text:
    ADLER v. STATE.
    (No. 4905.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.)
    1. Homicide <§=>1C3(2) — Evidence—Character of Deceased.
    In prosecution for murder, where accused alleged deceased had insulted accused’s wife, conceding specific acts of unchastity or bad conduct on deceased’-s part could have been shown, offer to show that accused had been informed that deceased had caused a man and wife to^ separate was too indefinite.
    2. Homicide <§=>300(3) — Instructions—Self-Defense.
    Instruction to view issue of self-defense from defendant’s viewpoint at the time, and that, if it reasonably appeared to defendant that deceased was drawing a weapon, the shooting was justified, and that, if there was reasonable doubt as to defendant’s belief at the time, he should be acquitted, sufficiently presented self-defense, in spite of previous instruction which was objectionable as leaving appearances at time of shooting to jury’s and not defendant’s viewpoint.
    3. Criminal Law <§=>1091(7) — Appeal—Bill of Exceptions.
    Bill reciting merely that juror had admitted saying before he was taken as juror that accused “had killed a good boy in another county and sworn lies to get out of it” presents no error, since it fails to show that such fact was not known to accused before the juror was accepted.
    4. Homicide <§=>309(3) —Homicide—Instructions — Manslaughter.
    Where accused and deceased met in the forenoon and had a difficulty about deceased’s having sent accused’s wife an insulting letter, mere fact that accused was not then prepared to kill deceased, but did kill him on the next meeting, did not justify charge on manslaughter..

      Appeal from District Court, Houston County; John S/Prince, Judge.
    Charley Adler was convicted of murder, and he appeals.
    Affirmed.
    Adams & Young, of Crockett, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder and allotted 99 years confinement in the penitentiary.

Bill of exceptions No. 1 recites that, after the general reputation of deceased with reference to Ms conduct with women was shown to be bad, appellant offered evidence to the effect that he knew by information that Wellborn had caused a separation between a man and his wife two years ago; and offered to prove he had been informed of such fact, and also offered to prove that it was a fact that deceased had caused such separation, and that appellant had been informed of that fact long prior to the homicide. This is the full bill of exceptions. The object and purpose of this is not stated in the bill, but, if it was intended to show that deceased had caused this separation between some man and his wife, it is too indefinite. The general allegation that deceased had been instrumental in separating a man and his wife, in our judgment, is too indefinite to admit such proof, even conceding that specific acts of unchastity or of bad conduct in this connection could be shown. By whom he offered to prove it, or who the parties were referred to, is not given; in other words, the bill is too indefinite to require consideration, even if it be conceded tha't such specific acts could be shown.

Another bill recites that appellant, before the charge was read to the jury, excepted to that portion of it which charges self-defense, because it shifted the burden of proof from the state to the defendant, did not give the defendant the benefit of the reasonable doubt in his defenses, but required him to prove such defense beyond a reasonable doubt. In a general way the court’s charge in this connection was subject to criticism in that it instructed the jury, if they should believe that at the time of the killing deceased had made a demonstration as if to draw a weapon, etc., appellant would be entitled to a verdict of not guilty. While the bill is rather indefinite, yet if it was intended to criticize this part of the charge because it left it to the jury to determine instead of the defendant from his viewpoint, then the charge was not correct, but that portion of the charge is immediately followed by this:

“In passing on defendant’s right of self-defense, the jury must view the facts from defendant’s standpoint at the time, and from no other standpoint.”

Appellant asked a special charge which was given by the court, to this effect:

“If at the time of the shooting by defendant ■of Wellborn it reasonably appeared to the defendant, viewed from his standpoint at the time, | that Wellborn was making an effort or movement to draw a weapon, and defendant believed that vVellborn intended to attack him, and, so believing, shot Wellborn, then defendant was justified, and you will acquit him; or if you have a reasonable doubt as to defendant’s belief at the time of the shooting, you will solve such doubt in defendant’s favor and acquit him.”

These charges, we think, fully submitted the issue of self-defense from the viewpoint of defendant as contradistinguished from the viewpoint of the jury.

There is another bill which recites:

“By Witness Deaton: I never made any remark before I was taken as a juror that Adler, this defendant, had killed a good boy in Trinity county, and sworn lies to get out of it.
“By Earl Adams, Jr.: I heard Mr. Deaton say some time before he was taken as a juror that Adler had killed a good boy in Trinity county, and, as I remember, he stated that Adler had sworn lies to get out of it. Then Deaton said he did say Adler had killed a good boy in Trinity county.
“And the court then overruled defendant’s motion for new trial, and defendant excepted, and now tenders his bill for approval.”

This is signed by the court without qualification. This bill is too indefinite to show the facts or exclude the idea that appellant was fully aware of all these things before accepting the juror, even if Deaton had used such expression. It is unnecessary to go into the motion for new trial with reference to any of these questions. There was a sharp and critical contest, and the court was justified in viewing this matter as he did in his different rulings.

There is a criticism of the court’s charge with reference to manslaughter. It comes too late, but, if it had been timely presented, it shows no error. The facts show in this connection that appellant and Well-born had had a difficulty in the morning about alleged misconduct by Wellborn sending appellant’s wife an insulting letter. They met and had a difficulty about it. Date that evening they met again, and the killing occurred. It is contended that the court should have charged that this second meeting would justify a charge on manslaughter. Such is not the statute, nor the law. This was not the first meeting. The previous meeting might be taken into consideration, but it would not afford an adequate cause because the first meeting had occurred and a difficulty had ensued. The parties separated; appellant’s contention being that, as he was not in position to kill on the first meeting, therefore he had a right to kill him on the second meeting. This does not seem to be in accord with the statutes or decisions. This matter underwent investigation in Pitts v. State, 29 Tex. App. 374, 16 S. W. 189. It was there field contrary to appellant’s contention. This was followed in Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158, Ricks v. State, 48 Tex. Cr. R. 268, 87 S. W. 1036, and Young v. State, 69 S. W. 155.

Finding no reversible error in the record, the judgment is affirmed.
      <g=sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    O’BRIEN v. STATE.
    (No. 4895.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Criminal Law <@=>507(1) — Evidence — “Accomplice’ ’ — Corroboration.
    Within the rule as to corroboration, one living in a house, by procurance of the proprietress, for immoral purposes, is an “accomplice” of the proprietress charged with keeping a disorderly house.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    Appeal from Wichita County Court; Harvey Harris, Judge.
    Ethel O’Brien was convicted, and appeals.
    Reversed and remanded.
    T. F. Hunter, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of keeping a disorderly house. The state’s case depends upon the evidence of thei witness Maude Davis and evidence showing the general reputation of the house. In substance, she stated she was at defendant’s house, and had been for two days and three nights when appellant was arrested; that she had an understanding with appellant when she went there that she was to stay and receive men for money and divide revenues, and at that time appellant had two other women and five men boarders. At the time she went to this house she says:

“I had an understanding with- her [appellant] and she with me that I was to prostitute myself there in that house; that I was to receive men and to charge them for their relations, and was to divide the money with Mrs. O’Brien.”

She collected $6 from three men while there, and on the third morning she had trouble with appellant, who asked her for half of the money she had received, and she refused to give it; that appellant had agreed to give her $2.50 a week for work she did around the house, and when appellant demanded this a fight started. She testified to other facts showing there were other men and women there, three girls besides herself. Further details of her testimony are deemed unnecessary. All of her testimony was emphatically denied by such parties as she named and could be used on the trial.

A question suggested for reversal is that the court failed to charge on accomplice testimony, and refused to give special requested instructions submitting that question in the charge. Appellant complied strictly with the law in objecting to the court’s charge, and in presenting’ his special requested instructions. We are of opinion the court was in error. Such charge ought to have been given. The facts called for it, and appellant brought herself strictly within the law with reference to presenting this question. Dooms v. State, 77 Tex. Cr. R. 206, 178 S. W. 334; Denman v. State, 77 Tex. Cr. R. 256, 178 S. W. 332; Williams v. State, 53 Tex. Cr. R. 399, 110 S. W. 63; Tracey v. State, 42 Tex. Cr. R. 495, 61 S. W. 127; Stone v. State, 22 Tex. App. 185, 2 S. W. 585; Bush v. State, 68 Tex. Cr. R. 290, 151 S. W. 554.

Appellant also suggests that the evidence is not sufficient, especially with reference to showing that appellant was only the lessee or tenant of the house. With the exception in the most inferential way, the evidence is silent as to her relations to the house. There is evidence that she kept a boarding house and had boarders. Outside of this there is no testimony that shows she was the lessee or tenant. There was no evidence offered to show her relation to it outside of the facts stated. Her relations to that house should be shown. If she was the lessee or tenant, the fact, it occurs to us, might be easily obtained.

The judgment is reversed, and the cause remanded.


text:
    COVINGTON v. STATE.
    (No. 4490.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Criminal Daw <@=>595(1) — Assault to Murder — Continuance—Evidence.
    Where defendant and the assaulted person were friendly before a shooting, and immediately after drove home together in a friendly manner, it was error to refuse a continuance for purpose of getting testimony of the supposed assaulted person to the effect that he did not think defendant was shooting at him and testimony of what was said between the two immediately after the shooting.
    2. Criminal Law <@=>363 — Res Gestíe — Conversation after Shooting.
    In prosecution for assault to murder, where defendant denied he was shooting at the alleged assaulted party, what was said immediately after the shooting between the two was admissible as a part of the res gestae.
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Will Covington was convicted of assault to' murder, and he appeals.
    Reversed and remanded.
    Ratliff & Spencer and F. J. Ford, all of Decatur, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder and allotted two years’ confinement in the penitentiary.

The state’s theory was that in a certain storehouse in the town of Decatur appellant shot at Harry Beard with intent to kill him. The defendant’s theory was that he did not shoot at him, and that, while his pistol fired twice, the first shot was accidental, and the-other shot was fired while he was holding the pistol in the air. There is a good deal of testimony with reference to the condition of things in the store. Photographs were taken and introduced showing where a bullet struck supposed to have been shot at Beard. Appellant denied shooting at Beard, and testified to the fact that he did not; that they were friends; that he had nothing against him, and there was no purpose of shooting Beard or injuring him. There was also an issue, if he did shoot at Beard, or was attempting to shoot at him, whether it was an assault to murder or aggravated assault. Both issues were submitted to the jury. There was another matter raised by the evidence, it occurs to the writer, which is not mentioned in the record, that is, the display of a deadly weapon with intent to alarm. That, however, is not suggested by appellant, and no charge was asked or given in regard to the matter, and the question seems not to have been discussed in the trial of the case.

Appellant sought a continuance for the testimony of Harry and Ted Beard. To avoid this the state admitted that, if these witnesses were present, they would testify as set out in the motion, except as to certain portions of the proposed testimony marked with parentheses, and it is stated that the state’s admission did not apply to these clauses set out in the application for continuance. Such matters as the state agreed might be used were read, to the effect that, if Harry Beard was present, he would testify he was in the Cash Grocery Store at the lime and place mentioned; that they had ■ been together practically the whole evening' on the day of the difficulty ;• that appellant was subsequently arrested, and made bond within about one-half hour after the shooting, and immediately after making bond defendant and Harry and Ted Beard left town riding in the same buggy, which buggy belonged to Harry and Ted Beard, and returned to their respective homes east of Decatur, and at that time there was no ill feeling between Harry Beard and appellant; that Ted Beard would testify that defendant gave bond on the day the assault is alleged to have - been committed within an hour thereafter, and that he, in company with Harry Beard and defendant, in the same buggy belonging to the Beards, left town and went to their homes east of Decatur about four miles, and that defendant and Harry Beard were friendly all the time, and there was nothing in their conduct or conversation showing any ill feeling between them; that both of the Beards would testify that a short while before the assault appellant was injured in an automobile wreck, and defendant was on crutches at the time the assault is alleged to have occurred, and that during the injury to defendant Harry Beard attended defendant, sat up with him at night, and- assisted in looking after his affairs; that Harry Beard would also testify further that immediately after the shots were fired he went to Sellar’s store and met Ted Beard, and told Ted Beard to go tell defendant to come on and go home as soon as he made bond; that he waited at said store until defendant made bond and they returned home with him; and that Ted Beard will testify that immediately after the shots were fired at the grocery store he met Harry Beard, who sent him to defendant to inform him as soon as he made bond to come and go home, and thereafter defendant and said witnesses returned home together.

The above testimony was admitted as being true. Before taking up the excerpts from the motion which were not permitted to go to the jury, it may be stated that the court did not in his charge instruct the jury that this admitted testimony would be taken as true. Appellant requested an instruction to that effect, which the court did not give. It is claimed by the court that verbally he did instruct the jury to that effect at the time.

Excerpts of testimony in the motion which were not permitted to go to the jury are thus stated:

“That at said time (at the time of the shooting) there was no trouble existing between him, the said Harry Beard, and the defendant, and that there was no ill feeling- between them, and that nothing had occurred which would cause any ill feeling or malice between them, and that said witness Beard knew of no reason why defendant should make an assault on him; that prior thereto there had been no quarrel or trouble of any kind between them; that there existed at the time the assault is charged nor before no grudge or difference between defendant and said witness Beard, and said Harry Beard will further testify that when the shots were' fired by defendant constituting the alleged assault that, so far as he knows, they were not fired at him, and that nothing existed between defendant and the witness to cause defendant to make an assault upon him; that Beard will testify that he and defendant are good friends, have always been so, and no malice now exists or has heretofore existed between them; that in said conversations the defendant at all times assured the witness Harry Beard that he was not shooting at him, and that said witness Harry Beard assured defendant that he knew that he (defendant) had no malice against Mm and was not shooting at him (said Beard).” (This last extract referred to the shooting.)
“That the said Ted Beard will further testify that he knows of his own knowledge that defendant and said Harry Beard were good friends; that he had been in company with them immediately before the assault is charged; and that there was no ill feeling or bad feeling existing between them, and thereafter nothing occurred to separate the friendship between defendant and said Harry Beard; said witness Harry Beard will testify that after the shots were fired in the Cash Grocery Store upon which this assault is predicated, when he first met defendant thereafter, which was as soon as defendant executed a bond to the officers, the first thing defendant said was, ‘That was a lie about me shooting at you,’ to which the witness Beard replied, T know that,’ and immediately without further "conversation they went to the buggy, got in same, and drove home together; that said Harry Beard will testify, if present, that immediately after the shots were fired, while he was still in the Cash Grocery Store, and while defendant was in there before an arrest was made of defendant, and while the defendant was standing where the shots were fired, that he, the said Harry Beard, walked up to defendant and asked him, ‘Bill, what was that shooting about,’ and that said witness Harry Beard will testify at that time he did not think or believe and does not no-sv think or believe that said defendant was shooting at him, the said Harry Beard; that all of said testimony is material to defendant’s defense,” etc.

These excerpts are set out in the continuance together with the testimony admitted as being the testimony of the two Beards. We are of opinion this testimony was material, and was germane and proper to have gone to the jury as to the existing feeling between the parties at the time. They had been friends, and no difficulty had occurred and nothing to show, so far as this application is concerned and the statements of the parties, thát there was any ill feeling between them at the time the shots were fired. If Harry Beard was in the store at the time the shots were fired, and the state’s theory was that one of them was fired at him, he would certainly have known whether defendant was shooting at him, and ought to be able to tell some reason why he was so shooting. And certainly it was legitimate testimony for the defendant to show, immediately after the shooting and while still in the store where it occurred, what occurred between them with reference to the shooting, and the conversations that occurred between them. It was clearly res gestee, as it was immediately after the shooting and almost in connection with it. The court says this testimony, if testified as stated, would not probably be true. With the testimony admitted by the state to be true, which went before the jury, we are of opinion the rejected testimony was material. It bore upon the same question, and was explanatory of it, and especially as to their feeling toward each other. Appellant’s theory was that he did not shoot at him, that he had no reason for shooting at him, and no cause for it, and that he did not in fact shoot at him. Taking these matters together, the fact they were friendly up to the time of the shooting and immediately after the shooting, within a few minutes, which seems not to be denied, and that appellant got in the buggy with the two Beards, one of them who was the alleged assaulted party, and drove out to their homes in the country east of town, we are of opinion that the excluded testimony, especially in the light of the admitted testimony, was material, germane, and explanatory, and not only so, but it was evidence of the parties themselves to the supposed difficulty, showing 'that there was no trouble between them, and that Beard himself did not understand he was being shot at.

There are quite a number of bills of exception which are hardly sufficiently stated to require reviewing. Upon another trial these matters may not occur. If they do, the bills of exception will be more explicit. We are of opinion appellant was entitled to his continuance. These were state’s witnesses, and if Harry Beard was shot at, or. supposed to be friendly to the state, their absence was not imputed to appellant, nor sought to be.

The judgment will be reversed, and the cause remanded.
      £s»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    CORDILL v. STATE.
    (No. 4876.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.)
    Adultery <⅜^>14 — Evidence — -S ueeicienoy— “Habitual.”
    Evidence of the paramour and accomplice as to nine specific acts of sexual intercourse with her between the 16th of August and the 25th day of December at intervals of from 1 to 2 weeks, and in one instance an interval of 2½ or 3 months, only three of which were corroborated, without proof of attending circumstances indicating that the intercourse was habitual, held insufficient to sustain a conviction of adultery by habitual carnal intercourse without living together; “habitual”
    Appeal from Howard County Court; S. A. Penix, Judge.
    J. S. Cordill was convicted of adultery by habitual carnal intercourse lyithout living together, and he appeals.
    Reversed.
    H. R. Debenport and Jno. B. Littler, both of Big Springs, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the 'State.
   MORROW, J.

Appellant was convicted of adultery by habitual carnal intercourse without living together.

The paramour testified to nine specific acts of sexual intercourse occurring between the 15th of August and the 25th day of December, 1916, at intervals varying from 1 to 2 weeks, except that in one instance there was an interval of some 2½ or 3 months. The testimony of the paramour is treated as accomplice testimony, requiring corroboration. Article 801, C. C. P.; Jackson v. State, 51 Tex. Cr. R. 220, 101 S. W. 807; Wallace v. State, 63 Tex. Cr. R. 611, 141 S. W. 95. To supply this the state used the testimony of the sister of the paramour, who testified to her presence on three occasions when carnal intercourse took place. Mr. Branch, in section 1058 of his Annotated P. C., collates the Texas cases in the following note:

“Proof of an occasional act of carnal intercourse is not sufficient to show ‘habitual carnal intercourse.’ Cohen v. State, 11 Tex. Cr. App. 337 (circumstances). Hilton v. State, 41 Tex. Cr. R. 193, 53 S. W. 113 (once a month for three months). Collins v. State, 46 Tex. Cr. R. 550, 80 S. W. 372 (five times a month). Boswell v. State, 48 Tex. Cr. R. 48, 85 S. W. 1077 [122 Am. St. Rep. 731] (six times during summer and fall). Taylor v. State, 48 Tex. Cr. R. 216, 87 S. W. 148 (four times a week apart). Curlee v. State, 98 S. W. 840 (four times). Quinn v. State, 51 Tex. Cr. R. 155, 101 S. W. 248 (two acts and familiarity). Hutchinson v. State, 108 S. W. 378 (three times). Wallace v. State, 63 Tex. Cr. R. 611, 141 S. W. 95 (six times two weeks apart).”

In Hilton v. State, 41 Tex. Cr. R. 193, 53 S. W. 113, the definition of “habitual” is quoted as follows:

“Formed or acquired by or resulting from habit, frequent use, or custom; formed by repeated impressions.” >

The court says:

“The statute requires, whero the parties do not live together, that the proof must show habitual intercourse, and not merely occasional acts.”

A similar interpretation of the word “habitual” as used in the statutes has been made in various cases cited in Words and Phrases, vol. 2 (2d Series) p. 816. From the decisions of this court we understand that proof of occasional acts of carnal intercourse does not alone prove habitual carnal intercourse; that is to say, where the state relies alone upon proof of specific instances of a limited number of acts of this character, and where the evidence excludes the idea that there were other acts, and where there are no attending circumstances upon which to found the inference that the intercourse was habitual, the proof is not sufficient. It is to be remembered, however, that in this class of cases it is generally necessary to depend, at least in part, upon circumstantial evidence to establish the offense. 25 Cyc. 215. And occasional acts of illicit intercourse are potent circumstances when accompanied by other proof tending to show that the relation was habitual, and when so attended and lead to a conviction, it would be sustained, although the number of actual acts proved is very limited, or even proved alone by circumstances. In this case, as we understand the facts, there is no contention there were other acts, or evidence of other acts, or other relationship than that which is testified to by the accomplice and above detailed, corroborated to the extent and in the manner stated, and it would seem that this proof would, under the decisions of this court, classify the transactions as occasional rather than habitual, and render it proper to order a reversal of the judgment of the court below, which is accordingly done.
      tgrn>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    GREEN v. STATE.
    (No. 4864.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.)
    1. Criminal Law <§=>730(11) — Improper Argument — Objections toi Wife's Testimony.
    Argument of the prosecution in adultery trial referring to accused’s refusal to allow his wife to testify was reversible error, although the court charged the jury not to consider it.
    2. Lewdness <§=>'9 — Living in Adultery — Evidence — Admissibility.
    In adultery prosecution, where state’s witnesses had testified to seeing accused with the woman in a very secreted place near a certain mail box, evidence that the woman frequently went to the mail box and remained there from 20 minutes to 2 hours was admissible.
    Appeal from Coryell County Court; H. E. Bell, Judge.
    Grundy Green was convicted of adultery and appeals.
    Reversed and remanded.
    S. P. Sadler, of Gatesville, for appellant. B. B. Hendricks, Asst. Atty. Gen., for the State,
   PRENDERGAST, J.

Appellant appeals from a conviction of adultery. In view of the disposition made of this case, the evidence will not be stated to any extent nor commented upon. Appellant earnestly contends that the evidence was wholly insufficient to sustain the conviction. Under the circumstances it is deemed unnecessary to decide this question.

The indictment charged that appellant, a man, on or about November 1, 1916, and continuously since then to July 19, 1917, unlawfully lived together and had carnal intercourse with Lillie Barnhard, a woman, while then and there being lawfully married to-another person, Mrs. Lula Green, who was then and there living.

Appellant was married to his said wife, Lula, years before, and they lived together as man and wife until about February 1, 1917. Up to that time they had five children, the oldest 11 years and the youngest about 2 years old. Soon after they separated his wife had another child by him.

Said Lillie Barnhard was a young woman about 20 years old. For several years past she had been living with first one and another in the community where the Greens lived as one of the family with whom she lived, doing her part of the work, for which she got no pay except her board and clothing. In 1916, appellant’s wife’s health not being so good, they concluded to get, and did get, Miss Barnhard to come and live with them as she had been then with other families. It seems by January, 1917, Mrs. Green became suspicious of improper relations between appellant and Miss Barnhard. This being communicated to Miss Barnhard, she left the Green’s and made arrangements with an old lady and gentleman, Mr. Leonard and wife, about two miles distant, to live with them in the same way that she had lived with others. Soon after this, about February 12th, Green and his wife separated. She went to her father’s in Comanche county, and he remained, it seems, where they had been living. She took with her their eldest girl, 11 years-old, and the little boy, several years younger. Appellant himself kept said two little girls, one 10 and the other 5 years of age. Soon after the separation he began negotiations with Miss Barnhard to get her to come back to his house, do the work, attend to his children, and live there with them, which she did.

It seems the house they lived in consisted of two rooms with a cage or sleeping porch added to the back one. It was claimed that Miss Barnhard slept in the front room with the youngest little girl, and appellant, when it was not too cold, slept in the cage with his other little girl; that when it got too cold for this he would move his bed into the room adjoining the other, and he and his child slept there. Miss Barnhard moved to appellant’s some time in March, 1917, and has eontinuously lived there with him and his 'two said children since then. In July, 1917, the grand jury indicted him as stated.

There are a great number of bills of exceptions. It will be unnecessary to pass upon each of them. The most material ones will be passed upon.

Afipellant has several bills on the same subject. These show that the state had sworn and placed on the stand appellant’s wife, who testified that she was his wife, but was then living in Oomanehe county with her father; that she had lived with her husband at a certain place in Coryell county; that they separated about February 12th; that she took with her when they separated, and thereafter kept, two of their children; and that appellant himself kept the other three. She testified to the ages and names of their several children, and that after they had separated she had borne another child by appellant. Up to this time appellant made no objection to his wife being sworn and testifying what she did. Thereupon the county attorney stated to the court in the hearing and before the jury that the state could not use her as a witness if the appellant objected, and he tendered her to the defendant as a witness for both sides, and that, if he desired to object to any further questions to her of the material facts because she was not a competent witness, the state did not insist on asking her further questions. Thereupon the appellant objected to the action of the court in permitting the state to use her as a witness so far as it had, and excepted to the said statement of the county attorney because he knew that she was not a competent witness against him, and it was improper to use or offer her as a witness under the circumstances, and that the action of the county attorney under the sanction of the court so far was highly prejudicial and harmful to him. During the argument of the case before the jury an attorney privately prosecuting referred to the testimony of his wife and to the fact that she was tendered as a witness, and that appellant would not let her testify; that she had been in attendance on the court all day, and he dared not put her on the stand as a witness. Other statements in argument by this attorney in this connection were also objected to. The county attorney in his closing argument again referred to putting defendant’s wife on the stand as a witness, and stated that he would not comment thereon, but said that all he was going to say was that she was here, and the defendant could have used her if he had wanted to. All this was objected to. The court by charge withdrew said matters, and told the jury not to consider them.

Under the recent rulings of this court, this shows reversible error. Eads v. State, 74 Tex. Cr. R. 628, 170 S. W. 146, and cases there cited. (This writer did not, and does not, concur in the extent of such holding.)

Appellant has some other bills to the language used in argument by the attorneys for the state which is claimed to be inflammatory and hurtful. Of course, attorneys should be careful and stay within the record, discuss the testimony, the legitimate inferences to be drawn therefrom, and such comment on the witnesses as their testimony, and the circumstances justify, but should not use otherwise inflammatory language.

Some complaint was made to the court’s charge on circumstantial evidence and of the refusal of the court to give that on the subject asked by appellant. We have examined the court’s charge, and that of appellant refused. There is no substantial difference pointed out between the two, and we think that of the court was sufficient. It would have been proper to have given such charge, in the standard form of such charges.

There was no error in the court admitting in evidence the letter of appellant to his daughter Ruby, who was with appellant’s wife, dated April 2, 1917, at least that part relating to the criticisms of him. It might be well contended that the balance of this letter was in appellant’s favor, and not against him, not harmful to him.

Two witnesses swore that while Lillie Barnhard lived at Mr. Leonard’s, shortly before she removed from there hack to appellant’s they saw appellant with her in a very secreted place, which was shown to be about 100 yards from Mr. Leonard’s mail box. The court therefore did not err in permitting Mr. Leonard and Walter Olopp to swear that Lillie Barnhard frequently went to Mr. Leonard’s mail box and remained about it from 20 to 30 minutes to as much as 2 hours. This testimony was admissible. Roller v. State, 43 Tex. Cr. R. 435, 66 S. W. 777.

For the error above pointed out, the judgment is reversed, and the cause remanded.
      <£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DENTON v. STATE.
    (No. 4909.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1918.)
    1. Physicians and Surgeons <§=>6(10)) — Certification and Registration — Burden of Proof.
    Under Pen. Code 1911, art. 750, making it unlawful to practice medicine without registering authority with district clerk in county of residence and providing that absence of such record is prima facie evidence of want of such certificate, the state must prove such absence from the record.
    2. Physicians and Surgeons <⅞=>6(11) — Evidence — Occupation—Question of Fact.
    Appellant’s claim that the evidence shows he was engaged as a masseur and exempted under Pen. Code 1911, art. 754, from the provisions of article 750 requiring registration for practice of medicine, held not sustained as a matter of law; his occupation being a question of fact for the jury (citing- Words and Phrases, vol. 3, Second Series, p. 113).
    Appeal from Floyd County Court; E. P. Thompson, Judge.
    W. B. Denton was convicted of practicing medicine in violation of law, and he appeals.
    Reversed and remanded.
    A. P. McKinnon and Kenneth Bain, both of Floydada, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for practicing medicine in violation of article 750, P. C., which makes it unlawful for any one to practice medicine “who has not registered in the district clerk’s office of the county in which he resides, his authority for so practicing, * * * verified by oath.” The statute also contains a statement that the clerk shall indorse upon the certificate the fact that the oath has been made and recorded, and concludes as follows:

“The holder of the certificate must have the the same recorded upon each change of residence to another county, and the absence of such record shall be prima facie evidence of the want of possession of such certificate.”

There was no evidence introduced to the effect that appellant’s authority had not been registered as required by the statute. It is not unlawful to practice medicine, but it. is unlawful to do so without compliance with the statute. The offense is the practice of medicine without compliance with the statute, and the burden is upon the state to prove the offense. There will be found decisions of other states holding, under certain circumstances, the burden of making proof of authority to practice medicine is not upon the state because a fact within the peculiar knowledge of the accused. 30 Cyc. 1567. Such is not the case here, as the statute itself prescribes a rule of evidence making the absence of the record prima facie evidence of the want of such certificate, and requiring that the certificate be recorded in the county in which the accused is residing at the time renders it easy for the state to make the proof of records of the particular county. The failure to make the proof in this instance characterizes the evidence as insufficient.

The appellant’s suggestion that the evidence shows that the occupation in which he was engaged was that of a masseur and exempted by article 754, P. C., from the provisions of article 750, P. C., cannot, we think, be sustained as a matter of law. The character of his occupation was a question of fact. See Words and Phrases, vol. 3, Second Series, p. 113; Newman v. State, 72 Tex. Cr. R. 367, 163 S. W. 427; Dankworth v. State, 61 Tex. Cr. R. 157, 136 S. W. 788.

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


text:
    McGREGOR v. STATE.
    (No. 4873.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Indictment and Information <§=^137(3)— Motion to Set Aside — Presence of Unauthorized Persons — “Deliberating.”
    As used in Code Cr. Proc. 1911, -art. 570, providing that motion to set asido indictment may be made on the ground that some person not authorized by law was present when the grand jury were deliberating upon the accusation, “deliberating” means weighing with view to decision, mutual discussion and examination for and against.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Deliberate ; First Series, Deliberating- Upon The Accusation.]
    2. Grand Jury <⅞=»39 — Presence of Unauthorized Persons — “Deliberating.”
    In view of Code Cr. Proc. 1911, arts. 426, 427, 428, stating, when the state’s attorney may be before the grand jury, and article 570, authorizing motion to set aside indictment if some person not authorized by law was present when the jury were deliberating- upon the accusation, indictment found after state’s and district attorney, sheriff, and chief of police wore before the grand jury, discussing whether to proceed by injunction or indictment, was unlawful.
    Appeal from Tom Green County Court; Chas. T. Paul, Judge.
    Bobbie McGregor was convicted of keeping a bawdyhouse, and she appeals.
    Reversed and remanded.
    Anderson & Upton, of San Angelo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for keeping a bawdyhouse.

A motion to quash the indictment was made, and the evidence heard on the motion preserved. The motion asserts that unauthorized persons were with the grand jury during its deliberations touching the indictment. The evidence taken is too long to give in detail. It appears that the grand jury, while in session, had under consideration the subject of bawdyhouses for a couple of days. During this time there was before the grand jury on the subject Mr. Allen, the sheriff, Mr. Snow, chief of police, Mr. Jackson, an attorney, Mr. Curtsinger, county attorney, Mr. Oollins, Mr. Thomas, Mr. Van Ketcbum, and Mr. Morgan, none of whom were members. .Some of these parties were witnesses, and one of them was the district attorney and another the county attorney. Whether the-others were witnesses or not is not disclosed. It appears that there had been some previous prosecutions for keeping bawdyhouses, and that an injunction had been obtained against some persons keeping them, and that the injunction had been dissolved. These matters were discussed by the parties before the grand jury and the grand jurors, and the general subject of the best way to deal with bawdyhouses was discussed. It appears that the appellant and others were under consideration; that their names had been given the grand jury as persons keeping bawdyhouses.

The sheriff says the grand jurors talked about whether they would indict these women running bawdyhouses or go the injunction route. The grand jury was discussing which was the best way to proceed, whether through injunctions or indictments. He said while he was present there was a discussion between one of the members of the grand jury and the county attorney or district attorney with reference to the character or sufficiency of the evidence necessary in such prosecutions, the discussion being rather an argument, the attorney entertaining one view and the juror another as to the character and sufficiency of the evidence.

The chief of police testified he was before the grand jury, and that the bawdyhouse matter was under discussion; that he entertained different view's from some members of the grand jury as to the best method of dealing with the matter, going in his testimony into some detail as to the discussion between himself and one member of the grand jury as to whether it would be better to indict or to seek an injunction against the parties, including appellant, who was mentioned by name.

The foreman of the grand jury said, in substance, that the discussion Of the matter was not specifically with reference to the appellant, but with reference to the general subject of dealing with bawdyhouses in San Angelo. He said that if the propriety of finding an indictment, instead of proceeding by injunction, was discussed by the grand jury while others were present, it was while Mr. Collins or Mr. Jackson was present. He thought a discussion before the peace officers had reference mainly to previous experiences and prosecutions of that kind; that they gave their opinion to a certain extent about methods; that he did not think the matter was discussed before Mr.' Allen, the sheriff, but it might have been before Mr. Snow, the chief of police, and that it was discussed with Mr. Collins or Mr. Jackson, or one of them; that is, the propriety of finding a bill of indictment or injunction, and that he could not say whether Mr. Curt-singer, the county attorney, was present then or not; that the county and district attorney were in and out; that in the talk while some of these parties were present, one of the jurors talked so loud that he had to be requested to modify his tone. This discussion related to the sufficiency of the evidence to warrant conviction. That the appellant was one of the parties under discussion, “and it was discussed there, under the evidence we had there, whether we would return bills of indictment or let the matter be handled by a writ of injunction, and that was in the presence of Mr. Collins who was not a member of the grand jury,” and Mr. Curtsinger, the county attorney; that he was not sure that both were present at the same time, and he thought Mr. Jackson, an attorney, was present at one of these discussions as to the propriety of finding an indictment.

Mr. Coleman, one of the grand jurors, said they had the names of the persons whom they understood were running bawdyhouses, including appellant, but they were not considered or discussed individually; that they had evidence before the grand jury with reference to the matter, and there was a di&-cussion in the grand jury room with reference to the best means of controlling bawdy-houses over the state, different theories being advanced and discussed by the county attorney and others, among them Mr. Jackson, and that he thought Mr. Jackson was asked by one of the jurors for his opinion as to the propriety of indicting the women, and they talked about it in a general way. The chief of police said, after he had been given a list of names of persons keeping bawdy-houses, that there were discussions in his presence in the grand jury room as to the propriety of returning bills of indictment or making efforts to restrain by injunction or some other means. At the time he was a witness, and the county attorney was present and entered into the discussion as to the best means to deal with bawdyhouses.

“The deliberations of the grand jury shall be kept secret.” C. C. P. art. 425. The grand jurors take an oath to keep them secret. C. C. P. art. 416. They may take advice from the state’s attorney, and he may examine the witnesses before them. C. C. P. arts. 427, 428, and “The attorney representing the state may go before the grand jury at any time, except when they are discussing the propriety of finding a bilhof indictment or voting upon the same.” C.iC. P. art. 426. The statute (article 570, O. 0. P.) says:

“A motion to set aside an indictment shall be based on one or more of the following causes and no other: * * * 2. That some person not authorized by law was present when the grand jury were deliberating upon the accusation against the defendant, or were voting upon the same.”

Construing these provisions of the statute, it has been held that among the persons authorized by law to be present with the grand jury were the state’s attorney, his assistant and stenographer, witnesses and members of the grand jury disqualified in the particular inquiry under investigation. Stuart v. State, 35 Tex. Cr. R. 440, 34 S. W. 118; Sims v. State, 45 S. W. 705; Wilson v. State, 41 Tex. Cr. R. 115, 51 S. W. 916; McElroy v. State, 49 Tex. Cr. R. 604, 95 S. W. 539; Moody v. State, 57 Tex. Cr. R. 76, 121 S. W. 1117; Haywood v. State, 61 Tex. Cr. R. 92, 134 S. W. 218; Porter v. State, 72 Tex. Cr. R. 71, 160 S. W. 1194. None of these persons are authorized to be present while the grand jury is deliberating upon the accusation, or voting on it. This is held in all the cases mentioned.

In Stuart’s Case, supra, the county attorney was present “during their deliberations, but not when voting.” In each of the other cases the unauthorized person was not present during the deliberations, or when the voting took place. The indictment involved in the Stuart Case was set aside; that in the others was sustained.

In this case some of the persons present were witnesses', some the prosecuting attorneys, and some persons who seem from the record before us to have been neither witnesses nor state’s attorneys. The question is, however, whether they were present when the grand jury was “deliberating upon the accusation” against the appellant. This court in Stuart’s Case approves the definition of the term “deliberating” given by Mr. Webster as follows:

“The act of weighing and examining the reasons for and against a choice of measures ; careful discussion of the reasons for and against a proposition.”

In Sims’ Case, supra, this court says:

“We have heretofore held that whenever the record discloses the fact that some person not authorized by law was present when the grand jury was deliberating upon the accusation against the defendant, or voting on the same, the statute was mandatory and the indictment should be quashed.”

In Haywood’s Case, supra, the court deciding whether the presence of the county attorney and his assistants was unauthorized under the facts found, referring to the Sims’ Case, says:

“The meaning of the two articles (426 and 570, supra) is clear, that the county attorney may bo present at all times except when the grand jury is deliberating upon whether or not they will return a bill of indictment or voting on the same.”

The test in the statute, and in all of the cases construing it, is, Were the persons present when the grand jury was deliberating on the question of finding the indictment? Other definitions of the word “deliberating” are found in Century Dictionary:

“Weighing facts and argument with the view of choice of decision.” “The act of weighing and examining conflicting reasons; mutual discussion and examination for and against a measure.”

The definition in 13 Cyc. 771, is the same as Webster’s, supra.

The evidence summarized above, we think, indicates that in the presence of the persons who were not members of the grand jury, and who were present with it, there were deliberations, within the meaning of the statute, of the grand jury as to whether an indictment against the appellant would be •returned or not. Some of the witnesses say that the grand jury was in possession of evidence upon which the indictment was found, and indicate that they were undecided and entertained a difference of opinion as to whether the indictment should be found or not; that they had under consideration the accusation against the appellant and others accused with the same offense. In the language of Mr. Webster, approved by this court, they were engaged in “the act of weighing and examining the reasons for and against a choice of measures”; were engaged in a careful discussion and reasons for and against a proposition, viz. the indictment of the accused and others. Nothing else was before them at the time so far as the evidence shows, and the whole proceeding seems to have been an effort to decide whether to find a bill of indictment or not. We caunot escape the conclusion that it was contrary to the provisions of the statutes quoted above, which have been held mandatory, and that a reversal of the judgment of the lower court for failure to sustain the motion must follow.

The judgment is reversed, and the cause remanded.
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text:
    HOLLOWAY v. STATE.
    (No. 4874.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Appeal from Tom Green Oounty Court; Chas. T. Paul, Judge.
    Grace Holloway was convicted of keeping a disorderly house, and she appeals.
    Reversed and remanded.
    Anderson & Upton, of San Angelo, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted un-

der a charge of keeping a disorderly house. This is a companion case of Bobbie McGregor v. State, 201 S. W. 184, No. 4873, from Tom Green county, this day decided. The errors complained of in this case are the same as in the other. Por the reasons given in the other case, this judgment is reversed, and the cause remanded.


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

text:
    WHITE v. STATE.
    (No. 4870.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Larceny ⅞^37 — From Person — Indictment-Requisites.
    Indictment under Pen. Code 1911, art. 1351, for theft from the person, must allege that the property was taken from the person of another, and it is not sufficient to allege that it was taken “from the possession of the person” of another.
    2. Indictment and Information ¡@=3110(1)— Poem — Statutory Words.
    The words of the statute, or others of similar or more potent force, must be used in an indictment.
    Prendergast, J., dissenting.
    Appeal from District Court, Denton County ; C. P. Spencer, Judge.

      Leonard White was convicted of theft from the person, and he appeals.
    Reversed, and prosecution dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The indictment, omitting formal parts, charges that appellant “did then and there unlawfully and fraudulently and privately take from the possession of the person, of Scott Wilson one watch, the same being the corporeal personal property of the said Scott Wilson, without the consent and without the knowledge of the said Scott Wilson and with the intent to deprive,” etc. Motion was made to quash the indictment because it did not charge that the property was taken from the person of Scott Wilson; that the expression “from the possession of the person of Scott Wilson” is not equivalent nor equal to a direct allegation that the property was taken from the person. We are of opinion this contention is correct. In order to constitute theft from the person under article 1350, Branch’s P. O.. p. 1369, the indictment must allege specifically that the property was taken from the person of another. That article reads thus:

“If any person shall commit theft by privately stealing from the person of another, he shall be punished by confinement in the penitentiary not less than two nor more than seven years.”

To constitute this offense article 1351, P. C., provides that the theft must be from the person. It is not sufficient that it be merely in the presence or possession of the party from whom it was taken.

It is unnecessary to repeat further provisions of the latter named article. The allegation in the indictment may be as readily applied to constructive as to actual or personal possession. This crime is said by the decisions to be more nearly in line with robbery than any other species of theft. In order to constitute “robbery” under the terms of the definition, it is necessary to take property from the person by force or violence, by the use of firearms, etc. It is not sufficient that it be taken from the possession of the party under a charge of theft from the person. It must be taken from the person. Possession by the person of property may be exercised in many ways, and under the law is constituted in various ways. In Jones v. State, 39 Tex. Cr. R. 387, 46 S. W. 250, it was specifically held that property must be taken from the person; that no other means of taking it would constitute theft from the person.

It is a familiar rule of construction that, where the statute uses words, those same words must be used in the indictment, and, if not, then words of similar or more potent force than those used in the statute must be employed in order to charge the offense. Applying that rule, this indictment is not sufficient. The property may be in the possession of a person and yet not be upon his person or in manual or bodily possession. It will not do to hold, nor does the statute contemplate, that possession in the person of the alleged owner is sufficient. It must be upon and taken from his person.

For the reasons indicated, the indictment is held to be insufficient, and the judgment is reversed and the prosecution ordered dismissed.

PRENDERGAST, J.

(dissenting).

My opinion in the companion case of Willie Johnson, 201 S. W. 187, this day delivered, is my dissenting opinion in this as well as in that case.
      (g=»For other oases see same topic ana KHY-NXJMBER in all Key-Numbered Digests and Indexes


text:
    JOHNSON v. STATE.
    (No. 4869.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Appeal from District Court, Denton County; C. if. Spencer, Judge.
    Willie Johnson was convicted of theft from the person, and he appeals.
    Reversed,, and prosecution dismissed.
    Sullivan, Hill & Minor, of Denton, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted, of theft from the

person.

This is a companion case to that of Leonard White, this day decided, in which I dissented. My opinion herein will be my dissent applicable in the White Case, 201 S. W. 186.

The statute prescribing theft from the person is: “If any person shall commit theft by privately stealing from the person of another” he shall bo punished, etc. Article 1350, P. C. The next article prescribes as necessary that: “(1) The theft must be from the person; it is not sufficient that the property be merely in tho presence of the person from whom it is taken. (2) The theft must be committed without the knowledge of the person from whom the property is taken. * * * (The other feature of this statute is inapplicable.)

The facts which distinguish this from ordinary theft are that in this the property must be taken (1) “privately,” (2) “from the person of another,” and (3) “without the knowledge of the person from whom taken.” And the indictment must allege these facts.

The statute (article 474, C. C. P.) says: “Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.” And “the certainty required in an indictment is such as will enablo the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.” Article 453. And “an indictment * * * shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” Article 460. And “an indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect or imperfection of fm'm in such indictment which does not prejudice the substantial rights of the defendant.” Article 476.

Now the indictment herein alleges that appellant “did then and there unlawfully, fraudulently and privately take from the possession of the person of Scott Wilson, one watch, the same being the corporeal personal property of the said Scott Wilson, without the consent, and without the knowledge of the said Scott Wilson,” etc. So that therefrom it is seen that each and every fact necessary or proper to be made to charge theft from the person was plainly and distinctly alleged.

The contention hy appellant that the words “the possession,” in the allegation “privately take from the possession of the person,” does not allege that the watch was taken from the person of Wilson, and vitiates the indictment, is superhyporcritical and supertechnical. To so contend is an attempted distinction without a shadow of difference. To “privately take from the possession of the person of Wilson” is exactly the same in substance and effect as to “privately take from the person of Wilson.” Nothing more ; nothing less. There is no doubt, and can be none, but that this indictment distinctly, plainly, and unequivocally charges theft from the person, and is a perfectly good indictment and should not be quashed.

However, my Associates, as shown hy Judge Davidson’s opinion in said White Case, hold that the indictment therein is fatally defective and sustain appellant’s said contention therein. It necessarily follows that in their opinion the indictment herein is also fatally defective, so that on their opinion — not mine — this judgment herein must be reversed and the case dismissed. This does not prevent another indictment in this and the White Case and a trial thereunder.

Reversed and dismissed.


text:
    WILLIAMS v. STATE.
    (No. 4693.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Criminal Law <§=982 — Suspended Sentence — Evidence—Admissibility.
    Where one convicted of murder made plea for suspended sentence under Vernon’s Ann. Code Or. Proc. 1916, arts. 865b, 865c, authorizing suspended sentences, and expressly authorizing proof of reputation of one asking such sentence, witnesses could testify to various misdemeanors of accused for which she was arrested.
    2. Criminal Law <§=982 — Suspended Sentence — Evidence—Admissibility.
    Under plea for suspended sentence, the accused’s character at the time of trial being under investigation, evidence of character is not limited to time preceding the offense, but may include evidence of character at the time of trial.
    3. Witnesses <§=328 — Impeachment—Position oe Parties.
    In prosecution for murder, where a witness testified to having seen accused with a pistol in her hand held behind her just before she crossed the street and shot deceased, others could testify that, from witness’ position, he could not have seen the pistol, and others could say that, witness having pointed out to them the positions which he and accused occupied, he could have seen what he testified to.
    4. Criminal Law <§=1092(6) — Appeal — Scope — Record—Time to Pile.
    A bill giving evidence heard when motion for new trial was overruled, filed after adjournment for term, could not be considered.
    5. Criminal Law <§=938(2) — New Trial — Newly Discovered Evidence — Diligence.
    ' Evidence is not newly discovered in law, when the facts sought to be shown thereby could have been shown on trial, and the persons were all accessible, and could have testified at the trial.
    Appeal from, District Court, McLennan County; Richard. I. Munroe, Judge.
    Georgia Williams was convicted of murder, and she appeals.
    Affirmed.
    J. W. Taylor and Forrester &. Stanford, all of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and her punishment assessed at ten years.

Without doubt, the evidence was amply sufficient to sustain the verdict. She claimed she killed deceased in her self-defense. Her testimony, supported by some of her witnesses, would have been sufficient, if believed, to have shown she killed deceased in self defense. On the other hand, the testimony by the state was sufficient to show she did not kill deceased in self-defense, but killed her because of her malice aforethought against her. The jury and trial judge believed the state’s case, and did not believe hers. She pleaded for a suspended sentence, and in her direct evidence, to establish her right, and get a suspended sentence, testified, “I have never been convicted of a penitentiary offense in my life.”

The state opposed her getting a suspended sentence. It was therefore not only its privilege, but its duty, to introduce whatever proper evidence within its reach to prevent her from getting a suspended sentence. The state thereupon introduced several witnesses who testified, over her objections, to various axrests of her for misdemeanors committed by her, and court records showing she had recently pleaded guilty to some of them, and to her general bad reputation, etc. She preserved bills of exception to the introduction of all this evidence. It is unnecessary to take them up separately. They all raise substantially the same question.

The very statute which authorizes a suspended sentence and a plea therefor (Acts 1913, p. 8; 2 Vernon’s Or. Stats, arts. 865b, 865c) expressly authorizes proof of the reputation of such defendant who undertakes to get a suspended sentence. Very soon after the enactment of this law, it was construed by this court. Since then many other cases have been decided, all uniformly to the same effect. One of the first cases was Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360. Therein it was held that when a defendant files a plea for suspended sentence, “this in itself puts in issue his reputation as a peaceable, law-abiding citizen, and any evidence which tends to show that he is not entitled to such reputation, is admissible in evidence.” And when he files “a plea asking a suspension of sentence, then evidence which tends to show that he is not a peaceable, law-abiding citizen may be adduced on cross-examination of his witnesses, and may be adduced even though such acts' are not felonies, or do not involve moral turpitude.” This construction of this law has ever since then been adhered to and reiterated in every case when the question has been raised. Some of them are here collated. Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 350; Conatser v. State, 75 Tex. Cr. R. 91, 170 S. W. 314; Barkus v. State, 78 Tex. Cr. R. 38, 179 S. W. 1166; Casey v. State, 78 Tex. Cr. R. 174, 180 S. W. 673; Medlock v. State, 185 S. W. 566; House v. State, 189 S. W. 488; Holland v. State, 187 S. W. 944; Waters v. State, 196 S. W. 536. So that the evidence objected to was admissible as the issues stood at the time, and the objections to proceedings incidental thereto show no error. But the judge in explanation of the bills shows that after all the evidence was in as it was determined he would not submit manslaughter or suspended sentence, all said evidence was withdrawn from the jury, and they were instructed they could not consider any of it for any purpose whatsoever in a special charge requested by appellant.

In the Martoni Case, supra, it was held that even if such evidence had been inadmissible originally, when it was thus withdrawn in such a charge, the error of its admission presented no error. The authorities so establishing were cited and discussed at length. Also in the Waters and Holland Cases, supra, when such plea for suspended sentence had been filed, and such testimony admitted over objections, and later it was determined by the judge not to submit the issue to the jury, and the judge then withdrew the evidence from the jury, and told them not to consider it, was held the proper course to pursue, and no error was thereby presented.

On the question of suspended sentence it is the character of the accused at the time of the trial which is under investigation. Hence such evidence is not restricted to what it was before the offense was committed, but proof is admissible as to what it is at, as well as before, the time of the trial; and such proof can be made by the accused as well as any other witness who may know the facts.

Mr. T. J. Hall was an important witness for the state, and among other things testified in substance that he was at a certain point, and from there he could see appellant on her gallery, and just before she went across the street and shot and killed deceased, he did see her there holding a pistol in her hand behind her. Appellant attacked Mr. Hall and this testimony by him by having other witnesses' go on the ground after he testified, where they claimed Mr. Hall said he was, and that they experimented by looking therefrom and said, in effect, appellant could not have been seen with a pistol as Mr. Hall said he saw her. At the noon recess while the case was on trial, the county attorney had Mr. Hall to go with him and other witnesses on the ground and point out to them exactly where he was and where appellant was with the pistol, and they testified that appellant could have been so seen from where Mr. Hall was. Mr. Hall swore he pointed out the exact locations he and appellant were when he swore he saw her with the pistol. All this testimony was admissible, as has all the time been held by this court. Barnett v. State, 76 Tex. Cr. R. 565, 176 S. W. 580; Weaver v. State, 43 Tex. Cr. R. 340, 65 S. W. 534. See, also, Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 8. W. 508; Rodriquez v. State, 32 Tex. Cr. R. 265, 22 S. W. 978, and cases cited therein; Pinkerton v. State, 71 Tex. Cr. R. 195, 160 S. W. 87; Batson v. State, 36 Tex. Cr. R. 606, 38 S. W. 48; Neely v. State, 56 S. W. 625; Matthews v. Thatcher, 33 Tex. Civ. App. 133, 76 S. W. 61; Railroad v. Alexander, 53 Tex. Civ. App. 125, 115 S. W. 648; Hart v. Railroad, 144 N. C. 91, 56 S. E. 559, 12 Ann. Cas. 706, and note. The case of Riggins v. State, 42 Tex. Cr. R. 474, 60 S. W. 877, cited by appellant, is not applicable. In that case the jury was permitted to go on the ground and make their own observations, and act thereon, instead of witnesses doing so and testifying.

The court, in the main charge, together with those given as requested by appellant, gave a full and fair charge in appellant’s favor on self-defense both from real and apparent danger, and on threats both communicated and uncommunicated, and sufficiently applied the law to the evidence. He did not err in refusing special charge No. 5 on the subject, requested by appellant. The court refused to give it as shown by the qualification of appellant’s bill, on the ground “that the court gave a charge on threats, both communicated and uncommuni-cated, and gave, as stated, a charge on the right of defendant to arm herself. In the court’s opinion, the special charge No. 5 was defective in law, and did not fit the facts.” There was no error in refusing to give said charge. In Crippen v. State, 189 S. W. 498, it was held:

“The law is settled that if the court in his charge does not limit the accused’s right of self-defense by a charge on provoking the difficulty, or otherwise, hut submits his right of self-defense on every defensive theory, it is not error to refuse to charge on his right to arm himself and seek an explanation. Williford v. State, 38 Tex. Cr. R. 396, 42 S. W. 972; Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. 585, 161 S. W. 110; Carey v. State, 74 Tex. Cr. R. 117, 167 S. W. 366; Ford v. State [77 Tex. Cr. R. 252] 177 S. W. 1176.”

The court in no way limited appellant’s claimed self-defense.

Appellant contends the court erred in refusing a new trial on the ground of her claimed newly discovered evidence. It is unnecessary to go into any detail of this matter. The bill giving the evidence heard on this motion was filed long after the court adjourned for the term, and cannot be considered. Reyes v. State, 196 S. W. 533. But even if it could be, the claimed evidence of Fannie Calhound, Watson, and Williams was not and could not have been newly discovered in law. But if that as to the state’s witness Fannie Calhound could be so considered wholly to impeach her, it was largely for that purpose. In allowing the bill the court qualified it as follows:

“The trial of the case lasted three days. Mr. Hall was the first witness used by the state, and Fannie Calhound was used before the state rested, on the afternoon of the first day. Mr. J. A. Stanford, law partner of W. H. Forrester and one of the attorneys of record for the defendant, was the first witness to bring in question the possibility of seeing a person on Georgia Williams’ gallery from where the witness Hall stood. J. W. Watson and H. D. Williams could have inspected the ground after Hall testified just as Stanford did, and testified before the conclusion of the trial. The newly discovered evidence as to Fannie Calhound’s residence came from parties living in the immediate neighborhood, who were readily accessible at the time of the trial. The killing occurred nearly two years ago, and it is probable they are mistaken. Besides, their testimony is of an impeaching character. Moreover, the witness Hall testified he was standing somewhere about the sidewalk, and not on the sidewalk, as defendant claims in this bill.”

No error is shown by this bill.

The judgment is affirmed.
      <gr^>For other capes see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    MAGNOLIA COTTON OIL CO. v. MARTIN.
    (No. 5966.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 6, 1918.)
    Courts <§=>170 —Jurisdiction — Amount Involved — Construction of Petition.
    Where petition is doubtful as to when interest sought is to begin, it will be construed to •begin when the judgment was rendered, where, if it began before such time, the court would not have had jurisdiction.
    Appeal from Goliad County Court; H. J. Passmore, Judge.
    Suit by B. W. Martin against the Magnolia Cotton Oil Company. Judgment for plaintiff, ■and defendant appeals.
    Affirmed.
    Hunt & Teagle, of Houston, and Patton & Ewell, of Goliad, for appellant. G. E. Pope, •of Goliad, for appellee.
   FLY, C. J.

This is a suit filed by appellee against appellant to recover the value of a carload of cotton seed sold by appellee to ap-lant which were delivered in Houston, but which appellant refused to receive, and which were of the agreed value of $868; that ap-pellee was forced to sell the same, realizing the sum of $3.62 in excess of the amount of the freight bills; and that appellee was also compelled to pay the sum of $6.25 for telegraph and telephone charges, and was compelled to pay a fee of $100 to an attorney. He sought to recover the sum of $974.25, less a credit of $3.62. In an amended petition the Galveston, I-Iarrisburg & San Antonio Railway Company and the San Antonio & Aran-sas Pass Railway Company were made defendants. The railway companies were after-wards dismissed from the suit by appellee, and upon a trial by jury judgment was rendered in favor of appellee for $868, with 6 per cent, interest per annum from September 6, 1916.

In the original petition appellee sought to recover of appellant the sum of $868, value of seed, $6.25 telephone and telegraph charges, less $3.62, and $100 attorney’s fee, which amounted in the aggregate to $974.63. In the amended petition he prayed for judgment against appellant for $868.58, with interest and attorney’s fees. He sought to obtain a judgment also against the railway companies for $284.95 and attorney’s fees. Undoubtedly the county court had jurisdiction over the amount sued for in the original petition, but it is contended by appellant that in the amended petition there was a claim against appellant for a sum in excess of the jurisdiction of the court. The items of $868 for the seed, $6.25 for telephone charges, $147 freight charges, $27.65 overcharge on freight, and $100 attorney’s fees are alleged to have been claimed from appellant. This assertion is not supported by the record. The items of $27.65 and $147 were not set up against appellant. The only mention of the $147 is in accounting for the expenditure of the $152.67 for which the cotton was sold. That account also showed that the telephone charges were all paid but 58 cents. Appellee asked for judgment against appellant for the value of seed, telephone charges, and possibly, though it is not clear, $106 for attorney’s fees. We are of opinion that the court had jurisdiction of the cause. The petition is doubtful as to when the interest sought should begin, and it will be construed' to begin when the judgment was rendered. In all doubtful cases the pleadings will be construed to give jurisdiction. Dwyer v. Bassett, 63 Tex. 274; Railway v. Fromme, 98 Tex. 459, 84 S. W. 1054; Railway v. Rayzor, 106 Tex. 544, 172 S. W. 1103.

It was a controverted point as to whether the seed were such as appellant desired, and the jury decided in favor of appellee. That decision must stand.

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


author: SWEARINGEN, J.

text:
    CITY OF SAN ANTONIO v. NEWNAM.
    (No. 5918.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 23, 1918.
    On Rehearing, Feb. 27, 1918.)
    1. Municipal Corporations <§=155 — Mayor —Power to Discharge Appointee.
    Power given a mayor by charter to appoint to office carries with it power to discharge, subject to limitations in the charter.
    2. Municipal Corporations <§=>156 — Discharge oe Appointee — Belief of Unfitness.
    Under provision of charter that the mayor may, for any reason he may deem sufficient, discharge any appointee, provided that no one may be discharged for political reasons, if the mayor thinks the person incompetent and unfit, and for that reason discharges him, the discharge is legal, though he be fit and competent.
    3. Municipal Corporations <§=156 — Discharge of Appointee — Belief of Unfitness-Evidence.
    Evidence that an appointee discharged by a mayor was competent and fit, and that there were political reasons which could have inclined him to desire the discharge, does not prove that the mayor believed him competent and fit, this rendering invalid the discharge made on the assigned ground of incompetency and unfitness.
    4. Municipal Corporations <§=156 — Discharge of Appointee — Reasons.
    That a mayor has political reasons for which he might desire the discharge of an appointee, but which under the charter he cannot make for such reasons, does not prevent him making the discharge for another reason.
    5. Municipal Corporations <@=165 — Action Against^-Notice of Claim.
    A claim of a discharg-ed city officer for salary on the ground of illegal discharge is not of the class of claims of which, under the charter, notice must be given as a condition precedent to right to sue.
    6. Pleading <§=376 — Admitted Facts — Proof.
    Facts admitted by the pleadings of both par-tios need never be proved.
    7. Municipal Corporations <§=162(5) — Illegal Discharge of Appointee — Right to Salary — Tender of Services.
    For a city officer illegally discharged to recover salary, it is not necessary for him to tender his services.
    8. Appeal and Error <§=204(1), 499(3) — Review — Introduction of Evidence — Objection and Bill of Exceptions.
    That one may complain on appeal of introduction of improper evidence he must have objected to it at the time, and preserved the objection by bill of exceptions.
    On Rehearing.
    9. Municipal Corporations <®=185(9) — Discharge of Officer — Reasons—Evidence.
    Mere evidence that the mayor presided at a meeting, the object of which is not shown, at which a speaker said the name of city marshal was a stench in the nostrils of the people, and that he had appointed officers to intimidate voters, is inadmissible on the issue whether the mayor removed the marshal for political reasons, or because he considered Mm incompetent and unfit.
    10. Municipal Oorporations <§=185(9) — Discharge of Appointee — Reasons—Evidence.
    That the mayor intended to discharge the marshal and that Ms political platform promised the discharge is inadmissible on the issut whether he discharged Mm because he deemed Mm incompetent and unfit or for political reasons.
    Appeal from District Court, Bexar Coun ty; S. G. Tayloe, Judge.
    Action by Frank Newnam against the City of San Antonio. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    R. J. McMillan and Robt. G. Harris, both of San Antonio, for appellant. Leo Tarleton and A. L. Matlock, both of San Antonio, for appellee.
   SWEARINGEN, J.

This is a suit by Frank Newnam, appellee, against the city of San Antonio, appellant, to recover the salary of city marshal from the date of his discharge until the expiration of the term for which he had been originally appointed. His discharge is claimed to have been unlawful because the reason therefor was political. The jury, upon the one special issue submitted, found that appellee had been discharged for political reasons. The court rendered judgment in favor of appellee for the amount of salary claimed, viz. $1,555.55, together with 6 per cent, interest from the dates when each monthly salary was due. The amount was $1,927.86. Appellee alleged his appointment and qualification to the office of marshal of the city of San Antonio, the salary of which was fixed by the city at $2,000 a year, payable in monthly installments, and that the term was two years; that he served and received the salary from June 19, 1911, the date he received his commission, until August 19, 1912, when he was illegally discharged, since which date the city has refused to pay him the salary; that he was illegally discharged because the mayor discharged him for political reasons, which the city charter expressly forbade. Appellee further alleged' that the mayor did not file his reasons in writing for appellee’s discharge with the city clerk at the time of such discharge. Appel-lee also alleged that a majority of the city council in regular session did, by vote, approve his discharge. Answering the cause alleged, appellant made the issue that appel-lee had been legally discharged at the time alleged; for which reason the city owed nothing to the appellee. The evidence disclosed that appellee had been regularly appointed; that he had qualified and had received his commission to the office of marshal of the appellant city, and that he had served from June 19, 1911, until August 19, 1912. On the latter date A. H. Jones became the mayor of the city, and within a few minutes thereafter announced to the council in session that he discharged appellee from the office of city marshal. The council, by a majority vote, sustained the action of the mayor discharging the appellee. On the same day, the mayor filed with the city clerk the following letter:

“San Antonio, Texas, August 19, 1912.
“Mr. Fred Fries, City Clerk, City of San Antonio, Texas — Dear Sir: I have to-day discharged from the service of the city Frank M. Newnam, city marshal, for the following reasons, to wit: The said Frank M. Newnam, by his ■conduct in said office of city marshal, has demonstrated his incompetency and general unfitness to perform the duties thereof. Please file these reasons for his discharge as required by the ■city charter.
“Yours truly, A. H. Jones.”

It was proven that appellee was paid in full up to the date of his discharge, but was not paid anything after the latter date. There was evidence that appellee was a competent and fit person to perform the duties of ■city marshal. It was proven that Mayor Jones was supported in his race for mayor by a political party denominated the “Citizens League,” and that the first plank in that party’s platform was a promise to discharge appellee. This plank in the platform was an issue in the campaign. Appellee opposed the candidate of the Citizens League and supported the defeated candidate.

The controlling question in this case for our consideration is the legality of the discharge. The charter vested in the mayor the power to make the appointment with the consent of the city council. That the power to appoint carries with it the power to discharge is settled. Keenan v. Perry, 24 Tex. 253; Ex parte Hennen, 13 Pet. 230, 10 L. Ed. 136; Parsons v. U. S., 167 U. S. 324, 17 Sup. Ct. 880, 42 L. Ed. 185. This power of the mayor to discharge his appointees was, however, not left entirely to the peremptory or arbitrary will of the mayor; but the power was expressly limited by section 17 of the charter:

“Section 17. Any appointive officer, employs, agent or servant of the city, employed under authority of the council, may be discharged from service by the mayor for any reason he may deem sufficient, and such appointive officers, employes, agents and servants, unless so dismissed and discharged, or unless their offices and employments are abolished by the council, shall hold their offices until the next general city election and until their successors, if any, shall be appointed and qualified; provided that no person shall be dismissed or discharged for political reasons; and provided that in case of discharge of any appointive officer by the mayor, the mayor shall file his reasons in writing for such discharge with the city clerk at the time of such discharge, and such reasons shall be open for public inspection, and such discharge shall be approved by a majority of the city council; and provided, further, that the city council may, independent of the above power of discharge given the mayor, also provide by ordinance, for the suspension or removal, by two-thirds vote of the entire council, of any appointive officer, employe, agent or servant of the city employed under authority of the council, for incompetency, official misconduct or habitual drunkenness and provide for the temporary suspension of such officer, employé, agent or servant during the pendency of charges against him.”

The limitation, apparent from the foregoing, is that the mayor cannot discharge for political reasons; he cannot discharge without the concurrence of a majority of the city council; and the mayor is required to file, at the time of the discharge, with the city clerk, his written reasons for the discharge, the reasons to be- open for public inspection.

The conclusion, belief, or opinion of Mayor Jones that appellee was unfit or incompetent to perform the duties of marshal empowered the mayor to discharge the ap-pellee, provided the discharge was approved by a majority of the council and the written reasons were filed. In the instant case, the discharge was approved by a majority of the council, and the written reasons were filed with the clerk, so it will be unnecessary to consider these two requirements further.

The question is therefore narrowed to this: Did Mayor Jones deem the appellee incompetent or unfit to be the marshal? If the mayor believed appellee to be competent and fit for the duties- of the office of marshal, then the written reasons for the discharge were not filed with the clerk, and the procedure required by the charter was not complied with, for incompetency and unfitness are the only reasons given in the filed letter.

Does the evidence prove that Mayor Jones believed appellee competent and fit? Before discussing the evidence, we again emphasize that it is Mayor Jones’ opinion of appellee’s competency and fitness; and not the fact of competency and fitness. The proof or admission that appellee was actually competent and fit for the position is not the test of whether the mayor had the power to discharge. The test is: Did the mayor deem appellee incompetent and unfit? If the mayor deemed appel-lee incompetent and unfit, even though the mayor was in error, the power vested in him to discharge. Were this not the proper construction of the charter provision, section 17 must be understood to mean that the mayor could not discharge an appointee unless the appointee was in fact incompetent and unfit, and, further, that this fact must be determined in a court of competent jurisdiction after a fair trial. There is no such limitation in the charter.

Then, what is the testimony in the record to prove that Mayor Jones believed appellee to be a competent and fit person to perform the duties of city marshal? There is the testimony of appellee and his witnesses, Richter, Kinney, Lucas, and others, that each of them believed appellee competent and fit, which tends to establish the fact that appel-lee was in fact competent and fit; but this testimony does not tend to prove that Mayor Jones believed appellee competent and fit, for, as before stated, the mayor may have had an entirely erroneous estimate of appel-lee’s real ability and merit. Yet the mayor’s opinion, though wrong, was the fact essential for the exercise of the power to disr charge.

Examining the testimony further, we find that the mayor and appellee were arrayed against each other, belonging to opposing political factions; one faction seeking the election Qf Mayor Jones and the other seeking Ms defeat. The discharge of appellee was promised by Jones while a candidate, and was effected as his first official act. This testimony indicates that there were political reasons that would make Mayor Jones desire to discharge appellee, but the testimony falls far short of proving that Mayor Jones believed appellee was competent and fit for the office of city marshal. The more reasonable deduction would be that Mayor Jones deemed appellee incompetent and unfit, and therefore determined to discharge him; and because of this opinion of appellee by Mr. Jones appellee opposed Jones for mayor.

To repeat, the testimony is sufficient to sustain a finding by a jury of two facts, viz.: First. That appellee was in fact a competent and fit person to perform the duties of city marshal; second, that the mayor actually had political reasons that could have inclined him to desire the discharge of appel-lee. Neither of these two facts, singly nor jointly, proves the issue in this suit that must be established by appellee, viz. that Mayor Jones deemed appellee a competent and fit person for the office of city marshal. Joske v. Irvine, 91 Tex. 574, 44 S. W. 1059. The only evidence of the mayor’s opinion is that shown by his letter filed with the city clerk.

It may be said that it is difficult to prove in any case that a discharge is made by a mayor solely because of political reasons, which, proven, renders the discharge ineffective; and because of the difficulty of proof, for all practical purposes, destroys the limitation expressed in the charter. The difficulty of proof, and also the consequent ineffectiveness of the limitation, are indeed obvious. But, on the other hand, the mayor had the power to discharge appointees as an incident to the power of appointment given him by the charter as before stated. This summary power was not intended to be destroyed by section 17 of the city charter, for the opening sentences of that section expressly state that the mayor shall discharge appointive officers for any reason he may deem sufficient. If the fact proven in this case, that appellee was in fact competent, could render the discharge illegal even though Mayor Jones deemed him incompetent, the mayor has no summary power of discharge, but can only discharge for actual unfitness and incompetency, which' the mayor could not determine, but must be determined by a court of competent jurisdiction. The only reasonable construction of the language of section 17 of the city charter is that it is the mayor’s opinion, right or wrong, that authorized the discharge.

Then again, to hold that because political reasons sufficient to cause the mayor to desire the discharge are proven is sufficient to annul the summary power of discharge would be unreasonable, for the political reasons may have been caused by the mayor’s opinion that appellee was unfit for the office; or it may be that the mayor, besides the political reasons, had the additional reason that he deemed appellee unfit. It cannot be seriously contended that, because the mayor had political reasons for which he might desire to discharge appellee, therefore the mayor cannot discharge for another reason. Such a contention would mean that a mayor could never discharge a political opponent, no matter how utterly inefficient and incompetent and unfit he might be either in the opinion of the mayor or in fact. The charter says the mayor can discharge for any reason he may deem fit, provided that reason is not a political reason. The only reasonable construction is that the may- or cannot discharge an appointee when the mayor’s sole and only reason is political.

The jury in this case has in effect found that Mayor Jones believed that appellee was a competent and fit person to perform the duties of the office of city marshal. There is no evidence to sustain that finding.

Our conclusions above expressed dispose of the propositions presented under the sixth, eighth, ninth, tenth, eleventh, and thirteenth assignments, which are all sustained.

The seventh assignment, claiming that there was error in that appellee gave no notice of his claim as required by section 46 of the city charter as a condition precedent to the right to file the suit, is overruled, for the reason that claims of the character herein sued for are not the character of claims referred to by that section of the charter. City of Houston v. Isaacks, 68 Tex. 116, 3 S. W. 693.

The first assignment, complaining that there was no proof of the legal existence of the office and salary, is overruled, because these facts were admitted, and it is never necessary to prove facts admitted by the pleadings of both parties.

The second assignment is overruled because it was not necessary under the facts of this case for appellee to tender his services in order to recover, if he was illegally discharged. City of Paris v. Cabiness, 44 Tex. Civ. App. 587, 98 S. W. 927.

Because the evidence shows that appellee was legally discharged, the third and fourth assignments are sustained.

The fifth and ninth assignments are overruled. If the mayor had discharged appellee for political reasons, the discharge would have been illegal, and the city would have been liable for the salary.

The twelfth assignment is overruled because appellant should have objected to the introduction of improper testimony when offered. No bill of exception can be found, in the record showing such objections by appellant. The records collated in the twelfth assignment show that after all the objectionable testimony was introduced without objection, then for the first time appellant moved for a new trial, whicli was refused, but the court, upon its own motion, instructed the jury not to consider certain testimony. The drift of the evidence thus excluded went to prove that Mr. Jones, afterwards mayor,; believed appellee was unfit for the office of city marshal. Why appellant did not object to it at the time it was offered is readily enough understood, hut why appellant moved for a new trial because of it is not clear to us.

Because there is no evidence that Mayor Jones believed appellee a competent and fit person for the office of city marshal, appel-lee failed to establish his cause of action, which is that his discharge was illegal. Therefore the judgment is reversed, and the cause remanded.

On Rehearing.

Appellee insists that we rule upon his three cross-assignments. The first cross-assignment is:

“The court erred in excluding the following testimony from the jury: Frank Newnam testified that ‘Mr. Jones was chairman of the Citizens’ League, and called an indignation meeting in his name at the Bethoven Hall and was chairman of the meeting; that witness was there and heard the speaking. Jones called the meeting and was chairman of the meeting and on the platform. The speaker, Mr. Webb, said my name was a stench in the nostrils of the people; that I had these policemen appointed and did it to intimidate voters. I had not appointed any policemen in my life.’ ”

Viewed in the light of the record before us, the trial court correctly excluded this testimony, for .the object of the meeting does not appear. The statement itself was made by Mr. Webb, not by Mr. Jones. The evidence does not show that Mr. .Jones authorized, ratified, or even approved the statement. We overrule the first cross-assignment.

The second cross-assignment is:

“The court erred in sustaining the objections of the defendant to the' following testimony: Plaintiff offered to prove by Louis Dennet, a reporter of the San Antonio Light, that he had a conversation with A. H. Jones on August 9, 1912, in which said Jones said the platform and issue on which he was elected demands that Frank Newnam and Fritz Russi be discharged from the city’s employ. ‘Just how we are going about this 1 can’t say at present, but it shall be done.’ ”

This testimony could prove nothing more than that Mr. Jones intended to discharge Mr. Newnam, and that Mr. Jones’ political platform made the promise to discharge him. This testimony does not tend to show whether or not Mr. Jones deemed Mr. Newnam competent and fit for the position, which was the only issue to- which it could be relevant. The ruling of the court presents no reversible error. The second cross-assignment is overruled.

The third cross-assignment presents a question similar to the second cross-assignment, and for the reasons last discussed is overruled.
      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes