text:
    BOYD v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    1. Intoxicating Liquors (§ 131) — Violation on Local Option Law — Nature of Offense.
    A violation of the local option law adopted at an election held prior to the amendment of the law making it a felony to sell liquors in prohibition territory is a misdemeanor.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 140, 161; Dec. Dig. § 131.]
    2. Criminal Law (§ 1038) — Questions Reviewable — Instructions.
    On appeal in a misdemeanor case, complaints of the charge in the motion for new trial cannot be considered where no exception to the charge was reserved, nor special charge requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    3. Criminal Law (§ 1054) — Appeal—Exceptions — Rulings on Evidence.
    On appeal in a misdemeanor case, the admission of testimony cannot be considered where no exception was reserved to the ruling.
    [Ed._ Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2662-2664; Dec. Dig. § 1054.]
    4. Intoxicating Liquors (§ 236) — 'Violation of Local Option Law — Evidence—Sufficiency.
    The testimony of a state’s witness on a trial for violating the local option law, that he bought whisky from accused, sustains a conviction, though his further examination weakened his statement.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. §. 236.]
    On Motion for Rehearing.
    5. Criminal Law (§ 1112) — Record on Appeal — Ex Parte Affidavits.
    A statement of facts, agreed to by the county attorney and accused’s counsel, and approved by the county judge, cannot be impeached by ex parte affidavits; but the court on appeal must take the record as made on the trial of ^he ease, and certified to it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2896; Dec. Dig. § 1112.]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    A. B. Boyd was convicted of violating the-local option law, and he appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellants C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of violating the local option law, and his punishment assessed at a fine of $25, and 20-days’ imprisonment in the county jail.

In Upshur county it is a misdemeanor to sell intoxicating liquors, the election having been held prior to the time that the law was amended making it a felony to sell intoxicating liquors in prohibition territory; and the record must be passed on as applicable to misdemeanors.

No special charge was requested, and no exception to the charge as given was reserved; consequently tlie complaints of tlie charge in the motion for a new trial cannot be considered.

No exceptions were reserved to the introduction of testimony; therefore the only ground in the motion we can take into consideration is the one complaining of the sufficiency of the testimony.

The witness Lennie Gibbs testified, “Yes, I bought a pint of whisky from Mr. Boyd;” and, while his further examination might tend to weaken this statement, yet that was a question for the jury, and not for us.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for a rehearing in this case, and undertakes to impeach the record, in that he attaches to his motion the affidavit of Lennie Gibbs, stating that he did not swear on the trial that he purchased a bottle of whisky from appellant. The statement of facts recites that Lennie Gibbs testified as follows: “Yes, I bought a pint of whisky from Mr. Boyd [appellant].” This statement of facts is agreed to by the county attorney and appellant’s counsel, and approved by the county judge. This record cannot be impeached by ex parte affidavits. If it is not a true recitation of the testimony heard on the trial, appellant’s counsel should not have agreed to and signed it. If we permitted the record to be impeached by ex parte affidavits, there would be no end to the trial of a case. We must take the record as made on the trial of the ease and certified to us.

The motion for rehearing is overruled.


source: Caselaw Access Project

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

license: Public Domain

text:
    CURRY v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    Rehearing Denied Jan. 14, 1914.)
    1. CRIMINAL Law (§ 1159) — Appeal — Verdict.
    A verdict of the jury on conflicting evidence will not be disturbed on appeal; the question of the veracity of witnesses and the weight to be given their testimony being for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    2. Criminal Law (§ 1159) — Appeal — Verdict — Seduction.
    In a prosecution for seduction, if the evidence of corroboration is insufficient in law, the appellate court should so hold reversing and remanding the conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dee. Dig. § 1159.]
    3. Criminal Law (§ 244) — Examining Trial —Practice.
    In preserving the evidence at examining trials, it is the practice to give the substance only and not the details.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 511-514; Dec. Dig. § 244.]
    4. Seduction (§ 36) — Evidence — Admissibility.
    In a prosecution for seduction, evidence of improper conduct of the prosecutrix with others after the date of the seduction is no defense.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. § 62; Dec. Dig. § 36.]
    5. Seduction (§ 39) — Prosecution — Presumptions.
    The prosecutrix is presumed chaste, and if accused relies on the fact of unchastity he has the burden of establishing it.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 67-71; Dec. Dig. § 39.]
    6. Seduction (§ 45) — Evidence—Suppicien* cy.
    In a prosecution for seduction, evidence held sufficient to support the conviction.
    [Ed. Note. — For other eases, see Seduction, Cent. Dig. §§ 80-82; Dec. Dig. § 45.]
    7. Criminal Law (§ 1043) — Appeal—Presentation op Grounds op Review in Court Below — Sufficiency op Objections.
    Objections to cross-examination of defendant’s witn'ess on the ground that it was wholly irrelevant and immaterial because the defendant could not be bound by what the witness said or that the state had adopted an improper method to impeach the witness are insufficient to require consideration on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    8. Witnesses (§ 268) — Cross-Examination —Mode op Cross-Examination.
    There are not two standards of cross-examination, one for accused and one for the state; but the same rules apply to each.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    9. Witnesses (§ 372) — Examination—Cross-Examination — Motive.
    Motives which operate on the mind of a witness when he testifies are never immaterial or collateral matters which should not be brought out on cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dee. Dig. § 372.]
    10. Witnesses (§§ 330, 398) — Cross-Examination — Scope.
    Great latitude is allowed on cross-examination, and a witness may bo asked anything which may have a tendency to affect his credibility, and, if he denies anything showing a motive for testifying against one party, those facts may be shown by other witnesses and independent facts.
    [Ed. Note. — For other cases, see Witnesses, Cent Dig. §§ 1106-1108, 1267, 1274, 1275; Dec. Dig. §§ 330, 398.]
    11. Witnesses (§ 388) — Impeachment — Foundation.
    Ordinarily no witness can be impeached by showing that he has made a statement contrary to his testimony without first examining him on the subject and giving him an opportunity to deny or explain.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. § 388.]
    12. Witnesses (§ 330) — Examination — Cross-Examination.
    In a criminal prosecution, where the defendant introduced a witness who had been high sheriff in the county at the time the prosecution had been instituted, and the witness after testifying as to his office stated that the prosecutrix had informed him that accused was not guilty and that the witness advised her if she so testified she would he prosecuted for perjury, the state is entitled to cross-examine the witness as to whether he advised the prosecutor as to those facts in accordance with his duties as a peace officer and to examine him as to the time the statements were made for the purpose of affecting his credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.]
    13. Witnesses (§ 330) — Cross-Examination —Scope.
    Where accused introduced a witness who bolstered up his testimony by stating that he was a church clerk, the state is entitled on cross-examination to ask him whether he was removed from that office and expelled from the church because of his attitude toward the prose-cutrix and her family.
    [Ed. Note. — For other cases, see Witnesses, Gent Dig. §§ 1106-1108; Dec. Dig. § 330.]
    14. Criminal Law (§ 1170½) — Appeal — Harmless Error.
    Where accused introduced a witness who stated that he was a church clerk, the action of the state in asking him on cross-examination if he was not removed from that office and expelled from the church on account of his attitude toward the prosecutrix and her family is harmless, where he denied those facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170.½.]
    Davidson, J., dissenting.
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Roy Curry was convicted of seduction, and he appeals.
    Affirmed.
    W. T. Potter, of Austin, and J. F. Cunningham, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was tried and convicted for seduction and his punishment assessed at the lowest prescribed by law.

This is the second appeal. The decision on the first is reported in 151 S. W. 319.

Appellant contends the case should be reversed on three grounds: First, that the evidence is insufficient to sustain the conviction. Second, because of the state being permitted to ask appellant’s witness Stephenson certain questions on cross-examination. And, third, because of questions propounded by the state to appellant’s witness Dwiggins. Judge DAVIDSON has written an opinion herein in which he says the case should be reversed on all three grounds. I cannot agree with him. As to the first, he says the facts on this appeal are not materially different from that on the former appeal; that the judgment was then reversed because of a want of sufficient evidence. I think he is clearly mistaken in both of these statements. We showed in the former opinion that the evidence on that trial was not fully developed, and pointed out in some particulars wherein it was not. On this appeal the testimony for the state is developed and added to and thereby materially different and much fuller and more satisfactory than on the other.

The judgment on the other appeal was not reversed because of insufficient evidence, save and except on the one question of corroboration of the seduced girl. We expressly stated on the other appeal: “We sustain appellant’s contention on that point, and on that point alone will reverse and remand this cause.” Again, we said: “Yet in this case the evidence was not developed sufficiently so that we can hold, as a matter of law, the evidence was sufficient to corroborate the prosecuting witness. These matters may be developed on another trial of the case sufficiently to authorize the jury to find and believe that the accomplice is corroborated, as required by law.” For the want of this, we said: “The judgment is reversed and the cause remanded.” We further therein held: “The law is that the testimony of the injured party in eases of this character does not have to be corroborated in each and all of the necessary elements of the offense, and that the corroborative evidence may be slight, and that the requirements of the statute are fulfilled if there be any corroborating evidence which, of itself, tends to connect the accused with the commission of the offense. Such corroboration only is necessary as is sufficient to satisfy a jury, beyond a reasonable doubt, of the truth of the charg^, in connection with the testimony of the accomplice. Nourse v. State, 2 Tex. App. 306; Jones v. State, 4 Tex. App. 531; Tooney v. State, 5 Tex. App. 163; Simms v. State, 8 Tex. App. 243; Clanton v. State, 13 Tex. App. 157; Moore v. State, 47 Tex. Cr. R. 415, 83 S. W. 1117; Nash v. State, 61 Tex. Cr. R. 264, 134 S. W. 709; Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120; Bost v. State [64 Tex. Cr. R. 464], 144 S. W. 589; Murphy v. State, 143 S. W. 618. * * * This must necessarily be the law and the proper construction of the statute in cases of this character; for acts of intercourse between persons are always as secret and private as can be, and under such circumstances as the parties believe will prevent their detection or even suspicion at the time. Also, engagements of young persons to marry are made in private and in secret between them; and very generally, if not entirely, the fact of engagement, for at least some length of time,'is kept as privately and secretly between them as can well be. Therefore proof, in the nature of these things, generally cannot be made other than by the testimony of the accomplice, corroborated by such circumstances as to time and place, op.-portunity, and the course of dealing or treatment between the parties along about the time, such as the man being the accepted suitor, devoting his attention at the time to the girl, so recognized and understood by her family, his frequent attendance upon her, the fact, if so, of Ms exclusive attentions to her, and the attention of no other man to her during the time, and such like matters.”

It is true the evidence in tMs case is somewhat conflicting. In some particulars the evidence may tend to dispute the state’s yitnesses and the state’s case. This is true in almost every case, and especially in cases of this character. But the veracity of the witnesses, and the weight to be given to their testimony, are necessarily for the jury and the court below. The statute expressly so makes them. They are not for this court. In such cases this court can and does pass on the question solely as a question of law. If in law the evidence of corroboration is insufficient, it is the duty of this court to so hold. But this court cannot usurp the duty and power of the lower court and jury to judge as to the veracity of the witnesses and the weight to be given to their testimony. The jury can believe one witness, although contradicted by many others. The jury can believe part of the testimony of one witness, and reject another part; it can believe the testimony of some of the witnesses on some point and disbelieve the same witness on other points. These principles of law and the application of them have so many times been decided by this court and are so thoroughly and beyond question settled that it is needless to cite any case or authority.

The record in this case further shows that at least three trials of this case have been had in the lower court. The first one in Stephens county in December, 1911. The result of that trial is not shown by the record. However, either appellant was convicted and granted a new trial, or there was a mistrial; one or the other. The venue of the case was then changed from Stephens to Taylor county. On the second trial, the appellant was convicted and appealed and his ease reversed, as shown above. He was again tried and convicted, from which this appeal is prosecuted. The learned trial judge, before whom this trial occurred, presided in each of the other trials and heard all the testimony on each trial. In the last two, he agreed with the jury as evidenced by his overruling appellant’s motions for a new trial in both instances. Again, this record shows that there was a trial of another ease in Stephens county, wherein the material testimony in tMs case was given, and, in addition, other testimony as to the charge of rape of tMs same girl intimately connected with the appellant in this case in which the accused in that ease was convicted, and, upon appeal, the ease was affirmed by this court. That case is Sam Wragg, who was a cousin of appellant, reported in 145 S. W. S42. The same learned judge who tried tMs, also tried the Wragg Case and heard all the evidence therein. Whether there was more than one trial in the Wragg Case this record does not disclose.

In considering the evidence herein, I will state and discuss it from the standpoint of the state’s case. If sufficient from that standpoint, the law is met and the conviction should be sustained, although the evidence from appellant’s standpoint would have authorized his acquittal.

It was agreed that Belle McFarlin, the seduced girl, was dead. The evidence, without contradiction, shows she died in November, 1911. An examining trial of appellant was had in December, 1910, at Breckenridge, before the justice of the peace, at which time Belle McFarlin testified. Her testimony was taken down in writing, signed and sworn to by her, identified and introduced on this trial. As stated by us on the other appeal, “we know that the practice ⅜ ⅜ * on examining trials is to give the substance only, and not the details.” She testified: That she was then 15 years of age. That appellant first began going to see her in September, 1909. The first act of carnal intercourse occurred in January, 1910. At that time, and before the act, he promised to marry her, and she submitted because thereof and would not have otherwise submitted. She believed appellant’s statement made to her that he would marry her. Every time thereafter when he went with her, and they were alone, he renewed his promise to marry her. That she submitted to the first act of carnal intercourse solely on the ground of the promise of marriage made by him to her, and never thereafter submitted except under this promise by appellant to her. That she lived in Stephens county at that time with her mother, her father having died about two years prior thereto. That she first accepted appellant’s promise to marry her in January, 1910; that he first proposed in September, 1909, but she did not then accept his proposition. At that time, September, 1909, he did not propose carnal intercourse with her. That she first began to love him in January, 1910, but did not let him have intercourse with her alone because she loved him, but because he promised at that time to marry her as well. She said: “I have stated previously that Sam Wragg had had intercourse with me, and that I had not arranged with Sam Wragg for the meeting for such intercourse. I now say that Roy Curry arranged such meeting, and it occurred three or four days before November 12 (1912).” TMs quoted part of her testimony was introduced by appellant Mmself. Evidently “1912” is a clerical error. It should be “1910.” She died some time in November, 1911. I have not undertaken to give a copy of her evidence, but the substance of it on the points mentioned.

Dr. Wharton testified: That he waited on Belle in a ease of obstetrics at Mrs. MeFar-lin’s on about the last of February, 1911, at which time she gave premature birth to a foetus of about 6½ or 7 months; that the child lived four or five days.

This trial occurred in April, 1913. Mrs. E. A. McFarlin, Belle’s mother, testified: That at the time of this trial she lived in Navarro county, having moved from Stephens to Navarro county in 1912, hut that prior thereto for several years she had lived in Stephens county. That at the time Belle died she was about 17 years old. She (Belle) was single, had never been married. That she (Mrs. McFarlin) knew appellant eight or nine years. That she knew him ever since they lived in Stephens county. That he was at her home there and came there to see her daughter Belle. The last year he came to see her he was there often, about once a week. “The last week he came three times; that was the week she left when this trouble came up.” Prior to that time he had been coming to see Belle ever since 1908. He commenced in 1908. 1-Ie did not come very often the first year. He commenced that year and came a right smart, and then from that on he came regularly all the time. “My daughter Belle McFarlin never kept company with anybody else during that time. She went with him exclusively all the time. She kept company with him altogether, and there was no one else waited on her during the time he waited on her.” On cross-examination she testified: “From September, 1909, on down until January, 1910, he went with my daughter, or came to see her regularly all the time, during that time. He was with her often. He was all the one that was with her. He would come there to the house, tie pretended to carry her to preaching frequently. I went to preaching with them. I have been with them several times to preaching. I would see them at preaching together at Har-persville, and they went to Eolian to preaching together.” That she saw them together at preaching at Harpersville one time in July, 1910. “They went to Eolian to preaching together. During 1909 and 1910 my family was composed of myself and my three little girls.”

Mattie McFarlin, Belle’s sister, testified on this trial: That she was then 15 years old. Prior to their moving to Navarro county and now, she lived with her mother in Stephens county, as did her sister Belle. That she had known appellant a long time. “He used to keep company with my sister Belle Mc-Farlin before she died.” He began in 1908, and kept company with her something like two years. “He came to see her two or three times a month. He carried her out driving a right smart — about twice a month.” She did no.t know how many times during the two years he did come, but something like every other week or two or three times a month. “I never did see Belle going with any other boy during that time. She did not keep company with any other boys, so far as I know, during that time. No other boys came to see her. As far as I knew, she kept company exclusively with Roy Curry.” On cross-examination: That her sister and appellant did not have a breaking off that she knew of, in which he did not come to see her from about September, 1909, until January, 1910. That in July, 1910, she saw him carry her to preaching at Harpersville; she thinks it was a Methodist meeting.

The testimony in the record further shows satisfactorily that, after the first act of intercourse had with appellant'when he promised to marry her, she continued from time to time thereafter to so indulge him; he, each time, promising to marry her. The testimony, as a whole, and no part of it, shows, or tends to show, that any other, except appellant, had sexual intercourse with this girl, prior to the time appellant seduced her and accomplished her ruin, nor any time shortly thereafter. She testified that Sam Wragg had had, but this act with Wragg was expressly arranged by appellant and must have occurred nearly a year after he had seduced and debauched her and gotten her pregnant, and under such circumstances as shown in that case amounted to rape.

Appellant introduced Trammel Lyles, who said he was 20 years old at the time this case was tried; that in the summer of 1910 he carried her home from church one time, and “I hugged her and kissed her and squeezed her a little bit.” The testimony of this witness, on cross-examination, shows satisfactorily that the jury was clearly justified in believing his testimony was false. He claimed to be a great friend of appellant; that he lived in about two miles of where this girl lived, in the same neighborhood appellant lived; that he knew of all of the previous trials of appellant in this case ;■ and that he also knew of the trial of the companion case of Sam Wragg, and knew Wragg well; that he never testified in any of those trials during Belle McFarlin’s lifetime, and never told appellant any thing about this testimony of his until he was trumped up on this, the last, trial, and he did not know how he came to be summoned this time, as he had never told appellant or any other. In addition, Mrs. McFarlin and Mattie both testified positively that this witness was never with Belle and never took her from church. But suppose his testimony was true, and that the girl did permit the liberties he tells about. It occurred, by his own statement, several months after appellant had seduced and debauched her. What she did with others after the act of seduction and debauch-» ery by appellant should not, and under the authorities cannot, show any defense for appellant. The testimony in this case further shows that the appellant began his attentions to this girl in 1908, when she was only 14 years of age, and that he pressed his suit vigorously in and after September, 1909, and seduced and debauched her in January, 1910, when she was only 15 years of age.

Mr. Wharton, in his Criminal Evidence (volume 1, p. 668), says: “While the chastity of the prosecutrix is an issue and must be proved, as an essential element, it need not always be proved in the first instance, as it is presumed; and in such cases if the accused relies on the fact of unchastity, the burden is on him to establish it.” This court, in Bost v. State, 64 Tex. Cr. R. 477, 144 S. W. 596, said: “Judge Willson for this court, in Lagrone v. State, 12 Tex. App. 426, said: ‘The law presumes a female to be chaste until the contrary is proved.’ The law so presuming, and the jury being presumed to know the law, it can also act upon such presumption.” There can be no doubt but that chastity can be proven as well by circumstantial evidence as by direct. As stated above, the law presumes this young girl was a chaste girl prior to the time appellant seduced and debauched her. There is no circumstance and no testimony, the slightest, that indicates otherwise. The court, in his charge in this case, required the. jury to believe beyond a reasonable doubt that she was a chaste girl at the time and before appellant seduced and debauched her. The jury by their verdict believed beyond a reasonable doubt that she was a chaste girl at and prior to the time appellant seduced her.

Again, the evidence clearly and satisfactorily shows, and justified the jury to believe, that no other than appellant had the opportunity to have sexual intercourse with her at and prior to the time she testified he seduced and debauched her. He alone is shown to have had such opportunity. All the facts and circumstances, without doubt and without question, satisfactorily show that no other than appellant caused her pregnancy. That some one had such intercourse with her is established beyond dispute by the fact that she became pregnant and was delivered of a child. No other reasonable conclusion can be drawn from any part of the testimony, or the whole of it, than that this young girl, at the solicitations of appellant, became engaged to be married to him, and by reason' thereof, at his solicitation, and relying upon his promise, he induced her to have sexual intercourse with him, and that he alone, in this way, ruined her and blasted her young life. In my opinion the evidence not only shows that he, and he alone, was guilty, beyond a reasonable doubt, but that this young girl, in her testimony, by all the facts and circumstances, has been amply and sufficiently corroborated.

Appellant has but two bills of exceptions, which raise his other questions. By the first it is shown that Matt Stephenson, whom he introduced as a witness, on direct examination testified: That he was sheriff of Stephens county in the years 1911 and 1912, and was acquainted with Belle McFarlin and appellant, when they lived in that county. That in July or August, 1911, he had a conversation with Belle McFarlin at Abilene at the residence of Jim and Lovey Lane. That he told her that she would have to go to court at Breckenridge. That she there said to him she did not want to attend court any more, and he asked her why, and she said she was tired of attending court; that she was going to get rid of court when she got down there next time. That he asked her in what way, and she said she was going to swear that appellant did not promise to marry her. That he told her that if she did the grand jury would indict her for perjury because she had so sworn in her testimony before the grand jury who indicted appellant, and if she now should swear otherwise the grand jury would indict her for perjury. She said it made no difference, she was going back and swear that; that she was tired of attending court.

That after this witness had so testified, the district attorney, on cross-examination, asked and the witness answered as follows: “Q. Now, she told you this in the latter part of July or the first of August? A. I believe it was. Q. And you were sheriff of Stephens county at that time? A. Yes, sir. Q. And I was district attorney? A. Yes, sir. Q. And you never breathed that to me? A. No, sir. Q. You knew this defendant at that time was charged with seducing her? A. Yes, sir. Q. And you never breathed that to me or any one connected with the prosecution until after the girl had been dead a couple of months, did you? A. No, sir; I did not mention it to you until a couple of months after she was dead, because I did not see you. Q. Why didn’t you mention it to the different grand juries, so that, if that girl did falsify, she could be indicted? A. I did not think about it being evidence. I didn’t think about the matter until the case was called, that is, that it would be admissible testimony, because I did not think about the girl going to die. I didn’t know anything about the girl going to die.” Appellant objected to these questions and answers, because “the same was wholly irrelevant and immaterial and because the defendant could not be bound by what the witness did or did not do.” Whereupon the court in part sustained said objection with the statement that the jury would not consider said testimony for any purpose whatever against the defendant, but that it was admitted before the jury only upon the issue of the credibility of the witness Stephenson and upon no other issue, and verbally instructed the jury that they could only consider said testimony in passing upon the credibility of said witness. Whereupon the defendant again objected to said testimony even with the limitation given by the court, for the reason that the witness was a witness for the defendant, and that to attack the credibility of the witness would be to attack the credibility of defendant’s witness, and it would be harmful to defendant. And further objected that it was not proper testimony by which to discredit a witness, and was therefore irrele-vánt and improper, even with the limitation placed upon it by the court. - The court, in approving this bill, corrected and explained it as follows: “It was the theory of the state that the prosecutrix had not made the statements to the witness Stephenson, claimed by him to have been made, and further that in calling on the girl in Abilene he did so with an improper motive. The evidence showed that said witness was not the sheriff of Stephens county on the date of this trial, but was sheriff only during the years 1911 and 1912. The witness Stephenson testified to the following facts: T wired Ben Peevey to meet me at the train with this girl Belle McFarlin; that I wanted to see her and talk to her. I won’t say whether Ben Peevey met me there or not, but she met me there at the train. I got off the midnight train and went with her to Jim Lane’s house from the depot. We did not go to the Commercial Hotel. We went to Jim Lane’s house. I did not stop off here and stay all night in Abilene. I stayed here until about 2 o’clock, I think. I did not stay here in Abilene that night. I went from here to Cisco on a caboose on a freight train.’ Then, as to a former trip he had made to Abilene to see the prosecutrix, he testified: ‘The first time I came over here I came over with a subpoena for her. I got that subpoena at Breckenridge. It was not addressed to the officers of Taylor county. It was addressed down there to the officers in Stephens county. I didn’t have any authority to come to Taylor county and serve that subpoena. I did not serve that subpoena on Belle McFarlin because I did not have it with me.’ In admitting the testimony complained of by the defendant, the court at the time instructed the jury that they could not consider the same against the defendant for any purpose whatever, and admitted it only upon the issue of the credibility of said witness, and for no other purpose, and in the court’s written charge to the jury he likewise limited this testimony.”

As the discussion of this bill, to a large extent, embraces a discussion of the other also, I will now state the other, and discuss them together. The other bill shows that the appellant introduced R. J. Dwiggins, who, on direct examination, among other things, testified (I quote from the bill as follows): “ ‘My name is R. J. Dwiggins. I live at Breckenridge, in Stephens county. I have been a citizen of Stephens county about 10 or 12 years. I lived in or near Harpersville. I moved to Breckenridge along about the 1st of September, 1911, and I lived at Harpers-ville all of the rest of the time. I lived at Harpersville prior to September, 1911. I was church clerk of the Baptist Ghurch all of the time I was at Harpersville. I attended church there at all of its meetings there. I know the defendant, Roy Curry. I saw Roy Gurry there in company with Belle Mc-Farlin one time. That was in the latter part of the summer or early part of the fall of 11910, I think. That is all the time I ever saw him there with her. I attended all of the meetings during 1909 and 1910 up to September.’ On cross-examination by the statu said witness further testified: T don’t think they could have been there and me not have seen them. I don’t know who all was there the night I saw Roy and Belle there. I carried Belle there in my hack, Belle and Mattie ; that is the reason I know, and Roy and Belle got together after we got to church.’' On redirect examination he testified: T carried Belle McFarlin to church, and she went back, I carried them home that night. I went plumb on around and carried them home. I carried her up there to preaching and carried her back home. Curry was with her at preaching, but didn’t carry her home.’ After further cross-examination by the state, the witness was excused, and the trial proceeded until the defendant had rested his case.”

The bill then further proceeds that said testimony was very material for appellant for the reason that the state had proven by Mrs. McFarlin, Belle’s mother, and Mattie, Belle’s sister, among other things, that appellant had carried Belle to preaching frequently ; that they (the witnesses) went with-them and had seen them at preaching several times; and that they went to preaching several times at Harpersville, and said Dwig-gins’ testimony was material to disprove the said testimony of the mother and sister of Belle. And that after appellant had concluded his testimony and rested his case, the state, in rebuttal, had said Dwiggins called to the stand, and, over appellant’s objections, the district attorney asked, and the witness was required to answer, as follows: “Q. As I understood your testimony this morning, you testified that you were church clerk at Harpersville, was it? A. Xes, sir. Q. Now, I will ask you this question, if it is not a fact that the Baptist people withdrew fellowship from you, or turned you out of the church, on account of the trouble you had with Mrs. McFarlin and Mattie?” Whereupon, appellant objected to the question and answer because “it is irrelevant and immaterial,, and an improper way to impeach a witness.” The court then stated to counsel and the jury that he would admit said testimony only in rebuttal to testimony elicited by the defense on direct examination and instructed the jury verbally that they would not consider said testimony against the defendant for any purpose whatever; that it was not evidence against the defendant at all, and “you cannot consider it against him for any purpose whatever. If you should consider it for any purpose, it is admitted only upon the issue of the credibility of the witness, and upon no other issue, and the court permits it only in rebuttal to that which the-defendant has brought out.” Whereupon appellant again objected to its introduction, even for the purpose of being considered by the jury in passing npon the credibility of a witness; it not being proper evidence on which to impeach a witness. The court overruled the objection, and the witness answered: “No, sir; that was not it at all.” Whereupon the district attorney, over the same objections, asked the following question: “ ‘Q. What was the trouble about?’ And the defendant again made the same objections as before, which were overruled, with the limitation as before, and the witness answered: ‘It is not a fact that the Baptist people at that place withdrew fellowship from me, or what is commonly known as turned me out of the church, on account of trouble I had with Mrs. McEarlin and Mattie McEarlin. They did withdraw fellowship from me afterwards. They withdrew fellowship from me after I moved to Breekenridge. They were going to withdraw fellowship from me one month before I left, but for some cause, I don’t know why, they did not do it at that time.’ ”

Appellant again stated that he objected to it being considered by the jury in passing upon the credibility of the witness, because it was not such testimony in law to impeach a witness, and that it was damaging to the defendant and harmful. The court in qualification and explanation of this bill, in allowing it, stated: “The witness Mrs. E. A. Mc-Earlin testified on cross-examination, in reply to questions asked her by the defense: ‘He (Roy Ourry) was with her often (meaning with her daughter, the prosecutrix). He was all the one that was with her. He would come there to the house. He pretended to carry her to preaching frequently. I went to preaching with them. I have been with them several times to preaching. I would see them at preaching together at Harpersville, and they went to Eolian to preaching together. I saw them at preaching together in Harpers-ville in 1910, but don’t remember what portion of 1910.’ Up to this tíme the state had introduced no testimony whatever about any church services; and all of said testimony concerning church services was elicited by the defense. Such evidence did not show that the services attended was at the Baptist, or Presbyterian, or Christian, or Methodist Church, or that Harpersville and Eolian were the only places attended. The state did not ask Mrs. McFarlin any question about church services. Then, after the defendant had elicited such testimony from the said Mrs. McEarlin, the defense introduced the witness Dwiggins, and proved by him that: T lived at Harpersville prior to September 1, 1911. I was church clerk of the Baptist Church all the time I was in Harpersville. I attended-church there at all of its meetings there. I saw Roy Ourry there in company with Belle McEarlin one. time.’ Then on cross-examination he testified: T don’t like the McFarlins very much. I was not down there when Mattie got after me with a shotgun. I was up on the road going home, and they met me at the .mail box.’ It was the opinion of the court that since the defendant had elicited all of the testimony about the church services, and had proven that the witness Dwiggins was clerk of the Baptist Church, and to thereby leave the impression that it would have been impossible for the defendant to have been at church with the prosecutrix, as said Dwiggins did not see him but once, that the state would be permitted to show in rebuttal that he did not remain clerk, as he was put out of the church, aud therefore was not in a. position to state who attended its services. And the court duly limited the testimony, and instructed the jury that they could not consider such testimony against the defendant for any purpose whatever, but that, if they considered it at all, it was admitted only upon the issue of the credibility of said witness, and for no other purpose.”

I have thus given the full substance, and almost literally both of these bills.

This court has, in a great many cases, held that such objections as were made by appellant in both of these bills, were wholly insufficient to require this court to consider them. It is unnecessary to collate them all. I cite only a few. Hamblin v. State, 41 Tex. Cr. R. 139, 50 S. W. 1019, 51 S. W. 1111; Ball v. State, 44 Tex. Cr. R. 186, 69 S. W. 512; Masterson v. State, 34 S. W. 279; Carter v. State, 40 Tex. Cr. R. 229, 47 S. W. 979, 49 S. W. 74, 619; Spiars v. State, 50 S. W. 948; Barfield v. State, 41 Tex. Cr. R. 20, 51 S. W. 908; Neely v. State, 56 S. W. 625; Howard v. State, 57 S. W. 948; Wade v. State, 37 Tex. Cr. R. 401, 35 S. W. 603. For other eases, see section 857, p. 557, and section 1123, p. 732, White’s Ann. Code Or. Proc.

However, I do not base my opinion in this ease on the insufficiency of these bills, or either of them. I will treat the questions attempted to be raised by them on their merits. I lay down these propositions, which are established by all the text-book writers on the subject, and by every well considered opinion by every court of last resort where the questions are treated:

(1) There are not two standards of testimony and cross-examination — one for an accused, and the other for the state — but that whatever testimony and cross-examination is permitted by an accused is also permitted in behalf of the state; that the same rule applies to each and both; that “what is sauce for the goose is sauce for the gander.”

(2) Motives which operate upon the mind of the witness when he testifies are never regarded as immaterial or collateral matters.

(3) Great latitude is allowed in asking questions on cross-examination. A witness may be asked any question, the answer to which may have a tendency to affect his credibility. And if he denies anything that would show a motive for, or animus to, testify against a party, it may be shown by other witnesses and by independent facts.

It is needless to cite all the text-books or all the cases establishing these rules. The books are full of them, and there is no well-considered case by any court or any textbook writer that holds to the contrary.

In 40 Cyc. p. 2666, it is correctly stated: “A witness may be interrogated as to his relations with, or feelings towards, a party, or, in a criminal case, towards the prosecuting witness or victim of the crime. Inquiry in such cases is not limited to a mere question as to whether any feeling exists, but the witness may be interrogated as to particular facts tending to show his hostility toward, or his bias or prejudice for or against, a party.”

Mr. Underhill on Criminal Evidence, § 222, correctly says: “The feelings, bias, and relationship of the witness are never collateral. A witness may be interrogated on cross-examination as to his interest, bias, or prejudice, that is to say, if the sole 'purpose of the question is to elucidate the existing or previous relationship, feeling, or conduct of the witness toward the crime, the accused, or the prosecutors. * * * If the witness refuses to answer such questions, or answers them in the negative, the. contrary fact may be shown by the evidence of others.”

In Blunt v. State, 9 Tex. App. 235, this court, by Judge White, lays down the rules, cites Wharton and Greenleaf, and cases, and, quoting from some of them, says: “ ‘Great latitude is allowed in the questions which a party is permitted and entitled to ask on cross-examination; and he will seldom be stopped by the court unless the question be manifestly irrelevant to the case, and calculated neither to qualify the examination in chief nor to impeach the credit of the witness. ⅜ ⅛ * Generally, on cross-examii-nation, a witness may be asked any question the answer to which may have a tendency to affect his credit. ⅛ ⅜ * .And, generally, he may be asked questions which affect his veracity or his memory: Such as * * * whether he is a relative or intimate friend, or under any special obligation to the party who calls him; whether he be not identified or connected with him in interest; whether he has not been on terms of enmity with the adverse party; whether his memory is not defective generally, or as to the particular transaction. Such questions are within the circumference of the issue, although not within that inner circle to which the examination in chief is confined.’ ”

Judge White, also, in Daffin v. State, 11 Tex. App. 79, says: “Generally on cross-examination a witness may be asked any question which may have a tendency to affect his credit, and it is the right of the defendant to show the animus and bias of a witness towards him, and its extent, if he can” — citing authorities. And that case was reversed because the lower court refused to permit the defendant to state the nature and cause of difficulties the witness had had with the defendant.

In Watts v. State, 18 Tex. App. 384, Judge White again said: “In a criminal prosecution it is not only, permissible to ask, but a witness may be compelled to answer, questions concerning his motives and his prejudices. He may thus be required to explain whatever would show bias on his part, or incapacity to testify accurately. Whart. Crim. Evid. § 477. A defendant has the right to show bias on the part of the witness, if he can. In such examinations great latitude is allowed where the object is to impeach the credit of the witness. Blunt v. State, 9 Tex. App. 234; Daffin v. State, 11 Tex. App. 76.” And that case was reversed because the lower court refused to permit the defendant to read an indictment against the witness for fraudulently obtaining the same mule whiA defendant was accused of stealing.

The case of Gelber v. State, 56 Tex. Cr. R. 461, 462, 120 S. W. 863, was a prosecution for unlawfully selling intoxicating liquors to a minor, Guy George. The state introduced him and his two brothers to establish the illegal sale. The appellant, on cross-examination of one of Guy’s brothers, sought to prove by him that a few days before this alleged violation he and Guy went to appellant’s place of business and cursed and abused him and his family, calling them damned Jews, and further stating that they intended to kill out the whole bunch. This court, in an opinion by Judge Davidson, reversed that case because this testimony was not admitted. Again, in that case, for the purpose of showing animus of the complaining witness Guy George, the defendant offered to prove by two witnesses that they were at Gelber’s place of business during Christmas week, at a time which was subsequent to the charge in that case against the appellant, and that Guy George, in their presence, demanded of the appellant that he sell him beer; that appellant refused and ordered him off the premises ; and that Guy George became angry, snatched a glass of beer from one of these witnesses, ran out of the store and drank it, and at the same time cursed, abused, and vilified appellant and appellant’s entire family. This court reversed that case also on the ground that the court refused to permit this testimony. This Gelber Case has several other like questions, which Judge Davidson held were admissible and reversed the case because they were not admitted.

In Sexton v. State, 48 Tex. Cr. R. 498, 88 S. W. 348, this court, by Judge Davidson, held that for the purpose of showing bias, friendship, and close relationship to appellant, and the witness’ interest in testifying in his behalf, and conséquently touching her credibility, it was proper for the state to prove on the cross-examination of the witness, a woman, that she had lived in adultery with the defendant for five or six years; that she knew defendant had a living wife and child while she was living with him in adultery; and that while appellant was in jail she visited him there. Again, in that case he held that it was proper for the state to require a witness to detail on the witness stand all the occupations and businesses which he had been following for the past three or four years.

In Green v. State, 54 Tex. Cr. R. 7, 111 S. W. 935, this court, through Judge Ramsey, said: “It is well settled, * ⅜ ⅜ that on cross-examination of a prosecuting witness defendant should of right, be allowed a wide latitude in the introduction of evidence that may have the effect to discredit * * * such witnesses.”

In Grist v. State, 21 Tex. App. 366, 17 S. W. 261, Judge Hurt, for this court, showed that in a prosecution for murder Mrs. Anderson was an important witness for appellant and gave material testimony in his favor. The district attorney, on cross-examination, asked her if she was not separated from her husband, and if defendant was not living in the same house with her; to which defendant objected because irrelevant and incompetent. The objections were overruled, and the witness answered the questions in the affirmative. Judge Hurt said: “Mrs. Anderson was a very important witness. She swore to facts clearly exonerating appellant, and the state had the right to show the relations existing between her and defendant, in order to show her bias and motives, which may have explained her testimony.”

In Rosborough v. State, 21 Tex. App. 674, 1 S. W. 460, Judge Hurt, for this court, again said: “The animus, the motive, or the ill will of a prosecuting witness — the injured person — is never a collateral or irrelevant question in a criminal case. The bias, the prejudice, thus shown, is, in most cases, of the utmost importance, and is always material in order to enable the jury to form a correct judgment as to the credit to which the testimony of the witness is entitled.”

There is no need to take up other textbooks, and cases of this, or any other, court to establish, beyond question, these principles. The books are full of the cases, and no well-considered case can be found to the contrary. Mr. Branch, in his Criminal Law, section 861, and in section 871, p. 554, states the principles and collates a large number of cases from this court to the same effect. This court, through Judge Davidson, in Pope v. State, 143 S. W. 612, and Earles v. State, 64 Tex. Cr. R. 537, 142 S. W. 1181, cites and approves those principles and many other cases recently decided by this court, and reiterates and collates many cases to the same effect. Burnaman v. State, 159 S. W. 245.

Now as to the first bill above about Matt Stephenson’s testimony. The defendant proved by him that he was the high sheriff of Stephens county where the appellant and this unfortunate girl had lived, and that he knew them, and that he knew of the prosecution of appellant there for this crime. The appellant sought, and thereby obtained, the high official position of this witness for the purpose of adding strength and force to his testimony. In 35 Oyc. 1532, it is correctly said: “The duties of a sheriff are in a large measure the same as are imposed on police officers, and he necessarily exercises police powers and must enforce the laws enacted for the protection of the persons, lives, property, health, and morals of the people.” The laws of our state make him such peace officer and, as such, imposes upon him these duties. In many instances our law expressly requires that he shall report to the prosecuting officers, the district and county attorneys, and the grand juries, violations or contemplated violations of law; and as this court said in Minter v. State, 159 S. W. 292: “In fact, the whole theory and purpose of our laws are that the peace officers, especially, shall do everything and all things necessary or proper to prevent, suppress, and punish crime.” They, in a large measure, are representatives of the state, as well as are the district and county attorneys. In this instance this officer, by his testimony, sought to break down the case against appellant and testify in his favor. Appellant had him testify to his official position as sheriff at the time he claimed he talked with this girl, though he was not such sheriff when he testified, and threatened her with indictment by the 'grand jury. Under such circumstances, it was not only right, but the duty of the district attorney, by any and every legitimate cross-examination, to show facts that would affect his credibility, and, in my opinion, there can be no question but that the cross-examination of this high sheriff by the district attorney on the very matter brought out by appellant was, not only in every way proper and legal, but it was his duty to thus break down and affect his credit as a witness.

This poor girl was dead. The state had no opportunity to have her testify and deny this sheriff’s evidence. Ordinarily, no witness can be impeached by showing that he has made a statement to the contrary or different from his testimony without first examining him on the subject, and giving him an opportunity to deny or explain it. It is a hard rule, therefore, that will permit the impeachment, by this method, of a dead witness. It is only so because of the fact that the witness is dead and cannot be asked the questions.

The case of Roberts v. State, 156 S. W. 653, and Hyden v. State, 31 Tex. Cr. R. 401, 20 S. W. 764; Williams v. State, 24 Tex. App. 637, 7 S. AY. 333, and Lewis v. State, 15 Tex. App. 647, cited by Judge Davidson, and neither of them, are in point to support appellant’s contention, and Judge DAVIDSON’S opinion, in this ease. Take the Roberts Case: This court in that case did not hold that the questions which were asked the witness Johnson, if he had not failed to tell the prosecuting attorney the night before, what he then testified to, for the purpose of impeaching him, was improper. Those questions to Johnson were entirely proper; but Johnson, in his evidence, showed that he was not asked any question by these attorneys at that time calling for his telling them, and nothing was called for from him then that would cause him to then tell them. This court held that, under such circumstances, it was improper to thereupon put on as a witness one of these attorneys and ask and prove by him that Johnson had failed to tell them. In other words, what was asked Johnson for the purpose of impeaching him was entirely proper; but, as he made an explanation which was not disputed, showing he had so failed to tell them, and why, this court held it was then error to put on another witness to prove he did not then tell them what he now testified. The decision in the Roberts Case has no application to this. Each of the other cases just ábove cited are precisely to the same effect and are no authority for holding that the said cross-examination of the sheriff in this case was inadmissible. On the contrary, each of those cases recognizes and states the correct principle, which is entirely applicable to this case, and which shows that this cross-examination by the district attorney of the sheriff was entirely proper. Judge Willson, in the Williams Case, supra, says: “And a witness may be discredited •by proof that he now states facts which on a former trial he omitted to state. And generally, whenever, on a former occasion, it was the duty of the witness to state the whole truth, it is admissible to show that the witness, in his statement, omitted facts sworn to by him at the trial. But it is only upon a denial, direct or qualified, by the witness, that such statements were made, that proof of them can be made” — citing Whart. Or. Ev. §§ 482, 483. Each of the other cases above cited expressly recognize this rule and hold that the testimony of other witnesses impeaching them on this ground was inadmissible because the witness had not denied them, or, if so, so testified as to show that their testimony was not called for on the previous occasion.

Now as to the cross-examination of Dwiggins, shown by the other bill: The principles and authorities above cited, quoted from, and discussed, show, without question, that this cross-examination of Dwiggins was entirely proper. The state did not go further and show, as it had the right to show, that Dwiggins was turned out of the Baptist Church because of his conduct towards Mrs. McEarlin and her daughter Mattie, so as to show his intense feelings against them, and account for his testimony. His whole testimony, as well as the bill, shows that he was-highly prejudiced against the state’s witnesses and case, and was in favor of appellant, and especially that his testimony was given because of his ill feeling and hostility to Mrs. McFarlin and her daughter Mattie, caused by their attack on him with a gun. The state had the right to go into the particulars of this matter, but did not attempt it. It is evident from the bill, and from the record, that at the time Dwiggins was giving his-testimony in chief the state’s attorney was not advised of these facts and had no opportunity to get witnesses from Stephens county to prove the fact that he was turned out of the Baptist Church because of Ms treatment of Mrs. and Miss McEarlin. This witness testified this was the first time he ever testified in this ease; that he did not like-the McFarlins. Appellant had him testify he-was church clerk, thereby getting the benefit of this fact to bolster up Ms evidence, and-in addition to show he was in position to know what he stated. If this fact could be thus used by appellant, certainly the state had the right to cross Mm on this very point, and, if it could, show he had been turned out of the church, and about these very McFar-lins so as to show the extent of his ill will toward them, and to lessen the effect of Ms church membersMp in bolstermg his testimony for appellant, and further to show he was not then a member of the church, so as to show he was not in position, as he testified, to know appellant was not with said girl. Otherwise, when a witness against the state so testifies as to. his standing and position therefrom, as to show the probability of his-truthfulness, the state is utterly helpless by cross-examination to develop the true facts, or test him to see if he is telling the truth. Such is not the law, never was, and I hope never will be.

But suppose the state had not had the-right to thus cross-examine tMs witness. 1-Ie testified positively, and no one disputed him,, that his treatment of Mrs. and Miss MeFar-lin, or their treatment of Mm, was not the occasion for his being turned out of the Baptist Church, and, instead of the cross-examination being injurious to appellant on that account, it was in Ms favor. The authorities in this state are abundant to sustain this proposition. In this instance the appellant had his witness Dwiggins to testify that he was church clerk of the Baptist Church. This was for the purpose and had the effect of showMg Ms high standing', and of bolstering up the credibility of this witness before the jury. Then it was certainly permissible by the state, in cross-examination, if it could do so, as a question affecting his credibility, to show that this same church had at that time turned Mm out because of his conduct towards these important state’s witnesses who were as a matter of fact the-■prosecuting witnesses in this case. They were representatives and relatives of the poor dead girl, and the appellant’s attack of them by his said testimony and his testimony in appellant’s favor could not but help be affected by this witness’ hostility to them and theirs to him, which he knew, and as a result of which the state asked him if he had been turned out of the Baptist Church on account thereof. But, as said above, as he denied this and the state did not attempt to contradict him, the appellant could not have been and was not thereby injuriously affected. If it had any effect at all, it was in his favor and not against him.

In my opinion there is no question buf that appellant’s guilt is amply shown by legal and competent testimony; that no injury whatever is shown to have occurred to him on the trial of this case which could or should result in the reversal of this judgment; and, in my opinion, the judgment should be affirmed, and it is so ordered.

DAVIDSON, J.,

dissents, and cites opinion ■on former appeal. The impeachment of the witnesses was error.

HARPER, J.

I agree to the affirmance of this ease, as I think the authorities sufficient under the holding in the Nash Case, 61 Tex. Cr. R. 259, 134 S. W. 709. As to the questions asked the witness Dwiggins, I think it was permissible to ask him if “he had not been turned out of the church on account of trouble with the MeEarlin family,” as showing ill will, bias, etc., and the court did not err in overruling the objection to this question. But when the witness answered that it was not true, the state should not have been permitted to ask him if it was not a fact that he had been turned out of the church, unless they intended to connect up the matter with the McFarlin family. But inasmuch as the defendant proved that he was church clerk to support his testimony, this latter question, and the answer thereto, under the record in this case, would not present reversible error, although in the opinion of the writer improper.


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

text:
    BIZZELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    On Motion for Rehearing, Jan. 14, 1914.)
    1. Juey (§ 80) — Organization of Juey — Special Veniee — Challenges.
    Code Cr. Proc. 1911, arts. 673-677, provide that the names of the summoned jurors shall be called, those present seated in the jury box, and at the request of either party an attachment issued for those absent, for their examination on their voir dire, for the hearing of excuses, that exempt persons by oath before an authorized officer may exercise their exemption without appearance in person, and for excuse by consent of parties. Article 686 provides for the court’s trial of jurors’ qualifications; article 688, for challenges first by the state and then by the defendant, and articles 690, 691 allow the state to peremptorily challenge any juror, and give the state and defendant each 15 peremptory challenges. Before defendant announced ready, the special venire, composed of more than 58, was called, and 7 of them did. not appear, whereupon the court, on information that they were exempt, excused them forthwith, and upon defendant’s objection thereto the state peremptorily challenged each of the absent jurors; defendant not having exhausted all of his challenges. Held that, as such challenges were charged to the state and no substantial right of defendant was impaired, the irregularity, if any, in the court’s action was not prejudicial error.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 360-366; Dec. Dig. § 80.]
    Davidson, J., dissenting.
    On Motion for Rehearing.
    2. Cbiminal Law (§ 1112) — Review—CONTRADICTION OF RECORD.
    This court must take the record as it finds it, and, if appellant’s bill of exceptions may be contradicted at all., it should he done in the lower court and within the time prescribed by law, and it cannot be done in this court.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2896; Dec. Dig. § 1112.]
    3. Juey (§ 79) — Absence of Jueoes —Proceeding to Tbial.
    In a trial where seven of the venire were absent, the court on information that they were absent might proceed with the call of the venire if a waiting for the absentees would result in unnecessary delay.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 349-355, 358; Dec. Dig. § 79.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    Wiley Bizzell was convicted of murder in the second degree, and he appeals.
    Powell & Lee, of Jasper, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Judge DAVIDSON has written an opinion herein and presented it in consultation reversing this case because of the action of the court in not strictly following the statutes with reference to the organization of a jury and special venire in a capital case. He quotes articles 673, 675, 676, 677, and 696, Code Cr. Proc. 1911, and cites some cases. And in effect he holds that the statute on the subject is mandatory and that the court will not stop to speculate about whether injury has resulted to appellant, especially in capital eases under the positive assertions and terms of the said statutes. As we cannot agree with him in his opinion and holding, it is necessary for us to write our views, and, as we believe no reversible error is shown, and no injury to appellant, to affirm instead of reverse and remand the ease, as is sought by Judge DAVIDSON.

The appellant in this case was found guilty of murder in the second degree, and his punishment fixed at the lowest prescribed by law — five years in the penitentiary.

Appellant’s first bill of exceptions, to the organization of the jury, shows that before appellant announced ready the special venire summoned in his case was called and 7 of them did not appear. Their numbers on the venire list were 2, 11, 21, 33, 36, 42, and 58. What number composed the venire is not shown, but from the bill it is certain that there were more than 58; that when the judge ascertained the absence of these 7 special veniremen he inquired the cause, and the sheriff:, and others, told him the absent ones were exempt, either overage, road overseers, pharmacists, or some other exemption under the law, and that each of them claimed their exemption. No affidavit was made by either of them that they were so exempt, or claimed their exemptions. None of them were absent because of sickness. Whereupon the judge excused them, to which appellant objected because no legal excuse had been offered, and the judge had no right to excuse them, because they were exempt, even though their excuses had been made and sworn to at the time they were summoned; that he had the right to have the jurors who were drawn in court that he might test them and hear and know for himself that they were exempt and claimed their exemptions; and that he then demanded that they be brought into court. The court refused this and required him to proceed with the trial. In qualifying his bill on this point the court stated that he did not exhaust all of his challenges and that the state challenged all the absent jurors.

His second bill shows that in the organization of the jury the jurors’ names who had been drawn were called, one at a time, a'nd tested on their voir dire; that, when the names of the absent jurors were respectively reached, he demanded that they each be brought into court and he declined to proceed further until that was done. The court refused this, and stated that he had excused each of them and required him to proceed with the trial with the absent jurors not in court, and without further effort to procure their attendance, which he did. The court, in allowing-this bill, qualifies it by stating that each juror had a lawful excuse and was excused by the court, and that the defendant did not exhaust all of his challenges.

The substance of our statutes, including those articles cited and quoted by Judge DAVIDSON, regulating the formation of the jury in capital cases, is to this effect: That when the case goes to trial the names of the summoned jurors shall be called at the courthouse door; such as are present shall he seated in the jury box; those absent may be fined; and, at the request of either party, an attachment may issue for any one summoned not present, to have him brought forthwith before the court. Code Or. Proc. 1911, art. 673. They shall then be sworn to answer questions on their voir dire. Article 674. The court shall then hear and determine the excuses, and, if the court deems it sufficient, the juror shall be discharged. Article 675. Prior to the Act of April 16, 1907, p. 216, there was no way provided by our law whereby an exempt person summoned as a juror on a special venire could avoid actual personal attendance on the court when the case was called for trial. This was such an onerous burden on exempt persons, and such an expense to them, that the Legislature passed said Act of April 16, 1907, which is now article 676, Code Cr. Proc. 1911, whereby it was provided that if such exempt persons thereafter desired to claim their exemptions they might make oath before any authorized officer, or the officer summoning him, stating their’exemptions, and file such affidavit with the clerk of the court before the convening thereof, in which case it shall constitute sufficient excuse, without appearing in person. A summoned venireman can be excused from attending court by consent of both parties. Article 677. The court shall then proceed to try the qualifications of those summoned, who are present, to serve as jurors. Article 686. When such juror is held qualified, he shall be first passed to the state, and then the defendant, for acceptance or challenge. Article 688. The state can then peremptorily challenge such juror without assigning any reason therefor. Article 690. The state and defendant each are entitled to 15 peremptory challenges. Article 691.

Unquestionably, under our statutes, given above, the state has the right to challenge any juror peremptorily, and the appellant can neither complain nor call for any explanation or reason therefor, from the state. The state’s right to thus challenge being absolute, no reason can be called for, and no possible injury can result to an appellant, because of such challenge. It certainly could not be contended by any one that the state, having this absolute right, could be required to produce the juror and have him examined on his voir dire, or otherwise, and whether he had any excuse at all or not. The state, in this case, as the bill and qualification thereof, without question, showed, challenged peremptorily each of these seven absent jurors. Then how can it be possible that appellant was injured in any way by the action of the court and of the district attorney? To have required the court to delay the case, put the state to a great expense to send out over the county and require the attendance of these seven exempt jurors, or whether they were exempt or not, or claimed it or not, and have them quit their homes and their businesses and go to the county seat, there attend upon court, at an expense to each of them, could in no possible way have been any benefit to appellant or violated, to his injury, any privilege he had. And the court, in not requiring this and permitting the state to peremptorily challenge them, violated no substantial right of the appellant, and he has shown no possible injury thereby.

There can be no question but that our statute regulating the formation of a jury in a capital case is not mandatory, but is clearly directory only. And this court bas uniformly, repeatedly, and expressly so beld.

Tbe case of Jackson v. State, 30 Tex. App. 664, 18 S. W. 643, was a capital case wherein life imprisonment for murder in tbe first degree was fixed as bis punishment. In that case, when the special venire was called four of them who had been summoned failed to appear. The defendant, thereupon, asked that the proceedings be stayed and attachments issued to enforce their attendance. This was denied by the court and appellant duly excepted. Then, as the name of each absentee was reached on call of the list, he again claimed a right to have this juror present and again asked that an attachment be issued for him and that he be not compelled to pass upon any venireman, except upon the attendance of the whole list as served upon him. The court again refused his request and compelled him to pass upon the veniremen who were present and in attendance, to which he again duly excepted. Our statute then was precisely as now on this subject, except the addition of article 676,' the said act of 1907, cited supra. This court, in the Jackson Case, through Judge Davidson, said: “In regard to these absent veniremen, it is shown by the explanation of the learned trial judge to the bill of exceptions that, ‘when the request for the attachment was made by the defendant’s attorneys, the court inquired of the sheriff the residence, and when he could likely get them into court. He stated that they lived in different and remote parts of the county, some as far as 20 miles from the courthouse; and that it would require two or three days to get them, if they could be got at all.’ The fact as to the difficulty to secure the attendance of these veniremen, as stated by the sheriff, was not controverted, or attempted to be controverted, by the defendant or his counsel. Livar v. State, 26 Tex. App. 115 [9 S. W. 552], This should have been done in order to entitle the defendant to complain of the action of the court. But in case we concede any irregularity or error in the ruling of the court as above complained of, it is not an error of a reversible character, unless it be affirmatively shown by the defendant that injury has inured to him on account of the failure to observe any of the regulations prescribed by the statute for the organization of the jury summoned under the special venire facias. The statutes with regard to the formation of a jury in capital cases are directory, and not mandatory; and, where substantial compliance has been observed, no irregularity or failure upon the part of the court to observe a literal compliance with said statutes will be held reversible error, unless injury to the defendant is shown. Murray v. State, 21 Tex. App. 466 [1 S. W. 522]; Hudson v. State, 28 Tex. App. 323 [13 S. W. 388], A defendant cannot unreasonably delay a trial on account of the absence of the jurors who have been summoned. Habel v. State, 28 Tex. App. 588 [13 S. W. 1001].” This Jackson Case was then affirmed.

Again, in Roberts v. State, 30 Tex. App. 299, 17 S. W. 451, in which Roberts was convicted of murder in the first degree and his punishment fixed at a life term in the penitentiary, this court, through Judge Davidson, therein held: “Statutes directing the mode of proceeding by public officers are directory, and are not to be regarded as essential to the validity of the proceedings themselves unless so declared in the statutes. Pocket v. State, 5 Tex. App. 552; Murray v. State, 21 Tex. App. 466, 1 S. W. 522; Railway v. Dunlavy, 56 Tex. 256; People v. Cook, 14 Barb. (N. X.) 259, 290; Holland v. Osgood, 8 Vt. 280; Corliss v. Corliss, 8 Vt. 373; Ex parte Holding, 56 Ala. 458; Suth. Stat. Con. § 451; Thomp. on Trials, § 15.”

In the case of Murray v. State, 21 Tex. App. 466, 1 S. W. 522, cited by Judge David-, son in both the Jackson and Roberts Cases, supra,- the defendant therein was convicted of murder in the first degree and the death penalty assessed as his punishment. That case was affirmed. In that case many irregularities were shown without question, in summoning the special veniremen and the return of the officer thereon, and in the copy thereof served on appellant, to all of which he promptly objected and saved his point by proper bills. He insisted that the court committed many radical errors in failing to comply with the requirements of our statute as to the mode and manner of selecting and organizing the jury; that the court did not have the names of those summoned called at the courthouse door and require such as were present to be seated in the jury box, nor did the court afford him an opportunity to apply for attachments for those not present, nor did the court call up and swear or have sworn all those present, or test their qualifications, or their excuses, or afford him any opportunity of knowing who were present in obedience to the venire facias. His objections were that the mode of impaneling the jury by the court was in direct contravention of the provisions of the statute and deprived him of important rights accorded him by law. He insisted that the purpose and intent of said articles 673 to 677, inclusive, of our Procedure, was that all those summoned should be sworn in a body and all excuses heard and determined, and their qualifications ascertained and absentees noted so that he would only have a panel of qualified jurors without excuses, in actual attendance, upon whom to expend his challenges and from whom to select his jury; that the mode adopted by the court deprived him of those important rights and necessary privileges, and he was compelled to pass

/ upon each juror tendered Mm without possibly knowing who of those remaining upon the list were qualified, had excuses, or were absent. This is- a substantial statement of these matters from the opinion of Presiding Judge White in the Murray Case.

Judge White then proceeds to quote said provisions of the statute, and then for the court, in the opinion, said: “These are the preliminary steps provided by the law for the preparation of the special venire, so that a jury may be selected therefrom, and there is no doubt but that they should be followed, and that it would be better in practice, in this, as in all cases, where the mode of procedure has been prescribed for the state to follow the rules as adopted for the government and conduct of the trial of her citizens. It is to be presumed that such rules have been adopted for some wise purpose. In this instance the learned judge has seen fit to ignore the rules thus prescribed, though his attention was attempted to be called to them by the objections of counsel for defendant, and Ms action was promptly excepted to at the time, as shown by defendant’s bill of exceptions in the record. That his action is in contravention of the statute cannot be denied. If it is erroneous, then the judgment must necessarily be reversed. His action is inevitably erroneous, if the statutes quoted are mandatory. If not, then the action, wMlst it establishes a patent irregularity, is not a reversible matter. Are the statutes mandatory or directory? ‘In respect to statutes,’ says Mr. Cooley, ‘it has long been settled that particular provisions may be regarded as directory merely; by wMch is meant that they are to be considered as giving directions which ought to be followed, but not as so limiting the power in respect to which the directions are given that it cannot effectually be exercised without observing them.’ Again, the same learned author says: ‘Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time, or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.’ Cooley’s Const. Lim. (4th Ed.) pp. 89, 93. In the well-considered case of Hurford v. City of Omaha, the court, amongst others, lays down the following rule as a safe guide in the interpretation of statutes relating to the question under consideration, namely: ‘That when the particular provision of the statute relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or where the directions of the statute are given with a view to the proper, orderly, and prompt conduct of business merely, the provision may be generally regarded as directory.’ 4 Neb. 336. This court, in the case of Wilkins v. State [15 Tex. App. 420], without attempting to lay down definite rules for determining whether a statute is mandatory or directory, adopted, as a safe and sound conclusion, the remarks of Judge Moore in the case of Campbell v. State, 42 Tex. 591, to the effect that, ‘whenever there is reason to apprehend that injury may have resulted to the defendant, especially in a ease of felony, from a failure to observe directions given the court by the Legislature, we think, unquestionably, the judgment should be reversed.’ 15 Tex. App. 420. In the ease we have under consideration the statutes quoted above relate entirely to matters of procedure, and are directory; and, if it were possible that an injury could result from a nonobservance of such rules, then no such injury is shown in this record, because the jury, as impaneled to try the case, was selected from the original special vemre, which was not exhausted in the selection, and the selection was made in conformity with article 640 (696), Code of Criminal Procedure (Charles v. State, 13 Tex. App. 658), •which is the mode prescribed for the final selection of the jury which is to try the case.”

Judge Hurt in Davis v. State, 28 Tex. App. 560, 13 S. W. 994, said: “To reverse in the absence of probable injury would be contrary to principle.”

It is needless to cite other cases to the same effect. None of these eases cited by us have been overruled, modified, or qualified, so far as we know, or have been able to find after diligent search. The whole trend of the decisions is in support of these cases, and the trend of all the statutory enactments of the Legislature are also in support thereof. Besides, the principles announced are unquestionably correct.

There is no other material, or reversible, error pointed out in the record in. this case. And as we understand Judge DAVIDSON himself- does not contend that there is any such error. Therefore, instead of reversing and remanding this cause, it will be affirmed.

HARPER, J.

Inasmuch as the record discloses that when the names of each of the absent jurors were called, and defendant demanded they be brought in, the state’s counsel stated he would peremptorily challenge the juror, and such challenge was charged to the state, I agree to the judgment of af-firmance.

DAVIDSON, J.

(dissenting). I do not care to dissent further than to say I am inclined to believe that tMs case is distinguishable from Miller’s Case, 47 Tex. Cr. R. 329, 83 S. W. 393, by reason of the change in the law by act of 1907, wherein it is required that all parties claiming exemption from jury service must file their affidavits with the clerk before convening of court, otherwise the court cannot excuse them.

On Motion for Rehearing.

PRENDERGAST, P. J.

Attached to his motion for rehearing appellant has some affidavits which were made on December 23, 1013, and filed for the first time in this court. By these affidavits he attempts to explain the facts, and, in effect, contradict them as to one of his bills of exceptions, to the effect that the district attorney did not peremptorily challenge the absent jurors until the jury had been made up. This cannot be done in this court. We must take the record as we find it. If it could be done at all, it should be done in the lower court and within the time prescribed by law. Pye v. State, 154 S. W. 226.

Besides, we think the ease of Miller v. State, 47 Tex. Cr. R. 331, 83 S. W. 393, even if appellant could change his bill ia this court, is in point and decisive against his position, and not distinguishable from this case. In that ease this court, through Judge Davidson, said: “Appellant was convicted for the murder of his wife, and given the death penalty. There are about 18 bills of exception in the record, most of which pertain to the organization of the jury. The bills, as qualified by the judge in regard to this matter, show that a special venire was ordered. All the jurors, by the sheriff’s return, had been summoned. Fourteen of this number had been excused by agreement of parties. Of those remaining, 28 were present, and 8 absent. As the name of each of the absent jurors was reached on the call of the list, appellant requested an attachment, and further that the impanelment of the jury cease until the absent juror could be present; but the court proceeded with the call until the entire list was exhausted. When this stage of the proceedings was reached, appellant’s counsel requested that the proceedings be stopped until the 8 absent jurors could be brought into court. When this request was made, the district attorney peremptorily challenged the 8 absent veniremen. This was sustained by the court, and the 8 challenges charged to the state. It would seem that two questions are presented by these bills: First, should the court have stopped the proceedings, until the jurors could have been brought in? Second, was the court correct in sustaining the state in its peremptory challenge to all the absent jurors? Without going into the details in regard to the absent jurors, as to their distance from the courthouse, and the probability of securing their presence within reasonable time, or as to how long it may have delayed the proceedings in securing a jury, we would remark that there is no injury shown on this phase. The court, under such circumstances, should issue attachment for absent jurors, but can proceed with the call of the venire if waiting for absent jurors should produce unnecessary delay in the trial. The statute expressly so provides. This phase of the question might be rested here as correct. But, to the other question, if the court was right in sustaining the state’s challenges to the absent jurors, it could not have availed defendant to have them present or to issue attachments for them. This question was before the court in Dodd’s Case, 44 Tex. Cr. R. 480 [72 S. W. 1015], and similar action in that case by the trial judge to the action of the judge in this case was held not erroneous. The only difference being that this is a capital case, in which a special- venire was used, while Dodd’s Oase was a noncapital felony. I-Iere there were eight jurors peremptorily challenged while absent, while in Dodd’s Oase only one juror was so challenged. If the jurors had been present, and the state had challenged them peremptorily, it would have prevented appellant using any of them, and, being challenged peremptorily, it was useless to send for them, or to consume the time of the court waiting for them to be brought ini, when defendant could not have possibly used them. The state had the legal right to excuse 15 jurors peremptorily. At the time the 8 were challenged, the district -attorney had only used one of his peremptory challenges. We see no reversible error is this matter. Osborne’s Case, 23 Tex. App. 431 [5 S. W. 251], does not apply here.”

This case has been expressly approved by this court in Rice v. State, 54 Tex. Cr. R. 154, 112 S. W. 299, and Ferris, etc., v. Hawkins, 53 Tex. Civ. App. 583,116 S. W. 80.

The motion for rehearing is overruled.


author: DAVIDSON, J.

text:
    BLALACK v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.)
    1. Incest (§ 11) — Prosecution—'Variance.
    In a prosecution for incest, where the indictment charged accused with having intercourse with the daughter of his sister, proof merely that the female was his niece is not sufficient to warrant a conviction, and constitutes a fatal variance.
    [Ed. Note. — For other cases, see Incest, Cent. Dig. § 10; Dec. Dig. § 11.]
    2. Criminal Law (§ 782) — Trial—Instructions.
    In a prosecution for incest, an instruction that accused could not be found guilty upon the testimony of prosecutrix unless the jury believed her testimony was true and that it “showed or tended to show,” that accused is guilty as charged is erroneous, for the jury should be required to find that the evidence of the prosecutrix was true and showed the guilt of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1847, 1849, 1851, 1852,1877, 1878, 1880-1882, 1906, 1907, 1909-1911, 1960, 1966, 1967; Dec. Dig. § 782.]
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    D. M. Blalack was convicted of incest, and he appeals.
    Reversed and remanded.

      J. S. Jameson and W. W. Alcorn, both of Montague, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of incest; his punishment being assessed at 2½ years’ confinement in the penitentiary.

The indictment alleges that appellant did “unlawfully carnally know, and incestuously have carnal knowledge of Rusha Wal-ser, then and there being the daughter of the sister of him, the said D. M. Blalack, to wit: the daughter of Sarah Walser, being then and there the sister of him, the said D. M. Blalack, in this, that D. M. Blalack and Sarah Walser were the children of the same father and mother.”

Among other things, appellant requested the following instruction: “Xou are instructed to return a verdict of not guilty, if you find from the evidence that the state has failed to prove that one Sarah Walser was the sister of the defendant and mother of said Rusha Walser, and that the state has failed to prove that said Sarah Walser and defendant, D. M. Blalack, were the children of the same parents.” In refusing to give this charge the court makes this explanation: “The prosecutrix and her brother both testified she was the niece of defendant; and, while it was not specifically proved that prosecutrix was the daughter of Sarah, yet there was no question raised as to this issue, only in the above special charge, presented after the evidence closed. C. E. Spencer,” etc. In order to obtain a conviction under this indictment it was necessary to prove the relations of the parties as set out in the indictment. It is unnecessary to discuss the question whether the descriptive averments were unnecessary or not. It was charged in the indictment that appellant and Sarah AValser were the children of the same parents, and that Sarah AValser was the mother of the prosecutrix with whom appellant is alleged to have had incestuous intercourse. The state was necessarily compelled to meet the allegations in the indictment. It was incumbent upon the state to prove that the mother of prosecutrix was named Sarah Walser, and that Sarah Walser was the sister of the defendant, and that they were brother and sister of the same father and mother. This was not done. That prosecu-trix was niece of appellant does not prove she was daughter of Sarah Walser. The court should have given the charge as requested. Not only so, but we are of opinion under the judge’s explanation, not only ought he to have given the charge, but if the state does not meet these allegations by evidence, the conviction could not be sustained under this indictment.

There is another trouble in the case not specifically pointed out, but we call attention to it in view of another trial. The court charging the jury uses this language: “Xou are instructed that you cannot find the defendant guilty upon the testimony of said Rusha Walser, unless you first believe her testimony is true, and that it shows, or tends to show, that the defendant is guilty as charged in the indictment, and unless you further believe,” etc. This charge has been condemned in quite a number of cases. The evidence of the prosecutrix should not only be found to be true by the jury, but that it shows the guilt of the defendant. It is not sufficient if it merely tends to do so, as the charge asserts.

The judgment is reversed, and the cause remanded.