text:
    HUGHITT v. STATE.
    (No. 3722.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    Fences <&wkey;28 — Destruction—Prosecution— Evidence — Admissibility.
    Where, in a prosecution for unlawfully pulling down a fence, defendant offered to show that the prosecuting witness held possession only as agent for the real owner, and that the entry upon the land and destruction of the fence were done by accused under the authority of the real owner, such testimony was not inadmissible as an effort by accused to try the title to real estate, but was only a proper attempt to show that the entry and destruction of the fence were lawful.
    [Ed. Note. — For other cases, see Fences, Cent. Dig. §§ 62-67; Dec. Dig. &wkey;28.)
    Appeal from Mills County Court; G. H. Dalton, Judge.
    Frank Hughitt was convicted of unlawfully pulling down a fence, and he appeals.
    Reversed.
    J. C. Darroch, of Goldthwaite, for appellant. F. P. Bowman, Co. Atty., of Goldth-waite, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully pulling down a fence of D. H. Trent, and his punishment assessed at a fine of $10.

This case is a little out of the ordinary. Of course, the title to real estate is never to be tried in this character of case, and the court did not err in so holding. But, as we view the record, the evidence appellant sought to introduce was not offered to prove that he held a superior title to Trent to the land, but only to show that he, in fact, was in possession of the land on which the fence was situate, and rightfully so. The prosecuting witness, D. H. Trent, testified that the-fence belonged to him and had been in his possession since 1895 — about 20 years; that the land fenced was a part of the W. W. Williams survey, and was called the Mc-Clesky land; that he had been in possession of the land since 1895. If Trent was claiming the land as his own, then, of course, the question of title could only be tried in the district court, and evidence on that issue would not be admissible. But what appellant sought to prove was that, while Trent was in possession of the land, his possession was that of agent of McClesky, and offered in evidence the following letter of Trent:

“Goldthwaite, Texas, June 29th, 1914.
“Mr. J. I-I. McClesky, Belton, Texas — My Dear Sir: I have yours of the 28th relative to the land at Williams ranch. I have had this land fenced and taking care of it for fifteen years, and the wood has been saved thereby. I don’t find any deed on record in favor of your father, but he told me that the land belonged to him, and he gave me authority to fence the same. However, old Frank Hewitt has put a deed on record and claims the land, says that he bought the land from your father, but the place is in my possession and will be until you are able to dispose of it, and if I can help you shall only be glad to do so. The land is a cheap grade of land and won’t bring much; don’t believe it will bring more than $6.00 per acre, for it is just rough grazing land. There has not been any taxes paid on the place for years and years. I will keep and take care of the place and hold it until I am paid for my fence and something for taking care of it for the past fifteen years. Let me hear from you regarding the same. I am,
“Yours very truly, D. H. Trent.”

Appellant offered to prove, further, that prior to the time this prosecution was begun he had gone into possession of the land by authority of Trent’s principal, Mr. Mc-Clesky. If, in fact, Trent was holding the land as agent for McClesky, at will, certainly McClesky would have authority to authorize appellant to take possession of it. If Trent had been claiming the land as his own, no matter how defective his title, the owner of the superior title would not be entitled to show that fact in this character of case. But when Trent by his testimony does not claim to be owner of the land, on cross-examination appellant ought to have been permitted to show by him, if he could, that he did not claim the land as his own, but was merely in possession of same as agent for McClesky, and that his possession was, in fact, the possession of McClesky, and then to prove, if he could, he entered upon the land by authority from McClesky, in fact, the person in whom the real possession of the land had been all these years. The court erred in excluding the testimony which would tend to show these facts.

If one is in possession of another’s cow and had been in peaceable possession for two years, and one is alleged to have stolen the cow of A. (the person in possession) without his consent, and A. had so testified, certainly it would be permissible for one charged with the theft to show that, while A. .was in possession of the cow, yet he was agent of B., the real owner of the cow, and if the person charged with the crime should offer to show that he had the consent of B. to take the cow, such testimony would be admissible, and if the jury should find that he had such consent, he would be guilty of no offense. If Trent had never claimed the land as his own, and did not do so at the time of this trial, but only claimed he was in possession of it as the agent of McClesky, and appellant had the permission and consent of and authority from McClesky to enter upon the land, and take possession thereof, he committed no offense in doing so. And if Trent placed a fence on the land, without McClesky’s knowledge or consent, Mc-Clesky or those holding under him would have authority to remove it from off the land, and would be guilty of no offense in doing so.

What is above said indicates the errors of the court in excluding testimony, and we do not think it necessary to discuss each bill of exceptions in detail. It will also indicate to the court the issues to be submitted in his charge.

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


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    WINTERMAN v. STATE.
    (No. 3648.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 3, 1915.)
    1. Intoxicating Liquors <&wkey;236 — Offenses —Evidence—Sufficiency.
    In a prosecution for selling intoxicating liquor without a license in a county where prohibition was not in force, evidence held to warrant conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. <&wkey;> 236.]
    2. Intoxicating Liquors &wkey;>150 — Offenses —Sales Without License.
    Under Pen. Code, art. 611, declaring that no person shall, directly or indirectly, sell intoxicants without taking out a license, the offense is selling intoxicants without a license, and not engaging in the business of selling without a license.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 164, 165; Dee. Dig. &wkey;> 150.]
    S. Indictment and Information &wkey;>110 — Sale of Liquor — Following Statute. Pen. Code, art. 611, makes it an offense to sell intoxicating liquors without a license, while article 614 prohibits the carrying on of the business and the sale of intoxicants at a place other than where the licensee is authorized. Rev. St. arts. 7435 and 7446, require an applicant for a license to give the number of the premises where the business is to be carried on and prohibit sales elsewhere.. An information charged that on the 18th of April, 1915, in the county of T., accused, without having first obtained a license, did in a certain locality in said county where local option was not in force sell intoxicating liquor contrary to law. Code Cr. Proc. art. 453, declares that the information must be so certain as to enable accused to plead the judgment in bar of a second prosecution, while articles 460 and 464 declare that an information charging an offense in ordinary language so as to inform a person what is meant is sufficient, and that an information for selling intoxicants shall be sufficient if charging that accused sold intoxicating liquor contrary to any law of the state to named persons without stating the quantity. Held, that the information, which substantially followed the statute a violation of which was charged, was sufficient, while not averring the particular place in the county wherein accused made the sale, or that such place was a different one from the place where he was licensed to sell.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 271; Dec. Dig. <&wkey;>100.]
    Appeal -from Tarrant County Court; Jesse M. Brown, Judge.
    Joe Winterman was convicted of selling intoxicating liquor without a license where local option was not in force, and he appeals.
    Affirmed.
    Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of selling intoxicating liquor where prohibition was not in force without obtaining a license.

Phil Gibson testified that he had a barbecue stand near the comer of Thirteenth and Monroe streets, in the city of Ft. Worth, and had lived in Ft. Worth 20 years; that appellant lived with his son, Felix Winterman, just across the street from his barbecue stand. He further testified:

“On Sunday, the 18th day of April, 1915, about 9 o’clock in the morning, Dolly Chainey, a negro woman, came to my barbecue stand and gave me 40 cents, and asked me to get her a half pint of whisky. I took the 40 cents and went across the street to Felix Winterman’s house, where the defendant, Joe Winterman, was staying, and knocked on the door. The defendant came to the door, and I gave him the 40 cents, and told him that I wanted to get a half pint of whisky. The defendant went back into another room of the house and brought out a half pint of whisky and gave it to me, and I carried the whisky across the street to the barbecue stand and delivered it to Dolly Ghainey. About 11 o’clock that same morning Dolly Ghainey came back to the barbecue stand and gave me 40 cents again and told me to get her another half pint of whisky. I went across the street again to the house where the defendant was staying and got another half pint of whisky from him and carried it across the street to the barbecue stand, where Dolly Ghainey was, and delivered it to her. I bought a half pint of whisky from the defendant at his home on Sunday, April 4th, for 40 cents.”

On cross-examination lie testified:

“The defendant, Joe Winterman, does not run the saloon on the corner of Thirteenth and Monroe streets just hack of which my barbecue is located. He runs a saloon on the corner of Seventeenth and Terry streets, which is about a half or three-quarters of a mile from where, my barbecue stand is located. I bought this whisky from the defendant on Sunday, the 18th day of April, A. D. 1915, in Tarrant county, Tex.”

Appellant’s saloon was in a negro neighborhood.

E. H. Peters, a police officer of Ft. Worth, testified:

“About 8 o’clock on Sunday evening of the 18th day of April I saw two negroes come out of Felix Winterman’s house, where the defendant, Joe Winterman, lives. After the negroes had gotten up the street about half a block from the house I stopped them and searched them. I found 12 half pints of whisky on one of the negroes. He had them stuffed about in all of his pockets, in his shirt bosom, and around the waistband of his pants under his coat, and the other had 4 half pint bottles of whisky and one quart bottle of whisky on his person.”

It was agreed as follows:

“It is agreed that the defendant had a liquor dealer’s license on the 18th day of April, A. D. 1915, to engage in the business of a retail liquor dealer at the corner of Seventeenth and Terry streets, in the city of Ft. Worth, Tarrant county, Tex., but that he did not have a license to engage in such business at any other place in Tarrant county, nor at the place where the sales were alleged to have been made in this case. It is further agreed that the sale of intoxicating liquors was not prohibited at the place where the sale of whisky herein alleged to have occurred took place.”

Appellant denied making any of the sales to Gibson, and testified, and had some of his kinsfolk and others to so testify, which, if believed by the jury, would have been sufficient to show an alibi. The court gave appellant’s special charge submitting this question, and the jury found against him.

The said two negroes the officer arrested with the whisky on them were Lovey Sparks and Willie Slaughter. Appellant had Lovey testify that both he and Willie worked for him in his saloon on the corner of Steven-teenth and Terry streets, and that they bought said whisky found on them from him Saturday night before, to take to Gaines-ville, a prohibition city, and that about 25 minutes before train time, just before they were arrested, they went to appellant’s residence for Willie to get money to make the trip on, but that appellant was not at home, “as far as I saw,” and he and Willie were arrested as they started away. He claimed he paid appellant $2.75 on the whisky when he bought it Saturday night, and was to pay the balance when he returned. On cross-examination he said he could name no one who saw him with the whisky from the time he claimed he bought it till he was arrested. Appellant testified he usually sold the half pint bottles of whisky at 30 cents per bottle, but he sold these 12 bottles to Lovey cheaper, —for $2.75 for the 12 bottles; that when he settled with him' that Saturday night he deducted the price of the whisky from Lovey’s week’s wages and “paid him the balance in cash”; that he sold no part of it to him on credit, and Lovey had no part of it charged to his account. Appellant did not have Willie Slaughter to testify at all, nor did he testify to selling any whisky to Willie that Saturday night.

The evidence was clearly sufficient to sustain the conviction.

It seems appellant made an oral, motion to quash the information. At any rate, after the trial he made a motion in arrest of judgment on these grounds: (1) The information did not affirmatively allege he had engaged in the business of selling such liquor without a license; (2) it did not allege the particular place in Tarrant county where ho made said sale; (3) it did not affirmatively allege such sale at a place in said county other than where he was licensed to sell.

The information, after the usual heading, alleges that:

Appellant “heretofore, on the 18th day of April, A. D. 1915, in the county of Tarrant and state aforesaid, without having first obtained a license under the laws of the state of Texas as a retail liquor dealer, did then and there, in a certain locality in said county and state where local option was not then and there in force, unlawfully sell, directly and indirectly, to one Phil Gibson intoxicating and spirituous liquors capáble of producing intoxication in quantities of one gallon and less, to wit, two half pints of whisky, against the peace and dignity of the state.”

The statute (P. O. 611) is:

“No person shall, directly or indirectly, sell spirituous or vinous liquors, capable of producing intoxication, in quantities of one gallon or less, without taking out a license as a retail liquor dealer. Any person who shall violate the provisions of this article shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than five hundred dollars nor more than one thousand dollars, and by imprisonment in the county jail for a term not to exceed six months.”

It will be noted the statute says, “No person shall, directly or indirectly, sell” etc., without taking out a license; not that “no person shall engage in the business.” If the Legislature had intended not to make it an offense merely to sell without a license, but instead had intended to make it an offense only “to engage in the business,” etc., it could and would have said so in clear and unmistakable language. But the language is clear and unequivocal; that no person shall sell without a license is the offense. This court has already decided appellant’s first ground against him, and correctly so, in Trezevant v. State, 145 S. W. 1191. That the Legislature intended to make it an offense to merely sell without license is made manifest when we consider the former law. It was (White’s P. C. 1895, art. 411a) “any person * * * who shall engage in the sale of” liquor etc. “without having obtained license therefor,” etc.

We will discuss his other grounds together. The law requires a person, when applying for license to sell liquor in nonprohibition territory to expressly state the exact location where his business is to be conducted, giving the number of street, etc. (R. S. 7435, 7446), and the license, if granted, is issued to him to sell there, and nowhere else. He is expressly prohibited from carrying on his business — selling—elsewhere than the exact place his license authorizes. P. C. 614; R. S. 7433; Loicano v. State, 72 Tex. Cr. R. 518, 163 S. W. 64.

Besides other statutes prescribing what allegations shall be sufficient in an indictment and information, we have this special one on selling liquor (C. C. P. 1911, 464):

“In an indictment (or information) for selling intoxicating liquors in violation of any law of this state, it shall be sufficient to charge that the defendant sold intoxicating liquors contrary to law, naming the person to whom sold, without stating the quantity sold; and, under such indictment (or information) any act of selling in violation of the law may be proved.”

Some of the other statutes applicable are (O. C. P. 453) :

“The certainty required * * * is such as will enable the accused to plead the judgment * * * in bar of any prosecution for the same offense.”

And (article 460):

“An indictment (or information) for any offense * * * shall be deemed sufficient which charges the commission of the offense in ordinary and conciso 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.”

In our opinion, the said information fully meets each and all of these statutes, anfi is clearly sufficient. It follows substantially, and practically literally, the statute (P. 0. Gil) prescribing the offense, which is itself generally sufficient (White’s Ann. O. O. P. § 344, subd. 2, and section 347, and cases cited). In addition, it specifically avers the date of the particular sale, “on the 18th day of April, 1915.” It does not even say on “or about” said date. It also avers sufficiently the place, “in the county of Tarrant,” said state. It also avers the particular person to whom the sale was made, “Phil Gibson,” the quantity of liquor, “two half pints,” and the particular kind of liquor, “whisky,” and that, “without having first obtained a license under the laws of the state of Texas, as a retail liquor dealer, did then and there in a certain locality in said county where local option was not in force unlawfully sell,” etc.

It was wholly unnecessary for the pleading herein to allege the specific place in Tar-rant county where appellant made said sale, and that that place was not the specific place where he was licensed to sell. Nor was it necessary for the pleading to allege, in another form, that appellant had a license to sell at a particular place only, giving it, but that the unlawful sale alleged was not at that place, but elsewhere, naming it. It is true the pleader might have made these allegations. So it is true in every such pleading the pleader might allege much more of the details of the offense than is always done. But because that is not done does not render the pleading bad, if it contains sufficient, as was done in this case, to comply with the statutes prescribing the requisites of such pleading. Clark v. State, 174 S. W. 355; Wilson v. State, 61 Tex. Cr. R. 631, 136 S. W. 447; Sprague v. State, 44 S. W. 837; Lowe v. State, 4 Tex. App. 34; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112; Beaty v. State, 72 Tex. Cr. R. 634, 162 S. W. 877; Brown v. State, 168 S. W. 861, and cases therein cited; White v. State, 11 Tex. App. 476; Carter v. State, 29 Tex. App. 6, 14 S. W. 350.

The judgment will be affirmed.
      <3&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    REA v. STATE.
    (No. 3665.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.)
    1.Criminal Law <&wkey;1120 — Appeal — Matters Reviewable.
    In a criminal prosecution, where questions are asked which the court rules call for opinions of the witnesses, but the record on appeal fails to include the questions asked, the ruling must be taken as correct, and no question is presented for review.
    [Ed. Note. — For other cases, see Criminal Law,]Cent. Dig. §§ 2931-2937; Dec. Dig. <&wkey;>
    2. Homicide <&wkey;163 — Trial—Evidence—Admissibility.
    In a prosecution for uxoricide, defendant cannot show his kindness to his children, since his kindness to them was not in issue.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. &wkey;163J
    3. Criminal Law <§=^1169 — Appeal and Error — Matters Reviewable.
    Defendant’s exception to a ruling admitting evidence in his favor cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 4531-4539; Dec. Dig. <&wkey;> 1169.]
    4.Criminal Law <&wkey;1090 — Appeal—Bill op Exceptions1 — Necessity.
    Complaints in the motion for new trial of rulings on evidence, as to which no bills of exceptions appear in the record, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. &wkey; 1090.]
    5. Homicide <&wkey;290 — Trial—Instructions.
    Instructions, in a prosecution for homicide, that unless the jury believe beyond a reasonable doubt that deceased died from arsenical poisoning, and from no other cause, they should acquit the defendant, sufficiently required the state to prove that the particular poison which caused death was arsenic.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 595; Dec. Dig. <&wkey;>290.]
    6. Homicide <&wkey;291 — Instructions — Suppi-ciency.
    The evidence, in a prosecution for murder of accused’s wife by arsenical poisoning, contained nothing to authorize an inference that she took any medicine the day of her death, except the capsule given by accused, but showed that shortly after taking that she began to have convulsions, and to exhibit the other symptoms of arsenical poisoning, and died soon afterwards. Held not to require a charge on the issue of suicide, though it was shown that she was in ill health and despondent, and often wished she was dead.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 596; Dec. Dig. <§=i>291.]
    7. Homicide <&wkey;234 — Trial—Evidence—CIRCUMSTANTIAL EVIDENCE.
    Circumstantial evidence, in a prosecution for homicide, held to support a verdict of guilty.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 482-493; Dec. Dig. &wkey;>234.]
    8. Homicide <§=>233 — Motive—Necessity oe Showing.
    Proof of motive is not essential to support a conviction for murder.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 481; Doc. Dig. &wkey;>233.]
    9. Criminal Law <&wkey;>li 28 — Appeal.
    On appeal from a judgment in a prosecution for homicide, the court can consider only matters which are a part of the record in the trial court, and cannot consider an ex parte affidavit as to disqualification of a juror for bias, made after adjournment of the term at which the verdict was rendered and to consider which would require a trial on the facts involved.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2951-2953; Dec. Dig. <&wkey;> 1128.]
    Appeal from District Court, Van Zandt County; W. R. Heath, Judge.
    W. M. Rea was convicted of murder, and he appeals.
    Affirmed.
    Wynne, Wiynne & Gilmore, of Wills Point, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of murdering his wife, by administering to her poison, and his punishment assessed at life imprisonment in the penitentiary.

This was a case of circumstantial evidence, and the state adduced, as circumstances tending to show Ms guilt, that appellant’s wife died at night, and he urged the ladies present to at once prepare clothing in which to bury her; that he requested a neighbor to go to town that night to secure a coffin, etc.; that when the neighbor objected to going, because it was raining and Ms team had been turned out, appellant told the neighbor that he neglected to turn his team out that night, and he would find it in the lot, and insisted on him going; and other circumstances tending to show hurried preparation for the burial of his wife. After this testimony was adduced, appellant placed some witnesses on the stand whom he says would have testified that such preparations as he sought to have made that night “were those that ordinarily occur under circumstances of this kind, and were not unusual.” The court ruled that such questions as were propounded to the witnesses called for the conclusions of the witnesses, and not facts known by them. The bill does not allege that appellant expected to or could have proven by the witriesses that in this neighborhood the coffins were sent for at night immediately after death, and the neighboring ladies urged' to begin sewing on the burial shroud the very night of the death and within a short time thereafter. Doubtless it was usual and customary to send for a coffin, and have burial clothes prepared; but the bill ought to have gone further, and stated that in that neighborhood those who had those near and dear to them to die, sent for the coffin the very night that the death occurred, and, if burial clothes had to be prepared, that immediately upon the death of the wife the husband would ask the ladies to immediately proceed with the preparation, if such was a fact. The court says the questions propounded called for the conclusion of the witnesses, and not for the facts within their knowledge. The questions propounded are not included in the bill, and we must accept the bill as approved, and, as qualified, the bill presents no error.

In the next bill it is shown that the appellant desired to prove by some witnesses that he was kind, affectionate, and loving in his conduct towards his children, and often had them in his lap. His conduct towards his children was not an issue in this case, but his conduct towards Ms wife, and the bill shows that the court permitted each of the witnesses to testify to everything they knew about defendant’s conduct towards his deceased wife.

The next bill contends that the court permitted J. R. Kellis, sheriff of the county, to testify to a conversation had with appellant while under arrest. The court, in approving the bill, thus qualifies it:

“The witness J. R. Kellis testified as follows: T told the defendant that we came to investigate the death of his wife. He told me that he had bought some arsenic from John Pratt, with which to kill rats, and that his wife made the arsenic up in a cup, and set the cup containing the remainder of it up on the gallery plate. He told me that he put the rats that he killed with the arsenic over in a patch of woods in a pasture west of his house, and we went over there to see them, and when we got to the place I only found the carcass of one rat. It was dry skin and bones. He further stated that there was some arsenic left, and he put it and the paper both in the stove and burned it.’ This witness further testified that previous to this conversation he had not arrested the defendant, nor said anything to him about arresting him, or about any case about him, or any suspicion against him; that he had not in any way restrained him of his liberty; that he was permitted to go at his will, and that, at one time after said statements were made, the defendant went out of his sight, going into his house, and remained there some minutes, while this witness was talking to Henry Rusk; and that it was only after his return from the house that he arrested him, which was some time after the foregoing statements had been made. At this time there were no facts nor circumstances proven in the trial of this case that the defendant was under arrest, or that he was even suspicioned as having com-milled the crime, or that there were any charges of any kind against him.”

As thus qualified the bill presents no error. Martin v. State, 57 Tex. Cr. R. 264, 122 S. W. 558; Grant v. State, 56 Tex. Cr. R. 411, 120 S. W. 481; Cordes v. State, 54 Tex. Cr. R. 204, 112 S. W. 943; Williams v. State, 53 Tex. Cr. R. 2, 108 S. W. 371; Hart v. State, 15 Tex. App. 202, 49 Am. Rep. 188.

Bill of exceptions No. 4 was not approved by the court, but instead of doing so’ the court states:

“The court overruled state’s objection to the testimony complained of above, and permitted the defendant’s attorneys to bring their books in court, and to read out of them in framing their questions to the witnesses.”

This bill, under such circumstances, of course, presents no error.

While there are other complaints in the motion for new trial in regard to the introduction of and rejection of other testimony, the above four bills are all that appear in the record, and, the other complaints not being verified in any way, we cannot consider them.

The first exception to the charge of the court is that it does not present all the issues in the case, in that it failed to instruct the j,ury that it devolved upon the state to prove beyond a reasonable doubt that the particular poison from which deceased came to her death was arsenic. The court, in deference to this complaint, gave appellant’s special charge, in which the jury was told:

“Unless you find and believe from the evidence, beyond a reasonable doubt, that the deceased, Nona Rea, came to her death from ar-senical poisoning and from no other cause, you will acquit the defendant.”

The next exception is that the court erred in not submitting the issue of whether or not deceased committed suicide. The evidence, if any, which tended to raise this issue, is the testimony of appellant and his mother, Mrs. Lizzie Edgerton. Appellant testified that his wife had been in bad health for three years; that she suffered from goiter of the neck and had a womb trouble. He said on Friday, before his wife’s death on Tuesday, Dr. Echols had given him a prescription for his wife; that he had the prescription filled on Sunday, and at the same time purchased a nickel’s worth of arsenic to kill rats. A remarkable coincidence in this connection is that he had the prescription charged, but paid cash for the arsenic, thus avoiding a book entry of the purchase of arsenic. On the day of his wife’s death appellant approached the doctor -and asked him if it would not strengthen his wife to give her some quinine; he replying it could do no harm. Appellant did not purchase any quinine, but did purchase some empty capsules, saying that he got them to give her quinine in. He said, just before going to bed on Tuesday night, his wife complained of being worse, and asked him to give her a dose of- quinine; that he gave her a capsule of quinine, claiming his wife had filled it and had it ready. Soon after this his wife began to have convulsions and froth at the mouth, and complained of it lightening and thundering, when there was no lightning nor thunder. In a short time his wife died. He earnestly insisted that, if the capsule contained arsenic, he did not know it. The court instructed the jury:

“If you shall believe, beyond a reasonable doubt, that the defendant gave to Nona Rea a capsule containing arsenic in quantity sufficient to cause her death, and which did cause her death, but you further believe, or have a reasonable doubt thereof, that at the time defendant so gave said capsule to deceased (if he did) he believed the same to contain quinine, or he did not know that same contained arsenic in quantity sufficient to cause her death, then you will acquit the defendant.”

Defendant and his mother both testified to her taking patent medicines of various kinds for her ailments, but did not testify as to the contents, or that either of the medicines so taken contained arsenic or any other poisonous substance; hut they did testify that she was low-spirited, depressed, and often expressed a wish that she was dead, etc. This testimony did not call for a charge other than those above given by the court — that if deceased died from any cause other than arsenical poison, and that even though she died from. arsenical poison, yet if it was given to her by appellant through a mistake, he should be acquitted. The charges as given fully covered the defensive issues as made by the testimony.

The charge on circumstantial evidence is in language frequently approved by this court, and the charge, as a whole, is not upon the weight to be given the testimony. This disposes of all the exceptions to the charge, and the special charges requested and refused were fully covered by the court’s main charge, in so far as applicable to the issues presented by the testimony.

In the brief filed, and in an able oral argument before this court, appellant’s counsel earnestly insists that, this being a case of circumstantial evidence, the evidence is not of that cogency and force to authorize a conviction — that it does not exclude every other reasonable hypothesis than that of appellant’s guilt. Admit that Mrs. Rea was in bad health; does the evidence raise the issue that she may have died from any other cause than arsenic poison, or does it raise the issue that the poison may have been self-administered, if she died from such poison, or does it raise the issue that appellant may have given her the poison by mistake? We do not think the issue that it may have been self-administered, if she died from arsenic poison, is raised by the testimony. There is no evidence that she took any medicine on the day of her death, other than that given her by her husband, appellant, and no evidence from which such inference could be deduced. The only medicine she took on that day was-administered by appellant, and shortly thereafter she began to have convulsions. The other two issues were clearly and succinctly submitted by the court, and the jury finds against appellant on such issues. Will the testimony support such finding?

Two days before Mrs. Rea’s death appellant purchases arsenic, and, while he has his other purchases charged, the purchase of this arsenic is kept off the books; he paying cash for it, and it alone. The day of Mrs. Rea’s death he asks the attending physician if quinine would not benefit her. He purchases no quinine, but does purchase empty capsules. That night he administers to his wife a capsule, which he contends contained quinine, but which the evidence would authorize the jury to find contained arsenic, for the witness from whom appellant says he borrowed quinine on that day testifies appellant borrowed no quinine from him. So the record would authorize the jury to find there was no quinine at appellant’s house, and that he had knowledge of that fact. Shortly after administering the capsule by appellant, Mrs. Rea began to have convulsions, and exhibited other symptoms which the doctors say accompany a death occasioned by administering arsenic. He takes the rings from his wife’s fingers before her death, saying it was her desire that they be removed before death, and makes other remarks which indicate that appellant was aware death would ensue, after his wife began to have convulsions. Expressions which would indicate a desire for a hurried burial, and the further fact that, when the body was exhumed, a portion of the stomach was found to contain arsenic. Dr. Louis Rosenberg testified:

“I made the examination, and made several different tests, and found traces of arsenic in the stomach. I did not make a quantitative test, for the reason that I only had a portion of the stomach to work with. In order to have made a quantitative test, it would have been necessary to have had the entire stomach and the intestines and the liver and kidneys. There is no such thing as normal arsenic in the stomach. The presence of arsenic in the stomach indicates that the patient has recently taken arsenic.”

The evidence does • not suggest that the arsenic was taken in any other way, except that it was administered to Mrs. Rea by appellant in the capsule given her shortly before she began to have convulsions. It is true appellant, by the testimony offered in his behalf, seeks to explain many of these circumstances; but the jury was not bound to accept the explanations, and when the record is read as a whole one is not surprised that the jury did not do so.

Appellant contends no motive was shown why appellant should desire the death of his wife. It is not essential, to sustain a conviction for murder, that motive be shown. It is true that when murder was divided into two degrees in this state — one upon express and one upon implied malice — it was held to sustain murder of the first degree express malice must be shown, but an unexplained killing was always held to be murder in the second degree. And now this ■ rule applies to all murder cases. So it was not essential that a motive be shown, but we think a motive was shown. Appellant had an invalid wife. The record would suggest that he had become enamored of an excellent young lady in the community, though it might be proper here to state that no improper relations of any character existed, and it is not shown that, prior to the death of the wife, the young lady knew of the infatuation of appellant. She, however, was made aware of it in a very few days after the death of Mrs. Rea. Appellant delivered her the rings taken from the fingers of his wife as she was dying, and claimed to have discovered a letter written by his wife. This letter, the evidence demonstrates, was not written by Mrs. Réa, but was written by appellant, and by him shown to the young lady in less than a week after the death of his wife. The letter is as follows:

“Letter of Request to my man and babys
“Wills Point Tex 5/10/1914
“Dear husband and babys Miron I want you at my death to Keep my to Little girls to geater and be good to thim as you have in the Past You have Been a true husband to me I never called on you to do eny thing But What you done it god en heaven only Knows how good you are to me sweet I am not going to Live Long But When I die Put me away nice Burie me en my brow skirt and that silk waist that is to Bee maid and dont Put no Jewelry on me take my Rings of and Lot Etter Wallace have' to of thim and You Keep Your own and as you all ways thought so much of etter I want you to go to see her for I had Rather she would Gome Over My to Little girls than eny one that I know of she is a good girl and a Pure hearted Miron this girl Likes you and I no you do her for you all ways talked so much and I Told you that she was one of the Nacest girls en this country you write to Etter she cant do nothing but Refuse you are Let you come to see her Miron Please dont Part my to Little girls for this is my Prair sweet god have mersy on my family and give thim Pure helth and when I am dead and gon take care of thim god bless my husband for he has Been Like a father to me O god he has stayed with me through thick and thin when there was no one else to stay with me god may this couple reign to geather if it is you Powe Precious god if this so does hapen Let thim get along Like we did
“god bless my family is my Prair Amen
Nona Rea.”

Appellant also brings up what he terms a supplemental transcript, in which is shown the affidavits of Mr. Petit and wife, made September 23, 1915. The term of court at which appellant was tried adjourned April 9, 1915. So it is evident that the affidavit was made some five months after court had adjourned for the term. We are not authorized to consider this ex parte affidavit; but, if we were, as it would show that one of the jurors had formed and expressed an opinion prior to being impaneled on the jury, it would be necessary for us to hear evidence and determine the question whether or not the juror had expressed an opinion, for on the trial the juror must have sworn that he had no opinion that would influence him in rendering a verdict. On appeal we are not authorized by law to hear evidence on such an issue, nor consider matters not made a part of the record in the trial court. It is true appellant says he was not made aware of this matter until long after court had adjourned for the term; but we are bound by the law, which, on appeal, only authorizes us to review the record as made in the trial. It may be that such matters as this may suggest to the Legislature the advisability of authorizing an independent suit to be brought in the trial court to set aside the judgment, when grounds are discovered after adjournment of court, as has been provided in civil cases. But under the law as it now exists we are not authorized to take into consideration the affidavit, but must pass alone on the record as certified to us by the clerk of the court; and, finding no error therein, the judgment is affirmed. '
      tgn^For other cases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes

      <@zs>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILLIAMS v. STATE.
    (No. 3697.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Homicide i&wkey;89 — Assault with Intent to Kill.
    Where defendant fired into a small room packed with people in reckless disregard of human life, with intent to kill some one, knowing that he would strike or kill some one, and did shoot some one, he was properly , convicted of assault to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 115-118; Dec. Dig. &wkey;89.]
    2. Homicide &wkey;3l57, 166 — Evidence—Motive.
    In a prosecution for shooting, evidence of defendant’s difficulty with a person who had won his money, and whom he probably intended to kill, was admissible to show his state of mind and his motive.
    [Ed. Note. —For other cases, see Homicide, Cent. Dig. §§ 288-292, 320-331; Dec.Dig. &wkey;157,166.1
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    John Williams was convicted of assault to murder, and he appeals.
    Affirmed.
    Chas. Ashworth and Monroe Ashworth, Jr., both of Kaufman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for assault to murder, with the penalty assessed at five years in the penitentiary.

It is unnecessary to detail the testimony of the witnesses. As a whole it was sufficient to sustain the verdict, and to show that on February 21, 1913, appellant, a negro man, and 21 others, assembled at the house of one of them to gamble; that they did gamble, at least from early in the evening till some time in the night; that in the evening, when appellant and Joe Alexander, with Chase, were in a game gambling a disturbance arose between appellant and Alexander about a quarter, when appellant drew his pistol and attempted to shoot Alexander, but Chase overpowered him, prevented' the shooting, and took his pistol away from him. The gambling proceeded, various games going on between- different groups of the negro men. In some or all the games all of appellant’s money was won from him. tie then went for his pistol, got and fired it in the room, the ball striking a negro woman, Estell Neal who was in the room, passing entirely through her body severing one of her intestines, and also striking the finger of her husband. In this room, which was only 14 by 16 feet, were 22 negro men, including appellant, and four negro women, including said Alexander and the others who had won his money. Immediately upon his firing John Polk, who was right at him, grabbed the pistol, and tried to get him to give it to him, but appellant refused. They scuffled over it for some time, appellant at last threw Polk down, wrenched the pistol from him, stating: “You’heard them say I done shot this girl; I want to make my getaway ;” and “that he was sorry it was like it was — if he had known it was like it was, it would have all been different.” He then fled and made his “get-away.” It was nearly a year before the officers caught him in a distant county, although they sought for him all the time.

The wounded woman was taken to a hospital, where she was treated, and lingered for some time, and then died. The testimony of the doctor showed that at last an operation was performed on her to cause the severed intestine to join, bub his testimony tended to show her death was probably due to this operation; hence for that reason the judge did not submit murder to the jury. There is no complaint whatever of the charge of the court.

Appellant did not testify. His defense was the shot was accidental. The court told the jury, if it was, to acquit him. Doubtless his shot was intended for Alexander, or some of the others who had won his money, or, at least, fired into a room packed with people “in such utter and reckless disregard of human life as showed him to be an enemy to all mankind,” and with intent to kill some one, and when he is bound to have known he would strike or kill some one. It was doubtless on this ground he was rightfully and legally convicted. Aiken v. State, 10 Tex. App. 610, and authorities therein cited; Lopez v. State, 2 Tex. App. 204.

Appellant contends the evidence was insufficient to sustain the verdict. We think it was sufficient. He also contends it was error to admit evidence of said difficulty between him and Alexander. We think this was admissible to show his state of mind and his motive. McKinney v. State, 8 Tex. App. 638 et seq.; Blackwell v. State, 29 Tex. App. 200, 15 S. W. 597; Wh. Ann. C. C. P. §§ 1072, 1070; Belcher v. State, 71 Tex. Cr. R. 653, 654, 161 S. W. 459. No other questions are raised.

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


text:
    SMITH v. STATE.
    (No. 3802.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Weapons <®=oll — Unlawful Caeeting of —Defense.
    Though accused came to a city as a traveler, that fact does not warrant him in carrying a pistol about the streets for several days while searching for work.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. ®=>11.]
    2. Weapons ®=j11 — Unlawful Caeeting of —Defense.
    The right of a traveler to carry a pistol will not defeat a prosecution for unlawfully carrying a weapon, where the journey was broken and temporarily abandoned while accused burglarized a house.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. <@=>11.]
    Appeal from Tarrant County Court, Jesse M. Brown, Judge.
    Deo Smith was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Craves & Houtchens, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at 30 days’ confinement in the county jail.

Appellant presents but one assignment of error, and that is: He contends that the evidence raises the issue he was a traveler at the time of his' arrest, and had a right to carry the pistol, and the court erred in refusing to give his special charge presenting that issue. He testifies his home is Atlanta, Ga., but the last place he worked was in New Orleans, La.; that he had been in Galveston, Alvin, Houston, Waco, Hillsboro, and Ft. Worth in search of work; that he had been in Ft. Worth at the time of his arrest for 5 days, but says that on the morning of his arrest, he boarded a freight train, intending to leave Ft. Worth, but was put off at Polytechnic. If this was all the testimony, the issue might be raised, although we are inclined to think not so, for from his testimony the conclusion is inevitable that he had the pistol on him all the 5 days he was in Ft. Worth, and, if so, he had, for the time being, ceased his journey, and could not carry a pistol on his person as he went about the streets of Ft. Worth day after day, even though he was searching for work, as he contends. Alexander v. State, 57 Tex. Cr. R. 252, 122 S. W. 387. But the evidence goes further in this' case, and there is no dispute as to such facts. If appellant, as he contends, got on the train to leave Ft. Worth, and was put off at Polytechnic, he was seen sitting on the railroad track about one-half mile from where he was arrested. When he left the ráilroad track, he was seen to go to several houses, and, when finally arrested at Mr. Latimore’s house, with a pistol on his person, he admits he was engaged in burglarizing the house. This was not incident to his journey, and he had ceased his travels and engaged in an unlawful enterprise.

Judgment affirmed.


author: ■HARPER, J.

text:
    JACKSON v. STATE.
    (No. 3662.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Disokdeblt House <®=^>12 — Information —‘ ‘Lessee’ ’ — “Tenant. ’ ’
    That an information charging that defendant was the tenant of a house and unlawfully kept and knowingly permitted it to be kept for prostitution was no ground for quashing it, because it did not allege that she was a lessee; since the word “tenant” is synonymous with “lessee” [citing Words and Phrases, Lessee; Tenant].
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§, 14-19; Dec. Dig. <@=^>12.]
    2. Disobberlt House <®==>9> — Offense—Tenant.
    A married woman living with her husband, who herself leased the premises and paid the rent, though authorized by her husband to make the lease and furnished by him with money to pay the rent, might be convicted of unlawfully keeping the house for prostitution.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. § 1; Dec. Dig. <§=>9.]
    3. Criminal Law <©=^396 — Evidence—Rebuttal.
    In a prosecution for unlawfully and knowingly keeping a house for prostitution, where defendant testified in her own 'behalf that, when arrested on a charge of vagrancy in that she was a common prostitute, she was mistreated by the police officers and induced to enter a plea of guilty through misrepresentations and false promises, it was proper in rebuttal to permit the officers to explain the whole matter.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. <§» 396.]
    4. Criminal Law @=>954^-Motion foe New Trial — Requisites.
    In a motion for a new trial, appellant should specifically point out to the trial court the reasons why he should be granted a new trial, so as to give the court a chance to correct its own errors, if any.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. ©=» 954.]
    5. Criminal Law <©==>1129 — Assignments of Erroe — Time of Filing.
    Assignments of error filed after the term at which appellant was tried has adjourned have no place in the record and should not be copied therein, for under the law and the rules governing the Court of Criminal Appeals it cannot consider them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2954-2964; Dec. Dig. 1129.]
    Appeal from Hunt County Court; H. O. Norwood, Judge,

      Mrs. John Jaelcson was convicted of unlawfully and knowingly keeping a house for prostitution, and she appeals.
    Affirmed.
    Spearman & Oasey, of Greenville, for appellant. O. 0. McDonald, Asst. Atty. Gen., for the State.
   ■HARPER, J.

Appellant was convicted under an information charging that appellant “was a tenant of a house situate in Hunt county, Tex., and that she did then and there unlawfully keep, and was concerned in keeping, and knowingly permitted to be kept the said house for prostitution, and where prostitutes were permitted to resort and reside for the purpose of plying their vocation,’’ etc. Appellant moved to quash the information because it alleged she was a tenant, and did not allege that she was the “lessee” of the house. In the sense the word “tenant” is used in the information it is synonymous with “lessee,” and the court did not err in overruling the motion. Words and Phrases, vol. 8, p. 6904.

Appellant also contends that as she was a married woman, living with her husband, he would be the tenant, and not her. In this particular instance the owner testifies that appellant was the person who made the trade with him for rent of the premises, and the person who paid him the rent. It is true the husband testifies he authorized his wife to make the rental contract, and furnished her the money to pay the rent. This question was decided adversely to appellant’s contention by this court in Curry v. State, 24 S. W. 516, wherein it was held that either or both may be prosecuted and convicted.

Appellant took the stand and testified in her own behalf, and testified that when arrested by the city officials, being charged with being a vagrant, in that she was a common prostitute, she was mistreated by the officials, and especially the chief of police; that she was induced to enter a plea of guilty through misrepresentations and false promises, etc. Having herself injected all this matter into the case by her testimony, to create sympathy for herself, it was proper in rebuttal to permit the officers to explain the whole matter, and the bills complaining of the admissibility of this testimony present no error. The state was not bound to accept her statement in regard to her arrest, treatment, etc., and why she entered the plea of guilty. The record before us discloses that the state elicited none of this matter in making its case, and, if we examine the record no further than the state’s testimony in chief, we would not know that appellant had ever been arrested as a vagrant or that she had pleaded guilty of being a common prostitute. This testimony first appears in the record when she took the stand to testify in her own behalf. Under such circumstances, the court was correct in holding that the testimony was admissible to contradict and impeach her.

The appellant’s motion for a new trial was rather vague and indefinite. It first complains:

“That the court erred in its main charge to the jury, as shown by bills of exception Nos. 1 to 3; (2) because the court erred in refusing to give defendant’s special charges Nos. I to 7 inclusive, and Nos. 10 and 11; (3) because the court erred in the admission and exclusion of testimony, as shown by bills of exception Nos. 4 to 60 inclusive; (3%) because the court erred in overruling defendant’s motion to quash the information; and (4) because the verdict and judgment of the court are contrary to and not supported by the evidence.”

This is all of the motion for new trial. The motion was overruled March 5th, and the term of court at which appellant was tried adjourned April 24, 1915, and none of the bills of exception were filed until after court had adjourned, consequently on March 5th the court was given but little, if any, information as to the reasons why appellant thought she was entitled to a new trial. There are no 60 bills of exception in the record, nor quite half that many. In the motion for a new trial appellant should have specifically pointed out to the trial court the reasons why she thought she should be granted a new trial, otherwise the trial court is given no chance to correct its own errors, if any committed. Assignments of error, filed long after the term of court has adjourned, have no place in the record, and should not be copied therein, for under the law and rules governing this court we cannot consider same. Sue v. State, 52 Tex. Cr. R. 122, 105 S. W. 804.

While this record is in the shape above pointed out, yet we have carefully considered each bill of exceptions contained therein, and none of them present any error. The evidence offered in behalf of the state amply supports the verdict, and the special charges given at the request of appellant, and the main charge, fully presented each and every issue in the case.

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


text:
    SPICER v. STATE.
    (No. 3667.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1915.
    Rehearing Denied Nov. 10, 1915.)
    1. Parent and Child &wkey;>17 — Offenses — Failure to Support Child.
    Under Acts 33d Leg. c. 101, §. 1, making it an offense for a father to neglect or refuse to provide for its maintenance if under 16 years of age, it was immaterial that the child was' born after he had deserted his wife.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 176-181; Dec. Dig. &wkey;17.j
    2. Criminal Law <&wkey;577 — Time for Trial-Waiver.
    Defendant, entitled to two whole days to prepare for trial, who announced ready for trial, who had a verdict of not guilty, and who, when an information was at once refiled, stated that he would be ready for trial as soon as he could prepare a plea of former acquittal and a motion to postpone, and on inquiry by the court said he did not care whether they were ruled on then or not, and who announced ready, thereby waived the time allowed for preparation for trial.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1305, 1506; Dec. Dig. <&wkey; 577.]
    3. Cbiminal Law >3=3170—FoemeR Acquittal.
    Where an information in a former complaint charged an impossible date, a conviction could not be had under it, so that an acquittal thereunder was not available as a plea of former acquittal.
    [Ed. Note—For other cases, see Criminal Law, Cent. Dig. §§ 312—321; Dec. Dig. <@=>170.J
    Appeal from Jones County Court; J. F. Lindsey, Judge.
    C. H. Spicer was convicted of deserting his wife and child, and he appeals.
    Affirmed.
    Joe C. Handel, of Hamlin, for appellant; C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of deserting his wife and child. His first contention is that the indictment is insufficient to charge an offense. It is in language frequently approved by this court, and we do not deem it necessary to discuss it further.

Another contention is that, as the baby was born after he deserted his wife, if he did do so, he cannot 'be convicted of the offense of deserting his baby. Section 1, c. 101, Acts 33d Leg., not only makes it an offense to desert the child, hut also makes it an offense to neglect or refuse to provide for the support and maintenance of the child, if under 16 years of age. The information is brought under this provision of the Code.

Appellant contends that he was placed on trial in less than two days after the complaint and information were filed. Under our procedure he was entitled to two whole days to prepare for trial, unless he voluntarily waived the time. The record discloses that an information had been filed against him, charging him with the commission of the offense on November 15# 1915, an impossible date, as that time has not yet arrived. When the case was called for trial he announced ready for trial. When the county attorney discovered his mistake, he desired to dismiss the case. Appellant insisted on a verdict of not guilty on that complaint, as he had announced in the case. The court entered a verdict of not guilty in accordance with appellant’s request. The county attorney at once stated he would refile, and did so, charging the offense as of date March 20, 1915. When appellant was rearrested and was asked if he desired to make bond, appellant’s counsel stated it was unnecessary, as he would be ready for trial as soon as he could prepare a plea of former acquittal. Time was given him, and when the case was called for trial, he filed a plea of former ae-quittal, and also filed a motion with the clerk: “Now comes the defendant and moves the court to postpone this case until Saturday, May 1st.” When these two pleas were filed, the court asked counsel for appellant if he desired to present them and have them ruled on at that time, when counsel replied, “I do not care whether you rule on them just now or not” and did not call the court’s attention to the motion. Without further action he announced ready and proceeded with the trial. If appellant desired the two days to prepare for trial, he should have called the court’s attention to his motion, had it acted on, and if the court overruled the motion and forced him to trial, took a bill of exceptions to the action of the court in so doing, and if he had taken that action, it would require us to reverse the case. But instead of doing this, he informs the county attorney he will be ready for trial as soon as his plea of former acquittal is prepared. When he gets this prepared, he files with it his motion to postpone, but does not call the court’s attention to it, nor have it ruled on then. 1-Ie announces ready for trial, and proceeds with the trial and not until after the verdict is rendered does he complain. His acts and conduct amount to a waiver in law.

The only other contention is that the court erred in not sustaining his plea of former acquittal. The information in the first complaint charging an impossible date, a conviction could not have been had under it. or, if secured, would have been a nullity. The information and complaint being void, tn£ court did not err in overruling the plea.

The judgment is affirmed.
      other oases see same topic and KEY-NUMB12R in all Key-Numbered Digests and Indexes


text:
    BENNETT v. STATE.
    (No. 3746.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Recobbs <&wkey;17—Supplying Lost Recobds —Change op Venue—Jueisbiction.
    Where defendant was indicted in the district court of F. county and pleaded not guilty, and his motion for a change of venue to M. county was granted and the copies of the indictment, orders, etc., were certified and sent to the clerk of the M. county district court and were lost, the jurisdiction of the M. county district court attached, and it might take proceedings to substitute the lost papers.
    [Ed. Note.—For other cases, see Records, Cent. Dig. §§ 25, 26, 28-35, 43; Dec. Dig. r&wkey;> 17.]
    2. Reooeds <&wkey;17 — Substitution op Lost Papees—N OTICB.
    In view of Code Cr. Proc. art. 482, regulating when and how lost papers in a criminal case can be substituted and not expressly providing for notice to the accused, such papers can be substituted without notice and service thereof upon him; and, in any event, his appearance and answer' to a motion to substitute lost papers without such service amounted to a waiver of notice.
    [Ed. Note.—For other cases, see Records, Cent. Dig. §§ 25, 26, 28-35, 43; Dec. Dig.

      3. INDICTMENT AND INFORMATION SUBSTITUTED Copy—Trial.
    The fact that a substituted copy was not the indictment of a grand jury was no ground why accused could not be tried upon such copy.
    [Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 77-82; Dec. Dig. <&wkey;>14.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Horace Bennett was convicted of burglary of a private residence at night, and he appeals.
    Affirmed.
    W. E. Rogers, of Marlin, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the burglary of a private residence at night and his punishment assessed at 20 years in the penitentiary.

There is no statement of facts. Appellant has three bills of exceptions which will be considered together. In substance, they show that the appellant was duly indicted in the district court of Falls county where the offense was committed; that he was duly arrested, confined in jail, .made a motion for a change of venue which was assented to by the county attorney, and thereupon the court entered the proper order changing the venue to McLennan county, Tex., and ordered the sheriff to deliver him to the sheriff of McLennan county before the next term of the district court of that county. Before the order of change of venue was made, appellant was duly arraigned and pleaded not guilty. The district clerk of Falls county, in compliance with the statute, made properly certified copies of the indictment and other papers therein and also a proper certified copy of all the orders made in the district court of that county; that he sent the original papers and this properly certified transcript of the orders to the clerk of the district court of McLennan county, Tex. None of these papers were ever received by that clerk, but were shown to have been lost. .The county attorney of McLennan county duly, by a motion in writing, suggested the loss of said papers and made two motions, one to substitute the said certified copy of the orders of the district court of Falls county, and the other to substitute the indictment. To these respective motions he attached properly certified copies from the district clerk of Falls county of all of the said orders and of the said indictment. The court made all the proper orders in compliance with the statute and the decisions of this court, and substituted the said copy of orders from Falls county and the indictment. There is no suggestion or claim by the appellant that these papers, as substituted, were not absolutely correct in every particular.

He attacks the action of the district court of McLennan county in three particulars. First, he claims that because the'said papers from the district clerk of Falls county never reached the district clerk of McLennan county, but were lost in transit, the jurisdiction of the McLennan county court never attached, and that whatever proceedings to substitute the lost papers were necessary to be made in- the district court of Falls county, instead of McLennan county. This question has been expressly held against him in Berg v. State, 64 Tex. Cr. R. 612, 142 S. W. 884.

His second ground was that the court could not act on the county attorney’s motions to substitute, unless and until he was duly served three days with notice thereof. He was present when the motions were acted upon by the court, and, before the court acted thereon, filed his objections to the court acting on the mattér on both of the grounds just mentioned. So far as notice to him is concerned, the statute regulating when and how lost papers in a criminal case can be substituted (article 482, C. C. P.), and the decisions thereunder do not provide that notice shall be served upon an accused before such lost papers can be substituted, and this court has expressly held that such papers can be substituted without such notice and service thereof upon him. Burrage v. State, 44 S. W. 169, and Id., 44 S. W. 1104. Even if it had been necessary to serve appellant with notice of the filing of these motions, his appearance and answer thereto, without such service, amounted to a waiver of notice and effected the same purpose as if he had been timely served with notice.

Appellant’s only other ground is that he claimed that he could not be tried under the substituted copy of the indictment because that substituted copy was not the indictment of a grand jury. His contention is wholly untenable. We deem it unnecessary to discuss at any length either of the questions raised by appellant.

The judgment is affirmed.
      <S=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ALVEREZ v. STATE.
    (No. 3733.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Witnesses <&wkey;37—Recollection of Witness— Fixing- Time — Evidence—Admissibility.
    In a prosecution for selling intoxicating liquors in prohibition territory, evidence'to fix the time of sale within the period of limitations held not objectionable as seeking. to make the witness testify as to facts of which he had no recollection.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 80-87; Dec. Dig. &wkey;>37.]
    2. Criminal Law <&wkey;949—New Trial—Motion— Sufficiency.
    A motion for new trial in a prosecution for selling intoxicating liquors in prohibition territory, which states that defendant has found r.ew evidence in support of his testimony, and to disprove the testimony of state's witnesses, but that he is unable to have the affidavits of the witnesses attached because they live at a distance from where defendant is kept in eusto-dy, Which is not sworn to and which fails to give the names of the witnesses and what he expects to prove by them, was properly overruled as being too vague and indefinite.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2344; Dec. Dig. <S=^949.]
    Appeal from District Court, Atascosa County; P. G. Chambliss, Judge.
    Chon Alverez was convicted of selling intoxicating liquors in prohibition territory, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., .for the State.
   HARPER, J.

Appellant was convicted of the offense of selling intoxicating liquors in prohibition territory, from which conviction he prosecutes this appeal.

There were no exceptions reserved to the charge of the court and no special charges requested. The only exception reserved to the introduction of testimony recites:

“Jim Dillard, a witness for the state, being on the witness stand under oath as a witness, the following questions and answers ensued, it being redirect examination of said witness: ‘Q. Jim, why did you tell me that was in January of this year? Mr. Brown: We object— (No ruling noted.) Witness-: I told you I didn’t know. Q. What month was it? A. I don’t know what month at all. Q. You know it was this year? A. Yes, sir. Q. You know it was before you came into the room — into the grand jury room. A. Yes, sir. Q. Was it before that time? A. Yes, sir. Mr. Brown: We object to these questions trying to get this witness to tell something he doesn’t know. The Court: Objection is overruled. Proceed. Mr. Brown: Note our exception.’ Which testimony was objected to by the defendant at the time it was offered, upon the following grounds, to wit: The witness had testified as to his utter lack of knowledge as to the month and day on which the alleged sale of liquor was consummated. The course of questioning by the district attorney was calculated to refresh the mind of the witness, if possible, without any recollection of the facts in the mind of the witness upon which to base any hope of direct knowledge in the memory of said witness. Also, the same was ■calculated to strengthen the witness in the minds of the jury, and to prejudice them against the defendant.”

The witness had testified that he did not remember the day nor month. On his cross-texamination appellant had sought to show that his remembrance of the occasion of the purchase was vague, and witness could not, or would not, fix the date. It is shown he was a boy, who could neither read nor write, and very illiterate. To bring the date within the period of limitation, it was permissible to -show that the purchase was made some time during this year, and the testimony was not subject to the objections made.

In the motion for a new trial appellant states that:

“This defendant has found new evidence in support of his own testimony, and new evidence to disprove the testimony of state’s witness Jim Dillard, all of which he is willing to verify by affidavit of said witnesses, and would have their affidavits attached hereto, but for the fact that he has not had the time nor the opportunity to obtain the same by reason of the fact that said new witnesses live at such a distance from where this defendant has been kept in custody since the trial herein, that it has been impossible for him to secure said affidavits.”

This motion is not sworn to by appellant, nor any other person. It will be noticed he does not give the name of the witness or witnesses, nor what he expects to prove by the witness or witnesses. Under such circumstances, there was no error in overruling this ground of the motion for a new trial. It was too vague and indefinite.

The judgment is affirmed.
      &wkey;>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    Ex parte NEYLAND.
    (No. 3828.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    Bail <&^>52 — Amount of Bail — Excessiveness.
    The Court of Criminal Appeals will not set aside a judgment, fixing the bail of a person indicted for murder at $5,000, where, though he produced evidence with reference to his ability to give bail, putting the maximum that he could give at $1,000, it does not appear that he has attempted to give bail in the amount fixed and failed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 209; Doc. Dig. <@=»52.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Application by T. L. Neyland for admission to bail. From the judgment fixing the amount of bail, he appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. O. O. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Applicant was indicted for murder. The facts attending the homicide are not made a part of the record, and in fact the record shows the testimony was not introduced. The record shows the indictment, process, and return of the sheriff were introduced, and such documentary evide'nce as pertained to the cause after arrest. The judgment of the court refusing bail follows this. Applicant produced evidence with reference to his ability to give bail, putting the maximum that he could give at $1,000. There is no evidence showing that he made an attempt to give this amount of bond, and failed. The record shows that upon placing the bond at $5,000 he gave notice of appeal. As the matter stands, we are of opinion that the court would not be justified in setting aside this order of the court. . If the party had not been able to give the bond, after making due and appropriate attempts, we would have a different question presented, but this is not here made to appear. In fact, it rather appears that he made no attempt by reason of the fact that, upon the entering of the judgment placing the bail at $5,000, he gave notice of appeal. We suppose the theory of this appeal is that $5,000, under the circumstances, is too large. We cannot, in the state of the record, so hold. It may be that if, after due effort is made to give bail in the amount fixed, he fails, the trial judge should look into the matter and, if thought advisable, reduce the bail.

As the record is presented, the judgment will be affirmed.
      ®=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte HENGY.
    (No. 3742.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    Habeas Corpus <&wkey;113 — Jurisdiction — Release Pending Appeal.
    The Court of Criminal Appeals has no jurisdiction of an appeal from the judgment in a habeas corpus proceeding remanding the petitioner to custody, where he is admitted to bail pending the appeal.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. <&wkey;>118.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Habeas corpus by Louis I-Iengy. Prisoner remanded to custody, and he appeals.
    Cause dismissed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was arrested on a proper warrant issued on a complaint against him from the corporation court of the city of Dallas, and was held in custody by the chief of police of the city thereunder. He sued out before one of the district judges of Dallas a writ of habeas corpus seeking his discharge from said arrest and Imprisonment. The judge heard the case and all the evidence and remanded him to the custody of the officer holding him. 1-Ie thereupon appealed from the judge’s order to this court and at once entered into a recognizance and was discharged from actual custody by virtue thereof.

Under such circumstances1, it has uniformly been held by this court that it has no jurisdiction to hear and (ietermine any such cause. The giving bond or recognizance and discharge thereunder prevents this court from acting on the appeal. Ex parte Snyder, 39 Tex. Cr. R. 120, 44 S. W. 1108; Ex parte Talbutt, 39 Tex. Cr. R. 12, 44 S. W. 832; Ex parte Richie, 177 S. W. 85; Ex parte Harvey, 177 S. W. 1174, and cases cited in these several- cases.

This caus-e is therefore dismissed.


text:
    LOCKETT v. STATE.
    (No. 3751.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    ■Homicide <&wkey;340 — Appeal — Harmless Error-Instructions.
    Where, in a prosecution for homicide, the coui’t charged on self-defense and further charged on manslaughter, giving- the general definition of what is meant by “under the immediate influence of sudden passion” “and adequate cause,” and stating that the passion cannot be a result of former provocation, that the act causing-' the death must be caused directly by passion from provocation then given, it not being enough that the mind is merely agitated by passion from previous or other provocation, and that the jury should consider the matters occurring at and prior to the homicide in determining provocation, with a further charge on murder and manslaughter, submitting the punishment, and the jury assessed the lowest punishment for manslaughter against the defendant, the charge is not reversible error as being so general and abstract as to mislead the jury into thinking that defendant was offering some excuse under his right of self-defense.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. &wkey; 340.] . . .
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge.
    Sidney Lockett was convicted of manslaughter, and appeals.
    Affirmed.
    L. D. Bro-wn, of La Grange,-for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

The only hill of exception in the record complains of the fact that Mr. Sam Shel-bourne, foreman of the grand jury, was not a citizen of Fayette county, and therefore not a competent grand juror, and, being incompetent, he was a person not entitled to be in the grand jury- room at the time the indictment was found. It is unnecessary to discuss that question, inasmuch as the facts show that Mr. Shelbourne was a citizen of Fayette County and a qualified juror.

Appellant filed exceptions to the charge at the time it was given, first, because the court did not peremptorily instruct a verdict for the defendant. It is useless to discuss that in view of the testimony. We are of opinion the court was correct in not so instructing the jury. The second exception to the charge is because it gives general and abstract propositions of law upon the subject of manslaughter, not applicable to the facts and issues, and by the giving of which in such general and abstract form the jury were misled and confused to the prejudice of the defendant, and caused them to conclude defendant was offering some excuse under his right of self-defense. The charge on manslaughter we think is not subject to the criticism. It gives the general definition of what is meant by “under the immediate influence of sudden passion” and “adequate cause,” and that the passion is not the result of a former provocation, and that the act causing death must be caused directly by the passion arising out of the provocation then given, and it is not enough that the mind is merely agitated by passion arising from some other or previous provocation, but, in determining as to the provocation at the time, the jury-should consider all the evidence in the case, of matters occurring at the time of the difficulty, and all matters occurring prior thereto. The court also gave the definition of “adequate cause,” etc. The court charged on murder, submitting the punishment, and also on manslaughter, submitting the punishment. Take the charge as a whole, it seems to be sufficient. The court also gave a charge on self-defense, of which there is no complaint. Inasmuch as the defendant received the lowest punishment for manslaughter, and that being an issue in the case under the facts, we are of opinion there is no such error, even if the charge was not as full and specific as it might have been. Where the charge on manslaughter may be deficient in some respects, and the jury award the lowest punishment, we are of opinion the charge would not be error unless it interfered with defendant’s rights to the extent of cutting off or minimizing his theory of self-defense. Had the defendant received above the minimum punishment, the charge would have been critically reviewed, but, as before stated, manslaughter being in the case, and the court having fairly presented that question, and the lowest punishment having been awarded, and in the absence of the fact that he contended it eliminated his self-defense or in any wise minimized it, we do not believe it should be cause for reversal.

The other matters are mainly with reference to the sufficiency of the evidence to support the conviction. This issue was sharply controverted. The state’s evidence would make a case fully as high as manslaughter. That for the defendant presented the issue of self-defense. 'It is not the purpose of this opinion to review the testimony. The issues were made, and the jury decided them, and there is evidence which justifies the verdict. Under this view of the record, we think the judgment ought to be affirmed; and it is accordingly so ordered.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J. HARPER, J.

text:
    ORNELAS et al. v. STATE.
    (No. 3703.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    Criminal Law &wkey;>1128 — Appeal—Review-Motion fok New Tkial— Consideration ’ of Affidavit.
    After conviction an affidavit of a juror was filed, to the effect that after retirement of the jury - one of the jurors mentioned that a defendant did not testify in his own behalf or in that of the other defendant, stating that his failure was a circumstance tending- to show defendants’ guilt, and that the fact was discussed by different members of the jury and considered by them in rendering the verdict. Such affidavit was not attached to or made a portion of or an exhibit to the motion for new trial, which was overruled on the same day that the motion was sworn to and'filed. Held, that the-judgment must be affirmed, as such affidavit could not be considered, since, before the defendants could take advantage of it, it must affirmatively appear that it was called to the attention of the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Pent. Dig. §§ 2951-2953; Dec. Dig. &wkey;
    Davidson, J., dissenting.
    Appeal from District Court, El Paso County; W. D. Howe, Special Judge.
    Gabino Ornelas and Alfonzo Munoz were convicted of burglary, and they appeal.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for tbe State.
   DAVIDSON, J.

Appellants were convicted of burglary, their punishment being assessed at two years’ confinement in the penitentiary.

The record is before us without a statement of facts or bill of exceptions. A motion for new trial was filed on the 5th day of June, alleging that the verdict was not supported by the evidence, and was contrary to the law and the evidence as submitted to the jury. On June 21st an amended motion for new trial was filed. It is unnecessary to notice the first ground. The second ground is as follows:

“Because the jury after they had received the charge they retired to their room to consider their verdict, discussed the fact that defendant Ornelas never testified in his own behalf, and considered that as a circumstance showing the guilt of the defendants herein.”

On the same day, June 21st, .the, following affidavit was filed:

“Before me the undersigned authority this day personally appeared Luther Davenport, who after being by me duly sworn deposes and says that he was a juror that tried Gabino Ornelas and Alfonzo Munoz, and that after the jury had retired to the jury room to consider the evidence in said cases one of the jurors during the discussion of the evidence mentioned the fact that the defendant Ornelas did not testify in said case either in his own behalf or in the behalf of the. defendant Munoz and that his failure to so testify was a circumstance which tended to show tire guilt of the defendants, and this fact was discussed by different members of the jury and was considered by them in rendering the verdict herein.
“[Signed] Luther Davenport.”

This was properly sworn to and. filed on June 21st. ' On the same day, June 21st, the court entered this judgment i

“On this day came on to be heard the motion of the defendants, Gabino Ornelas and Alfonzo Munoz, to set aside the verdict and judgment and grant him a new trial of this cause, the said defendants Gabino Ornelas and Alfonzo Munoz being present in court, in person, and the court having heard said motion read, and being fully advised in the premises, is of the opinion that the same should be overruled. It is therefore ordered,” etc.

The writer is of the opinion that this judgment should be reversed. This affidavit is uncontroverted, and is the only thing in the record bearing on the question of the discussion by the jury of the failure of defendant to testify. My Brethren are of the opinion that as this affidavit was not re-ferrecl to in the motion for new trial, or made an exhibit to it explicitly, therefore it may not have been called to the attention of the trial judge, and that before appellant could take advantage of this it must affirmatively appear in some way that it was called to the attention of the court, and in this condition of the record they hold the judgment ought to be affirmed. In view of their conclusion about the matter, the judgment will be affirmed, but the writer believes that inasmuch as it is specifically alleged in the motion for new trial that the jury discussed the failure of Ornelas to testify, and that the affidavit was filed the same day as was the motion for new trial, and the court on the same day overruled it, this is sufficient evidence of the fact that it was called to his attention, and that he was aware of its existence as part of the motion for new trial. There is nothing to indicate the court did not know it, and it may be very reasonably presumed, and is in my judgment a just conclusion, that, if this affidavit had been filed after the action of the court on the motion for new trial, this record would have shown it. The district attorney certainly would not have let anything of this sort pass him, and especially as the court did not adjourn until the 26th of June, five days after the overruling of the motion for new trial. But, in obedience to the opinion of the majority, the order will be entered affirming the judgment.

HARPER, J.

(concurring). I agree to the affirmance because the motion for new trial is sworn to by no person. The affidavit referred to in the opinion is not attached to nor made a portion of nor exhibit to the motion for new trial, but bears separate and distinct file marks, and I do not think we are authorized to consider it as a part of the motion. The order overruling the motion evidences no evidence or affidavit was introduced on the hearing of the motion.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DORRIS v. STATE.
    (No. 3738.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Bail &wkey;?65 — Criminal Prosecution — Form.
    An appeal from a conviction in a criminal case will be dismissed, where the recognizance does not set forth the punishment assessed, as required by the statute.
    I Ed. Note. — For other cases, see Bail, Cent. Dig. § 285; Dec. Dig. 4&wkey;65.]
    2. Criminal Law <&wkey;1099 — Appeal—Record —Statement of Facts — Approval Below— Necessity.
    The statement of facts on appeal in a criminal case cannot be considered, where it fails to show a presentment to or approval by the county judge.
    [Ed. Note. — For other cases, see Criminal Law,-.Cent. Dig1. §§ 2866-2880; Dec. Dig: <&wkey;> 1099.]
    3. Criminal Law <&wkey;1097 — Appeal—Refusal to Charge — Statement of Facts — Necessity.
    Upon appeal in a criminal case, the action of the trial court in refusing to give special charges, as requested, cannot be reviewed, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. &wkey; 1097.]
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    John Roe Dorris was convicted of wife desertion, and he appeals.
    Appeal dismissed.
    J. D. Barker, of Roby, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of wife desertion, and his punishment assessed at a fine of $200 and imprisonment in the county jail for a period of six months.

The Assistant Attorney General moves to dismiss the appeal because the recognizance is not in compliance with the statute, and this motion must be sustained. May v. State, 40 Tex. Cr. R. 196 49 S. W. 402; Johnson v. State, 49 S. W. 594.

But if the recognizance was sufficient to give this court jurisdiction, the statement of facts does not show to have been presented to nor approved by the county judge, and we could not consider the paper alleged to be a statement of facts. The only complaint in the motion for a new trial relates to the failure of the court to give special charges requested. With no statement of facts we can consider, it would be impossible for us to determine whether or not they, or either of them, should have been given.

The appeal is dismissed.


text:
    GRUBBS v. STATE.
    (No. 3747.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    Criminal Law <&wkey;1134? — Appeal—Bills of Exception.
    The only grounds in a motion for new trial were insufficiency of the evidence and improper argument by the district attorney. The motion was not sworn to, and that the district attorney used such language was verified in no way. Held, that as the only bill of exceptions in the record was reserved to the overruling of the motion for new trial, the one question for review was the alleged insufficiency of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. &wkey;1134.]
    Appeal from Criminal District Court, Travis 'County; A. S. Fisher, Judge.
    John Grubbs was convicted of crime, and he appeals.
    Affirmed.
    C. C. Parker, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault with intent to commit the offense of rape on a girl under 15 years of age, and his punishment assessed at 6 years’ confinement in the state penitentiary.

The Only bill of exceptions in the record is reserved to the action of the court in overruling his application for a new trial. Consequently the only ground of the motion we can review is the one alleging the insufficiency of the testimony to support the conviction. The only other ground in the motion alleges that the district attorney used certain language in his closing address'. The motion is not sworn to, and that the district attorney used such language is verified in no way.

We have carefully read the evidence adduced on the trial. There is a sharp conflict in the testimony. The little girl’s evidence, like that of many other children, is not entirely satisfactory, but when we take the evidence of the other witnesses in the case, we cannot say that the jury was not authorized to believe her statement that the appellant did make the attempt. An officer swears that on the occasion in question he caught appellant and the girl in a house occupied alone by him, with the door locked and a pallet on the floor. We do not deem it necessary to recite all the evidence.

The judgment is affirmed.
      <fe^>For other cases see same topic and KEY-NUMBKR in all Key-Numbered Digests and Indexes