text:
    ODOM v. STATE.
    (No. 4818.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.
    Rehearing Denied Feb. 20, 1918.)
    1. Criminal Law <@=1090(1) — Appeal—Review — Bill of Exceptions.
    In the absence of a bill of exceptions, no alleged errors in the admission or rejection of evidence, the charge, or the argument of the counsel can be reviewed.
    2. Criminal Law <@=3804(1) — Trial — Instructions — Misdemeanors.
    In the absence of request, a written charge is unnecessary in a prosecution for a misdemeanor.
    3. Criminal Law <@=1038(3) — Appeai>-Re-view — Requests.
    Omissions in the charge in a misdemeanor case cannot be reviewed in the absence of the refusal of a request to correct them.
    4. Criminal Law <@=1088(18) — Exceptions— Bill of — Reservation to Overruling Motion for New Trial.
    That a bill of exceptions is reserved to the overruling of a motion for a now trial and embodies the motion does not authorize the court to consider matters thereunder, except in cases where proof is heard as to allegations of fact, and such evidence is embodied in the bill of exceptions with the motion for new trial.
    5. Criminal Law <@=>1090 (11) — Exceptions— Necessity.
    Matters relating to the manner of a trial, including those pertaining to the selection of the jury or the argument of counsel, are not reviewable on appeal, unless verified by bill of exceptions, though defendant was without counsel in the court below.
    6. Criminal Law <@=>1090(16) — Bill of Exceptions — Necessity.
    Matters of fact set up in a motion for new trial which are not verified by bill of exceptions or statement of evidence filed during the term cannot be reviewed; this being the uniform rule as to assignments concerning the denial of a motion of a new trial requested on tho ground of newly discovered evidence.
    7. Criminal Law <@=>1124(2) — New Trial-Denial.
    Where new trial is sought upon the ground of newly discovered evidence, the overruling of the motion cannot be reviewed in the absence of affidavits of the purported new witnesses or a satisfactory explanation of the failure to produce them.
    8. Criminal Law <@=>946(1) — Aggravated Assault — New Trial — Denial.
    As the probable truth of newly discovered evidence is an essential requisite to the granting of a new trial, a motion for new trial after conviction for aggravated assault cannot be granted on the ground of alleged newly discovered evidence that before defendant struck the prosecuting witness the latter put his hand behind him in tho region of his hip pocket and made some remark to defendant, where defendant himself had testified that he made up his mind to whip the prosecuting witness because the latter had assisted in the prosecution against his father, and that he followed him from the courthouse and walked up behind him, and without a word struck him over the head with a beer bottle.
    9. Assault and Battery <@=>92 — Aggravated Assault — Evidence—Sueeicienoy.
    In a prosecution for aggravated assault, evidence held sufficient to support a conviction.
    10. Assault and Battery <@=>100 — Aggravated Assault — Punishment.
    Where defendant without provocation, pursuant to a previously conceived plan, came up behind the prosecuting witness and struck him down with a beer bottle, a verdict assessing punishment at $500 fine and imprisonment in the county jail for 12 months is not excessive, so as to be subject to review on appeal.
    Appeal from Grayson County Court; Dayton B. Steed, judge.
    Red Odom was convicted of the offense of aggravated assault, and he appeals.
    Affirmed.
    Jas. D. Buster, of Sherman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted for the offense of aggravated assault, and his punishment fixed at a fine of $500 and confinement in the county jail for 12 months.

There are no bills of exception in the record except a bill embodying appellant’s motion for new trial. This motion is verified by the affidavit of appellant, but not otherwise supported by evidence so far as' the record shows. Reference is made to certain affidavits which, if introduced, are not brought forward in the record.

Appellant, it appears, at the time of his trial was not represented by attorney. No exceptions were taken to the procedure so far as it is disclosed. A motion for new trial was prepared by an attorney evidently obtained subsequent to the conviction. It challenges the sufficiency of the evidence and raises various questions of procedure relating to the introduction of evidence, alleged errors in the charge, and improper argument of the prosecuting attorney, none of which matters except the sufficiency of the evidence can be a subject of review in the absence of bills of exception. It is also based upon alleged newly discovered evidence and the alleged fact that the jury was selected by the prosecuting attorney without challenges by appellant, and that it was a prejudiced jury.

The injured party was Clayton Holland, a young man about 20 years of age. The appellant testified as follows:

“This boy Holland had' turned my father in for selling whisky, and I'made up my mind to whip him for doing it. I followed him out of the courthouse and down to the southwest corner of the square, and there hit him over the head with a beer bottle. I did not mean to kill him. The'bottle was not wrapped in a newspaper. I never had a conversation with him in my life. They were trying my father, and Holland had not testified. I went into the sheriff’s office and saw him in there and got me a pint beer bottle and waited in the courthouse until he came out. I followed him out of the south door, and when he was crossing Lamar street, I walked up behind him and hit him over the head with the bottle. The blow broke the bottle and the glass scattered there on the street. Tes; I guess I did jump on him and kick him with my feet. No; I was not trying to kill him. Yes; I did knock him unconscious. I never said a word to him as I came up behind him; he did not turn around or say anything to me. Holland is not so old apparently as I am, and is not so tall. I am a grown man. I did not slip up behind him; I just walked up and hit him.”

The injured party, Holland, testified that at noon he walked out of the courthouse to the southwest corner of the square, then started across the street, and had gotten almost to the other side, and that was the last he remembered until he woke up at a doctor’s office about 1:30 p. m. with his face and head skinned and bruised; that he did not know who or what hit him; had never had trouble with appellant or a conversation with him. After he waked up he was very sick, and a place behind his ear was sore for several weeks, leaving a sear about one inch to one and a half inches long.

Several eyewitnesses testified; one of them as follows:

“I noticed a young man crossing the street. When he was just past the middle of Lamar street I saw another man taller than the first one walking fast or trotting, come from the southwest corner of the square up behind the first young man I saw, and when he got behind him I saw him raise something above his head, which I took to be a newspaper rolled up. I stopped and watched him hit the other follow; thought the other fellow would jump when he struck him; thought all the time he was just slipping up behind a friend as fellows do and was going to scare him. But when he brought the object down on the back of the other man’s head the other fellow just wilted and sank down on the pavement, and I saw glass flying. When the assaulted party dropped to the pavement, the man who struck him jumped on him with both feet and kicked him and stomped him in the face and head and over the body. The man who kicked and struck, appellant was Red Odom, defendant. There was no conversation between them. The man who was struck never had time to even turn around toward the man who hit him.”

Three other witnesses described the assault in substantially the same manner. Holland was picked up unconscious and taken to the doctor’s office. The physician testified that his face was covered with abrasions and deep bruises, severe bruises on the head, on the ear, and the scalp cut; he took no stiches because he thought that there was a fracture or concussion of the brain; he was unconscious and remained so for about an hour after reaching the witness’ office; he found there was no fracture, but wounds such as would be made by a blow from a heavy instrument; that a blow from behind with a beer bottle in the manner described was calculated to and usually produced a fracture, concussion of the brain, and frequently death; that a beer bottle in his opinion is a deadly weapon used in the manner described; that the injury was a serious one likely to cause serious trouble in the future.

The indictment charged an aggravated assault with a deadly weapon, also causing serious bodily injury, also with premeditated designs, and by the use of means calculated to inflict bodily injury. The court gave a written charge submitting the issues, the presumption of innocence, and advised the jury that they were the exclusive judges of the credibility of the witnesses.

The law does not require a written charge in a misdemeanor case in the absence of request. Wacehter v. State, 34 Tex. Cr. R. 297, 30 S. W. 444, 800; Lutrall v. State, 64 Tex. Cr. R. 411, 142 S. W. 588; Stubbs v. State, 71 Tex. Cr. R. 390, 160 S. W. 87; Robey v. State, 73 Tex. Cr. R. 9, 163 S. W. 713; Goode v. State, 75 Tex. Cr. R. 550, 171 S. W. 714.

This court is not authorized to consider the complaint of an appellant in a misdemeanor case of omissions in a charge in the absence of refusal of request to correct them. Kosmoroski v. State, 59 Tex. Cr. R. 296, 127 S. W. 1056; Elliott v. State, 59 Tex. Cr. R. 1, 127 S. W. 547; Webb v. State, 63 Tex. Cr. R. 207, 140 S. W. 95; Drummond v. State, 71 Tex. Cr. R. 260, 158 S. W. 549; Scott v. State, 76 Tex. Cr. R. 410, 175 S. W. 1054; Giles v. State, 66 Tex. Cr. R. 638, 148 S. W. 317.

The fact that a bill of exception is reserved to the overruling of a motion for a new trial, and embodies the motion, adds nothing to the weight of the motion nor to the authority of the court to consider matters thereunder, except in cases where proof is heard as to allegations of fact, and this evidence is embodied in the bill of exception with the motion for new trial. Stubbs v. State, 71 Tex. Cr. R. 399, 160 S. W. 87; Goodwin v. State, 63 Tex. Cr. R. 142, 138 S. W. 399; Basquez v. State, 56 Tex. Cr. R. 330, 119 S. W. 861; 2 Vernon Crim. Stats, p. 526, note 65, and cases cited; also same volume, p. 536, note 19, and cases cited.

Matters relating to the manner of trial when not verified by bill of exception are not reviewable upon appeal, even though the appellant was without counsel in the court below. Compton v. State, 67 Tex. Cr. R. 15, 148 S. W. 580; Vernon’s O. C. P. p. 532, note 10, and cases cited. The same is true with reference to arguments. Vernon’s C. C. P. p. 533, note 12 and cases cited; Anderson v. State, 39 Tex. Cr. R. 34, 44 S. W. 824; Greer v. State, 62 Tex. Cr. R. 81, 136 S. W. 451; Henry v. State, 66 Tex. Cr. R. 268, 146 S. W. 879. This applies to matters pertaining to the selection of the jury. Miller v. State, 91 S. W. 583; Johnson v. State, 60 Tex. Cr. R. 305, 131 S. W. 1085; Ellington v. State, 63 Tex. Cr. R. 427, 140 S. W. 1101; and other cases cited in Vernon’s C. C. P. p. 530, note 7.

Matters of fact set up in motion for a new trial, which matters of fact are not verified by bill of exceptions or statement of evidence filed during the term, cannot become the subject of review. Marshall v. State, 5 Tex. App. 273; Cooper v. State, 66 Tex. Cr. R. 441, 147 S. W. 273; Howard v. State, 65 Tex. Cr. R. 25, 143 S. W. 178; Sharp v. State, 71 Tex. Cr. R. 633, 160 S. W. 369; Terry v. State, 73 Tex. Cr. R. 79, 164 S. W. 2; Vernon’s C. C. P. p. 536, note 20, and cases cited. This principle has been uniformly applied to assignments concerning newly discovered evidence. Vernon’s C. C. P. p. 536, note 19. And the uniform rule applied in this court is that, where a new trial is sought upon the ground of alleged newly discovered evidence, the action of the trial court in overruling it cannot be reviewed in the absence of the affidavit of the purported new witnesses, or a satisfactory explanation of the failure to produce them. Stallworth v. State, 66 Tex. Cr. R. 428, 147 S. W. 238; Vernon’s C. C. P. p. 806, note 13; also Vernon’s C. C. P. art. 837, subd. 6, and cases cited, pages 778-785. The probable truth of the newly discovered evidence is also an essential requisite. Gass v. State, 56 S. W. 76; C. C. P. p. 786, note 11; Alexander v. State, 199 S. W. 295, and cases cited.

The proposed newly discovered evidence was that of two witnesses. By one it was alleged that proof could be made that at the time of the difficulty and immediately preceding tlie blow the prosecuting witness Holland put his hand behind him in the region of his hip pocket and made some remark to appellant while facing the appellant. By another that appellant did not slip up behind Holland, or run up behind him; that Holland looked and saw defendant and had some words with him before the blow was struck. As above stated, these allegations were not supported by the affidavit of the absent witnesses, nor was absence of such affidavits accounted for. If such had been the case, however, in view of the facts developed upon the trial, including the appellant’s testimony, the trial court’s conclusion that it is not probably true would not have been unjustified. Appellant testified that he made up his mind to whip the injured party, followed him to the place where the other witnesses testified he was struck, and hit him over the head with a beer bottle; that he never had any conversation with him; that he walked up behind him and hit him on the head, and never said a word to him. as he came up behind him, and the injured parity did not turn around or say anything to appellant.

The evidence, we think, is sufficient to support the verdict, and the punishment assessed is not such as to authorize this court to disturb the verdict approved by the court below. It is not higher than has frequently been approved in cases not more aggravated. Jobe v. State, 76 Tex. Cr. R. 216, 173 S. W. 1025; Inglen v. State, 36 Tex. Cr. R. 472, 37 S. W. 861; Cuellar v. State, 69 Tex. Cr. R. 155, 154 S. W. 228.

The judgment of the lower court is affirmed.
      <@=For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes 200 S.W.-53

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


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    WALLACE v. STATE.
    (No. 4649.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Weapons <§=»6 — Unlawful Carrying of Pistol.
    Where H. had borrowed a pistol from another, and was taking it home, walking with defendant, and, as they crossed the railroad track, H. handed defendant the pistol to hold for him whil^ he went into a social gathering to see his wife, and defendant started for a fence a few feet away, and H., seeing a couple of officers approaching defendant, returned, and he and the officers walked up to defendant, and H. took the pistol back, the officers not having seen the pistol handed by H. to defendant, defendant was not guilty of unlawfully carrying the pistol.
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    George Wallace was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed, and cause remanded.
    Briggs & Florence, of Gilmer, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Several bills of exception were reserved to the rulings of the court during the trial. Under the view we take of the evidence, it is deemed unnecessary to discuss these various questions.

The evidence discloses that appellant and another party named Hardiman were going along the street, and as they crossed the railroad track Hardiman handed to appellant a pistol to hold for him while he went into a nearby social gathering to see and talk with his wife. When Hardiman started in the direction of the house, appellant' started to a fence a few feet away. A couple of officers came, and Hardiman, seeing them approaching defendant, returned without going to the house. He had only gotten a short distance from appellant. He and the officers walked up to where appellant was about the same time, and Hardiman took the pistol from appellant. The officers did not see the pistol handed by Hardiman to appellant; for they were 40 or 50 feet away, and it was at night. The evidence further shows, and without contradiction, that Hardiman had borrowed the pistol from another party, and was carrying it home. The party from whom he borrowed the pistol and Hardiman testified to this state of case. We are of opinion that this does not show an unlawful carrying of the pistol. This was uncontra-dicted. The authorities are numerous, but it is deemed unnecessary to collate them.

‘ The judgment will be reversed, and the cause remanded.


author: MORROW, J.

text:
    MARSHALL v. STATE.
    (No. 4867.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Cbiminal Law <@=3603(2) — Continuance-Absence of Witnesses — Materiality of Testimony.
    In a prosecution for robbery, defendant’s application for continuance to secure the testimony of two witnesses was properly denied for failure to show materiality of their testimony, which wás that the injured party had exhibited about 80 cents before the robbery, and had said that he had no more, and that he was trying to borrow money from some unknown person during the evening he was with defendant.
    2. Criminal Law <@=3598(6) — Continuance-Absence of Witnesses — Failure to Show Diligence.
    The discretion of the trial judge in overruling defendant’s application for continuance on account of the absence of witnesses was not abused where the trial took place October 1st, and subpoenas for the absent witnesses were not issued until the 29th of September, no reason being shown in the application for failure to issue them at an earlier date_, and no allegation being made as to what, if any, effort was made to secure their attendance during progress of trial.
    3. Criminal Law <@=3603(11) — Continuance —Absence of Witness — Showing What Was Done with Process.
    An application for a continuance must show what was done with the process for the absent witness, whether it was served, and when it was returned.

      4. Criminal Law <®=»1091(3)—Appeal—Rec-ord— Prejudicial Error.
    If a witness was incompetent as having been in the penitentiary, failure of defendant’s bill of exceptions to show that the witness gave material testimony against defendant leaves the record in a condition rendering it impossible for the Court of Criminal Appeals to determine that the supposed error was harmful.
    5. Witnesses <S=79(1)—Disqualification—
    Conviction oe Crime—Waiver oe Objection.
    Whore the right is asserted in a timely way, the party offering a witness, claimed to be disqualified as having been in the penitentiary, may demand that his disqualification be proved by the record of the judgment of conviction, but the right is waived by failing to assert it at the proper time.
    Appeal from Criminal District Court; Dallas County; C. A. Pippen, Judge.
    Carl Marshall was convicted of robbery, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an appeal from a judgment condemning appellant to five years’ confinement in the state penitentiary for the offense of robbery.

The evidence, while conflicting, is sufficient to support the verdict. The injured party, 'Lambert, appellant, and a witness named Turner had been drinking together on the night in question in the city of Dallas. Lambert and Turner testified that appellant knocked or pushed Lambert down and took several dollars in money off from his person. Another witness passing in a street car saw the occurrence, but did not know the parties. Appellant admitted that he was with the parties but denied the robbery.

Pie made application for a continuance to secure the testimony of two witnesses, both of whom, he alleged, resided in Dallas county. By both of them he sought to prove circumstantially facts which would weaken the state’s testimony. Some of the state’s witnesses testified that the injured party exhibited some money during the time he and appellant were together in the saloon, and it was shown that appellant at the time of his arrest had in his possession $3 or $4 in silver. One of the absent witnesses would have testified that the injured party had exhibited about SO cents during the evening, and had said that he had no more, and the same witness would testify also that appellant exhibited some money, $4 or $5 in silver, which occurred a little over an hour before the alleged robbery. The other witness it was alleged would testify that the injured party was trying to borrow money from some unknown person during the evening he was with appellant, and that appellant had some $2 or $2.50 in silver.

The application is justly criticized in the state’s brief for failure to show materiality of this testimony. This is an element of an application which has often been held essential. Bowman v. State, 40 Tex. 11, and other cases cited by Mr. Branch in his Ann. P. C. p. 184, § 312, subd. 3.

The state also insists that the discretion of the trial judge in overruling the application was not abused in view of the absence of diligence to procure the witnesses, which the law requires. Each of the witnesses were alleged to have resided in Dallas county. What distance from the county seat is not shown. Subpoenas are alleged to have been issued for each of them, and for one of them it is alleged a subpoena was placed in the hands of the sheriff of Dallas county. No allegation is made with reference to the service of the subpoenas, nor information as to why they were not served, if in fact, they were not. The trial took place on October 1, 1917. The subpoenas were issued on the 29th day of September. No reason is shown in the application for failure to issue them at an earlier date, nor is there allegation as to what, if any, efforts were made to secure their attendance during the progress of the trial after their absence at the calling of the case was discovered. Under the circumstances, the trial court was warranted in concluding that there was an absence of sufficient diligence shown.

It is a uniform rule that an application for a continuance must show what was done with the process, whether it was served and when it was returned. Mitchell v. State, 36 Tex. cr. R. 299, 33 S. W. 367, 36 S. W. 456; Branch’s Ann. P. C. p. 187, § 315, and cases cited. Examining the application in connection with the evidence adduced upon the trial, it cannot be said that the absent testimony was such as would have shown the action of the trial court erroneous. Branch’s Ann. P. C. p. 183, § 306, and cases cited.

A bill of exceptions discloses that the state’s witness Turner was asked by appellant’s attorney, as a preliminary to an objection to his testimony, if he had not been to the penitentiary and been pardoned, to which he gave an affirmative answer, whereupon appellant objected to the witness giving testimony upon the ground that he was disqualified. The bill of exceptions fails to show that the witness did give any testimony. Even if the witness was incompetent, failure of the bill to show that he gave material testimony against appellant leaves the record in condition which renders it impossible for this court to determine that the supposed error was harmful. This is held in Hunger v. State, 57 Tex. Cr. R. 384, 122 S. W. 874; Campbell v. State, 63 Tex. Cr. R. 595, 141 S. W. 232, Ann. Cas. 1913D, 858; Flores v. State, 72 Tex. Cr. R. 233, 162 S. W. 883; 2 Vernon’s Crim. Stats, art. 744, note 21, p. 537, and cases cited. The trial court, in qualifying the bill, states in effect that he overruled the objection because the appellant had, by proving that the witness had been pardoned, established his competency and waived the production of the primary evidence of his pardon.

Where the right is asserted in a timely way, the party offering the witness may demand that his disqualification must be proved by the record of the judgment of conviction, but that this right is waived by failing to assert it at the proper time. White v. State, 33 Tex. Cr. R. 177, 26 S. W. 72; Moore v. State, 39 Tex. Cr. R. 266, 45 S. W. 809. This principle appears to have been applied with reference to the proof of pardon in the case of Perry v. State, 79 Tex. cr. R. 644, 155 S. W. 264. In that case, however, the question arose with reference to using the disqualification and restoration of competency with reference to impeaching the witness. There is also some discussion of the subject in Batson v. State, 36 Tex. Cr. R. 616, 38 S. W. 48. The view seems reasonable that, if a party undertaking to disqualify a witness relies upon parol testimony to show conviction of crime, and in connection with the proof thus made he, by the same character of proof and at the same time, shows that witness’ competency has been restored by a pardon, he has failed to establish the disqualification of the witness, and by his own voluntary proof by parol that the witness has been pardoned waives his right to demand that the opposite party produce the pardon as a predicate for the witness’ testimony on the facts of the case. Whether this be the correct view or not, there is an absence of error shown by the bill in the failure therein to show'that an alleged disqualified witness did give testimony adverse to the appellant.

Finding no reversible error in the record the judgment of the lower court is affirmed.
      <@=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (&»For other oases see same tooic and KBY-NXJMBBR in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    POLLARD v. STATE.
    (No. 4866.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Homicide ®=»244(1) — Self-Defense — Question fob Juby.
    Evidence, in a homicide case in which the sole defense was self-defense, held sufficient to support a conviction, depending on the credit given witnesses.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    Bulin Pollard was convicted of murder, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder and assessed the lowest punishment.

There are no bills of exception and no complaint of the court’s charge. Appellant’s sole defense was self-defense.

The testimony by the state was sufficient to show, and for the jury to believe, that deceased went in a buggy with Mr. Basham to a store at Froza to get some articles for a sick person. Deceased merely went along to accompany his friend. 'They drove up in front of the store. Mr. Basham got out and went in to get the articles. Deceased, Clyde Tribbell, remained seated in the buggy. Shortly before they reached Froza, they met appellant. When appellant rode up to the store, he got down, hitched his horse, and walked upon the gallery of the store. Deceased was sitting in the buggy right at the gallery. Mr. Basham testified that:

Appellant said to deceased, “Hello, boy.” Deceased replied, "Howdy, Bulin.” “The next I heard was Bulin telling him that he had heard a damn lie, and then he asked the deceased if he wanted to get out and shoot it out then, or words to this effect. * * * Clyde told him he did not have anything to shoot with. They talked on for some time, but I could not understand much of what they were saying. I did not see Clyde strike the defendant. The next thing I noticed was Clyde got out of the buggy and disappeared,”

This witness did not see anything else that happened, but “heard a racket out there— sounded like somebody beating on something. Then I heard a shot,” then a second shot, fired by Bulin.

Mr. Frank Tribbell, father of deceased, testified to the dying declarations of the deceased. His testimony was as follows:

“He told me he was sitting near the store gallery in the buggy, and Bulin Pollard walked back to him and told him he understood that he (Clyde) was going to waylay and kill him. Clyde said he told him he had never made any such remark; had never said anything of the kind, and was not caring anything about it, and Bulin then called him a crazy son of a bitch and threatened to whip him before the Froza people knew it. Clyde said he jerked up the buggy whip and hit Bulin, and the whip broke. Then he stooped over to pick up a piece of plank, when Bulin fired the first shot. That shot went through his hat. (I have t-he hat.) Clyde asked Bulin not to shoot, that he did not have anything. Bulin told him to drop the plank, and, when he dropped the plank and raised up, Bulin shot him in the neck.”

Appellant’s testimony was as follows:

“Well, when I rode up to the store, I got down off my horse. I saw Clyde Tribbell sitting there in the buggy. I faced him and spoke to him. I said, ‘Good evening,’ and he said, ‘Don’t speak to me.’ I walked up on the gallery then, and he followed me with the buggy whip. He hit me about three times and broke the buggy whip. Then he jumped off the gallery and got a piece of plank and came back at me, and, when he came at me again, I told him once to stop, and he did not do it, and I shot him. * * * When Clyde’ was striking me with this whip, I threw up my arm and tried to protect myself, and backed off. He got this piece of plank and came back at me before I ever drew my pistol and shot. I suppose this plank was about 4 inches wide by 3% or 4 feet long, and I do not know how thick it was.”

Each side introduced more or less evidence tending to support their respective testimony as to the facts.

The credibility of the witnesses and the weight to be given to their testimony was for the jury. The evidence was sufficient to sustain the verdict.

The judgment is affirmed.
      iteoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BARTLETT v. STATE.
    (No. 4807.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.
    Rehearing Denied Feb. 13, 1918.)
    1. Criminal Law <@=>1091(7) — Appeal—Bill of Exceptions — Examination op Jurors.
    Bill of exceptions to refusal to allow certain questions to a juror on his voir dire examination is inoperative; it not showing he served.
    2. Criminal Law <@=>1091(7) — Appeai>-Bill op Exceptions — Examination op Jurors.
    Bill of exceptions to exclusion of question to veniremen not showing it would have elicited an answer disqualifying them, is insufficient.
    3. Jury <@=ol05(2) — Challenge for Cause-Prejudice.
    Prejudice against the offense with which defendant is charged is not bias or prejudice against him, by Vernon’s Code Cr. Proc. 1916, art. 692, subd. 12, made ground of challenge for cause.
    4. Jury <@=>103(3) — Competency— Opinion— Discretion of Court.
    Under Vernon’s Code Cr. Proc. 1916, art. 692, subd. 13, if a juror declares on His voir dire that he has an opinion which will not affect his verdict, the court has largo judicial discretion to declare him competent.
    5. Criminal Law <@=>1087(2) — Appeal—Bill of Exceptions — Showing Piling.
    A bill of exception in the record cannot be considered; there being a failure to show its filing.
    Appeal from Baylor County Court; Nat G. Mitchell, Judge.
    Comer Bartlett was convicted, and appeals.
    Affirmed.
    J. S. Kendall, of Seymour, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the theft of two turkeys. The state relied upon the testimony of an accomplice whose evidence was sufficiently corroborated. Appellant denied the theft and introduced evidence tending to establish an alibi. The issues were submitted to the jury in a charge which is not complained of.

Bill of exception No. 1 complains of the refusal of the court to permit appellant, upon the examination of the juror Parker, on his voir dire, to ask the following question:

“If in the trial of this case it should develop that the state relies for conviction upon the testimony of an accomplice, would you convict the defendant solely upon the testimony of the accomplice?”

In allowing the bill the court qualified it with the statement that each juror, responding to the question by the court, stated that he would decide the case according to the law as given in the charge by the court in regard to the testimony of an accomplice, as well as to all other testimony. It is not disclosed by the bill that Parker was on the jury that tried the case. This renders the bill inoperative to show error even if the court was in error in refusing to permit the inquiry, and this, we think, the bill as qualified does not show. Kramer v. State, 34 Tex. Cr. R. 84, 29 S. W. 157; Segars v. State, 35 Tex. Cr. R. 45, 31 S. W. 370; Jones v. State, 37 Tex. Cr. R. 433, 35 S. W. 975; Jordan v. State, 37 Tex. Cr. R. 224, 38 S. W. 780, 39 S. W. 111; Stevens v. State, 68 Tex. Cr. R. 282, 150 S. W. 944; Poulter v. State, 70 Tex. Cr. R. 197, 157 S. W. 166; Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 350; Barnes v. State, 74 Tex. Cr. R. 501, 168 S. W. 858.

Bill No. 3 reiterates the subject-matter of bill No. 1, supra, and states that counsel proposed, and was refused permission, to ask each of the jurors the same question, and that on motion for new trial this action was complained of, and, in connection therewith, after exhausting his peremptory challenges he was “compelled to accept the juror Francis,” who was objectionable to the defendant for the reason that upon his voir dire he had stated that the filing of a complaint created in his mind an evidence of guilt. Qualifying this bill, the court says that each of the jurors on their voir dire stated that they would decide the ease according to the law as given in the court’s charge in regard to the testimony of the accomplice, as well as to all other matters of evidence; and that the juror Francis stated that an indictment for chicken theft would prejudice him to some extent against a person so charged, but that if selected as a juror he could and would lay aside any prejudice he might have and would try the case solely according to the law as given in charge by the court, and the evidence submitted under the rulings. The bill fails to show that the question to the juror Parker, and the proposed inquiry of the other jurors, would have elicited an answer disqualifying them or rendering them objectionable to appellant, and in this respect is incomplete. Caton v. State, 66 Tex. Cr. R. 473, 147 S. W. 590. We are unable to determine from this bill that the juror Francis was challenged for cause. It does state that he was objectionable and was forced on appellant. An objectionable juror is one who has formed some opinion as to the guilt or innocence of the accused. Keaton v. State, 40 Tex. Cr. R. 145, 49 S. W. 90; Connell v. State, 45 Tex. Cr. R. 153, 75 S. W. 512. From the bill as qualified, we infer that the mental attitude of the juror Francis was, not that he had formed an opinion as to the guilt or innocence of the appellant, but rather that such prejudice as he had was against the offense with which appellant was charged. The statute (article 692, C. C. P., subds. 12 and 13) deals with bias or prejudice. None of the subdivisions of this statute mention in terms the adverse feeling pro-dueed by knowledge of the indictment. The indictment is not evidence of guilt, and the court is required to charge the jury on a presumption of innocence and the necessity of proof of guilt beyond a reasonable doubt. This was done in the instant case, and the juror introduced stated that he would be governed by the charge. It has been held that, while the statute makes the fact that one has been a member of the grand jury a ground for challenge, it is not available to set aside the verdict where challenge was not made. See Vernon’s O. O. P. art. 692, and notes under subdivision 7, p. 372. The bias or prejudice referred to in subdivision 12 of the statute is against the person of the accused or against his case. See notes, Vernon’s C. C. P. pp. 373, 374. Subdivision 13 of the statute provides that where a juror on his voir dire states that he has an opinion which will influence his verdict, he should be discharged, and in effect that, if he declares that he has an opinion which will not affect his verdict, the court has judicial discretion to declare him competent. This discretion, as it formerly existed, was enlarged by the act of 1885, p. 90, Vernon’s C. C. P. p. 375. We are of opinion that the bill does not show an abuse of this discretion. The juror does not appear to have been disqualified under the statute. Pierson v. State, 21 Tex. App. 14, 17 S. W. 468; McKinney v. State, 31 Tex. Cr. R. 583, 21 S. W. 683; Gaines v. State, 37 S. W. 331; Myers v. State, 77 Tex. Cr. R. 239, 177 S. W. 1167. Not being a disqualified juror, and the bill failing to show that any objection was made to him at the time of his selection, nor that the exhaustion of peremptory challenges on other veniremen was due to any illegal action of the court, we would not be authorized to reverse upon the facts disclosed. Caton v. State, 66 Tex. Cr. R. 473, 147 S. W. 590; Martinez v. State, 57 S. W. 839; Keeper v. State, 29 Tex. App. 63, 14 S. W. 398; Williamson v. State, 36 Tex. Cr. R. 226, 36 S. W. 444; Mays v. State, 36 Tex. Cr. R. 437; Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345.

The Assistant Attorney General has filed a motion to strike out bill of exception No. 2, which is copied in the record, in which there is failure to show its filing. We cannot consider the bill.

Rinding no reversible error in the record, the judgment of the lower court is affirmed.
      <®=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BURKHARDT v. STATE.
    (No. 4862.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Criminal Law <3=^1090(1) — Appeal — Absence op Statement' op Pacts oe Bill op Exceptions.
    Where the record is without statement of facts or bill of exceptions, no question is presented for revision by the Court of Criminal Appeals.
    Appeal from District Court, Comal County; M. C. Jeffrey, Judge.
    George Burkhardt was convicted of burglary, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State. ’
   DAVIDSON, P. J.

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

The record is before us without a statement of facts or bill of exceptions. With the record in this condition, there is no question presented for revision.

The judgment will be affirmed.


text:
    Ex parte ELLIS.
    (No. 4898.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Infants <@=>16 — Dismissal of Indictment-Complaint and Information.
    Under the statute for the prosecution and conviction of delinquents, when an indictment for felony is dismissed because defendant is under 17,'he cannot be tried thereunder as a delinquent, but a complaint and information must be filed against him.
    Application for habeas corpus on behalf of Harry Ellis.
    Writ granted, and relator discharged.
    John T. Duncan, of La Grange, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The application for writ of habeas corpus herein and the agreed facts show that relator was duly indicted by a grand jury of said county for assault with intent to rape, a felony; that when the cause came on for trial he filed proper affidavit, alleging that he was under 17 years of age. The court heard the evidence thereon, and found that he was under that age. He thereupon ordered the cause dismissed from the docket of the district court, and transferred it to the juvenile docket of that court. The court then on the indictment alone, without any complaint or information, tried him as a delinquent, found him guilty, and adjudged that he be duly conveyed to the industrial school for boys at Gatesville, and confined therein not less than 2 years nor more than 5, and not after he reached the age of 21 years.

The statute for the prosecution and conviction of delinquents has already been construed by this court, holding that when an indictment for felony is dismissed that the accused cannot be tried thereunder as a delinquent, but that it is necessary that a complaint and information be filed against him, and that he cannot be legally tried and convicted without a complaint and information.

These decisions are adhered to and followed. Ex parte Ramseur, 195 S. W. 864; Ex parte Medrano, 195 S. W. 865. However, special attention is here called to Miller v. State, 200 S. W. 389, not yet officially published. It therefore necessarily follows that the writ of habeas corpus is granted by this court, and it is ordered that he be no longer restrained by reason of said proceeding and discharged from custody. This order, however, will not preclude holding him by the proper authorities on any proper complaint and information that may be filed against him.

Writ of habeas corpus granted. Relator discharged.
      ^=>For other casm see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GATES v. STATE.
    (No. 4842.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Weapons <®=>6 — Unlawfully Careying Pistol.
    Where defendant had made a trade for a pistol, and unexpectedly met the seller at a social gathering, and the seller turned the pistol over to defendant, who carried it home, defendant was not guilty of a violation of the pistol law.
    Appeal from Houston County Court; E. Winfree, Judge.
    Ellis Gates was convicted of violating the pistol law, and he appeals.
    Judgment reversed, and cause remanded.
    Moore & Ellis, of Crockett, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

Under the evidence appellant ought not to have been convicted. Bearing upon that particular phase of the case the evidence discloses that appellant had a pistol; that he and others had gone to or near a social gathering. Without giving details why appellant was there, it is sufficient to state he went to see a party with reference to a business matter whom he expected to meet. While there, a party came and turned over to appellant a pistol. The evidence shows that appellant had bought the pistol from the party, and he delivered it to him on this occasion. Appellant had previously made a trade for the pistol. The seller was to deliver it to him. It seems he did not anticipate seeing him on this occasion, but he came and turned over the pistol to appellant. Appellant started home with it and was arrested within a short distance. The other facts are deemed unnecessary to state. This is the evidence as to appellant having the pistol. .Under this view of it, we are of opinion this was not a violation of the pistol law. Having purchased it, he had a right to carry it home.

The judgment will be reversed, and the cause remanded.


text:
    FORD v. STATE.
    (No. 4840.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Criminal Law <@=>396(2) — Use oe Doc.tt- ■ MENTABY EVIDENCE.
    Affidavit of prosecutrix’s father, made for school purposes, stating that she was born October 27, 1902, having been introduced by the state on prosecution for assault with intent to rape a girl under 15 years of age, another part of it stating the next child was born in April, 1903, was admissible for defendant, if not as original evidence, as impeaching evidence.
    2. Criminal Law <@=>434 — Evidence oe Age —Church Recobd.
    A church record of the birth and baptism of a child is admissible on the issue of her age on prosecution for assault on her with intent to rape, the indictment charging that she was under the age of 15 years.
    Appeal from District Court, Fannin County; R. T. Lipscomb, Special Judge.
    Bias Ford was convicted, and appeals.
    Reversed and remanded.
    Couch & O’Keefe and J. W. Gross, all of Bonham, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to rape; his punishment being assessed at two years’ confinement in the penitentiary.

It is more than questionable whether the evidence would support a conviction for assault to rape, but it is not intended here to discuss that phase of the record.

The indictment charged appellant with committing the assault upon a girl under 15 years of age. The evidence does, not show positively that prosecutrix is under the age of 15 years, and does not directly show that she was not the wife of appellant. The record is silent, except by innuendo or inference, as to whether she was his wife. This matter ought to be made clear. No witness swore in the case that she was not the wife of defendant. This whole matter could have been settled by asking the prosecutrix, or her father, the plain question as to whether she was or was not the wife of defendant, which was not done. Perhaps it might be inferred by putting one presumption upon another that she was not the wife of appellant, but matters of this sort should not be left to vague inference and deduction. The father testified that the prosecutrix was born on the 27th of October, 1903. The girl did not know her age. The enumerator or census taker of school children took the affidavit of the father of prosecutrix to the ages of his children, in which the father stated prosecutrix was born on the 27th of October, 1902. This was permitted to go to the jury. Appellant then proposed to prove from the same document and over the same oath by the father that he stated the next child was horn in April, 1903. The court would not permit this to go to the jury. In this we think there was error. From the 27th of October to some day in April is rather a short interregnum for the birth of two children. If they were twins the deliverance was a long ways apart. This testimony should have gone to the jury; if not as original testimony, as impeaching evidence.

Appellant also offered the register of the birth and baptism of the girl in St. Joseph’s Church in Oklahoma. This was in accord with the church custom, the supposition being that the people were Catholic. The record would have shown, and is property verified, that the girl was born on the 27th day of November, 1901, and that she was baptized on the 29th day of December, 1901. When this testimony was offered, the court declined to hear it, and exception was reserved. In this we think the trial court was in error. See Howard v. Russell, 75 Tex. 171, 12 S. W. 525; Lewis v. Marshall, 5 Pet 470, 8 L. Ed. 195; Hunt v. Order of Chosen Friends, 64 Mich. 671, 31 N. W. 576, 8 Am. St. Rep. 855; Garrett v. State, 42 Tex. Cr. R. 524, 61 S. W. 129. This testimony should have gone to the jury. The father had sworn that the girl was born in October, 1903, in Oklahoma, and had sworn in an affidavit furnished the enumerator of school children that she was born the 27th of October, 1902. The baptismal record of his church shows that she was born on the 27th of November, 1901, and baptized on the 29th day of December, 1901. This testimony bore directly and strongly upon the question of age. The indictment charged she was under 15 years. This evidence would have shown, if she was born in 1901 as this record would indicáis, that she was beyond the age of 15, and appellant could not be convicted under this indictment. It is deemed unnecessary to discuss the evidence.

The judgment is reversed, and the cause remanded.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McCONNELL v. STATE.
    (No. 4843.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Criminal Law <£=1092(6) — Appeai>-Bill of Exceptions — Filins after Expiration of Term.
    Where tho court’s bill of exceptions preserving certain testimony in lieu of defendant’s bill was filed after the term expired, it cannot be considered.
    2. Criminal Law <£=956(1) — Motion for New. Trial — Trial on Affidavits — Statutes.
    Under Code Cr. Proc. 1911, arts. 840, 841, the court was privileged to try motion for new trial on affidavits, declining to receive oral testimony.
    3. Criminal Law <£=1134(2) — Appeai>-Re-view — Motion for New Trial — Evidence.
    Where the court tried motion for new trial •on affidavits, declining to receive oral testimony, the only evidence which the Court- of Criminal Appeals is authorized to consider on the motion is the affidavits and certified copies of records attached to the motion and filed during term.
    4. Criminal Law <@=>942(2) — Motion for New Trial.
    The trial court should have granted the motion for now trial of defendant charged with robbery, supported by affidavits showing that the prosecuting witness had made an affidavit retracting his inculpatory testimony, and that such witness, whose testimony was essential, had been convicted of forgery in a distant county, which conviction was unknown to defendant or his counsel until the trial was practically ended.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Walter McConnell was convicted of robbery, and be appeals.
    Judgment reversed, and cause remanded.
    McCutcbeon & Church, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the robbery of Bert Curtis, who testified that appellant took money from his person while they were engaged in a tussle or fight.

The court refused to allow two of appellant’s bills of exception, and he undertook to supply them by bystanders’ bills which were filed after the time allowed by the court had expired. The motion for a new trial was supported by affidavits, and the record indicates that these were controverted in part by the state. The court prepared a bill preserving this testimony in lieu of appellant’s bill, but the bill prepared by the court was filed after the term expired, and cannot be considered. Black v. State, 41 Tex. Cr. R. 185, 53 5. W. 116. Without passing upon the controversy in regard to who was at fault with reference to the failure to file the bills of exception within the time required by law, we will say that the court tried the motion for a new trial on affidavits, declining to receive oral testimony. This he was privileged to do under articles 840 and 841, C. C. P.

The only evidence upon, which we are authorized to consider the motion for a new trial is the affidavits and certified copies of records that are attached to it and filed during the term. It appears from these that the prosecuting witness Curtis had made an affidavit retracting the inculpatory testimony that he gave at the trial against appellant; and that the said prosecuting witness, Curtis, whose testimony was essential to the state, had been, in the year 1915, convicted of forgery. This conviction took place in a distant county, and was unknown to appellant or his counsel until the trial was practically ended. The motion for a new trial thus supported, we think, should have been granted. Mann v. State, 44 Tex. 642; Brown v. State, 13 Tex. App. 59; Vernon’s C. C. P. p. 783, note 7, and cases cited.

The judgment of the lower court is reversed, and the cause remanded.
      ig=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    REED v. STATE.
    (No. 4788.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Criminal Law <@=>419, 420(1) — Evidence —Hearsay.
    In a prosecution for selling intoxicants in prohibition territory, testimony, by the state’s witness, the county attorney, and the deputy sheriff, that when the state’s witness swore to the complaint, he made to the attorney and sheriff substantially the same statements as to purchasing liquor from defendant that he testified to on the stand, was inadmissible as hearsay.
    2. Witnesses <@=3344(2) — Impeachment — Drunkenness.
    Any witness may be impeached by showing that he was drunk at the time of the events about which he testified.
    3. Witnesses <@=>410 — Impeachment — Corroboration.
    If a witness is impeached by proof of drunkenness at the time of the events testified to, he can be supported just as any impeached witness can he.
    4. Criminal Law <@=>369(6) — Witnesses <@=> 337(4) — Rebuttal of Defendant — Details of Other Sales.
    Where defendant, charged with illegally selling intoxicants in prohibition territory, swore that she never sold liquor to the state’s witness at any time, the state had the right to have its witness in rebuttal swear that he did buy intoxicating liquor from defendant at other times, though the particulars of the sales would be inadmissible. ,
    Appeal from Lamar County Court; Tom L. Beauchamp, Judge.
    Lizzie Reed was convicted of unlawfully selling intoxicating liquor in prohibition territory, and she appeals.
    Reversed and remanded.
    B. B. Sturgeon, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a misdemeanor conviction for unlawfully selling intoxicating liquor in prohibition territory.

The state’s witness swore positively he bought such liquor from appellant as alleged in the information. She swore she did not make the sale. He swore he bought the liquor about noon and thereafter during the evening drank considerable of it. The officers caught him with some of the whisky about 10 o’clock that night, at which time he signed and swore to the complaint herein. As a part of the state’s main case the court permitted' him and the county attorney and deputy sheriff, over appellant’s objections, to testify' in substance that at the time he sword to-said complaint he made substantially to them the same statements of his purchasing the liquor from appellant that he testified to on the stand. This was hearsay and inadmissible to prove the state’s case and presents error which results in a reversal of the judgment.

Any witness may be impeached by showing that he was drunk at the time of the events concerning which he testifies about. Payton v. State, 60 Tex. Cr. R, 484, 132 S. W. 127; Green v. State, 53 Tex. Cr. R. 490, 110 S. W. 920, 22 L. R. A. (N. S.) 706; 40 Cyc. 2574; 2 Wharton’s Crim. Ev. 785. If a witness is impeached in this way, then he can be supported just as any impeached witness can be. However, there was no testimony in this case that appellant was drunk or drinking when he bought the liquor which he swore he bought from appellant.

As appellant herself swore that she never sold liquor to appellant at any time, the state had the right to have the complaining witness in rebuttal swear that he did buy intoxicating liquor from her at other times. The particulars of these sales, if any, would be inadmissible.

For the error above pointed out, the judgment of the lower court is reversed, and the cause remanded.


text:
    KELLUM v. STATE.
    (No. 4848.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Larceny <@=>58 — Identity of Property— Proof.
    ■ In a prosecution for theft of junk brass from a railroad, proof of the identity of the property, found in possession of a junk dealer and claimed to have been received from defendant, was necessary.
    2. Larceny <@=>58 — Sufficiency of Evidence.
    In a prosecution for theft of brass from a railroad, evidence held insufficient to sustain conviction as failing to identify the property as coming from the possession of the storekeeper, or to show that he had lost it or similar property.
    Appeal from Bell County Court; M. B. Blair, Judge.
    Jim Kellum was convicted for misdemean- or theft, and he appeals.
    Reversed, and cause remanded.
    John L. Ward, Evetts & Sanderford, and N. P. Woodward, all of Temple, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is a conviction for (misdemeanor theft; the allegation being that appellant stole from the possession of Chas. Irvin 75 pounds of brass.

The evidence is circumstantial. It appears that Joe <Sod, a junk dealer, was found in possession of some brass by the representative of the Santa Fé Railroad, and was promised immunity from prosecution so far as the railroad representative could control it if he would help convict appellant. Sod claimed to have an appointment with appellant at 8 o’clock in the evening to obtain some brass, and, with the railroad representative, kept the appointment, and the appellant transferred from his automobile to that of Sod’s a sack containing 72 pounds of brass. To-identify this brass the state relied upon the-testimony of Irvin, as follows:

“I am storekeeper for the .Santa Fé Railway Company, and held that position on the 21st day of August, 1916, and have charge of all the old or junk brass on the Santa Fé system from Temple to Oleburne, from Temple to Bell-ville, and from Temple west on the branch. About the 22d day of August, 1916, I was shown some brass in Joe Sod’s junkshop that was claimed by him to have been received by him from Jim Kellum. A great many pieces of this brass had the Santa-Fé mark or brand on them, and showed to have belonged to the Santa Fé Railway Company, and I had every reason to believe that it was Santa Fé brass. It was in an oat sack. I do not know where this brass I saw in the junkshop came from. I could not say where it came from. It was Santa Fé brass is all I know. I saw something over 200 pounds in the shop; it was in two sacks; both sacks contained .Santa Fé brass. I do not know which one came from Jim Kel-lum. I could not say what part of the Santa Fé System this brass came from, for it is hard for me to tell when any brass is lost; I could not swear that I ever had this brass in my possession or under my care, and do not know when it was stolen, if stolen. Jim Kellum had worked on the rip track for the Santa Fé in Temple for some two or three years previous to August 21, 1916, and his duties would necessarily require him to handle old or junk brass frequently, but I never did see him take any brass from the yards. There is a loss of about 20 per cent, each year of the old brass, for various reasons, that is never returned to the Santa Fé, the loss being from wear and tear, shrinkage, stealage, and other causes.”

The loss of brass is not shown, except in so far as may be inferred from the testimony of Irvin quoted. So far as developed by the evidence, the transaction occurred at Temple, in Bell county.

Appellant insists that the evidence is insufficient to show that the brass found in appellant’s possession had been in possession of, or under the control of, Chas. Irvin either in his personal capacity or as the storekeeper for the railroad, and complains of the refusal of a special charge. There is an absence of testimony showing that about the time of the alleged theft any brass was lost or missing from the possession of Irvin, or the railroad company, whose agent he was. When he examined the brass in the possession of Sod he found something over 200 pounds of brass. He says that he had charge of all the old or junk brass on the Santa Fé System within certain limits. He does not describe the brass that he'found in the possession of Sod as old or junk brass, but simply says that both sacks contained Santa Fé brass; that he could not say that any of it had ever been in his possession or under his care. Proof of the identity of the property was necessary. Doss v. State, 28 Tex. App. 506, 13 S. W. 788; Davis v. State, 70 Tex. Cr. R. 253, 156 S. W. 1171; Branch’s Ann. P. C. § 2482, and cases.

The state relies upon circumstances to show the guilt of. appellant. No one saw him take any brass from the railroad, nor from Irvin. He delivered brass to Sod, and the state relies upon the idea that the brass was stolen, and that Ms recent possession of it connects him with the theft; in other words, that the inference or presumption of theft by him could be drawn from his recent possession of the stolen property, but to support the conviction the further presumption or inference must be drawn, viz. that the property was stolen, and stolen from Irvin, the special owner. This presumption, we think, cannot prevail against the presumption of innocence in view of the failure of the evidence to identify the property, as coming from the possession of Irvin, or to show that Irvin had lost it or similar property. Vernon’s Penal Code, art. 1329, p. 847, note 36, and cases cited; Branch Ann. P. C. § 2448, and cases listed; Cline v. State, 43 Tex. 499; Johnson v. State, 36 Tex. Cr. R. 395, 37 S. W. 424.

For these reasons we believe that the judgment of the lower court should be reversed, and the cause remanded; and it is so ordered.
      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PKENHERGAST, J.

text:
    WRENN v. STATE.
    (No. 4809.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Crxminax, Daw @=292(1) — Plea or Former Conviction — Failure to Swear to— Statute.
    In a prosecution for gaming, the court properly overruled defendant’s plea of former conviction, which was not sworn to as Code Cr. Prop. 1911, art. 573, requires.
    2. Gaming @=81 — Separate Oeeenses.
    Bach game or bet participated in or made by defendant charged with gaming was a separate offense.
    3. Indictment and Information @=144 — Motion to Dismiss — Status as Pleading.
    A motion to dismiss or plea of want of jurisdiction, filed by defendant charged with gaming, and alleging that the court had no jurisdiction because the prosecution was instituted in justice court, and was still pending therein, was a mere pleading, and did not prove itself.
    4. Indictment and Information <@=144 — Motion to Dismiss — Supporting Evidence —Date Offer.
    Where defendant' charged with gaming introduced no evidence on hearing of his motion to dismiss or plea of want of jurisdiction on the ground that the court had no jurisdiction because the prosecution was instituted in justice court, and was still pending there, and introduced none on the trial of the case, but, when his motion for new trial was heard, introduced evidence by the justice of the peace in support of the motion or plea, such evidence came too late.
    5. Criminal Daw <@=90(2) — Jurisdiction— Justices of the Peace.
    Under Rev. St. 1911, art. 10, providing that all oaths, affidavits, or affirmations necessary or required by law may be administered by any judge or clerk of a court of record, justice of ■the peace, or. by any notary public, because a complaint charging defendant with gaming was sworn ta by the sheriff before a justice of the peace, that of itself did not give the justice jurisdiction to try the case.
    6. Criminal Daw @=100(1) — County Court —Jurisdiction.
    Where the sheriff swore to a complaint against defendant for gaming before a justice of the peace, and the justice, by mistake and under misapprehension of the sheriff’s intention not to try the case before him, placed his file mark on the complaint, the county court was not thereby deprived of jurisdiction, the justice of the peace issuing warrant for defendant’s arrest and making it returnable directly to the county court as soon as his attention was called to his mistake the next morning by the sheriff, also transmitting the complaint and warrant to the clerk of the county court, where the case was proceeded upon and trial had.
    7. Criminal Law '<@=>100(3) — Exercise oe Jurisdiction.
    Under Code Or. Proc. 1911, art. 63, providing that when two or more courts have concurrent jurisdiction of any offense, the court which first gets jurisdiction shall retain it to the exclusion of all other courts, if a justice court first acquired jurisdiction of a prosecution for gaming, the justice should have retained jurisdiction and disposed of the case.
    Appeal frOm Hunt County Court; A. ,J. Gates, Judge.
    Ollie Wrenn was convicted of gaming, and he appeals.
    Judgment affirmed.
    Earl McAlester and Montrose & Robey, all of Greenville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PKENHERGAST, J.

Appellant has appealed from a conviction of gaming with the lowest punishment assessed.

• The complaint is in due and regular form, charging that appellant in said county on or about June 3, 1917, did unlawfully bet at a game played with dice called craps. It was sworn to by Mr. Akers, the sheriff, before the justice of the peace on said date, which was on Sunday. On the next day the justice turned over the complaint to the county court, and on that date (June 4th) the county attorney filed an information in the county court based on said complaint. The case was tried in the county court on July 2d.

Appellant has a bill of exceptions which, after the usual heading and commencement, alleges:

That “after the state had announced ready for trial, and before the defendant had announced ready or entered any' plea whatsoever, the defendant by his counsel offered the following plea of former conviction: ‘Now comes the defendant in the above numbered and styled cause, and says that he has been once before, to wit, on the - day of June, 1917, he appeared before the honorable mayor’s court in the city of Greenville, Hunt county, Tex., and was put upon trial for the offense as charged in this information, and after said trial was permitted to go hence by paying a fine for the commission of said offense; and that the offense for which' he is now here charged in this cause is one and the same offense, and no other.’ That upon the trial of said cause the only testimony offered by the defendant was the witness, R. M. Chapman, who testified as follows: T am "may- or of Greenville, Hunt county, Tex., and have been for several years; I also act as judge of tha city court; I have here with me the docket of the city court of Greenville, Tex.; this docket shows that Ollie Wren was charged with, and pleaded guilty to, the offense of gaming or shooting craps on the night of June 2, 1917.’ That the court overruled said plea of former conviction to which the defendant then and there in open court duly excepted, and here now tenders this his bill of exceptions No. 1, and asks that the same be approved and filed as part of the record in this cause, which is accordingly done.”

The court approved this bill with the explanation:

“That the plea of former conviction was not sworn to ; that no testimony was offered on said motion; and further the facts showed in the trial the defendant was engaged in more than one game of craps on the same date.”

Appellant’s plea of former conviction, as it appears in the record, is quoted in full in said bill. It was not sworn to. It was merely signed by his attorneys. It in no way referred to, or made a part of said plea, any copy of the complaint, judgment, or other proceedings had in the mayor’s court. The statute (article 573, C. C. P.) expressly requires that such pleading shall be sworn to. The decisions all hold that the complaint or pleadings against appellant in another court and the judgment and other proceedings thereunder when a previous conviction is claimed shall be made a part of said plea. See 2 Vernon’s Crim. Stats, p. 294, where a large number of cases are cited. The bill and record show that this plea was presented by appellant to the court for action before he announced ready or-any other proceeding was had in the case other than announcement of ready by the state. As the bill shows, the testimony bf the mayor was not offered or heard by the court when appellant presented his plea to be acted on and when it was acted upon by the judge, but it shows that the said testimony of the mayor was introduced on the trial of the cause after the court had acted on his plea which he had presented to the judge and required action thereon. Neither the bill nor the record shows or intimates that when the court held his plea was insufficient because not sworn to, he amended it, or offered to amend it by swearing to it. He abided by the action of the court at the time. Neither does it show that he had at any time asked that the question be submitted to the jury; nor did he complain of the action of the court for failure to submit it to the jury. The bill does not give the testimony of the mayor on cross-examination. On cross-examination he swore:

“I don’t know whether or not Ollie Wren was in more than one game that night. He only plead guilty to one game, and there was no agreement that his plea of guilty was to cover any game other than the one he was caught playing in.”

The law is that each game or bet is a separate offense. Day v. State, 27 Tex. App. 144, 11 S. W. 36; Parks v. State, 57 Tex. Cr. R. 569, 123 S. W. 1109. The uncontradicted testimony showed that he played and gambled two distinct times during that night of June 2d, once in the early part of the night, and, the other some time after midnight of the same night. It is evident, therefore, why appellant did not and would not swear to his plea of former conviction. Evidently he was afraid that he might he guilty and punished for perjury. This bill shows no error.

Appellant has another bill to the overruling of his motion for a new trial, wherein he alleges that:

“After the state had announced ready for trial, and before the defendant had announced ready or entered any plea whatsoever, except the plea of former conviction, the defendant, by his counsel, offered the following motion to dismiss this cause: ‘Now comes the defendant * * * and moves the court to dismiss the case, for the reason that the court has no jurisdiction for the reason that this suit was instituted in the justice court, precinct No. 1 (place No. 1), on the 3d day of June, 1917, and appears from the file marks on the complaint that it is still a pending suit therein, and was first filed in said court’ ”

Then is copied the said complaint, which was sworn to by the sheriff before said justice of the peace. On the back of it was indorsed by the county clerk the number of this case in the county court, properly styled and filed by the clerk of the county court officially on June 4, 1917. There also appeared on the back of this complaint this:

“Piled on June 3, 1917, Olin P. McWhirter, Justice of the Peace, Precinct No. 1, Hunt County, Texas.”

The bill further states:

“And that thereupon_ the court overruled defendant’s plea and motion to dismiss this cause for want of jurisdiction.”

To which he excepted. The court explains this bill in approving it as follows:

“That said plea was not sworn as required by law, and further that no testimony was offered in support of said motion, and further the facts showed that the warrant of arrest upon which defendant was arrested was returnable to the county court.”

This motion or plea of the want of jurisdiction was not sworn to by any one. It was merely signed by appellant’s attorneys. It was a mere pleading. It did not prove itself. Appellant offered no evidence to prove it. As shown, it was presented to the court and required to be acted upon by appellant as a preliminary matter to even his announcement in the case, and prior to the organization of the jury or trial of the case. The motion on its face does not show that the county court had no jurisdiction. It was held in Garner v. State, 62 Tex. Cr. R. 527, 138 S. W. 124, that under such circumstances :

“It would be incumbent upon the appellant to plead in writing, under oath, whatever facts were necessary to show that the court in which the trial was proceeding had no jurisdiction.”

Appellant introduced no evidence on the hearing of said motion, and introduced none on the trial of the cause. When his motion for new trial was heard, and not till then, did he offer any evidence on this subject. This hearing was on July 24th, after his trial and conviction on July 2d. He then for the first time introduced this said complaint described above herein and the in-dorsement of the filing thereof by the justice of the peace as copied above. He then introduced the justice of the peace, who testified that on Sunday evening, June 3d, the sheriff phoned him to come to his office; that he wanted to file some complaints; that when he went to his office the sheriff had 30 or 40 gaming cases and other character of cases, and in the batch was the said complaint against appellant; that quite a number of those other cases against other persons were filed by him at the time, and that evening he issued a warrant for the arrest of most, if not all, of them returnable to his court; that he understood at the time that he took jurisdiction of them; that, however, the next day, June 4th, the sheriff phoned him and asked him if he understood those cases were to be tried in the county court, and he replied that he understood they were to be tried in his court, but that he would do whatever the sheriff wanted him to do with them; that he then changed whatever warrants he had issued in the cases from being returnable to his court and made them returnable to the county court; that he then delivered the said complaints and warrants to the clerk of the county court; that all these eases, including this one against appel* lant, were filed in the regular manner that such cases are filed in his court. On cross-examination he swore that he did not place this case against appellant on his docket and none of the others which he sent to the county clerk, and that he gave no number to it or any of the others on his docket; that when they were filed in the county court they were not in shape for disposition in his court, and he could not have disposed of them as they then were. On redirect examination he swore it was not his custom to docket any case filed in his court until the case was called for trial or a plea of guilty entered, and that he then docketed it. All this evidence came too late.

Appellant cites and relies upon articles 106 and 624, C. C. P., Ex parte Holcomb, 60 Tex. Cr. R. 204, 131 S. W. 604, and Gill v. State, 45 Tex. Cr. R. 256, 76 S. W. 575.

Article 106 gives justice courts original concurrent jurisdiction with other courts in cases where the punishment is by fine only not to exceed $200, except in cases involving official misconduct. Article 624 provides that if a justice of the peace is disqualified from sitting in any criminal action pending before him, he shall transfer it to the nearest justice not disqualified. In the Gill Case a prosecution for a misdemeanor was filed in the justice court on June 3d. It seems that it was regularly filed and to be prosecuted therein, and that the case was properly docketed and whatever entries were necessary to be made thereabout by the justice on his docket were made. On June 22d the justice made out a transcript of all the proceedings had in his court and transmitted it to, and they were filed in, the county court, where the trial thereof later occurred. In the county court appellant made a motion to dismiss the case because the justice of the peace had no authority to transfer it from his court to the county court. Doubtless proof of all these facts, as well as the record itself, showed all necessary facts to establish his motion. It seems further that the justice was transferring the case from his to the county court because of his disqualification to try it. This court held that under said article 624 he had no right to transfer it to the county court, but it was his duty to transfer it to the nearest justice of the peace who was not disqualified. In the Holcomb Case appellant sought discharge on habeas corpus from a conviction in the county court because the county court was without jurisdiction. The complaint was in two counts. Both alleged a misdemeanor about the same matter, but in one the justice court had no jurisdiction because the penalty involved not only a fine, but imprisonment in the county jail. It was held that even though the complaint was made before the justice of the peace and filed by him, that it was proper in that, case to transfer the papers later to the county court and Holcomb was denied any relief on habeas corpus.

The Civil Statutes (K. S. art. 10) expressly enact that:

“All oaths, affidavits or affirmations necessary or required by law may be administered * * * by any judge or clerk of a court of record, justice of the peace, or by any notary public.”

So that because the complaint herein was sworn to by the sheriff before the justice of the peace, that of itself did not give the justice jurisdiction to try the case. Taking his belated testimony on the motion for new trial, it was sufficient to show that his placing his file mark on the complaint herein was by mistake and under a misapprehension of the facts. What he did about it occurred Sunday evening. As soon as his attention was called to the matter the next morning,by the sheriff that this case was not to be tried before him, but before the county court, he issued the warrant for appellant’s arrest, and made it returnable directly to the county court, and not to his court, and at once transmitted the complaint and warrant to the clerk, where it was proceeded upon and the trial had as stated above. He made no entry whatever on his docket, and, of course, not having any entry, he made no transcript, of any of the proceedings to the county court, as was done in the Gill Case. Thus his testimony would show that as a, matter of fact jurisdiction of this ease had not really attached in his court. The county court unquestionably had jurisdiction of the grade of offense charged herein.

Article 63 provides that when two or more courts have concurrent jurisdiction of any offense, the court which first gets jurisdiction shall retain it to the exclusion of all other courts. Of course, under this statute, if the justice court acquired proper jurisdiction of the case and that fact had been alleged and proven by appellant at the proper time, then the justice of the peace should have retained jurisdiction and disposed of the cases Appellant failed to prove this in proper time, and the testimony heard on the motion for new trial would justify the conclusion that the justice of the peace did not acquire jurisdiction to try the case, but that the county court did. Hence the court did not err in overruling appellant’s motion for new trial, complained of in this bill.

The evidence without contradiction clearly showed, as stated above, that appellant gambled in two distinct games at different times-haring Saturday night, June 2d; the first early in the night, which made it on June 2d, and the last some time after midnight, which ma.de it on June 3d.

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

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