mr. White had his yard inclosed with chicken wire, but he says his chickens sometimes got out by reason of the gates being left open. The evidence further shows that appellant placed rat poison in his yard, as he says, to kill rats. There is no evidence that the gates of Mr. White were left open, and that his chickens got out, after appellant placed the rat poison in his yard, until the time of the death of the two chickens. No one says the two chickens died from poison. The only evidence is that they were apparently healthy chickens, and one morning were found dead in the chicken house. No examination was made to see what occasioned their death, so far as this record discloses. No one saw the chickens in appellant’s yard after the poison had been placed out in his yard by him. There is a total lack of evidence, except surmise, that the chickens died from poison, and no evidence, if they did, that they were in appellant’s yard after the poison had been placed there by him, as he says, to kill rats.

The evidence wholly failing to sustain the verdict, we do not deem it necessary to discuss the other questions.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    BEDFORD v. STATE.
    (No. 3278.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    Rehearing Denied Nov. 18, 1914.)
    1. Criminal Law (§ 371) — Evidence—Other Offenses — Intent.
    In a prosecution for swindling in executing a deed of trust as security for a loan by prosecuting witness on land which accused had already conveyed to P., evidence that, after P.’s deed had been delivered and recorded, he told accused that he had learned that the title was bad, and demanded pack his money, whereupon accused agreed to give him another lot in lieu thereof, which he never did, was not objectionable, as showing another offense, but was admissible as bearing on accused’s intent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371.]
    2. Criminal Law (§ 371) — Evidence—Other Offenses — Intent.
    Any competent evidence which tends to defeat the defense urged is admissible, though it tends to show accused’s commission of another offense, and especially is this true where accused’s intent is an element of the crime, and the evidence offered tends to show that his intent was criminal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. § 371.]
    3. Witnesses (§ 337) — Credibility of Accused— Othee Offenses.
    Where accused testified in his own behalf, evidence that he had been indicted for several offenses was admissible as bearing on his credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132,1140-1142,1146-1148; Dec. Dig. § 337.]
    4. Witnesses (§ 337) — Credibility of Accused-Evidence.
    Where a conviction of accused of forgery had been set aside, the indictment quashed, and the case dismissed, evidence of such conviction was not admissible to affect the credibility of accused as a witness in his own behalf.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113.1129-1132, 1140-1142,1140-1148; Dec. Dig. | 337.]
    5. Ceiminal Law (§ 1169) — Appeal — Evidence— Pkejudice.
    Where a conviction of accused of forgery had been set aside, the indictment quashed, and the case dismissed, and in a prosecution for another offense evidence of such conviction was erroneously admitted to impeach him, the error was harmless; the court having permitted him to testify that the conviction had been set aside and the case dismissed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    6.'Ceiminal Law (§ 783) — ’Trial—Evidence —Limitations.
    Where accused was charged with executing a deed of trust on property that he did not own to secure a loan, the deed by which accused had previously conveyed the land to another being admissible on the issue whether accused intended to swindle the lender at the time he executed the deed of trust, the court did not err in refusing to charge that the deed could not be considered as evidence to establish accused’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1734, 1735, 1872-1876; Dec. Dig. § 783.]
    7. Ceiminal Law (§ 829) — Teial—Request to Charge — Insteuctions Given.
    Where, in a prosecution for swindling by executing a deed of trust on property which accused did not own to secure a loan, the court charged that, if accused did not receive the consideration from one to whom he had previously sold the land when he made the deed to him, he should be acquitted, such instruction sufficiently covered a request to charge that the jury qould not consider such deed as evidence of accused’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    8. Ceiminal Law (§ 103S) —Appeal — In-stbuctions — Objections—Time.
    Objections to instructions cannot be reviewed on appeal, unless they have been presented to the trial court before the charge is read to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    9. Ceiminal Law (§ 789) — Teial—Insteuc-tions— Reasonable Doubt — Weight of Evidence.
    An instruction informing the jury .as to the law in case they found certain facts beyond a reasonable doubt was objectionable as on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1851, 1880, 1904-1922, 1960, 1967; Dec. Dig. § 789.]

      10. Criminal Law (§ 568) — Sufficiency of Evidence.
    Where, in a prosecution for swindling in executing a deed of trust to secure a loan on property which accused had already conveyed to another, there was parol evidence admitted as to the contents of the note, the deed of trust securing it, and the deed which accused previously made and delivered to the prior grantee of the property, it was no ground for reversal that the record on appeal failed to show the note, deed of trust, and deed, or that such instruments had ever, in fact, been admitted in evidence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1271; Dec. Dig. § 568.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    D. Legion Bedford was convicted of swindling, and he appeals.
    Affirmed.
    Green & Boyd, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of swindling, from which judgment he prosecutes this appeal.

It is alleged that appellant represented to Thomas Engates that he was the owner of lot No. 8, in block No. 3, of the Sweeney addition to the city of Houston, and borrowed from him $50, agreeing to give him a note for $75, payable in 60 days, and secure the payment of the note by giving a deed of trust on said lot in said block, which instruments he executed and delivered to Engates at the time he received the money from him. The basis of the alleged swindle is that appellant did not at said time own the lot on which he gave the deed of trust, and had no right to give a lien thereon.

The state proved by Ned Powell that he had bought from appellant this identical lot —lot 8, in block 3 — and paid him $75 for it prior to the time appellant gave Engates the deed of trust thereon; that appellant, at the time he (Powell) paid him the money, delivered him a deed to this lot, which he placed of record in Harris county. This was all the state offered to prove by Powell. After the state had closed, appellant testified, and introduced testimony tending to prove( that while he did execute the deed to Powell, he did not deliver it to him, and Powell did not at that time pay him the money; he said he delivered the deed to one Emmett Neal to be kept until Powell paid the money, when he (Neal) was to deliver the deed to Powell; that Powell had never paid the money, and he did not know the deed had ever been delivered ; that he had been informed that, instead of the deed being delivered to Powell, it had been destroyed, and he was under that impression when he gave the deed of trust to Engates.; So it is seen it became a material question whether or not the money had, in fact, been paid by Powell, and whether, in fact, appellant knew the deed had been delivered to Powell at the time he gave the deed of trust. After appellant had testified as above stated, and introduced such corroborative testimony as was at his command, the state recalled Powell in rebuttal, and he testified that at the time he purchased the lot in question he paid appellant in full for it, borrowing $37.50 from Neal, and the deed was delivered to Neal to be held by him until he paid Neal the $37.50; that he paid this $37.50 the next day, when the deed was delivered to him by Neal, and he had it placed of record, and on the question of whether or not appellant knew the deed had been delivered or not, Powell was permitted to testify that some two weeks after the deed had been delivered to him and he had placed it of record he approached appellant and told him that he had learned the title to the lot was not good, and demanded back his money, and appellant had agreed to give him another lot in lieu thereof, which he had never done.

Appellant objected to this latter testimony on the ground that it was hearsay, not germane to any issue in the ease, and only tended to prove that he had been guilty of another and different offense from that for which he was on trial. The testimony was certainly germane to the issue as to whether or not appellant knew the deed had been delivered to Powell at the time he gave the deed of trust to Engates, and the court did not err in admitting the testimony. If it proved that he (appellant) knew he had sold the lot to Powell, and he had received the money therefor, and the deed thereto had been delivered to Powell prior to the time he offered to and did give a deed of trust .to Engates on the same property to secure the $50 he borrowed from him (Engates), the testimony was clearly admissible on the issue of what was his intent in giving the deed of trust to Engates — did he at that time, the very time he received the money, intend to swindle Engates out of the money? Any competent evidence which tends to defeat the defense urged is admissible, though it tends to show another offense. Craig v. State, 23 S. W. 1108; Stovall v. State, 97 S. W. 93. The following rules of law laid down in Gilbraith v. State, 41 Tex. 569, have always been followed by this court:

“There are, unquestionably, eases in which it is admissible, in support of the charge against the defendant, to adduce evidence which may refer to, and be more directly connected with, other offenses than the one for which he is on trial, or even to go directly into and show other criminal transactions of a similar character. Such evidence, however, is admitted mainly when it is necessary to establish identity in developing the res geste, or in making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is on trial. Mason v. State, 42 Ala. 532. But much the larger class of cases, where proof of another crime is admissible as direct evidence against the accused, is when the intent with which a particular act is done may be the gist of the offense.”

The cases cited by appellant, holding evidence of other crimes inadmissible, have no application in a case where the issue is, With what intent did the person on trial do the act complained of? His testimony would show that he intended no wrong; that he thought he was at the time still owner of the lot, while this testimony of Powell would show that he did not so believe; that he knew he had sold the lot in question, received the money therefor,.and delivered to him a deed thereto, and necessarily knew he had no right to mortgage the lot at the time he gave Engates the deed of trust thereon.

Appellant testified in his own behalf, and also filed an application asking a suspension of the sentence in case he was convicted. On cross-examination of appellant the state proved by him that he had been indicted for several offenses, and that some time before he had been convicted of forgery. Appellant objected to this testimony.

All of it was admissible on the issue of his credit as a witness, and on the issue of whether or not the jury would recommend a suspension of sentence if they found him guilty, except that portion in which it was shown that he had been convicted of forgery. As this judgment had been set aside and a new trial granted, testimony of the conviction was not proper evidence, and an objection, if urged specifically to this part of the testimony, should have been sustained.

However, as the court permitted appellant to testify, and he did testify, that the judgment of conviction had been set aside, the indictment quashed, and the case dismissed, and as the testimony as to appellant being indicted charged with other offenses was properly limited in the charge of the court, the matter does not present reversible error.

At the time the charge was presented to appellant for his examination, he made no objection thereto, but he did ask that several special charges be given, and to the refusal of the court to do so he excepted in three instances and presents the matter in three bills of exception. In the first he complains of the action of the court refusing to give a special charge in which he asked the court to instruct the jury that they could not consider the deed from appellant to Powell “as evidence for the purpose of establishing the guilt of defendant.” As the evidence was admissible on the issue of whether appellant had the intent to swindle Engates at the time he borrowed the money and gave the deed of trust, the court did not err in refusing this charge.

The court did charge the jury in regard to this transaction that, if appellant did not receive the consideration from Powell for the lot at the time the deed was made to Powell, to acquit appellant. This fully covered this phase of the case, and it was not necessary to give the special charges requested in regard to this phase of the case. The other special charge, to the refusal of which appellant reserved an exception, is fully covered by the main charge of the court.

The only other exception in the record relates to a paragraph of the charge of the court. As before stated, there is nothing in the record showing that appellant objected to that or any other part of the charge prior to the time the charge was read to the jury. Attorneys seem to forget that, under the law as it now is, this court cannot consider objections made to the charge after it has been submitted to the jury, or after verdict. In the bill in the record, however, no error is pointed out in the paragraph included in the bill; it-is simply stated that the appellant “excepted to the action of the court in giving such instructions.” No error, if error there be, in the paragraph is suggested or attempted to be pointed out. However, in the able brief filed in this case appellant insists that this paragraph was upon the weight to be given certain testimony. It is not susceptible of this criticism.

The court simply informs the jury as to the law, in case they find certain facts beyond a reasonable doubt This does not suggest to the jury the weight to be given the testimony, but leaves to the jury all issues of fact, and the weight to be given all testimony is left to their judgment without any intimation from the court of what weight should be given to it as proving any fact.

These are all the bills in the record. In the second amended motion for new trial appellant does complain of the charge in other respects, but these we cannot consider, as they do not present fundamental error, if any error at all, and certainly the charge was one under which appellant could and did receive a fair and impartial trial.

The only other question we deem necessary to notice is one that is first presented in appellant’s brief. In the motion for new trial we find the following ground: “Because said verdict of conviction is contrary to and unsupported by the evidence.” Under this ground in the motion he calls our attention to the fact that neither the note from appellant to Engates, the deed of trust given to him, nor the deed from appellant to Powell, are included in the statement of facts, and he earnestly insists that, as the instruments do not appear in the record before us, we should sustain this ground of the motion for new trial. He is correct in stating that these instruments are not in the record, and we cannot understand the negligence or carelessness of the state’s counsel in permitting them to be omitted, if in fact they were introduced in evidence. In the statement of facts we find the following notations:

“The state of Texas, by her district attorney, here offered in evidence the note and mortgage, being Exhibits 1 and 2, pages-of this statement of facts.” Again: “State. We now offer the D/T and note.” And when Powell had testified and identified the deed from appellant to him, we find the following: “State. We offer the deed in evidence.”

This memorandum only shows that the note, deed of trust, and deed were offered in evidence, and does not show that they were, in fact, introduced in evidence. Consequently, if- the conviction had to stand on whether or not these instruments were actually introduced in evidence, or as to what their contents were, appellant’s contention would he sound, and it would be necessary to reverse the case, although it is manifest from the entire record that they were, in fact, introduced in evidence. In one of his special charges appellant recites “that the state introduced in evidence before you a deed from defendant to one Ned Powell.” Again, in another charge, he recites the introduction of the deed of trust in evidence. It is thus made plain by the record that these instruments were all, in fact, introduced in evidence, but they are not included in the record sent to us. Of course, they are the primary or best evidence, and secondary evidence of the contents of these instruments, were they not introduced in evidence, should not have been admitted had objection been made. No such objection was made, and the record is replete with oral evidence of the contents of these instruments, and as to the execution and delivery of same. Engates was permitted to testify, without objection, that appellant had borrowed from him $50, and gave him a note for $75, due in 60 days; that to secure the payment of this note appellant gave him a deed of trust on lot 8, in block 3, of the Sweeney addition to the city of Houston; that Mr. Rowe made out the deed of trust and note.

T. C. Rowe testified: That appellant and Engates came to his office, and appellant desired the papers drawn, and then and there stated that he had a deed to the lot; that the title to it was clear, and there were no incumbrances of any kind against it. That he then drew up the deed of trust and note, and appellant signed both of them, and he then took appellant’s acknowledgment to the deed of trust. In his presence Engates let Bedford have the $50. That the note was subsequently given to him for collection, and he presented it to Bedford and Bedford offered to give him a deed of trust on another lot, which, upon investigation, he found another man owned, and therefore he would not take a deed of trust on it.

The testimony of Engates and Rowe proved conclusively the loan, the representations, and the execution and delivery of the note and deed of trust. In fact, appellant in his testimony admits all these facts, and the defense he makes is that he at the time did not know that the deed he made to Powell to this property had been delivered to Powell; that Powell had not paid him, and he thought the deed had been torn up; and ' that he had a right to give the deed of trust to Engates. So this much at least is amply proven by the record, even though the deed of trust and note were not, in fact, introduced in evidence.

The next question is, Does the record disclose that. a deed had been made to Powell to this same property prior thereto, although the deed was not, in fact, introduced in evidence? Powell testified that he paid appellant $75 for lot 8, in block 3; that he saw appellant sign the deed; and that the deed was delivered to him, and he placed it of record. Emmett Neal testified that the deed was executed to Powell in Parris’ office on or about the 15th day of March, 1912, to lot 8, in block 3, in the Sweeney addition. J. P. Parris testified he prepared this deed and took the acknowledgment. So the execution of the deed to Powell was shown beyond a shadow of a doubt, even though the deed was not, in fact, introduced in evidence, and we are of the opinion that, even though the note, deed of trust, and deed were not, in fact, introduced in evidence, yet the evidence that this record shows was adduced on the trial amply supports the verdict. As hereinbefore stated, such facts may have been proven by evidence that could have been excluded on proper objection being made, if the note, deed of trust, and deed were not, in fact, introduced in evidence; yet, as this testimony was admitted without objection, it is ample to support the verdict, even though the note, deed of trust, and deed were not, in fact, introduced in evidence.

The judgment is affirmed.


author: DAVIDSON, J. HARPER, J. HARPER, J.

text:
    SAVAGE v. STATE.
    (No. 3273.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.
    Concurring Opinion Nov. 11. 1914.)
    1. Bribery (§ 11) — Attempt to Bribe Witness — Evidence—Subposna.
    In a prosecution for attempting to bribe a witness, the uncontradicted testimony of a number of witnesses that the witness on whom the attempt at bribery was made had been duly summoned was sufficient evidence of the summoning, without the introduction of the sub-poeha.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. § 10; Dec. Dig. § 11.]
    2. Witnesses (§ 358) — Redirect Examination — Explanation oe Testimony on Cross-Examination.
    In a prosecution for offering to bribe a witness, where defendant, on cross-examination of the witness alleged to have been bribed, and to impeach his credit, showed that such witness had signed defendant’s name to checks, it was proper for the state to redirect examination to show that, after the indictment against him, defendant had gone to witness and offered and agreed to pay him $1,000 to leave the state and not appear as a witness against him, that witness agreed to accept it and- did leave the state, and, in accordance with defendant’s instructions, had signed defendant’s name to the checks; that being merely explanatory of why he had signed defendant’s name thereto.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1159, 1160; Dec. Dig. § 358.]
    S.Criminal Law (§ 351) — Evidence—Tampering with Witness.
    Such explanatory testimony was admissible as showing defendant’s attempt to tamper with the witness as a circumstance tending to show his guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.)
    4. Criminal Law (§ 424) — Evidence—Declarations.
    In a prosecution charging one T., with others, as a principal in offering to bribe a witness, where none of the defendants requested- a severance and were jointly tried, T.’s voluntary statement, made before the grand jury, reduced to writing and signed by him, was admissible as against him alone.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.]
    5. Criminal Law (§ 706) — Trial—Conduct of Prosecuting Attorney.
    In a prosecution of four jointly indicted and tried for offering to bribe a witness, the fact that, at the close of the testimony, the court did not deem the evidence sufficient to authorize the conviction of one of the defendants, and withdrew a statement made by such defendant and admitted in evidence, did not show that the district attorney was guilty of improper conduct, where there was no evidence that he acted in bad faith, and where he appeared to act in an earnest effort to produce evidence to convict all four defendants.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. § 706.]
    6. Criminal Law (§ 59) — “Accomplice”— Detection of Crime.
    One who originates a crime or is instrumental in its initiation, even though a detective or other officer, is an “accomplice”; but if he is approached, and all his steps are taken with a view of detecting the crime, he is not an “accomplice” to such crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.

    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    7. Criminal Law (§ 742) — Question for Jury-Accomplice.
    In a prosecution for offering to bribe a duly summoned witness not to testify and to disappear from the country, held, on the evidence, that whether the witness, to whom the alleged offer was made, was an accomplice was for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1721; Dec. Dig; § 742.]
    8. Criminal Law (§ 809) — Instructions-Misleading Instruction.
    In a prosecution of four jointly indicted and tried for offering to bribe a witness, an instruction that, where several defendants are tried together, the jury may convict such of them as they may believe from the evidence, beyond reasonable dbubt, to be guilty, and acquit the others, in view of a verdict acquitting part of the defendants and convicting one, was not misleading as requiring the jury, on finding one guilty, to find all guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1961-1967; Dec. Dig. § 809.]
    9. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence.
    In a prosecution for offering to bribe a witness, where evidence as to defendant’s tampering with a witness after his indictment was admissible on the issue of his guilt, it was not proper for the court to limit the evidence by its charge, since that would have been a charge on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    10. Criminal Law (§ .510) — Testimony of Accomplice — Corroboration.
    In a prosecution for offering to bribe a witness, testimony of such witness, alleged to be an accomplice, that defendant, after his indictment, offered to bribe witness not to appear and testify against defendant did not require corroboration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124-1120; Dec. Dig. § 510.]
    11. Criminal Law (§ 780) — Sufficiency of Evidence — Accomplice’s Testimony.
    A charge is erroneous which only requires testimony of an accomplice to “tend” to connect the defendant with the offense, but a charge must require that the testimony of the accomplice “connect” the person on trial with the offense charged, and not merely “tend to connect.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dee. Dig. § 780.]
    12. Criminal Law (§ 511) — Sufficiency of Evidence — Corroborative Testimony.
    Corroborative testimony need only “tend to connect” a person on trial with the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. § 511.]
    Appeal from District Court, Potter County; James N. Browning, Judge.
    Z. Z. Savage was convicted of offering to bribe a witness, and he appeals.
    Reversed and remanded.
    Reeder & Dooley, of Amarillo, 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 oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was indicted for offering to bribe the witness J. M. Barkley in a case wherein Frank Engman was defendant, charged with violation of the local option law in Potter county.

The indictment charges a conspiracy and acting together between Savage and others. Barkley testified practically that appellant, Thomas, Engman, and Plemons offered to bribe him, as a witness in the case, to disappear from the country and not testify. The indictment alleges also, after setting out the subpoenas alleged to have been served upon Barkley, that they were served by a deputy sheriff named S. D. Riddings. The statement of facts shows that Steve Riddings was introduced as a witness. The only question asked him was as to his name. The contention is made that, inasmuch as the indictment charges that the subpoena was served by S. D. Riddings, the subpoena ought to have been introduced in evidence before the jury, and that proof also should be made that Riddings served the papers as charged. Whether it was necessary or unnecessary to set out the subpoenas in the indictment, and the further fact that S. D. Riddings, as an officer, served the process .upon Barkley as a witness, it should have been proved to meet the allegations in the indictment. The subpoenas were not introduced, nor was S. D. Riddings asked any questions in reference to the matter, so far as the statement of facts is concerned or bill of exceptions. This was error.

The first bill of exceptions recites that the witness Barkley was permitted to testify to a conversation occurring between himself and appellant at the Elks Hotel subsequent to the transaction set out in the indictment, in which he states that appellant offered to pay him some money in connection with this and other cases in which Engman was defendant. Many objections were urged, among others, that it was not res gestee and an independent transaction, and could not be introduced to show system or intent. There are quite a lot of cases cited showing that testimony of this character could not be introduced on the question of system, and also quite a number of cases showing that the testimony, under the facts of this ease, could not be used to show intent on the part of Savage. It could not be introduced for these purposes. If Savage offered to bribe in the manner indicated in the indictment, there was no question of his intent, because the facts shown by the witness made the case complete, so far as his testimony could make it. He says he was offered and received money to absent .himself from the country, and not only so, but did leave, and that Plemons and Scott went with him in the direction of Tucumcari, N. M. He says Plemons bought his ticket from Amarillo to El Paso, and gave him in addition money amounting to thirteen dollars and some cents. If this money was paid to bribe Barkley, there was no issue as to intent. The facts carry the intent with it in the consummation of the act. The subsequent offers to bribe could not be used for that purpose in this case. Extraheous crimes may be used to develop intent or connect the party with the transaction on trial, or to develop the res gestas, or to show system in a proper case. This evidence does not bring the case within any of these rules. It could not be used to corroborate Barkley, because Barkley was an accomplice and could not corroborate himself, and no other witness testified to the fact that the conversation ever occurred. If it was admissible at all, it was upon the theory that the conversation between the defendant and Barkley was with reference to the case here charged. The contention seems to be that this is admissible under the case of Garden v. State, 62 Tex. Cr. R. 545, 138 S. W. 598. The writer, however,’ is of the opinion that the testimony was not admissible under that authority, under the facts of this case. The majority are of the opinion the evidence was admissible.

Another bill recites that O. 6. Thomas, one of the defendants, went before the grand jury and made a written statement in which he exculpated himself entirely from having anything to do with bribery, but made statements criminative of his codefendants. This was made after the transaction was complete on which the indictment was based, and by a party who is charged with the same offense as the alleged co-conspirators. Many objections were urged to this testimony, which ought to have been sustained. It had no place before the jury. The statement of a co-conspirator, inculpating other co-conspirators, made after the transaction, cannot be used in evidence against anybody, except the party making the statement; therefore it could not be used against Savage and Plemons and should not have been admitted. The statement was exculpatory entirely of the maker of the statement, and was an indirect way of getting before the jury the statement of Thomas before the grand jury, stating matters upon which the state sought to make its case against the others; at least the statement of Thomas, if true, was inculpatory of them. The testimony could not thus be used, and was not admissible. We make the further statement that this was original testimony introduced by the state; therefore the question of impeachment does not arise. After the case on the facts was completed, the district judge instructed' the acquittal of Thomas, and then withdrew Thomas’ written statement, above mentioned, from the consideration of the jury. Many opinions have been written, and it would seem like a sufficient number, to the effect that illegitimate testimony cannot be introduced and then controlled by the charge of the court. It being clearly inadmissible against Savage, the instruction of the court, first, that it could only be considered against Thomas, and then subsequently withdrawing it entirely from the jury, did not cure the error. It is of sufficient importance to reverse this judgment. The court makes this statement qualifying the bill:

“The statement complained of in this bill, when admitted in evidence, was admitted solely as to defendant O. G. Thomas, who made the same, and the jury were then specially instructed by the court not to consider it as any evidence and for any purpose as against the other defendants. After the testimony was closed, the court, in the fifth paragraph of his charge, withdrew this statement altogether from the jury.”

The court recognized -by this statement that it was error to introduce this testimony against the other two parties, and that it could only be used against Thomas. It entirely exculpated Thomas.

There are quite a number of exceptions to the court’s charge properly taken before being read to the jury and verified by the district judge. There are quite a number of special requested instructions refused by' the court, which were offered in proper time, as verified' by the judge. All of these questions are properly presented for adjudication. The court submitted the question to the jury as to whether Barkley was an accomplice or not. Appellant insists the court should have instructed the jury positively and directly that Barkley was an accomplice. ■ Under this record, this contention is correct. That Barkley was an accomplice is not a debatable issue under the facts. He testified in substance: That they offered him money to leave the country, going into detail as to the transaction. That Plemons bought the ticket at Amarillo, paying $16.95 for it. That they would carry him in an auto to some point on the railroad leading from Amarillo to El Paso, and pay him in addition $23.05. That they reached the designated point where he was to take the railroad for El Paso, and a controversy ensued between him and Ple-mons as to the amount of money he was to get; Plemons contending that he was to have $10 of the $40 for conveying Barkley to this point on the railroad, and Barkley contending that he was to have the entire $40, resulting, as Barkley says, in his getting $13.45 and the railroad ticket, $16.95, and Plemons retaining $10. He then got into communication with the sheriff at Amarillo over the telephone, who came after him, as well as Plemons and Thomas, who had been in the auto with him to this point. They were all carried back to Amarillo next morning, and this prosecution followed. The evidence is further to the effect, if there was any bribery at all, that he solicited the offer of the bribe, and continuously so until it was offered, and then he accepted it. He testifies: That he was working on this matter in connection with the sheriff’s department, and the district attorney. That he had pleaded guilty to passing what he called “bad checks,’’ and was working at the courthouse paying out a fine. That he had other cases and trouble with the courts, some of which were pending. It is unnecessary to repeat all of the statements showing the relation of this witness to the case. It is useless for the court to assume, under the circumstances and statements as made by this witness, that there was any question or issue as to his being an accomplice. The authorities in Texas are so clear and positive and uncon-tradictory upon this question that it ought not to be debatable. Under this witness’ evidence, he went into a scheme to work up a case against these parties at the beginning in order to get them into trouble, and that, having done so, he accepted the money and railroad ticket and agreed to leave the country, and did start to El Paso, and later on did in another instance leave the country, and he testifies that appellant Savage sent him money to different points in Texas, California, and Arizona to keep him out of the country in the latter instance. There could be no question that Barkley was an accomplice, made so by his own testimony. The court should have instructed the jury positively that he was an accomplice. In this statement we are not going into the defensive side of the evidence. They deny the whole transaction, and say they never paid him any money, and Plemons testified in regard to railroad ticket that Barkley came to him (Plemons) and gave him $20 and asked him when at the depot to buy him a ticket-to El Paso. That Barkley knew and had heard them talking about the fact that he (Ple-mons) and his brother-in-law Thomas were going to Tucumcari, N. M., to sell an automobile, and that they were working on it that particular morning, and Barkley came and asked them to carry him along, which they agreed to do, and he had occasion to go to the depot for some purpose, or at least went to the depot, and Barkley asked him to buy a ticket for him with the $20 given him by Barkley, which he did, and brought him back $3.05. The controversy about the money, when they finally separated after leaving Amarillo, grew out of the fact that he (Ple-mons) had loaned the witness Barkley money theretofore, and in paying him this money he wanted Barkley to pay him what he owed. This Barkley declined to do. So he finally gave Barkley the $3.05, and that was the end of the transaction, from Plemons’ viewpoint. But those are matters it is unnecessary here to discuss.

The question here is the attack on the court’s charge because it failed to instruct the jury that this man Barkley was an accomplice. A discussion of the defendant’s side of the case is unnecessary to an elucidation of that point, as their testimony was purely exonerative. The court should have charged the jury that Barkley was an accomplice. Also, in this connection, the court charged the jury that they could not find the defendants guilty upon Barkley’s testimony, “unless you first believe the testimony of the said J. M. Barkley is true, and that it shows, or tends to show, that the defendants, or some one or more of them, is guilty as charged in the indictment; and still you cannot convict the defendants, or any of them, unless you further believe that there is other evidence in this case, outside of the testimony of said J. M. Barkley, tending to connect the defendants, or some one or more of them, with the commission of the offense charged in the indictment.” There are quite a number of exceptions taken to this charge, which should have been sustained. That portion of the charge given by the court, to the effect that Barkley’s testimony must tend to show that the defendants are guilty, is in contravention of all the decisions, where that question has been adjudicated. Eor collated cases, see Branch’s Criminal Law, § 320. These have been collated so often in the decisions we déem it unnecessary to do more than refer to the cases, as collated by Mr. Branch. The charge is not sufficient when it tells the jury that the evidence of the accomplice must tend or tends to show guilt. The same objection is urged to the general definition of accomplice, as well as in the application of the law to the ease. The objection to the charge just quoted is where the court is applying the law to the case. In the general definition he uses the same language; that is, that the jury must first believe the accomplice’s evidence to be true, and that it shows or tends to show defendant’s guilt. That portion of this charge is also criticized which informs the jury that the accomplice’s testimony would be sufficient if it shows or tends to show that the defendants, or some one or more of them, are guilty as charged. The court nowhere limits the application of the law to the particular defendant whom the jury might find guilty under the circumstances indicated. It would seem from the charge as given, if the jury should find that the accomplice was corroborated, or there was evidence tending to corroborate him, or that his testimony tended to prove guilt, they could find them all guilty, under those circumstances, if the jury should come to the conclusion that some one of them was guilty. Applying the law to the case, after giving the general definition of principals and directing an acquittal as to Thomas, he then instructed the jury that if they should believe, beyond a reasonable doubt, that the defendants Prank Eng-man, Z. Z. Savage, and Bluford Plemons, acting together, on or about the 3d day of April, 1913, unlawfully, willfully, and corruptly offered to bribe the witness J. M. Barkley in the Prank Engman Case, then pending in that court, to disobey subpoena, they would convict. In charge previously quoted, with reference to accomplice testimony, he instructs them that if they should believe the testimony of the accomplice, and that it connected, or tended to connect, the defendants with the case, then they might find all of them guilty. It takes no reasoning to show that this charge is clearly erroneous. The court should have pointedly instructed the jury that they could only convict the man as to whojn they might find the testimony sufficient, and not to convict all of them, unless they found the evidence sufficient as to all of them, and that the accomplice was corroborated as to all of them. This is perhaps a sufficient discussion of the charge on indicated errors. These were pointed out by the defendant, not only in exceptions to the charge before it was read to the jury, but in bills of exceptions, and special charges were asked covering these matters, which were refused by the court.

Another special charge was asked with reference to the transaction that Barkley says occurred between himself and appellant, Savage, at the Elks Hotel. In that conversation Barkley testified that Savage offered him money. They had a controversy as to the amount of it, but finally agreed on something like §1,000, if he would leave the country. He then went into detail as to how the matter was to be handled, and that he did leave the country and went away, and Savage sent him money. The special charge requested in this connection, which was not given by the court, and no similar charge given, is as follows:

“The witness John Barkley testified before you im regard to other transactions with some of the defendants and other alleged offers of bribes. Now, in regard to such other and subsequent transactions, you are instructed that, before you can consider them for any purpose whatever, you must first find from the evidence that such transactions took place, as testified to by Barkley, and further that such transactions in themselves constituted also the offense ‘bribery,’ as that term is defined in the court’s charge, or at least constituted or were an offer to do away with evidence in this case; and unless you do find from the evidence both that such other alleged transactions are true, and also that they constituted such offense, or one of them, you will not consider same for any purpose.”

They also asked special instructions, which were refused, and none of similar import given by the court, that, before the jury could consider the transactions testified to by Barkley subsequent to the filing of the indictment in this case for any purpose, they should find from the evidence that such transactions actually took place as testified to by Barkley, and further that such transactions in themselves constituted also the offense of bribery, or at least constituted an effort to do away with evidence in this case, for the reason that testimony of subsequent transactions to an indictment are in no event legal testimony to be considered by the jury, unless the jury first finds the testimony to be true, and that the transactions actually took place, and that same constituted a penal offense, etc. Other portions of the charge also brought to the attention of the court and asked that the jury be instructed with reference to the corroboration of Barkley in reference to subsequent transactions, upon the theory that Barkley, being an accomplice, could not corroborate himself, not only as to this case, but as to subsequent matters that he testified occurred between himself and other parties. We are of the opinion these charges should have been given, or at least the principle involved in them should have been given, to the jury' fully and fairly. Barkley, being an accomplice, could not corroborate himself by any inculpatory evidence that he might give in connection with bribery. He was a party to it, and organized it from beginning to end, under his own testimony, and whatever other conversation occurred, with reference to the matter, between him and one of the parties, after the alleged design, necessarily implicated Rim as much as it did either of the defendants to whom he may have talked. The jury may have been impressed with the fact that the subsequent statements and conversations were corroborated by reference to the original transaction. Of course the courts and lawyers would not so understand it, but the jurors are not versed in these matters, and this phase of the case should have been carefully guarded, so that the testimony might not be appropriated to an illegal or unlawful purpose.

It is contended the evidence is not sufficient to support the conviction. The writer is disposed to agree with the contention. Barkley made himself a principal in the matter from the beginning. He originated, and helped originate, and brought about the scheme by which he was to' accept the bribe. We are of the opinion that, so far as the facts are concerned, he was not corroborated by any fact or circumstance of sufficient importance to show that appellant, Savage, gave him any money to convey him out of the country in the original transaction. Barkley undertook to so testify, but nobody else does, and the testimony shows that he had $20 with which the ticket was bought, and he did not get it from Savage, and, so far as the testimony goes, no witness shows that Barkley received money from Savage. The writer is not willing to see a man incarcerated in the penitentiary on this character of testimony. That Barkley was an accomplice is shown by his own testimony, and he is not corroborated, so far as I understand the facts, in any manner that would tend to connect appellant with paying him money or running him out of the country.

The judgment is reversed, and the cause remanded.

HARPER, J.

I agree to the reversal of the case on account of the error in the charge on accomplice testimony, wherein the court instructed the jury that if they find that Barkley was an accomplice, and his testimony tended to show the defendant guilty, etc. The other grounds I do not agree to, and will write my views later.

HARPER, J.

(concurring). The indictment was returned by the grand jury, charging appellant, Prank Engman, Bluford Ple-mons, and G. G. Thomas with offering to bribe one J. M. Barkley, who had been summoned to appear as a witness against Prank Engman in a case then pending against him, to leave the state and not appear as a witness against said -Engman. We will not undertake a full statement of the case, as we have concurred in a reversal of the case, but, not agreeing to all the holdings of Judge 'DAVIDSON, we will state our views on such questions.

The record discloses fully that Barkley had been legally and duly summoned as a witness; therefore the failure to introduce the subpcena would not present error. When this fact was testified to by a number of witnesses, and no evidence offered to the contrary, this fact was sufficiently proven.

The testimony of the witness Barkley as to conversations had between him and defendant Savage, at the Elks Hotel, we think admissible, under all the rules of law. In the first place, in cross-examination of Barkley, the defendant brought this matter in the record. The testimony offered by the state in its direct testimony related solely to the offer to bribe, as charged in the indictment, the $40 transaction. On cross-examination of the witness Barkley, the defendant, to destroy his credit as a witness, asked Barkley if he had signed Savage’s name to two checks. Barkley admitted that he had done so. Then the state was permitted to show, on redirect examination of the witness, how he came to sign Savage’s name to these two cheeks, and the witness testified that, after the indictment had been returned charging appellant with the offer to bribe him, Savage came to his room and offered and agreed to pay him $1,000 to leave the state and not appear as a witness against him in this bribery case and other cases pending; that he agreed to accept it, and .did leave the state, and, in accordance with instructions from Savage, had signed appellant’s name to these two checks. This was merely in explanation of why he had signed appellant’s name to the checks, and, as appellant had elicited that fact, it certainly was permissible for the state to show that he had done so by the instructions of the man whose name he signed to the checks.

But the testimony was admissible for another reason and on another ground. Savage had been indicted for an alleged attempt to bribe Barkley. This testimony was in reference to the offer of $1,000 to leave the state and not testify against • him in the bribery case then pending—this case of which he was convicted. It has always been held admissible to show the flight of the person charged with crime, or a tampering with the witnesses for the state by him, as a circumstance tending to show his guilt. As said by Mr. Branch in his work on Criminal Law:

“If defendant authorized or was present when money was offered or paid a witness to leave, or himself attempted to or did tamper with the witness, it is not error to admit proof of such fact.” Branch’s Criminal Law, § 862; Clark v. State, 43 S. W. 522; Ezell v. State, 71 S. W. 283; Booth v. State, 52 Tex. Cr. R. 454, 108 S. W. 687; Parks v. State, 46 Tex. Cr. R. 104, 79 S. W. 301; Wharton’s Crim. Ev. § 923 (10th. Ed.).

The record discloses that C. G. Thomas, was charged, with the others, as a principal. • He had appeared before the grand jury and made a voluntary statement. This was reduced to writing and signed by him. All four defendants elected to be tried at the same time, no severance being requested or demanded, and all four were not only jointly indicted but jointly tried. In making its case, tiie state introduced this voluntary statement of Thomas as evidence tending to show his (Thomas’) guilt; the court stating at the time that it was admitted only as evidence against Thomas, and instructed the jury that it could not be considered as any evidence against the other three defendants. Under- all the authorities, this evidence was clearly admissible against Thomas, who was on trial.

At the close of the testimony, the court did not deem the evidence sufficient to authorize the conviction of Thomas, and withdrew this statement made by Tilomas, and in- ' structed the jury it could not be considered for any purpose. We do not think the record discloses that the district attorney was guilty of improper conduct in the premises. Certainly there is no evidence that he acted in bad faith. Throughout the trial his efforts seem to have been in earnest in an effort to adduce evidence to convict all four defendants, Thomas as well as the others, and if in the opinion of the trial judge, at the close of the testimony, the testimony did not authorize the conviction of Thomas, it does show or tend to show improper conduct on the part of those prosecuting officers. It shows only a difference of opinion as to the strength of the testimony adduced on the trial. Thomas being on trial at the time it was offered, and the testimony, with the other evidence, having a tendency to show his guilt, there was no error in admitting it at the time it was admitted, limited, as it was, by the court.

The opinion of Judge DAVIDSON also holds that the court erred in submitting to the jury the question of whether or not Barkley was an accomplice; that he should have peremptorily instructed them that Barkley was an accomplice. In this I do not concur. By this record it is a question of whether or not Barkley is in law an accomplice, in so far as the $40 transaction is concerned, on which he was being prosecuted in this case. According to this testimony, he was approached by the defendants and offered $40 to leave and not testify against Eng-man, in cases then pending against Engman. That this $40 was put up by Savage, and $30 thereof paid to him by Plemons. He says that, when he was approached with the proposition by the defendants, he reported the matter to the county attorney and the sheriff; that they instructed him to accept the money, and agree to leave, and then to bring the money to them. He says he did at once report the matter to sheriff and-county attorney, delivered the money to them, and the defendants were at once arrested by the sheriff; that he had no idea of leaving or accepting the money, but only took it at the instigation of the officers. If this is true, this did not make him an accomplice in law. This question is discussed by Judge Davidson in Bush v. State, 151 S. W. 554, and the true line of demarcation is there marked out; if one originates the crime or is instrumental in its initiation, even though a detective or other officer, he would be an accomplice; if, however, he is approached, and all his steps are taken with a view of detecting crime, he is not an accomplice to such cx-ime, and we can agree to no other rule. This question was fully discussed in Minter v. State, 159 S. W. 300, and Holmes v. State, 156 S. W. 1172, and authorities collated, and .to which we here refer. Defendants in their testimony do not say they were solicited by Barkley to offer a bribe, but they deny all knowledge of the matter, and certainly Barkley’s testimony and the other testimony does not do more than raise the question that he may have been an accomplice, which question it was proper to submit to the jury for their determination, and this the court did.

Neither do we think the charge of the court is subject to the criticism that, if they should believe one guilty, they must find all the defendants guilty. The court instructed the jury:

“Where several defendants are tried together, as in this case, the jury may convict such of the defendants as they may believe from the evidence, beyond a reasonable doubt, are guilty, and acquit the others.”

The jury, in their verdict, show they so understood the law, for their verdict is:

“We, the jury, find the defendants Bluford Plemons, Prank Engman, and C. G. Thomas not guilty, and find the defendant Z. Z. Savage guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for two years.”

This’ shows they were not misled; that the court’s charge was clear and explicit enough to let them understand the law in this particular; and certainly such criticism of the charge is not and cannot be justified, when only one out of four defendants is convicted.

Neither do we think any charge was called for as to the transaction at the Elks Hotel. This was as to an attempt to bribe Barkley to leave the state and not testify against these defendants in this case, and as such testimony was admissible, as would be testimony of flight or any other circumstance of tampering with a witness on the issue of guilt, it would have been improper to have sought to limit it in the charge, and such a charge would have been upon the weight of the testimony. The authorities on this question have heretofore herein been cited.

Neither was corroboration necessary as to .the testimony of subsequent transactions to the one on trial, showing a tampering with or offer to bribe a witness not to appear and testify on the trial of this case.

I do not agree that' the testimony does not support the conviction, if there was no error in the trial. As it will be tried again, I will not comment on it, but, if the testimony offered by the state is true, it shows a deliberate effort to bribe Barkley not to axspear and testify against Engman in any case tlien pending against Mm, a payment of $30 for that purpose, and the corroborating' circumstances are sufficient to sustain a conviction.

These are all the questions discussed by Judge DAVIDSON, except the one in which I concur in the opinion that it shows error. I have not discussed the above questions at any great length, but just desired to enter my protest to any such holdings and ruling of law. As to the ground, and the only ground, upon which I concur in the reversal of the case, it is in the charge on accomplice testimony.

The court instructed the jury in this paragraph that if they believed Barkley was an accomplice, and his testimony “tended to connect the defendants with the commission of the offense.” This was error, and it hag been so often so held and pointed out, that it seems strange to us that this error should continue to creep into the record. Appellant, in his objection, specifically pointed out this error in the charge, and it should have been corrected. In the cases of Oates v. State, 51 Tex. Cr. R. 452, 103 S. W. 859, Barrett v. State, 55 Tex. Cr. R. 185, 115 S. W. 1187, Tate v. State, 55 Tex. Cr. R. 399, 116 S. W. 604, Maples v. State, 56 Tex. Cr. R. 99, 119 S. W. 105, and other cases cited in Branch’s Criminal Law, § 320, the rule is stated to be that:

“A charge is error which only requires testimony of an accomplice to ‘tend’ to connect the defendant with the offense. The charge on accomplice must require that the testimony of the accomplice ‘connects’ the person on trial with the offense charged, not merely ‘tend to connect.’ ”

As to the corroborating testimony, this o,nly need “tend to connect” the person on trial with the offense, but the accomplice testimony must show that the defendant was connected with the transaction. We trust this distinction will be understood in the future.

Eor this error in the charge, we agree to a reversal of the case.

PRENDERGAST, P. J., concurs in Judge HARPER’S opinion.


author: PRENDERGAST, P. J.

text:
    PERKINS v. STATE.
    (No. 3287.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    Rehearing Denied Nov. 25, 1914.)
    1. Criminal Law (§ 598) — Continuance-Absence oe Witness — Diligence.
    Where accused was indicted on March 6th and tried on June 4th following, the securing of a subpoena on May 7th for a witness who was stated in the application for a continuance to be temporarily absent from the city, which subpoena was returned unserved on May 28th and no other process issued, does not show sufficient diligence to entitle accused to the continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law •(§ 1093) — Appeal—Bill oe Exceptions.
    A bill of exceptions by one convicted of murder, which shows only that the unserved subpoena for a witness on account of whose absence a continuance had been asked was offered in evidence for the purpose of showing that the defense had endeavored to secure the presence of such witness, and excluded, and that the subpoena would have shown the date on which it was issued, shows no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dee. Dig. § 1093.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Richard Perkins was convicted of murder, and he appeals.
    Affirmed.
    Stanley Thompson, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of murder, and Ms punishment assessed at ten years’ confinement in the penitentiary.

There are but two questions raised necessary to decide. Appellant made a motion for continuance on account of tbe absence of the witness Dan Sasser, whom he alleges is a resident of said Harris county, but at the time he made his application was “temporarily out of the city," and is expected to return before tbe next term of tbis court. The offense is alleged to have been committed February 9, 1914. He was arrested before he was indicted. The indictment was returned March 6, 1914. He had no subpoena issued for said witness until May 7, 1914, which he says was returned by tbe sheriff on May 28, 1914, not executed as to said witness. The trial occurred, and he made his motion to continue on June 4th following, seven days after the process was returned unexecuted. He had no other process issued for the witness, and certainly seven days was ample time to have secured his attendance, even if he was temporarily out of the city, if appellant had used any diligence whatever to have secured him. Appellant used no diligence to procure the attendance of his witness, and the court did not err in overruling his motion, nor in refusing a new trial because thereof. O. O. P., art. 608, subd. 6; Mitchell v. State, 36 Tex. Cr. R. 299-307, 33 S. W. 367, 36 S. W. 456; Buie v. State, 1 Tex. App. 456; Barrett v. State, 18 Tex. App. 67; Walker v. State, 13 Tex. App. 647, 44 Am. Rep. 716, note; Giles v. State, 148 S. W. 321 et seq. and cases there cited.

Appellant, in another bill, after reciting the style and number of the cause, the court, and be it remembered, etc., says:

“That on the trial his counsel offered in evidence the subpeena for the absent witness, Dan Sasser, for the purpose of showing that he had tried to get the witness Sasser into court, to which the state objected, and the court sustained the objection. That said proceeding would have shown that it was issued on May 17, 1914,”

This is, in substance, the full of the bill. It shows no error.

It is unnecessary to recite the evidence. It is clearly sufficient and ample to sustain the verdict of the jury. The court gave a full and complete charge submitting every issue in appellant’s favor in the most- favorable light for him. There was no complaint before the trial to the charge of the court in any particular. There is nothing else raised that is necessary to state or discuss.

The judgment is affirmed.


text:
    McCUEN v. STATE.
    (No. 3296.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    1. Witnesses (§ 277) — Cross-Examination— INTOXICATIN0 LIQUORS.
    In a prosecution for the unlawful sale of intoxicating liquor on Friday night, it was not error to permit the state’s attorney to elicit from defendant, on cross-examination, that when arrested on the next Sunday morning he had an unopened pint of whisky on his person, where he had testified on direct examination that he did not sell the whisky, and that on Saturday night he bought from the state’s witness one pint of whisky.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.]
    2. INTOXICATING Liquors (§ 233) — Prosecu- . tion — Evidence—Admissibility.
    In a prosecution for the unlawful sale of whisky, evidence that when arrested on the second day after the sale defendant had an unopened pint of whisky on his person was admissible as a circumstance to show that he made the sale as charged.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298%; Dec. Dig. § 233.]
    3. Criminad Law (§ 596) — Continuance — DISCRETION.
    Under Code Cr. Proc. 1911, art. 608, subd. 6, providing that an application for a continuance, including the first, shall be addressed to the sound discretion of the court and shall not be a matter of right, the refusal of a first continuance sought to enable accused to procure impeaching testimony was not error.
    ■ [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    Appeal from Ellis County Court; J. C. Lumpkins, Judge.
    Milroy McCuen was convicted of unlawfully selling whisky in prohibition territory, and appeals.
    Affirmed.
    Clyde F. Winn, of Waxahachie, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for making an illegal sale of whisky in prohibition territory under the misdemean- or statute, and his punishment assessed at the lowest prescribed by law.

The state’s witness John McCann testified positively that on Friday night, April 24, 1914, he bought a pint of Dripping Springs whisky from appellant in Waxa-.hachie, Tex., for which he paid him $1. Besides other testimony, appellant testified he did not sell to said witness said whisky. He was arrested for the offense Sunday, April 26, 1914, about 11 o’clock a. m. In his direct testimony he further testified that on Saturday night, April 25, 1914, in Waxa-hachie, he bought from said state’s witness one pint of Dripping Springs whisky. He complains by one of his two bills of exceptions that the court erred in permitting the state’s attorney, in cross-examination of him, to make him testify, which he did over his objections, that at the time he was arrested he had an unopened pint of Dripping Springs whisky on his person. This evidence was admissible as proper cross-examination of him. In addition, it was admissible as a circumstance to show that he made the sale on Friday night to the state’s witness, as testified by him. The state’s theory — and the testimony justified it — was that appellant sold the whisky to the state’s witness on Friday night, and that he had other whisky on his person for that purpose at the time he was arrested; and this testimony was admissible as tending to show the alleged sale. The time was sufficiently near to the time of the alleged sale to clearly make it admissible. Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169; Myers v. State, 52 Tex. Cr. R. 558, 108 S. W. 392; Starbeck v. State, 53 Tex. Cr. R. 195, 109 S. W. 162; Southworth v. State, 52 Tex. Cr. R. 540, 109 S. W. 133; Field v. State, 55 Tex. Cr. R. 527, 117 S. W. 806; Myers v. State, 56 Tex. Cr. R. 224, 118 S. W. 1032; Ellis v. State, 59 Tex. Cr. R. 628, 130 S. W. 170; Hardgraves v. State, 61 Tex. Cr. R. 327, 135 S. W. 132; and many other cases down to this date unnecessary to collate.

The only other complaint is presented by his other bill of exceptions, which was to the overruling of his motion for a continuance on account of the absence of his absent witness, who resided in Waxahachie, Tex. His attorney, in his brief, claims that his motion for a continuance was his first application; that it was in accordance with the statute, and because thereof he had a right to a continuance as a matter of right. In support of his contention he cites six cases decided by the Supreme Court when it had criminal jurisdiction, beginning with a case in the 30 Texas, and cites nine other cases of this court contained in the first few volumes of the Reports, the last in the 5 Texas Criminal Report. At the time these decisions were rendered, the statute required, in effect, that when the application complied with the statute the court had no discretion, but an accused was entitled to a first continuance as a matter of right. Because the statute was to that effect at that time and the decisions cited by appellant and many others so held, the Legislature, for the express purpose of doing away therewith, by the act of 1879 (chapter 84, p. 94), amended the statute, which is now C. C. P. p. 608, by subdivision 6 whereof it is expressly enacted that the truth of the first or any subsequent application, as well afe the merits of the grounds set forth therein, and its sufficiency, should be addressed to the sound discretion of the court, “and shall not be granted as a matter of right”; so that said decisions have no application now, and the statute is expressly the reverse of what he contends. The bill expressly shows that the court overruled the application for a continuance because the claimed evidence of the absent witness “went merely to impeach and1 contradict the evidence of the said state’s witness John McCann.” As we understand, the claimed evidence of the absent witness could be -construed to go no further than as claimed by the court in overruling it, even if it goes to that extent. It has always been held by this court that a continuance should not be granted when the evidence sought was available only to impeach the state’s witness. See cases cited in section 612, White’s Ann. C. C. P., and additional cases collated in 2 Énc. Digest of Crim. Ev. p. 87. Besides, the witness lived in Waxahachie, and sufficient diligence was not shown to procure him. Giles, v. State, 148 S. W. 317, and cases therein cited.

The judgment is affirmed.


text:
    CARTER v. STATE.
    (No. 3295.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.)
    1.Criminal Law (§ 942) — New Trial — Newly Discoveeed Evidence — Materiality.
    On a trial for murder, it was the state’s contention that accused killed deceased because deceased had superseded him in the affections of B., to whom accused had been engaged to be married. Accused testified that they were engaged at the time of the homicide, that he saw deceased and B. in an attitude which led him to believe that deceased was trying to rape B., that he had loaned B. his pistol, and deceased took the pistol and snapped it at him, and pursued him, cursing him, and that, when he saw B. later, she told him that deceased had tried to rape her, and had threatened to kill him (accused), and in corroboration of his testimony that deceased at the time of the killing made a threatening gesture, and sprang towards him, a witness testified that deceased’s knife was lying on the ground open at the place where he fell. B. contradicted all of this testimony. On a motion for a new trial, she swore that her testimony at the trial was false; that she was induced by others to give such testimony ; and that events happened substantially as accused testified. Aside from her testimony, the evidence tended strongly to show that the killing grew out of what accused believed was an attempt by deceased to rape her. M eld, that a new trial should be granted, as the conviction was apparently based on false testimony, and had B. testified differently, or not testified at all, the jury might have reached a different conclusion.
    [Ed. Note. — For other cases, see Criminal Law^Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    2. ÍIomicide (§ 48) — Manslaughter—:Adequate Cause — “Female Relative.”
    A promised wife is not a “female relative,” within the statute relating to adequate causes to reduce a homicide to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 72; Dee. Dig. § 48.

    For other definitions, see Words and Phrases, Second Series, Female Relation.]
    3. Homicide (§ 39) — “Manslaughter”—Adequate Cause.
    Where such a cause or causes arising at the time or in connection with a homicide as will produce a degree of anger, fear, or rage, such as to render the mind of an ordinary person incapable of cool reflection, is disclosed^ and the jury believes that such cause or causes did produce such a state of mind, the offense is only manslaughter, though such cause or causes are not enumerated in the Code as sufficient to reduce an unlawful killing to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ '59-61; Dec. Dig. § 39.

    For other definitions, see Words and Phrases, First and Second Series, Manslaughter.]
    4. Criminal Law (§ 404) — Demonstrative Evidence — Clothing of Deceased.
    Where, on a trial for homicide, accused testified that deceased made a threatening gesture and sprang towards him, while it was the state’s claim that accused shot deceased when deceased’s back was turned towards him, the point of entrance of the shot was an issue in the case, and deceased’s clothing was admissible in evidence to shed light on this issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.] •
    5. Witnesses (§ 240) — Examination—Leading Questions.
    The counsel for the state should never by his questions suggest an answer to a friendly witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.]
    6. Criminal Law (§ 723) — Argument or Counsel — Appeals to Prejudice and Passion.
    The district attorney in his argument should not appeal to passion and prejudice, but should always confine his remarks to the evidence and legitimate deductions therefrom.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1663, 1674, 1676; Dec. Dig. § 723.]
    7. Witnesses (§ 374) — Impeachment — Showing Interest and Bias.
    On a criminal trial, all legitimate testimony to show the interest and bias of a witness for the state should be admitted.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.]
    8. Witnesses (§ 344) — Impeachment—Admissibility of Evidence.
    Evidence that a woman has been raped is not admissible to affect ■ her credibility as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1120, 1125; Dec. Dig. § 344.] .

      Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Bill Carter was convicted of murder and he appeals.
    Reversed.
    S. W. Bishop and J. B. McEntire, both of Gorman, and J. R. Stubblefield, of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at 25 years’ confinement in the state penitentiary.

All the evidence would show: That appellant and deceased were personal friends up to the day that the homicide took place at night. That their first open rupture took place in a pasture on the way from the house of deceased’s father, E. N. Graham (where deceased lived), to the home of Carl Graham, where appellant was at that time making his home. Deceased was walking with one Bertha King, a sister of his brother Carl’s wife. Appellant walked up on them in this pasture, and, as to what appellant saw and did, there is a variance in the testimony, but all the testimony goes to show that deceased there cursed appellant, calling him a s-n of a b-h, and that appellant fled, and was overtaken by deceased and his brother Jim Graham, and the witnesses vary as to what then took place, but it is made apparent that appellant, after they had separated, began to tell that deceased had attempted to rape Bertha King; that deceased and his brothers, Carl and Jim Graham, were aware of the fact, and were also made aware that appellant had gone to the home of the father of Bertha King for the purpose of informing him that deceased had attempted to rape his daughter. It is also made apparent that appellant thought deceased was going to flee the country, and he made efforts to have deceased arrested if he did so.

The state’s case is that deceased had not attempted to rape Bertha.; that the reports appellant was circulating were fabrications, and made from ill will, because hfe thought deceased had superseded him in the affections of the girl, and his acts and conduct on that occasion were brought about, not by reason of the fact that he had seen deceased attempt to rape the girl, but because of his belief that deceased had succeeded in alienating the affections of the girl from him. It is an admitted fact that the girl and appellant had theretofore been engaged. It is further shown that, when appellant was at the home of Mr. King, he secured the shotgun with which he afterwards killed deceased, claiming at that .time he was going to Gorman to get the officers to assist in the arrest of deceased. The state further showed that he did not go to Gorman, but, when he got near the residence of Oarl Graham (where he had been staying, and where Bertha King was also staying), he got out of the buggy and went to the home of Carl Graham and called for him. Carl Graham was not at home, having gone to Mr. King’s to see what appellant had told in regard to the alleged escapade of Clyde (the deceased) and Bertha. When appellant called for Carl, Clyde came to the door, and appellant backed off, and told Clyde he did not want to see him — not to come out there. When informed that Carl was not at home, he asked for Bertha King; she at first refused to go out, but finally did go to the gate in company with her sister Nellie. Appellant asked Nellie to go in the house, as he wanted to talk with Bertha. This she refused to do, and both girls returned to the house. Those in the house tried to get aiopellant to come in, but he declined to do so, claiming that Clyde was armed, and he was afraid to do so. They insisted that Clyde was not armed, and Bertha showed appellant the pistol, and said she would put it away. While this conversation was going on, deceased left the house, and went to near where appellant was standing on the outside of the gate, and the state’s contention is that appellant then shot Clyde at a time when his back was turned to him, and when he was making a demonstration of no kind.

Appellant testified that he and Bertha King were engaged.to be married; that he walked .up on deceased and Bertha in the pasture, and Bertha was on the ground and deceased on top of her; that he thought deceased was trying to rape his promised wife; that at his appearance deceased jumped up, drew a pistol, and snapped it at him. He ran when deceased pursued, cursing him. Later in the evening he saw Bertha, and she then told him that deceased had in fact tried to rape her, and was going to kill him (appellant); that he was also informed that deceased was going to leave the country that night. Having been informed that deceased was going to kill him, appellant says he attempted at several places to borrow a gun, and finally got one at Mr. King’s; that he went there to inform Mr. King of the attempted rape on his daughter, and of his intention to flee the country. That he did make this report to Mr. King is shown by all the testimony. He says he notified the officers of the assault and deceased’s intention to flee, and asked that they arrest deceased. In this he is corroborated. Being unable to get the officers at Gorman by telephone, he engaged a buggy to take him there, and started to Gorman, but as Mr. King had asked him to bring Bertha home, when they got even with Carl Graham’s house, he asked the driver to go on and tell the officers at^ Gorman, he intending to get Bertha and take her to her father’s; that he went to Carl Graham’s house for this purpose, not knowing that Clyde Graham (the deceased) was there. It may be here said that Bertha King and the wife of Carl Graham were sisters. He went up to Carl Graham’s and called for him. Clyde responded when appellant told him he did not want to see Mm. Learning that Carl was not at home, he asked to see Bertha, and was asked to come in the house, hut he declined, fearing trouble with Clyde. Bertha declined to talk to him privately, and they kept insisting on him to come in the house. When he did not do so, deceased left the gallery and approached the gate; appellant being outside. Appellant says, when deceased got near him, deceased made a threatening gesture, and sprang towards him, when he fired, shooting twice. Deceased fell, and a witness for appellant says, when he went to the place where deceased fell, deceased’s knife was lying there on the ground open. The state denied there was a knife picked up off the ground.

This is a sufficient statement to render intelligible the rulings of the court. After Bertha King had testified on the trial as hereinbefore stated, on motion for a new trial she attaches an affidavit stating that her testimony was false in a number of particulars, and she was induced to give the false testimony by Carl Graham, Mark Mahan, and others.

Appellant testified on the trial that on that day he had loaned his pistol to Bertha King, and she had carried it with her when she left Carl Graham’s house. On the trial of the case she testified this was false, and said she did not at this time, nor at any other time, have appellant’s pistol. On the motion for new trial she says her testimony was false, and that she did have appellant’s pistol, and he told the truth about the matter. Appellant testified that, when he came up on Bertha King and deceased in the pasture, deceased had her down and was attempting to ravish her, or so it appeared to him. On the trial Bertha King testified that this testimony was untrue, and that deceased had not tried to ravish her. On the motion for new trial she swears that her testimony on the trial was false, and that appellant’s testimony on the trial was true; that deceased had in fact thrown her on the ground and was attempting to ravish her, when appellant appeared on the scene. On the trial appellant swore that, when he approached the couple, deceased jumped up, pulled the pistol he had loaned Bertha King, and snapped it at him when he fled. Bertha swore this was untrue dn the trial, and said she did not have appellant’s pistol; that deceased pulled no pistol, and did not attempt to shoot appellant. She now swears that she did have appellant’s pistol, and deceased took it away from her and did throw her on the ground, and that, when appellant approached, deceased did jump up, draw the pistol, and attempt to shoot appellant, and continued to try to do so, as appellant fled. On the trial appellant testified that he saw Bertha that evening late, and Bertha told him that deceased was trying to rape her, and if she could she would kill him. On the trial Bertha denied this conversation and said that she at this nor any other time had never told appellant that deceased had attempted to rape her. She now says that her testimony was false; that on the trial appellant told the truth, and she did tell appellant exactly what he testified she told him. A witness for appellant testified to deceased’s knife being picked up, open, where he fell. On the trial Bertha testified that no knife was picked up out there. Now she swears that not only was the knife out there, as testified by appellant’s witness, but that Carl Graham had them stand in position where he could not be seen, when he went and got the knife and concealed it.

Many other contradictions appear in her testimony given on the trial, and her testimony on the motion for new trial, but the above excerpts show the material points, and that she was used on the trial by the state to show that appellant’s entire defense, as testified to by him, was a fabrication .pure and simple; that deceased did not attempt to rape her; that deceased did not assault appellant with a pistol; that she had not told appellant that deceased had tried to rape her; and that deceased had no knife when appellant shot him. She also, on the trial, denied that she was engaged to be married to appellant, as appellant testified. She now admits that appellant told the truth in this respect also. She gives, as a reason for giving the false testimony on the trial, that Carl Graham and Mark Mahan told her, if she did not testify as they desired, she would be implicated in the killing of Clyde; that her character would be ruined, etc., and for these reasons she was induced by them to give this false testimony on the trial:

This is denied by Carl Graham and Mark Mahan, but she produced letters from Mark Mahan and Dink Worrell corroborating her to the extent at least that they were promising and offering inducements to her if she would “stick to her testimony” given on the trial, and, under such circumstances, we do not think we should permit a conviction to stand obtained on such testimony. Had she testified on the trial as she now does, and as appellant testified on the trial, that they were engaged to be married; that appellant.came up while deceased was attempting to rape her; that deceased jumped up, assaulted appellant, and attempted to kill him, and said he was going to kill him; that she told appellant of these matters; that appellant refused to come in the house, saying he was afraid of Clyde, and asked Clyde not to come out where he was; that he did not want to talk to him, and was afraid of trouble with him; that in spite of this Clyde went out there, and that an open knife was found where he fell —no jury would likely have been authorized to find that appellant at least did not believe that deceased had that afternoon attempted to rape his promised wife. In the light of this testimony, the whole record teems with evidence that appellant did so believe, and, while being a promised wife, does not make the girl a female relative, within the provisions of the statute, the court did not err in so refusing to instruct the jury. Our Code declares that certain things shall be deemed cause sufficient to reduce an unlawful killing to manslaughter, and that certain other things shall not be deemed sufficient. When none of these things mentioned in the Code are disclosed by the evidence, yet the testimony discloses a cause or causes, arising at the time, or in connection with the killing, as will produce a degree of anger, fear, or rage, such as to render the mind of an ordinary person incapable of cool reflection, and the jury believes that such cause or causes did produce such a state of mind, then the offense would only be manslaughter.

If Hiss King had testified on the trial as she testifies on the motion for a new trial, and-the court had aptly presented the law, that if appellant believed that deceased had attempted to rape Miss King, and they further believed that appellant and Miss King were engaged to marry one another, and that that afternoon deceased had attempted to shoot and kill appellant, and believed that deceased approached appellant that night, and, from any and all of these acts, appellant’s mind was rendered incapable of cool reflection by anger or fear (even though deceased did not at that time attempt to slay appellant), would the jury have found appellant guilty of any graver offense than manslaughter? We cannot say they would. On the other hand, if Miss King had not been used as a witness by the state, and appellant’s testimony as to the attempt to rape, to the assault, and snapping a pistol at him, etc., had gone to the jury uncontradicted by Miss King, would the jury have found him guilty of a graver offense than manslaughter? This question we cannot answer in the affirmative to our satisfaction from this record. She was used on the trial to prove that appellant’s testimony as to the rape, assault on him with a pistol, etc., was untrue, and render as probable the true motive was the jealousy of appellant; that he thought deceased had superseded him in the affections of the girl. Her testimony on the trial was such as to cause the jury to believe this was the motivé for the killing, and but for her testimony there would have been but slight, if any, testimony to support such theory, as the testimony, other than hers on the trial, went strongly to show that the killing grew out of what appellant believed was an attempt to rape his promised wife, and if the jury had so found (and might have dóne so but for her testimony), under proper instructions, they probably would have convicted him of no higher grade of offense than manslaughter.

Again appellant testified to an assault on him with a pistol by deceased that evening, and that this circumstance, together with the acts of appellant at the time of the killing, led him to believe his life was in danger. Had the jury believed the assault was made with a pistol in the afternoon, they could better have judged appellant’s viewpoint at the time of the fatal shooting. The state used Bertha King, the only other immediate eyewitness, to disprove the use of a pistol in the afternoon, and that deceased snapped it at appellant. She now says her testimony in this particular was false, and says deceased did attempt to shoot appellant, as testified to by him on the trial. Without giving any weight to her testimony, we can readily say that, according to her sworn statement, the state used false testimony to discredit the self-defense plea of appellant, and, but for this false testimony, we cannot say from this record what would have been the finding of the jury on this issue.

In making these comments, we do not wish to be understood as reflecting on the court, the district attorney, or any officer of the court, or lead any one to think, this court has the least idea that they or either of them had any part or parcel in getting this girl to swear as she did on the trial, but it is made manifest that this defendant has been given virtual life imprisonment upon testimony that the witnesses themselves say is false and perjured, and no reason is shown why they now so testify, but ample reason is shown in the record why they were induced to testify on the trial as they did by Mark Mahan and Carl Graham.

The court did not err in admitting the clothing .of the dead man in evidence. The point of entrance of the shot was an issue in the ease, and the clothing shed material light on this issue.

Those bills complaining of leading questions on the trial need not be discussed. State’s counsel should never by his questions suggest an answer to a friendly witness, and we hope this will not occur on another trial. The same may be said about the bills complaining of the remarks of the district attorney in argument. The bills do not present reversible error, but counsel should not appeal to passion and prejudice, and should always confine their remarks to the evidence and legitimate deduction therefrom.

All legitimate testimony tending to show the interest and bias of the witness Mark Mahan should be admitted on another trial, if the state should again use him as a witness.

Testimony that a certain person had been sent to the penitentiary upon a plea of guilty to having raped the state’s witness Iva Lee was properly excluded by the trial judge. Rape is a sin against the woman injured, and the fact that a woman has' been raped is not admissible as affecting her credit as a witness.

The other matters complained of will'not likely occur on another trial, but, on account of the matters hereinbefore discussed, the judgment is reversed, and cause remanded.