text:
    GILBERT v. STATE.
    (No. 4080.)
    (Court of Criminal Appeals of Texas.
    May 17, 1916.)
    1. Criminal Law i&wkey;510 — Accomplice Testimony-Corroboration.
    A conviction cannot be had on the uncorroborated testimony of an accomplice.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1124-1126; Dec. Dig. <&wkey; 510.]
    2. Criminal Law <&wkey;>511(l) — Corroboration of Accomplice — Suepioiency.
    Evidence field insufficient to corroborate the testimony of an accomplice so as to warrant accused’s conviction of larceny from the person. ’[Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1128; Dec. Dig. <&wkey;>511(l).]
    3. Criminal Law <S=»59(3) — Parties—Principals.
    To be convicted as a principal where several participate in.an offense, the party must either be actually present or at the time of the offense be engaged in some act in furtherance of the common design.
    [Ed. Note — Eor other cases, see Criminal Law, Cent. Dig. §§ 76, 77; Dec. Dig. &wkey;59(3).]
    4. Criminal Law <&wkey;1172(6) — Appeal — Harmless Error.
    In a prosecution for larceny from the person, where the' evidence showed accused was present at the time of the offense, an instruction on the law of principals which improperly authorized a conviction as a principal, though accused was not present at the time of the offense, or was not then engaged in some act in furtherance of the design, is harmless, though erroneous.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3159; Dec. Dig. &wkey;>U72(6).]
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Laura Gilbert was convicted of larceny from the person, and she appeals.
    Affirmed.
    Baskin, Dodge, Baskin & Eastus, of Et. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

At a term of the district court of the Forty-Eighth judicial district, Tarrant county, Tex., appellant was arraigned for trial on the 18th day of November, A. D. 1915, upon an-indictment presented in said court on the 11th day of November, A. D. 1915, charging her with the offense of theft from the person, alleged to have been committed in Tarrant county on the 5th day of November, A. D. 1915, to which said indictment appellant pleaded “not guilty.” The trial resulted in a verdict and judgment adjudging appellant guilty of the offense charged, with punishment assessed at confinement in the state penitentiary for a period of two years. Thereafter, on, to wit, the 2d day of February, A. D. 1916, after leave of court having been had and obtained, appellant filed his amended motion for a new trial, which said amended motion was thereafter on said date heard by the court and overruled, to which said action of the court appellant then and there excepted, and in open court gave notice of appeal to the Court of Criminal Appeals of the state of Texas. Appellant was thereafter released upon recognizance pending this appeal.

Appellant’s first assignment of error is that the trial court committed material error in overruling paragraph 1 of appellant’s motion for a new trial and in sustaining the judgment rendered in this cause, because the record is wholly barren of evidence corroborative of the testimony of the accomplice witness Pearl Hansborough connecting appellant with the commission of the offense charged, and that the uncorroborated testimony of an accomplice connecting the accused with the commission of the offense charged is insufficient to sustain a conviction. In the proposition of law stated we heartily concur, but think appellant is mistaken in contending that there is no testimony tending to connect appellant with the commission of the offense. The negro man had his money stolen while asleep in the two-room house of Inez Wheeler. The evidence both for the state and the defendant shows that appellant and the accomplice witness, Pearl Hans-borough, were alone in this house with the negro man. They leave this house together, and go together to a drug store, where appellant called for a box of salve, which was paid for by Pearl Hansborough with a portion of the stolen money. The money is positively identified, and appellant found in possession of the property purchased with this money. This testimony certainly had a tendency to connect her with the theft. She does not testify nor seek to explain her possession of this property.

Tlie second assignment of error is that the trial court committed material and reversible error in paragraph 1 .of its charge delivered to the jury, wherein the court instructed the jury as follows:

“All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the true criterion for determining who are principals is: Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all alike are guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all, whether, in point of fact, all were actually, bodily present on the ground when the offense was actually committed or not.”

This charge is almost in the exact language of a charge reguested by appellant. It reads:

“You are instructed that all persons are principals who are guilty of acting together in the commission of an offense. When an offense has actually been committed by one or more persons, the true criterion for determining who are principals is: Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all alike are guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all.”

It will be noticed that the only real difference between the charge given by the court and the one reguested by appellant is in the concluding lines, “whether, in point of fact, all were actually, bodily present on the ground when the offense was actually committed or not.” We agree with appellant that this is not a correct proposition of law. A person must be present, or, if not present at the time of the commission of the offense, be doing some act in furtherance of the common design. The charge as given has been frequently condemned when there is testimony raising the issue that the person sought to be convicted as a principal offender was at another and different place and doing nothing in furtherance of the common design. And, if the testimony in this case raised the issue that appellant was at a different place when the offense was committed, this charge would present error. But the testimony, and all the testimony, shows she was present in the house alone with Pearl Hansborough and Charley Tucker, the latter being the person from whom the money was stolen; that Pearl Hansborough and appellant left the house together after the money had been stolen, were together when a portion of the money was spent, and appellant'received and was found in possession of the goods purchased with the stolen money. Under the facts of this case the charge does not present reversible error.

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


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    SIMMONS v. STATE.
    (No. 4070.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.
    On Motion for Rehearing, May 31, 1916.)
    1. Criminal Daw &wkey;372(l) — Evidence — Other Offenses — Rape.
    In a prosecution for rape on a female under the age of consent, evidence of sexual intercourse between the parties occurring subsequent to the date of that for which the state elected to prosecute was admissible for the purpose of showing a continuous course of conduct.
    [Ed. Note. — For other cases, see Criminal Lwv^ Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;-
    2. Criminal Law &wkey;1171(3) — Trial—Statements oe Counsel.
    In a prosecution for rape, a slight difference between the statement of the county attorney as to the testimony of a witness, and the testimony as given, one being a legitimate deduction of the other, was not ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3127; Dee. Dig. &wkey;1171(3).]
    3. Criminal Law <&wkey;>469 — Opinion Evidence —Expert Testimony — Questions for Jury.
    In a prosecution for rape, whether it is the natural desire and impulse of a girl to deny the guilt of a lover and charge some other man with having been the cause of her downfall was a question upon which the jury could pass, and not a subject for expert testimony of a physician.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1059; Dec. Dig. <&wkey;469.]
    4. Criminal Law &wkey;1090(10) — Appeal and Error — Preservation in Lower Court of Grounds for Review.
    In a prosecution for rape, evidence as to incompetency of a juror, consisting of an affidavit as to an opinion expressed by the juror, not being preserved by a bill filed in term time, will not be considered on appeal.
    [Ed. Note. — For other cases, see. Criminal Law, Cent. Dig. §§ 2789, 3204; Dec. Dig. <&wkey; 1090(10).]
    5. Criminal Law &wkey;1098 — Appeal and Error-Statement of Facts — Statute.
    Under Vernon’s Ann. Code Cr. Proe. 1916, art. 846, providing that, in criminal cases where felony is charged, a stenographic record of the evidence shall be kept as in civil cases, and a condensed statement of facts prepared in appealed cases, evidence placed in the record in question and answer form, and not reduced to narrative form, will not 'be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dec. Dig. &wkey;109S.j
    6. Criminal Law <&wkey;1124(l) —New Trial— Affidavit.
    In a prosecution1 for rape, where there was no affidavit attached to a motion for new trial, in support of an allegation that the jury heard other evidence than that adduced on the witness stand, and no evidence, it will not be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2947; Dec. Dig. <&wkey; 1124(1).]
    7. Criminal Law <&wkey;1056(l) — Appeal and Error — Presentation in Lower Court of Grounds for Review.
    In a prosecution for rape, where before the indictment was read or any evidence introduced the defendant stepped just outside the door of the courtroom and spoke to his son while the court was instructing the jury as to their duties, as defendant and his counsel, while aware of the proceedings, reserved no exception at the time and did not complain of the matter until after verdict, and the court in approving the bill states that the defendant could and would have heard all that was said, there was no error.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. &wkey; 1056(1).]
    Appeal from District Court, Donley County; Hugh L. X-Iumphres, Judge.
    J. A. Simmons was convicted of rape, and he appeals.
    Affirmed.
    Simpson & Steed, of Clarendon, and A. M. Mood, of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape upon his granddaughter, and his punishment assessed at imprisonment for life.

It appears that appellant, the grandfather of Dillie Mae Cox, took the little girl when she was hut 6 years of age and raised her; she being past 15 at the time of the trial. In her direct examination she testified to a course of conduct covering several years, and testified to acts of intercourse covering two or three years, giving as the last date an act that took place shortly after her fifteenth birthday. Appellant on cross-examination developed the fact, according to the girl’s testimony, that the acts had been continuous, occurring as often as two or three times a week. After the state had closed its case, the appellant filed a motion requiring the state to elect upon which act it would seek to ask for a conviction. The motion was sustained, and the state elected the act testified as occurring about February 1, 1915, and the court in his charge limited the purpose for which the testimony of other acts could be considered, and also gave three special requested charges by appellant on this issue absolutely limiting the testimony, and instructing the jury they could convict appellant only in the event the offense was committed on the date selected, and that any other acts testified to could be considered only, if considered at all, in passing on whether or not an act of intercourse took place on the date on which the state had elected to prosecute. After the state had elected, the appellant requested the court to instruct the jury not to consider for ány purpose any evidence of an act or acts occurring subsequent to the date selected, and reserved an exception to the failure of the court to give this charge. We so thoroughly discussed this question in Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783, we do not deem it necessary to again review the authorities. In this case it is shown that all the acts tend to show, and do show, but one continuous course of conduct. Mr. Wigmore, in his work on Evidence and late supplement thereto, in section 398, carefully collates the authorities from all states in the Union, and cites as sustaining the rule obtaining in this court, among other cases, People v. Soto, 11 Cal. App. 431, 105 Pac. 420; State v. Sebastian, 81 Conn. 1, 69 Atl. 1054; State v. Henderson, 19 Idaho, 524, 114 Pac. 30; People v. Gray, 251 Ill. 431, 96 N. E. 268; State v. Brown, 85 Kan. 418, 116 Pac. 508; State v. Schuel-ler, 120 Minn. 26, 138 N. W. 937; Woodruff v. State, 72 Neb. 815, 101 N. W. 1114; People v. Thompson, 212 N. X. 249, 106 N. E. 78, L. R. A. 1915D, 236, Ann. Cas. 1915D, 162; Morris v. State, 9 Okl. Cr. 241, 131 Pac. 731; State v. Richey, 88 S. C. 239, 70 S. E. 729; State v. Rash, 27 S. D. 185, 130 N. W. 91, Ann. Cas. 1913D, 656; Sykes v. State, 112 Tenn. 572, 82 S. W. 185, 105 Am. St. Rep. 972; State v. Willet, 78 Vt. 157, 62 Atl. 48; State v. Mobley, 44 Wash. 549, 87 Pac. 815, and other cases.

Appellant requested the court to instruct the jury as follows:

“You are instructed not to consider for any purpose the argument of the county attorney wherein he makes the statement that the witness Lillie Mae Cox swore that before she went to Dallas the defendant offered her a dollar to tell her mother that Mack De Board was the cause of her trouble”—contending there was no testimony in the record upon which to base such remarks.

The girl testified, as shown by the statement of facts:

“The reason that I told my mother that it was Mack De Board, my grandfather (appellant) told me to lay it on Mack. Two or three days before I went to Dallas, while we were heading maize, my grandfather began to cry and asked me for God’s sake, when I went to my mother, not to lay it on him. He said he would give me a dollar if I would let Mack do me that way, so if I was in this condition I would lay it on him.”

While the exact language used by the county attorney was not used by the girl, yet there is so slight difference in the meaning of the two statements, one could be used as a legitimate deduction of the other.

Appellant desired to prove by Dr. E. P. Hamm that, from his knowledge and experience in dealing with young girls, it was always the natural desire and impulse of a girl to deny the guilt of her lover and charge some other man with having been the cause of her downfall. We do not see how qualifying as an expert physician would render the doctor any more competent to testify to such fact than any other observant man. While the girl admitted she loved Mack De Board and had been .engaged to marry him, yet she also- testified that she also loved her grandfather (appellant). Appellant cites no authorities in support of his contention, and we know of none. As to whether such would be the natural inference to be drawn was a question of legitimate argument, and we suppose was made by appellant’s counsel, and the jury was just as capable of passing on such question as a learned expert physician.

The court rejected the bill seeking to complain that juror McOlain was an incompetent juror by reason of having expressed an opinion. Attached to the motion for a new trial is the affidavit of Messrs. Edmondson and Brooks, saying that the juror had expressed an opinion in their presence. The state, in affidavit filed, contested the motion; Mr. McClain swearing he used no such language. By the record it shows that the court heard evidence on the motion, and the evidence is before us, but not in such shape as we can consider it. The term of court at which appellant was convicted adjourned January 29th, while the statement of facts on the motion for a new trial was not filed until April 22d. It has been the unbroken rule of decision in this court since the rendition of the opinion in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, that such evidence must be preserved by hill filed in term time. The evidence is not reduced to narrative form, but is placed in the record in question and answer form, and this is no longer permissible, had it been filed in time. Kemper v. State, 57 Tex. Cr. R. 355, 123 S. W. 131, and cases cited under article 846, Vernon’s Crim. Proc. p. 843. However, we will state we have read this evidence, even though in question and answer form, and, if we could consider it, the evidence of Messrs. Edmondson and Brooks shows that, if Mr. McClain used the language they attributed to him, it had no reference to this case, but to another and different case. The testimony of Mr. McClain and Mr. Butler would authorize the trial judge to find that no such language was used.

There is an allegation in the motion alleging that the jury heard other evidence than that .adduced on the witness stand after their retirement. There is no affidavit attached to the motion for a new trial in support of such an allegation, and no evidence we can consider to sustain such an allegation.

The only other bill in the record alleges that after the jury had been impaneled, but before the indictment was read or any evidence introduced, the defendant stepped just outside of the door of the courtroom and spoke to his son. The court at this time was instructing the jury as to their duties. The defendant has the right, of course, to be present during all the proceedings had on his trial; but appellant and his counsel, while aware of the proceedings, reserved no exception at the time, and did not complain of the matter until after verdict. The court in approving the bill states that the defendant was in such proximity to him and the jury “that he could and would have heard all that was said.” Under such circumstances, the bill presents no error.

The other questions sought to be raised present no error, and the judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing presenting but one question. Appellant says:

“This honorable court erred and evidently by oversight overlooked the one point that to the writer’s mind seemed most important, in this: That appellant in his brief presented as best he could the proposition that there was no testimony in the record supporting- the act relied upon by the state for a conviction, in that the state elected upon, and the court charged the jury upon, an act in the barn at defendant’s home, and, as pointed out in the brief, there is no testimony of such act in the record; the evidence being that the act in the barn occurred in 1914, long prior to the date "(January 12, 1915) where limitation started.”

It is true the record discloses that Lillie Mae Cox testified to an act of intercourse occurring at the barn, 1914, but appellant is mistaken in stating that this is the only act she testified to occurring at the barn. She testified to an act occurring at the barn just prior to her fifteenth birthday. On direct examination she testified:

“The next time he had intercourse with me between January and my 'birthday was about two or three days before the 18th of February (1915). I know because it was my monthly time on the 18th of February.”

It is also true that on direct examination she did not fix the place where this act of intercourse took place, but on cross-examination she did so. Appellant’s attorney was questioning her about not telling him about this act when she talked to him. She testified:

“I said there was no act during that time, but I never thought ^about this act until late last night. The act was down at the barn one evening. We went down there to strip feed, and the reason I remember it is because he said: ‘We better right now while we have a chance, because it wouldn’t be but a little time until my monthly time.’ ”

The court in his charge limited the jury to a conviction for this act of intercourse, and gave three of appellant’s charges so limiting the testimony, and instructed the jury that if they did not find beyond a reasonable doubt this act occurred they would acquit appellant. Appellant’s able counsel evidently overlooked the fact they in their cross-examination, before the state elected, had caused her to definitely fix the time and place that this act occurred.

The motion for rehearing is overruled.
      @=x>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARDPER, J.

text:
    CRUTCHER v. STATE.
    (No. 4062.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.
    Rehearing Denied June 7, 1916.)
    1. Criminal Law &wkey;1095, 1102 — Appeal-Review.
    Where the court ■ refused an extension of time at the end of 20 days after adjournment of court, .in which to file the bills of exceptions and statement of facts, the clerk’s action in filing the papers at a later date was without authority, and a motion to strike them out will be sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. <&wkey;1095, 1102.]
    2. False Pretenses <&wkey;26 — Indictment— Sueeicienct.
    In a prosecution for swindling, an indictment which alleged that false representations were made, by which two dollars in money was obtained, that the representations were false and fraudulently made to obtain the money, and that the accused knew the representations were false when made, was sufficient.
    [Ed. Note. — Por other cases, see False Pretenses, Cent. Dig. § 31; Dec. Dig. <@=326.]
    Appeal from Hays County Court; J.-R. Wilhelm, Judge.
    F. B. Crutcher was convicted of swindling, and he appeals.
    Affirmed.
    J. D. Moore, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARDPER, J.

Appellant was convicted of swindling, and his punishment assessed at a fine of $10 and 15 minutes in the county jail.

The Assistant Attorney General moves to strike out the hills of exception and statement of facts because not filed within the time allowed by law. This being a misdemeanor, the court allowed 20 days after adjournment of court for the term in which to file the bills and a statement of the evidence. At the expiration of this time appellant asked for an extension of time, which was refused by the court; nevertheless the appellant had the clerk at a later date to file the papers any way. The clerk had no authority to file the papers under such circumstances, and the motion of the Assistant Attorney General must be sustained. Durham v. State, 69 Tex. Cr. R. 71, 155 S. W. 222; De Friend v. State, 69 Tex. Cr. R. 329, 153 S. W. 881.

There is a motion in the record to quash the indictment, alleging no specific ground, but stating generally that it charges no offense against the law. The indictment alleges that false representations were made, that $2 in money was obtained by said false representations, that the representations so made were false and fraudulently made to obtain the money, and that appellant knew the representations were false and fraudulent when made.

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


author: PRENDERGAST, P. J.

text:
    BELL v. STATE.
    (No. 4045.)
    (Court of Criminal Appeals of Texas.
    April 19, 1916.
    State’s Rehearing Denied May 31, 1916.)
    1. Bail <&wkey;94 — Soire Facias — Appeal—Matters Which Can be Considered.
    On appeal from a judgment in scire facias forfeiting a bail bond, the Court of Criminal Appeals cannot consider original papers and documents not filed in the court below.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418-423; Dec. Dig. &wkey;94.]
    2. Bail <&wkey;93 — Enforcement op Bail Bonds —Parties.
    Under Code Cr. Proc. 1911, arts. 488, 489, declaring that, when a defendant is bound by a bail bond to appear, and fails to do so, forfeiture of his bond shall be taken, and that judgment shall be entered that the state recover of defendant the amount of money in which he is bound and of his sureties the amount they are bound, it is not necessary to forfeiture of a bail bond that judgment be entered against the sureties, but the state may enter judgment against defendant alone.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 409, 410, 413^117; Dec. Dig. &wkey;93.]
    3. Bail <&wkey;77(l) — Bonds—Forífeiture.
    Under Code Cr. Proc. 1911, art. 490, declaring that on forfeiture of the bail bond citation shall issue to the sureties, but it shall not be necessary to give notice to the defendant, a defendant who had not appeared for trial as required by his bail bond is not entitled to notice of proceedings to forfeit.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 335-340, 379; Dec. Dig. &wkey;77(l).]
    4. Bail &wkey;>77(2) — Bonds—Forfeiture.
    Where the state by demurring to defendant’s motion for new trial after judgment on scire facias forfeiting his bail bond admitted the averments of the motion that the indictment against defendant had been quashed beforei judgment of forfeiture, judgment should be set’ aside.
    [Ed. Note — For other cases, see Bail, Cent. Dig. §§ 341-349, 403; Dec. Dig. &wkey;77(2).]
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.
    Scire facias by the State against R. W. Bell. There was a judgment for plaintiff, and from the judgment and order denying new trial, defendant appeals.
    Reversed and remanded.
    R. L. Williford, of Fairfield, and Edwards, Geppert & Wroe and Boyd & Bell, all of Teague, for appellant. Callicutt & Johnson, of Corsicana, James Macintosh and Lex Smith, Co. Atty., both of Fairfield, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal by the original defendant, being the principal, in a scire facias case. The record is quite voluminous — entirely too much so. The material questions are few. After the transcript reached this court motions galore were filed in this court. Accompanying them were affidavits and original documents not filed in the lower court. We think it unnecessary to even state these matters.

This court issued a certiorari to the district clerk requiring him to send up an additional transcript with a correct caption to this ease, the minutes of the court showing the organization and impaneling of the grand jury which preferred the original indictment and the return and filing thereof in court, .with which he has complied.

Appellant has filed a motion objecting and excepting to this court considering the various original matters filed in this court and to that part of the clerk’s return to the cer-tiorari wherein he gives a copy of the minutes of the organization of the grand jury which preferred the indictment and the minutes showing the return to and filing of said indictment in said court.

We have considered all the motions. We deem' it unnecessary to discuss the various matters raised by them or any of them. We, of course, cannot, and will not, consider the said original papers not filed in the court below. We will not strike out tbe corrected caption, nor tbe minutes of tbe court showing tbe organization of tbe grand jury which found tbe indictment, nor tbe minutes showing its proper presentation and filing in tbe lower court. General Bonding Co. v. State, 73 Tex. Cr. R. 649, 165 S. W. 615. We regard none of said motions in this court of any controlling or material effect on tbe real merits of this case. All these matters being brushed aside, we will go to tbe real issues and merits.

The record which we are authorized to consider, and do consider, clearly shows: That at the September term, 1913, of the district court of Freestone county a proper grand jury was duly impaneled and sworn, and that on September 11th it returned against appellant an indictment in three counts; the first charging rape upon his daughter by force, threats, etc.; the others incest with his daughter by haying sexual intercourse with her. The indictment was defective in that it alleged that it was the grand jury of Limestone, and not Freestone, county acting, and the rape is charged to have been committed in Limestone, but the incest committed in Freestone county. That appellant was properly arrested, and gave on the next day a bail bond, which is in strict accordance with the statute, in the sum of $5,-000, signed by himself and several sureties. That later, at that term, he filed a motion to quash said indictment on various grounds based upon the indictment stating that it was the Limestone county grand jury, and not the Freestone, which preferred the indictment. At the next term appellant failed to appear, and has never since personally appeared. Thereupon judgment nisi was rendered and entered against him and all of his sureties on his said bail bond. His sureties were duly cited and answered, undertaking to avoid any final judgment against them on various grounds, among others, that said bond was void, because based on an invalid indictment, and because the court had quashed that indictment on appellant’s said motion to quash it. The appellant did not then himself file any defense whatever to said nisi judgment. At the December term following another judgment, which is called an interlocutory judgment, purporting to be on its face a final judgment against him, was rendered. That judgment was not a final judgment, because it made no disposition of the sureties who were parties to the cause. But one final judgment can be rendered. He still failed to make 'any defense. At the next term, on February 14, 1916, the scire facias case was again regularly called for trial; whereupon the state dismissed as to all of said sureties and asked a final judgment by default against appellant, which was then and there rendered by the court. The next day his attorneys, for him, filed his motion for a new trial. All these matters herein just above recited appear fully by appellant’s said motion, which is the basis of this whole appeal. The state filed numerous demurrers to appellant’s motion for a new trial. The court heard the matter and sustained several of the state’s demurrers, overruled others, and entered a final judgment overruling appellant’s said motion and denying him a new trial, to which he excepted, and gave proper notice of,appeal to this court, and assigns several claimed errors, which, he contends, entitle him to a reversal.

It is unnecessary to discuss severally appellant’s assignments of error. We have considered them all. However, we will decide the material questions raised, which will have the effect to decide the whole case.

In the last few years in several cases we have had occasion to thoroughly investigate the law pertaining to the forfeiture of bail bonds. Among these cases are Hodges v. State, 73 Tex. Cr. R. 638, 165 S. W. 607, General Bonding, etc., Co. v. State, 73 Tex. Cr. R. 649, 165 S. W. 615, and Hodges v. State, 73 Tex. Cr. R. 636, 165 S. W. 613, whi.ch were companion cases. In the Hodges Case, 73 Tex. Cr. R. 644, 165 S. W. 607, and in other cases which is applicable here, we said:

“Our statutes prescribing the requisites of bail bonds and recognizances, and regulating and prescribing the procedure for the forfeiture thereof, are so clear, plain, full, and unambiguous that they need no construction by this court. They construe themselves. There are so many apparent, if not real, conflicts in the decisions of the courts on the subject that the safest, if not the only safe, way for the lower courts to proceed is to follow the said statutes. Prior to recent years the tendency of the decisions of the court was to attach undue importance to each and every one of these proceedings, practically requiring that every ‘t’ should be crossed and every ‘i’ dotted; otherwise to hold the proceedings fatally defective and result in reversals. But in later years the whole trend of legislation, as well as the decisions of this court and the Supreme Court, is to get away from such extremely technical and unimportant matters, and, instead, to got to the real merits and substantial matters and intent of the Legislature in the enactment of the law, and decide the cases on their true and real merits, and not on purely immaterial technical points.”

Appellant’s contention that tbe judgment nisi and final judgment against him are void because the indictment in the case in which he gave bail bond was fatally defective cannot be maintained, as has many times been decided by this court and other courts. It is unnecessary to discuss this question or the cases so declaring the law. Branch’s Crim. Law, p. 67, and cases cited by him; State v. Cox, 25 Tex. 405; State v. Rhodius, 37 Tex. 165; State v. Angell, 37 Tex. 357; State v. Ake, 41 Tex. 166; Smalley v. State, 3 Tex. App. 202; Hester v. State, 15 Tex. App. 418; Jones v. State, 15 Tex. App. 82; Martin v. State, 16 Tex. App. 265; Lee v. State, 25 Tex. App. 331, 8 S. W. 277; Shrader v. State, 30 Tex. 387; U. S. v. Evans (C. C.) 2 Fed. 147; U. S. v. Reese, 4 Sawy, 629, Fed. Cas. No. 16,138; State v. Weaver, 18 Ala. 293; Williams v. State, 20 Ala. 63; Reeve v. State, 34 Ark 610; Dilly v. State, 3 Idaho (Hash.) 285, 29 Pac. 48; Kepley v. State, 123 Ill. 367, 13 N. E. 512; State v. Poston, 63 Mo. 521; State v. Morgan, 124 Mo. 467, 28 S. W. 17; State v. Livingston, 117 Mo. 627, 23 S. W. 766.

Appellant’s contention that no judgment on his hail bond could be taken against him, because: (1) None was taken against his sureties at the same time, but, instead, the state’s case against them as sureties was dismissed; and (2) he was not served with citation or any notice that either the judgment nisi or interlocutory judgment or the final judgment would be taken against him— cannot be maintained. The statute itself is specifically against him, as well as general principles. In the first place, it would be against all principles to hold that a principal in any obligation could successfully contend that no judgment could be rendered against him unless at the same time, in the same proceeding, a judgment should also be taken against his sureties. One simple illustration is sufficient. Suppose A. should execute to B. his promissory note for $5,000, and should get C., D., and E. to sign as his personal sureties. Upon maturity and failure to pay B., the payee, should sue him and his sureties on the note. Service might not be had upon some of the sureties, and some or all of them might be dead, or all of them insolvent, or as for that matter, if the owner of the note should desire no judgment against the sureties, or for any other reason he wanted to hold the principal alone liable, no one would contend that the principal maker of the note who owed it as his debt could claim that no judgment could be rendered against him, unless at the same time judgment should be rendered against his sureties. He would have no recourse on them whatever. There would be no reason why as to him they should be made parties, or a judgment should be rendered against them. That, in effect, is this case.

But in this scire facias proceeding the statute itself is plain and unequivocally against him. Article 488, C. C. P., provides that, when a defendant is bound by bail bond to appear at any term of court, and fails to do so on the day the criminal docket is taken up, or any subsequent day when his case comes up for trial, a forfeiture of “his bond shall be taken.” The next article specifically provides the manner of taking this judgment nisi, and says, “Judgment shall be entered that the state of Texas recover of the defendant the amount of money in which he is bound, and of his sureties the amount of money in which they are respectively bound,” etc., clearly requiring that a judgment shall be taken against him on his bail bond. That it may also be1 taken against his sureties would make it none' the less that judgment shall be rendered against him. The next article prescribes that citation shall issue to the sureties only, not to the defendant. That article expressly states: “But it shall not be necessary to give notice to the defendant.” The reason no notice or citation is to be issued to him,. but to his sureties only, is clear and certain. He is a party to the whole proceeding from start to finish by his mere signing the bail bond. His sureties are not, unless they are cited, because the statute is to that effect. Besides, when a defendant willfully forfeits his bond, he is, or becomes, a fugitive, and it is contemplated in law that no citation can be served upon him, because he cannot be found. Then the statute prescribes that the sureties can answer at the next term and show cause why the defendant did not appear so as to avoid any judgment against them. Various things would exempt them from liability, as has many times been held by this court, which would not affect the defendant himself. Article 500 states what causes and no others will exonerate the defendant or his sureties upon the forfeiture taken. It is unnecessary to enumerate them, but in the first subdivision it is expressly prescribed that, if the bond be valid and binding as to the principal and one or more of his sureties, they shall not be exonerated from liability because of it being invalid as to another surety or sureties; that if it be invalid and not binding as to the principal, each of the sureties shall be exonerated from liability. Then it expressly enacts:

“If it be valid and binding as to the principal, but not so as to the sureties, the principal shall not be exonerated, but the sureties shall be.”

The following articles then provide that if, after the sureties have been cited, they fail to answer, and if the defendant fails to answer within the time limit for answering, the next term of court, the court shall enter final judgment by default as in other civil actions. It is the law and the uniform practice that, if one party to an action answers, and another does not, judgment by default is entered against the defaulting party, and, if the answering party is then dismissed, final judgment against the defaulting party shall be rendered.

The scire facias statutes were substantially complied with in every particular in this case. The judgment nisi against appellant was rendered March 9, 1914. He had till the next term to show cause why a final judgment should not be rendered against him, but he made no answer and no showing whatever within that time. 1-Iis sureties did answer, and undertook to show good cause why judgment should not be rendered against them, but they did so for themselves only, not for him. Then the case went over to another term, and on December 20, 1915, at that term, another judgment by default was rendered against him. That was not final, because the sureties were not disposed of by it. He still made no answer, and in no way attempted to show why final judgment should not be rendered against Mm. The case went over another term of the court, and till February 14, 1916, when final judgment by default was rendered against him; the state at that time dismissing as to the sureties. He had had from March 9, 1914, to February 14, 1916, nearly two years, to answer, but filed no answer whatever. Then on the next day he quickly filed a motion to set aside the said final judgment against him.

In his said motion he set up many grounds which he claimed entitled him to a new trial, but the only ground which would present any merit is that he was exonerated from liability, because the court in September, 1913, had granted his motion to quash, and had quashed, the indictment against him. The demurrers of the state in law admit the truth of that allegation, and we must take it on the face of the pleadings that that ground of his motion was true. The motion itself alleges that the court entered no judgment quashing the indictment. He in no way in his said motion gave any reason or excuse, or pretended to give any, why he did not set up before the final judgment was rendered against him the fact, if so, that the court had quashed the said indictment. Nor did he allege in any way in his said motion that the said judgment against him was obtained by mistake, accident, or fraud of the state, nor that it resulted from mistake, accident, or fraud by the state. The state’s demurrers to his said motion specifically challenged the sufficiency of it on these grounds. It is true the state further in its answer specially denies that the court ever quashed the indictment or entered any order on the docket or minutes quashing it, and sets up as a fact that the indictment was never quashed, but in passing ón the demurrers neither this nor the lower court can consider such allegations. This presents the only serious question in the case.

The civil courts have clearly established the following rules by a great many decisions to this effect: That in order to set aside a final judgment by default two things are positively required: (1) That the mover has a complete defense to the plaintiff’s cause of action; and (2) he must show a valid excuse for failure to plead his defense in time and before final judgment. See authorities collated in 11 Ency. Dig. of Texas Keports, p. 296 et seq., and those cited in the state’s brief. On the face of appellant’s motion, as stated, he set up what would have been a defense to any judgment against him as raised by the demurrers. The court sustained the state’s demurrers to his motion. He did not ask leave to amend, nor amend, to cover the point, but, instead, it seems, relied on his pleading as it was, without attempting to allege any excuse whatever why he had failed to answer in time. The appellant, as shown above, had from March 9, 1914, to February 14, 1916, nearly two years, to file his answer in defense. He did not do so. He waited until after final judgment against him, and then sought to have the judgment against him set aside, without in any way attempting to excuse his failure to answer. And he could have done this without sur-fendering and being personally present. 1-Ie could have done so, although still a fugitive from justice.

Without any discussion of the question this writer is of the opinion that the appellant had his day in court, and by his failure to answer setting up his said defense he, in effect, waived it, and, not setting up in his said motion for a new trial any excuse for his failure to answer, that the judgment should be affirmed.

But my Associates have reached the conclusion that the final judgment, under the appellant’s allegations that the indictment had been quashed being admitted by the state’s demurrers, is void, and that the cause should be reversed in order that the court below may try that question of fact.

■ The judgment is therefore reversed, and the cause .remanded.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MARTIN v. STATE.
    (No. 4071.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.
    Rehearing Denied June 7, 1916.)
    1. Homicide <&wkey;228(l) — Corpus Delicti — Pro op.
    Proof that death was caused by a criminal act, necessary in establishing the corpus delicti, is sufficiently made by the fact that deceased had ten wounds inflicted on the back of the head, four of a character to inflict death, and that a bloody hammer and bloody pillow slips, with hairs of deceased thereon, were found hid under the house and above the ceiling.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 471; Dec. Dig. <&wkey;228(l)J
    2. Criminal Law i&wkey;4G3 — Evidence—Opinions.
    Admitting statement of witness that the wounds in the back of the head would have produced death, made after he had described the wounds, and stated that the skull was soft and crushed, and the imprint of the hammer plainly visible, was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1052; Dec. Dig. <&wkey;>463,J;
    3. Criminal Law <&wkey;463 — Evidence—Opinions.
    After the hammer had been introduced in evidence, and its weight 1% pounds, and the length of its handle 1314 inches, shown, there was no error in allowing witnesses to state that death could be produced with it, by an ordinary man striking one in the back of the head with it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1052; Dec. Dig. <&wkey;>463.]
    4. Criminal Law <&wkey;406(3) — Evidence—Defendant’s Statements.
    Where defendant told persons that he was going to surrender, and asked them to accompany him, and some of them did so, his statements to them are admissible, he not being under arrest or restraint, and they not being officers.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 894; Dec. Dig. <&wkey;>406(3).J

      5. Criminal Raw <&wkey;468 — Evidence—Opinions.
    After witnesses had described the wounds, the half circle indentation made in the skin and skull, there was no error in permitting them to state that they could have been inflicted with an instrument like the hammer found under defendant’s house.
    [Ed. Note. — For other cases, see Criminal Raw, Cent. Dig. § 1052; Dec. Dig. 4&wkey;463.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    J. A. Martin was convicted, and appeals.
    Affirmed.
    J. W. Conger and Gaines & Corbett, all of Bay City, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged with murder, and when tried was found guilty of manslaughter, and his punishment assessed at three years’ confinement in the state penitentiary.

The evidence would show that appellant had at his home a considerable quantity of whisky, and deceased, R. F. Reed, went over to his house on the morning of June 14, 1914. They both got drunk and went to sleep, waking up late in the afternoon. Just after dark appellant told some witnesses that “he had killed Reed — that he had it to do.” A number of citizens then went to appellant’s home and found Reed lying on the floor. On the back of his head were ten wounds, four of them crushing the skull, according to Mr. Shurtz. There were also three other wounds on deceased’s back. Some of the witnesses say that appellant admitted he had hit deceased with a hammer. A hammer was found under the house of appellant, with hair on it the color of the deceased’s hair, and •some blood. The handle of the hammer was 13% inches long, and the hammer weighed 1 pound and 4 ounces. There was also found above the ceiling of the house a bloody pillow ■slip, sheet, and other articles. On the pillow slip was found hair the color of that on the hammer, and the color of the deceased’s hair. Appellant contends that this evidence would not sustain a finding, that deceased came to his death by the criminal act of appellant. It is true, as he contends, that in establishing the corpus delicti, not only must it be proven that the man has been killed, but also that a criminal act caused his death, but we think the fact that deceased had ten wounds inflicted on the back of his head, four of a character to inflict death, that the hammer was found hid under the house, and the bloody pillow slip, sheet, etc., were found hid above the ceiling, would support a finding that death was criminally caused. Of course, if the jury had found that “appellant had it to do,” as he stated, he should have been, and would have been, acquitted under the court’s charge.

Appellant’s defense was self-defense, and a right to eject from his premises. Both issues were submitted in the charge given the jury in a manner not complained of by appellant.

Appellant objected to witnesses who examined the body of the deceased, stating that the wounds in the back of the head would have produced death. After describing the wounds and stating that the skull was soft and crushed and the imprint of the hammer plainly visible, we do not think there was any error in admitting this testimony. After the hammer had been introduced in evidence, the length of the handle and the weight shown, we do not think there was error in permitting the witnesses to state that death could be produced with it by an ordinary man striking one in the back of the head with it.

The statements of appellant introduced in evidence were admissible, as he was not under arrest when made. He told the witnesses he was going to Bay Gity to surrender, and asked them to go with him. Those who accompanied him at his request were not officers of the law, and appellant was under no restraint when he made the statements.

After describing the wounds, the half circle indentation made in the skin and skull, there was no error in permitting the witnesses to state the wounds could have been inflicted with an instrument like the hammer-found under appellant’s house, with blood and human hair on it.

This disposes of all the bills of exception in the record; and, while the circumstances testified to by appellant and his wife were certainly very aggravating, and the jury must have so found to have inflicted so mild a punishment, yet the record before us presents no error in the trial of the case.

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


author: PBENDERGAST, P. J.

text:
    HUMPHRIES v. STATE.
    (No. 4044.)
    (Court of Criminal Appeals of Texas.
    April 19, 1916.
    Rehearing Denied June 7, 1916.)
    1. Prostitution &wkey;j4r — Sufficiency of Evidence.
    Evidence in a prosecution for pandering', held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. &wkey;s4.]
    2. Prostitution <&wkey;l — Construction of Statute.
    Under the statute (Acts 32d Reg. c. 23), providing that any person who shall procure, or attempt to procure, or be concerned in procuring, with or without her consent, a female for a house of prostitution, etc., shall be guilty of pandering, it makes no difference whether the female at the time is a virtuous woman or a prostitute.
    [Ed. Note. — For other cases, see Prostitution,. Cent. Dig. §§ 1, 2; Dec. Dig. <&wkey;l.]
    3. Criminal Raw &wkey;949(3) — Appeal—Discretion of Trial Court — Motion for New Trial.
    Defendant within two days after conviction on December 17th, filed a motion for a new trial, and on December 27th, obtained leave to file an amended motion on the ground of newly discovered evidence, and on the hearing of the motion offered other witnesses and, without, withdrawing his announcement of ready or his motion or otherwise postponing the hearing, filed a supplemental motion to amend his motion for a new trial. Held, in view of the trial court’s qualification of the bill by stating that no excuse was shown why defendant had not included such allegations in his amended motion, that the refusal to permit the filing of the supplemental bill was not an abuse of discretion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2343; Dec. Dig. <S^>949(3).]
    4. Criminal Daw <&wkey;1144(18) — Appeal—Presumptions.
    The Court of Criminal Appeals will presume that the trial court’s action, after hearing evidence on a motion for a new trial, was correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036; Dec. Dig. 1144(18).]
    5. Ceiminal Law <&wkey;942(l) — New Trial —
    Newly Discovered Evidence.
    A new trial will not be granted to enable the defendant to obtain witnesses to impeach the state’s witnesses.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 2331; Dec. Dig. &wkey;942(l).]
    6. Criminal Law <&wkey;10S3 — Appeal—Jurisdiction.
    Where the lower court overruled defendant’s motion for a new trial, and defendant gave notice of appeal, which was then duly entered and on the same day was sentenced' and entered into a recognizance and was discharged from custody, the district court lost jurisdiction, and the Court of Criminal Appeals obtained jurisdiction of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. <&wkey;>1083.]
    7. Criminal Law <&wkey;10S3 — Motion por New
    Trial — J urisdiction.
    Where the district court lost jurisdiction of the case by reason of defendant’s appeal, recognizance, and discharge from custody, it properly refused to permit him to file another motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2732; Dec. Dig. &wkey;>1083.]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Harry Humphries was convicted of pandering, and he appeals.
    Affirmed.
    Marsene Johnson, Aubrey Fuller, Elmo Johnson, and Boy Johnson, all of Galveston, for appellant. Charles H. Theobald, Co. Atty., W. B. Cranford and M. J. Levy, Asst. Co. Attys., all of Galveston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PBENDERGAST, P. J.

Appellant was convicted of pandering, and assessed .the lowest punishment. Appellant contends that the evidence is wholly insufficient to sustain the conviction. He frankly concedes that the law is, that if the evidence for the state in its most favorable aspect sustained the verdict, that was a question for the jury and the lower court, and this court cannot lawfully reverse on that ground, hut, as stated, he contends that the evidence for the state in its most favorable aspect does not sustain the verdict.

We have carefully read and studied the statement of facts. In our opinion, the evidence as a whole fully sustains the conviction, and in fact the evidence sustaining the conviction preponderated against appellant. We will not undertake to state all the testimony, nor that which if believed might have resulted in appellant’s acquittal, but we will state the substance of the material testimony sustaining the conviction.

It was shown by her own and other testimony that Marie Seifert, for some time prior to and at the time of the commission of this offense, was a common prostitute. That she was then located and engaged in that business in Houston. That Julia Peebles, in effect, was at that time also a prostitute and was the proprietress and ran and operated a house of prostitution in Galveston, and that appellant lived with her in that house at that time, and had for some time prior thereto, and subsequently. That after he was indicted in this ease, he married Julia Peebles, probably to prevent her testifying against him. At any rate, she did not testify at all in this case. Marie Seifert testified that she first met appellant in a drug store in Houston, and was there introduced to and had a conversation with him. That he asked her to go to Galveston and stop at the Albion Hotel, which was the whorehouse shown to have been run by Julia Peebles, his then paramour. That he told her she could do better over there than she had been doing in Houston. That she could make more money there in Galveston in her business, that of a common prostitute. Upon this solicitation by him of her to go to Galveston and become an inmate of said house there, she told him she would see about it. That about a week later he went out to the house of prostitution of which she was then an inmate in Houston and saw her again about going to Galveston and asked her if she would not go to Galveston to said house there, and she told him she would. He told her to go to that particular house in Galveston. That he then gave her $3 to buy her transportation and go to Galveston on, and that therewith she bought a ticket to Galveston and went there and became an inmate of said house in Galveston, and there plied her vocation for some time. That she went from the house of prostitution in Houston, where this last solicitation by appellant of her was made, to the Interurban Railroad station in Houston. That appellant himself did not at that particular time return to Galveston, but did return the next day. That she went to Galveston on this interurban train at the time in company with another man. She then showed that appellant lived in said house of prostitution in Galveston with Miss Peebles, his paramour. That he stayed there day and night. It was further shown that she and each of the other prostitutes, there being some two or three others, who stayed at said house in Galveston and plied their vocation, paid to Miss Peebles, the proprietress, $5 a week for their board and room, and that, in addition, each time any man visited them and did business with them, each of the inmates had to pay, and did pay, to Miss Peebles $1 for each man. It was further shown that after Marie Sei-fert and the other prostitutes had been in said house in Galveston for. some three months, Miss Peebles became enraged at her and burned up her clothes and put her out of the house, because she claimed that Marie had permitted her paramour (appellant) to have intercourse with her, and that she then and thereupon became very much outraged and very hostile to both Julia Peebles and appellant, because of the burning of her clothes and her being put out of the house. As stated, it is unnecessary to state appellant’s testimony denying that of Miss Marie Seifert, but Marie Seifert’s testimony was corroborated in the material points by the testimony of others and some of the material circumstances.

Appellant contends, in substance, that, because Marie Seifert was a common prostitute before, and was in a house of prostitution in Houston at the time, he solicited her and induced her to go from there to said house in Galveston, he was not guilty, because, as he contends, the law was not intended to embrace a’person for inducing a common prostitute of any one house to leave that house and go to another house of prostitution in another county. That it was intended to protect the innocent and virtuous female. Ptis contention is not the law. What he is shown to have done is clearly embraced within the statute, and it is just as much against the law for a person to procure a whore to go into and become an inmate of a house of prostitution, even though she has prior thereto been in another house in another county in the same business as it is to get a virtuous woman to do so. The statute is:

“Any person who shall procure, or attempt to procure, or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution,” etc., “shall be guilty of pandering.” Acts 32d Leg. c. 23.

It makes no difference whether the female at the time is a virtuous woman or a prostitute. Clearly what appellant did is embraced within the very terms of the statute, and we have no right or power legally to so construe the statute .as to hold that it means the reverse of what it says. We have already held that, under this statute, it makes no difference whether the woman was virtuous or not. Currington v. State, 72 Tex. Cr. R. 143, 161 S. W. 478. Other cases are to the same effect.

Appellant was indicted July 27, 1915. It seems that he continued the case at the first term at which the case was called for trial. His trial and conviction were had on December 17, 1915. Within two days he filed a motion for a new trial. On December 27, 1915, he procured leave of the court to file an amended motion for new trial, and on that day filed such amended motion, to which he attached the affidavits of a number of persons of Houston, whO' swore that said Marie Seifert was a common prostitute and her reputation for truth and veracity was bad, and claimed that their testimony was newly discovered, setting up these matters in his said amended motion. This motion came on to be heard by the trial judge on January 11, 1916, at which time both parties announced ready therein, and the appellant offered, and the court heard, certain testimony on said hearing, which in no way by bill of exceptions or statement of facts is shown in this record. Under a uniform holding of this court, we must, and do, presume that the court’s action after hearing said evidence was correct. Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 723; Ethridge v. State, 74 Tex. Cr. R. 638, 169 S. W. 1152, and cases cited therein. However, on that hearing, appellant offered some other witnesses, who would swear to other claimed admissions by the state’s witness, Marie Sei-fert, showing her hostility to appellant’s said wife, which the court excluded on the state’s objections, claiming, which was true, that it was not embraced in his motion for a new trial. Appellant then sought, without withdrawing his announcement of ready on his motion, or otherwise seeking to postpone the hearing, to then file an additional motion or supplemental motion to his amended motion for a new trial, pleading these matters. Upon the state’s objection, the court in his discretion declined to permit him at that late date under the circumstances to file a supplemental motion for a new trial. The court, in approving his bills on the subject, qualified them by stating that no excuse was shown by him why he had not included such allegations in his amended motion, he having had ample time and opportunity to do so, and that the claimed testimony was simply a cumulative attack on said state’s witness. Taking appellant’s bills as qualified by the court, which must be done, none of them show any error. The trial judge did not abuse his discretion hr refusing to allow appellant at that late date and under the circumstances to file a supplemental amended motion.

Besides, the testimony, even if admitted, would not have entitled him to a new trial. This court all the time has held that even a motion for a continuance will not be granted for the defendant to obtain witnesses to impeach the state’s witnesses, much less grant a new trial for that purpose.

The court overruled his motion for a new trial on January 11, 1916, at which time he gave notice of appeal to this court, which was duly then and, there entered, and on the same day he was sentenced, and at the same time he entered into a recognizance and was discharged from custody. Thereupon, under the statute and uniform decisions of this court, the district court lost jurisdiction, and this court obtained it, of said case. Therefore the court did not err in several days thereafter refusing to permit Mm to file and the court to hear another motion for a new trial. He at that time, not- even offering to withdraw his notice of appeal, nor delivering himself into the custody of the sheriff. The court in qualifying his bill states that at the time when said last motion was presented to him, it was after the overruling of his other motion for a new trial, and he was out on bond; that he never withdrew said notice of appeal or surrendered himself, and that the district court had lost jurisdiction. The court thereupon declined to consider such so-called supplemental motion further than to read it and refuse to allow it to be filed, and further stated that it showed no diligence and no excuse for not being sooner presented. The court’s action was correct. Tores v. State, 74 Tex. Cr. R. 37, 166 S. W. 523, and cases there cited; Walker v. State, 181 S. W. 192.

No error being shown, the judgment will be affirmed.
      i@=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      dfcxiFor other cases see same topic and KEY-NUMBER in all Key-Numbered' Digests and Indexes


text:
    RODRIQUES v. STATE.
    (No. 4063.)
    (Court of Criminal Appeals of Texas.
    May 10, 1916.
    Rehearing Denied June 7, 1916.)
    1. Homicide &wkey;>300(7) — Self-Defense — Instructions — Theeats.
    Where no one was present at the scene of the homicide except deceased and accused, and accused testified that deceased drew his pistol and shot at accused, the court, in addition to instructions as to self-defense if it was found that deceased so attacked accused, is not required to give separate, distinct charges on self-defense, as justified by threats by deceased, since there was in the case no apparent danger to accused as distinguished from danger from actual attack.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 622; Dec. Dig. <¿=>300(7).]
    2. Criminal Daw @=>1056(1) — Appeal and Error — No Exception Below.
    Where no exception is taken to a charge by the court below, it cannot be considered for'the first time on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. <&wkey;> 1056(1).]
    ■3. Criminal Law <&wkey; 1090(7) — Appeal and Error — Necessity of Exception — Continuance.
    Where no bill of exceptions was reserved to the action of the lower court in overruling application for continuance, such action could not be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. @=>1090(7).]
    4. Homicide <&wkey;217 — Evidence—Dying Declaration Reduced to Writing — Preliminary Evidence.
    Where it was shown that proper search had been made for the writing to which dying declarations of deceased had been reduced and it was lost, oral proof of the declarations was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 462; Dee. Dig. <¿=>217.]
    Appeal from District Court, Ward County; S. J. Isaacks, Judge.
    Selestino Rodriques was convicted of murder, and appeals.
    Affirmed.
    Howell Johnson, of Ft. Stockton, John B. Howard, of Pecos, and E. C. Gaines, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, from which judgment he prosecutes this appeal. No one was present at the scene of the homicide except deceased and appellant. The state’s case is made by the dying declarations of the deceased, and he said that as he was on his road home from Grand Falls appellant “came out from the shade of some cedar trees and shot him without saying anything.” This declaration, in substance, was proven by a number of witnesses. Appellant testifies that as he was on the road to Jesus Ontiveros’ house he met deceased in the road, and deceased said: “Here you are, you d-d s-n of a b-h.” And appellant further testifies: “And as he said that he jerked his pistol from under his leg, and fired a shot at me.” That he then drew his pistol and shot deceased.

That ill will existed between appellant and deceased is shown by both the testimony for the state and that of appellant. The state's contention is that appellant had been having illicit intercourse with deceased’s stepdaughter, and deceased was endeavoring to force appellant to marry the girl. Appellant’s contention is that he was very desirous of marrying the girl, and deceased was objecting to the marriage. No matter which theory is the correct one, it is apparent from the record that deceased felt unkindly towards appellant and had made threats to kill him and do him serious bodily injury, which threats, according to appellant, had been communicated to him. The ’court submitted self-defense, instructing the jury that, if they believed from the evidence deceased made an attack upon the appellant by shooting at him with a pistol, thereby causing the appellant to have a fear of death or serious bodily injury, and, acting under such reasonable expectation or fear, the defendant killed deceased, they would find him not guilty. This presented the issue directly as made by the testimony of appellant.

Appellant insists that, in addition to giving this charge, the court should have given separate, distinct charges on self-defense, viewed in the light of the communicated threats. He cites the case of Spangler v. State, 42 Tex. Cr. R. 233, 61 S. W. 313, and other cases. We do not think they, or either of them, when construed in the light of the facts in those cases, support appellant’s contention; for in each of those cases it is shown that apparent clanger, viewed from the standpoint of appellant, as well as danger from an actual attach, was in the ease. The true rule, as has always been recognized in this court, was correctly stated by Judge Davidson in the case of Fielding v. State, 48 Tex. Cr. R. 335, 87 S. W. 1044, in which case he discusses when a charge on threats is required to be given and when not required. He says;

“This is the case where threats are relied on in cases of apparent danger, and is not like a case where the danger has passed beyond appearances, and become merged in actual danger, as where the party making threats has actually fired or made the deadly attack upon the threatened party as was the case in Barnes v. State, 39 Tex. Cr. R. 184 [45 S. E. 495]. In that case it is held: ‘Where in a case of murder, or an assault with intent to murder, or in any character of an assault and battery, except an assault with intent to rape, etc., the defendant relies upon threats communicated, the threats can serve but two purposes: First, to solve the probability as to who began the violence; second, to give character to or intensify an act of the adversary. To illustrate: A. and B. aré quarreling or engaged in a wordy altercation. B. places his hand to his hip. A. shoots or shoots at or strikes him. In the absence of threats, the act of A. would not have that significance as if, under the same state of facts, B', had made threats which had been communicated to A. Take the case in hand: There was a dispute between the prosecutor, Landrum, and appellant, as to the amount appellant owed the prosecutor. The prosecutor places his hand behind him, or to his hip, and appellant draws a pistol, and shoots at him. Threats communicated would have an important bearing in such case. But suppose that the prosecutor, instead of merely placing his hand to his hip or behind, draws a pistol and fires at appellant; threats would have no bearing on the case, because appellant would be perfectly justified in shooting independent of threats. Now, there is no act of the prosecutor, under the appellant’s theory, which can be viewed in the light of threats, so as to give significance thereto. If appellant’s theory be true, he did not need the threats to acquit him. The act of the prosecutor was such as to require no explanation. The prosecutor shot at Mm without any provocation whatever; and, if the jury did not believe this, there was no theory of the case presented by the evidence in which threats could have figured at all. Threats, as before stated, are used for the purpose of giving character and significance to doubtful cases; but, where the case is one in which the adversary uses a deadly weapon in a deadly manner, threats can serve no purpose whatever, save and except as tending to shed light upon who began the difficulty. If the jury failed to believe the theory of the defense, then they believed that of the state, which was that, without any provocation whatever, appellant made a deadly .assault upon the prosecutor. If the jury believed the defendant’s testimony, a verdict of not guilty should have been rendered, whether or not threats had been made.’ In the case before us, however, there was only a demonstration to draw a pistol, and the facts bring this case within the rulo laid down in Alexanders and Williams Oases, supra.”

See, also, Bankston v. State, 175 S. W. 1069, and cases cited.

Appellant in this court for the first time complains that the charge in the paragraph on self-defense did not specifically apply the doctrine of reasonable doubt to that paragraph of the charge. It has frequently been held that it is better that this he done, but charges similar to the one given have been held not' to present reversible error, wherein the reasonable doubt is applied to the whole case, as is done in this case. Edens v. State, 41 Tex. Cr. R. 522, 55 S. W. 815. However, appellant did not reserve any exception to this paragraph of the charge in the court below, because the reasonable doubt was not specifically applied to that paragraph of the charge, and seeks to raise such question for the first time in this court. Under all of our decisions, even prior to the amendment of article 743, the rule is stated to be that such matter cannot be considered by us when so raised for the first time.

No bill of exceptions was reserved to the action of the court in overruling the application for a continuance; consequently that ground of the motion is not presented in.a way we can review it. Branch’s P. 0. § 304, p. 183.

There are several bills in the record objecting to the admissibility of oral proof of the dying declarations; as the declaration had been reduced to writing. Inasmuch as the written statement had been lost, and proper search is shown to have been made, there was no error in admitting the oral proof of the declarations. The evidence clearly shows that deceased was conscious of approaching death and was sane.

The judgment is affirmed.
      lgs^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes