author: HARPER, J. DAVIDSON, J.

text:
    Ex parte BARTEE.
    (No. 3441.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.
    Rehearing Denied March 31, 1915.)
    1. Infants <§=>18 — Delinquency PROCEEDINGS — JURISDICTION—“CbIMINAI. PROCEEDING.”
    A proceeding wherein petitioner was charged with being a delinquent child in that he stole an automobile is not criminal in its nature, and the county court can take jurisdiction, notwithstanding jurisdiction of criminal causes had been transferred to the county court at law.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 18; Dec. Dig. <@=>18.
    For other definitions, see Words and Phrases, First and Second Series, Criminal Proceeding'.]
    2. Infants @==>19 — Delinquent’s Sentence— Sufficiency.
    Relator, who was found to be a delinauent child, was ordered canned to the “State Institution for the Training of Juveniles.” Acts 33d Leg. (1st Called Sess.) c. 6, § 8 (Vernon's Sayles’ Ann. Civ. St. 1914, art. 5228), by which the name was changed to the “State Juvenile Training School,” declared that all inmates sentenced to the first institution should serve out their unexpired term. Held, that the change in the name did not warrant relator’s discharge.
    [Ed. Note. — ¡For other cases, see Infants, Cent. Dig. § 19; Dec. Dig. @=>19.]
    3. Indictment and Information @=>3 — Necessity — Delinquent 'Children.
    Under Acts 33d Leg. c. 112, and 1st Called Sess. c. 6, § 8 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5228), a child can he proceeded against as a delinquent without the filing of an indictment against him.
    [Ed. Note. — For other.cases, see Indictment and Information, Cent. Dig. §§ 9-23; Dec. Dig. <@=>3.]
    4. Infants <@=>16 — Delinquent Children— Proceeding.
    That relator was sentenced to the State Juvenile Training School for a period of not less than two nor more than five years does not render the judgment void, notwithstanding the later law provided for an indeterminate sentence of not more than five years.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 16; Dec. Dig. <@=16.]
    5. Infants <@=>12 — Delinquent Children— Statutes.
    The statute authorizing the quashing of indictments against boys under 17 and girls under 18 years of age, and the institution of proceedings against them in the county court, as delinquent children, is not in violation of the state or federal Constitution; there being no attempt to give the district and county court concurrent jurisdiction of felonies and misdemeanors.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 13; Dec. Dig. <@=>12.]
    6. Infants <@=>12 — Delinquent Children— Statutes.
    The statute authorizing the dismissal of indictments found against boys under 17 and girls under 18, and the institution of proceedings against them as delinquents, is not in contravention of Pen. Code 1911, arts. 1, 3, declaring that no person shall be punished for any act or omission, unless it shall be a criminal offense, for the proceeding is not criminal in its nature, but an exercise by the state of power of parens patrite.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 13; Dec. Dig. <@=>12.]
    7. Jury <@=>21 — Right to Juey Trial — Delinquent Children — Proceeding — Trial by Jury.
    The act providing for proceedings against infants as delinquent children, in place of the ordinary common-law criminal procedure, is not unconstitutional as depriving the infants of trial by jury; the proceeding not being criminal in its nature.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 134-142; Doe. Dig. <@=>21.]
    8.Infants <@=>16 — Delinquent Children— Commitment — Remedies.
    Where an appeal will not lie from a trial adjudging one a delinquent child on habeas corpus, an appeal will lie, or the Court of Appeals may issue an original writ to ascertain whether the child was illegally restrained of his liberty.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 16; Dec. Dig. <@=>16.]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    Ex parte application by Sanford Bartee for a writ of habeas corpus. From a- judgment denying the writ, he appeals.
    Affirmed.
    Wills, Adams & Triplett and A. S. Basket!, all of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was tried by the county court of Dallas county upon a complaint charging that he was a delinquent child, being under 17 years of age, in that he did steal an automobile. This complaint was filed on December 10, 1913. On this complaint appellant was tried as a delinquent child by the judge of the county court of Dallas county, adjudged a delinquent child under the age of 16 years, and he was committed to the State Institution for the Training of Juveniles for an indeterminate term of not less than two nor more than five years. Under this judgment relator was conveyed to the State Industrial School at Gatesville by R. L. Chick, assistant probation officer of the county of Dallas, on the 23d day of December, 1913, and there delivered to the superintendent of the State Industrial School for Boys. The record further discloses that relator escaped from the 'school about the 21st day of last July, and was not apprehended until in December of last year. When found he was taken charge of by W. K. Reynolds as an escape from the State Industrial School, who intended to convey him back to said school, and would have done so, only that relator sued out a writ of habeas corpus before Judge Seay. Upon hearing the case Judge Seay remanded relator to the custody of Mr. Reynolds, and from which judgment he prosecutes this appeal.

Appellant assigns many reasons why he should be discharged, and why the judgment of the district court should be reversed.

1. He alleges that the county court of Dallas county had no jurisdiction to try the ease, he contending that it was a criminal action, and the jurisdiction of the county court had been transferred to the county court at law.

While it is true that the criminal jurisdiction of the county court had been vested in the county court at law, yet we do not think this is a criminal action, for the law provides that, if a criminal action is brought against a boy under 17 years of age, the court may, if he deems it for the best, order the criminal action dismissed, and have him tried under a new complaint as a delinquent child. And the law provides that one who is found to be a delinquent child shall suffer none of the penalties or disqualifications of one who is adjudged a criminal. Upon a trial to decide whether or not a child is a “delinquent,” as defined by the statute, the law provides that the court may make such orders as he deems best for the interest of the child. The law is intended to prevent children, under improper environments, from so remaining, and to place them in such surroundings as to prevent them from becoming criminals. It is more in the nature of providing guardianship for the children, and to make it the duty of such guardian to see that the child is educated and properly trained. It is in no sense a criminal proceeding, and the county court of Dallas had jurisdiction specifically conferred on it by law to try such cases. The object and purpose of the school is stated to be:

“That it shall be the duty of said board and superintendent to arrange that each student of said training school shall receive a reasonable amount of instruction in the school of letters and industrial branch each year. Each inmate shall be given definite instruction and training in some useful occupation. Each inmate shall be given such moral training and discipline as he is capable of receiving. The prime end to be sought by said board is to reform, educate, and train the children committed to the institution into industrious and useful law-abiding citizens, strengthen their self-control, and place them in a moral environment that will build character and inculcate correct ideas of civic virtue and responsibility.”

2. Relator’s next contention is that, as the judgment ordered him carried to the “State Institution for the Training of Juveniles,” the judgment is void, because no such institution is in existence. The law which changed the name of the institution from the “State Institution for the Training of Juveniles” to the name of the “State Juvenile Training School” specifically provides in section 8 (of chapter 0, Acts 33d Leg. 1st Called Session [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5228]) that all inmates sentenced to the State Institution for the Training of Juveniles shall only be required to serve out their unexpired terms in said institution, thus clearly evidencing that it was the intent of the Legislature, in changing the name of the institution, to continue it as it theretofore existed, with such modifications and changes as were provided for in the law.

3. The next contention is that there is no authority to order him placed in the training school until an indictment has been returned against him charging him with a crime. The acts of the Thirty-Third Legislature, regular session (chapter 112),- and special session (chapter 6), authorize a child to be proceeded against upon complaint duly filed, and, if an indictment is returned, charging him with a criminal offense, for its dismissal, and proceedings to be had upon complaint charging him with being a delinquent child. The complaint was sufficient to charge relator with being a delinquent under the provisions of chapter 112, Acts of Regular Session of 33d Legislature.

4. That the judgment orders relator committed to the training school for an indeterminate period of not less than two nor more than five years, in accordance with the provisions of the old law, would not render it void. The present law provides for his detention for an indeterminate period of not more than five years, and the judgment should be read in the light of the law as it now exists, and, as it commits him for an indeterminate period that is now provided, it would be but an irregularity.

5. The judgment shows that the order was not suspended, and the contention that the commitment was suspended is not sustained by the record before us.

6. The next contention is that the entire acts are unconstitutional and violative of the provisions of the state and federal Constitutions. We do not think that an act of the Legislature, which provides that if a boy under 17 and a girl under IS years of age shall commit an offense which is defined by the Criminal Code as an offense, upon making proof of their age, under an application to the court in which an indictment or information charging them with such an offense is pending, which provides that the judge of the court may order the criminal ease dismissed, if he deeins it advisable, and have such person placed where they will be properly reared and trained, is violative of any provision of the federal or state Constitutions. The law does not seek to give the district and county courts concurrent jurisdiction over crimes of the grade of felonies and misdemeanors. Of course, the county court could not be given jurisdiction over a felony charge under our Constitution. . The offense relator is alleged to have committed is not a felony. Sparks v. State, 174 S. W. 351, decided at this term of the court. But, if it were a felony, the law provides for the dismissal of any charge of felony or misdemeanor, and for a complaint charging those things which would show that relator was a delinquent child. The law can provide, before conviction, for a district judge or any other officer to excuse or relieve one from the penalty assessed for a violation of the law of the grade declared to be a felony. It is only after conviction that such authority is given to the Governor alone by the Constitution.

7. Appellant was not prosecuted for a criminal offense, and therefore the act is not in contravention of articles 1 and 3, tit. 1, of the Penal Code. Appellant was only tried to determine whether or not he was such a child, and his environments such that the circumstances required that the state interpose and he be given an opportunity to become a law-abiding and useful citizen upon reaching manhood’s estate.

Our able Assistant Attorney General has exhaustively reviewed the authorities in briefing many of the questions raised by relator, and we take the liberty of copying the following excerpts therefrom:

“The Supreme Court of Illinois, in the case of Lindsay et al. v. Lindsay et al. [257 Ill. 328, 45 L. R. A. (N. S.) 908, Ann. Cas. 1914A, 1222] 100 N. E. 892, in a most able opinion rendered by Justice Farmer on February 20, 1913, uses the following striking language: ‘It is said by the editor of the eleventh and latest edition of Wharton’s Criminal Law’ that the Juvenile Court Act passed by the Legislature of the state of Illinois in 1899 is ‘the first juvenile court act, as such acts are now generally known, adopted by any state. Similar acts have since been adopted by several other states, and have been uniformly sustained as valid legislation, except in the state of Michigan, where the acts held invalid were subject to objections not found in the Illinois statute’ — ■ and I respectfully submit to this court that these objections are not found in our statute. ‘Our statute and those of similar character treat children coming within their provisions as wards of the state to be protected, rather than as criminals to be punished, and their purpose is to save them from the possible effects of delinquency and neglect liable to result in their leading a criminal career. The purpose of such legislation is, we think, rightfully claimed to be unquestionably in advance of previous legislation dealing with children as criminals.’
“Plaintiffs in error contended, among other things, in the Lindsay Case, supra: First, that the act known as the Juvenile Court Act was in violation of the federal Constitution and the Constitution of Illinois; second, that it created a new court termed the ‘Juvenile court’; third, that it denied ■ the constitutional right of trial by jury; fourth, that it deprives children and the parents of children of liberty, property, and the right to the pursuit of happiness, without due process of law; and, fifth, that it reduced the child to a state of involuntary servitude in cases other than as a punishment for crime. Further on in this opinion the court said: ‘Our statute does not, as contended, create a new court unauthorized by the Constitution. The decree which this writ of error is sued out to review was rendered by a judge of the circuit court of Cook county, designated by the other" judges of said court, pursuant to authority conferred by the act, to hear causes arising under said act. The judge so sitting is a circuit judge, and the court in which the proceedings were held is a circuit court.’
“In the case of Commonwealth v. Fisher [213 Pa. 48] 62 Atl. 198 [5 Ann. Cas. 92] the Supreme Court of Pennsylvania, in a similar case, held: ‘That the act did not create a new court; that the court of quarter sessions was a constitutional court; and the Legislature, recognizing it as an appropriate one upon which to confer jurisdiction in the care of neglected and unfortunate children, recognized by the state as its wards and requiring its protection, had the constitutional power to confer such jurisdiction upon that court.’
“Again, in the Lindsay Case, supra, the court said: ‘Our statute gives circuit and county courts concurrent jurisdiction in cases arising under it; and, while it provides that the court exercising the powers and jurisdiction conferred by the act may for convenience’s sake be called a juvenile court, it does not create a new court, but delegates powers to constitutional courts already existing. The prerogative of the state, arising out of its power and duty, as parens patriae, to protect the interests of infants, had always been exercised by courts of chancery. In Wellesley v. Wellesley, 2 Bligh (N. S.) 142, Lord Beresford said the right of a chancellor to exercise such powers had not been questioned in 150 years. This jurisdiction is by the juvenile court act conferred upon juvenile courts.’
“Further quoting f;'om the Lindsay opinion, supra: ‘Section 2 of the act under consideration authorizes a trial by a jury of six upon the demand of any person interested, or the judge may of his own motion order a jury of the same number to try the case. This, it is claimed, is not such a jury as the Constitution guarantees. This contention of plaintiffs in error, and also the contention that the act deprives the child of his right to personal liberty, were decided contrary to the position of plaintiffs in. error in Petition of Ferrier, 103 Ill. 367 [43 Am. Rep. 10], and County of McLean v. Humphreys, 104 Ill. 378. In the Ferrier Case, Winifred Breen, a girl nine years old, was found to be a'truant from school, without proper parental care, and in imminent danger of ruin and harm. In a proceeding in the county court under “An act to aid industrial schools for girls,” passed in 1879, she was committed to an industrial school for girls at Evanston, and one of the vice presidents of the school was appointed her guardian, in accordance with the provisions of the act. That act authorized a trial by a jury of six. It' was contended in this court that the act violated the constitutional provision that no person should be deprived of liberty without due process of law. This court held that the jurisdiction conferred by the act upon the county court was the same character of jurisdiction exercised by courts of chancery over the persons and property of infants, having its foundation in the prerogative of the state flowing from its general power and duty, as parens patriae, to protect those who have no other lawful protector. The court said: “The right to liberty, which is guaranteed, is not that of entire unrestrainedness of action. Civil government in itself implies an abridgment of natural liberty. ‘Civil liberty, which is that of a member of society, is no other than natural liberty, so far restrained by human laws, and no farther, as is necessary and expedient for the general welfare.’ 1 Blackstone’s Com. 125. It is not natural, but civil, liberty of which a person may not be deprived without due process of law. There are restrictions imposed upon personal liberty which, spring from the helpless or dependent condition of individuals in the various relations of life, among them being those of parent and child, guardian and ward, teacher and scholar. * * * These are legal and just restraints upon personal liberty, which the welfare of society demands, and which, where thei'e is no abuse, entirely consist with the constitutional guaranty of liberty. See Cooley’s Const. Lim. 339, 342. We find here no more than such proper restraint which the child’s welfare and the good of the community manifestly require, and which rightly pertains to the relations above named, and find no such invasion of the right to personal liberty as requires us to pronounce this statute to be unconstitutional.” On the trial of the case before the county court, a jury of 12 men was demanded and was denied. The statute, as we have said, provided for trial by a jury of six. Upon this question the court said: “The constitutional provision that ‘the right of trial by jury, as heretofore enjoyed, shall remain inviolate,’ does not apply. This is not a proceeding according to the course of the common law in which the right of a trial by jury is guaranteed, but the proceeding is a statutory one, and the statute, too, enacted since the adoption of the Constitution. There was not, at the time of such adoption, the enjoyment of a jury trial in such a case. In reference to this subject, generally, Judge Cooley, in his work on Constitutional Limitations, p. 319, remarks: ‘But in those cases which formerly were not triable by jury, if the Legislature provide for such a trial now, they may doubtless create for the purpose a statutory tribunal composed of any number óf persons, and no question of constitutional power or right could arise.’ ” ’
“In County of McLean v. Humphreys, 104 Ill. 378, where the validity of the Illinois act was again attacked, the court said: ‘It would be difficult to conceive of a class of persons that more imperatively demands the interposition of the state in their behalf than those we have just enumerated, and for whose benefit the act under consideration was adopted, and it would be a sad commentary on our state government, if it is true, as is contended, there is no constitutional power in the Legislature to provide, by suitable legislation, for their education, control, and protection. It is the unquestioned right and imperative duty of every enlightened government, in its character of parens patrise, to protect and provide for the comfort and well-being of such of its citizens, as, by reason of infancy, defective understanding, or other misfortune or infirmity, are unable to take care of themselves. The performance of this duty is justly regarded as one of the most important of governmental functions, and all constitutional limitations must be so understood and construed as not to interfere with its proper and legitimate exercise. We perceive no force in the objection that the act in question is an infringement upon the personal liberty of the citizen, as guaranteed by the Constitution. The restraints which the act imposes are only such as are essential to the comfort and well-being of the unfortunate class of persons who are brought within its provisions. All governmental and parental care necessarily imposes more or less wholesome restraint, and we see nothing in the act which looks beyond this. Assuming, then, as we do, the Legislature has the right to provide for the education, support, and control of these unfortunate beings, it clearly has the right also to provide the necessary in-strumentalities or agencies for the accomplishment of these objects.’
“I have quoted extensively from the three Illinois cases above cited for the reason that their statute is similar to ours, and for the further reason that their act was passed after their Constitution was adopted, and so was ours, and for the further reason that our statute provided, almost verbatim, the same definition as to what constitutes a delinquent child that their statute does. Furthermore, their statute provided the same as ours, that a jury of six could be had upon demand of any person interested. And I quote these cases for the further reason that &ese Illinois decisions (Illinois being the first state to pass a juvenile act) base the constitutionality of said act upon the fact that matters of this kind are probate proceedings; that county courts have, from time immemorial,' had jurisdiction in probate matters. And our Texas statute bases it upon the same principle of law, for the very act itself provides that the child may, at the discretion of the judge, be placed in any private home, to be visited at various intervals by the probation officer. The very word of the statute in creating the position of probation officer shows clearly that the Legislature regarded same as probate proceedings, and regarded a delinquent child as a ward of the state, in need of its protection and education, and not as a criminal to be punished in a penal institution. The Illinois statute was held constitutional.
“In the case of Pugh v. Bowden [54 Fla. 302] 45. South. 499 [14 Ann. Cas. 816] the Florida juvenile act was held constitutional.
“In the case of Mill v. Brown [31 Utah, 473] 88 Pac. 609 [120 Am. St. Rep. 935], the Utah juvenile act was held constitutional.
“In the case of In re Sharp [15 Idaho, 120] 96 Pac. 563 [18 L. R. A. (N. S.) 886], the Idaho juvenile act was by the court held constitutional.
“Acts of other states, not known as juvenile court acts, but authorizing the state to take the custody of neglected, abandoned, and delinquent children and commit them to institutions established and maintained for their care, and authorizing them to be placed in good homes to be selected by those to whose custody they were committed, have been frequently before the courts, and have almost uniformly been sustained. Whalen v. Olmstead [61 Conn. 263] 23 Atl. 964 [15 L. R. A. 593]; State v. Kilvington [100 Tenn. 227] 45 S. W. 433 [41 L. R. A. 284]; State v. Brown [50 Minn. 353 ] 52 N. W. 935 [16 L. R. A. 691, 36 Am. St. Rep. 651]; Board of Children’s Guardian, etc., v. Shutter [139 Ind. 268] 34 N..E. 665 [31 L. R. A. 740]; In re Kelley [152 Mass. 432] 25 N. E. 615. See, also, chapter on juvenile courts in the eleventh edition of Wharton’s Criminal Law.
“In the ablest case which I have been able to find bearing on this subject, viz., the Lindsay Case, supra, that case was reversed, after holding that said act was in every particular constitutional, upon the one ground that relator’s mother was not shown by the evidence to be an improper person to be guardian of her child. But that question is not in the case now before this court. The authorities are very slow to hold that a child can. be taken away from its parents, who by all law, both human and divine, are its natural guardians. The authorities, wherever and whenever that question has been raised, seem to hold with the case of Ex parte Percy McDowell, 172 S. W. 213, recently decided by this court and recorded in Opinion Book, vol. 15, p. 401. In the Percy McDowell Case, Judge Davidson, ⅛ a most excellent and well-considered case, speaking for the court, said: ‘Without going into a discussion of the constitutional questions, or how far the Legislature may go in defining what it takes to constitute a delinquent child and the disposition to be made of him by the courts under that theory, we are of opinion that the Legislature had left it discretionary with the court trying the case as to.- the disposition of the child. Of course, legislation should be cautiously passed which undertakes to take from the parent * * * the custody of their children. It is striking close at the bottom principle of society to take from the parents the custody and care of their children, and in the mind of the writer the facts ought to show, first, clearly and conclusively that the parents were not fit persons for raising their children. Society, it has been said, has a sufficient interest in the welfare of children to guard against viciouSness in their training, by taking charge of them in early life and training them for their proper sphere in society; but this should always be done cautiously and carefully, and to the best interest of the children.’ Judge Davidson then quotes article 1203 of our Revised Statutes. Further speaking for the court, Judge Davidson says: ‘It would seem from these provisions that the court trying the case has the right to control, manage, and direct the movements of the child, as well as those to whom he has committed the custody of the child.’
“In re Mason (January 21,1892) 3 Wash. 609, 28 Pac. 1025, it is said that homeless and incorrigible minors committed to the state reform school ‘are not subject to the penal laws of the state, have no right to trial by jury, * * * and do not come within pardoning power any more than persons committed to the insane, asylums. They are wards of the state, which stands to them in loco parentis, and whose courts are its agents to make commitment, after which the trustees take full charge and control of them.’ The summary commitment by virtue of a statute of an incorrigible minor to a house of refuge is not imprisonment without ‘due process of law.’ See Ex parte Grouse, 4 Whart. [Pa.] 9. In .the Ex parte Crouse Case just cited, the court said: ‘The house of refuge is not a prison, but a school. Where reformation, and not punishment, is the end, it may indeed be used as a prison for juvenile convicts who would else be committed to a common gaol; and, in respect to these, the constitutionality of the act which incorporated it stands clear of controversy.’ And ■again: ‘As to abridgment of indefeasible rights by confinement of the person, it is no more than what is borne, to a greater or less extent, in every school; and we know of no natural right to exemption from restraints which conduce to an infant’s welfare.’
“The decision in Roth v. House of Refuge, 31 Md. 329, is based entirely upon and follows Ex parte Grouse, supra.
“In Garrard v. State, 116 Ind. 98 [17 N. E. 912] it is said: ‘We think it settled in accordance with principle that the Legislature has power to provide for the reformation of boys who are entering upon a career of wickedness, by prescribing measures for committing them to a reformatory institution.’
“The Ohio statute authorizes a grand jury to whom any accusation is made against a minor under 16 years to return to the court that such minor is a proper subject for commitment to the house of refuge, and provides that the court shall thereupon order such commitment. It is held that such commitment does not infringe upon the constitutional 'right of trial by jury, or the rights of an accused in criminal prosecutions. See Prescott v. State, 19 Ohio St. 184 [2 Am. Rep. 388].
“Again: The provision for the commitment of homeless children is valid, although no notice is required to be given to parents, but the necessity of detention can be inquired into at any time on habeas corpus. House of Refuge of Cincinnati v. Ryan, 37 Ohio St. 197. In this last case it is said: ‘The commitment is not designed as a punishment for crime, but to place destitute, neglected, and homeless children, and those who are in danger of growing up as idle and vicious members of society, under the guardianship of the public authorities, for their proper care, and to prevent crime and pauperism. As to such infants, it is a home and a school, not a prison.’
“In Farnham v. Pierce, 141 Mass. 203 [6 N. E. 830, 55 Am. Rep. 452] a statute authorizing the summary commitment of minors who are made to appear to any magistrate to be without salutary control is held to be not in conflict with the Declaration of Rights, but that such commitment is subject to be terminated by a showing by the parent that cause for’it does not exist.
“In the case of Ex parte Liddell [63 Cal. 640, 29 Pac. 254], cited in 16 L. R. A. 692, note, the court says that the power of the state is clear ‘to arrest the downward tendency of those who have offended against its laws and manifested a disposition to follow a criminal career, by placing them in an institution where they, will receive the care, education, and discipline necessary to prepare them for honorable citizenship.’
“In the case of State ex rel. Carrie Olson v. Brown [50 Minn. 357, 52 N. W. 936], 16 L. R. A. 693 [36 Am. St. Rep. 653], in a very able opinion of the Minnesota Supreme Court, rendered by Justice Collins, the court said: ‘We do not propose to add to the very many pages which, in the reports and text-books, have been ■devoted to the support of the position, now taken almost universally by the courts, that a person committed to the care and custody of a board in charge of an institution of the character of the Minnesota state reform school is not “punished,” nor is he “imprisoned,” in the ordinary meaning of those words. Hence the constitutional provision which regulates and limits the jurisdiction of justices of the peace in criminal matters had no application. We can do no better than to call attention to some ■of the loading authorities on this subject, and to quote from the case first cited the clear language used therein by the late Chief Justice Ryan.’ Then follow numerous authorities, and the words of Judge Ryan, as expressed in the Wisconsin Case (Milwaukee Industrial School v. Milwaukee County Sup’rs, 40 Wis. 328, 22 Am. Rep. 702), are given as follows: ‘And in the first place, we cannot understand that the detention of the child at one of these schools should be considered as imprisonment, any more than its detention in the poorhouse, any more than the detention of any child at any boarding school,' standing, for the time, in loco parentis to the child. _ Parental authority implies restraint, not imprisonment. And every school must necessarily exercise some measure of parental power of restraint over children committed to it. And when the state, as parens patriae, is compelled, by the misfortune of a child, to assume for it parental duty, and to charge itself with its nurture, it is compelled also to assume parental authority over it. * ⅜ ⅜ The state does not, indeed we might say could not, intrude this assumption of authority between parent and child standing in no need of it. It assumes it only upon the destitution and necessity of the child, arising from want or default of parents. And, in exercising a _ wholesome parental restraint over the child, it can be properly said to imprison the child no more than the tenderest parent exercising like power of restraint over children. This seems too plain to need authority; but the cases cited for the respondent and others amply sustain our view.’
“In the well-considered case of Marlowe v. Commonwealth [142 Ky. 106] 133 S. W. 1137 et seq., Justice Lassing, having under consideration the juvenile court act of Kentucky, which is very similar to ours, and in a case wherein three grounds were relied on for reversal: First, that the creation of the juvenile court is not authorized by the Constitution; second, the judgment of the court, being for the confinement of the delinquent for an indeterminate period or until she reached her majority, is the imposition of such punishment as clearly authorizes an appeal under the Code regulating criminal practice; and, third, that it was contended that the act was unconstitutional in that it denied to the delinquent the right of trial by jury — Held: First, that the act did not create a new court, but simply conferred additional powers upon the county court; and, second, that, since the act itself contained no provision for appeal in such cases, no appeal would lie, and that any effort at release would have to be instituted in a habeas corpus proceeding before the court.
“In regard to the matter of appeal in the Marlowe Case, supra, the court said: ‘The juvenile court act is a complete compendium of the law upon this subject, and, no provision being made therein for an appeal,, the trial judge properly held that no appeal could be prosecuted from the order of the county court. If, in its practical application, the act is found to be incomplete or imperfect, the remedy lies in an appeal to the Legislature for relief in the shape of an amendment authorizing an appeal from the action of the county court. Until such step has been taken, the courts are without power to grant the relief asked.’
“Further speaking the court said that the act under consideration contained the following language: ‘This act shall be liberally construed to the end that its purpose may be carried out, to wit, that the child would be cared for as would be done by a court of chancery, and that it may be trained and disciplined; that the care, supervision, and discipline of the child shall approximate as nearly as may be that which should be given by its parents. The proceedings involving the child shall not be deemed to be criminal proceedings, and the child shall not be considered as a criminal, but as a child in need of aid, encouragement and guidance.’ I call the court’s attention to this language for the reason that the concluding article of our statute (Revised Civil Statutes of 1911, p. 471) reads as follows: ‘This chapter shall be liberally construed, to the end that its purposes may be carried out; that is, that the interests of the child and its reformation shall, at all times, be the object in view of proceeding against it.’
“Further speaking in the Marlowe Case, supra, the court says: ‘We may premise our citation of authorities, however, by a general statement that this statute is clearly not a criminal or penal statute in its nature. Its purpose is rather to prevent minors under the age of 16 from prosecution and conviction on charges of misdemeanors, and in that respect to relieve them from the odium of criminal prosecutions and punishment. Its object is to confer a benefit upon both the child and the community in the way of surrounding the child with better and more elevating influences, and of educating and training him in the direction of good citizenship, and thereby saving him to society and adding a good and useful citizen to the community. * ⅜ ⅜ It is well enough, perhaps, to say here and now that the Constitution grants no absolute right of appeal from an order or judgment of a probate court.’
“And again: ‘Since the right of appeal is purely a matter of legislative discretion, and the Legislature has not seen proper to provide for an appeal in cases of this character, and the proceeding is not criminal in its nature, appellant is afforded no ground for complaint because the circuit court dismissed her appeal.’
“In the case of Reynolds v. Howe, 51 Conn. 472, where a similar question was presented, the court said: ‘But, as we have shown, the boy is not proceeded against as a criminal. Nor is confinement in the State Reform School a punishment, nor in any proper sense imprisonment. It is in the nature of a parental restraint. It is a mode of education to usefulness ; compulsory, but not for that reason improper; and the restraint is a necessary incident of the compulsory education. It is all made necessary by the corrupting influences that surround.and are likely to control the boy, and by the need of society for protection; and that necessity justifies the proceeding. To make the restraint and instruction of any permanent value, they must be continued for a long time. Habits are not changed in a month; not often in a year. This is specially true of bad habits. The attempt to reform viciously inclined boys would be an utter failure if limited to a few months.’
“The Marlowe Case, supra, is cited in addition to the other authorities mainly because, while this court is passing upon the validity and constitutionality of this statute, and while all of relator’s objections are being considered, I desire, on the part of the state, to raise the question that, since no appeal from the action of the trial judge in committing a minor to the State Industrial School for Boys at Gatesville is provided for in our statute, no appeal will lie in this state in such a case; and that this court will only inquire into such matters on habeas corpus proceedings. I cite the Marlowe Case, supra, in support of this proposition.
“I respectfully submit that this case should be affirmed and relator returned to the State Industrial School for Boys at-Gatesville, Tex., in accordance with the original commitment of the trial judge, and that this act is constitutional.”

In passing on the authorities cited by the Assistant Attorney General, we wish to say that we do not think an appeal would lie to this court from a trial adjudging one a delinquent child, but that on habeas corpus an appeal would lie, or we would have authority to issue an original writ, to determine whether or not one had been tried in accordance with the provisions of this law, and whether or not one was illegally restrained of his liberty.

The judgment is affirmed.

DAVIDSON, J.

(dissenting).

I said in the recent case of McCallen v. State, 174 S. W. .611, decided by Presiding Judge Prendergast, that I thought the Juvenile Act was not intelligible to such extent it ought to be held inoperative. The incongruities are made the more apparent by each succeeding opinion which upholds it.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Iqdexes

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


source: Caselaw Access Project

license: Public Domain

text:
    PASCHAL v. STATE.
    (No. 3442.)
    (Court of Criminal Appeals of Texas.
    March 10, 1915.
    Rehearing Denied April 7, 1915. Dissenting Opinion, April 8, 1915.)
    1. Homicide <§=>157 — Murder — Evidence-Previous Quarrels.
    In a prosecution of a husband for murder of his wife, where the testimony as a whole showed a continuous course of ill treatment from their marriage until the night of the fatal injuries, evidence of quarrels and assaults eight years prior to the death was properly admitted in evidence; such testimony being admissible to show malice and a specific intent to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 288-292; Dec. Dig. <§=>157.]
    2. Homicide <§=>310 — Assault with Intent to Murder — Instructions.
    Where, in a prosecution of a husband for murder of his wife, all the evidence showed conclusively that the woman died from injuries received at defendant’s hands, the court did not err in refusing to submit to the jury the issue of assault with intent to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 657-661; Dec. Dig. <§=>310.]
    3. Homicide <§=>236 — Murder — Cause of Death — Sufficiency of Evidence.
    In a prosecution of a husband for murder of his wife, evidence held to show that the woman died from injuries inflicted by defendant.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 495-499; Dec. Dig. <§=^236.]
    4. Homicide <§=>230 — Murder — Intent to Kill — Sufficiency of Evidence.
    In a prosecution of a husband for murder of his wife, evidence held sufficient to show a specific intent to kill on the part of defendant, although the character of the weapon used was not shown.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 478; Dec. Dig. <§=>230.].
    5. Criminal Law <§=>763, 764^-Weight of Evidence.
    Where the character of an assault made upon defendant’s wife, as shown by the injuries inflicted on her, was such that the jury, in a prosecution of the husband for her murder, was authorized to find that he used a deadly weapon, instructions were properly given that, if the jury found beyond a reasonable doubt the defendant with his hands or feet, or any instrument or object,-or in any manner unlawfully, killed the woman, and further believed from the evidence beyond a reasonable doubt that the instrument or object used, if any, by the defendant, was a deadly weapon, defendant was guilty of murder; such charge not being on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dee. Dig. <§=>763, 764.]

      6. Criminal Law <S=»829 — New Trial — Instructions — Repetition.
    A requested charge that is fully covered by another charge need not be given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig'. § 2011; Dec. Dig. <S=829.]
    7. Criminal Law <®=o1038 — Appeal and Error — Grounds of Review — Evidence — Homicide — Dying Declaration.
    In a trial for wife murder, a neighbor who had been with the wife previous to her death testified that she had stated on Saturday that medicine could do her no good; that she was all kicked to pieces. Later a physician testified that the wife must have begun to be delirious or irrational on Thursday or Friday. The court gave defendant’s counsel his charge, and a number of special charges were prepared covering every one of the exceptions or objections to the general charge, but none on the question whether testimony of the neighbor should be considered by the jury. Held that, although it would have been proper for the court to have instructed that such testimony should not be considered unless the jury found that the deceased was rational when she made the declaration, nevertheless, the neighbor being very positive, that deceased was sane and conscious of approaching death, and the doctor not having been present and not being very positive as to the exact time when deceased became irrational, in the absence of any objection or special charge of defendants, the failure of the court to instruct on the point was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. <®^>1038.]
    Davidson, J., dissenting.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Lee Paschal was convicted of murder, and he appeals.
    Affirmed.
    Walter Collins and Shurtleff & Cummings, all of Hillsboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of murder, and his punishment assessed at imprisonment in the penitentiary for life.

A brief statement of the evidence should be made in order that the holding of the court may be clear on the various questions raised.

Mrs. Mattie Underwood testified that she knew deceased, “and up to two years ago she had washed for deceased off and on ever since she had married appellant; that she had heard defendant on various occasions curse and abuse his wife (deceased) from about two years prior to her death clear back to the time they were married.”

Mrs. Barnes testified that she was the mother of deceased, and that deceased and appellant had been married 10 years. During this time they had separated four times. The last time they remained apart for 2 ½ years, commencing to live together again about 2 years before her daughter’s death.

W. A. Marlar testified: That he had lived a neighbor to appellant and his wife something more than a year immediately preceding deceased’s death. That on the night of the ice cream supper in Woodbury (fixed in the record as the 17th day of last July) his “attention was attracted to some smothered screaming at Lee Paschal’s home. At the time I heard this smothered screaming I was lying on the bed, and I got up and went out on the east end of the south porch, and I heard that smothered screaming, saying, ‘Oh, Lord, don’t kill me,’ or, ‘You are killing me,’ I could not tell which, and I heard Lee Paschal say: ‘Come out of there, you G — d d — n son of a b — ch; you have already cost me a thousand dollars.’ That was Lee Paschal that said that; I recognized his voice. The first time that I heard the screaming it was just loud enough" for me to hear it; seemed like it was down in a hole and smothered up or something. It was not distinct.” 1-Ie gave as his reason for not going to the house that these occurrences were common at the home of appellant while he lived close to him. That about six months before her death appellant’s wife came to his home about 12 or 1 o’clock at night. He testified:

“She ran in and fell on the gallery exhausted. She had her hand cut and wrapped up with a handkerchief or white piece of cloth, or something of the kind. She come in and says; ‘Mr. Marlar, I don’t want to confuse you all, but I have come here for protection. Lee is after me trying- to kill me.’ Mrs. Bertha Paschal stayed that night and the next day at my house. Lee Paschal came up there the next morning and called for her. He came up to the gate, and I was out there at the door that goes into the cellar, and I says, ‘What do you want?’ ■ Lee says, T want Bertha.’ He had a butcher knife in his pocket, about that long (indicating), with the blade sticking up, and he pulled it out and waved it around that way, and I says something to him, and he left. Mrs. Paschal has been at my house twice, but I don’t remember whether the other time was before the one I have just related or afterwards.”

Curtis Marlar testified that on the night of the I7th of July he was awakened by the noise at appellant’s house, and heard appellant say: “You G — d d-n son of a b — ch; you have already cost me a thousand dollars.”

A. J. Paschal, the little nine year old son of appellant and deceased, testified:

“Shortly before my mother died, I remember my daddy coming home one night. I heard my daddy coming home, and mamma and I got up and went in an old room that we was not using and made us a pallet and went to sleep. When daddy first got home he hunted us, and he couldn’t find us, and he got him a quilt and lay down and went to sleep and slept about an hour. When he woke up, he got up and struck matches and found us. When he found mamma lying down on the pallet, he says to her: ‘Come out of there, G — d d-n you; you have-already cost me a thousand dollars.’ And he come in there and got a stick, and he tried to hit her with it, and he was so drunk she could outhold him. She would catch hold of the stick. He throwed things at her, but he didn’t hit her. It was dark in there, and I could not see what he was doing all the time. It was so dark I couldn’t see. While daddy was doing this to mother, she said, ‘You are killing me.’ She said that all the time. My mamma told daddy while he was in the room there hitting her with the stick and throwing things at her that he was killing her, and she got out of the room and got out on the gallery, on the front gallery. When she got out there, daddy pulled her through the window by the hair of her head. After he pulled her through the window, he never pulled her no further. She was on the gallery when he pulled her through the window, but I don’t know whether she was laying down or standing up, or what; I was in the house, and it was dark, and I could not see. Mamma was saying then that: ‘Oh! You are killing me.’ ”

He said his father was drunk that night. That he also tried to hit his mother with a seine pole, but he was so drunk he could not hit her with it. That “after daddy had hit mamma she laid there on the pallet. After he had pulled her in the room through the •window, he told her he was going to set fire to the pallet. He would strike matches and stick the matches under the quilt, but the quilt would smother them.” He says that his mother complained that her side hurt her, her head hurt, and her back hurt. The next day he saw bruises on his mother’s back.

Mrs. N. E. Sherrod testified that she went to see Mrs. Paschal on Saturday before she died, and in a conversation with her she asked her:

“ ‘Bertha, what about the medicine? Lee is gone, and Mrs. Paschal is gone, and,’ I says, T don’t know nothing about it.’ ‘Well,’ she says, ‘Granny Sherrod, its no use to give me that old medicine, for how can I live.’ She says, T am dying from mistreatment.’ I says, ‘Honey, how; what is the matter?’ ‘Well,’ she says, ‘Lee got drunk on that nasty old whisky and came in and just beat and kicked me all to pieces.’ Well, I asked her where he kicked her. ‘In the side and other places,’ she said, ‘but I am kicked all to pieces,’ she says. ‘He has told me, he accused me of turning him in, and he told me he would kill me for it if it took him 10 years.’ ”

The state without objection, introduced an information charging appellant with making an aggravated assault on his wife on June 2, 1913, and his plea of guilty thereto.

Over the objection of the defendant, the state was permitted to prove by Mrs. Pearlie Riley: That, some seven or eight years ago, •Mrs. Paschal was at her home on a visit and appellant came and tried to make her go home.

That “he first came and asked where the men folks was, and we told him — I told him where they was, and he went away, and he came again, and the second time he came is when he raised a racket with his wife and told her that he was going to make her go home with him, and she refused to go, and he just beat her and choked her — I thought he had killed her — and stamped her and cursed her. He beat her in the face first with his fists, and then he choked her about two or three minutes, choked her until she was right black and could not speak. I did not see him beat her with anything besides his fists. He tore off part of her clothes and taken his knife out and cut the rest of them off, and then he stamped her with his feet. She was right out in my yard when he stamped her, after he had torn and cut her clothes off of her.” That he said at that time he was going to kill her.

Also over objection of appellant, Prof. S. P. Martin was permitted to testify that some seven or eight years ago he heard swearing and hollering at A. J. Paschal’s house; that this attracted his attention, and he looked and saw deceased run out of the back door of the house and go around the house; that appellant was running after her cursing and swearing; that the language appellant used was very profane. This witness also testified that at the time of the death of Mrs. Paschal he lived near them. To quote his testimony:

“I have heard the defendant, Lee Paschal, curse and abuse Mrs. Bertha Paschal during her lifetime. I heard of the death of Mrs. Bertha Paschal. I was in Woodbury at that time. I remember the Woodmen having an ice cream supper along about some time in July at Wood-bury. I heard cursing down there about that time, even that night, swearing, cursing, and loud talking. I think that I would recognize his voice, and I did recognize it as being his voice. At one time during that night I heard something like some one hollering down there, but I could not say whether it was a child hollering or a woman hollering. I don’t know; I wasn’t there. I did hear some one hollering down there. I heard the defendant saying, ‘G — d d-n,’ or something to that effect, and I heard him say another time, at the same time, something about, ‘You have cost me so much’; but I didn’t just exactly understand the amount he said — just cursing and swearing. I can’t recall the exact language that he used, but it was very profane language. I heard the racket, of course; I could not well avoid hearing it. And I heard some one whom I took to be Mr. Paschal say, ‘G — d d-n you,’ or something to that effect, ‘You have done something,’ and I think I understood him to say, ‘You cost me something,’ but I could not say now what amount, or what it was. He cursed on some little bit, swearing along about that time, and I think I heard some ■ one seem to holler about that time; I could not say whether it was a child, or woman, or a man. I just heard the noise, but never paid very much attention to it at that time. I will have to say that I have heard him curse down there before that night, quite a number of times within the previous year or two or three years; that is, while he lived below me there.”

Mrs. Lem BrowDing testified, she is a cousin of appellant, and when his wife died she proposed to appellant that she and some other ladies present wash and dress the body.' Appellant said he had an undertaker employed who would do this work. However, as the undertaker did not come for some time, the ladies did wash and dress deceased, and she says:

“While we were dressing her for burial, I saw some wounds on her body. There was one wound on her left side up and down this way (illustrating), and two on her back, and her abdomen was just out of its place somehow or another. The wound on the left side was a dark appearing place, and it was swollen right smart, and it was in a ridge, swollen up above the other flesh here. I don’t recall whether the wound on the side was large or small; I don’t remember about this. I could not sáy just how large it was, but it was way up above the other flesh, just swollen right sharp. It would cover a space of about four inches, I suppose. There were two wounds on the back, one right below the shoulders, and one between the shoulders and the hip. This place down on her abdomen was discolored, but I don’t know how large it was; it just seemed to me like it was just pressed up. It would cover a right smart space, about two or three inches, looked like to me.”

Dr. J. D. Hunt testified: That tie was called in on July 20th — three days after the witnesses fix the time that appellant made the assault, and about one week before Mrs. Paschal died. Appellant and his mother were present. That he was told nothing of the assault, and on'making examination he found the womb misplaced. This he remedied, and, as she had some fever, he prescribed medicine for the trouble he located and for the fever. At this time his attention was not called to the fact that her head was hurting her, but on a later visit he did ascertain that fact, and found her scalp sore, but he did not locate or discover any fracture of the skull. He was not informed at any time by appellant or deceased she had received any injury; however, before her death she suffered from lepto-meningitis, a disease produced by injury to the head. He said she died from the result of a fracture of the skull, which caused the lepto-meningitis. At the time of Mrs. Paschal’s death, no one knew that she had received this fracture. However, as the ladies discovered the wounds on the body in dressing deceased for burial, the fact she died from lepto-meningitis, which is occasioned by an injury to the head, and other circumstances, caused an autopsy to be held, and Dr. Hunt testifies:

“After this lady died, I made an autopsy and examined her head. We hared the skull, taken the scalp off and bared the skull. We took the scalp and flesh and everything off, baring the skull. After doing that, we found there was a fracture on the left side of the head just above the ear. It was on the parietal bone, the middle bone. There is two bones comes together here in a wedge shape like. X suppose this fracture was approximately something near two inches from the left ear and above it. The fracture was something over an inch, possibly an inch and a half, across from one surgical suture to the other. By suture of the skull, I mean where the skull comes together; this bone come down in a wedge shape this way, kind of, a little like the letter W,’ and this fracture went right across the bone, all the way across the bone, a distance of something over an inch. That fracture definitely appeared; the skull bone was completely broken in two. I did not absolutely know of that fracture before X made this autopsy. I believed there was a fracture, but X didn’t know it; I could not make it out. In feeling, I could not feel any edges or anything, no depression; I could not feel any fracture at all. During her life there was no abrasion of the skin over that fracture that I could tell; the skin was just simply sore.”

We 'have given a rather full synopsis of the testimony, mainly in the language of the witnesses, because appellant strenuously insists that the testimony of Prof. Martin and Mrs. Riley, relating the transactions that occurred some eight years prior to the time of deceased’s death, was improperly admitted in evidence; that the court erred in not submitting the issue of assault with intent to murder, and in not instructing the jury in his main charge on aggravated assault.

As to the testimony, the court did not err in admitting it. The testimony, when taken as a whole, shows a continuous course of ill treatment from almost the day of their marriage until the night of July 17, 1914, when the fatal injuries were inflicted by appellant. In the case of Hall v. State, 31 Tex. Cr. R. 565, 21 S. W. 368, this court, in an opinion by Judge Davidson, collates the authorities, and holds such testimony admissible as evidence of a specific intent to kill, to show animus, motive, and malice. The malice and intent to kill might not be so clearly shown by the acts of appellant on the night of the 17th of July; but, when we take his course of conduct running through his entire married life, it becomes clearly manifest, and especially is this true in the light of Mrs. Riley and Mrs. Sherrod’s testimony. Mrs. Riley states that, at the time she saw appellant curse, choke, beat, and stamp his wife, he said he was going to kill her, and Mrs. Sherrod states that deceased told her she was dying from mistreatment» that appellant had kicked her all to pieces, and appellant had told her he would kill her if it took him ten years because she had reported him for making assaults on her. Not only, is it the law in this state, but in the Encyclopedia of Evidence the rule is stated to be:

“Express malice may be proved by any prior facts and circumstances indicating ill will or hostility between the persons involved. Thus evidence of prior controversies and quarrels between persons is admissible. Also, evidence of prior abuse or ill treatment, or of prior assaults or affrays.” Volume 8, p. 372, citing many authorities.

In addition to the Hall Case, supra, Spears v. State, 41 Tex. Cr. R. 527, 56 S. W. 348, is directly in point.

Neither do we think the court erred in refusing to submit the issue of assault with intent to murder. If the evidence raised the issue that deceased died from some other cause than from the injuries inflicted by appellant, such an issue might be in .the case. But the evidence and all the evidence shows conclusively that deceased died from the injuries inflicted on her by appellant on the night of July 17th. Appellant sought to inject the issue that she might have died' from injuries otherwise received than at his hands, but in this signally failed. He placed his little boy on the stand and had him testify that his mother fell when she was running a cow, and fell off of a bluff on her head, the ground being rough and rocky, but on cross-examination the boy testified this occurred several months before his mother died — “a long time ago.” The physicians testify that it usually takes from three to five days from the time injury is received for lepto-meningitis to manifest itself. The injury, if any she received, when she fell while pursuing the cow, could not have been the cause of the condition that caused her death under the record before us. She could not have gone several months with a fracture of the skull of the character and kind shown by the evidence without some evidence of it being manifest.

While the court did not submit aggravated assault in his main charge, yet he did give the special charge requested by appellant submitting that issue to the jury. But take this record as a whole, we do not think that issue is raised. It may be and doubtless is not shown with what instrument appellant inflicted the injuries on his wife, but the character of injuries inflicted and his acts and conduct on that occasion manifest a specific intent to kill. 1-Iis wife had hid from him; he searches for her, and when he finds her the first remark is, “Come out of there you, G-d d-n son ob a b-ch, you have already cost me a thousand dollars,” and then assaults her with a stick, attempts to strike her with a seine pole, she asking him to desist, saying, “You are killing me.” But, when she gets loose and flees to the gallery, he pursues her, drags her by the; hair of the head back through the window, and inflicts on her additional injury. And, while she lays prostrate on the floor on a pallet, he undertakes to destroy the evidence of his crime by attempting to set fire to the quilt on which she lay. His little son testified:

“After daddy had hit mamma, she laid there on the pallet. After he had pulled her in the room through the window, he went in there and tried to set the blanket afire and told her he was going to set it afire, and he would strike matches and stick in there, and he would lay it down and the match would go out. My mamma was lying there on the pallet when he would do that. He would just stick the matches under the quilt and it would smother out.”

If this does not manifest an intent to take life, it would be difficult to conceive a case which would do so, where the instrument nsed in inflicting the injuries is not shown. Appellant did not testify on the trial, and no witness disputes the facts stated by this little hoy. While article 1147 of the Penal Code provides that the instrument or means used shall be taken into consideration in judging of the intent of the party making the assault, and, if the instrument is not likely to produce death, it is not to be presumed that death was intended unless such intention appears from the manner of its use, yet article 1150 provides also that where the circumstances attending a homicide show an evil or cruel disposition, or that it was the design to kill, he shall be deemed guilty of murder, though the instrument or means may not in their nature be such as to produce death ordinarily. How could one manifest a more evil or cruel disposition than this record discloses? The woman lie had promised to love and protect was hunted down, cursed and villified, and assaulted. The bruises on her dead body show a most vicious assault. She flees, he pursues, drags her through a window by the hair of her head, and then attempts to set fire to the bedding on which she is lying prostrate. However, at appellant’s request the court did submit the issue of aggravated assault in language chosen by appellant, and then at his request also instructed the jury:

“You are instructed that, even though you should believe from the evidence that the said Lee Paschal struck his wife, Bertha Paschal, and that by reason thereof she afterwards died, still if you have a reasonable doubt as to whether or not, at the time he struck her, if he did, he intended to kill her, then you will give him the benefit of that doubt and acquit him of murder, and next inquire whether or not he is guilty of the offense of aggravated assault.”

He also gave the following special charge requested by appellant:

“Even though you may believe from the evidence that the defendant assaulted his wife, and that on account of said assault her skull was fractured, and that such fracture, if any, produced inflammation that resulted in meningitis which caused her death, yet, unless you are further satisfied from the evidence beyond a reasonable doubt that at the time he committed said assault, if any, he had the specific intention of killing the deceased, yon cannot convict the defendant of murder.”

Those criticisms' of the charge of the court which complain that the court erred in instructing the jury that if they found beyond a reasonable doubt that appellant “with bis bands or with his feet, or with any instrument or object, or in any manner, unlawfully killed Bertha Paschal, and yon further believe from the evidence beyond a reasonable doubt that the instrument or object used, if any, by the defendant was a deadly weapon,” etc., are without merit. The indictment alleged that the means used were unknown. By the evidence hereinbefore recited it is shown it was not made clear what instrument be did use in inflicting the injuries', but whatever he did use was one that the jury would be authorized to find it was an instrument, from the mode and manner of its use, likely to produce death. This is shown by the injuries inflicted on the person of his deceased wife. The language is not upon the weight to be given the evidence, and the charge does not suggest that it is the opinion of the court that appellant had killed his wife, but properly submits the issue to the jury for their determination.

Special charge No. 1 was fully covered by special charge No. 2 given, at appellant’s request, and therefore it was unnecessary to give it.

The only other question we deem it necessary to discuss, and the only one that in our opinion raises an issue about which there could be any serious doubt, is the bill that contends the court erred in not submitting the question of whether or not Mrs. Paschal was rational at the time she made the statement to Mrs. Sherrod. At the time this testimony was introduced there was no question raised as to its admissibility on this or any other ground. However, when Hr. Hunt was testifying he said:

“It must have been something like Thursday or Friday before Mrs. Paschal died that she began to get delirious, unconscious, or irrational. She remained unconscious from that time until she died. It might possibly haye been a little later than that she became unconscious. I do not remember the days.”

He gires it as his opinion that she was irrational on Saturday. This is the day Mrs. Sherrod testified she was at Mrs. Paschal’s home and she made the statement to her. It is made certain that >Dr. Hunt was not .present when Mrs. Sherrod was at the home of Mrs. Paschal on Saturday. He says he would not be certain he was at the house on that day. When the court gare appellant his charge, and they had filed their objections thereto, he stated to them he would gire them time to prepare special charges “covering every one of the exceptions or objections thereto.” Appellant did prepare a number of special charges, and the court gave five of them; yet appellant prepared none on the question of whether or not the testimony1 of Mrs. Sherrod Should or should not be considered by the jury. It would have been proper for the court to have instructed the jury that, unless they found from the evidence that at the time Mrs. Paschal made the statement to Mrs. Sherrod she was' sane — that is, she was rational and in possession of her faculties— they would not consider the testimony of Mrs. Sherrod, for the testimony of Dr. Hunt would tend to raise the issue that she might have been irrational at the time. However, Mrs. Sherrod is very positive that Mrs. Paschal was sane and conscious of approaching death. Dr. Hunt was not present at that time, and is not very positive as to the time Mrs. Paschal became irrational, and as the court informed appellant’s counsel that' he would give them time, and desired them to present a special charge covering each and every objection they had to the charge, and, while presenting a number, presented none on this issue, we are of the opinion that it is not such error as1 would call for a reversal of the case.

The judgment is affirmed.

DAVIDSON, J.

(dissenting).

I believe the the judgment ought to be reversed, and mention one question specially; that is, a charge ought to have been given submitting the issue of assault with intent to murder. The evidence, in my judgment, is not sufficiently strong to exclude the idea that the deceased may have died from causes other than the assault by defendant. I do not care to write at length.
      <⅞=>5⅛ other cases see same topic and KEY-NUMBER urall Key-Numbered Digests and Indexes

      (gsalTor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    HATCH v. STATE.
    (No. 3464.)
    (Court of Criminal Appeals of Texas.
    March 10, 1915.
    Rehearing Denied April 7, 1915.)
    1.Husband and Wife @==>313 — Offenses— Abandonment — Sufficiency of Evidence. In a prosecution under Act April 2, 1913 (Acts 33d Leg. c. 101), for deserting, neglecting, or refusing to provide for the wife and child, evidence held to sustain a conviction.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. @==>313.]
    2. Husband and Wife @=313 — Abandonment>-Kvidence.
    In a prosecution of accused fvr abandonment of his wife, evidence held sufficient to show abandonment when he refused to send her money to return to him from a visit to her mother in F. county, which he had induced her to make, or in any case when he wrote her two months later that she need not come back, that he would never treat her as a wife, and that she should do the best she could, for he did not want her.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. @=>313.]
    3. Husband and Wife @=>308 — Abandonment — Pbosecution — Jurisdiction of Court.
    Where accused abandoned his wife, jurisdiction of the court of F. county, conferred by Act April 2, 1913 (Acts 33d Leg. c. 101) giving jurisdiction to the courts of the county where the abandoned wife has resided for six months next preceding the filing of the complaint and information, was not defeated by the fact that, during the six months, she was temporarily absent from the county for two months earning money for her support.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1106; Dec. Dig. @=>308.]
    On Motion for Rehearing.
    4. Criminal Law @=>1133 — Motion fob Rehearing.
    Where a complaint and information are defective in a material point, advantage may be taken thereof on a motion ¡for rehearing on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. @=>1133.]
    5. Indictment and Information @=110 — Complaint and Information — Language of Statute.
    A complaint and information for wife and child desertion without justification, leaving them in destitute and necessitous circumstances, following the language of the statute (Act April 2. 1913 [Acts 33d Leg. c. 101] § 1), was sufficient, although not alleging that the wife and child were without the necessaries of life, or the means of obtaining them or were in want and in extremely needy and distressing circumstances.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. @=110.]
    6. Criminal Law @=1139 — Appeal — Matters Considered.
    On apnea! from a conviction, ex parte affidavits made since the decision below could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3000; Dec. Dig. @=1139.J
    Appeal from Fayette County Court; George Willrich, Judge.
    George Hatch was convicted of wife and child desertion, and he appeals.
    Affirmed.
    Aaron Burleson, of Smithville, and John T. Duncan, of Lagrange, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for wife and child desertion, and his punishment assessed at one year’s confinement in the county jail.

The complaint and information were filed in the county court of Fayette county on December 29, 1914. They properly charge the offense. No complaint that they do not has been made.

The prosecution was had under the act of April 2, 1918 (page 188), the first section of which prescribes-

“Any husband who shall willfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous circumstances, or any parent who shall willfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his * * * ekjiji ⅜ * * under the age of sixteen years in destitute or necessitous circumstances shall be deemed guilty of a misdemeanor.”

And the punishment is a fine of not less than $25 nor more than $500, or imprisonment in the county jail not'more than one year, or by both such fine and imprisonment prescribed.

It is unnecessary to give all of the provisions of the seven sections of this act.

In' the third section it is provided that:

“Proof of the desertion of such wife, child * * * in destitute or necessitous circumstances or of neglect or refusal to provide for the support and maintenance of such wife, child * * * shall be prima facie evidence that such desertion, neglect or refusal is willful.”

Section 6 prescribes specifically that the act shall be liberally construed.

We have carefully read and studied the statement of facts. There is but little conflict in it. Most of the facts are uncontro-verted. Wherever there is any conflict, the jury were clearly authorized to find the fact in accordance with the state’s side, as they evidently did. So regarding it, the evidence clearly establishes this state of facts:

Early in 1913, appellant was arrested and placed in jail on a charge of seducing his present wife, Geneva, then a young unmarried girl. Some of the witnesses say this arrest and confinement was under an indictment against him for said offense. But, whether an indictment or not, it is certain that prosecution for seducing said girl was then begun against him for said offense. To prevent his conviction and a term in the penitentiary therefor, by his own testimony, he married said girl. A child was bom to them on November 22, 1913. Soon after his marriage to her, or at once thereafter, he abandoned her, and refused to live with her as Ms wife. Thereupon he was again prosecuted, some of the witnesses say by indictment; but, whether by indictment or not, prosecution was begun against him therefor (Baskins v. State, 171 S. W. 723), whereupon he expressly agreed with the state and his wife that he would take her and live with her as his wife in order to avoid conviction and a penitentiary confinement under that prosecution. The state agreed with him that, if he would do so, it would dismiss that prosecution. Upon taking his wife to live with her as such, the state dismissed that prosecution against him, whereupon he took her to Galveston and lived with her as his wife in harmony and treated her well for three months and no more. Her mother, a widow, lived in Payette county, where he had seduced his wife and at first abandoned her, and where he had been twice prosecuted, as stated. The parties were negroes. After living with her in Galveston for said three months, on June 15, 1914, he induced her to take their infant child, then less than seven months old, and visit her mother in Payette county, so as to be there on (“Juneteenth”) June 19, 1914. When he proposed this visit to his wife, she suspected that he was again preparing to desert her, and she asked him if that was his intention. He denied that it was. He thereupon bought her a railroad ticket from Galveston to Lagrange and furnished her $2 in cash, promising her then that he would send her money to return home on when she wrote for it. The arrangement between them at the time was that she was to stay on this visit to her mother a short time only. Soon after June 19th she wrote to him asking for money to return to him. He replied that he did not then have the money and would not have it till the 1st of July, at which time he would send it. He never sent her any money at that time or any other time for that purpose. He testified:

“I never idle my time away, nor did I while I resided in Galveston when my wife and child lived with me, nor since they came to Lagrange. I have always earned from $5 to $10 per week, and for the last two months I was earning $40 per month.”

, On September 10, 1914, by special delivery letter, which she received that day or the next, he wrote her:

“All doing fairly well. Hope you are ok. Say Geneva you dont need to come back for I cant stay with you If I did I would never treat you as a wife So you can go up the road with your mama Big. Sis will send your things to you this week. Ill leave tomorrow the 11th If nothing happen for Chicago I am now in Pullman service my run will be from New Orleans to Chicago — Ill send the baby some thing soon as I get straight— So do the best you can for I cannot use you at all. * * • I am Ptank with you. I just dont want you.”

It had been the custom of appellant’s wife’s mother, for several years, which he knew, to go from Payetteville, where her home was, and where she lived, to near Granger, in Williamson county, to pick cotton for a while each fall. Evidently what he meant when he said in his letter, “so you can go up the road with your mama,” meant that his wife should go with her mother and pick cotton with her in Williamson county. His wife and her mother, after the receipt of this letter, did go to Williamson county and pick cotton about two months in the fall of 1914. It was clearly shown that their absence from Fayetteville on this occasion was temporary, neither intended nor in fact permanent; that they left all of their belongings at her mother’s home at Payetteville, and as soon as they got through picking cotton they returned, and have ever since then remained at her mother’s in Payetteville.

His wile testified:

“My husband left me and my child both in destitute and necessitous circumstances as^ he did not give us anything to wear and eat since June 15, 1914. All that he did give me was $2.50 on December 3, 1914, and his father gave me $7 while I was at Granger that he says my husband gave to him to give me. The $2.50 and $7, making $9.50, is all the money and all of anything that he gave me and my child from June 15, 1914, up to this day (January 9, 1935). I have no means of support for myself and our child other than that furnished me by my mother, who is a widow woman and has all she can do to take care oí herself.”

Her mother, Mollie Dobbins, testified: ■

“My daughter has no means of support for herself and the defendant’s child, except that which she receives from me. I am a widow woman and can hardly take care of myself, although I am doing the best X can to care for my daughter and my grandchild.”

Appellant contends that the county court of Payette county had no jurisdiction of this case. In other words, that the venue of the offense could not be laid in Fayette county, because appellant’s wife and child had not resided there for six months next preceding the filing of the complaint and information herein, after he abandoned them, even if he did.

Section 4 of said act is: '

“An offense under this act shall be held to have been committed in the county in which such wife, child or * ⅜ * may have been at the time such abandonment occurred, or in the county in which such wife, child or * ⅜ * shall have resided for six months next preceding the filing of the complaint, information or indictment.”

We are of the opinion that the evidence in this case clearly justified the jury to believe that appellant deserted, neglected, and refused to provide for the support and maintenance of his said wife and child when he failed and refused to send them money to return to Galveston soon after June 19, 1914, and before July 1, 1914. Taking all the facts and circumstances, this is the reasonable conclusion of what he intended and did at the time. That would make six months before the filing of the complaint and information herein. The said temporary absence of his wife and child from said Fayette county could not and should not be deducted from making up a portion of this six months. But, whether the venue was fixed by that clause of the statute or not, it is clear and certain that the county court of Fayette county had jurisdiction and venue of this offense under the other clause of the article just above quoted. There can be no doubt from his letter to her of September 10, 1914, and all the evidence that she and her child were then in Fayette county, and that his abandonment of her, without question, then occurred, if it did not occur previously, as stated. So that, under either clause of the statute, venue was properly laid and proven.

There is no intimation, in appellant’s testimony even, or otherwise in this record, that he had any cause or justification whatever to desert, etc., his wife and child.

Appellant’s other complaints are to the insufficiency of the evidence to sustain the verdict. After a careful study of the evidence, we think it establishes appellant’s guilt under every feature of the statute, without any question, and we fail to see how any honest jury under it could have done otherwise than convict him. The state has been very lenient with him. Instead of prosecuting him for the offense of abandonment after seduction and marriage, and sending him to the penitentiary for a term of years, it prosecuted him for the offense, as stated in this case, and the jury assessed confinement in the jail for one ye'ar without any additional fine which they could have done for this offense.

There was no error in the trial of this cause, and the judgment will be affirmed.

On Motion for Rehearing.

Appellant has filed quite a lengthy motion for reheariiig. For the first time therein he contends that the complaint and information are insufficient because they fail to allege that Geneva Hatch and her child “were without the necessaries of life or were without the means .of obtaining them, and that they were in want and were poverty stricken, or were extremely needy and in a distressing condition,” claiming that the said pleadings, wherein they alleged, following the language of the statute, that they were respectively “then and there in destitute and necessitous circumstances,” were insufficient It is true, as claimed by appellant, that, if the pleading was fatally defective in the particulars mentioned or any other in a material point, advantage could be taken of it, even in a motion for rehearing, but it is well settled in this state, as stated by Judge White:

“It will generally be sufficient if the indictment (or complaint and information) follow the exact words of the statute, and it is rarely ever safe to depart from them.”

We think there can be no question hut that the complaint and information in this case, following the language of the statute, was clearly sufficient, and that it was not necessary to make the allegations claimed to be necessary by appellant quoted above. White’s'Ann. O. O. P. § 344.

Appellant also still contends that the evidence in this case was wholly insufficient to sustain a conviction. We have carefully’ again considered the evidence in connection with appellant’s renewed attack by his motion for rehearing, and are still of the opinion that the evidence was amply sufficient to sustain the verdict.

Appellant, in his motion, attacks the testimony of some of the witnesses in various particulars, and, in addition, attaches four ex parte affidavits made by persons since the decision of this case, and in his motion comments thereon in connection with the evidence adduced before the court and jury.

This is an appellate court, not a trial court. We are bound by what the record shows was testified to before tie court and jury on the trial of the ease, and in no contingency are we authorized or permitted to consider ex parte affidavits for the first time filed in this court as to any evidence which was not before the lower court. In no contingency, even in the lower court, would such ex parte affidavits be admissible. It may be that if these persons, who now make affidavits, had been before the court and testified, their testimony may have been material, and it might have affected the result of the case; but, as stated, we, in no contingency, can consider such matters. Even some of the statements in these ex parte affidavits are of matters occurring long after even the trial of this ease in the court below.

We think nothing is presented in the motion for rehearing which would authorize or require this court to reverse this case. There was no claim in the lower court, nor is there in this, that the purported testimony of these witnesses, whose ex parte affidavits are attached, was newly discovered testimony in terms of law. There is nothing else in the motion requiring discussion. It is therefore overruled.
      @=>5⅛ other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    REED v. STATE.
    (No. 3423.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    1. Perjury <⅝»32-Evidence — Admissibility.
    Where accused, who was charged with falsely testifying that he had had sexual intercourse with tlie prosecutrix in a slander case, attacked prosecutrix’s reputation for chastity, evidence showing her good reputation for chastity, as well as that of a medical examination disclosing that she was a virgin, is admissible.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. <®¿»32J
    2. Perjury <3=s>32 — Evidence — Admissibility.
    In a prosecution for slanderously charging a female with being a whore, accused testified he had had intercourse with her. On being prosecuted for perjury, accused offered a witness who testified that the prosecutrix admitted having intercourse with a named man. Held, that evidence of statements by the named man that he had not had improper relations with prosecutrix, thus contradicting the witness, was inadmissible.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. <®^32.]
    3. Criminal Law <©=1172 — Aepeal—Harmless Error.
    The giving of a charge calling the evidence to the attention of the jury and informing them they might consider it in passing on the credit of the witness was prejudicial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. ®=^1172.]
    4. Criminal Law <©=^689 — Trial—Evidence.
    After the case has been submitted to the jury, evidence to show authority for the holding of court in a hotel during the building of a new courthouse was improperly received.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1624; Dec. Dig. <S=»689.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Pleas Reed was convicted of perjury, and he appeals.
    Reversed and remanded.
    J. M. AVagstaff and S. P. Hardwieke, both of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of perjury, and his punishment assessed at two years’ confinement in the state penitentiary.

This offense is alleged to have grown out of the trial of Henry Ethridge, who was charged with having slandered Miss Minnie Simpson by saying:

_“I would not be caught in daytime with that girl for $1,000. She is nothing but a damned whore.” -

On the trial of that case it is alleged appellant willfully, deliberately, and falsely swore that he had had carnal knowledge of the said Miss Minnie Simpson.

Appellant moved to quash the indictment and in arrest of judgment on several grounds.. We do not deem it necessary to state them, but, after a careful perusal of the indictment, we think it subject to none of the objections made, and that it clearly and succinctly charges the offense of perjury. Neither do we think there is any merit in the contention that the evidence will not sustain the verdict. The testimony of several witnesses shows that appellant on the trial of Henry Ethridge swore that he had carnally known Miss Simx>-son on two occasions. In that case, as in this, it was a material issue as to whether Miss Simpson was a virtuous and chaste female, or a wanton. The verdict of the jury finds that she is a pure and chaste woman, and that appellant never at any time had carnal knowledge of her, and the evidence certainly supports that finding.

Appellant objected to the state proving that the reputation of Miss Simpson in the community where she lived as a virtuous and chaste girl was good. As appellant, by the testimony of Miss Vera Fuller, Emmett Taylor, and others, had attacked Miss Simpson in this respect, there was no error in admitting the testimony. Appellant insists that the credit of a witness cannot be supported by this character of testimony. He is correct in this contention, but the testimony was not offered for that purpose, but offered to refute the evidence introduced by appellant tending to show that she was not a virtuous and chaste female. The testimony of the four physicians who testified they had made a physical examination of her, and that she was a virgin, and had never had intercourse with any man, and the testimony that her reputation was that of a virtuous and chaste woman, was admissible on that issue, and the court did not err in so holding.

AVe do not deem it necessary to write on each and every ground in the motion, as, in our opinion, none of them present error, except those hereinafter discussed. Appellant introduced Miss Vera Fuller as a witness, and she testified that Miss Simpson had admitted to her that on returning from an entertainment at Cedar schoolhouse in company with Harry Self the said Harry Self had had intercourse .with her three times. Miss Simpson denied ever having such a conversation with Miss Fuller. The state did not call Harry Self, then as a witness, as it could have done, if it desired to prove by him that he had never had intercourse with Miss Simpson. Instead of doing so, it called a number of witnesses who testified they heard Self testify on the trial of Henry Ethridge, .and that on that trial Self testified he had never had intercourse with Miss Simpson, and that he had never seen anything wrong in Miss Simpson’s conduct. Self was not dead, nor beyond the jurisdiction of the court; in fact, the record discloses he was in attendance on this trial, and we cannot understand why the state did not call him as a witness, instead of calling other people to testify to what they heard Self testify on the trial of Henry Ethridge in the county court. Appellant objected to the witnesses being permitted to testify to what they heard Self testify in the county court, and his objection should have been sustained. Self was not introduced as a witness in the trial of this case. Again it is shown by the bill that the court instructed the jury:

“Gentlemen, if you should consider this testimony at all, you will consider it only in passing upon the credibility of the witness Miss Vera Fuller, and for no other purpose. Tou will consider it for no purpose whatever against the defendant. But, if you should consider it at all, you may consider it only in passing on the credibility of the witness Miss Vera Fuller.”

There was a direct conflict in the testimony of Miss Fuller, defendant’s witness, and Miss Simpson, state’s witness, and the jury by this instruction is told they may consider this improperly admitted testimony in passing on the credit they would give to the testimony of defendant’s witness. As the testimony was inadmissible, the court emphasizes the error in admitting it by specifically authorizing the jury to consider it in passing on the credit to be given defendant’s witness on an issue in which the testimony of the defendant’s witness and the state’s witness was in direct conflict.

Another matter we wish to call attention to is that in another bill it is shown that the Taylor' county courthouse was being rebuilt at the time Henry Ethridge was tried, and that the county court was held in the Grace Hotel building. During the trial of this case it was developed that the Ethridge trial was held in the Grace Hotel building, and no authority to hold court in said building was introduced in evidence. After the jury had been instructed by the court and retired to consider their verdict, this omission was discovered. The jury was recalled, and testimony admitted showing authority to hold court in the Grace Hotel building. Appellant objected to the jury being recalled, and to any additional testimony being introduced in evidence. As our Code provides that evidence may be admitted at any time before the conclusion of the argument, it was improper for the court to admit this testimony after the jury had retired to consider the case. However, as the testimony admitted had no bearing on the issue of the guilt or innocence of the defendant, we would not feel inclined to reverse the case because this testimony was admitted at an improper time, but, on account of the errors hereinbefore pointed out, it becomes necessary to reverse and remand the case, and attention is called to this matter that it may not occur again.

The judgment is reversed, and the cause remanded.

DAVIDSON, J.

(concurring in result).

I agree to the reversal. Other questions I believe are reversible. I do not agree to the qualification put by the opinion on statute forbidding testimony after argument closed. White’s Ann. C. C. P. art. 697, and notes for cases. Also, by article 735 White’s C. C. P. it is only when jury disagrees as to evidence can witness be recalled. See notes for cases under that article. The jury cannot be recalled to hear any new fact. Tarver v. State, 43 Tex. 564; Edmondson v. State, 7 Tex. App. 116; Lorance v. State, 37 Tex. Cr. R. 453, 36 S. W. 93; Williams v. State, 35 Tex. Cr. R. 183, 32 S. W. 893. It is not a question of trial vel non.

This judgment ought' to be reversed, because there is no evidence in the record that Ethridge ever slandered Miss Simpson as alleged in the indictment. Appellant’s evidence was material, if at all, because it went to prove she was a whore, as it is alleged that Ethridge stated. If Ethridge did not make that statement, there was no issue in the slander case, and could be none in this case. The record does not show Ethridge ever made such statement.
      <©c^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CUTBIRTH v. STATE.
    (No. 3424.)
    (Court of Criminal Appeals of Texas.
    March 17, 1915.)
    Appeal from District Court, Taylor County; Thomas D. Blanton, Judge.
    Purna Cutbirth was convicted of and he appeals.
    Reversed and remanded.
    J. M. Wagstaif and S. P. Hardwicke, both of Abilene, for appellant. C. C. McDonald, Asst. Atty Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for perjury. It is a companion case to that of Pleas Reed, 174 S. W. 1065, this day decided in an opinion by Judge Harper.

There was no evidence introduced in this case after the argument and charge as to the place where either the district or county court was held like there was in the Reed Case. With that exception, there is no material difference in the jases. Outside of that one question the same questions were raised in this which were raised in that.

It is necessary to reverse this case for the same error that the Heed Case was reversed for. With that exception, no error was committed in the trial of this case on any of the grounds complained of by appellant.

The judgment is reversed, and the cause remanded.