author: YANTIS, J.

text:
    BANK OF GARVIN et al. v. FREEMAN.
    (No. 2426.)
    (Supreme Court of Texas.
    Dec. 22, 1915.)
    1. Appeal and EIrkor <@=173 — Necessity— Defenses.
    In an action on a note given by a corporation which defendant assumed to pay, where the defense that his contract was only that of indemnity was not pleaded, judgment for plaintiff cannot be reversed on the ground that the corporation was not entitled to sue, the contract being only one of indemnity, for Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1994, declares that the judgment shall conform to the pleadings, and this applies to the defendant as well as to the plaintiff.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §| 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. <@=173.]
    2. Bills and Notes <@=516 — Evidence—Sufficiency.
    In an action on a note issued by a corporation, evidence held to warrant a finding that defendant had assumed payment of the note and had not merely agreed to indemnify the indorser.
    [Ed. Note. — For other cases, see Bills and Notes, Cent. Dig. §§ 1800-1806; Dec. Dig. <©=> 516.]
    3. Frauds, Statute of <@=33 — Assuming Debt of Another — Novation.
    Where defendant for valuable consideration assumed the debts' of a corporation, the agreement is not, though a corporate note was indorsed by others, void as to them because not in writing, the statute of frauds (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3965) declaring that no action shall be brought to charge any person upon a promise to answer for debt; default or miscarriage of another being inapplicable.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. <@= 33.]
    4. Venue <@=22 — Provision.
    Where plaintiff who had a cause of action against defendant, also had causes of action against two others, the action may be brought in the county of the residence of such others, instead of that of defendant.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. <S=22.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by the Bank of Garvin against P. R. Freeman and others, in which E. D. Steger filed a cross-action. On an appeal to the Court of Civil Appeals (145 S. W. 685), from a judgment for plaintiff and in favor of E. D. Steger, the judgment was reversed and rendered in part, and in part reversed and remanded, and plaintiff and others bring error.
    Judgment of the Court of Civil Appeals reversed, and that of the district court affirmed.
    Cunningham & McMahon, of Bonham, J. G. McGrady, of El Paso, and R. B. Semple, J. W. Gross, and Thos. P. Steger, all of Bon-ham, for plaintiffs in error. Moore & Park, of Paris, for defendant in error.
   YANTIS, J.

The suit was by the Bank of Garvin against P. R. Freeman, E. D. Steger, and the Freeman-Steger Lumber Company, to recover a balance due on a $5,000 note which had been executed by the lumber company and indorsed by E. D. Steger, and which was payable to the Bank of Garvin. In its petition the bank alleged that, though the note was originally the obligation of the Freeman-Steger Lumber Company and E. D. Steger, the said P. R. Freeman, appellant below, became primarily liable to it for the payment thereof, in that he voluntarily assumed its payment in a contract made between him and the Freeman-Steger Lumber Company and E. D. Steger. To present the issues more clearly, we have extracted the following portion of the statement of the case-made by the honorable Court of Civil Appeals:

“The Freeman-Steger Lumber Company was a corporation under the laws of Oklahoma. Half of its capital stock, it seems, was owned by appellant and parties he represented. The other half was owned by E. D. Steger, Gus Steg’er, and others. The company was indebted in sums aggregating about $30,000, which it could not pay. Among the debts it owed was one for $10,343.92, evidenced by its promissory note dated December 19, 1907, payable six months after its date to the order of the Bank of Garvin. E. D. Steger as an indorser on this note was liable to its owner for its payment. In March, 1908, the company borrowed of appellant the sum of $30,000, and to secure the repayment of the loan executed and delivered to him a mortgage on property it owned. About the same time Gus Steger delivered to appellant capital stock of the company of the face value of $1,000. April 21, 1909, when there was a balance of $5,000 due and unpaid on the note for $10,343.-92 above mentioned, same was canceled, and in lieu of it the lumber company made, and said E. D. Steger indorsed, a new note for said balance, payable, as the other one was, to the order of said Bank of Garvin. The suit was by •said bank against the lumber company, E. D. Steger, and appellant, to recover a balance due on the $5,000 note. The verdict was in favor of the bank against the other parties for $3,-404, and in favor of E. D'. Steger against appellant for a like sum. The judgment was in accordance with the verdict — except that it was against appellant in favor of said Ed D. Steger for only so much as he might pay of the judgment against him in favor of the bank.
“The theory upon which the recovery against appellant was had was that he had promised said E. D. Steger out of his own money to pay the $10,343.92 debt due by the lumber company to the bank. The consideration relied upon to support the promise was that E. D. Steger and associates, in compliance with an agreement that they would do so if appellant would pay said debt and others the lumber company owed, had assigned to appellant enough of the capital stock of that company to give him control of it, and had turned over to him the management of its affairs, and, further, that appellant after-wards, to induce said E. D. Steger to indorse the note sued on, representing a part of said debt, had promised him to pay it.
“The verdict involved a finding by the jury that appellant promised E. D. Steger to pay the debt evidenced by the note sued on out of his own means. The sufficiency of the testimony to support such a finding is not questioned in the assignments.
“A contention made here by appellant is that, if he promised said E. D. Steger to pay said debt with his own means, his promise was a verbal one to pay the debt of another, and therefore within the statute of frauds. Another contention he makes is that, if he promised said E. D. Steger to pay the debt out of his own means, his promise was to indemnify said E. D. Steger against his liability as an indorser on the note, and therefore was not a promise the bank could sue on. It appeared from the testimony that the lumber company owned several sawmills, and that its business was to manufacture and sell lumber; that it was indebted to various persons in various sums, which it could not pay; that it had to pay its debts or cease to carry on its business; that it had endeavored to borrow money with which to pay its debts, and failed; that its stockholders met to discuss its condition, and after inquiry then made estimated that its debts aggregated about the sum of $30,000; that as a result of the conference of its stockholders, appellant, owning or controlling half its capital stock, agreed with E. D. Steger, Gus Steger, and others, together owning the other half of said stock, to lend the company $30,000' with which to pay its debts, if the company would secure the repayment thereof to him by a mortgage on its property, and if said Stegers and their associates would transfer to him enough of the capital stock of the company owned by them to give him a majority of said stock and the control of its affairs; that in accordance with the agreement appellant loaned the company $30,000, the company executed and delivered to him a mortgage on its property to secure the repayment of the loan, said Gus Steger transferred to appellant capital stock of the company of the face value of $1,000, and he assumed the exclusive management and control of the company’s affairs; and that, with the money ho had loaned the company, and other property it owned, appellant paid debts of the company, improved its mill property, and paid expenses incurred in carrying on its business.”

The trial was by a jury which rendered a verdict in favor of the bank and against Freeman, Steger, and the lumber company for the sum of $3,404, as shown above. Judgment was in accordance therewith, except that E. D. Steger was given a judgment against Freeman for so much as he might pay on said judgment in accordance with the plea contained in his cross-action. At the trial the court submitted to the jury the plaintiff’s theory of his right to recover, based upon the allegation that the defendant in error, Freeman, had, for a valuable consideration, contracted with the lumber company, and with E. D. Steger, to assume the payment of the note sued upon, and the verdict of the jury in favor of the Bank of Gar-vin, plaintiff in error, was, in effect, a finding as true, the allegations made by the bank upon which a recovery was sought and secured by it. There was no assignment of error made by the defendant in error, Freeman, either in the trial court or on appeal, which challenged the sufficiency of the evidence to sustain this finding of the jury; neither was the sufficiency of the evidence to sustain this finding raised by Freeman in his motion for a new trial. The only defenses pleaded in the answer of the defendant in error, Freeman, were a plea of privilege, alleging his residence to be in Dallas county, and not in Fannin, and the one alleged in his special exception to the effect that the alleged promise on his part to pay the note was a promise to answer for the debt of another and, not being in writing, could not be sustained under the statutfe of frauds. On appeal to the honorable Court of Civil Appeals for the Sixth District the judgment was reversed and rendered in favor of Freeman as between him and the bank, on the ground that the alleged promise of Freeman to Steger to pay said note was only a promise to indemnify said Steger against the payment thereof by him, and was not in fact a promise to pay the bank, and therefore did not render him liable to the bank, having made no contract, according to the holding of the Court of Civil Appeals, with anybody to pay the bank, but only a contract to indemnify E. D. Steger against its payment, to which the bank was in no way a party, and had not, therefore, a cause of action against said Freeman. That court* also reversed the judgment which had been rendered in favor of E. D. Steger on his cross-action against said Freeman, and remanded the case as between him and Freeman, with instructions to the court below to transfer the same to Dallas county for trial.

The holding of the honorable Court of Civil Appeals, to the effect that the contract sued upon was only an indemnity contract for the benefit of E. D. Steger as an indorser on the note, may have support in the evidence as an issue of fact, and it may be sound in law that if such holding were supported by the evidence, it would constitute a legal defense if pleaded. We incline to the view that it would be, but it is unnecessary to decide the question, since it was not one of the defenses pleaded in the court below by the defendant in error, Freeman. We must withhold our approval of a judgment which gives effect to a defense which was not pleaded. Neither was such defense briefed in the honorable Court of Civil Appeals. In the brief of the defendant in error, Freeman, only two questions were presented, and those were the ones pleaded in the court below as his defenses, to wit: The right to be sued in Dallas county, and the alleged inhibition of the statute of frauds against the right to sue. He expressly confined his brief to a presentation of these two questions. In the statement of the nature and result of the suit by him in his brief he said:

“Under the errors assigned appellant desires to present but two questions: First, the right of defendant [appellant] to be sued in the county of his residence; second, whether the alleged promise of defendant, Freeman, to pay the note sued on was within the statute of frauds and not enforceable because not in writing.”

Following said statement, the defendant in error, Freeman, made in his brief only three propositions; the first relating to his plea of privilege, or the right to be sued in the county of his residence, and the last two having relation only to whether the alleged promise of Freeman, the defendant in error, to pay the note sued on was within the statute of frauds, and not enforceable because not in writing. We would not be authorized to sustain a verdict in favor of the plaintiff in a suit if the recovery was based upon a cause of action not pleaded by him, and we should not defeat a recovery by the plaintiff upon a defense not pleaded by the defendant. It is not permissible, during the trial of a ease, for the court to submit to the jury a defense which was not pleaded by the defendant. S. A. & A. P. Ry. Co. v. De Ham, 93 Tex. 74, 53 S. W. 375; Railway Co. v. Harris, 95 Tex. 346, 67 S. W. 315. It is a statutory requirement that:

“The judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or in equity.” Article 1994, Yemen’s Sayles’ Texas Civil Statutes 1914.

Should we allow a defeat of the plaintiff’s recovery because of the existence of a defense, however sound in law, not pleaded by the defendant, the judgment of the court would then not conform to the pleadings. This would be wrong in principle, and in open conflict with the statute. No trial should be had except upon the issues made by the pleadings. This gives each side an opportunity to know upon what issues they will be called to respond with evidence. It would be opposed to justice to allow the plaintiff in a suit to secure a judgment upon an issue of which the defendant had no notice in advance of the trial, for this would deprive him of the opportunity to have his witnesses present to defend his case on said issue. The rule is the same as applied to the defenses. Justice would not tolerate the practice of defeating the plaintiff’s cause with a defensive issue which had not been pleaded, and of which the plaintiff had no notice prior to the trial, and to meet which he was denied the opportunity to present his evidence. Railway v. Wilkinson (Civ. App.) 152 S. W. 203; Biggs v. Blount et al. (Civ. App.) 151 S. W. 1114. We cannot give our sanction to a violation of these elementary rules. They are indispensable in the administration of justice in the trial of cases.

We do not agree to the proposition that the undisputed evidence shows only an indemnity contract between Freeman and Steger. While there is no assignment of error attacking the verdict as being unsupported by the evidence, we have nevertheless made a careful investigation of the evidence, and we find there was sufficient evidence to support the verdict of the jury in favor of the bank’s theory that Freeman, for a valuable consideration, assumed to pay the note, and that he did not merely agree with Steger to act as indemnitor for him. E. D. Steger testified as a witness for the bank in relation to the alleged assumption by Freeman of the payment of said note, in part, as follows:

“Mr. Freeman was complaining at the amount of debts and at the situation generally, which was bad enough; and he said to me — I think this was in February, 1908 — T see the date of the mortgage is March 20, 1908,’ and this mortgage was executed in pursuance of our agreement with Mr. Freeman here. Mr. Freeman was kept posted as best we could post him, with reference to everything and, he knowing of the situation, he came over here to see what could be done with it, and the conference led to his proposing to me and then to Gus Steger and Yirge Steger and John Steger, who were stockholders, that if we would turn the management of the company over to him, and give Mm a mortgage on its assets, he would take the company over and pay its obligations. That conversation was here in Bonham in February, 1998, and part of it in my office ,up here, and finally concluded after we had all of the boys together down here in the mill possibly. I was present part of the time just with Mr. Freeman. I think- we framed up the agreement, and then myself, Gus Steger, and John Steger were present. I am not sure whether Virge was or not, but I think he was part of the time, as he was the man who was most complained of; he was not feeling very good about it, and didn’t come around as much as the others. I am not sure whether he was there or not. So in pursuance of that agreement Mr. Freeman had his lawyers in Dallas draw up just what he wanted drawn up with reference to the mortgage and his security, and said, although we had told Mm that he could take the thing and do as he pleased with it and we would give him such assistance as was in our power, he said: ‘No; I must have controlling interest in the stock.’ My brother Gus then transferred to him, I think, a thousand dollars worth of the stock, anyhow enough to put him in control of the situation. He was told that he could take charge of the corporation, and then, to make his control absolute, he required a majority of the stock of the corporation in his and his friends’ hands, and we provided him with all of that and he undertook to pay the obligations of the concern, and did, in fact, pay most of them, and I thought until I was notified that this had not been paid; that this had been paid by him in pursuance of his agreement to pay it. We owed there $10,000 odd which Mr. Freeman agreed to pay. * * *
“We had a series of conferences, which led to Mr. Freeman making the proposition that if the property of the company was turned over to him and a sufficient amount of the stock to give him a controlling interest in the company and. give him absolute charge without interference, he would take over the company and pay its obligations, and the mortgage was executed as a part of that consideration. He made that proposition to me and my brothers and Press Thurmond. After very much discussion which lasted all day, we consented to do it, all of us, Press Thurmond, Virge Steger, Gus Steger, John Ste-ger, and myself. After we consented to it, we told him that he might proceed to have the mortgage drawn up as he did, and my brother Gus then and there says, T will transfer to you my thousand dollars of stock.’ Gus was on a $10,-000 note over here at the First National Bank which Mr. Freeman agreed to pay, and the bank wanted its money. Mr. Freeman went home then, and he notified us from Dallas when he wanted us to meet him at Garvin to do what he required done as directors, to have the directors authorize the execution of this mortgage, that was the next time I saw him, and when we went down there to do this, I think that is the time, anyhow about that time, this $10,000 note was due the bank of Garvin, and it was wanting it badly, and Mr. Freeman said to me that after checking up, he found that he was going to be a little short and asked me if I would consent to his paying half of this note, or it is over half, paying the interest and $5,-000, $5,300 and some odd dollars, anyhow pay if down to $5,000; if I would consent to his doing that and renew the obligation until he could straighten around, and I went to Mr. Gamble, the president of the bank, and explained the situation to him, and he consented to it and I renewed the note. * * * Q. Was this meeting of the stockholders, and also of the directors, held before or after you gave this note, this new" note; you say Freeman reported to you all that he didn’t have money enough to pay all the debts, and he wanted to get some money, and you went to the president of this bank? A. No, sir; he didn’t want to get any money. It was after the mortgage was given that he asked me to let him pay half of the note. That was on another time that this note was executed. When this $5,000 note was executed he paid off $5,300 odd; paid it down, to $5,000, this $10,000 note, and asked me to remain on it for his accommodation. I remained on it for Freeman’s accommodation and at his request at the time I made this extension of the note. At the time we had this stockholders’ meeting and this directors’ meeting the $10,000 note was then still unpaid. When we had the meeting here and Mr. Frgeman agreed to pay the debts if we would execute the mortgage, and I am not sure, Mr. Semple, whether it was in anticipation of us doing what we agreed to do that he paid all of these debts, or whether he waited until it was actually done before he paid it. * * •
“Mr. Freeman had agreed, as I have stated before, to pay that $10,000 note, and that note was mentioned. I was indorser on that note, and that was the consideration for making the mortgage and turning the thing over — was to get off front all of that paper. I was also on a $10,000 note over here at the First National Bank, and I was securitor around pretty considerable. I had indorsed that paper of the Freeman-Steger Lumber Company and John Steger and Gus Steger were on a part of it with me; they were on this note here at the First National Bank, so that was our purpose in making the mortgage and turning over the stuff so as to get relieved of those indorsements, that was the consideration, and Mr. Freeman agreed here to pay them, and then agreed whenever it was mentioned down there, and on every other occasion, that he would pay it. * * *
“The conversation I had with Mr. Freeman, wherein he stated that if we would give him a mortgage and control of the property, he would loan the company $30,000 and pay its debts, was at Bonham, Tex. I had that conversation with him elsewhere, but that was the first time we ever had it; it was Mr. Freeman’s proposition at that time, but it led, as I say, in us coming down together and remaining two or three days together on the train and down in the territory, during which we discussed practically nothing else. * * * Q. And of this $5,000 note dated 4/21/00 on demand, signed, ‘Freeman-Steger Lumber Co., P. R. Freeman, Treas.,’ indorsed, ‘Ed D. Steger,’ for what purpose did you say you indorsed that note? A. Why it was -to keep the bank from demanding its payment. I indorsed it for Mr. Freeman’s benefit, and I was carrying it for Mr. Freeman. I am positive that I was carrying it for Mr. Freeman and, in a measure, I will say, for myself, because I believed Mr. Freeman was going to work something out for the stockholders, I was very hopeful of his success in his undertaking, and I was willing to help him any way I could. I never dreamed of anything else except that Mr. Freeman would pay this $5,000 note out of his own individual money. I expected nothing else, and Mr. Freeman expected nothing else, and when he found himself short of funds and went into the mill business again, I was willing to help carry it for him and to help him in any way I could, and let him- pay it out of the company’s stuff if he wanted to, as he had a mortgage on the company’s stuff and he v/as trying to realize on the stuff that he did have a mortgage on, and he didn’t have the ready cash, but I never dreamed but what he would pay it himself, if he didn’t get it out of the company’s funds. I didn’t care whether he paid it out of his individual funds or out of the stuff on which he had a mortgage. I expected him to pay the note as he agreed to pay everything else, and as he did pay everything else; he had to be sued on another one about three or four weeks ago to get him to pay it. * * * Q. You regard this present note being sued on as your own personal obligation, do you? A. My answer is that it certainly is my obligation to see that the bank does not lose this money; it is primarily Mr. Freeman’s obligation to take care of it. I regard the note as my personal liability, if I understand what you mean by that; I am not denying that I executed the note, and that the bank has an action against me for it. * * * Q. Now in this conference, was there anything said about this $10,000, or was it just the entire indebtedness, no special arrangements made about this $10,000 note? A. Yes; there were two $10,000 notes on which special stress was laid, as I now remember; the other obligations were open accounts that none of us were bound for, but the other stockholders on the $10,000 note were myself and nephew and brother were on $10,000 here at the First National Bank that we were being pressed on. Those two notes were especially to be taken care of; that was the thing we had an especial interest in having taken care of. * * * ”

There was other evidence of the same nature by other witnesses, and we think this evidence had sufficient probative force favorable to the plaintiff’s theory, as alleged in his petition to sustain the verdict of the jury, which affirmed the correctness of the bank’s theory, as alleged by it, that Freeman, by contract, assumed the payment of the note sued on, and did not merely agree with Steger to indemnify him against loss on said note.

It is contended by Freeman, the defendant in error, that the cause of action alleged by the plaintiff, which was a promise by him to pay the note sued on, was within the statute of frauds and not enforceable, because not in writing. We overrule this contention. It is true the promise of Freeman, the defendant in error, to pay the debt of the lumber company and of Steger was not in writing. The pleadings of the plaintiff in error show this, but they also allege other facts which take it out of the statute of frauds, for they allege that for a valuable consideration Freeman assumed the payment of the note. The statute of frauds, article 3965, Vernon’s Sayles’ Texas Civil Statutes 1914, provides that, unless the contract therefor be in writing, no action shall be brought, “to charge any person upon a promise to answer for the debt, default or miscarriage of another.” The attack made upon the bank’s alleged cause of action is based upon this subdivision 2 of the statute of frauds. The allegation in the petition of the plaintiff was to the effect that the original obligation was made by the Freeman-Steger Lumber Company, and indorsed by Ed D. Steger as surety; that on or about November 1, 1908, said Freeman, for a valuable consideration, promised said Steger, and also the plaintiff bank, to pay said note and obligation. There is evidence to the effect that the lumber company, of which Freeman was a member, was indebted to various persons in various sums, and that defendant in error, Freeman, who owned half the capital stock of the lumber company, agreed with E. D. Steger, Gus Steger, and others, who owned the other half of said stock, to lend the company $30,000 with which to pay its debts, if they would transfer to him enough of the lumber company’s stock to give him a controlling interest, and also give him a mortgage on the lumber company’s property, and allow him to have full management of the company’s affairs; and there is evidence to the effect that a part of the consideration in such contract was that he, Freeman, would assume the payment of all of the company’s debts, including this note. Now this contract would be enforceable though not in writing. This would not be, within the meaning of the statute of frauds, a “promise to answer for the debt, default, or miscarriage of another.” The meaning of that statute is to require a promise as surety for another’s .debt, or guarantor of another’s debt, to be in writing. It never was intended to prohibit one person from assuming the payment of another’s debt, as his own debt, where there is a valid consideration moving between the'parties to such contract. In other words, one person for a valuable consideration may assume as his own debt the debt of another, and it need not be in writing, but he cannot contract with one person to become surety or guarantor for the debt of another person except it be in writing. Spann v. Cochran & Ewing et al., 63 Tex. 240; Muller v. John M. Riviere, 59 Tex. 640, 46 Am. Rep. 291; Wallace v. Freeman & Co., 25 Tex. Supp. 91.

It follows that there is no merit in the contention made by the defendant in error, Freeman, that the plaintiffs’ cause of action was within the statute of frauds and not enforceable on account of not being in writing, and the judgment of the trial court should be affirmed.

It also follows that since the plaintiff in error the Bank of Garvin had a cause of action against him, and against the other defendants, it was proper to join Freeman in the suit against the other two defendants, whose residences were in Fannin county, notwithstanding that Freeman’s residence was in Dallas county, and his plea of privilege, asserting the right to be sued in Dallas county, was without merit.

The judgment of the Court of Civil Appeals should be reversed, and that of the district court should, in all things, be affirmed; and it is so ordered.
      <SsnEor other cases 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:
    WALKER v. STATE.
    (No. 3803.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Criminal Law <©=>829— Instructions — Repetition.
    On a trial for cow theft, where the question as to whether the cow was taken by defendant by mistake for one he claimed to own was properly submitted in a special charge requested by defendant, the refusal of other charges on that question was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829.]
    2. Criminal Law <&wkey;808% — Instructions— Reading Statute — “Mistake.”
    Where, on a trial for cow theft, the court at defendant’s request submitted the question of whether the cow was taken by mistake for one plaintiff claimed to own, the court properly gave a special charge, requested by the state, defining the law of mistake in the terms of Pen. Code 1911, arts. 46, 47, which provides that no mistake of law excuses one committing an offense, but that if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense, and that the mistake as to a fact which will excuse must be such that the person acting under the mistake would have been excusable had his conjecture as to the fact been correct, and that it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1811; Dee. Dig. <©=>808%.]
    3. Criminal Law <&wkey;808% — Instructions— Statutes.
    Where, at defendant’s request, the court, on a trial for cow theft, submitted the question of whether the cow was taken by mistake and charged the provisions of Pen. Code 1911, arts. 46, 47, regarding mistakes, the use of the word “conjecture” precisely as used in the statute did not render the charge objectionable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1811; Dec. Dig. <©=>80814.J
    4. Criminal Law <&wkey;841 — Instructions — Objections — Time eoe Objections.
    An objection to an instruction made after the trial was too late under the very terms of the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2022; Dee. Dig. &wkey;>841.]
    5. Criminal Law <&wkey;810 — Instructions — Inconsistent Instructions.
    Where, on a trial for cow theft, the testimony raised and the court without objection charged on the subject of principals, a charge on alibi would have been in direct conflict therewith.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. § 1968; Dec. Dig. <©=>810.]
    6. Criminal Law <&wkey;949 — Appeal—Proceedings in Lower Court Subsequent to Appeal.
    Where, after defendant’s motions for a new trial were overruled, he gave notice of appeal, and the judgment overruling his motions and his exception and notice of appeal were duly entered, and he never attempted to withdraw his notice of appeal, the court properly refused to permit him to file supplemental motions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2344; Dec. Dig. <©=>949.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Cal Walker was convicted of cow theft, and he appeals.
    Affirmed.
    R, H. Smith and H. D. Wood, both of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of cow theft and assessed the lowest punishment. We see no necessity of any statement of the evidence. It was amply sufficient to sustain the verdict on any and all theories and questions raised.

From the appellant’s standpoint, the evidence was perhaps sufficient to raise the question of whether or not the cow he had and sold was taken by mistake for a cow he claimed to have owned. But, in any event, this question was properly submitted by the court in a special charge requested by him in the very language he requested it. The court, therefore, committed no error in refusing to give his other charges on that subject, even if they had been presented at a time to have required the court to have passed upon them at all. Some of them, perhaps all other than the one given by the court, did not present propier propositions of law applicable to this case.

When the court gave the said special charge of appellant on said subject, it was not only proper, but necessary, to give in the same connection the special charge requested by the state defining in the very terms of the statute (P. O. 1911, arts. 46, 47) the law about mistake. Appellant’s only objection to this charge at the time was in effect to the use of the word “conjecture.” His objection was untenable. The charge was a quotation of the statute, which uses the word “conjecture” in precisely the language in the charge. The special charge in the latter paragraph also quoted substantially, if not literally, article 52, P. C. No objection whatever was made to that paragraph of the charge before the trial. His objection, made after the trial, is too late under the very terms of the statute.

In our opinion, the court did not err in refusing appellant’s special charge on the subject of alibi. A charge on that subject was inapplicable in this case. The testimony raised, and the court properly submitted, the law of principals in the case, to which appellant made no objection. As the testimony raised, and the court charged on, the subject of principals, a charge on alibi would have been in direct conflict, and was not really raised by the testimony at all. Dillard v. State, 177 S. W. 103 et seq., and authorities therein cited. Smith v. State, 21 Tex. App. 107; Cook v. State, 14 Tex. App. 96; Bean v. State, 17 Tex. App. 61; Welsh v. State, 3 Tex. App. 413; Scales v. State, 7 Tex. App. 361; McKeen v. State, 7 Tex. App. 631; McCampbell v. State, 9 Tex. App. 124, 35 Am. Rep. 726; Cohea v. State, 9 Tex. App. 173; and numerous other eases cited in the opinion in Smith v. State, supra. The opinion in the Smith Case is quoted at length •in the case of Dillard v. State, supra. Many other cases are cited in the Dillard and Smith Cases applicable and in point.

The term of court at which this case was tried convened on April 5, 1915, and adjourned on July 3, 1915. The case was tried and the verdict rendered on April 22, 1915. Within two days thereafter appellant filed his motion for a new trial. On April 24th, he filed an additional motion for new trial. These were heard and overruled by the court on May 6, 1915, at which time he duly excepted, and gave notice of appeal to this court, which judgment overruling his motions, his exception and notice of appeal were then duly entered. Still later, on May 19, 1915, appellant made a motion, requesting the court to permit him to file another supplemental motion. This and the supplemental motion were presented to the judge without filing. The judge indorsed and signed thereon:

“I refuse to give permission to file this motion or to act on same after having read same. Deft, excepts this 5/19/1915.”

It seems that one month later the same motion was again presented to the judge, who again on that date made and signed the same indorsement thereon. There was no request at any time, or in any way, by the appellant to withdraw his notice of appeal. Under these circumstances, the court’s action in refusing to permit him to file said motion was correct.' This question has been repeatedly held against him by this court. The latest case is Tores v. State, 166 S. W. 527. It is unnecessary to discuss the question again.

These are the only questions briefed, and also orally argued by appellant when this cause was submitted. They embrace substantially all the material questions he has raised. He, however, stated in oral argument, and it is also in his brief, that the other questions raised by him are not waived, and asked the court to consider them. We have examined all of his claimed errors, but none of them show any reversible error.

The judgment is affirmed.

       17 S. W. 552.

      @=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    WHITE v. STATE.
    (No. 3853.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Criminal Law <&wkey;633 — Order of Proceedings — Directory Statute.
    Code Cr. Proc. 1911, art. 717, providing the course of procedure in the trial of a criminal cause, is directory, and not mandatory.
    [Ed. Noteu — For other cases, see Criminal Law, Cent. Dig. §§ 1450, 1451, 1453,1454, 1459; Dec. Dig. <®=»633.]
    2. Criminal Law c&wkey;1119 — Statement fob Defense — Trial—Failure to Allow Statement for Defense.
    Where on a trial for theft of cattle the court denied accused the right given by Code Cr. Proc. art. 717, to state to the jury the defense relied upon, but his bill of exceptions presenting the question on appeal failed to state what he would have told the jury either as to his defense or the facts he expected to prove, and the whole record failed to disclose any injury to him by reason of such ruling, there was no reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. <&wkey;> 1119.)
    Davidson, X, dissenting.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    T. H. White was convicted of the theft of cattle, and he appeals.
    Affirmed.
    C. F. Stevens and G. W. Tharp, both of Houston, for appellant. John H. Crooker, Or. Dist. Atty., E. T. Branch, and T. J. Harris, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the theft of cattle, and his punishment assessed at the lowest prescribed by law. The evidence was amply sufficient to sustain the conviction.

Appellant has a bill of exception, which, after stating the style and number of the cause and the court, states that on the trial:

“After the indictment had been read to the jury, the defendant had pleaded ‘not guilty,’ the testimony on the part of the state had been introduced, and the state had rested its case, the defendant’s counsel arose for the purpose of stating to the jury the nature of the defenses relied upon by the defendant and what were the facts expected to be proved in their support, whereupon the court of its own motion refused to permit counsel for defendant to make such statement, and defendant’s counsel was refused the privilege by the court of making the statement of the nature of the defense relied upon by the defendant and the facts expected to be proved in their support; to which ruling' of the court the defendant then and there excepted, and files this, his bill of exceptions, and prays that the same be allowed.”

It will be seen by this bill that the appellant in no way states what he would have told the jury either as to his defense or the facts expected to be proved by him; in fact, the bill shows no sort of injury to him. Article 717, O. C. P., prescribes that, after the jury is impaneled, the cause shall proceed to trial in the following order:

“3. The district attorney, or the counsel prosecuting in his absence, shall state to the jury the nature of the accusation and facts which are expected to be proved by the state in support thereof. 4. Testimony on the part of the state shall be introduced. 5. The nature of the defenses relied upon shall be stated by counsel for the defendant, and what are the facts expected to be proved in their support.”

We think this statute directory only, and not mandatory. Holsey v. State, 24 Tex. App. 41, 5 S. W. 523; Murray v. State, 21 Tex. App. 476, 1 S. W. 522; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643; Hudson v. State, 28 Tex. App. 323, 13 S. W. 388; Habel v. State, 28 Tex. App. 588, 13 S. W. 1001; Roberts v. State, 30 Tex. App. 299, 17 S. W. 450. Notwithstanding said statute is directory, and not mandatory, yet, if the bill in this case had shown any injury to appellant, we would reverse this case, for, under said statute, he had a right to state the defense he relied upon and what facts he expected to prove in support thereof, and the court should have permitted him to have made the statement in accordance with the statute, but, as no sort of injury is pointed out by the bill, and as we cannot see from the whole record any injury occurred to him, no reversible error is shown. Our holding on this point is not in conflict with House v. State, 171 S. W. 206, nor Owen v. State, 52 Tex. Cr. R. 65, 105 S. W. 513.

We think appellant’s complaint of the charge that Ben S. Davidson was not under the statute the owner of the stolen cattle, and that therefore the court should direct a verdict for the defendant, is untenable, and his bill on this subject shows no error. Article 457, O. O. P., and authorities thereunder cited.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). It is conceded that it was error not to permit appellant to make a statement of the nature of his case before the jury as provided by statute, but it is held the error is not of such importance as to require reversal. I cannot concur. In the House Case we held the court could not overrule the statute. The statute gives the right sought to be used, and ought to be followed when demanded by the accused. I do not care to write at length.
      <©^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    SAMPSON v. STATE.
    (No. 3850.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Cbiminai, Law <&wkey;519 — Evidence—Written Concession.
    In a prosecution for homicide, the admission of defendant’s written confession, on its face in conformity with law, over the objection that it was not a voluntary statement, which appeared to have been made, after his arrest, in the office of the city jail and in the presence of the chief of police, could not be held error, without something to show that the questions asked and the answers given were improper or tended in some way to affect the fairness and volun-tariness of the confession, especially in view of the admissibility of a verbal confession substantially the same.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. <&wkey;> 519.)
    2. Cbiminai, Law <&wkey;534 — Evidence — Verbal Concession — Statute.
    The admission of defendant’s verbal confession, made to an officer while under arrest without warning, was proper under the statute, in that it pointed out where property stolen from deceased could be found and where it was found in accordance with its statements.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1202-1205, 1222-1224; Dec. Dig. <©=»534.]
    3. Homicide <&wkey;305 — Instructions—Principals.
    Where the evidence in a prosecution for homicide showed that defendant and another acted together, agreed to go to decedent’s place of business, and killed him and accomplished their purpose of robbery, a charge on the law of principals was proper.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 687; Dec. Dig. <©=¿305.] i. Cbimiimx Law <&wkey;103S — Appeal—Objection to Charge.
    The objection to the court’s charge first made in the motion for new trial is too late, unless it relates to fundamental error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. &wkey;^1038.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Henry Sampson was convicted of homicide, and he appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., E. T. Branch, and T. J. Harris, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was awarded the death penalty by the jury for killing Charles Bourgeois. The indictment sets out various ways -by which the killing occurred. These seem to have been supported by the testimony.

There is but one bill of exceptions in the record. This was reserved to the ruling of the court permitting the written confession of appellant to be introduced before the jury. The confession on its face is in conformity with the law. The objection .urged was that it was not a voluntary statement freely made under circumstances that would admit it in evidence, that proper warning had not been given, and that the statement ¡vas made in answer to questions propounded by several persons at the time, etc. The judge qualifies this bill by stating that the grounds of objection are not certified to as true, but only that such objections were made, and the court is referred to the statement of facts, which shows that a proper warning was given, and the confession was shown to be voluntary and was corroborated. This bill shows that the confession was made to the chief of police. There were quite a number of parties present at the time it was made. Among them were Mr. Culmore, Frank McOurdy, Judge Crooker, a lid Officers Binford and Hill, and probably others, and it is shown some questions were asked. Testifying in answer to the question, “Did you ask any question?” the witness stated, “X asked him several questions, as he stated that he was going to make a confession and make a clean breast of it all, and Judge Crooker asked him some questions, Mr. Wharton Bates asked him some questions, and I believe Officer Binford asked him some questions.” Then the question was asked, “Where was he and under what circumstances was the confession made?” The answer is, “He was in the city jail;” and. witness was told by Mr. Bates, whom he thought was appellant’s lawyer, that defendant wanted to make a confession. He was brought down from upstairs, where he was locked up, into the office in the city jail, and in the presence of the persons named made the statement. The statement was written down in shorthand by a stenographer, and transcribed by him and read over to appellant, and he signed it. Witness says: “I warned him the warning at the beginning of the written confession. Ha was under arrest at the time and in my custody as chief of police.” What these questions were that were asked the defendant are not stated. We are not informed as to what they were, or what effect, if any, they might have had. We suppose in a general way that they were in reference to what he did state in the confession. We are of opinion, without something to show that the questions asked and answers were illegitimate and improper or tended in some way to affect the fairness and voluntariness of the confession, that we would be unable to hold that there would have been injury. The statute requires that such confession must be voluntary, and, of course, we would understand that the questions propounded and the answers elicited to the questions should not lead the defendant to make any particular statement that might be injurious to him. Those statements must be voluntary, but before we can decide that question we must be informed as to what these matters were. They may have been incidental, of no moment, and in no way really having any effect upon the confession itself.

There is also in the record testimony that appellant had made a verbal confession to one of the officers while under arrest, which, in a general way, seems to have been about as explicit and full as the one in writing as to the warning given and facts stated. The verbal confession was made without warning, but in accordance with the confession the officer found fruits of the crime, and at the point indicated by appellant in his confession. The deceased had a butcher shop. Appellant and another party by agreement went to the place of deceased, _ and waited until he began closing his shop for the night, for the purpose of killing and robbing him. To throw the deceased off his guard they made a purchase of some moat — in fact, made two purchases — and at the opportune moment, when deceased had his back turned to them, appellant struck him on the back of the head with an iron bar which weighed several pounds. This knocked him to the floor. The other party then took the iron pipe and crushed his skull, fearing that he might not have been killed by the first blow. The appellant and his associate then took what money they could find and a pistol and watch, and some other things. They then spread kerosene oil over the body and different places in the room and set fire to the house. The house burned as well as the remains of the deceased. The effect of the statements or confessions, verbal and written, is practically the same — that is, substantially so. To the verbal confession no objection was urged, and under the statute none could be urged, inasmuch as the statements in the verbal confession of appellant pointed out and designated where this stolen property could be found and was found in accordance with the statement; the watch in one place, and the pistol in another, etc. Under all these circumstances we are of opinion that the admission of the written confession does not show any reversible error.

Appellant in his motion for new trial for the first time attacks the court’s charge because the law of principals, he says, ought not to have been given. This would come too late, unless it was so related to the case it would constitute fundamental error; but in this particular case we do not think there was any error. The evidence shows that the two parties acted together; they agreed to go there to do just what they did, and accomplished their purpose. Appellant asked special instructions to the jury, if they found the other party did the killing, they would acquit appellant. This charge was given, with the further statement or qualification in writing by the court to the jury, unless they should find that appellant acted as a principal in the killing. The whole case revolves around the proposition that these two parties, defendant and Shelton, went to the butcher shop for the purpose of killing and robbing deceased, and accomplished that purpose; that they divided the proceeds between themselves, appellant getting half the money, and Shelton getting the other half. Taking this record as it stands, we are of opinion that no error is shown which would require a reversal of the judgment either from any single proposition presented or from all of them considered together, or from the whole record.

Finding no reversible error in the record, the judgment is affirmed.
      <@=5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gc^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    EDWARDS v. STATE.
    (No. 3854.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Rape <&wkey;52 — Statutory Rape — Sufficiency op Evidence.
    On a trial for rape on a girl under the age of consent, evidence held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71-74, 76; Dec. Dig. &wkey;52.]
    2. Criminal Law <&wkey;1160 — Appeal—Review —Questions op Fact.
    Where, under a proper charge and on evidence sufficient, if believed, to support the verdict, the jury finds a verdict of guilty, and the verdict is approved by the trial judge, whose duty it is to set the verdict aside if not satisfied of the_ guilt of accused, the verdict will not be set aside on appeal, unless clearly wrong.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 4519; Dec. Dig. <&wkey;1160.]
    3. Rape <&wkey;6 — Elements—Force.
    To constitute rape upon a female under the age of consent, no more force is required than that necessarily involved in the act of penetration.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 6; Dec. Dig. <&wkey;6.]
    4. Rape &wkey;>13 — Elements—Force.
    Carnal knowledge of a female under the age of consent who is not the wife of the party having such cai'nal knowledge- is “rape,” no matter what the circumstances, and it is immaterial whether the carnal knowledge is had with her consent or by force, threats, or fraud.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 12; Dec. Dig. &wkey;>13.
    For other definitions, see Words and Phrases, First and Second Series, Rape.]
    5. Criminal Law <&wkey;1091 — Bill op Exceptions — Matters Presented por Review.
    A bill of exceptions not showing any ruling by the court on the state’s objection to testimony offered by defendant presented nothing for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, .2824, 2828-2833, 2843, 2931-2933, 2943; Dec! Dig. <&wkey;1091.]
    6. Rape <&wkey;38 — Evidence—Admissibility.
    On a trial for rape on a girl under the age of consent, the exclusion of evidence that the girl’s mother sent her.to ask defendant to meet the mother was not error, as this would be no excuse or justification.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 48-50; Dec. Dig. &wkey;38.]
    7. Criminal Law &wkey;>1144 — Appeal — Presumptions in Support op Judgment.
    The legal presumption is that the ruling of the trial court on an objection to evidence was correct unless the bill of exceptions shows otherwise.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. &wkey;1144.]
    8. Rape <&wkey;40 — Evidence—Admissibility.
    Qn a trial for rape on a girl under the age of consent, evidence that a merchant had run the girl away from his place, and that she pulled up her clothes and exhibited her person to a witness, was properly excluded as immaterial.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;40.]
    9. Criminal Law &wkey;>419, 420 — Evidence— Hearsay Evidence.
    On a trial for rape on a girl under the age of consent, testimony that the mother said she sent the girl to defendant’s home to awaken him and get some groceries was properly excluded as hearsay, where it did not appear that it was offered to impeach or that any predicate was laid for its introduction, especially where probable injury was not shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <&wkey;419, 420.]
    10. Criminal Law <&wkey;451 — Evidence—Facts or Conclusions.
    On a criminal trial defendant could properly testify that the prosecuting witness said if he did not let her have some groceries he would be sorry, but the deductions from this remark could be drawn by the jury, and his testimony that he understood her to mean that she and her people would begin a criminal prosecution against him was properly excluded.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 1040-1042; Dec. Dig. &wkey;451.]
    11. Criminal Law <&wkey;1091 — Bills of Exceptions — Sufficiency.
    A bill of exceptions taken to the exclusion of testimony must disclose the relevancy and materiality of the proposed evidence, and inferences will not be indulged to supply the omission of such essentials.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2S23, 2824, 2828-2833, 2843, 2931-2933, 2943; Dee. Dig. <&wkey;>1091.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    W. A. Edwards was convicted of rape, and he appeals.
    Affirmed.
    A. G. Lipscomb and R. E. Tompkins, both of Hempstead, and Atkinson, Graham & Atkinson, of Houston, for appellant. John H. Crook-er, Or. Dist. Atty., E. T. Branch and T. J. Harris, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

No brief has been filed in behalf of appellant, and, as this case has been so thoroughly briefed by counsel for the state, we adopt the brief as the opinion of the court. It is as follows:

“Appellant was convicted of rape alleged to have been committed on a female under the age of consent, and his punishment was assessed at five years, and from the judgment thereon he appeals.
“1. Appellant contents that the evidence is insufficient to support the verdict. It is unnecessary to give any extended details of the testimony, since the little girl, who was 12 years old, testified positively that the appellant with her consent had carnal knowledge of her, and penetrated her private parts with his male member, and the medical testimony tends toi-corroborate her. Appellant denied he had carnal knowledge of the child, but the jury. evidently believed her testimony, and there is nothing in the record to indicate that her testimony, was contrary to human experience or inconsistent with the truth. It is to be noted too, that appellant himself admitted that she was found in his room at night by his son and daughter-in-law, and his explanation of why she was under his bed when they came into. his room is strongly corroborative of the little girl’s account of their intimacy and of his attempts to lead up to the final accomplishment of his purpose. Appellant testified that when his son discovered the little girl in his room under the bed; ‘He told me I could not make a whorehouse out of his home. He told me I ought to be ashamed of myself. I told him I was old enough to attend to my own business.’ The child testified that appellant always used vaseline on himself and on her, and his bottle was seen by his son and daughter when they came in the room. While more than one transaction was testified to, yet the court confined the consideration of the jury to one act, and the charge of the court is full and fair, and was not objected to.
“When the jury have solved the issues presented in the testimony under a fair and proper charge of the court, and there is sufficient evidence in the record, if believed, to support the verdict of guilty, and that verdict is approved by the trial judge, whose duty it is to set the conviction aside if not satisfied of the guilt of the accused, the verdict will not be set aside on appeal unless clearly wrong. We think the testimony is ample to' support the verdict, and that appellant had reason to congratulate himself on the fact that he was awarded so mild a punishment. To constitute rape upon a female under the age of consent, no more force is required than that necessarily involved in the act of penetration, and the fact that she consented thereto is no defense. Rodgers v. State, 30 Tex. App. 528, 17 S. W. 1077; Vaughn v. State, 62 Tex. Cr. R. 24, 136 S. W. 476; Ulmer v. State, 71 Tex. Cr. R. 579, 160 S. W. 1188; Turner v. State, 72 Tex. Cr. R. 649, 163 S. W. 707.
“The authorities in this state sustain the proposition that carnal knowledge of a female under the age of consent, and not the wife of the party having carnal knowledge of her, is rape, no matter what the circumstances, and the question of consent or whether the carnal knowledge was had by force, threats, or fraud is wholly immaterial., Anschicks v. State, 6 Tex. App. 524; Mayo v. State, 7 Tex. App. 347; Fowler v. State, 148 S. W. 576; Turner v. State, 72 Tex. Cr. R. 649, 163 S. W. 707.
• “2. Appellant has five other grounds in his amended motion for a new trial, each complaining of supposed errors in the admission or rejection of testimony. The bills of exception^ seeking to present these matters are too incomplete to be considered, and are not, as required by law, sufficiently full and certain in their statements as that in and of themselves they disclose all that is necessary to manifest the supposed errors.
“3. The first bill in full is,' after the style of the case: ‘Be it remembered that on the trial of the above entitled and numbered cause, when the prosecutrix was testifying, defendant’s counsel asked her the question as to whether her mother had sent her to the defendant to ask the defendant to meet her mother that night about the time the store was closed, to which the witness would have replied that such message had been sent, which testimony was objected to by the state, to which ruling of the court defendant then and there objected, and tenders this, his bill, of exceptions No. 1, and asks that the same be allowed.’ As this bill does not even show that the court made any ruling, it presents nothing to review; but, if the mother did send the little girl to appellant with the request to meet her that night, it would be no excuse or justification for having carnal intercourse with a girl under the age of consent.
“4. The second bill, after giving the style of the case, reads as follows: ‘Be it remembered that on the trial of the above entitled and numbered cause counsel for defendant asked the prosecutrix whether Mr. Hill, a merchant in the neighborhood where she lived, had not run her away from his place, to which question she would have replied that said Hill did run her away from his place, and said testimony was objected to by the state and excluded by the court on the objection, to which ruling defendant then and there excepted, and tenders this, his bill of exceptions No. 2, and asks that the same be allowed.’ The bill in no way shows the materiality of the question, nor does it disclose what objection was made by the state. The legal presumption is that the ruling of the trial court was correct, unless the bill shows otherwise. Ortiz v. State, 151 S. W. 1058; Zweig v. State, 171 S. W. 751. But suppose she had the reputation that no one desired her about their place, and would run her off; this would not authorize appellant to have carnal knowledge of her, she being under the age of consent.
“5. The third bill complains that on motion of the state the court struck Irom the record the testimony of a witness who testified that the prosecutrix had pulled up her clothes and exhibited her person to the witness. This bill is too uncertain to show clearly the ruling of the court, but, as it was alleged and proven that prosecutrix was under the age of. consent, the testimony was manifestly immaterial. The bill fails to show whether the witness was speaking of an incident that occurred before or aft&r the alleged rape, and nothing is shown that would enable this court to say that the trial judge committed any error. But, if the little girl pulled up her clothes and exhibited her person, the law is no one shall have carnal knowledge of a girl under 15 years of age, and, even though she invited appellant and persuaded him, yet he would violate the law, and, as he received the minimum punishment, the bill under no circumstances would present error.
“6. The fourth bill complains of the exclusion of the testimony of a witness who would have testified to statements made by the mother of the prosecutrix in the absence of the latter to the effect that the little girl had gone to defendant’s home to awake him in order to get some groceries. The testimony excluded on its face is hearsay, and there is nothing in the bill to show it was offered to impeach or that any predicate had been laid for its introduction, and no probable injury is shown by the ruling of the court.
“7. The fifth bill complains that: ‘When the defendant was testifying, he was asked by his counsel about the threat made by the prosecutrix that, if he did not let her have some groceries, he would be sorry, and when the defendant was asked what he understood the prose-cutrix to mean by that, he would have answered that he understood that she meant by that that she and her people would begin criminal prosecution against him, to which evidence the state, by counsel, then and there objected, and the court sustained said objection and excluded the testimony, to which ruling of the court defendant then and there excepted, and tenders this, his bill of exception No. 5, and asks that the same be allowed.’
“Besides the style of the case and the formal beginning, the above is the whole of the bill of exceptions. He could testify to the remark, but the deductions from the remark could be drawn by the jury. A bill of exceptions taken to the exclusion of the testimony must disclose the relevancy and materiality of the proposed evidence. Inferences will not be indulged to supply the omission of such essentials. Branch’s Criminal 48. _What has been said about the other hills is applicable to this bill, and we are unable to gather from its recitals that such error was committed as would entitle appellant to a reversal. If appellant’s testimony in the statement of facts is referred to, it is seen that he was permitted to testify freely and fully to anything that could possibly have been of benefit to him.
“8. Believing that nothing is shown by this record that would warrant a reversal, we respectfully submit that the judgment should be affirmed.”

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

      <g=»For other see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BENNETT v. STATE.
    (No. 3845.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1.Intoxicating Liquors &wkey;223 — Issues, Proof, and Variance — Time of Offense.
    In a prosecution of permitting liquor to be drunk in a disorderly house, when the time is not carved out, the state is not bound by the date alleged, but may prove any date prior to the presentment of the information and within the period of limitation.
    [Ed. Note. — l?or other cases, see Intoxicating Ifiquors, Cent. Dig. §§ 263-274; Dec. Dig. <&wkey;
    2.Intoxicating Liquors &wkey;>236 — Criminal Prosecutions — Sufficiency of Evidence.
    On a trial for permitting liquor to be drunk in a disorderly house, evidence held to show that defendant’s house was a place where lewd women and women with a bad reputation for chastity were permitted to resort.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. <&wkey;> 236.]
    3. Intoxicating Liquors &wkey;>162 — Criminal Offenses — “Disorderly House” — Permitting Drinking oe Liquor.
    Under Acts 32d Leg. e. 15 (Vernon’s Ann. Pen. Code 1916, arts. 593a-593c), making it a misdemeanor to permit liquor to be drunk in a disorderly house, and defining a “disorderly house” as any house where lewd women or women of bad reputation for chastity are permitted to resort, it is not necessary to a conviction that such women be bodily present when the liquor is drunk.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 178'; Dee. Dig. <&wkey;>162.
    For other definitions, see Words and Phrases, First and Second Series, Disorderly House.]
    4. Criminal Law <&wkey;747 — Review — Questions of Fact.
    A conflict in the testimony on a criminal trial was a matter for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1714, 1727; Dec. Dig. <&wkey;> 747.]
    5. Criminal Law <&wkey;1142> — De Facto J ud ges — Qualification—C ollateral Attack — “Officer De Facto.”
    Where the record showed the election of the special judge before whom a case was tried and the fact that he took the oath of office, and defendant went to trial without objection, it would be conclusively presumed on appeal, on a collateral attack, that he was qualified to act as such, as, even though he was not qualified, he was a de facto judge exercising the duties of his office, an “officer de facto” being a person who is such by color of election though ineligible, and the right of a de facto judge to hold his office is not subject to attack in a collateral proceeding.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3014, 3016-3037; Dec. Dig. &wkey;1142.
    For other definitions, see Words and Phrases, First and Second Series, De Facto.]
    6. Criminal Law <&wkey;1090 — Appeal—Bill of Exceptions.
    Where the contention in a motion for a new trial that the special judge before whom defendant was tried was not an attorney and could not be legally elected was in no way verified, by bill of exceptions or otherwise, it could not be considered.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. &wkey; 1090.]
    7. Criminal Law <&wkey;1171 — Trial—Remarks of District Attorney.-
    In a prosecution for permitting liquor to be drunk in a disorderly house, a bill of exceptions complained that the district attorney in his argument commented on the fact that defendant’s counsel objected to defendant’s wife being asked whether defendant cared whether prostitutes came to his place or not. The surrounding facts were not shown, but it appeared that she had testified that it was only 'when there was bad behavior that any women were asked to leave. Held, that it did not appear that any injury was or could be caused, as at most the remark was but a deduction from the testimony and circumstances, and any intelligent jury would know what weight to give it.
    [Ed. Note. — Eor other cases, see Criminal Raw, Cent. Dig. §§ 3126, 3127; Dec. Dig. &wkey; 1171.]
    8. CRIMINAL Law <&wkey;721 — Trial — Remarks oe District Attorney.
    The state’s attorney may comment on accused’s failure to explain criminative facts proven against him by his wife or upon any omissions in her testimony which were legitimate to be proven.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. <&wkey;>721.]
    9. Criminal Law &wkey;>713 — Trial—Remarks oe District Attorney.
    Where defendant’s counsel had several times remarked, “I want my bill,” the remark of the state’s counsel that he could have his bill when he appealed the case was not improper and did not authorize a reversal, where defendant’s right to appeal was not urged as a reason why he should be convicted.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1663, 1678; Dec. Dig. <&wkey;> 713.]
    10. Witnesses <&wkey;286 — Examination—Leading Questions — Reereshing Recollection.
    Where, on a trial for permitting liquor to be drunk in a disorderly house, the sheriff testified that the general reputation of defendant’s place was bad, and he was asked on cross-examination the names of any persons complaining about such place, and answered that he did not remember, the district attorney was properly permitted to ask him if certain persons named did not complain, since it is permissible to ask a leading question when an omission in a witness’ testimony is evidently caused by a want of recollection which a suggestion may assist.
    [Ed.v Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 930, 994-999; Dec. Dig. <&wkey;286.]
    11. Criminal Law &wkey;>421 — Evidence—Hearsay — General Reputation.
    An objection that such question was irrelevant, immaterial, and incompetent hearsay was properly overruled, as general reputation is necessarily based on hearsay.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 976-983; Dec. Dig. <&wkey; 421.]
    12. Criminal Law <&wkey;695 — Reception oe Evidence — Sueeiciency oe Objections.
    An objection to testimony as irrelevant, immaterial, and inadmissible for any purpose and highly prejudicial, was equivalent to no objection unless the testimony was obviously inadmissible for any purpose.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1633-1638; Dec. Dig. <©=» 695.]
    13. Witnesses <&wkey;287 — Examination—Redirect Examination.
    On a trial for permitting liquor to be drunk in a disorderly house, a witness who testified concerning the general reputation of defendant’s place was asked on cross-examination if he was not one of the signers of a local option petition. On redirect examination he was asked why he signed the petition, and answered that he and others got together and decided that defendant’s place and some other places were objectionable and that they signed the petition and had an election. Held, that this question was properly permitted, as the purpose of the cross-examination was to show the witness’ animus or leaning, and the state had a right on redirect examination to- remove the inference sought to be made by defendant and show why the witness acted as he did.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 930, 1000-1002; Dec. Dig. <&wkey;> 287.]
    14. Criminal Law &wkey;>1169 — Appeal—Harmless Error, — Admission oe Evidence.
    As the-witness had already testified to the bad reputation of defendant’s place, and as he did not state the result of the election or any fact which could possibly have wrongfully injured defendant’s rights, no injury was shown.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <&wkey;>1169.]
    15. Criminal Law &wkey;>1171 — Trial — Remarks oe District Attorney.
    On a trial for permitting liquor to be drunk in a disorderly house, where there was evidence that defendant’s place was what is known as a road house, the statement of the district attorney in his closing argument, that “there are more good young women gone to hell through road houses than any way that I know of,” could not have influenced the jury to find defendant guilty, and where he received the lowest penalty on a plain case of guilt no injury appeared, even though the remark was improper.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. <&wkey;> 1171.]
    16. Criminal Law <&wkey;1171 — Trial — Remarks oe District Attorney.
    Before a reversal can be had on account of improper argument of state’s counsel, it must clearly appear that the remarks were improper and that they were of a material character and such as, under the circumstances, were calculated to injuriously affect the rights of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. &wkey;> 1171.]
    17. Criminal Law <&wkey;720 — Trial—Remarks oe District Attorney.
    On a trial for permitting liquor to be drunk in a disorderly house, where there was 'evidence tending to show that defendant’s house was what is known as a road house, and that it was a place where many good people at times frequented, the remark of the district attorney in his argument, that “defendant’s place is such a place where some man may take a good girl out there, where the people of that kind and character frequent,” was justified by the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. <&wkey;> 720.]
    Appeal from Harris County Court, at Law; Jas. Snowball, Judge.
    F. S. Bennett was convicted of an offense, and he appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. John H. Crooker, Crim. Dist. Atty., and E. T. Branch, both of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

No brief was filed by appellant in this cause, and, as the numerous questions presented in the record are so fairly and ably discussed in the brief filed in behalf of the state, we have adopted the brief as the opinion of the court. It is as follows:

“Appellant was convicted under the act of February 23, 1911, which is found on page 23 of the Acts of the 32d Legislature (Vernon’s Ann. Pen. Code 1916, arts. 593a-593c), and his punishment assessed at the lowest penalty, a fine of $50 and 30 days’ imprisonment in the county jail.

“It is perhaps unnecessary to quote all of said act, but the part applicable to this case is:

“ ‘Section 1. If any person, whether the owner, * * * proprietor, * * * or any other person shall * * * permit to be * * * drunk, any * * * malt liquors, whether capable of producing intoxication or not, in any * * * disorderly house * * * shall be guilty of a misdemeanor, and upon conviction such person or persons shall be punished by imprisonment in the county jail for a period of not less than thirty days nor more than ninety days, and by a fine of not less than fifty nor more than five hundred dollars.’

“ ‘Sec. 2. A disorderly house is * * * any * * * place where * * * lewd women or women of bad reputation for chastity are * * * permitted to resort.’

“The information alleges that in Harris county, Tex., the appellant did on the 27th day of June, 1915, permit malt liquor, to wit, beer, to be drunk by Clyde Cawthon, and by Bud Drey-ling, and by several other named persons, in a disorderly house there situate, and then and there under the care, control, and management of the appellant; the said house being then and there a place where lewd women and women of bad reputation for chastity were then and there permitted to resort. No Objection was made to the information, and it is sufficient to allege a violation of that phase of the statute already quoted. Under a very fair and full charge of the court, to which no exceptions were taken, the court submitted the allegations of the information to the jury, limiting the state’s case to whether malt liquor, to wit, beer, was permitted to be drunk by Cawthon or Dreyling in the kind of disorderly house alleged,.and the defensive theory was affirmatively submitted to the jury.
“X. The date of the offense was laid generally in the information, and in a prosecution of this kind, when the time is not carved out, the state is not bound by the date alleged, but may prove any date prior to the presentment of the information which is within the period of limitation. Novy v. State, 62 Tex. Cr. R. 495, 138 S. W. 139. The state’s witnesses Cawthon and Dreyling each testified that they had bought and drunk beer at appellant’s place on and before the date alleged, and there was no controversy on this phase of the offense.
“On the other phase of the offense, that is, whether the place of appellant was a disorderly house as alleged, the state’s testimony is sufficient, if believed, to support the finding of the jury. A large number of witnesses testified that the general reputation of appellant’s place, which was known as ‘Eureka Pines,’ for being a place where lewd women and women of bad reputation for chastity, were permitted to resort was bad. In addition to this, women of that kind, as shown without controversy, testified to going to the place, and witnesses also testified to seeing inmates of the reservation— the restricted district in the city of Houston where common prostitutes live — at appellant’s place, and there was testimony that such women were permitted to dance there in the inclosure arround appellant’s resort. The inclosure also included several small ‘summer houses.’ In fact, the state’s evidence was sufficient to show that the place was what is known as a road house frequented by all sorts and conditions of people. One of appellant’s own witnesses, Hill Hinsley, in answer to appellant’s query as to the reputation of the place, testified that it was ‘as good as a place of that sort could be run,’ and on cross-examination testified to himself seeing a number of lewd women there. ,
“The mischief intended to be remedied by the statute is the permitting persons to drink strong liquors at places where lewd women are permitted to resort, and it is not necessary to a conviction that it be proven that such women were actually bodily present when the liquors were permitted to be drunk by the persons alleged.
“Appellant’s theory was that he did not know that any women of the character alleged came to his place, and that when any misbehaved he made them leave. The conflict in the testimony was, of course, a matter for the jury.
“2. The case was tried before Hon. James Snowball, who, on July 16th, a month before this case was tried, was elected special judge; the regular judge being absent. The minutes of the court showing the election of Judge Snowball and the fact that he took the oath of office is shown by the record in this case, and, as appellant went to trial without objection, it will be conclusively presumed on appeal on a collateral attack that the special judge was qualified to act as such. In the motion for new trial appellant sets up for the first time that the special judge wag not an attorney, and therefore could not be legally elected; but this contention is in no way verified by bill of exceptions or otherwise, and cannot be considered. If the trial judge was not a lawyer, and if it be conceded that he was not, on that account, qualified, yet the case proceeded to trial without objection, and he became a de facto judge exercising the duties of his office, and it is well settled that the right of a de facto judge to hold his office is not subject to attack in a collateral proceeding, nor will his right to hold the office be inquired into even in a habeas corpus proceeding brought to secure the release of a party convicted on a trial before him. Ex parte Call, Jr., 2 Tex. App. 497. An officer de facto is a person who is such by color of election, though ineligible. Ex parte Call, Jr., supra. The record of the election of Judge Snowball shows that out of 84 votes cast by the lawyers present, among whom were appellant’s counsel, he received 80 votes.
“3. Bill of exceptions No. 1 complains that the district attorney in argument to the jury commented on the fact that appellant’s counsel objected to the wife of appellant being asked whether appellant cared whether prostitutes came out to his place or not. Enough is not set out in the bill to show the surrounding facts, but it appears that she had already in effect testified that it was only when there was bad behavior that any women were asked to leave, and that so long as they behaved themselves they were not bothered in appellant’s place. For all that appears from the bill the question was legitimate, at least the bill fails to show why appellant objected to the question, and it is well settled that the state may comment on the failure of an accused to explain criminative facts proven against him by his wife or upon any omissions in her testimony which were legitimate to be proven. Locklin v. State, 75 S. W. 308. We think, taken as a whole, the bill fails to show any reason why the judgment should be reversed, because it does not appear that any injury was or could have been caused thereby. At most, the remark was but a deduction from the testimony and circumstances of the case, and any intelligent jury would know what weight to give it.
“4. Bill No. 2 complains that after appellant’s counsel had said two or three times, T want my bill,’ state’s counsel said to him, ‘You can have your bill when you appeal the case.’ The bill shows nothing which would authorize a reversal, nor does it show that, under the circumstances, it was improper. Of course, state’s counsel was contending that appellant was guilty, and appellant’s counsel was contending the reverse, and it appears from the whole of the bill that it was simply an exchange of courtesies. No intelligent jury would understand that appellant’s. counsel would want bills if he did not lose the case. State’s counsel in no way urged the fact of appellant’s right to appeal as a reason why he should be convicted.
“5. The third bill complains that the state was permitted to ask the sheriff, ‘Did Mr. Godbolt, and W. J. Hill, complain to you of the place?’ The bill is too incomplete to present anything for review, but we gather therefrom that the sheriff was asked by the appellant to give the names of any persons who comiilained about the place, and in answer to appellant’s question stated -that he did not remember. The state then was properly allowed to suggest to the sheriff the names. It is well settled that it is permissible to ask a witness a leading question when an omission in his testimony is evidently caused by a want of recollection which a suggestion may assist. Branch’s Criminal Law, § 834. This matter was brought out by appellant himself, as shown by the bill, and presents no error. The only objection made was that the testimony was ‘irrelevant, immaterial, and incompetent hearsay.’ If the statement of facts is looked to, it will be seen that the sheriff had testified that the general reputation of appellant’s place in the respects alleged was bad, and general reputation is of course based on hearsay.
“6. The fourth bill relates to the admissibility of certain testimony elicited by the state on redirect examination of the witness Godbolt, who had testified on direct examination that the general reputation of the place of appellant in the respect alleged was bad. On cross-examination, this witness was asked by appellant if it was not a fact that the witness was not one of the signers of the local option petition which was circulated in the vicinity where appellant’s place of business was, to which the witness answers in the affirmative, and on redirect examination the court, over objection of appellant, permitted the state to ask the witness why he signed the petition inquired about, and the witness answered, ‘Well, me and a lot of the residents out there got together and discussed it and decided that the defendant’s place and two or three others out there were objectionable, and we signed the petition for local option and had an election.’ The only objection made was that the explanation of the witness ‘was irrelevant, immaterial, and inadmissible for any purpose, and would be highly prejudicial.’ This objection is so general as to be equivalent to no objection unless the testimony was obviously not admissible for any purpose. We think,, however, that the testimony was clearly admissible under the authority of Oomegys v. State, 70 Tex. Or. R. 495, 156 S. W. 042, wherein a similar question was decided. The only legitimate purpose in asking the witness if he was not one of the signers to the local option petition would be to show the animus or leaning of the witness, and, if this was' the purpose, then clearly the state would have the right on redirect examination to remove the inference sought to be made by appellant and to show why the witness acted as he did.
“However, no possible injury is shown by the answer because the witness did not state the result of the election or state any fact which could possibly have wrongfully injured appellant’s rights, because he had already testified to the bad general reputation of appellant’s place, and the reason he gave for signing the local option petition is the reason that would actuate any honorable man in signing such a petition; certainly, if the witness thought appellant’s road house and the others out there were unobjectionable, he would not have signed the petition. In effect the explanation of the witness was to show the jury that he did not sign the petition for any personal animosity to appellant, and the state was properly permitted to have the witness put himself right before the jury. Comegys v. State, 70 Tex. Cr. R. 495, 156 S. W. 642; Manley v. State, 153 S. W. 1138. We think it unnecessary to cite any other authorities.
“7. The next bill of exceptions complains that the state’s counsel in the closing argument to the jury said ‘there are more good young women gone to hell through road houses than any way that I know of,’ but the bill of exceptions does not state any ground of exception thereto, nor does the bill of exceptions show the setting of the argument or in what connection it was said. It is impossible that any honest jury could have been influenced to find appellant guilty on such argument, or that any jury would have not known just what weight to attach thereto, and, as appellant received the lowest penalty on a plain case of guilt, no injury is shown, even if it be conceded that the remark was improper. It is well settled that, before a reversal can be had on account of the improper or supposed improper argument of state’s counsel, it, must clearly appear that the remarks were improper, and that they were of a material character and such as under the circumstances were calculated to injuriously affect the rights of the accused. Walls v. State, 153 S. W. 130; Davis v. State, 154 S. W. 550; Himmelfarb v. State, 174 S. W. 589; Mooney v. State, 176 S. W. 58. The bill of exceptions is so incomplete as really not to present any question for review, but in any event no such error is shown which would authorize this court to set aside the judgment in this case.
“8. The only other bill complains of the argument of the assistant district attorney to the effect that the ‘defendant’s place is such a place where some man may take a good girl out there, where the people of that kind and character frequent,’ and nothing in the bill of exceptions shows that this statement was not justified by the facts in evidence; but, if the statement of facts is looked to, it is seen that this statement is amply justified by the testimony in the case, and the other part of the bill is the in-completed part of the bill No. 2, which has already been discussed in paragraph 4 hereof. The statement of facts shows that this road house was a place.where many good people at times frequented.”

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

      <S=Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes