author: FRENDERGAST, P. J.

text:
    REYNOLDS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Criminal Law (§ 1166 ½)—Appeal-Harmless Error.
    Where the jurors of whom it was complained that they had formed an opinion in the case were peremptorily challenged by accused, and did not serve, error in not sustaining the challenge on the ground that they had formed an opinion was not reversible.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166½.]

      2. Jury (§ 66) — Panel.
    Code Cr. Proc. 1911, art. 704, provides that when there are not as many as 12 names drawn from the box, if in the district court, the court shall direct the sheriff to summon such number of qualified persons as it deemed necessary to complete the panel. Article 705 provides that when there are as many as 12_or more jurors drawn and the list delivered, if either party desire' to challenge for cause, the challenge shall now be made. Article 713 provides that when the jury is left unfilled by peremptory challenges, the court shall direct a sufficient number of other jurors to be drawn as it may consider necessary to complete the jury. Held, in a prosecution for cattle theft, that the court was not required to summon more than 24 regularly drawn jurors until after the challenges reduce the number to less than 12.
    [Ed. Note. — Por other eases, see Jury, Cent. Dig. §§ 283-290, 306; Dec. Dig. § 66.]
    3. Larceny (§ 45) — Admission oe Evidence —Identification of Property.
    Evidence of the brand on the cattle alleged to have been stolen is admissible in evidence to prove their identity, though such brand is not recorded; the court having charged that it was admissible only for that purpose, and not to establish ownership.
    [Ed. Note. — Por other cases, see Larceny, Cent. Dig. §§ 135, 136; Dec. Dig. § 45.]
    4. Criminal Law (§ 442) — Evidence—Documents — Map.
    Where, in a prosecution for cattle theft, the state proved before introducing in evidence a map showing the pasture of the alleged owner, together with the gates, etc., that it was approximately correct, the map was properly admitted in evidence and used by witnesses; it not being necessary to show that it was absolutely correct.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1027; Dec. Dig. § 442.]
    5. Criminal Law (§ 683) — Trial—Order of Evidence.
    Where, in a prosecution for cattle theft, accused had put in evidence that he had told the sheriff when arrested he had never seen that particular brand on any cattle until he bought those in question from a certain person in October, 1912, the state could show, after accused had closed his evidence, that witnesses saw accused with cattle having the same brand, freshly branded, in April, 1912; Code Cr. Proc. 1911, art. 718, permitting the court to allow testimony to be introduced at any time before argument is concluded if necessary to justice.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1615-1617; Dec. Dig. § 683.]
    6. Criminal Law (§ 564) — Evidence — Tenue.
    Evidence, in a prosecution for cattle theft, held to sustain a finding placing the venue in S. county as charged.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. § 564.]
    7. Criminal Law (§§ 763, 764) — ’Trial—Instructions — 'Weight of Evidence.
    An instruction that venue must be proved ■ affirmatively, but need not be proved positively beyond a reasonable doubt, but may be proved by circumstantial evidence and that it is only necessary that from all the facts the jury may reasonably conclude the offense was committed in the county alleged, and if from all facts the jury cannot reasonably conclude that the offense was committed in S. county, they should acquit, was not objectionable as upon the weight of the evidence.
    [Ed. Note — Por other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752,1768,1770; Dec. Dig. §§ 763, 764.]
    8. Criminal Law (§ 822) — Instructions— Construed as Whole.
    The whole of a criminal charge must be construed in passing upon objections to a part thereof.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994,1995, 3158; Dec. Dig. § 822.]
    9. Criminal Law (§ 564) — Evidence—Tenue —Reasonable Doubt.
    It is not necessary to prove venue beyond a reasonable doubt; it being sufficient if the jury can reasonably conclude from tbe evidence that the offense was committed in the county alleged.
    [Ed. Nóte. — Por other cases, see Criminal Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. § 564.*]
    10. Criminal Law (§ 564*) — Evidence—Ten-ue — Circumstantial Evidence.
    Tenue may be proved in a criminal case by circumstantial, as well as by direct, evidence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 726, 1277-1284; Dec. Dig. § 564.*]
    11. Criminal Law (§ 784*) — Instructions— Proof of Tenue — Circumstantial1 Evidence.
    A charge on circumstantial evidence is inapplicable on the particular question of venue.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.*]
    12. Criminal Law (§ 829*) — Instructions— Request.
    Where a sufficient charge was given by the court on the question of venue, a requested charge covering substantially the same question was properly refused.
    [Ed. Note. — Por other- cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*]
    Appeal from District Court, Shackelford County; Thomas L. Blanton, Judge.
    Taylor Reynolds was convicted of cattle theft, and appeals.
    Affirmed.
    A. A. Clarke, of Albany,' and J. M. Parker, of Woodson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases 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 Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   FRENDERGAST, P. J.

Appellant was convicted of cattle theft, and his punishment fixed at two years’ confinement in the penitentiary — the lowest prescribed by law.

By two bills appellant complains of error in the court not sustaining his challenge to two jurors because they had formed an opinion. The bills are too lengthy to copy. One gives in full the examination of the juror on his voir dire. The effect of the other is shown by the bill. The statute prescribes the causes for which a juror may be challenged. C. Cr. P. 1911, art. 692. The substance of subdivision 13 of this article, is, being the only one applicable to the question raised, that if the juror shows that there is established in his mind, from hearsay or otherwise, such a conclusion as to the guilt or innocence of the defendant as will influence his action in finding a verdict, then a line of inquiry is indicated, which shall be asked him. And if it appear that his conclusion has been formed from statements, reports, mere rumors, or hearsay, and he states on his.oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, and the court is satisfied that he is impartial and will render such verdict, the court may, in his discretion, admit him as a competent juror; but, if the court in its discretion is not satisfied that he is impartial, he shall be discharged. The testimony of these jurors was sufficient to show that they were able, and they swore that, notwithstanding their opinion, they were able, to render an impartial verdict upon the law and the evidence, and that the court was satisfied that this was true and they were impartial, and that they would render such verdict. The evidence of these jurors was sufficient to show that they were competent, and that appellant’s challenge for the cause assigned was not correct as a matter of fact. But whether this be true or not, the bills show that neither of these jurors served in this case, and that both of them were peremptorily challenged by appellant. Neither of the bills show, nor does the record otherwise show, that any objectionable juror whatever was forced upon the appellant, or served as a juror on this trial. It has been the uniform and long holding of this court that unless the appellant shows that the ruling of the court in not sustaining appellant’s objection to a juror for cause results in some legally objectionable juror sitting in the case, such ruling of the court, even if wrong, affords no ground of reversal. Oates v. State, 149 S. W. 1195. And as said by this court in the Oates Case, supra: “This rule has been so long settled it is deemed unnecessary to discuss it further.” So that, even if the court was in error as claimed by appellant, no injury resulted to him which would or should cause a reversal of this judgment.

By another bill it is shown that there were 24 regularly drawn jurors for the week in the jury box; that they were all examined on their voir dire, and were held qualified jurors to try the case, and the parties were directed to make their challenges. The appellant then claimed that the panel wa"s not full; that there should be 32 instead of 24 jurors in the box, and requested the court to summon the additional 8 jurors before he should be compelled to make any challenge. The court overruled his motion and objection. There was no error in the court’s action and ruling. The effect of our statutory provisions on the formation of a jury in cases less than capital is that 12 jurors in the district court is a full panel. Articles 704, 705, C. Cr. P. When there are as many as 12 or more in the panel, the parties can correctly be required to then make their challenges (article 711), and it is then only when the number is reduced by such challenges to less than 12 that the court is required to have other jurors summoned (article 713). Under no contingency in this case was the court required to summon more than the 24 regularly drawn and qualified jurors until after the challenges by the parties reduced the number to less than 12. This was shown to have been done correctly in this case.

It has uniformly been held by this court that evidence of the brand on cattle is admissible in evidence for the purpose of proving their identify, even though such brand is not recorded. The court did not err, as complained by one of appellant’s bills to the testimony of O. M. and W. H. Oauble, as to the brand of C. M. Cauble, the owner, that was on the cattle alleged to have been stolen. The court not only, in ruling on the objections as to the admissibility of this evidence, told the jury that it was admissible for the purpose of identification only, but also so charged in his written charge to the jury, and further that it was not admissible, and that they could not consider it, to establish ownership.

Many of the witnesses in testifying had before' them and before the jury a map showing the pasture of the alleged owner of said cattle, the fences, gates, and contiguous places and houses of various persons and of roads, etc. This was freely used by both sides, and the various things pointed out by the witnesses in their testimony. The court correctly permitted this map to be introduced in evidence. Before it was introduced, the state proved by several witnesses that it was approximately correct, and where there were errors the district attorney at the time changed the map, and corrected it under the direction of the witnesses, and at the time it was offered it was approximately correct according to the testimony of all the witnesses who had been interrogated concerning it. Appellant’s contention was that it was-incumbent upon the state to prove that the map was absolutely correct. Branch’s Orim. Law of Texas, § 361, and cases cited.

The appellant introduced Mr. Biggs, the sheriff of Shackelford county, and had him to testify to a part of what appellant said to him, shortly after the alleged commission, of this offense, at the time he arrested him, among other things, to the effect that he then stated to the sheriff that he had bought the cattle alleged to have been stolen from a man by the name of Overton, whom he met in the road with this bunch of cattle, and that he gave Overton a check for part of the purchase money and a note for the balance, etc. Thereupon the state proceeded on cross-examination to prove by Mr. Biggs all of the conversation that appellant had with him at that time on the same subject, which the-statute expressly authorized. Article 811, C. Cr. P. In the balance of this conversation, drawn out .by the state, the sheriff testified that appellant at the time told him that he had never seen this BOB brand on any cattle until he, on that occasion, bought from Over-ton this bunch of cattle with this fresh brand on them. The time he claimed to have bought the cattle was about the middle of October, 1912.

Over appellant’s objection on the ground that it was not in rebuttal, after he had closed his evidence, the court permitted the state to prove by two witnesses that in April, 1912, they saw appellant in possession of some cattle freshly branded with said BOB brand. The court correctly admitted this evidence over appellant’s objections. O. Or. P., art. 718, is: “The court shall allow testimony to be introduced at any time before the argument of the cause is concluded, if it appear that it is necessary to a due administration of justice.” Appellant, as he had a right to do, introduced the testimony of Mr. Biggs for the purpose of explaining, when first called upon to do so, his possession of the alleged stolen animals; and the court, at his instance, gave his special charge to the jury on that subject. It certainly appears that the said testimony of the witnesses objected to was necessary to a due administration of justice. Under appellant’s claim it was an important fact of when he first saw said brand; and, when he stated, through the sheriff, that in the latter part of October, 1912, was the first time he saw this brand, it was a material and important fact to show that his testimony on that point was not true, but that he had seen it in April some six months prior thereto.

The indictment in this ease charged the venue in Shackelford county, Tex. It is unnecessary to state the testimony tending to establish the venue. Upon a careful consideration of all of it, we think the evidence established the venue as laid. The pasture of Cauble, the owner, from which these cattle were stolen, was about two miles square, and contained 2,800 acres. A small strip of this pasture, from 600 to 800 yards wide on the east side of it was in Stephens county. All the balance of it was in Shackelford county. The cattle were shown to run, at and prior to the time they were stolen, almost entirely, if not exclusively, in the Shackelford county part of the pasture, and not on the strip in Stephens county. There was little grass and no water in that part of the pasture in Stephens county; all of the water and the best grass and the salt licks were in Shackelford county. The testimony tends strongly to show that when the cattle were taken out of the pasture at the time they were stolen they were driven out of a gate, which was clearly shown to have been in Shackelford county and not in Stephens. About the time they were shown to have been stolen appellant was seen alone, about 9 o’clock at night, to be driving a bunch of cattle of about the number stolen from the direction of the Shackelford part of this pasture to his place, about five miles west of north of the Shack-elford part of this pasture, and from a direction that would establish that they were driven by him on this occasion from the Shackelford part of the owner’s pasture through the gate in Shackelford county and around through Shackelford county into Throckmorton county, where he drove them, and where he was soon thereafterwards shown to be in possession of the stolen cattle. The whole testimony not only tends directly and most strongly to show that the offense was committed in Shackelford county, but also tends strongly to exclude the idea that the cattle were stolen from Stephens or any county other than Shackelford.

The court, in charging the jury on the question of venue, gave in charge to the jury article 238, O. Or. P., to the effect that an offense committed on the boundary of two counties, or within 400 yards thereof, may be prosecuted in either county, and the indictment may allege the offense to have been committed in the county where prosecuted. And also article 245, to the effect that where property is stolen in one county and carried off by the offender to another, he may be prosecuted in the county where he took the property, or in any other county through or into which he may have carried the same. Then the court further charged the jury as follows: “Venue must be proved affirmatively, but it is not required that it be proved by positive evidence beyond a reasonable doubt, or it may be proved by circumstantial evidence. It is necessary only that from the facts and evidence, the jury may reasonably conclude that the offense was committed in the county alleged. If from the facts and circumstances in evidence you cannot reasonably conclude that the offense is properly laid in Sháckel-ford county, you will acquit the defendant.” Then, in submitting the case to the jury for a finding, the court said: “Now, if you should believe from the evidence in this case, beyond a reasonable doubt, that the defendant Taylor Reynolds, in the county of Shack-elford and state of Texas, on or about the 15th day of October, 1912, did unlawfully and fraudulently take,” etc.

The appellant attacks that part of the court’s charge on venue, first above quoted, on the grounds: First. That it was on the weight of the evidence. In our opinion it was not subject to this objection. Second. Because it assumed that the offense charged had been committed. In considering objections to a charge the whole of it, and not particular portions only, must be considered. Taking the court’s charge as a whole, this objection of appellant is untenable. And his third objection is that while in telling the jury that venue may be proved by cireum-stantlal evidence, it fails to instruct the jury as what is the probative force of circumstantial evidence, and fails to refer to that part of the charge where the rule as to circumstantial evidence, when introduced on the question of the commission of the offense itself, is stated.

It is the settled law of this state that it is not essential to prove venue beyond a reasonable doubt; that the doctrine of reasonable doubt does not apply to the issue of venue. Barrara v. State, 42 Tex. 260; McReynolds v. State, 4 Tex. App. 327; Deggs v. State, 7 Tex. App. 359; Achterberg v. State, 8 Tex. App. 463; McGill v. State, 25 Tex. App. 499, 8 S. W. 661; Cox v. State, 28 Tex. App. 92, 12 S. W. 493; Abrigo v. State, 29 Tex. App. 143, 15 S. W. 408. It is unnecessary to cite any later decisions. Venue may be proved by other than positive testimony; if from the evidence the jury may reasonably conclude that the offense was committed in the county alleged, it is sufficient. Hoffman v. State, 12 Tex. App. 406; Bowman v. State, 38 Tex. Cr. R. 14, 40 S. W. 796, 41 S. W. 635. It may be as effectually proved by circumstantial as by direct evidence. McGill v. State, supra; Cox v. State, supra; McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93; Kugadt v. State, 38 Tex. Cr. R. 681, 44 S. W. 989; Nance v. State, 17 Tex. App. 385.

The court gave a correct charge on circumstantial evidence as applied to the case, to which there is no objection. Such a charge is inapplicable, and should not be given on the question of venue.

The court did not err in refusing to give appellant’s special charge No. 3 on the question of venue, for the charge of the court on the subject, which we have given above, substantially covered the same point At any rate, the court’s charge was amply sufficient on the subject. Appellant’s requested charge omitted and ignored entirely articles 238 and 245, given above.

The judgment is affirmed.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    COKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct 15, 1913.
    Rehearing Denied Nov. 5, 1913.)
    1. CRIMINAL Daw (§ 1120) — Appeal — Bill ox Exceptions — Admission of Evidence.
    A bill of exceptions to the admission of evidence cannot be considered, where it does not show what the evidence was.
    [Ed. Note. — Por othen cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    2. Witnesses (§ 345) — Impeachment — Conviction op Crime.
    In a prosecution for robbery by threats with a pistol, evidence that a certain witness had been convicted of carrying a pistol shortly after the date of the alleged robbery, offered to impeach him and to connect him with the offense charged against accused, was inadmissible for any purpose; accused having testified that he got the pistol used by him from such witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    3. Criminal Law (§ 814) — Instructions — Applicability op Evidence.
    It was not error to refuse to request a charge on the question of accomplices, where there was no evidence tending to show that the alleged accomplice was such.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    4. Robbery (§ 27*) — Instruction.
    Pen. Code 1911, art. 1327, provides that if any person, by threat or violence or by putting in fear of life, etc., shall fraudulently take from another’s possession any property with intent to appropriate it, he shall be punished by confinement for life or for not less than five years, “and” when a firearm is used or exhibited in the commission of offense, etc., shall be punished by death \>r by imprisonment for not less than five years. Held, that an instruction charging the statute was improper for using the word “or” instead of the word “and.”
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 38-40; Dec. Dig. § 27.]
    5. Criminal Law (§ 823) — Instruction—Error Cured by Other Instructions.
    In a prosecution for robbery with firearms, the court, in charging the statutory definition of robbery, erroneously used the word “or” instead of “and” in charging that part of the statute “and when a firearm or other deadly weapon is used in the commission of the offense,” the punishment shall be death, or imprisonment for not less than five years, but the court further charged that accused was charged with robbery with firearms, and if he made an unlawful assault upon another by violence, or by putting him in fear of life, etc., and by using and exhibiting a pistol, fraudulently took money from his person, the jury should find him guilty as charged, and assess punishment at death or imprisonment for not less than five years, and further charged that the state must prove every allegation beyond a reasonable doubt, and that accused was presumed to be innocent. Held, that the error in charging the statute could not have prejudiced accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    6. Robbery (§ 4) — Ownership ox Property.
    If the party losing at cards voluntarily delivers the money lost to the winner’s actual possession, the winner owns the money, so that the forcible taking of it from his possession may constitute robbery.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 4; Dec. Dig. § 4.*]
    7. Criminal Law (§ 1172*) — Appeal—Harmless Error — Instruotions.
    Accused cannot complain of an instruction which is more favorable to him than he is entitled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    8. Robbery (§ 27) — Instructions—Applicability ox Evidence.
    Where, in a prosecution for robbery by firearms, it appeared that the accused had previously lost the money at cards, it was improper to charge that, if accused retook the money under an honest claim of right, believing it to be his property, the jury should acquit.
    [Ed. Note. — For other eases, see Robbery, Cent. Dig. §§ 38-40; Dec. Dig. § 27.]

      9. Criminal Law (§ 1172*) — Appeal—Harmless Error — Instructions Favorable to the Accused.
    Error, in a prosecution for robbery with arms in charging that if accused retook the money under an honest belief it was his property, the jury should acquit, when accused had lost the money at cards and voluntarily given it to the winner, whom he afterward robbed, was favorable to the accused, so that he cannot complain thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169 ; Dec. Dig. § 1172.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Bush Coker was convicted of robbery, and appealed.
    Affirmed.
    J. D. Abney, of Hillsboro, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant appeals from a conviction of robbery, alleged to have been committed on or-about June 16, 1912.

Appellant with Ed Harris and others engaged in gambling with cards for an hour or more. .He had $9 or $9.75 when the gaming began, and bet small amounts from time to time till he lost it all; said Harris, it seems, winning all of it. The last bet he lost to Harris was 75 cents. He then quit the game and left the room, but soon returned with a drawn and cocked pistol, demanding of Harris the money he had lost. Harris then had, all told, from $30 to $35. At the point of the pistol he forced Harris to deliver all this money to Mm, wMch he carried off and appropriated. He required, by threat to kill, Joe Sexton, to pick up this money from Harris and hand it to him. As soon as he forced the delivery of the money to him, he fired off his pistol twice.

The indictment is in accordance with the statute and approved form and the decisions of this court (P. C. art. 1327; Green v. State, 147 S. W. 593; Robinson v. State, 149 S. W. 186), and is good.

By one bill appellant objected to the testimony of Cecil Madison because she did not identify appellant and the occurrence. The court overruled this objection on the ground she had identified the occurrence. The bill in no ways shows what her testimony was, and does not present any error.

“For the purpose of impeaching said Joe Sexton, and of connecting him with the offense for which the defendant was on trial,” appellant offered the records from the county court of Hill county, showing that said Sexton had been convicted of carrying a pistol, on or about June 20, 1912.' TMs evidence was inadmissible for any purpose. Appellant himself testified he got this pistol from Sexton, and had it when this robbery was committed, and had fired it twice.

The evidence in no way shows, or tends to show, that said Sexton was a principal or an accomplice, and the court did not err in refusing to give appellant’s charge on that subject, even if the question is raised in such a way as to require this court to consider it.-

In the second division of the charge the court attempted; to give the general statutory definition of robbery as prescribed by P. C. art. 1327, and did so substantially, except he concluded it with “or when a firearm or other deadly weapon is used, or ex-Mbited in the commission of the offense.” The whole of this division of the charge was unnecessary, and especially the latter clause quoted should not have been given. But this could not in any way have misled the jury, nor injured appellant, for in the first division the court specifically told the jury that appellant “stands charged by indictment with the offense of robbery with firearms,” etc., then in the fourth division fully and correctly gave -the statute as applicable to the offense charged. In addition, when he submitted the case for a finding he charged: “(5) Now, if you believe from the evidence beyond-a reasonable doubt that the defendant did in the county of Hill and state of Texas, at the time alleged in the indictment, unlawfully make an assault upon Ed Harris, by violence to the said Ed Harris, by-putting the said Ed Harris in the fear of life or bodily injury, and then and there by using and exhibiting a firearm, to wit, a pistol, did then and there fraudulently take from the person and possession, and without the consent of and against the will of the said Ed Harris, $35 in money of the value of $35, or any other sum of money, the same then and there being the corporeal personal property of the said Ed Harris, with the fraudulent intent then and there of him, the said Bush Goker, to deprive the said Ed Harris of the value of the same, and to appropriate the same to use and benefit of him, the said Bush Goker, as alleged in the indictment, then you will find the defendant guilty as charged, and assess his punishment at death or by confinement in the penitentiary for any term not less than five years.” By this charge the jury were affirmatively required to find, and by their verdict did find, every essential of robbery as charged, before they could convict.

Again, the court charged: “The burden of-' proof is upon the state throughout this case to establish every allegation against the defendant beyond a reasonable doubt, and he is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt” — and still gave appellant’s special charges:

“(1) You are instructed to acquit the defendant unless you believe that he took the money from Ed Harris as alleged by the state in the indictment.”

“(8) ‘Fraudulently,’ as that term is here used, means a deliberately planned purpose and intent to gain unlawful possession.” Reynolds v. State, 58 Tex. Cr. R. 273, 124 S. W. 931; Railsbeck v. State, 53 Tex. Cr. R. 545, 110 S. W. 916; Keeton v. State, 59 Tex. Cr. R. 332, 128 S. W. 404; Jones v. State, 63 Tex. Cr. R. 413, 141 S. W. 953; Milling v. State, 150 S. W. 436; C. C. P. 743; Matthews v. State, 160 S. W. 1185, from San Augustine county, recently decided.

All of the evidence, including that of appellant himself, clearly and without contra-diction shows that appellant and others gambled with Harris, the party robbed, continuously for an hour, and that when appellant got into th'e games he had only $9 or at most $9.75, that he bet and lost different amounts of this to Harris from time to time during the time of gambling, and that in this way Harris won from him, and got and held the possession as his own the whole amount of appellant’s loss. It is the settled law of this state, “That where two persons engage in a game of cards, betting money thereon, and one of the parties wins the other’s money, and the party losing delivers the money so lost voluntarily to the winner, and the money so passes into the actual possession of the winner, then, within the meaning of the law, the winner is the owner of the money so passing into his possession.” Carroll v. State, 42 Tex. Cr. R. 31, 57 S. W. 99. “In such case, in a civil suit, the law would leave the parties in statu quo, and certainly in a criminal charge it would not recognize a retaking of the property, which involved all the elements of a premeditated robbery.” Blain v. State, 34 Tex. Cr. R. 452, 31 S. W. 368. See, also, Fannin v. State, 51 Tex. Cr. R. 41, 100 S. W. 916, 123 Am. St. Rep. 874, 10 L. R. A. (N. S.) 744; Wiebb v. State, 60 S. W. 961; Rockland v. State, 45 Tex. Cr. R. 87, 73 S. W. 1054.

It was also correctly held by this court in Jones v. State, 63 Tex. Cr. R. 413, 141 S. W] 964: “Prior to the enactment of article 743, Code Criminal Procedure, in construing that article, as it had theretofore been, in connection with article 735, this court had reversed cases where mere technical errors of commission or omission had been in the charge of the court. The Legislature, in amending article 743 as it was amended by the act of March' 12, 1897, expressly enacted that the judgment shall not be reversed, unless the error appearing from the record was calculated to prejudice the rights of the defendant; whereas, before then said article, as it stood, seemed and was construed to require a reversal whether such error was calculated to injure or not. Even before this article was amended, the Supreme Court in Wright v. State, 41 Tex. 246, held that a judgment of conviction would not be reversed for improper instructions given in favor of the defendant; and cases prior to Green v. State, 32 Tex. Cr. R. 298 [22 S. W. 1094] which held that where erroneous charges were given, if excepted to, even though such injury inured to the benefit of the accused, required a reversal, were expressly overruled by this court. In Briscoe v. State, 37 Tex. Cr. R. 464 [36 S. W. 281], on a trial for murder, where the evidence established murder in the first degree, it was held that defendant could not be heard to complain that the court gave him a charge upon murder in the second degree. Also in Gonzales v. State, 35 Tex. Cr. R. 33 [29 S. W. 1091, 30 S. W. 224], this court held that a defendant who had been convicted of manslaughter could not claim any possible injury from a charge on mutual combat, even when such charge was not required by the evidence, and that a charge upon imperfect self-defense, though not called for by the evidence, could do no possible harm to appellant where there was no self-defense in the case. It has also been held in many cases by this court that, even though a specific portion of the charge of the court may be erroneous, when it is more favorable to the accused than he was entitled to upon the particular questions, he had no ground to complain. Wilkins v. State, 35 Tex. Cr. R. 525 [34 S. W. 627]; Scruggs v. State, 35 Tex. Cr. R. 622 [34 S. W. 951]; Delgado v. State, 34 Tex. Cr. R. 157 [29 S. W. 1070]; English v. State, 34 Tex. Cr. R. 190 [30 S. W. 233]; Daud v. State, 34 Tex. Cr. R. 460 [31 S. W. 376]; Loggins v. State, 32 Tex. Cr. R. 364 [24 S. W. 512]; Lujano v. State, 32 Tex. Cr. R. 414 [24 S. W. 97]; Boren v. State, 32 Tex. Cr. R. 637 [25 S. W. 775]; Green v. State, 32 Tex. Cr. R. 298 [22 S. W. 1094]; Kelley v. State, 31 Tex. Cr. R. 216 [20 S. W. 357]; Sutton v. State, 31 Tex. Cr. R. 297 [20 S. W. 564]; Massey v. State, 31 Tex. Cr. R. 371 [20 S. W. 758]; Wolfforth v. State, 31 Tex. Cr. R. 387 [20 S. W. 741]; Gonzales v. State, 31 Tex. Cr. R. 508 [21 S. W. 253]; Weathersby v. State, 29 Tex. App. 278 [15 S. W. 823]; Surrell v. State, 29 Tex. App. 321 [15 S. W. 816]; Hawthorne v. State, 28 Tex. App. 212 [12 S. Wt 603]; Walker v. State, 28 Tex. App. 503 [13 S. W. 860]; McCleavland v. State, 24 Tex. App. 202 [5 S. W. 664]; Carlisle v. State, 37 Tex. Cr. R. 108 [38 S. W. 991].”

Therefore, under the facts and law of this ease, the court should not have charged as he did in the latter part of division 6 of his charge: “And if the defendant took same (the money) under an honest claim of right; believing it was his property, then you will find the defendant not guilty. And if you have a reasonable doubt whether such are the facts in the case you will find the defendant not guilty.” Nor should the court have given, the latter part of appellant’s charge No. 3 on the same subject. And even if there was some conflict on this point between the special charge asked by the state, given by the court, which correctly charged the law of the case, and that improperly given as last above stated, no injury occurred to appellant thereby, as 'established by the authorities last above cited. All this was to his advantage, and not against him. The jury assessed the lowest penalty.

Nothing else requires any discussion. The evidence clearly established a strong case against appellant. Even his own testimony establishes his guilt.

The judgment will be affirmed.


author: HARPER, J.

text:
    SHARP v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.
    On Motion for Rehearing, Nov. 5, 1913.)
    1. Criminal Law (§ 1092) — Appeal — Review — Change of Venue.
    Under Code Cr. Proc. 1911, art. 634, providing that an order granting or refusing a change of venue shall not be revised on appeal, unless the facts upon which it was based are presented in a bill of exceptions, approved and filed at the term at which the order was made, the Court of Criminal Appeals cannot review an order overruling a motion for a change of venue where the only bill of exceptions on the ■question was not filed until over two months after court had adjourned for the term.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    2. Rape (§ 39) — Peosecution—Admission of Evidence.
    In a prosecution for rape while taking prosecutrix automobile riding, evidence that shortly before the alleged rape accused left the automobile and went into a store and stated there to witness that he had plenty of c-k in the wagon and had plenty of money to pay his fine, and if he could not make her spark “you come and turn her over,” was admissible on the question of intent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 51; Dec. Dig. § 39.]
    3. Rape (§ 46) — Admission of Evidence.
    Evidence was admissible, in a prosecution for the rape of prosecutrix while accused had her out for an automobile ride, that on the day after the alleged attempt witness found a hat pin in the automobile driven by accused, and that it was bent.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 54; Dec. Dig. § 46.]
    4. Rape (§ 46) — Admission of Evidence.
    Evidence that witness examined a spot of ground, on the side of the road on which prose-cutrix and accused were automobile riding, between a certain town where they were and prosecutrix’s boarding place, and that there was a circle about four steps in length about four steps from the road which looked like some one had gouged their toes or heels in the ground, was admissible in a rape ease; other evidence showing that accused’s tie pin and the heel of prosecutrix’s shoe were also found there.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 54; Dec. Dig. § 46.]
    5. Rape (§ 46) — Evidence—Remoteness.
    In a prosecution for rape, charged to have been committed on Friday evening, evidence of the condition on Sunday morning of the spot where it was supposed to have been committed and where property of accused and prosecutrix was found was not too remote to be admissible; the lapse of time going only to the weight of the evidence.
    [Ed. Note. — For other eases, see Rape, Cent. Dig. & 54; Dee. Dig. ⅜ 46.]
    6. Ckiminal Law (§ 363) — Admission of Evidence.
    Evidence by the woman at whose house prosecutrix boarded that prosecutrix was nervous and was not able to stand up when she arrived home on the night of the alleged rape was admissible as res gestae, in connection with her other testimony that prosecutrix called witness as soon as she got home, at which time she stated, “That ornery dog has ruined me,” and that prosecutrix’s hair was entangled and her face and body bruised, and she was in a generally dilapidated condition.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 804; Dec. Dig. § 363.]
    7. Criminal Law (§ 404) — Demonstrative Evidence.
    In a rape prosecution, prosecutrix’s shoe with a portion of the heel off, a piece of the heel found at the place of the alleged rape, prosecutrix’s bent hat pin, and accused’s tie pin also found there, as well as prosecutrix’s torn waist and other clothes, were all properly admitted in evidence on the question of force.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. § 404.]
    8. Courts (§ 66*) — Term of Court — Extension.
    Where the trial was not completed by the time the regular term would have expired by law, the court could extend the term until the conclusion of the trial under Rev. Civ. St. 1911, art. 1726, permitting it to do so in such cases.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 231-242; Dec. Dig. § 66.]
    9. Criminal Law (§ 1090) — Appeai>-Bill of Exceptions.
    In the absence of a bill of exceptions reserved thereto, the Court of Criminal Appeals cannot review the trial court’s action in overruling a motion to quash the venire.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    10. Criminal Law (§ 1090) — Appeai>-Bill of Exceptions — Admission of Evidence.
    In the absence of a bill of exceptions, the Court of Criminal Appeals cannot consider error in denying a new trial for alleged error in admitting evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    11. Criminal Law (§ 1124) — Appeal—Bill of Exceptions — Contents—Evidence. .
    Where the order denying a motion for a new trial for misconduct of the jury recited that the court heard the motion and “the evidence adduced thereon,” error in denying the motion cannot be reviewed in the absence of a bill of exceptions containing the evidence heard by the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 2939, 2946-2948; Dec. Dig. § 1124.]
    12. Criminal Law (§ 594) — Continuance— First Application — Discretion of Court.
    Under the direct provisions of Code Cr. Proc. 1911, art. 608, subd. 6, the granting of even a first application for a continuance to procure absent witnesses is addressed to the trial court’s discretion, though such discretion is not an arbitrary one.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.]
    13. Criminal Law (§ 959) — New Trial — Grounds — Denial of Continuance — Affidavit of Witnesses.
    Alleged error, for which a new trial is asked, in denying a first application for a continuance to procure absent witnesses is entitled to greater consideration if the affidavit of the witness that he would testify as alleged is attached to the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2406-2411; Dec. Dig. § 959.]
    14. Criminal Law (§ 596) — Continuance-First Application — Cumulative Evidence.
    The fact that the evidence, to procure which a continuance is asked -in a criminal case, is cumulative in its nature is not ground of itself for overruling a first application for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 1328-1330; Dee. Dig. § 696.] '
    On Motion for Rehearing.
    15. Criminal Law (§ 1124) — Appeal—Bill of Exceptions — Evidence.
    Since a sworn motion for a new trial is merely a pleading, if it is desired that exhibits attached to the motion be considered as evidence they should be introduced as such, and the fact that no other evidence was introduced should be shown by the bill of exceptions in order to have error in overruling the motion reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    16. Criminal Law (§ 1090) — Appeal—Bill of Exceptions.
    Supreme Court rule 53 provides that there shall be no bill of exceptions as to matters which at common law constitute the record proper, as the citation, pleadings, and motions for new trial, etc., and rule 55 provides that rulings upon applications for continuance and other incidental motions, and upon evidence and other proceedings not embraced in the two preceding rules, must be presented in a bill of exceptions to become a part of the record. Held, that evidence introduced on a motion for new trial must be preserved by bill of exceptions to enable the C.ourt of Criminal Appeals to review a ruling denying the motion.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. §■ 1090.]
    17. Criminal Law (§ 1166) — Continuance.
    There was no abuse of discretion in denying a first application for a continuance in a rape case to procure witnesses to show that prosecutrix’s reputation for chastity was bad before the alleged offense, where the physical facts and the evidence conclusively showed that prosecutrix did not consent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. § 1166.]
    Appeal from District Court, Sherman County; D. B. 1-Iill, Judge.
    Earl Sharp was convicted of rape by force, and he appeals.
    Affirmed.
    Moore, Harrington & Powell, of Dalhart, C. F. Rudolph and M. Cammack, both of Stratford, Tatum & Tatum, of Dalhart, and W. F. Ramsey, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of the offense of rape by force, the alleged injured party being a young lady school teacher of Sherman county, and his punishment assessed at 50 years’ confinement in the penitentiary.

It appears from the record that court convened the 13th day of January and adjourned on the 28th day of January. When this case was called for trial on the 24th day of.January, appellant presented an application for a change of Venue. It was contested by the state, and the court after hearing the evidence overruled the motion. The bill presenting the evidence heard on the motion was not filed until March 26th, two months and two days after court had adjourned for the term. Article 634 of the Code of Criminal Procedure provides: “The order of the judge granting or refusing a change of venue shall not be revised upon appeal, unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved and filed at the term of the court at which such order was made.” Thus it is seen by the plain mandate of the Code we have not the authority to revise the order overruling the motion for a change of venue in this case. McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 558, and cases cited in section 681, White’s Ann. Crim. Proc.

The rape is alleged to have occurred shortly after dark on Friday evening, January 17th, of this year. That afternoon appellant had gone to the place where the young lady boarded and carried her automobile riding. During the drive they went to the town of Stratford, and appellant got out and went in the store of A. W. Allen, leaving the young lady seated in the automobile, and while in the store remarked: “That he had plenty of c-k in the wagon, and that he had plenty of money to pay his fine, and that if he could not make her spark you (the person to whom he was talking) come and turn her over; that he was not afraid of the grand jury.” As the alleged rape is known to have occurred shortly after these remarks were made, the testimony was clearly admissible. The young lady was then sitting in the automobile in front of the store, and the testimony clearly shows he referred to her, the bent of his mind, and throws light on the subsequent conduct of defendant the same evening.

Appellant objected to Harry Ingram being permitted to testify that on the morning of the 18th, being the next day after the alleged offense, he found a hat pin in the automobile driven by appellant on the night of the alleged rape, and that it was bent. This hat pin so found was identified as the hat pin of Miss Henderson, and she testified that when appellant assaulted her and threw her on the ground, in resisting the rape, she drew her hat pin out, undertook to strike appellant with it, when it bent; he taking it away from her and subsequently threw it into the automobile. The fact that her hat pin was found in the automobile bent tended strongly to support her testimony, and the testimony was properly admitted.

Appellant also objected to Noble Kelp being permitted to testify that on Sunday morning, after the offense was alleged to have been committed on Friday night, “he examined a spot of ground on the side of the road between Stratford and Mr. Timber-lake’s (the place where Miss Henderson boarded); that there was a circle about four steps in length and about four steps from the road, and it looked like some one had gouged their toes or heels in the ground.” Defendant contends the time was too remote; that it was not' shown this was the spot where the offense was committed nor that it was in the same condition on Sunday morning that it was Friday night; and that it was not shown that this condition was produced by appellant. This witness testified: “I examined a part of the road between tne Shepherd place and Timberlake’s after this occurrence. I was at Mr. Timberlake’s that night and I examined the place Sunday morning after the alleged rape. I found the ground was dug up and scratched up. It looked like it was sorter prodded up with shoe heels. The grass was all torn up and I found a tie pin which I have got. I found a shoe heel (that is, one little layer of the heel), and I found a piece of glass, which I supposed was out of an automobile light. I found some lady’s hairpins which were lying on the ground right where the ground was scuffled up. They were lying on the left-hand side of the road as you go out to Timberlake’s from town.” The “tie pin” found there was identified as the pin of appellant. Miss Henderson’s shoe was shown to have lost a layer off of the heel, and this layer of the heel found at this place was shown to belong to Miss Henderson’s shoe, and the other property found on the ground was shown to be hers. Under such circumstances, the testimony was admissible, appellant’s pin and her shoe heel being found there, and the testimony tended strongly to support her contention that she resisted the assault and was overcome by force. It is not too remote, being not over 40 hours after the occurrence, but the fact that this much time had elapsed might go to its weight but not to its admissibility.

Appellant objected to Mrs. Timberlake being permitted to testify that when Miss Henderson arrived home “she was nervous and was not able to stand up.” To take isolated expressions like this and object to them and not present the setting nor the connection in which they were admitted do not present the matter sufficiently, and the bill is too incomplete to call for a revision. But what this witness did testify is that when Miss Henderson arrived home she called, “Mrs. Timberlake! Mrs. Timberlake!” and as she got to her Miss Henderson remarked, “That ornery dog has ruined me.” That Miss Henderson’s “condition at that time was unrecognizable almost Her face was just blue and her neck clear down to there (indicating). She was blue clear down to her breast, and her hair was just stringing down her back, tangled and full of grass. She had on a long coat and it was just covered with grass. I didn’t untangle her hair until Sunday. Her hair was just in tangles and full of grass. The hairpins were bent, several of them bent double and just sticking in her head. I had to feel over her head and get them out. I took some hairpins out of her hair on Friday night and they are here some place. I gave them to my husband. She was excited and very nervous when I got to her that night and she couldn’t stand. She had some bruises on her body; her left hip was bruised; and she had some bruises on the lower part of her limbs from her knees up. They were not large bruises, just small bruises. We could see them plainer next morning than that night. There were several red places on her body. She and I removed her corset, and it is here and they can see it. The stays are broken; I think they were all broken except a few. One was broken at the waist line and the others down lower. I don’t know whether her supporters were loose or not. She was not able to set up and I felt of her pulse and she hardly had any to feel. She was cold as ice all over her body. She was nervous. We worked with her until after 2 o’clock and she then seemed to get quiet and warm in about four hours.” Under all of our decisions this testimony was clearly admissible, the remarks being res gestas of the transaction, and certain it was permissible to show her condition.

It was also permissible for the state to introduce the shoe in evidence with a portion of the heel off, the piece of the heel found by Noble Kelp, the bent hat pin identified as the property of Miss Henderson, the “tie pin” identified as belonging to appellant, the torn waist, and other articles of wearing apparel. They all shed light on the main contested issue, Was or was not force used?

The appellant requested four special charges presenting his- contention in the ease in the most favorable light, and they were all given by the court. These and the charge of the court presented fairly every issue raised by the testimony, and the charge as given, viewed in the light of the special charges as given, is not subject to the criticism contained in appellant’s motion for new trial. In addition thereto no error is sought to be specifically pointed out but only general objections made.

It appears that this case went to trial during the term fixed by law, but that it was not completed by January 25th, the .time when the term would have expired by limitation, and the court entered an order on that date extending the term of court until the conclusion of the trial of this case, the one in which it then was engaged in trying. Article 1726 of the Revised Statutes provides that, when the court is in the midst of a trial, it may extend the term until the conclusion of said trial, and the court in this instance did not err in so doing.

Those grounds in the motion for new trial complaining of the action of the court in overruling the motion to quash the venire, etc., cannot be considered, as no bills of exception were reserved.

Neither can we consider those grounds in the motion complaining of the action of the court in admitting certain testimony to which no bills of exception are incorporated in the record.

However, in the motion for new trial it is contended that two of the jurymen, Caldwell and Smith, had formed and expressed an opinion in this case prior to the time they were accepted on the jury, and the affidavits of Messrs. Rudolph, Altum, and Welsheimer are attached to the motion as exhibits stating that Caldwell had said when speaking of this matter that appellant ought to be castrated, and that Smith had said appellant “ought to have his neck stretched.” The court in overruling the motion for new trial enters the following judgment: “On this day came on to be heard the motion of the defendant, Earl Sharp, herein for a new trial, and the defendant being present, and said motion being presented to the court, and the court, having heard and considered said motion, the evidence adduced thereon, and the argument of counsel, is of the opinion that the law is against said motion. It is therefore ordered, adjudged, and decreed by the court that the said motion be and the same is hereby in all things overruled.” If the court “heard the evidence thereon” as he states in his judgment, this evidence ought to have been presented by a bill of exceptions and placed in the record that we might determine whether or not the court abused the discretion confided in him by law. If the only evidence offered were the affidavits attached to appellant’s motion for new trial, this fact should be shown by a proper bill, and in the absence of any bill of exceptions we are left in the dark as to the evidence heard by the court, and as appellant has not by a proper bill brought to us the evidence heard on this ground in the motion, and the judgment states that “evidence was heard by the court and considered by him,” we would not be authorized to presume that the court acted improperly in the premises. We can never review the action of the court in any matter where the evidence heard and considered by him is not brought forward in the record.

The only other matter that need be considered is the action of the court in overruling appellant’s application for a continuance. As to the witness J. D. Rawlings, no diligence is shown. It is true it is stated that a subpoena was issued to Sherman county, but there is no allegation that this witness then or had ever lived in Sherman county, nor is the place of his residence stated. It is further stated in the application that the witness was out of the state, and, instead of issuing a subpoena to Sherman county (when he knew he was not in that county), appellant should have taken some steps looking to taking his depositions and then moved to postpone the case until the depositions could have been obtained, if he deemed the testimony material. • As to the other two witnesses, Mr. and Mrs. D. !<'. Burkhead, appellant alleges that they live either in Johnson or Tarrant county, and that he had subpoanas issued to both counties, and that he expects to prove by them that the reputation of Miss Henderson for virtue and chastity in 1911 and 1912 was bad. A telegram in the record from Johnson county states that these witnesses do not reside in Johnson county, while there is no return from the sheriff of Tarrant county, and we have no evidence that they reside in Tarrant county other than the general statement of appellant contained in his motion for new trial “that they are alleged to reside in Tarrant or Johnson county.” There is no specific allegation that they do so reside. It seems to us that, if they had resided in either of the counties, it could have been ascertained at least before the motion for new trial was acted on; and, if there was attached to the motion the affidavit of either of them that they would so testify, we would be inclined to give great weight to the application for a continuance.

But even a first application for a continuance is no longer a matter of right, but by our Code it is a matter to be addressed to the sound discretion of the-trial judge. Subdivision 6 of article 608, Code of Crim. Proc.; Abrigo v. State, 29 Tex. App. 148, 15 S. W. 408; McAdams v. State, 24 Tex. App. 86, 5 S. W. 826; Wooldridge v. State, 13 Tex.. App. 443, 44 Am. Rep. 708. Of course this is not an arbitrary discretion, for it is provided that after a motion for continuance is overruled, and the person on trial is convicted, if it should appear that the testimony of the absent witnesses was of a material character, and the facts set forth in the application probably true, a new trial should be granted.

And it is for this reason we state, if attached to the motion for new trial the affidavit of the witness that he would testify as alleged, the question is much more favorably presented. However, in this case it is shown that Miss Henderson was residing in Sherman county, was employed as a teacher in the public schools, and of all the witnesses summoned and introduced by defendant he propounded to none of them any question as to the reputation of Miss Henderson in the respect named, and we cannot say that, in view of the testimony on the trial, the court abused the discretion confided in him in holding that it was not probably true the absent witnesses would so testify if they were present. We know that, in the light of the record before us, we do not feel inclined to hold that the trial court abused his discretion and acted arbitrarily in the premises.

While we know that the fact that testimony which is cumulative in its nature is no ground for overruling a first application for a continuance, in this ease the testimony cannot be said to be cumulative, for in the record before us there is no testimony that the reputation of Miss Henderson for chastity and virtue is bad, but all the record would tend to show to the contrary.

The evidence is ample to support the verdict, and the judgment is affirmed.

On Motion for Rehearing.

This case was affirmed at the last term of this court and on motion for rehearing the case was postponed at the request of appellant’s counsel to give them ample time to brief same. But two questions are presented on the motion for rehearing. First, that we erred in presuming that evidence was heard on the motion for a rehearing. If it had been a presumption of ours, then there would .be merit in appellant’s motion, but was it a presumption on our part? The order overruling the motion for a new trial reads: “On this day came on to be heard the motion of the defendant, Earl Sharp, herein for a new trial, and the defendant being present, and said motion being presented to the court, and the court, having heard and considered said motion, the evidence adduced thereon, and the argument of counsel, is of the opinion that the law is against said motion. It is therefore ordered, adjudged, and decreed by the court that the said motion be and the same is hereby in all things overruled.” Thus it is seen that the court in his judgment asserts, “The court having heard and considered said motion, the evidence adduced thereon, and-the argument of counsel,” etc., that the motion is overruled. Yet, we are asked to ignore this solemn declaration of the trial court in his judgment and find that he heard no evidence but only considered the affidavits attached to his motion for a new trial.

The motion for a new trial is but a pleading, together with the exhibits attached thereto, and, when it is sought to raise therein an issue extrinsic the record, it must be sworn to, yet swearing to it does not render it any the less a pleading in the case. And, if on the hearing of the motion appellant desires the exhibits attached to be considered as evidence, he ought to introduce them as such, and then if no other evidence is introduced, and his motion is overruled, appellant, in a proper bill, ought to show that fact, and then we would be authorized to review the action of the court. But when the court in his judgment recites he heard the evidence adduced on this ground of the motion and overrules it, without having the evidence before him, it is impossible for us to determine whether he ruled correctly or incorrectly, and we cannot review his action.

Appellant cites us to rules 53 and 55 of the Supreme Court, claiming that no bill of exceptions was necessary. They read:

Rule 53: “There shall be no bills of exceptions taken to the judgments of the court, rendered upon those matters, which, at common law, constitute the record proper in the case, as the citation, petition, answer, and their supplements and amendments, and motions for a new trial, or in arrest of judgment, and final judgment.”
Rule 55: “The rulings of the court upon applications for continuance and for change of venue, and other incidental motions, and upon the admission or rejection of evidence, and upon other proceedings in the case not embraced in the two preceding rules, when sought to be complained of as erroneous, must be presented in a bill of exceptions, signed by the judge and filed by the clerk, or otherwise made according to the statute, and they will thereby become a part of the record of the cause, and not otherwise.”

If these rules make anything plain it is that, if we are expected to review the action of the court on any matter which did not constitute a part of the record at common law, such matter must be presented by bill of exceptions. Of course, if appellant’s motion for new trial only complained of errors in the record as made on the trial, it is not necessary to set up those matters in a bill of exceptions; but when the motion for new trial sets up matters extrinsic the record, and evidence is heard thereon, then it is necessary that the evidence be preserved by bill of exception in order to enable us to intelligently pass on whether the ruling of the court was correct or incorrect. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263.

The only other ground in the motion for rehearing is that the court erred in overruling his application for a continuance. This is so thoroughly discussed in the original opinion we hardly deem it necessary to do so again. The physical facts on the ground, the condition of the young lady when she arrived home, and the other evidence in the case show conclusively it was not a case of intercourse by consent, and, if all he says the absent witnesses would swear was admitted, that her reputation for chastity was bad the year prior to this alleged rape, it could not and would not probably change the verdict. Such testimony would only be admissible as tending to show consent, and, as hereinbefore stated, the evidence overwhelmingly refutes this idea or plea.

The motion for rehearing is overruled.


text:
    BROWN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.
    Rehearing Denied Nov. 12, 1913.)
    1. Criminal Law (§ 597) — Appeal.
    It was not error to deny an application for a continuance for absence of a witness, where defendant’s testimony at the trial excluded the idea that the absent witness would have testified as alleged in the motion, had he been present.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1331, 1332; Dec. Dig. § 597.]
    2. Criminal Law (§ 596) — Continuance-Absence of Witness — Impeaching- Testimony.
    A continuance will not be granted to obtain the testimony of an absent witness, desired only to impeach the prosecuting witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596. ]
    3. Criminal Law '(§ 372) — Evidence op Other Offenses — Sale of Liquor — Pursuing Occupation.
    In a prosecution for pursuing the occupation or business of selling intoxicating liquors, evidence of sales to persons other than those named in the indictment is admissible to establish that accused was pursuing the business of selling intoxicating liquors illegitimately; the burden being on the state to prove, not only the two sales to persons named, as required by statute, but also to show that accused was pursuing such business.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.]
    4. Intoxicating Liquors (§ 233) — Wrongful Sale — Occupation or Business — Evidence — Books of Express Company.
    In a prosecution for pursuing the business or occupation of selling intoxicating liquor in prohibited territory, the books of express companies, showing the quantity of liquor received by accused prior to the return of the indictment, and during the time he was alleged to have been engaged in the prohibited business, were admissible. .
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298½; Dec. Dig. § 233.]
    5. Witnesses (§ 376) — Cross-Examination —Attitude.
    Accused, in a prosecution for pursuing the occupation of selling intoxicating liquors in prohibited territory, in cross-examining P. proved that he was related to the prosecuting witness, and asked him if he was not testifying so as to help the latter, developing the fact that the witness had been brought before the grand jury and forced to tell about buying the whisky in question. Held, that the stafe was properly permitted in reply to elicit from the witness that he had not voluntarily appeared or testified before the grand jury.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1204-1206; Dec. Dig. § 376.]
    6. Criminal Law (§ 632) — Trial—Calendar —Call.
    Where an application for a continuance is made on the call of a case on the calendar, and counsel requests time in which to prepare a formal motion, it is in the discretion .of the trial court whether he will take a recess until the motion is prepared, or call the next case on the docket, and, having elected to call the next case which was the one against accused, there was no error in forcing him to trial ahead of the case preceding.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1447-1449; Dec. Dig. § 632.]
    7. Witnesses (§ 374) — Interest—Bias.
    Where a witness for accused testified to circumstances material to his defensive theory, it was permissible for the state to show that the witness had approached a state’s witness and told him that “if he testified against accused,
    he would get h-1 beat out of him.”
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.]
    8. Intoxicating Liquors (§ 233) — Evidence —Internal Revenue Books.
    In a prosecution of “James Walter Brown” for pursuing the occupation of selling intoxicating liquors in prohibition territory, an examined copy of entries in the books of the internal revenue collector, showing the issuance of a liquor license to James Brown at <⅜., Tex., where accused was engaged in business, was admissible ; there being no evidence that there was any other James Brown in that place.
    [Ed. Note.- — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298½; Dec Dig. § ¿33.]
    9. Intoxicating Liquors (§ 233) — Wrongful Sale — Evidence.
    In a prosecution for pursuing the occupation of selling intoxicating liquor in prohibition territory, evidence that drunken people were frequently seen in defendant’s place of business was admissible.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293-297, 298½; Dec. Dig. § 233.]
    10. Criminal Law (§ 775) — Instructions— Alibi — Evidence.
    Evidence, in behalf of accused, in a prosecution for pursuing the occupation of selling intoxicants, indicating that he was at home on the morning the prosecuting witness testified accused made sales of liquor to him, was insufficient to require a charge on alibi.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. § 775.]
    11. Criminal Law (§ 825) — Trial—Instructions — Presumption of Innocence — Charge on Alibi.
    A charge on the presumption of innocence, properly worded, is sufficient on the issue of alibi, when no charge thereon is specifically requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    12. Witnesses (§ 317) — Impeachment—Instructions.
    A request to charge that, if the prosecuting witness had been impeached on a material issue in the case, the jury could not consider his testimony for any purpose was erroneous, and properly refused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1080-1083; Dec. Dig. § 317.]
    13. Criminal Law (§ 822) — Trial—Instructions.
    A charge in a criminal case must be considered as a whole, and if, when so considered, it is a full, clear, and correct presentation of the law applicable thereto, it is not material that isolated paragraphs or sentences might be misleading or improper.
    [Ed. Note.—For- other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    Appeal from District Court, Upshur County; R. W. Simpson, Judge.
    James Walter Brown was convicted of the offense of pursuing the occupation of selling intoxicating liquors in local option territory, and he appeals.
    Affirmed.
    M. B. Briggs and Warren & Briggs, all of Gilmer, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was convicted of the offense of pursuing the occupation of selling intoxicating liquors in prohibition territory, and his punishment assessed at two years’ confinement in the penitentiary.

The court did not err in overruling the application for a continuance, in the light of the testimony adduced on the trial. Appellant and his wife on the trial testify that he was at home on the morning he is alleged to have made a sale to Dr. Hudson, and they exclude the idea that he could have been with the absent witnesses Venn, Smith, Bill and Tom Hammonds, and it has always been held that where the testimony of the appellant on the trial would exclude the idea that the absent witnesses would testify as alleged in the motion for a continuance, no error is presented. Puclrett did not testify as to any sale on this trial, consequently the testimony of Goolsby and Dodson would not have been admissible had they been present. Such portions of the testimony of the witnesses named as would tend to impeach the prosecuting witness, Dr. Hudson, would furnish no grounds for a continuance.

There was no error in permitting witnesses to testify as to other sales of intoxicating liquor than to the persons named in the indictment. Appellant was being prosecuted for pursuing the occupation or business of selling intoxicating liquors, and each separate and distinct sale would be some evidence that he was pursuing that business. Of course, the state had to prove two sales to persons named in the indictment, but it was also incumbent on the state to prove that he was pursuing that business, and all legitimate evidence tending to show that fact would be admissible, and for this reason the court did not err in admitting in evidence the books of the express companies, showing the quantity of liquor received by appellant prior to the return of the indictment, and during the time appellant was alleged to have been engaged in pursuing that business.

Appellant in cross-examining the witness Edgar Petty proved that he was related to the Hudsons, and asked him if he was not testifying as he did to help Dr. Hudson out of trouble, and developed the fact by the witness that “he had been brought before the grand jury and forced to tell about buying this whisky.” As this testimony about the witness being “forced to tell about buying the whisky” was elicited by appellant, and the other questions propounded to witness by the appellant being to show his relationship to the prosecuting witness, and that he was testifying as he did for this reason, there was no error in permitting the state to elicit that he had not voluntarily appeared before the grand jury, and did not voluntarily give testimony before that body.

Bill of exception No. 10 presents no error. When the cause preceding this one on the docket had been called, and counsel for defendant in that one requested and was granted time to prepare a motion for continuance, it was in the discretion of the court whether or not he would recess the court until the motion was prepared, or call the next ease on the docket; and, as he elected to call the next'case, which was the one against appellant, he committed no error.

It is always permissible to show the interest or bias of any witness in a case, and when the defendant placed Dave Amoss on the stand, who testified to circumstances material to his defensive theory, it was permissible for the state to show that this witness had approached a state’s' witness and told him “if he testified against appellant he would get h-1 beat out of him.”

The evidence shows that appellant is named James Walter Brown, and it was permissible to show, by an examined copy of entries in the books of the internal revenue collector, that license as a retail liquor dealer had been issued to James Brown to sell such liquors at Gilmer, Tex. Appellant was engaged in business at Gilmer, Tex., and there is no evidence to show there was any other James Brown in Gilmer than appellant. Examined copies of records are always admissible in evidence.

We also think, on the issue of whether or not appellant was pursuing the business of selling intoxicating liquors, it was permissible to show that drunken people were frequently seen in his place of business. This would be a circumstance to be taken into consideration with other facts and circumstances in evidence in determining whether or not appellant was pursuing the business of selling intoxicating liquor. On the question of whether one was pursuing the occupation, evidence that he had made a sale of liquor would not, in and of itself, prove that fact; but evidence of other sales, that he received large quantities of whisky, that drunken people were frequently seen in his place of business, and loitered about there, would be cogent circumstances in determining that issue. It may be that little weight should be given that circumstance alone, and if it was the only proof, it would he insufficient to prove that issue, yet this would go to its weight and not its admissibility.

While the evidence offered in appellant’s behalf would tend to show that appellant was at home and not at his place of business on the morning Dr. Hudson says he made the sales of liquor to him, yet on a prosecution for pursuing the occupation or business this would not call for a charge on alibi. At any event, no charge on alibi was requested, and under all of our decisions.it has been held that a charge on presumption of innocence, properly worded, is sufficient, in the absence of a requested charge.

Appellant requested the court to charge the jury: “At the request of the defendant I charge you that if you find from the evidence that the testimony of the witness G. W. Hudson has been impeached on a material issue in the case, you will not consider his testimony in the case for any purpose.” This is not the law, and the court did not err in refusing it.

The court charged the jury:

“In order to constitute a violation of this statute, it must appear that the defendant engaged in or pursued the occupation or business of selling intoxicating liquors in Up-shur county, Tex.; and it must be shown that he, in said county and state, did, during the month of September, 1912, make at least two sales of intoxicating liquors to G. W. Hudson.
“If you should find that the defendant did not make at least two sales of intoxicating liquor to G. W. Hudson in the month of September, 1912, or if you have a reasonable doubt thereof, you will acquit.
“If you shall find that the defendant made two sales of intoxicating liquor to G. W. Hudson, but if you find that he, the defendant, during none of the year 1912, engaged in or pursued the business or occupation of. selling intoxicating liquor in Upshur county, Tex., or if you have a reasonable doubt thereof, you will acquit.”

These charges correctly present the law, and they are not subject to the criticism contained in appellant’s motion for a new trial. The state must prove that the person on trial both pursued the occupation and made at least two sales to persons named in the indictment, and these charges do not shift the burden of proof to defendant The court, in affirmatively submitting the case, instructed the jury “they must believe beyond a reasonable doubt” that defendant did both of these things, and it was not necessary to include these words in these paragraphs of the charge. Tfie court also gave the usual and customary charge on presumption of innocence and reasonable doubt “Occupation” was defined in language frequently approved by this court, and there was no error in that paragraph of the charge.

To take the isolated paragraphs, or sentences in a paragraph, and complain of them 'is not treating the court hardly fair. The charge must be considered as a whole, and the court’s charge in this case is a full, fair, and correct presentation as applicable to the evidence adduced.

The evidence supports the verdict, and the judgment is affirmed.


text:
    DUGAT v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.
    Rehearing Denied Nov. 12, 1913.)
    1. Criminal Law (§ 1091) — Bill or Exceptions — Sufficiency.
    A bill of exceptions to the admission of evidence, reciting the questions and answers of respective witnesses, extending through five pages of typewritten matter, and followed by numerous objections, was insufficient to require review on appeal.
    [Ed. Note. — For other cases, see Criminal-Law, Cent. Dig. §§, 2803, 2815, 2816, 2818, 2S19, 2823, 2824, 2828-2833, 2843-, 2931-2933, 2943;. Dec. Dig. § 1091.]
    2. Criminal Law (§ 370) — Evidence— Other Offenses — Forgery.
    In a prosecution for passing a forged' check or draft, evidence of the passing, or attempted passing, by accused of other forged checks or drafts at about the same time is admissible as showing guilty knowledge, etc.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 825-829; Dec. Dig. § 370.]-
    3. Criminal Law (§ 369) — Evidence—Incriminatory Circumstances.
    In a prosecution for passing a forged check or draft, evidence of the officers who arrested accused that at the time of his arrest they found other forged drafts or cheeks on his person and in his baggage, and as to the character of the ink with which such checks were written, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    4. Criminal Law (§ 594) — Continuance-Absent Witnesses.
    Where accused had not been diligent in, procuring the attendance of the witnesses for whose absence he desired a continuance, and it was improbable, in view of the evidence, that such witnesses, if present, would have testified as claimed, or, if they would, that their testimony would not probably have been true, the denial of a continuance was not error.
    [Ed. Note. — For other -cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. § 594.]
    5. Criminal Law (§ 783) — Passing Forged. Dr AFT — INSTRUCTIO NS.
    Where, in a prosecution for passing a forged check or draft, the court properly and fully limited the use of evidence of the finding of two other forged checks in defendant’s possession when arrested, and told the jury that if' they believed from the evidence beyond a reasonable doubt that such other checks were-forgeries, and were found in defendant’s possession, and that he knew them to be forgeries, then they could consider such testimony only to-aid them, if it did, in passing on the identity of defendant, his system and methods, if any, and his intent, if any, as to the passing of the check for which he was on trial, there was no error in omitting to charge on testimony of a witness that defendant stated to him when arrested that he had won the forged checks which were found on his person.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §,§ 1734, 1735, 1872-1876; Dec. Dig. § 783.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Allen Dugat, alias C. Ware, was convicted of knowingly passing as true a forged check or draft, and he appeals.
    Affirmed.
    Scott & Ross, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

      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 of knowingly passing as true a forged check or draft, and his punishment fixed at four years’ confinement in the penitentiary.

The evidence is amply sufficient to sustain the conviction. Appellant’s defense was alibi, and that he was not the person who passed the forged instrument — mistaken identity.

Appellant has several bills of exceptions. Each, in substance, is a recitation of the questions and answers to respective witnesses; the first, in this way, containing about five pages of typewritten matter. Then follow numerous objections to the introduction of this question and answer matter. All these bills, are too general to require this court to pass upon the questions attempted to be raised.

The rules for the preparation of bills of exceptions and what they must show have been established, even before this court was organized, and announced and adhered to so uniformly and so long, it is unnecessary to state or discuss them. Judge White, in his Ann. Code Cr. Proc. §§ 857 to 862, inclusive, and section 1123, has stated most of them and collated some of the decisions, up to the time of his annotations. See, also, James v. State, 53 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and cases continuously down to this date.

However, even if these questions were so raised by appellant’s bills that we could consider them, they would present the question of whether or not, in a case of this character, when the defense is as stated, evidence of the passing, or attempted passing, by appellant of other forged drafts or checks, about the sanie time is admissible. What we said in the case of Kaufman v. State, 159 S. W. 60, is applicable, and we quote therefrom : “The rule is that independent crimes by an accused are ordinarily inadmissible; that an accused cannot be convicted of the crime for which he is on trial by showing that he committed at other times like crimes. But, while this is the rule, there are exceptions to it as well established as the rule itself. In fact such exceptions might be considered, and are also rules as well established as the said rule above mentioned. These exceptions are stated by Mr. Wharton, one of the ablest law writers in this country, in his volume 1, § 31, on Criminal Evidence,, as follows: (1) As part of the res gestee; (2) to prove identity of person or of crime;, (3) to prove scienter or guilty knowledge; (4) to prove intent; (5) to show motive; (6) to prove system; (7) to prove malice; (8) to rebut special defenses; (9) in various particular crimes. In section 35 he says: ‘Evidence of collateral ottenses often becomes relevant where it is necessary to prove scien-ter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge.’ Again, in section 39 he says: ‘When the object is to show system, subsequent as well as prior collateral offenses can be put in evidence, and from such system identity or intent can often be shown. The question is one of induction, and the larger the number of consistent facts the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to-indicate that they are a part of the system. In order to prove purpose and design, evidence of system is relevant; and in order to prove system, collateral and isolated offenses are admissible from which system may be inferred.’ These exceptions or rules are so well established, have been so often applied and held by this court, that we think it is unnecessary to collate them, but see Melton v. State, 63 Tex. Cr. R. 365, 140 S. W. 230, where a few of the eases and authorities aré cited. See, also, Hennessy v. State, 23 Tex. App. 355, 5 S. W. 215; Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep, 791; Pelton v. State, 60 Tex. Cr. R. 412, 132 S. W. 480, Ann. Cas. 1912C, 86; Long v. State, 39 Tex. Cr. R. 545, 47 S. W. 363. It is needless to cite the many other cases on these points.” In addition, we now cite 12 Cyc. 407 to 411; Wright v. State, 56 Tex. Cr. R. 353, 120 S. W. 458; Hardgraves v. State, 61 Tex. Cr. R. 325, 135 S. W. 132; Trimble v. State, 145 S. W. 929; Dittfurth v. State, 46 Tex. Cr. R. 424, 80 S. W. 628; Childress v. State, 48 Tex. Cr. R. 617, 90 S. W. 30; Hanks v. State, 55 Tex. Cr. R. 451, 117 S. W. 150; Roach v. State, 47 Tex. Cr. R. 500, 84 S. W. 586; Walker v. State, 49 Tex. Cr. R. 345, 94 S. W. 230; Carnes v. State, 51 Tex. Cr. R. 437, 103 S. W. 403; Gorman v. State, 52 Tex. Cr. R. 329, 106 S. W. 384. The court correctly admitted the evidence objected to, even if the bills could be considered.

By other like defective bills appellant attempts to show, and contends, that the evidence that the officer who arrested him, at the time of his arrest, found other forged drafts or checks on his person and with his baggage, and as to the character of ink with whicE"''such bank checks were written was inadmissible. Even if we could consider the bills, the evidence was properly admitted. Wright v. State, 56 Tex. Cr. R. 355, 120 S. W. 458; Clark v. State, 28 Tex. Cr. App. 189, 12 S. W. 729, 19 Am. St. Rep. 817; Williams v. State, 27 Tex. App. 466, 11 S. W. 481; McGee v. State, 155 S. W. 246; Serop v. State, 154 S. W. 557; Whorton v. State, 152 S. W. 1082; Windham v. State, 150 S. W. 614.

This case was called for trial and went to trial on October 14, 1912. Presumably, as the bill does not show otherwise, all of the state’s witnesses who " afterwards testified were then present for that purpose, and appellant knew it. On October 14th one of the state’s witnesses testified, in substance, that appellant passed on him a forged draft or check in El Paso, Tex. The indictment in this case charged that the offense was committed on or about July 1, 1912. The proof shows that the offense was committed on July 3, 1912, in Waco, Tex. When this testimony was given, appellant, on the next day, made a motion to postpone or continue the case to enable him to get some witnesses from San Antonio, Tex., whom he alleged would testify that he was in San Antonio on July 5, 1912. Process at that time was issued for these witnesses, but was returned, showing that no such witnesses were in San Antonio or Bexar county. The amended motion for new trial was not filed, nor acted upon until some weeks after the trial. No affidavits of these witnesses, or either of them, were filed showing that they would testify to what appellant claimed they would. The record further shows that when appellant was arrested there was found on his person, or with his baggage, a receipt executed to him at El Paso on July 5, 1912. He must have known that such proof would be made against him on the trial of this case. Under the circumstances no diligence whatever is shown by him to procure the attendance of said’ witnesses, and it is improbable that such witnesses would have testified as he claimed, even if there were such witnesses, or that their testimony would probably have been true. So that the court did not err in overruling his said application.

The appellant’s objection to the testimony of Boyd as to the handwriting of the various forged checks or drafts was not well taken. Speiden v. State, 3 Tex. App. 158, 30 Am. Rep. 126.

While we think the court erred in admitting the hotel register with Mr. Neff’s name signed therein, it was not such error as should or would cause the reversal of this case. We think such an argument and illustration in argument could have been made by the county attorney before the jury without the introduction in evidence of the register with such signature. We think the ease of Thomas v. State, 18 Tex. App. 213, cited and relied upon, is inapplicable.

Even if the question of the failure of the court to charge the jury relative to the testimony of Bell that appellant stated to him when arrested that he had won certain forged checks, which were then found upon his person, was raised in such a way that we could consider it, the court did not err in not so charging thereon, other than what he did charge. Neither of these checks was the one with which he is charged in this case with passing. The court in his charge, to which there is no complaint, properly and fully limited the use of the testimony of the finding of the said two forged, checks in possession of appellant when arrested, and, among other things, told the jury that “ii you further believe from the evidence beyond a reasonable doubt that two other checks or drafts in evidence were forgeries, and were found in the possession of the defendant when he was arrested in Ft. Worth, Tex., and that the defendant knew said drafts or checks were forgeries, then you are charged that if you consider said testimony at all, you can only do so for the purposes for which it was admitted, and it is so limited.” Then tells them that it could be used by them to aid, if it did, the jury to pass upon the identity of the defendant and his system and methods, if any, and intent, if any, with which he acted with respect to the passing of the draft or cheek for which he was on trial; that he could, be convicted in this case only for passing, if he did, the forged instrument described in the indictment herein and on no other.

There is nothing else raised requiring-discussion. The judgment will be affirmed.


author: DAVIDSON, J.

text:
    HARWELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct 22, 1913.)
    Criminal Law (§ 719) — Offenses — Argument of Counsel.
    In a prosecution for violating the local option law, where the state’s evidence showed only the single sale for which accused was being prosecuted, statements in the county attorney’s argument that accused was making his living by violating the local option law, and that the jury should stand by the county attorney in its enforcement, are highly improper.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719.]
    Appeal from Johnson County Court; J. B. Haynes, Judge.

      Jim Harwell was convicted of violating tlie local option law, and appeals.
    Reversed and remanded.
    Goldsmith & Warren, of Cleburne, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted for violating the local option law; his punishment being assessed at a fine of $75 and 30 days’ imprisonment in the county jail.

The main witness for the state, Harry Wilson, a negro, testified that he met appellant on a vacant lot back of a livery stable, and bought a half pint of whisky from him, for which he paid him 50 cents. The witness Steakley testified that he saw the negro and defendant together, and saw the defendant hand Wilson something white. Steakley took the negro to the county attorney’s office, where a half pint of whisky was taken from him. Appellant testified that he met the negro on the vacant lot mentioned; that the negro asked him for a match, which he gave him; that he had no other transaction with him, and did not sell him any whisky. Several witnesses impeached the witness Wilson by testifying his reputation for truth and veracity was bad, and that he was unworthy of belief. Wilson himself testified that he had been convicted for bootlegging, and had served on the county roads, and had just a short time prior to this transaction returned from such convict service. This is in substance and in fact practically the ease.

The county attorney, in his closing argument to the jury, used the following language : “The defendant, Jim Harwell, according to the evidence in this ease, makes his living by violating the local option law. This is your law, and you must stand by the county attorney in its enforcement.” All sorts of exceptions were reserved to this language and the manner of argument, and a special charge -requested, which the county judge refused. This charge was: “There is no evidence in this record showing that the defendant made his living by violating the laws, and the remarks of the county attorney to the effect that defendant, Jim Har-well, makes his living by violating the local option law, and such remarks are withdrawn from you. The further remarks of the county attorney to the effect that this is your law, and you must stand by the county attorney, is out of the record in this case, and said remarks were improper and withdrawn from you.” This charge was refused. These matters are set forth in bill of exceptions. The court refused to give the charge, and refused in any way to caution the jury as to this character of argument. The statement of facts does not show that the appellant had made his living by violating the local option law, and so far as the transcript is concerned the only evidence against appellant in regard to violating the local option law is stated in the previous part of this opinion. If there was any other sale by the appellant, or that he was pursuing the business of violating the local option law, it is not in the record. This would not have been legitimate evidence under the case as here made, and it is a fact stated by the county attorney in his argument which was not justified by the facts, and which was not in fact justified before the jury. Appellant was given a punishment considerably in excess of the minimum: it being a $75 fine and 30 days in jail. The minimum punishment would be 20 days in jail and a $25 fine. Such argument as this ought not to be permitted.

The judgment is reversed, and the cause is remanded.


text:
    PICKLE v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct 22, 1913.)
    Intoxicating Liquors (§ 236) — Offenses— Evidence— Sufficiency.
    In a prosecution for selling intoxicants in prohibition territory, evidence held sufficient to support the conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Appeal from Jasper County Court; Garland Smith, Judge.
    J. W. Pickle was convicted of the unlawful sale of intoxicating liquors, and he appeals.
    Affirmed.
    J. J. Lee, of Jasper, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Under the misdemeanor statute prohibiting the sale of intoxicating liquors in prohibition territory, this conviction was had, and the lowest punishment prescribed by law assessed.

There is but one question in the ease. Appellant contends that the evidence is insufficient to sustain the verdict. The proper orders of the commissioners’ court were introduced showing that prohibition was in force before the felony statute was enacted, and at the time the alleged sale occurred. Appellant did not testify. The state proved substantially by two witnesses that Single-tary, the party to whom the alleged sale was made, and a companion, were in the town of Jasper on Sunday, June 2, 1912, and wanted some whisky, and that they together went to appellant’s house, where said Singletary called appellant out and told him he wanted some whisky. Appellant said he had none at the house, but he gave him some keys to a market house. Singletary and his ' companion, with the keys, then went to this market house, and Singletary got out and went in and got four or five pints of whisky. He carried the keys back to appellant, and told appellant that he would see him next week, or fix it with him next week. In our opinion this evidence was sufficient to sustain the verdict; the jury and the lower court both so finding and holding.

The judgment will be affirmed.