author: DAVIDSON, P. J.

text:
    HEWITT v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.)
    1. Prostitution (§ 5*) — “Pandering”—Definition of Terms.
    Since Acts 32d Leg. e. 23, prohibiting and punishing pandering, was intended only to cover those acts,'conduct, and devices of a person to induce a female to submit her body to other men for prostitution, as distinguished from other sexual crimes as adultery, fornication, etc., where accused, while not denying intercourse with prosecutrix, did deny that he had ever attempted to induce her to submit her person to prostitution, 'and there was no evidence that she had been induced so to do, it was error for the court to refuse to define “prostitution” under the statute prohibiting pandering; it being the claim of accused that the state’s case showed a commission of adultery, but not the offense charged.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 5; Dec. Dig. § 5.*]
    2. Prostitution (§ 1*) — What Constitutes— “Illicit Intercourse.”
    The term “prostitution” has different meanings according to the sense in which it is ;used. Illicit intercourse, which in a sense is prostitution, may be adulterj', where one of the parties is married, or fornication where both are unmarried, and in a sense, the offense of pandering means the procuring of a place for a female with or without her consent in a house of prostitution, and inducing her to practice illegal sexual intercourse with others.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. § 1.*
    For other definitions, see Words and Phrases, vol. 6, pp. 5740-5741.]
    3. Prostitution (§ 1*) — “Pandering”—“Pander.”
    The term “pandering” used to define the offense created by Acts 32d Leg. c. 23, means, and is limited to, the procuring of a female to become an inmate of a house of ill fame or to prostitute her body to other men; the term “pander” meaning one who caters to the lust of others, a male bawd, a. pimp, or procurer, the offense not being established by proof of illicit intercourse between the female and the alleged panderer.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. §§, 1, 2; Dec. Dig. § 1.*]
    Appeal from. District Court, Knox County; Jo A. P. Dickson, Judge.

      J. R. Hewitt was convicted of pandering, and he appeals.
    Reversed and remanded.
    Cunningham & Sewell, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was indicted under the act of 1911, p. 29, prohibiting what is termed by the act pandering.

It is unnecessary to notice any of the counts, there being nine contained in the indictment, except the ninth. This count alone was submitted by the court to the jury, all the others being expressly withdrawn in the charge. Omitting formal parts, this count charged that: “J. R. Hewitt did by fraud and artifice and by duress of the person of Alma Johnson, a female, and by the abuse of his the said J. R. Hewitt’s position of confidence and authority with and over the said Alma Johnson, a female, procure her, the said Alma Johnson, a female, to leave this state for the purposes of prostitution. Against the peace and dignity of the state.”

Alma Johnson testified that she lived at Bomarton in Knox county; that she was over at Goree in the same county; that she was an unmarried woman, and had never been married. Appellant was a Baptist minister and had charge of a congregation at Goree. Prosecutrix was also a member of the Baptist church at Bomarton, Tex. Appellant was a married man. Prosecutrix visited the home of appellant, and his wife, and while there “love making” occurred between them. This began about three months before he had intercourse with her. This intercourse seems to have occurred the first time at his house on the 19th or 20th of May. She visited appellant’s house several times, and that her senses did not trace exactly what was meant, but little by little it dawned on her, and what she called “confessing love” took place at her father’s store. He approached her there as a married man and told her that he loved her, if there was such thing as love, and she told him he had a wife, and he said, “That God made some people, but he does not make all,” and that she was his mate. This continued for some time, and finally during his love talking he asked her in a roundabout way what she would do if some one would come to her' room at night, and she said she would scream, of course, and that she would not do such a thing as letting a man into her room. She said she naturally looked up to people that were preachers of the Gospel of Jesus Christ, and never thought of them using that for the purpose of snaring girls; that she had more confidence in both he and his wife. On the night of the first act of intercourse she said she could have locked the door, “but had no more idea that the man would attempt anything of that kind than I dreamed of hell. Near midnight he came there, but still I was awake. He came to my bed. I didn’t know who he was until he got there, and I shoved him away from me several times. He would not leave me and I told him I would scream for help; when I told.him that he held his hand over my mouth for a good long while. When he let hold of me I didn’t scream, I don’t know why, but I did not; I was so nervous I was almost prostrated; and then after a little struggle then was when the first act was committed.” Without following this up with the details, there were several acts of intercourse between them. Finally they went to Dallas, she contending that he insisted on her going, and that he had her under hypnotic control, and that she went, “never consenting, yet she did consent.” Appellant took the train at Goree, and she went from Goree to Munday and there took the train, and when she got on the train appellant was there. He told her nothing of the arrangements, but just told her he was going to take her off, and the arrangements were made by him, and she did nothing but worry, cry, and talk. She said: “I met him at the train and went off with him by his instructions. I don’t know why I did it, but I feared to stay at home in the condition 1 was, that is why I left home. For being forced into intercourse I thought my condition was a pregnant condition, and I wanted to get away and hide it; but I did not want to leave, he almost forced me, you might as well say by force, for time and time again he would ask me and sometimes I would say yes, and again I would say I would not go, and that I never would go; then he would just start his love talk, and say, ‘Well, you love me in your mind, you know what has taken place’, that is the talk he made, and he says, ‘You will stay with me and take the consequences that come afterwards,’ and I said, T would not take the consequences for it, that I was not responsible.’ ” They went to Dallas, and there registered at the St. George hotel under the name of Dr. De Witt and wife from Chicago, Ill., and she says she was supposed to be his wife; they occupied a room at the hotel two or three days, and had carnal intercourse there, and slept together at night. They went from there to a boarding house in the city and stayed there for five or six days, still under the name of Dr. De Witt and wife. There were other people boarding at the same place. During the five or six days at this boarding house they occupied the same room and bed. He left her at this boarding house and went back to Goree and was gone three days and returned. She says on his return he commented upon why the people at Goree did not understand what was going on between them, but it showed to him these people were lacking in intelligence. She says that they left the boarding house above mentioned, and went to the residence of Mr. Joseph, also in Dallas, in the residence district, and stayed there exactly one month. While at Dallas she says she worked at the “General Agency” to earn money; that she sold toilet articles; sometimes she would take orders and sometimes she would just deliver the articles. While boarding there they still went under the name of De Witt and wife. While there he again returned to Goree and was gone four days, and upon coming back remarked how blindfolded the people were over there; that while there he got money from her father, $25, for the purpose of hunting her. The father testifies that he let appellant have $25, and appellant suggested to him the propriety of going along with him to assist in finding the girl, but he finally declined going. After remaining in Dallas a while he left there and went to Swan and got work in an orchard while she remained for two weeks in Dallas, and obtained work as a housekeeper. Prom Swan appellant wrote to her, and she went to him at Swan. They remained there four or five days, each one doing their respective work trying to make a living. Prom Swan they went to Shreveport, La. There they registered as man and wife under the name of Oscar Allen and wife, and lived together, occupying the same room as husband and wife. In Shreveport they hunted for a proper home in which to live, and stayed about three or four days in one house, and went to another and rented rooms for light housekeeping, and were there a month, or nearly a month. Prom there he went to another point in Louisiana and wrote to her, and she wrote to him. She declined to go with him, and wrote her father and obtained money and returned to his .residence in Knox county. While they were together she mentions a great many facts and circumstances occurring between them and conversations, and how he would pet her and call her baby and other pet names.

Now in regard to the evidence bearing upon the question of pandering, it is about this way: “As to anything being said to me by him about me leading the life of a prostitute, he would often say about me, and about my clothes, that I looked and acted very much like a common prostitute, then again he would say something about the prostitutes, how they would live and wear silks and diamonds; he would also relate to me everything that went on in a house of that kind; also he said he had been in those houses so much that he didn’t realize hardly what a house of ill fame was. He did not come straight out and ask me how I would like that kind of a life, but he would often ask me if I wouldn’t like to be earning money, and wear silks and diamonds, then was when he would call me baby and pet names like that. Then I would tell him no, that I wouldn’t do such a thing; then at times he would again talk and tell me what horrible places they were, and of things he had seen in them, and of what he had done; then I would ask him to stop, I would tell him with tears to respect me. I say that he did detail to me the manner of carrying on business in these houses. As to him saying anything about getting part of the money, I will say, that so far as clothes are concerned, of course he knew that I liked to look neat, but I didn’t care for fine clothes; he would often call me by some endearing name, and say, ‘Why, my goodness, Alma, you could be wearing diamonds, you could be wearing satins of all colors,’ and be making an easy living. I was to earn that money by the houses of ill fame; later he related to me how he could get us a nice little room, then I could have male company, and thereby earn money ; and of course he would take part of the money; that was part of the plans. But I refused to do that. He left me soon after that; he left me down in Shreveport; he pretended to have no money; I don’t know whether he did or not; he left the bill for me to pay; I didn’t have any money, and I got help there from some of the Christian women. I went first to a lady in the depot and she gave me the names of several women. I went there and at last I got work and stayed there and worked for about two weeks, then I wrote home to my father.” She further testified in this connection that he asked her in case she wanted assistance in his absence, after he left her in Shreveport, to call on these Christian women for assistance.

Going back to her detailed testimony as shown on cross-examination, she says: “I went to his home twice and stayed all night after he hugged and kissed me in the buggy. I went to his home more than that, but I did not stay all night. I did not fall in love with this man. I liked him because he was a preacher. I put more confidence in him. The reason I submitted to these various acts of intercourse was because he had a hypnotic power'and his wife had the same; I could not resist him, but I did resist him until after he forced me.” There is some testimony brought out on cross-examination, as well as original testimony, which shows that the reason she went to Munday was to have some dental work done, and that she contemplated going to Stamford and take music lessons. She says the first place she stayed all night with him was at Abilene; they stayed at a first-class hotel there. “He did not warn me against prostitution and tell me the horrors of a prostitute life, but he would often say he would not like to see me a prostitute, and at times he would say he would like to see me one; he would say my actions were nothing but a prostitute girl. He did not tell me on many occasions that he had rather see me dead than to enter into a life of that kind. He did refer to my dead mother, as her being in heaven and what she would say of my being in prostitution.” She says further: “When he left Shreveport I did write him a letter; in that letter I did not ask him for money, but I told him I was lonesome; and I was. I don’t remember whether I signed that letter ‘with love,’ or not. The defendant’s wife swore she would give him a divorce, and we discussed the fact of marrying after he got the divorce, but I never would have married the man, but I probably said I would after he had forced me into what he would, but that was not my purpose and intention when I left Goree; it might have been his intention when we left the state of Texas, but it was not my intention, nor did he communicate that intention to me. He would very often say that he wanted me to become his wife. I don’t think it was his intention in going to Louisiana and New Orleans to hasten the divorce proceedings so he could marry me. He did not get a position at Dallas; he phoned to those ladies and I got my position, he just made arrangements for me to go there.” She says: “Before we left Knox county, the defendant would often mention about my conduct. Of course' I was young and I was jolly, he was older than I was; and he would often say that I conducted myself very much like a prostitute; then in connection with that he would bring in about New Orleans, and in that same connection at times he would warn me against that kind of place, and for me to be careful not to go into that kind of life.”

Appellant says: “When I left Goree on that first trip I went to a Sunday school convention ; at that time it was generally known I was going to the convention.- Miss Johnson found out I was going from the current talk, and she suggested that she would go along with me, and I advised her not to go. I don’t remember just what I told her, but I told her it would only be a matter of time until it would be a disgrace to myself and also to her, for simply she had not been appointed as a delegate, and being a young girl and myself a married man, it would never do for the two of us to travel alone on the train. At that time she wanted to go, or it was her desire to go. On the evening prior to the time I was to start to the convention she came from Bomarton to Goree, and stayed at my house that night At that time she mentioned it more in a joke than anything else; she said, T am going to the convention;’ also Mrs. Hewitt was in the room at that time. I just took it more as a joke, and I don’t know that I gave her an answer at that time. The statement she made to Mrs. Hewitt was that she was going to take the train back to Bomarton the next morning; I think it was more of a visit to Goree than anything else.” He denied giving her money as she testified he had done. Further testifying he says: “On the way between Goree and Bomarton this Sunday school convention come up again, and I says, ‘Why, Miss Alma, you are certainly joking about that, I would be only too glad to have you go along,’ but I says, ‘It would never do for you to go along with me, for the simple reason I am a married man,’ and, without seeming unladylike, she says, ‘I have just as much right on the train as anybody.’ I says: ‘Well, you will get off at Bomarton all right.’ She was sitting on the inside of the seat, and I got up as we got to Bomarton; when the train pulled in I got up and asked her if she wanted me to assist her off, and she says, T am not going to get off,’ then I talked to her and tried to persuade her it was best for her to get off and not go on through. As we left Bomarton we passed the livery stable that was owned by a man by the name of Williams, and the boy that runs the stable was standing there, and she dodged her head, and I says, ‘What did you do that for?’ and she says, T did not want him to see me.’ I says, ‘That one thing shows it is not right for you to be with me.’ ” He denied emphatically, without going further into detail along this line of the testimony, that he did induce her to go with him, but objected to it, and urged her not to do so. He also testified to some matters that occurred between prosecutrix, himself, and her father at Stamford where they had a conversation, in which he informed the father the girl was on the train. When they reached Abilene they got in the bus and went on over to the main station; she went in the ladies’ waiting room and he went in the smoking room. He met a friend there and talked with him. On the way between Abilene and Munday the subject was brought up about her going, and she told him she was going with him to Dallas, and he tried to persuade her from following this course, but could get no answer from her except she would shake her head, that is with regard to that one subject. The second trip, they stayed in Dallas about a week; that he went back to Goree and Bomarton and filled his appointments. She was there with appellant all the time. He narrates a conversation that occurred between himself and the father of the girl, the daughter being the subject of the conversation, and during which conversation he obtained $25 to assist in hunting the girl, and wanted her father to go with him, which he declined to do.

He then narrates their stay in Dallas, and his going away from Dallas. He says: “I did try to get her to remain at her father’s house. I did not have any intention or purpose in taking that girl and having her enter into a life of prostitution and shame. I spoke with regard to that life, and never suggested as to her taking it up; I rather warned her against it. I think when I first decided upon the plan of going to Louisiana was at Swan, Tex.; it was either at Swan or some town on the Texas Pacific Railroad. When I left Dallas I went to Big Sandy, from there to Tyler, and then to Swan. I was looking for work, something that would pay me better than what I had. Before I left Dallas I arranged for a position for her as a companion and housekeeper for two ladies. It was Sunday when I did the phoning. She accepted the position with the ladies, and later joined me at Swan. I got a letter from her in the meantime. In that letter she told me she was coming, and for me to meet her at the train. I went to Longview, from there to Marshall, and from there to Shreveport. At no time did I take her .to an indecent place. When I was in Shreveport I took her to a private residence. If I had wanted to I don’t see any reason why I couldn’t have taken her to a house of prostitution, but I did not do such a thing. I had several different conversations with her with regard to warning her against that kind of life, and I had such a conversation with her at Shreveport. If I have to say it I will, but I had rather not; • but I do remember something being said about prostitution, but it was more in a joking way, I want you to realize that, than any other way, because the party never meant it for a moment. We were very short financially, and she said to me, she says, T can very easily go out on the street and in a short time come back with $5,’ and then she laughed. I knew it was a joke, that she didn’t mean it for a moment. Then I looked at her and I said, ‘Alma, how do you think your mother in heaven would look on what you have mentioned?’ I spoke to her about her mother several times. I says, ‘Alma, if I leave you I had rather see you dead in a corpse at my feet than to see you a prostitute.’ I had rather see any respectable girl dead in a corpse at my feet than a prostitute. When I left Shreveport I had some optical eases to call on, and when I left there she walked out with me on the street. We stopped on the corner of the street, and I says to her, ‘Alma, I am going off now, it is fully two or three weeks before the rent is due, and by that time I will be in a position to send you some money.’ I says, T have enough money to buy a ticket to Baton Rouge, about $3.’ Shreveport is 98 miles from New Orleans, and I told her I had two or three dollars left and I gave her half of it, and I said I would send her some money in a few days, and I says, ‘Whatever you do be careful,’ and the very last minute I saw the distance I was from her in my mind’s eye, and her in that town alone, and perhaps she would make a mistake, and I says to her, T will give you a little advice,’ and I advised her to go to Mr. Jones or go to some of the Christian women and get them to help her to get a position. I spoke of the temptations and I said if you get in a tight place the best thing for you to do is to telegraph to your father, to get in touch with him, and that I would come for her as soon as I could. That is the last thing I saw of her until to-day. At the time I was in Knox county I had no purpose, intention, or desire of taking this girl into prostitution. My purpose in taking her to New Orleans was to arrange just as soon as possible to get in touch with Mrs. Hewitt and make further arrangements to get her divorce.” He and his wife had separated, and it was with the understanding she was to get a divorce, and he was to make prosecutrix his wife. Without going further into the details of this matter, this above statement, while a little long and tedious, is thought necessary to bring in review one of the main questions in the case.

Exception was properly and timely reserved to the court’s failure to charge on and define prostitution under the statute of pandering. It was under this statute this indictment was presented. Appellant’s contention is, take the state’s case in its strongest light, it would only be adultery, he being a married man, the girl unmarried. That at no time did he undertake to induce her to let other men have intercourse with her, or to induce her to go to a den of prostitution, but on the contrary did what he could to prevent her from doing either and both, and urged and advised her against it all the time with the ultimate view of making her his wife when his wife obtained a divorce. If it be thought that the evidence of prosecutrix was sufficient to submit the question of pandering, then under some of the girl’s testimony, as well as that of the defendant, we are of opinion that the court should have properly instructed the jury as contended by appellant, as to what it took to constitute prostitution under the pandering act, and if they were simply living in adultery, then appellant would not be guilty of pandering. While it may be her testimony is sufficient, under one phase of it, for the jury to have inferred or believed that he took her to Louisana for the purpose of inducing her ultimately to go into a den of prostitution, still it was a very seriously controverted issue, and the other side of the case should have been properly presented.

The term “prostitution” may have and does have different meanings, owing to the sense in which the term is used. Illicit intercourse, which in a sense is prostitution, is differently defined in Texas, • owing to the matter upon which legislation is enacted. We have adultery, for instance, where one of the parties must be married. We have fornication, in which it is necessary that both parties be unmarried. Both statutes are based upon illicit intercourse between man and woman. We have kidnapping, then we have abduction, and disorderly houses, and false imprisonment, and procuring, and various other things connected with disorderly houses. The act of the Legislature with reference to pandering reads as follows:

“Any person who shall procure or attempt to procure or be concerned in procuring, with or without her consent, a female inmate fdr a house of prostitution, or who, by promises, threats, violence or by device or schemes, shall cause, induce, persuade or encourage a female person to become an inmate for a house of prostitution, or shall procure a place as an inmate in a house of prostitution for a female person, or any person who shall, by promises, threats, violence or by any device or scheme, cause, induce, persuade or encourage an inmate of a house of prostitution to remain therein as such inmate, or any person who shall, by fraud or artifice, or by duress of person, or goods, or by abuse of any position of confidence or authority, procure any female person to become or remain an inmate of a house of ill fame, or to enter any place in which prostitution is encouraged or allowed in this state, or to come into this state or leave this state for the purpose of prostitution, or who shall procure any female person to become an inmate of a house of ill fame within this state, or to come into this state or to leave this state for the purpose of prostitution, or who shall give or agree to receive or give any money or thing of value for procuring, or attempting to procure, any female person to become an inmate of a house of ill fame within this state, or to come into this state or leave this state for the purpose of prostitution, shall be guilty of pandering, and, upon conviction for an offense under this act, shall be deemed guilty of a felony and shall be punished by confinement in the penitentiary for any term of years, not less than five.”

The caption of this bill is as follows: “An act creating the offense of pandering, and to define and prohibit the same; to provide for the punishment thereof, for the competency of certain evidence at the trial therefor, and providing what shall not be a defense, and declaring an emergency.”

So it will be discovered that this act was intended to cover all those acts, conduct, device, etc., on the part of any person to induce any female to submit her body to other men for the purpose of prostitution, and whether they even succeeded in inducing her to do so. And it would seem to make no difference whether the woman was virtuous or not. The essential fundamental proposition underlying the whole case is that the accused should do something to induce the woman to submit her body to the sexual desires of another man, or other men, or to become the inmate of a den of prostitution. It excludes the idea that she is only living in adultery with the accused. The idea is that the accused is doing something to induce the woman to lead a life of shame by some of the means or in some of the ways interdicted by the statute. It will be clearly noticed that this is not a statute against illicit intercourse as between two parties. That is fully provided in other acts of the Legislature, but is confined to what the Legislature has termed “pandering.” By using this expression and defining the word as it has been defined, it was intended by the Legislature to make this a separate offense consisting of the acts denounced, as differentiating it from other means of illicit sexual intercourse and matters of that sort. By the Century Dictionary the word “pander” is defined as follows: “One who eaters for the lusts of others; a male bawd; a pimp or procurer. One who ministers to the gratification of any of the baser passions of others. To cater for the lusts of others. To minister to others’ passions or prejudices for selfish ends.” Webster in his dictionary thus defines it: “A male bawd; a pimp; a procurer. Hence one who ministers to the evil designs and passions of another. To play the pander for. To act the part of a pander. Panderism: The employment, arts, or practices of a pander.” Mr. Webster seems to indicate the word comes from Pandarus, a leader in the Trojan army, who is represented by Chaucer and Shakespeare as havihg procured for Troilus the possession of Cres-sida. So this is a statute to prohibit pandering, enacted for that purpose and that alone, and was clearly not intended to in any way impugn or interfere with the other statutes on the books with reference to illicit intercourse, such as adultery, fornication, kidnapping, adduction, or any of those matters where illicit intercourse occurred, and seems to exclude the idea of the act between the male and individual man who is a pander, but refers to the act between the woman and the other man whom the pander induces the woman to live with or the institution of ill fame to which she is induced to go. In other words, pandering is the inducement by the pander to induce a woman to submit to other men than himself, and that is the sense in which prostitution is understood under this statute. This seems to be the idea of the decisions of the state wherever the matter has come before the courts. See Haygood v. State, 98 Ala. 61, 13 South. 325; State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716. Those two cases and the authorities cited in them seem to be sufficient, if it is necessary to cite authorities. We think the language of the statute, however, is sufficiently plain to indicate the purpose for which the Legislature enacted it, and that in order to bring the defendant within the purview and meaning of that statute, it must be shown that he was inducing the girl to submit herself to other men than himself, or to become an inmate of a house of ill fame, or to prostitute her body to other men. That was clearly the purpose for which this act was passed by the Legislature. To hold otherwise would be to confound this statute with the other statutes on adultery, fornication, etc. Under this view of the case the court was clearly wrong in not defining prostitution, and also in not instructing the jury, so they would understand that the mere fact of these parties living together in adultery would not authorize a conviction under this statute.

Motion was made to quash that count in the indictment under which appellant was convicted, because it failed to allege the state in which the girl was induced to go. The writer is of the opinion it would be well enough to make it more explicit on this point.

Eor the reasons indicated the judgment is reversed and the cause is remanded.


source: Caselaw Access Project

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

license: Public Domain

text:
    WARD v. STATE.
    (Court of Criminal Appeals of Texas.
    May 29, 1912.
    On Motion for Rehearing, June 27, 1913.)
    1. Criminal Law (§ 359) — Evidence — Incriminating Others.
    In a prosecution for arson, where the state relied solely on circumstantial evidence and the fact that accused had a grudge against the injured parties, accused is entitled to show that other persons in the neighborhood had threatened to burn out the injured party’s premises because he drove them off of his land; it appearing that such persons were in a position to have committed the offense.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 789, 790; Dec. Dig. § 359.]
    2. Criminal Law (§ 770) — Triai>-Insteuc-tions.
    In a prosecution for arson, where there was evidence that other persons might have committed the offense and had reason to do so, a charge submitting that question is improperly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    On Motion for Rehearing.
    3. Criminal Law (§ 683) — Trial—Reception of Evidence — Rebuttal.
    In a prosecution for arson, where the state introduced evidence of several burnings, accused may introduce rebutting testimony as to all.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1615-1617; Dec. Dig. § 683.]
    4. Criminal Law (§ 359) — Evidence—Incriminating Others.
    In a prosecution for arson, where the state relied on circumstantial evidence, testimony that the injured party had had a difficulty with another who bore him ill will and could have burned his house is admissible; it appearing that such person might have fired the premises instead of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 789, 790; Dec. Dig. § 359.]
    Appeal from District Court, Floyd County; L. S. Kinder, Judge.
    Will Ward was convicted of arson, and he appeals.
    Reversed and remanded.
    A. L. Love, of Floydada, L. W. Dalton, of Plainview, and Martin & Zimmermann, of Tulia, for appellant C. E. Lane, Asst, Átty. Gen., for the State.

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

   DAVIDSON, P. J.

On change of venue this case was tried in Floyd county; the offense having been alleged to have been committed in Briscoe county, where the indictment was returned. This is a case of circumstantial evidence.

The substance of the evidence for the state is that a barn was burned at night near the midnight hour, and in the same neighborhood another barn and some haystacks were burned. Appellant was arrested for this burning. That near the burning were some horse and human foot tracks. These horse tracks were traced from the scene of the burning to appellant’s residence. Two human foot tracks were discovered near the burned houses, one track about 12 inches long with some peculiarities about one of the tracks. These peculiarities were evidenced by certain character of tacks in one of the heels of the shoe or boot, and a broken or worn place in the sole of the shoe or boot supposed to have been worn by one of the parties to the burning. Appellant owned and wore a boot that the witnesses said corresponded with the track that was found. Between the point of burning and appellant’s residence was evidence where a horse had fallen with the rider, or the rider at least had sat down upon the ground. The impress showed, as the witnesses state, that the party who made the impression on the ground wore corduroy pants. Appellant owned a suit of corduroy and was wearing it the night of the burning, or is supposed to have been wearing it on that occasion. One of the horses whose trail was followed made a track that the witnesses say indicated what they called a “narrow heel.” This track was traced to appellant’s residence. Another track was traced to appellant’s residence and thence north a mile or a mile and a half to Mr. Taylor’s residence where an animal was found supposed to have made this track. This animal showed the next day to have been ridden. The record does not show what became of the third animal. An investigation close and searching was made by people of the neighborhood and the sheriff of the county to locate the animal that made the track termed the horse with the narrow heel, but the result was a failure. It is also in evidence that one of the horses was shod in front. The horse that made the track with the narrow heel was shod all around, and the third horse was barefooted. Appellant’s premises, pasture, and the countryside were searched, and closely so, to locate the animal that made the track with the narrow heel, but the animal was not found. Appellant owned no such animal, and what became of it is not disclosed, and in fact the testimony shows that they never traced the track further than a certain point near appellant’s house; it did not go inside of his premises; and they failed to find where it left the premises. The barefooted track seems to have disappeared; in fact, the record gives no particular facts or evidence in regard to that after the tracks reached that neighborhood. The witness Lyles, who was in charge of the premises where the first burning occurred and the alleged owner of the burned premises, was in charge of it for the Swift Company. He was one of the trailing parties and had filed an affidavit charging Olen Ward, brother of defendant, with cattle theft some time prior to this transaction. This engendered ill will on the part of appellant, and he is shown to have used some pretty vigorous language about it. The state, failing in the case against Olen Ward, dismissed the prosecution. Lyles is shown to have had trouble with other parties called by the witnesses in a general way “wood choppers.” These parties had been cutting wood from the ranch of which Lyles had charge. A man named Ray seems also to have had animosity towards Lyles; he had been charged with a violation of the law by Lyles, cattle theft. Ray had been living with and wording for Taylor, the owner of one of the animals supposed to have been ridden the night of the burning. Taylor testified that Ray was at his house on the day preceding the night of the burning. These wood choppers and Ray and other parties were shown to have animosity towards Lyles and lived in the same neighborhood and beyond appellant’s residence from where the burning occurred. It may be fairly stated also that corduroy was not an uncommon suit of clothes in that country. Between the point of burning and appellant’s residence was found an old worn-out overcoat, The state undertook to show that this overcoat belonged to appellant, and one witness testified that he saw appellant on Sunday in possession of a similar coat as appellant was returning home from Olarendon. Clarendon was about 40 miles above his residence. It is denied by all the testimony, except this witness, that appellant had any such overcoat, or that he had an •overcoat. These witnesses testify that appellant did not own an overcoat. The state was never able at any point to locate the .animal that made the track with the “narrow heel.” It was shown positively not to have been at appellant’s home, in his pasture, or about the place anywhere, and the tracks of the animal did not enter his premises. This is practically the state’s ease. Appellant, as before stated, proved by quite a number of witnesses that he did not own an overcoat of any sort and had never owned th‘e coat in question. It is also in evidence, and admittedly so, that appellant left his home and went to Clarendon for the purpose •of carrying a lady and her children to take the train to return to the husband and father of the lady and children. He left home Thursday evening, went a few miles to where the lady and her children were visiting. Friday he started to Clarendon, reaching there Saturday. After seeing the lady off on the train he remained in Clarendon Saturday night and returned home Sunday. Two of the state witnesses met him between Clarendon and his home, driving a wagon and a couple of horses. He is traced practically all the way. When within eight or ten miles of his home he stopped in the evening, fed his horses, and about dusk hitched up his team and took his brother-in-law and his sister, his brother-in-law’s wife, and their children home with him that night, reaching there something like 9 o’clock that night. This seems to be an uncontroverted fact except as to the time, which was somewhat guesswork, but he drove this 8 or 10 miles after dusk, and his team was tired and the road rough, and they estimate it was about 2 or 2 ½ hours after leaving his brother-in-law’s before reaching home. The state witness Taylor, owner of one of the horses supposed to have been ridden that night, shows that appellant’s wagon passed his house something like half after 8 or 9 o’clock. This was about a mile and a half or such matter from appellant’s residence. The brother-in-law and sister of appellant, and his wife and himself all testify that upon reaching home it was something like 9 o’clock. That his wife, who had retired, got up and cooked supper, and after sitting around a while, about 11 o’clock they retired for the night; all of them sleeping in the same room in different beds. The distance from appellant’s house to the point of burning was 8 or 10 miles. The burning is supposed to have occurred about 11 o’clock that night.

1. A bill of exceptions reserved by appellant recites that, while Warren Bell was testifying for the state, on cross-examination defendant offered to prove by the witness and propounded questions to elicit testimony as follows: That just prior to the 6th day of February, 1910, the date of the fire that defendant is alleged to have started, he (the witness), who was working for Swift & Co. on what is known as Shoe Bar Ranch, as such employs, had a good deal of trouble on said ranch with wood haulers; several of them would go on said ranch and take therefrom, without consent, wood; and that said witness had told said wood haulers to get off the ranch, and made them get off; and further that a short time prior to said fire, in the direction in which the horse tracks led in going from the fire, there had been a fire on the ranch which burned the grass, and also that he (the said witness) had received threats that the company for whom he worked would be burned out from the wood haulers. That said witness would have testified to said facts as set out. That the defendant offered said testimony for the purpose of showing that others in that neighborhood had ill will against the witness and said company, and that others than the defendant had a motive to set fire to the house in which the witness lived and which was set on fire the night that Alek Lyles’ house was burned. The testimony showed that on the night of February 6, 1910, a honse belonging to Swift & Co., and in which the witness lived and was sleeping, was set on fire and burned, being the same, night that Alek Lyles’ house was burned, and that horse tracks led from Swift & Co.’s house to Alek Lyles’ house and vice versa, and that horse tracks led from Alek Lyles’ house to or near defendant’s house. The state objected to the admission of this evidence because same was immaterial and irrelevant to any issue in the case and threw no light on the matter under investigation and could not be available to the defendant in his defense; there being-no other testimony offered attempting to connect any wood haulers with this burning of Lyles’ house. These are the objections urged by the state and sustained by the court. Of course the grounds of objection are not treated as matters of fact for either side. The purposes for which this testimony was offered under the circumstances of this case were valid. This evidence was clearly admissible in view of what has been stated before. It is a rule too well established now to be gainsaid or questioned that a person accused of crime may show motive, reasons, and opportunity on the part of others to commit the crime other than the accused. This rule would seem to obtain with considerable more force in cases of circumstantial evidence, and the rule, or reasons for the rule, would seem to be intensified where the facts and circumstances are of a weak and inconclusive nature. This question was thoroughly adjudicated in the case of Dubose v. State, 10 Tex. App. 230; Gilder v. State, 133 S. W. 883; Ex parte Gilstrap, 14 Tex. App. 240; Chancey v. State, 50 Tex. Cr. R. 85, 96 S. W. 12; 12 Cyc. 734; Bram v. United States, 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568; Brown v. State, 120 Ala. 342, 25 South. 182; Blocker v. State, 55 Tex. Cr. R. 32, 114 S. W. 814, 131 Am. St. Rep. 772; Hart v. State, 15 Tex. App. 234, 49 Am. Rep. 188; Wheeler v. State, 56 Tex. Cr. R. 548, 121 S. W. 166; Kirby v. State, 49 Tex. Cr. R. 519, 93 S. W. 1030; Harrison v. State, 47 Tex. Cr. R. 400, 83 S. W. 699. The evidence should have been admitted.

In this connection there was some evidence introduced to show these matters. The court erred in not submitting the issue to the jury that if somebody else than the defendant did the act of burning, and appellant was in no way criminally responsible, he should be acquitted. We think this charge should have been given.

The ill will and motive on the part of others can be shown and the threats of .parties other than the defendant and their ill will and threats to do the injured party harm in any way is admissible, and this, of course, must be in connection with the idea that the parties are or may have been in such position to the alleged offense as they could have been or might have been the guilty parties. The position and opportunities and reasons are as strong on part of others as the defendant.

2. It is contended that the evidence is not sufficient to justify the verdict against appellant. The writer does not hesitate to say he believes this contention is sound under the statement of facts. The state’s evidence, it occurs to the writer, shows that appellant could not and did not burn the house. If the state’s testimony is to be relied upon, it would show that appellant was at home at such time that it would have been practically impossible for him to have burned the house, and not only so but there is no evidence in this record to show that he could have been acting in concert with parties other than his brother-in-law, who spent the night with him. The state did not undertake to connect with defendant a third party. Nor was it undertaken to connect anybody, so far as appellant was concerned, with the riding of the barefooted horse, or that he got the horse belonging to Mr. Taylor that was shod in front. The horse with the narrow heel was not traced to appellant’s possession. There was no attempt to show that Ray, who had been living with Taylor and who had not been at Mr. Taylor’s since, was connected with appellant, on that night. In fact, there is nothing to indicate that he was at appellant’s or in that neighborhood that night other than the fact that he'had been at Mr. Taylor’s preceding the burning at night. Mr. Taylor testifies he does not know who rode his animal. The state’s evidence excludes the idea that the horse that made the narrow-heeled track was at appellant’s, and does not show what became of the horse or who rode the horse. The state’s evidence also excludes the idea that any of appellant’s horses were ridden on the night of the burning. This would also intensify the reason for introducing evidence to the effect that the other parties may have committed the act of burning. Without committing my Brethren to the proposition that the evidence is insufficient, -the writer unhesitatingly states he does not believe the state has a case against appellant.

The judgment is reversed, and the cause is remanded.

PRENDERGAST, J., not sitting.

On Motion for Rehearing.

DAVIDSON, P. J.

Some time since an opinion was handed down herein reversing the judgment. In making a statement of the facts in conclusion to the effect that in the mind of the writer the evidence was not sufficient to support the judgment, that statement expressly excludes the idea that my Brethren expressed any opinion in regard to it and that my views were not to be held in any way binding upon them.

It is contended, however, that in one portion of the opinion it was erroneously stated that Lyles had charge of or was connected with the Swift & Co. ranch. Before going further I wish to state that closer inspection of the record will disclose that it was erroneous to state that Lyles was in the employ of Swift & Oo. The record discloses that the witness Bell was in the employment of Swift & Oo. In dictating it is possible the names may have been miscalled by the writer. However, in the mind of the writer that is too trivial for any serious discussion in view of the record. Some of the testimony does show that Lyles owned land near the Swift & Oo. ranch, amounting to about two sections, and one of his houses was burned the same night that the house was burned where Bell was employed. The evidence in the case dealt rather indiscriminately with both burnings. The theory of the state was, and the facts showed fairly well, that the same parties burned both premises. It would therefore necessarily follow in this connection that the accused was entitled to meet any and all facts relied on by the state to connect him with either or both burnings. The state pursued the investigation as to both burnings assiduously, and all for the purpose of showing that the same parties burned both houses, and further, by such circumstances as it could gather, that appellant was one of the three parties who did the burning. It is a fundamental proposition that, where an accused is confronted with facts that are thought to be criminative, he has the same right to meet those facts as the state had to place them in evidence before the jury. This proposition is so clearly right and fundamentally correct it would need no argument to sustain it. This was sought to be' done through the witnesses Bell and Lyles as shown by bills of exception, but the court refused to permit this evidence to go to the jury.

It is urged by the state in the motion that, because this evidence was not in the record, therefore there was no error. The reason the evidence was not in the record, as well as such evidence as might have followed the introduction of this connecting the parties, was that, on the objection of the state, it was excluded. We sufficiently treated Bell’s evidence in the original opinion and do not care to rehash it. By Lyles appellant offered to show that he had had trouble with Tates prior to the burning and paid a fine for whipping or slapping him. This was ruled out. Lyles’ house was burned. I do not care to follow this matter further. This evidence was clearly admissible and should have gone to the jury. In this ease the reasons were as strong as possible perhaps to be brought out for the reason the state relied exclusively upon circumstantial evidence. No one testified as to who the parties were that did the burning, for no one saw them. The state proved there were three parties present. One of the horses ridden is shown to have belonged to Byron Taylor, where one of the Bay boys had been living, and which was a mile and a half north of and farther away from where the fire occurred than where defendant lived. This horse was traced from the fire beyond appellant’s house to Taylor’s, house. One of the Kay boys had been working at Taylor’s. The facts in the case, as stated in the original opinion, shows that one of the parties rode what they called the “horse with the narrow heel.” This animal was not found at defendant’s, although the closest investigation was made, and in fact the horse was not located anywhere or by anybody. Some of these parties whom the defendant contends had animosity toward Lyles and Bell, either or both, lived beyond appellant’s residence and in the way the horses should have gone. The searching parties investigated enough to find where the Taylor horse went but ceased to investigate as to the horse with the narrow heel. Why this cessation was made is not explained in this record. The state’s motion seems to indicate that, inasmuch as the prosecution had adduced evidence tending to connect the defendant with the offense, therefore he was not authorized to show facts or circumstances of the same character before the jury to the effect that he did not participate' in the burning, and that some other parties may or might have done it. This is not right. Such contention ought not to be made; at least it is not the law in Texas. The authorities are cited in the original opinion, and it is unnecessary to go further into that question.

Another contention is made by the state; that is that the writer of this opinion was-wrong in stating in his judgment the evidence was not sufficient to support the conviction. I have read what the state has to' say in regard to the matter and am the more firmly convinced that I was right in the original opinion in this respect. Then and now I am not undertaking to bind my Brethren in regard to this matter. I have-gone over the state’s motion and copy in part from it as follows: “The record in this cause does not show wherein any other person than the defendant had any cause or grievance against the witness Lyles, whose property is alleged to have been destroyed by the defendant, nor is there any testimony in. the record to show that, even should there-have been any other who had a grievance against the said witness, there is no testimony that any other person than the defendant had an opportunity, or was in that neighborhood, or that wore the same kind of shoes, nor was there any to show that any other person in that community that wore an overcoat of the description that was found there, nor is there any testimony directly that any other person in that community had on corduroy pants on that day, nor is there any testimony that the tracks of the horses as found on the premises of Alek Lyles led to any other place than the premises of the defendant. On the contrary, the evidence all shows that the defendant did have a motive directed against Alek Lyles; that the defendant lived six or seven miles from the said Alek Lyles, and not nine or ten as expressed by the court in its opinion; that the defendant did have the opportunity; that he did have horses; that he was wearing corduroy pants at the time he was arrested and on the day of the fire,” etc.

Warren Bell testified: “I have seen other people down there with corduroy pants on except Will Ward. They are common in that country, and a good many people wear them.” The same witness further said that: “I do not think the way we all went from Lyles’ house to Will Ward’s» could have been over nine miles.” Again he says: “We might have been longer than two hours and a half making that nine miles.” Bell and others were following the tracks of the supposed guilty parties. Erank Pate testified for the state as follows: “I have been working for Swift & Go. four years the 11th of last April, and am working for them now. Alek Lyles is in possession of some land down there, but I don’t know how much, a couple of sections, I judge.” This quotation is made to show how the name of Lyles may have been used instead of Bell. While Lyles did not have charge of the Swift & Co. Shoe Bar Ranch, as the witnesses term it, he had two sections with them, and the ranch seems to have been practically all around it, and the evidence with reference to the wood choppers having ill feeling toward people on Shoe Bar Ranch, might have some effect as the fires occurred at the same time and by the same parties. It was admissible to show motive on the part of others to burn both premises. Whoever burned one place burned the other, and any fact that would go to connect these wood choppers and others than the defendant with either one would necessarily connect them with the other. Nor could this affect the right of appellant to have the jury instructed as to the faet that others had motives, for by the testimony it appears that Sol Ray, Ed Ray, and John Ray had the same motive against Lyles and the Shoe Bar Ranch people on account of Sol Ray having been accused of cattle theft as was Olen Ward, brother of appellant, and it seems to be undisputed that these people were in the neighborhood, and that the tracks followed by the officers led in the direction of where they lived or their places of residence. One of the principal facts relied upon by the state to connect appellant with it was because some of the parties had charged Olen Ward with cattle theft. I do not care to review the matter any further. After looking over the facts again, I am fully persuaded I was correct in my views as to the sufficiency of the evidence.

The motion for rehearing is overruled.


author: PRENDERGAST, J.

text:
    MARES v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1. Perjury (§ 11) — False Testimony — Materiality.
    The testimony of accused, on his trial for unlawfully betting at a gaming bank at the house of a third person, that he was not present at the house at the time charged is material so as to be perjury if false.
    [Ed. Note.' — For other cases, see Perjury, Cent. Dig. §§ 38-54;' Dec. Dig. § 11.]
    2. Criminal Law (§ 429) — Evidence—Judicial Records.
    On the trial of accused for perjury, based on his false testimony in the county court on his trial for unlawfully betting at a gaming bank, the complaint and information in the county court are admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1018, 1020; Dec. Dig. § 429.]
    3. Criminal Law (§ 673) — Instructions — Evidence — Purpose oe Admission.
    The judgment in the county court not having been offered in evidence but only the complaint and information, the instructions need not limit the jury to the purposes for which the information and complaint could be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 67⅛.]
    4. Perjury (§ 19) — Indictment — Sufficiency.
    An indictment for perjury, predicated on accused’s false testimony in the county court on his trial for betting at a gaming bank, need not charge that the information in the county court was based on a complaint therein.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 65, 66, 70, 71; Dec. Dig. § 19.]
    5. Perjury (§ 19) — Indictment — Sufficiency.
    An indictment for perjury, predicated on accused’s false testimony in the county court on his trial for a 'violation of Pen. Code 1911, art. 553, punishing any person betting on any banking game wherever played, need not allege that the betting was not at a private residence occupied by a family.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 65, 66, 70, 71; Dec. Dig. § 19.]
    6. Perjury (§ 29) — Indictment— Sufficiency.
    The indictment which alleges that accused falsely testified that he was not present at the house where the gaming occurred at the time charged, and that he did not wager' at the game, is good if either statement was false and material.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.]
    7. Perjury _(§ 19) — Indictment—Requisites.
    The indictment need not allege who dealt or exhibited the game.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 65, 66, 70, 71; Dec. Dig. § 19.]
    8. Criminal Law (§ 825) — Instructions.
    Where, on a trial for perjury, the alleged perjured testimony and the falsity thereof were clearly established by two or more witnesses, the court having charged that no one can be convicted for perjury except on the testimony of two credible witnesses, need not, in the absence of a request therefor, define a credible witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]

      9. Perjury (§ 37) — Instructions.
    It was proper for the court, on a trial for perjury, to charge as required by Pen. Code 1911, art. 305, that a false statement, made through inadvertence, or under agitation, or by mistake, is not perjury.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 134r-138; Dec. Dig. § 37.]
    10. Criminal Daw (§§ 419, 420) — Evidence —Hearsay Evidence.
    Where on a trial for perjury, predicated on accused’s false testimony through an interpreter, the interpreter testified that he correctly interpreted what accused testified to, the testimony of a juror as to what the interpreter interpreted to the jury was not objectionable as hearsay.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    11. Witnesses (§ 340) — Impeachment — Proof of Misconduct.
    A witness may not be impeached by proof that his general reputation was that of a professional gambler and that he gambled every time he was in town and had money.
    [Ed. Note. — For other cases, see Witnesses, Dee. Dig. § 340.]
    12. Witnesses (§ 398) — Impeachment — Cross-Examination — Oonclusiveness.
    The testimony of a witness on cross-examination that he is not a professional gambler is conclusive and cannot be contradicted by the cross-examiner.
    TEd. Note. — For other cases, see Witnesses, Oent.Dig. §§ 1267, 1274,1275; Dec.Dig. § 398.*]
    13. Perjury (§ 29) — Evidence — Sufficiency.
    On a trial for perjury predicated on accused giving false testimony in the county court on his trial for crime, the state need not prove that the jury in the county court was sworn.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 97-106; Dec. Dig. § 29.]
    Appeal from District Court, Uvalde County ; R. I-R Burney, Judge.
    Andres Mares was convicted of perjury, and he appeals.
    Affirmed.
    L. Old and J. W. Pruitt, both of Uvalde, for appellant. C. E. 'Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, J.

Appellant was convicted of perjury, and his punishment fixed at two years in the penitentiary.

The perjury was predicated on his alleged false testimony in the county court of Uvalde county, wherein he was charged and tried for unlawfully betting and wagering at a certain gaming table and bank, to wit, a monte bank. The two particulars of false testimony charged to have been given by him on the trial of his county court case was in one that he testified he was not present at the house of one Gregoria Gonzales in the town of Uvalde, Uvalde county, Tex., on the night of June 19, 1912, and the other was that he did not then and there bet and wager at such game, etc. That he so testified in the county court was clearly established by the testimony of two or more witnesses; and that his testimony in both particulars was false, etc., was also clearly established by two or more witnesses. In other words, on the trial of this case it was clearly established by the state by two witnesses or more that appellant was present at the house of said Gonzales on said night of June 19, 1912, and also that he bet and wagered at said banking game, and that he testified falsely on both of these issues before the county court.

Appellant requested two charges, neither of which is so assigned that this court can consider them. Byrd v. State, 151 S. W. 1068, and authorities there cited. Even if they were so presented, neither was called for by the evidence in this case. The fact that appellant testified he was not present at the house of said Gonzales said night was not an immaterial matter but was very material in the trial of the county court case. Davidson v. State, 22 Tex. App. 372, 3 S. W. 662; Washington v. State, 22 Tex. App. 26, 3 S. W. 228; Williams v. State, 28 Tex. App. 301, 12 S. W. 1103.

The state introduced in evidence on this trial the complaint and information in the said county court case over appellant’s objection. There can be no question but that these were admissible on the trial of this case. The allegations in the indictment in this case of what offense appellant was charged in said county court ease were substantially, if not literally, what said county court papers charged, and this is all that was necessary. C. G. P. art. 465.

The judgment in said county court was not offered or introduced in evidence in this ease. This court has specifically held that under such circumstances no charge is necessary limiting the jury to what purposes they could consider the information and complaint. Franklin v. State, 38 Tex. Cr. R. 346, 43 S. W. 85, and cases therein cited.

There was no motion made to quash the indictment on any ground. But in the motion for new trial, in which is combined a motion in arrest of judgment, several grounds are set up as to the insufficiency of said indictment, none of which are well taken. The indictment does charge that the county court at which appellant was tried was in session and at a regular session of said county court for Uvalde county at the time he was tried.

It was unnecessary for the indictment to charge that the information in the county court case was based upon a complaint therein. Curtis v. State, 46 Tex. Cr. R. 480, 81 S. W. 29.

Neither was it necessary for the indictment to charge that the betting and wagering charged in the county court case was not at a private residence occupied by a family. The prosecution in the county court ease was based upon article 557, P. C., which made it an offense for any person to bet or wager on any banking game, specifically mentioning monte (P. C. art. 553) wherever played.

The indictment' does charge that the alleged false testimony of appellant in the county court case was material in both particulars, but it would have been sufficient in this case if either was material and shown to be false. Moore v. State, 32 Tex. Cr. R. 405, 24 S. W. 95; Beach v. State, 32 Tex. Cr. R, 253, 22 S. W. 976; Anderson v. State, 56 Tex. Cr. R. 365, 120 S. W. 462; Branch’s Crim. Law. subd. 5, § 650, and cases there cited.

It was not necessary to allege in the indictment who dealt or exhibited the said game.

The court charged the statute (article 806, C. C. P.) that no person can be convicted for perjury, except upon the testimony of two credible witnesses, or one credible witness corroborated strongly by other evidence as to the falsity of the defendant’s statement. And also charged the reasonable doubt. No charge was requested as to what was meant by a credible witness. Even if there had been, this case did not call for such a charge, as expressly held by this court in Knapp v. State, 101 S. W. 449.

There is no error presented in appellant’s various criticisms of the court’s charge. Most, if not all, of these criticisms are quite hypercritical. In the preliminary statement of the case the court did not undertake to fully, define perjury, and it was unnecessary to do so in this preliminary statement; but the balance of the charge, in submitting the case, fully and completely embraces all the elements and requirements to constitute perjury.

It was proper for the court to tell the jury, as required by article. 305, P. C., that a false statement, made through inadvertence, or under agitation, or by mistake, is not perjury.

Appellant has some bills of exception to the admission of certain evidence. It is unnecessary to take them up separately. We will state the substance of them. Appellant was a Mexican and could not speak English. He testified in the county court case through an interpreter, who is expressly provided for by our law. Article 816, O. O. P. This interpreter testified on this trial but testified, in substance, that he could not remember fully the testimony of the appellant in the county court case, but expressly testified that the appellant did then testify to one or the other of said false statements charged by the indictment in this case. The state thereafter introduced another witness who testified that he was on the jury that tried appellant in the county court case and that the interpreter interpreted to the jury defendant’s testimony in that case and told the jury what defendant testified on the point. The appellant objected to this juror’s testimony on the ground that it was hearsay. The court, in allowing the bill, qualified it by explaining that the interpreter in this case testified that he had forgotten what the defendant testified to in the case in the county court, but he truly and correctly interpreted what he said at the time. In our opinion the testimony of the juror was not hearsay and was admissible. 1 Wharton, Cr. Ev. (10th Ed.) § 224. In Commonwealth v. Storti, 177 Mass. 339, 58 N. E. 1021, as given in a note (16 Cyc. 1198), it is stated, where an interpreter swears that he truly translated certain evidence to a court stenographer, the stenographer may then swear that he has truly reproduced the statements made to him by the interpreter. See Misher v. State, 152 S. W. 1049.

Appellant has several bills of exception to the exclusion of the testimony of certain witnesses, as to one of the state’s witnesses, Will Plummer, and the ciiarge of the court withdrawing certain testimony from them by and about this witness Plum-mer. The substance of it all is that by one witness appellant wanted to prove that the general reputation of said witness Plummer was that of a professional gambler; and, while the witness Will Plummer was on the stand himself, he asked him if he was not a professional gambler, and Plummer answered that he was not. Also when the witness Plummer was on the stand he wanted to. prove by him that he did not gamble pretty often and every time he was in town and had money, and made this latter proof by the witness himself at the time. On objection by the state and in motion that this-testimony be withdrawn from the jury, the court withdrew that testimony and told the-jury they would not regard it. All this testimony, and offered testimony by appellant, was for the purpose of going to the credibility of the witness Plummer. A witness cannot be impeached by any such evidence. See-Branch’s Crim. Law, § 868. So far as the-witness Plummer himself, on cross-examination, testifying that he was not a professional gambler, his answer was conclusive, and appellant could not contradict it. Branch’s-Crim. Law, § 869. It is unnecessary to discuss this question or cite the cases so holding on these questions, and, upon the motion of the state when such evidence did creep in, the court properly withdrew it from the jury.

The state did not have to prove that, the jury in the county court case was sworn. Schooler v. State, 52 Tex. Cr. R. 331, 106 S. W. 359, and cases there cited. The proof in this case is cleaf, full, and convincing and all the necessary facts of perjury were-shown by two witnesses or more.

There being no reversible error, the judg- • ment is in all things affirmed.


text:
    NOBLES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 21, 1913.
    On Motion for Rehearing, June 18, 1913.)
    1. Intoxicating Liquobs (§ 205) — Offenses —Indictment.
    An indictment for violation of the prohibition law is not subject to motion to quash, because not specifically stating the date of the election when prohibition was carried, and whether the law was put in force prior or subsequent to Acts 31st Leg. (1st Ex. Sess.) c. 35, which makes subsequent violations felonies instead of misdemeanors.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. § 205.]
    2. Intoxicating Liquobs (§ 236) — Offenses —Evidence—Sufficiency.
    In a prosecution for violating the prohibition law, evidence held to show that the law was in force before the sales were made.,
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    3.Intoxicating Liquobs (§ 176) — Offenses —Defenses—Attack on Ejection.
    Under Acts 30th Leg. (1st Ex. Sess.) c. 8 (Rev. Civ. St. 1911, art. 5728), providing that any time within 30 days after the result of an election, if prohibition carried, has been announced any voter may contest it, that after such contest it shall not be permissible again to call the legality of the election in question in any suit or prosecution, and that if no contest be filed, it shall be conclusively presumed that such election was valid, the validity of a prohibition election cannot be attacked in a prosecution for violations of the law, particularly where the oral evidence showed violations after it went into effect.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Dec. Dig. § 176.]
    4. Intoxicating Liquobs (§ 238) — Offenses —Juby Questions.
    In a prosecution for violation of the prohibition law, evidence as to whether accused made unlawful sales held for the jury.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-339; Dec. Dig. § 238.]
    5.Intoxicating Liquobs (§ 239) — Offenses —Instbuctions.
    In a prosecution for violating the prohibition law, charges that the burden was on the state to prove, beyond a reasonable doubt, that accused sold the liquor as charged, and that he was not acting as agent for the prosecuting witness, and if he was, there was no sale, sufficiently presents 'the defense that accused merely procured the liquor as the witness’ agent.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. 239.]
    6. Criminal Law (§ 372) — Evidence—Other Crimes.
    While ordinarily, in a prosecution for violating the prohibitory law, evidence of other sales is not admissible, yet where the evidence as to the making of the sale is conflicting, testimony that accused made sales to other persons is admissible solely on the ground that it tends to show that he made the sale in question.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.]
    7. Intoxicating Liquobs (§ 239) — Offenses —Instructions.
    In a prosecution for violating the prohibition law, a charge that if accused, “with the purpose” and “for the purpose” of evading such law did sell intoxicating liquors, he should be found guilty is improper in the use of the quoted phrases; for there is no law punishing a man for selling intoxicating liquor in prohibi-ción territory for such purpose.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent Dig. §§ 331-347; Dec. Dig. 1 239.]
    8. Criminad Law (§ 1172) — Appeal—Harm - less Errob.
    But such error is not reversible error under Code Cr. Proc. 1911, art. 743, declaring that a judgment shall not be reversed unless the error was calculated to injure the rights of accused, for the charge merely placed an additional burden on the state, and could not have harmed accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dee. Dig. § 1172.]
    9. Criminal Law (§ 784) — Trial—Instructions.
    A charge on circumstantial evidence is required only where the evidence of the offense is inferential, and not direct and positive.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922,1960; Dec. Dig. § 784.]
    On Motion for Rehearing.
    10. Criminal Law (§ 1137) — Appeal—Statement of Facts.
    An appellant has the burden of preparing a complete statement of facts; consequently where accused accepted a statement of facts which did not include a written statement, made by him to the prosecuting attorney and introduced in evidence by such attorney, he cannot complain of the loss of the statement by the prosecuting attorney after the trial, it appearing that the statement of facts was signed by the court and agreed to by counsel.
    [Ed. Note. — For other cases, see Criminal Law^Oent. Dig. §§ 3007-3010; Dec. Dig. § 1137.]
    11. Criminal Law (§ 1165) — Appeau-Harmless Error.
    In a prosecution for violating the prohibition law, accused cannot complain that the prosecutor lost a written statement made by him prior to the trial, which was introduced by the state, and so was included in the statement of facts ; for the statement must obviously have been detrimental to accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089; Dec. Dig. § 1165.]
    Appeal from District Court, McLennan. County; Richard I. Munroe, Judge.
    Mason Nobles was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    Joe W. Taylor, Sr., of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Appellant was convicted, and his penalty fixed at one yeár’s confinement in the penitentiary for violation of the prohibition law in the town of Mart, McLennan county, Tex.

The indictment in this case strictly conforms to the form approved uniformly and held good by this court under all the decisions. Holloway v. State, 53 Tex. Cr. R. 246, 110 S. W. 745; Shilling v. State, 51 S. W. 240; Stephens v. State, 97 S. W. 483; Starnes v. State, 52 Tex. Cr. R. 403, 107 S. W. 550; Key v. State, 37 Tex. Cr. R. 77, 38 S. W. 773; Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550; Watson v. State, 52 Tex. Cr. R. 551, 107 S. W. 544; Garner v. State, 62 Tex. Cr. R. 526, 138 S. W. 124; and a large number of other eases unnecessary to cite.

The indictment does not specifically allege the date of the election and when prohibition was carried and the law put in force. The appellant made a motion in the court below to quash the indictment because of this, claiming, since the act of 1909, and the enactment of the Revised Penal Code in 1911, making the offense punishable by confinement in the penitentiary, when an election was held thereafter, and making it a misdemean- or only when elections were held before that act became effective, that an indictment was bad which did not allege the date prohibition was put in force, so that it could be told on the face thereof whether it was a felony or misdemeanor. So far as we can find, the first case in which this question was presented was Enriquez v. State, 60 Tex. Cr. R. 580, 132 S. W. 782. In that case this court properly held that that was no ground for quashing the indictment. Since then this court has uniformly adhered, and still adheres, to that decision. See Head v. State, 141 S. W. 536; Mealer v. State, 145 S. W. 353; Hamilton v. State, 145 S. W. 348; Meyer v. State, 145 S. W. 919; Garner v. State, 62 Tex. Cr. R. 525, 138 S. W. 124. We do not undertake to collate all of the cases so holding. There is in the record a motion to quash the indictment on this ground. It is not sworn to, nor does it attempt to set up that prohibition in Mart in fact was adopted and in force before the felony clause of the statute became effective. The record does not show that this motion to quash was presented to and acted upon by the court; but, even if it was, and the court overruled it, the court’s action was correct.

Another contention by appellant is that this conviction must be reversed because the state did not introduce in evidence the order made by the commissioners’ court, or the county judge, that the necessary four weeks’ publication had been made that prohibition was in force in said town of Mart. The record does show a correct order by the commissioners’ court of McLennan county, dated April 8, 1912, that upon a proper petition therefor an election to determine whether or not prohibition should be put in force in said town was duly ordered. Following this was the order of the commissioners’ court of May 6, 1912, declaring that said election was duly held, prohibition carried by a majority vote, reciting the votes for and against prohibition, and the majority, and declaring that prohibition carried. Further: “And it is hereby ordered that the sale of intoxicating liquors be and the same is hereby absolutely prohibited in the said town of Mart, except for the purpose under the regulations prescribed by article 3385 of the Revised Statutes of the State of Texas of 1895, until such time as the qualified voters in said town of Mart may, at a legal elfection for that purpose, by a majority of votes, decide otherwise.” The sale alleged to have been made by appellant was on August 10,1912. Fred Scott, the person to whom said sale was alleged to have been made, testified, in substance and in effect, that he had bought-from appellant in Mart, on August 10, 1912, as well as two or three times shortly before then, intoxicating liquors, all after prohibition went into effect in said town. Another witness also testified that he bought intoxicating liquor from appellant in June, 1912, and also afterwards, prior to August 10, 1912, all after local option went into effect in said town, and that such purchase made in June was not before the saloons were closed because prohibition had gone into effect. There is much other evidence in the record showing, after prohibition went into effect in Mart, that in June, 1912, and afterwards, prior to August 10, 1912, and' especially in August prior to August 10th, appellant frequently sent from Mart to Otto in Falls county, several miles distant, by a person who ran an automobile between the two points, and bought and had brought to him from Otto to the restaurant in Mart, where he was working, much intoxicating liquors. In other words, the record amply shows, by all of this oral testimony, that prohibition was in force in Mart by virtue of said election and order from at least early in June, 1912, and continuously thereafter.

By the act of 1907, passed at the First Special Session of the Legislature, page 447, now article 5728 of the Revised Statutes of Texas, it was enacted that at any time within 30 days after the result of an election for prohibition has been declared carried, any qualified voter within such territory may contest said election in the district court of the county in which such election has been held, and that such court shall have jurisdiction to try and determine all matters connected with said election, including the petition therefor and all proceedings and orders relating thereto, embracing the final count and declaration and publication of the result putting local option into effect, and that such cases shall have precedence in the district and appellate courts, and that the result of such contest shall finally settle all questions relating to the validity of said election and it shall not he permissible to again call the legality of said election in question m any other suit or proceeding, and, further “that if no contest of said election is filed and prosecuted in the manner and within the time provided above, it shall be conclusively presumed that said election as held and the result thereof declared, are in all respects valid and binding upon all courts.” There is no intimation by this record, or otherwise, that any such suit was instituted and resulted in any way in declaring said election illegal, and that prohibition was not thereby put in force in the town of Mart. Ever since the enactment of this statute this court has uniformly, and in many eases, held, as the statute prescribes, that it shall he conclusively presumes, that such election as held and the result thereof declared, are in all respects valid and binding lopori all courts. Jerue v. State, 57 Tex. Cr. R. 213, 123 S. W. 414; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167; Thulemeyer v. State, 56 Tex. Cr. R. 337, 119 S. W. 1146; Wilson v. State, 107 S. W. 818; Hardy v. State, 52 Tex. Cr. R. 420, 107 S. W. 547; Alexander v. State, 53 Tex. Cr. R. 504, 111 S. W. 145; Romero v. State, 56 Tex. Cr. R. 436, 120 S. W. 859; Doyle v. State, 127 S. W. 816; Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550; and other cases not collated. So that appellant’s contention on this point, which was raised in various ways by the record, cannot be sustained, and no error on this point is shown by the action of the lower court in the various ways complained of by appellant, especially as the oral evidence shows this sale was made after prohibition went into effect.

Another contention by appellant is that the evidence is insufficient to show a sale by appellant to Fred Scott, as alleged, but that the evidence conclusively shows that appellant was merely acting as the agent of Fred Scott, and as such agent sent for the whisky to Otto by the automobile man, and, upon its being bought at Otto and returned to him (appellant) at Mart, that as such agent he merely delivered the possession thereof to Fred Scott. The testimony on this point was conflicting. That of Fred Scott, and the many circumstances and other evidence, tended to show, and was sufficient to show, that it was a direct sale by appellant to Scott. On the other hand, the appellant’s evidence tended to show his contention as to this particular claimed sale. The evidence was sufficient, if believed by the jury, to have established his defense and secured his acquittal, but this question was specifically and repeatedly submitted to the jury under a proper charge, and the jury found that it was a sale, and that appellant was not acting as the agent in procuring and delivering the whisky to Fred Scott. The court in the main charge, not only correctly charged the reasonable doubt in appellant’s favor, and that the burden of proof was on the state, but required the jury to believe, beyond a reasonable doubt, before they could convict him that he did, as charged in the indictment, in Mart, on or about August 10, 1912, sell to Fred Scott whisky. And in the paragraph submitting that question told them that if they had a reasonable doubt thereof, to acquit him. In addition to this, in a separate paragraph, the court in the main charge told the jury that if they believed from the evidence that the witness Fred Scott, on or about the time alleged in the indictment, handed to the defendant some money, and requested him to get him some whisky, and the defendant, acting as the agent of said Scott, handed the money to one Berl Hudson (who was the automobile man) and requested him to get him some whisky, and that said Hudson bought said whisky at Otto, or Riesel, and brought the whisky back to defendant, and if defendant delivered said whisky to said Scott, or placed it where he got it, or if they had a reasonable doubt thereof, to acquit appellant. Still, in addition to this, the court gave two special charges requested by appellant. One to the effect that the jury are instructed that in all criminal cases the burden of proof is on the state to prove all material facts necessary to constitute the violation of the law, and in considering this testimony, which has been introduced herein by the state, if there remains in your mind any reasonable doubt as to whether or not the delivery of this liquor mentioned in the indictment to Fred Scott was an actual sale, or whether or not in making said procurement of liquor by defendant and the delivering to Fred Scott, the defendant acted as agent of said Scott, the purchaser, in procuring the said liquor for him from Otto through the agency of Berl Hudson, to find him not guilty. The other is to the effect that the jury are charged that in the indictment herein the defendant is charged with having, on August 10, 1912, sold to Fred Scott intoxicating liquor, to wit, whisky, in the town of Mart, in violation of the local option law; that in this case yon are charged that the burden of proof is upon the state to show beyond a reasonable doubt that the alleged liquor was, on the alleged date, sold by defendant to Fred Scott in the town of Mart, and unless the state has shown to your satisfaction beyond a reasonable doubt that said sale was so made in the town of Mart on the date alleged in the indictment, to find defendant not guilty; and further, that if in the delivery of said liquor by the defendant to Fred Scott, the defendant acted as the agent of Scott in procuring said liquor from Otto for him at his request, then there would be no sale of liquor, and if you have a reasonable doubt on this question, you will give the defendant the benefit of it and acquit him. This certainly presented this contested point to the jury in every way as favorable as it should or could have been submitted, and the jury found against appellant. The evidence was sufficient to justify their finding.

Another contention by appellant is that the court should not have permitted the state to prove by other witnesses, over his objections, which was done, that the appellant in June, 1912, and in August prior to August 10, 1912, made to the several witnesses who so testified other and separate sales of intoxicating liquor to such witness, claiming that such evidence did not tend to develop the res gestee, or establish system, or to connect the appellant with the alleged sale to Scott, and that the sale in June to one of the witnesses was too remote. He cites several eases to the effect that where the sole question in the case was whether or not a particular sale had been made, and the question at issue was solely whether or not this particular sale had been made, other and distinct sales were not admissible. As said by this court in the recent case of James v. State, 63 Tex. Cr. R. 80, 138 S. W. 615, “It is well settled, where the sale has been made out positively and clearly, that the introduction of other sales is not permissible as evidence to go to the jury. But it is also well settled that there are exceptions to this general rule, and if the evidence tends to develop res gestee, or show the intent or connect the defendant with the offense for which he is being tried, or it is intended to show system, where system becomes a part of the ease, it may be pertinent.” This latter rule is well established, and has in many cases been held in prosecutions for violating the' prohibition law. See Prinzel v. State, 35 Tex. Cr. R. 274, 33 S. W. 350; Bennett v. State, 50 S. W. 945; Young v. State, 66 S. W. 567; Skipwith v. State, 68 S. W. 278; Holland v. State, 51 Tex. Cr. R. 142, 101 S. W. 1005; Efird v. State, 44 Tex. Cr. R. 448, 71 S. W. 957; Hollar v. State, 73 S. W. 961; Roach v. State, 47 Tex. Cr. R. 500, 84 S. W. 586; Gorman v. State, 52 Tex. Cr. R. 329, 106 S. W. 384; Bruce v. State, 39 S. W. 683; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111. It is unnecessary to cite other cases.

As shown above, appellant contested, most vigorously, the fact that he had made any sale to said Scott, as alleged in the indictment. He contended that it was not a sale, but that he acted solely as the agent of Scott in procuring and delivering to him the liquor charged to have been a sale in this case. So that unquestionably this evidence of other sales by appellant to these several witnesses was pertinent and admissible. The court, by proper charge, told the jury that they could not convict the appellant in this case for any of said other sales, even if made, but that if they considered the evidence of them at all, they could only do so for the purpose of aiding them to determine the course of business of appellant, if any, with reference to the sale charged by the indictment, and that they could consider the testimony for no other purpose.

The court in the second clause of the main charge, in telling the jury what the law is, stated, in effect, that the law pro* vides that if any person shall sell intoxicating liquor in any town in which such sale is prohibited under the laws, “with the purpose of evading the provisions of said law,” he shall be punished, etc. And again, in submitting the case to the jury for a finding, he told them that if they believed from the evidence beyond a reasonable doubt that the defendant, as charged in the indictment, in the town of Mart, on August 10, 1912, “for the purpose of evading the provisions of the local option law” did sell to Ered Scott intoxicating liquors, to wit, whisky, to find him guilty, etc. Appellant contends that the two expressions in the charge above quoted “with the purpose” and “for the purpose” of evading the provisions of said law are erroneous, for the reason that there is no law of this state punishing a man for selling intoxicating liquors in prohibition territory for such purpose, and that the charge containing this was misleading, not in response to the allegations in the indictment, and was an error in the definition of the act and offense alleged. These expressions should not have been used by the court in the charge. But in our opinion appellant was not and could not have been injured thereby. Instead of being against him, it was an additional burden placed upon the state, which should not have been required. It makes no difference under the law for what purpose an illegal sale of liquor in prohibition territory is made, nor that such sale must be made for the purpose of evading the law. The law is, if the illegal sale was made, it was a violation of the law. As stated above, while these expressions in the court’s charge were erroneous, it could not and did not injure appellant, because the court, by its charge, clearly required the jury to believe that appellant made the sale as alleged in the indictment, and that the jury must so believe beyond a reasonable doubt before they could convict. And as shown above, not only submitted repeatedly that the burden was upon the state, and the reasonable doubt in favor of the appellant, but in every way submitted appellant’s defense that he was acting as the agent only of the alleged purchaser1, and that he did not make a sale to him, all of which questions were decided against appellant. Under such circumstances this court is prohibited from reversing the case. Article 743, O. G. P.

As said by Judge White in subdivision 2, § 813, p. 531, of his Ann. C. O. P.: “It is only in cases of, or purely dependent upon, circumstantial evidence that the court is required to instruct upon the rules of law applicable to such evidence. It should not be charged upon where the evidence is direct and positive (citing many cases).” In this ease no charge on circumstantial evidence was required, and the court committed no error in not charging thereon.

We have not taken up separately each of appellant’s claimed errors on- the trial of this case. We did not deem it necessary to do so. But we have taken up, discussed, and decided every question properly raised and assigned as error. Various questions are raised by appellant; some of them raised in various and different ways. None of appellant’s contentions show any reversible error.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant, by his motion for rehearing, presents some of the questions that were thoroughly considered and decided against him in the original opinion herein. We have carefully considered his motion for rehearing, and there is nothing new presented that in a"ny way changes our views, or makes it necessary to further discuss the questions decided.

He has also presented a supplemental motion for rehearing, wherein he claims that the statement of facts shows that it is not a statement of the facts, and that a written instrument, signed by the appellant, was introduced in evidence by the state, which was not inserted in the statement of facts, and that the same was lost in the county attorney’s office, and no effort made by the state to substitute the same, or in any other way embody it in the record, so as to make it a complete and true statement of the facts. The law is that when an appellant appeals, the burden is on him to prepare a complete statement of facts, and it is not upon the state to do so. On this point the statement of facts shows that Prank Tirey, the assistant county attorney of McLennan county, produced a statement made by appellant to him, and which was signed by appellant, and it was then introduced in evidence by the state on the trial of this cause. The statement of facts on this point says: “Statement made before Prank Tirey by Mason Nobles offered in evidence (the statement was in writing, and read as evidence to the jury. The statement has been lost or mislaid in the county attorney’s office, and cannot be found. Hence the same is not copied herein.)” The certificate of the court stenographer, to the statement of facts, says: “The above and foregoing statement of facts constitute a true and correct copy of all of the material evidence, and none other introduced upon the trial.” The attorneys for the state and appellant agree as follows: “We, the undersigned attorneys for the plaintiff and defendant, hereby agree that the above and foregoing statement of facts is a true and correct statement of the material facts proved on the trial of said cause.” This is signed by the county attorney for the state and appellant’s attorney for the appellant, and is approved by the district judge.

All this is not only conclusive against' this court, but the appellant herein agreed that the said statement of facts as prepared and agreed to, “is a true and correct statement of the material facts proved on the trial.” Instead of the statement of facts as agreed to, omitting said signed statement by appellant, being against him, it is clearly in his favor. If it was material at all, it must have been against him, for it is shown to have been produced and introduced by the state, and not by him. This presents no error, and could not be the basis of a reversal of this case.

The motion is overruled.