author: DAVIDSON, J.

text:
    SAMPLES v. STATE.
    (No. 4304.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.
    Rehearing Denied Dec. 27, 1916.)
    1. Criminal Law <§=>1099(6) — Appeal—Time
    03? APPEAL — STATEMENT 03? FACTS. Appellant has 90 days from the date of sentence in which to file statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2877; Dec. Dig. <§=>1099 (6).]
    2. Criminal Law <§=>1092(9) — Appeal—Time BOR APPEAL — BILL OP EXCEPTIONS.
    To authorize the filing of bills of exception, an extension order should be made before the expiration of 30 days from the date of sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2857-2860; Dec. Dig. <§=> 1092(9).]
    3. Criminal Law <§=>1038(1) — Appeal—Objections Below.
    Where the first objection to a charge of the court is in accused’s motion for new trial, it is not reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. <¿=1038(1).]
    4. Criminal Law <§=>1083 — New Trial — Loss op Trial Court’s Jurisdiction by Appeal.
    Where trial court has lost jurisdiction by sentence being pronounced, notice of appeal given and appeal recognizance entered into, motion for new trial cannot be considered; appellant’s remedy being to surrender himself, withdraw the notice of appeal, and ask an opening of the case.
    [Ed. Note. — For other cases, .see Criminal Law, Cent. Dig. § 2732; Dec. Dig. <§=> 1083.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    F. S. Samples was convicted of receiving stolen property, knowing it to have been acquired by means of theft, and appeals.
    Affirmed.
    S. O. Jones, of Wichita Falls, for appellant. 0. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of receiving stolen property, knowing it to have been acquired by means of theft.

The court lasted over eight weeks; sentence was pronounced upon appellant on the 12th day of August; court adjourned on the 4th day of September. Under the law, as announced by the recent decisions, appellant is allowed 90 days from the date of sentence in which to file statement of facts. There was an order of the court entered, extending the time in which to file statement of facts and bills of exception, on'the 29th day of September, which was more than 30 days after final judgment. The order of the district court did not authorize the filing of bills of exception, which' occurred in the early part of November. In order to authorize the filing of bills of exception, the extension order should have been made before the expiration of 30 days from the date of the sentence. This eliminates the bills of exception. The statement of facts was'filed within the ,90 days, authorizing such filing, and shows that appellant received the property, knowing it to have been stolen. This is the state’s case. Appellant denies this, and introduced evidence showing that Miller, the accomplice from whom he received the property, left it with him, and finally gave some of the stolen property to him with the statement that he had won it in the oil field in a poker game. In other words, under appellant’s theory and evidence, Miller did not steal the property, but won it in a game and gave it to appellant. These issues were submitted to the jury, and the case went against appellant.

The couirt’s charge is defective in submitting the issue of accomplice testimony. No exception was taken to this, however, at the time, and the first notice was taken by appellant in his motion for a new trial and then in a very general way. He asked a charge, which the court refused, which would have corrected one of the errors in the court’s charge on that question. To this he reserved no exception, but brought it in his motion for new trial. It seems that under our recent statute and decisions construing it this would be too late. Those matters, therefore, cannot be revised.

There is another question which will be noticed. Appellant’s motion for new trial was overruled and sentence pronounced, notice of appeal given, and an appeal recognizance entered into. The recognizance was entered, into on the 19th day of August, 1916; the sentence was pronounced on August 12, 1916, 7 days prior to entering into recognizance, and the motion for new trial was overruled on the 12th of August. So appellant, under these dates and this condition of the record, had been sentenced and recognizance entered into and all these matters disposed of by the 19th of August. On the 23d of August he filed what he denominates his “extraordinary motion for new trial.” This contains an affidavit as to newly discovered evidence of the accomplice, Miller, substantially that his testimony on the main trial was false. On the trial of the ease he testified he did not tell appellant that he had won the property in a poker game on the oil field, but that he told appellant, at the time he let him have the property, he had stolen it, and appellant received it, knowing it to have been stolen. Miller’s affidavit, attached to this “extraordinary motion for new trial,” states his testimony was false, and that he did inform appellant at the time he turned over the property to appellant, and finally gave it to him he did win it in a poker game on the oil field, and that his testimony on the original trial was all false, and that he made up that story to convict appellant on agreement with the 'officers that he (Miller) was to be released, hut he did not believe they were going to release him, and therefore he concluded that, as defendant was innocent, he had better tell the truth about it, and made this affidavit in direct opposition to his testimony on the trial. If presented so this court could consider it, this would be a very serious question, and which, in the judgment of the writer, ought to entitle appellant to a new trial below or a reversal on appeal; hut he presents it in such shape from the record that it cannot be considered. The court on motion of 'the district attorney struck it out and would not hear or consider it, because appellant had been sentenced, and had entered into a recognizance several days before his “extraordinary motion for new trial” had- been filed, and had gone from the court in the custody or in charge of his bondsmen or cognizors. If appellant had desired to obtain jurisdiction of the trial court, it still being in session, he could have surrendered himself to the court, withdrawn his notice of appeal, and asked an opening of his case again on the showing made, but none of this occurred so far as this record is concerned. Under this view of the case the court had lost jurisdiction. The general proposition may be correctly stated that the trial court has jurisdiction of its cases during its term, yet where appellant has ousted that jurisdiction, or rather attached the jurisdiction of this court in the manner here indicated, in order to invoke the jurisdiction of the district court again, he must surrender himself, or, in other words, he must place himself in such condition as to reinstate the trial court’s authority to act. This is in accordance with the decisions of this court.

Finding the record in this condition, we are of opinion, while these questions are of a serious nature, yet appellant has not placed himself in position to invoke the revisory power to this court.

The judgment therefore will be affirmed.

HARPER, J., absent.
      <£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    OWENS v. STATE.
    (No. 4299.)
    (Court of Criminal Appeals of Texas.
    Dec. 13, 1916.)
    1. Libel and Slander 4*=»152(5) — Evidence —Indictment and Proof — 'Variance.
    Since the facts of the alleged slander must be proved and must correspond with the allegations in the indictment, the offense of slander alleged to have been committed by communicating certain words to certain persons is not made out by a showing that such words were communicated to one of such persons apart from the others.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 426, 427; Dee. Dig. 152(5)J
    2. Libel and Slander <S=-1B2(5) — Evidence —Indictment and Proof — 'Variance.
    An indictment for slander alleging that accused said of a certain girl that he had had sexual intercourse with her, will not support a conviction where the only evidence was that of certain witnesses that he told them that he had got a piece from her, since the language of an indictment for slander must be proved as laid or substantially so.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 426, 427; Dee. Dig. <§=»
    3. Criminal Law <&=3678(1) — Trial — Election of Offenses — When Necessary.
    Where, in a prosecution for slander, evidence of alleged slanderous statements on several occasions is introduced, it is error to refuse to compel the state to elect upon which occasion it will rely.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1580; Dec. Dig: <§=^678(1).]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Grover Owens was convicted of slander, and he appeals.
    Reversed and remanded.
    A. W. Gibson, of Rogers, and W. W. Hair, of Temple, for appellant. O- 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of slander, his punishment being assessed at a fine of $500.

The information, omitting formal parts, charges:

That appellant did “unlawfully, orally, maliciously, and wantonly impute to a female in this state, to wit, Ethel Ford, a want of chastity, the said Ethel Ford being then and there an unmarried female, in this, to wit: The said Grover Owens did then and there in the presence and hearing of Joe Lawhorn, Lester Law-horn, Lester Mays, and divers other parties say that he had had sexual intercourse with her, the said Ethel Ford, against the peace and dignity of the state.”

It will be observed that there is but one count in the information, and it charges the imputation of slander in the presence of the three above-named parties. Lester Mays testified that about a year before he testified defendant and himself were returning from prayer meeting at night; “no other person was with us; on that occasion defendant stated to me that he had had sexual intercourse with Ethel Ford.” Upon cross-examination, however, he makes this statement:

“Defendant did not say that he had had sexual intercourse with Ethel Ford; what he did say was, that he had gotten a piece of -from Ethel Ford. No one was there except defendant and myself, and the defendant never has at any time made that or any like statement to me when Joe Lawhorn or Lester Lawhorn, or any other person was present.”

Lester Lawhorn testified:

“Some time last fall while myself and Jim and Olan Bean were engaged in constructing a fence on my brother’s place, defendant came to where we were, and in the presence and hearing of myself and the two Bean boys said that on the road near Mr. Kinsey’s house that he had had sexual intercourse with Ethel Ford.”

On cross-examination, however, he said:

That ho “did not use the language ‘sexual intercourse’; what he did say in the presence of myself and the two Bean boys was, that he had gotten a piece from a girl on the way from church. Defendant did not say what girl it was in the presence of myself and the two Bean boys, but left us to surmise or guess who it was, but a little later after the defendant and I had separated from the Bean boys and were out of their hearing, I guessed it was Ethel Ford that he had been alluding to, and he admitted that it was.”

He further testified:

“Joe Lawhorn and Lester Mays were not there on that occasion, nor was there any person present on that occasion except myself and the two Bean boys and the defendant. Defendant never did at any other time say anything about his relations with Ethel Ford, except the time I am telling about, and no one was present except the defendant and myself at the time I guessed it was Ethel Ford he had reference to.”

There is a lot of testimony in the record that is thought to be material, in fact most of it, that brings in review the character and reputation of the girl, affirmed to be good by the state and denied by appellant’s evidence. There were several questions presented of rather vital importance on the testimony quoted..

Appellant contended, and contends here, that there was a variance between the proof and the allegation; second, that it brought in review several statements made at different times by appellant not in the presence of the parties set out in the information when they were together; third, that appellant objected to the testimony of these different witnesses because at variance with the allegations in the information; fourth, that if the testimony is admissible, then there being different transactions and only one count in the information, the state should have been required to elect upon which transaction it would rely for a conviction. These matters were presented by bills of exception to the introduction of the testimony, to the failure of the court to charge in accordance with the same idea and theory, to the overruling of his exceptions to the admission of testimony, and the rulings of the court refusing to require he state to elect. These matters are presented not only by bills of exception, but by special charges requested and refused, and by special exceptions to the court’s charge properly taken and verified.

Wherever the state sets out slander, the facts as stated must be proved and must correspond with the allegations in the information. Where the information, as in this ease, alleges that the slanderous words were uttered in the presence of three named parties, the proof must show that the imputation was made under the circumstances set out. It is a variance to allege that the imputed slander was uttered in the presence of two or more parties, when the state’s evidence shows that it was not so uttered, but was uttered at different times and to only one when the others were not present. These cases are well known. Some of them may be found in Mr. Branch’s Criminal Law, § 608. That author uses this language:

“If words are alleged to have been uttered to two persons at the same time, they must be proved as alleged, and proof that they were made to each of the parties at different times is a variance.” Knight v. State, 49 S. W. 383.

Again he states the rule:

“If the indictment unnecessarily names more than one person as having been present when the slander was- uttered, the allegation must be proved as laid, being descriptive.” Neely v. State, 32 Tex. Cr. R. 370, 23 S. W. 798.

This seems to be well settled.

Another variance urged by appellant is well taken. The language used in the information is not the language to which the witnesses testified. While on direct examination they used the expression “sexual intercourse,” yet upon cross-examination they testified that such language was not used. The language that was used on these different occasions has been set out above and unnecessary here to repeat. It is a well-settled rule in Texas by the decisions that the language must be proved as laid, or substantially so. The language set out in the information is not sustained by the language used by the witnesses. The writer does not care to follow or elucidate this question. One of the later opinions was rendered by Judge Harper in the ease of Golden v. State, 72 Tex. Cr. R. 19, 160 S. W. 957. See Simer v. State, 62 Tex. Cr. R. 515, 138 S. W. 388. This opinion was also written by Judge Harper. Again, when the testimony was introduced from the witnesses Mays and Lawhorn, the objection of the defendant should have been sustained on the theory of variance, if for no other reason; not only as to the directness of the slander in the presence of these parties together, but also as to the language used by defendant as they testified compared with that set out in the information. In addition to the decisions already cited see Collins v. State, 39 Tex. Cr. R. 33, 44 S. W. 846; Franklin v. State, 53 Tex. Cr. R. 550, 110 S. W. 909. Also see Mr. Branch’s Crim. Law under head of “Slander.”

The court having admitted this testimony, it was error then to refuse to require an election between these offenses, but that will pass out by reason of the variance above discussed. There were other charges asked along the same line submitting these matters which were refused by the court. We are of opinion they should have been given, but they are not discussed because upon another trial, should further prosecution be had, the case will be tried in accordance with what has already been said. The information must correspond to what has been above said as found in a long line of cases discussing this and kindred questions. We are not discussing a case where there are several counts in the information. This information had but one count. There were also some exceptions to the charge because it was on the weight of the evidence and shifted the burden of proof. These matters will be avoided upon another trial. As the record is presented to this court it is thus briefly disposed of, because it is thought unnecessary to write at length.

The judgment is reversed, and the cause remanded.

HARPER, J., absent.
      ^s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    SAPP et al. v. STATE.
    (No. 4241.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.
    On Motion to Revise and Reform Opinion, Dec. 20, 1916.)
    1. Homicide <@=>156(2) — Evidence—Motive.
    In a prosecution of brothers for the murder of the one who had killed the wife of one of defendants, deceased’s repeated declarations that defendant had hired him to kill defendant’s wife and was to pay him money therefor, where the circumstances tended to show that such declarations were brought to defendant’s knowledge, and that he thereupon induced the other defendant to join in killing deceased, were admissible against defendants to show motive.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 287; Dec. Dig. <@=>156(2).]
    2. Obiminal Law <@=>673(2) — Motive—Evidence.
    It is neither necessary nor proper to limit the evidence which goes to prove motive.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1874; Dec. Dig. <@=>673(2).]
    3. Conspiracy <@=>41 — Evidence—Conspiba-toks — Commencement of Conspiracy.
    One who enters into a conspiracy to commit a crime before the ultimate object of it is completed is deemed a party to it from its inception, and adopts as his own all the preceding acts of the others.
    [Ed. Note. — For other cases, see Conspiracy, Cent. Dig. § 74; Dec. Dig. <@=>41.]
    4. Criminal Law <@=>423(2) — Evidence—Declarations of Conspirators.
    The declarations or statements by conspirators, even if made before a conspirator entered into the conspiracy, are admissible against him, as well as against those who originally entered into the conspiracy, even though what was said or done by any of the others was done in his absence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 990; Dec. Dig. <@=>423(2).]
    5. Witnesses <@=>379(3) — Impeachment — Statements of Witness — Proof.
    In a prosecution for the murder of one who was alleged to have been hired by one of defendants to kill such defendant’s wife in pursuance of a conspiracy to marry and get her money, where a witness for defendant, in contradiction of the state’s testimony, stated that defendant soon after his marriage was very attentive to his wife, and that the relations between them were affectionate, testimony of witnesses that when defendant’s wife was lying dead the defendant’s witness had said that defendant had had her killed, and that it was a cold-blooded murder, and that defendant ought to be arrested, and that everybody knew defendant married his wife for her money, was inadmissible to impeach defendant’s witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. <@=>379(3).]
    6. Witnesses <@=>379(1) — Impeachment—Contradictory Statements.
    In such case, the state might impeach defendant’s witness by proving that she had made declarations prior to her testimony different from what she made along the same line at any other time prior thereto.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. <@=>379(1).j
    7. Criminal Law <@=>450 — Evidence—Opinion Evidence.
    Testimony of a witness that there was not any doubt but that defendants were guilty was a conclusion or opinion, and inadmissible.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1036; Dec. Dig. <@=>450.]
    8. Homicide <@=>169(1) — Admissibility of Evidence-Circumstances.
    A train conductor’s testimony that there was no doubt that deceased and one of the defendants got off his train at a certain time and place and took an automobile driven by the other defendant was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 341; Dee. Dig. <@=>169(1).]
    9. Witnesses <@=>398(3) — Impeachment — Character.
    Where a state’s witness was asked on cross-examination by defendants’ attorney whether or not she was a common prostitute, and she denied it, none of the officers could testify that her reputation was that of a common prostitute.
    [Ed. Note. — For other cases, see Witnesses,. Cent. Dig. § 1275; Doc. Dig. <@=>398(3).]

      10. Homicide @=3289 — Instruction — Evidence.
    In a prosecution of two for murder of a named person, a charge that defendants were indicted for the murder of such person and were on trial for that offense only, and could not be convicted of the killing of the wife of one of the defendants, or of another, but that the jury should consider the evidence as to the killing of those parties only on the question whether defendants killed the named deceased, should be omitted on defendants’ objection; but if necessary to caution the jury on another trial on that point the charge should not tell the jury directly that defendants killed either of those other parties, but should state that if the “testimony so shows or tends to show,” etc.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 594; Dec. Dig. @=>289.]
    11. Criminal Law @=3783(1) — Instructions —Evidence.
    In a trial for murder of one whom the state claimed had been hired by one of defendants to kill such defendant’s wife, a charge that the jury for no other purpose than passing on the question whether defendants or either of them killed the deceased, should consider the testimony offered with regard to the relationship of one defendant and his wife after their marriage should not be given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1872-1874, 1876; Dec. Dig. @=3783(1).]
    12. Witnesses @=3337(5) — Impeachment — Conviction.
    It is always permissible to impeach an accused to show by him_on his cross-examination that he had been indicted or convicted 'of any felony if not too remote.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1132,1140-1142, 1146-1148; Dec. Dig. @=>337(5).]
    13. Witnesses @=>337(5) — Impeachment—Examination — Conviction oe Felony.
    It was not permissible to require an accused in testifying to state whether he had committed any other offense, and whether he had been arrested on complaint therefor, if sufficient time had in fact elapsed to show that the grand jury had had an opportunity to investigate and had not found the bill of indictment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1132,1140-1142, 1146-1148; Dec. Dig. @=3337(5).]
    14. Criminal Law @=>792(3) — Trial — Instruction — Principals.
    In an instruction defining who are principals, the court should only quote that part of the statute relating to principals, omitting the part not applicable to principals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. @=> 792$).]
    On Motion to Revise and Reform Opinion.
    15. Criminal Law @=>423(2) — Evidence — Declarations oe Conspirators.
    Declarations of a coconspirator are admissible against all the parties to the conspiracy whether they heard it or had it communicated to them or not.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 990; Dec. Dig. @=>423(2).]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    E. E. Sapp and Lou Sapp were convicted of murder, and they appeal.
    Reversed and cause remanded.
    F. J. & C. T. Duff, of Beaumont, Mantooth & Collins, Denman & Thomas, and I. D. Fair-child, all of Lufkin, J. J. Collins, of Huntington, and Howth & Adams, of Beaumont, fox-appellants. W. R. Blain, of Beaumont, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellants were indicted and tried jointly for the murder of Dick Watts.' They were found guilty, and their punishment assessed at 40 and 20 years, respectively, in the penitentiary. The record, statement of facts, and briefs for both sides are very voluminous. There are apparently, however, but few questions necessary to be decided. In view of the disposition we make of the case, we will not state at any length nor discuss the testimony.

The testimony was wholly circumstantial. The theory of the state substantially was that appellant E. E. Sapp originally entered into a conspiracy with others by which it was contemplated and intended that he should marry a rich old widow, he being a young man, manage to get possession of her property, and then make way with or kill her so as to get rid of her and ultimately to divide the property with the other conspirators. It also embraced the making way with or killing the witnesses to the murder of his wife. In fact, it embraced doing any and everything that was necessary not only to kill the woman, but prevent conviction therefor — all to accomplish the end of getting her property and dividing it between the conspirators. That Lou Sapp entered the conspiracy with his brother E. E. after the killing of E. E.’s wife, and included making way with by killing the deceased Watts, who killed E. E.’s wife, and Havard, who was a companion of him at the time and knew all about it, thereby preventing the conviction of E. E. Sapp for murdering his wife, or having it done, and to succeed later in securing her property through a will she had executed in E. E. Sapp’s favor and dividing her property as stated. There was an abundance of proof introduced by the state circumstantially tending to prove the theory of the state.

Appellant has a very large number of bills of exception, some to the introduction of testimony, others to the exclusion of it, and others to charges given and charges refused. Many of them raise the same or kindred questions.

It was established without controversy that the deceased, Dick Watts, killed the wife of E. E. Sapp by shooting her in the back. Appellants claimed this was accidental. The state’s theory was that appellant E. E. Sapp hired Watts to kill her, and that Havard knew all this and was a companion of Watts in this matter. The state introduced the testimony of several witnesses, who testified substantially to Watts’ repeated declarations, and also some by Havard, to the effect that E. E. Sapp had hired him to kill said Sapp’s wife and was to subsequently pay him a considerable sum therefor. The circumstances would tend strongly to show that this was brought to the knowledge of E. E. Sapp, and that thereupon he induced his brother Lou to aid him, and that his brother did aid him, in corralling 'Watts and Havard, getting them drunk, or while drunk, enticed Watts at least away from Beaumont, where they all then were, taking him on the train and in an automobile into the big thicket in Hardin county where they murdered and buried him, and his body was a few weeks thereafter found and identified. All this testimony objected to, as shown by appellant’s bills, was clearly admissible against both appellants to show motive. It has always been held by this court that such testimony was admissible for that purpose. White’s An. C. C. P. art. 796, §§ 1070, 1072, 1074, subd. “c.” Judge White collates many cases under these sections. See, also, Belcher v. State, 71 Tex. Cr. R. 653, 161 S. W. 459; Lane v. State, 73 Tex. Cr. R. 268, 164 S. W. 378.

It is also well established that it is neither necessary nor proper to limit testimony which goes to prove motive. 2 Branch’s An. P. O. § 1885, p. 1047„ where he collates some of the authorities.

It is also well established that every one who enters into a conspiracy to commit a crime before the ultimate object and purpose of it is completed is deemed a party to it from its inception, and that he adopts as his own all the preceding acts of the others, and that their declarations or statements made before he entered into it are admissible as against him, as well as those who originally entered into it, even though what was said or done by any of the others was done in his absence. The principles applicable to this question and the authorities of this state establishing them are so plainly and clearly laid down in 1 Branch’s An. P. 0. §§ 693, 694, that we deem it unnecessary to elaborate them. We have recently in some cases restated and applied these principles.

Mrs. Oorley was a witness for appellants, and from their standpoint gave material testimony in their favor substantially to the effect, in contradiction of some of the state’s testimony, that E. E. Sapp soon after he married Mrs. Sapp, who was killed, was very attentive to her, and she was very much attached to him and frequently stated to her and wrote her letters, all tending to show that the relations between E. E. Sapp and his said wife were cordial, affectionate, and that she had confidence in him, etc. Eor the purpose of impeaching her, the court permitted several witnesses to testify in substance that at the time Mrs. Sapp was lying a corpse soon after she was killed, Mrs. Oorley said: “Boor old thing, Sapp had you killed;” and that she said: “It is a cold-blooded murder, and Sapp ought to be arrested right now; that everybody knew Sapp married her for her money, and that was a poor way to get rid of her.” Clearly all this testimony by these several witnesses was inadmissible and has uniformly been held so by this court since the rendition of the opinion in Drake v. State, 29 Tex. App. 270, 15 S. W. 725. The state, if it could, would be permitted to impeach Mrs. Oorley by proving that she made declarations prior to her testimony herein different from what she made along the same line at any other time prior thereto, whether at the time Mrs. Sapp was lying a corpse or not, but the proof by the witnesses objected to should have been excluded. It was wholly inadmissible under the line of authorities stated.

Another of appellants’ bills shows that A. Hard, who was conductor on the Santa Fé train from Beaumont to Lumberton, testified in substance that persons answering the description of Lou Sapp and Dick Watts did not travel on his train from Beaumont to Lumber-ton on January 7th. The state, by its witness Jarvey, was permitted in impeachment of Hard, to prove that Hard at Cleveland in February or March told him that “there was not any doubt that the Sapps were guilty,” and that “there was not any doubt but that Lou Sapp and Dick Watts got off that train on January 7, 1915, at Lumberton and became passengers in an automobile driven by E. E. Sapp.”" The first part of Jarvey’s testimony to the effect as just stated above that there was not any doubt but that the Sapps were guilty was also wholly inadmissible, and the court erred in admitting that part of Jarvey’s testimony. The other part just above stated, we think, was admissible; that is, that Hard on this occasion said to him there was no doubt but that Lou Sapp and Dick Watts got off that train on January 7, 1915, at Lumberton, etc.

None of the testimony of the officers shown by appellants’ bill of exceptions No. 22 was admissible. The most that the state’s witness Mary Keith could have been asked on cross-examination by appellants’ attorneys was whether or not she was a common prostitute. This was asked her, and she denied she was. This concluded the inquiry into this subject, and none of the officers could testify that her reputation was that of a common prostitute; nor was any of the other testimony by these officers, as shown by this bill, admissible. McCray v. State, 38 Tex. Cr. R. 609, 44 S. W. 170, and other authorities cited in Wilson v. State, 71 Tex. Cr. R. 428, 160 S. W. 967.

In appellants’ bill No. 10 they complain of that paragraph of the court’s charge to the effect that appellants were indicted for the murder of Watts, and were on trial for that offense only, and they could not be convicted for the killing of Havard or Mrs. Sapp, but they could consider the evidence touching on the killing oí these parties, Havard and Mrs. Sapp, for the purpose of enabling them to pass on the question of whether, or not defendants, or either of them, killed Watts, and for no other purpose. Appellants’ objection to this charge was that the court ought to have told the jury that they could consider the testimony of the killing of Havard and Mrs. Sapp only for the purpose of showing motive on the part of defendants to kill Watts. As shown above, it would be improper for the court to charge on any testimony which would tend to show motive for the crime charged in this case. The idea of the court in giving that charge seemed to be to prevent the jury from convicting the appellants for killing Dick Watts, because they had killed Havard or Mrs. .Sapp. If appellants object to any such charge on another trial, the court should omit it. We cannot see how the jury could be misled to convict appellants for the killing of Havard or Mrs. Sapp on a trial under an indictment charging them with the killing of Watts only. If it becomes necessary to caution the jury on another trial, on this point then such charge should be so worded as not to tell the jury directly that appellants killed either Havard or Mrs. Sapp, but that if the testimony so shows or tends to show.

Appellants objected to another charge of the court, which in substance was that they could consider for noi other purpose than passing on the question of whether or not defendants, or either of them, killed Watts that testimony introduced with regard ■to the relationship of E. E. Sapp and his wife Ellen as to how they got along as man and wife after their marriage. This charge should be omitted on another trial.

It is always permissible for impeachment of an accused to show by him on cross-examination that he has been indicted or convicted of any felony, if not too remote, but it is not permissible to require an accused when testifying to show by him that he has committed any other offense, whether arrested on complaint therefor or not, if as. a matter of fact sufficient time has elapsed thereafter to show that the grand jury has had an opportunity to investigate and act upon it and have not found a bill of indictment. Wright v. State, 63 Tex. Cr. R. 429, 140 S. W. 1105. The court, therefore, committed an error in permitting the state to have Lou Sapp testify on cross-examination to the effect that he had before that killed a man in Louisiana, for which, it seems, he had not been indicted, and also by requiring E. E. Sapp to testify to shooting his brother-in-law, for which he had not been indicted, as shown by appellants’ bills Nos. ■41 and 42.

Complaint is also made by appellants of the charge in that in defining who are principals, the court in substance quoted that part of the statute to the effect that one is a principal who not being actually present keeps watch so as to prevent the interruption of those engaged in the commission of the offense. And also those are principals who endeavor at the time of the commission of the offense to secure the safety or concealment of the defendants. It seems the court merely in substance quoted the statute in these respects and did not submit any issue of that kind to the jury for a finding. However, only that part of the statute applicable should be stated in the charge, and that part of it relating to principals which is inapplicable should not be quoted. This, we think, would not have presented reversible error. But for the very purpose of preventing objections to the charge, such matters which are inapplicable should not be included therein.

We have carefully considered all of appellants’ assignments, but have deemed it unnecessary to take them up and discuss them separately. None of them present any reversible error, except as shown above. Some questions are assigned which doubtless will not arise on another trial. It is unnecessary to discuss them.

For the errors above pointed out, the judgment is reversed and the cause remanded.

On Motion to Revise and Reform Opinion.

Appellant has filed a motion asking the court to revise and reform its opinion herein. It is unnecessary to state the particulars thereof.

We think the appellants have misunderstood the opinion. In the first part of it we merely stated the theory of the state, so as to try to show the application of the questions determined and decided thereby — not that that theory is a fact. It may or may not be.

We think it cannot be gathered from the opinion that we held that the deceased Watts and Havard .were at first parties to the original conspiracy between E. E. Sapp and another at the time it was made, if it was. And certainly not that they were parties to any conspiracy to have themselves killed to prevent their testifying or otherwise as to their being hired to kill, and killing Mrs. E. E. Sapp. Nothing of the kind was meant or intended by the opinion. If they became parties thereto, it was when E. E. Sapp hired them, if he did, to kill Mrs. Sapp. The killing of Watts and Havard, or either of them, if by appellants, was a later incident to and made necessary in order to carry out, under the theory of the state, the original conspiracy entered between E. E. Sapp and another or others, which was, to the effect, as claimed by the state, that E. E. Sapp would marry a rich widow, manage to get her property by a will or otherwise, then make way with her by killing her, or otherwise, and divide the property acquired from her between the conspirators. Under the state’s theory, the original conspiracy has never yet been ended or consummated. It cannot, and will not, be until E. E. Sapp gets the balance of his wife’s estate under her will and divides it with his conspirator. It would not be essential to make Watts and Havard parties to said claimed original conspiracy, that they should get any specific portion of Mrs. Sapp’s property for killing her; the fact, if so, that they were hired by E. E. Sapp, and to be paid by him, to kill her, might be sufficient to make them parties thereto, to carry out one essential part — kill her.

Nor do we think it can be gathered from the opinion that ,we held that Lou Sapp was a party to said alleged original conspiracy before or at the time Mrs. Sapp was killed. His entry into the conspiracy, if he ever did, was at the time he assisted E. E. Sapp, if he did, in corralling Watts and Havard, taking them into the big thicket, and killing them, or helping E. E. Sapp to do so. The testimony might show that he did not know that Mrs. Sapp was to be or had been killed until some short time after she was killed, and perhaps prior to that time he did not even know that E. E. Sapp had married her. It may be that Lou Sapp was not to get any of Mrs. Sapp’s property, nor any special pay, or specific amount, for what he did, if anything, in the killing of Watts or Havard. However, according to the theory of the state, he became a party to the conspiracy by entering into an arrangement with his brother, E. E. Sapp, and aiding and assisting him, if he did, to kill Watts or Havard, and thereby enable E. E. Sapp to consummate his original conspiracy and succeed in ultimately getting his wife’s property and dividing it, and it was on this theory that the opinion ,was predicated.

We cannot understand how the opinion of this court can ever get to a jury. It is intended for the guidance of the judge in the trial, and should be for his guidance, so far as the questions decided are concerned. As stated in the original opinion, we have not discussed nor commented on the evidence. We have merely stated the different theories, where applicable. Of course, we understand that appellants deny any and all conspiracies at any and all times, and they deny the killing of Mrs. Sapp other than as an accident, and they deny that they killed either Watts or Havard at any time or for any purpose, but the state contends otherwise, and it is the duty of this court, so far, as it can, to decide the legal questions on the various contentions of the different parties, and this, and only this, is what we have undertaken to do.

As we understand, it has never been held and is not necessary that an admission or declaration of a coconspirator had to be communicated to the other conspirator against whom it is introduced before such admission or declaration would be admissible. The law is, as we understand it, that such declarations of a coconspirator are admissible against all parties to the conspiracy, .whether they heard it or it had been communicated to them or not.

The testimony of the various witnesses as to the declarations Watts and Havard made to them as they testified, which appellants objected to, shown by their bills, was held admissible on two grounds; one, particularly, to show motive by appellants for killing Watts; the other, as admissions or declarations as coconspirators to that part of the conspiracy, .if so, to the killing of Mrs. Sapp.

We refrain from discussing or even stating the testimony which would tend to show and authorize the jury to believe that both E. E. Sapp and Lou Sapp knew of the statements by Watts and Havard at different times that they or Watts had been hired by E. E. Sapp to kill Mrs. Sapp, etc. The many different times and places and circumstances where they are shown to have made such statements and the supervision and control of them by the Sapps about this time and shortly and immediately before Watts was killed seems to form a chain of circumstances that would authorize a jury to find they did know and had notice of the declarations by Watts and Havard, notwithstanding appellants both denied any such knowledge or notice. All that was for the jury. It is unnecessary for us at this time to say whether or not all this evidence was of sufficient force to establish their knowledge or notice, as claimed by the state. The jury must pass upon that question.

The opinion might not have made it clear that the theory of the state was that E. E. Sapp hired not only Watts but Havard too to kill Mrs. Sapp, although the shot that killed her was fired by Watts alone. We take ■it that the contention of the state was that both of these parties were hired by Sapp to kill her, and both of them as to killing her would have been principals. However, we do not state that that is a fact. We merely state what we understand the contention of the state to be. Of course, appellants deny all of this, and a jury may believe their side ultimately, and not that of the state.

We have thought it proper to thus explain, because of appellants’ motion. It is overruled.
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author: PRENDERGAST, P. J. PRENDERGAST, P. J.

text:
    WAGGONER v. STATE.
    (No. 4291.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.
    On Motion for Rehearing, Dee. 27, 1916.)
    1. Intoxicating Liquors <®=^23S(2) — Prosecution — Sate—Question fob Jury.
    In a prosecution for selling intoxicants in a county where prohibition was in force, whether defendant sold intoxicating liquors to the state’s witness, and did not deliver the liquor to him under an agreement that he should order it for 'him, held, for the jury on conflicting evidence.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 824; Dec. Dig. <@=>238(2).]
    2. Criminal Law <@=>1169(4) — Trial—Credibility oe Witnesses.
    The credibility of witnesses was a question for the lower court..
    [Ed._ Note. — Eor other cases, see. Criminal Law, Cent. Dig. § 3077; Dec.Dig. <@=>1159(4).]
    3. Criminal Law <@=p829(4) — Trial—Instructions.
    Where the court’s main charge, and that specially requested by defendant, which was given, submitted every issue in favor of defendant raised by the testimony, the court properly refused others requested by defendant.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829(4).]
    4. Witnesses <@=>344(2) — Impeachment — Single Sale oe Intoxicants.
    In a prosecution for selling intoxicants in a county where prohibition was in force, the trial court properly excluded the proposed impeaching testimony by defendant that the staté’s main witness had made a single sale of intoxi1 cants; the offense being merely a misdemeanor, and the witness having been neither indicted nor prosecuted therefor.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1125; Dec. Dig. .@=>344(2).]
    6.Criminal Law <@=>1099(5) — New Triai>-Newly Discovered Testimony — Time eor Filing.
    Where defendant moved for new trial for newly discovered testimony, and the court heard testimony on the motion during term time, but the testimony was not filed during term time, but nearly 20 days later, the ruling denying a new trial cannot be reviewed.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2876; Dee. Dig. <@=>1099(6).]
    6. Criminal Law <@=>938(3) — New Trial— Newly Discovered Testimony.
    In a prosecution for illegally selling intoxicants, where a party was present when defendant claimed he made an agreement with the prosecuting witness to order the liquor for him and some additional for himself, testimony of such party who was present was not newly discovered, and so not ground for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2308; Dec. Dig. <@=>938(3).]
    On Motion for Rehearing.
    7. Criminal Law <@=>1144(19) — Appeal — Presumption.
    Where, in a bill of exception, defendant recites testimony heard on his motion for new trial on the ground of newly discovered evidence, and that the bill was filed on the day the court adjourned, the Court of Criminal Appeals will presume that it was filed before actual adjournment, so that defendant is entitled to the benefit of the testimony, though his statement of facts was filed after the adjournment.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 277A-2781, 2901, 3037; Dec. Dig. <@=>1144(19).]
    8. Criminal Law <@=>829(4) — Instructions.
    In a prosecution for illegally selling intoxicants, the court instructed that if defendant agreed to order the whisky in connection with the prosecuting witness, and such witness paid him money at the time the order was made, and, after the whisky came, defendant delivered half to the witness, and requested him to keep defendant’s part of the whisky until he returned home, defendant was not guilty. Held, that such charge clearly embraced the issue that if defendant ordered the whisky, and at the time the order was made the prosecuting witness paid him $5 on the order, or if the jury had a reasonable doubt as to whether such was the case, they should acquit, so that another charge on the issue was properly refused.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <@=>829(4).]
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Johnnie Waggoner was convicted of selling intoxicating liquors in a county where prohibition was in force, and he appeals.
    Judgment affirmed.
    King & Seale, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the misdemeanor offense of selling intoxicating liquors in Nacogdoches county, where prohibition was in force, and assessed the lowest punishment.

The testimony by the state’s witness was positive and unequivocal to the effect that appellant, at the time alleged, sold to him, in said county, intoxicating liquors, and that he did not deliver it to him under an agreement before then that he ordered it for said witness and merely delivered it to him without making any sale. The testimony on the appellant’s side disputes this, and he had other testimony corroborating his own. This was a question for the jury and the lower court. They had all the witnesses before them, heard them testify, and saw them while testifying, and their credibility was a question for the lower court, and not this. We cannot, therefore, disturb the verdict.

The main charge of the court, and that specially requested by appellant which was given by the court, submit every issue in favor of appellant that was raised by the testimony, and the court properly refused others requested by appellant. Nor do appellant’s objections to the court’s charge show any error.

The court properly excluded the proposed testimony by appellant to the effect that the 'state’s main witness had made a single sale of intoxicating liquor, for the purpose of impeaching him. The offense, if any, was merely a misdemeanor. He had neither been indicted nor prosecuted therefor. The law is well settled, and needs no citation of cases, to the effect that no witness can be .thus impeached.

Appellant complains that the court erred in not granting him a new trial on the ground of claimed newly discovered testimony. The record shows that the court heard testimony on this during term time in ruling on his motion for new trial. This testimony was not filed during term time, but nearly 20 days later. Hence, under the uniform decisions, and many of them, of this court, such matter cannot be reviewed. However, to take appellant’s motion and the affidavit of the witness whose testimony was claimed to be newly discovered, it would clearly show that it was not newly discovered, for the affidavit in substance shows that he was present at the time when appellant claims he made an agreement with the prosecuting witness to order for him, and some additional for himself, the liquor the state’s witness testified had been sold to him by appellant, and his whole affidavit would exclude the idea that his testimony was newly discovered.

There was no error in the trial, and the judgment is affirmed.

HARPER, J., absent.

On Motion for Rehearing.

PRENDERGAST, P. J.

Appellant claims that we were mistaken when stating in the original opinion that a statement of facts of the testimony' heard by the court on his motion for a new trial on the ground of newly discovered evidence was not filed during term time, but nearly 20 days later. Upon a re-examination of the record, we find that our statement was correct. The court adjourned on August 5th; the statement of facts of the testimony heard on his motion for new trial was not filed in the court below until August 23d, 18 days after adjournment. However, in one of appellant’s bills of exceptions, he recites this testimony, and that bill was filed on the day the court adjourned, and we will presume it was filed before actual adjournment; so that appellant is entitled to the benefit of that testimony, although his statement of facts was filed after adjournment, as stated.

We have read that testimony carefully, and we think it emphasizes against appellant the fact that the court was justified in denying him a new trial on the ground of claimed newly discovered testimony.

Our statute prescribing the causes which authorize the trial court to grant a new trial (Code Or. Proc. 1911, art. 837, subdiv. 6), in even felony cases only, as one of the grounds, enacts: “Where new testimony material to the defendant has been discovered since the trial.” This statute has been construed and the principles applicable so many times stated by our decisions as to settle practically all the questions relating thereto. Judge White, in section 1149, under said provision of the statute, has laid down these principles and many of the decisions establishing them. So has Mr. Branch, in his Ann. P. C. §§ 192-205, ine. As a matter of convenience, and because Mr. Branch’s work is more recent and cites later cases, we will state some of these principles applicable to this question:

(1)Applications for new trial upon this ground will be scrutinized by the appellate court with much strictness. They are addressed much to the discretion of the trial comet, ánd, where that court has refused such an application, the appellate court will not reverse unless it shall appear that the trial court has abused its discretion, and that thereby injustice may have been done the defendant. He cites as authority for this principle eight cases from this court, from the first report down to almost the last, specifically in point and sustaining his proposition.

(2) Where it appears that defendant knew that the proposed new witness was present when the transaction occurred, or where the alleged new testimony is of such a character that defendant must necessarily have known of its existence prior to the trial, and the trial court in the exercise of its sound discretion has refused a new trial, the judgment will not be reversed to permit him to take advantage of his own negligence and to obtain a new trial to obtain testimony which he should and could have had at the trial. For this principle he cites 42 cases, one from the Supreme Court when it had criminal jurisdiction, and all of the others from this court, from its creation down to the present time.

(3) The defendant must satisfy the court that the new testimony has come to his knowledge since the trial, and that it was not owing to the want of due diligence that it was not sooner discovered, citing 19 cases from the Supreme and this court from its organization down to this date.

(4) A new trial will not be granted for testimony claimed to be newly discovered which could have been obtained at the trial by the use of ordinary diligence, citing 23 cases from the Supreme and this court from its organization down to this date.

Many other propositions are laid down by Mr. Branch which have more or less bearing in this case, but it is unnecessary to state them.

The sale by appellant in this case is alleged to have occurred on March 8th. The complaint and information against him charging this were filed just one week later. His trial occurred on July 27th following.

Appellant swore on his trial that he met the complaining witness in the town of Nac-ogdoches on or about the time alleged, and that that witness and he then and there agreed to buy whisky together and send off for it; that the ordering of it was to be made by appellant, and it was to be shipped in his name and delivered to him; that the complaining witness at the time paid him $5, which was the amount that he was to pay for one-half of said whisky; that he then went to a certain person, naming him, and ordered the whisky, as agreed between them; that it came later, and when it came he delivered half of it to the complaining witness under their said contract, and did not sell him the whisky. The complaining witness .swore that no such trade or arrangement was made by him with appellant at said time, or any other time, but that he . bought the whisky direct from appellant and paid him $5 for the quantity that he then bought from him, which was then and there delivered to him by appellant. Now, the witness, whose testimony appellant claimed to be newly discovered, as developed before the trial judge when he heard the testimony on appellant’s ground of newly discovered testimony, swore that he knew both appellant and said complaining witness well and had known each of them for years; that, on the day and at the time and place which appellant swore he made said trade and arrangement with said complaining witness, he came up to the parties; •that they all spoke to each other; that he shook hands with appellant; that he then and there heard the whole of said arrangement or trade between appellant and said complaining witness; and that it occurred just as appellant swore it did. This witness lived but a few miles in the country and in an adjoining neighborhood to that of appellant, and that they had so lived a long time before, and ever since, the said alleged sale. Appellant did not testify at all on this hearing. He introduced the affidavit of his claimed newly discovered witness, which he had attached to his motion for a new trial. The substance of this affidavit was stated in the original opinion and was briefer than the testimony of this witness heard on the motion for new trial. The testimony of this witness heard by the trial judge at the time is given in question and answer form, comprised in more than three typewritten pages, and was in substance what we have given above. It therefrom clearly appears, and the trial judge unquestionably was authorized to believe, and did believe, that said testimony could not have been, and was not, newly discovered. If it was true, appellant had positive knowledge of it before his trial as well as after, and the court did not err in refusing him a new trial on that ground.

The only other ground complained of in the motion for a rehearing is that the court should have given his other special charge, as follows:

“You are instructed as a part of the law in this case that if you believe from the evidence that said whisky was ordered by the said Johnnie Waggoner, and that at the time said order was made the witness Rodriguez paid said defendant $5 on said order, or if you have a reasonable doubt as to whether this is a fact, you will acquit defendant.”

The court refused this charge, giving as his reason that this issue was already covered in the charge that he had given. The court was correct in refusing the charge. 1-Ie did give, at appellant’s special request, the following charge, which embraces clearly the said issue, to wit:

“You are instructed as a part of the law in this case that, if the defendant Johnnie Wag-goner agreed to order said whisky in connection with the witness Rodriguez, and that said Rodriguez paid in money at the time said order was made, and that after said whisky came the defendant delivered one-half of said whisky to said Rodriguez and requested said Rodriguez to keep his (defendant’s) part of said whisky until he returned home, then the defendant has Violated no law, and you will acquit him.”

The motion, is overruled.
      ©s^For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: HARPER, J. DAVIDSON, J.

text:
    FLORES v. STATE.
    (No. 4226.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.
    Dissenting Opinion Nov. 22, 1916.)
    1. Criminal Law <$=k>980(2) — Plea of Guilty —Introduction of Evidence-Waiver.
    Introduction of evidence, under Code Or. Proc. 1911, art. 566, providing that on plea of guilty, where the punishment is not unvarying, a jury shall be impaneled to assess it, and evidence submitted to enable them to decide thereon, may be waived under article 22, providing that defendant may waive any right secured to him by law, except right of jury trial in a felony case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2494, 2495; Dec. Dig. <©=> 980(2).]
    2. Criminal Law <®=»980(2) — Plea of Guilty —Introduction of Evidence — Withdrawal of Waiver.
    Express waiver of introduction of evidence under Code Cr. Proc. 1911, art. 566, to enable the jury to assess the punishment on a plea of guilty, cannot be withdrawn after verdict, though the jury do not suspend sentence, as prayed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2494, 2495; Dec. Dig. <§=» 980(2).]
    Davidson, J., dissenting.
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Clemente Flores was convicted, and appeals.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with violating the prohibition law. When the case was called for trial he entered a plea of guilty, but filed a prayer, asking a suspension of sentence during good behavior. The jury refused to suspend the sentence, and returned a verdict, assessing the penalty at one year’s confinement in the penitentiary. On the next day he employed the attorneys who prosecute this appeal, and they filed a motion, asking that the judgment be set aside because no evidence had been adduced on the trial tending to show him guilty of the offense; and when the motion for new trial was overruled, a bill of exceptions was reserved to the action of the court in overruling the motion. In approving the bill, the court approves it with the following qualification:

“That when the indictment was read to the jury, the defendant, in person, pleaded guilty, after being admonished by the court, and, in open court and before the jury, expressly waived the introduction of affirmative proof by the state.”

The motion for a new trial, alleging such grounds, was not sworn to by appellant nor any other person; consequently it would not have properly raised the question that no evidence was adduced on the trial, that not being a matter shown by the record, the judgment record evidencing that evidence was heard;, it reciting:

“A jury was duly impaneled and sworn, who, having heard the indictment read, the defendant’s .plea of guilty thereto, and having heard the evidence submitted,” etc., returned into open court a verdict finding appellant guilty.

But when appellant reserves a bill of exception to the action of the court in over-, ruling his motion for a new trial, the trial judge certifies, over his signature, that no evidence was heard, saying the appellant in open court in person waived the introduction of evidence. So the sole question presented is, Could a person who is on trial, being sane, waive the introduction of proof? It has often been held that an admission by the person on trial in open court of a fact renders it unnecessary to prove that fact. Kearse v. State, 68 Tex. Cr. R. 639, 151 S. W. 827.

Appellant relies on article 566 of the Code of Criminal Procedure, which provides that when a plea of guilty is entered and the punishment is not absolutely fixed by law and beyond the discretion of the jury to graduate, a jury shall be impaneled to assess the punishment, and evidence submitted to enable them to decide thereon. It is true there are many cases holding that the provisions of this article are mandatory; that it is not intended solely for the benefit of the defendant, but is also intenued to protect the interests of the state by preventing aggravated cases from .being covered up by a plea of guilty, and so allow the criminal to escape with the minimum punishment. Josef v. State, 33 Tex. Cr. R. 251, 26 S. W. 213, and cases cited in Yernon’s Procedure under this article on page 289. But in none of those cases is the question of “waiver” raised, discussed, or decided.

While article 566 reads as above stated, yet we have another article of the Code (article 22), which provides:-

“The defendant in a criminal prosecution for any offense may waive any right secured to him by law, except the right of trial by jury in a felony case”

—and the provisions of this article of the procedure are as binding upon courts as is article 566. They were both enacted as a part of the original Code of this state, and brought forward in each codification.

If the appellant could waive the introduction of evidence, the record discloses he did so in person specifically when his attention was called to the matter, for the court says in the same paragraph where he certifies no evidence was introduced:

“The defendant in person in open court expressly waived the introduction of affirmative proof by the state.”

He is now in no position to complain, for the jury assessed the lowest penalty authorized by law, and the state’s attorney must be held to have also waived the rights of the state in this proceeding. We might question the propriety of the trial court accepting such waivers, but when the court has done so and the record discloses that the appellant waived his rights under Article 566, as he was specifically authorized to do by article 22 of the Code, he cannot thereafter, after verdict is rendered, because the jury did not suspend his sentence, withdraw a waiver he solemnly entered into in open court. In Hancock v. State, 14 Tex. App. 401, Judge White says:

“Defendant agreed to the admission of the testimony, and but for his agreement, doubtless it would never have been offered in this shape. He cannot be heard to complain where he was a party to, and where his own action brought about, the very matter of which he complains. He could waive the presence of the witnesses if he so desired, and agree that if present they would swear as they had previously done. In fact, he could waive any right guaranteed him by the Constitution and laws, except the right of trial by jury.”

The facts in the Antonio Diaz Case, 190 S. W. 498, are the same as in this case, the record being in "the same condition, and for the reasons here stated it should also be affirmed.

DAVIDSON, J.

(dissenting). In this as in the Antonio Diaz Case the condition of the record is substantially, if not exactly, the same. My Brethren put their affirmance on the ground that appellant expressly waived the introduction of testimony on the merits of the case, and cites the Kearse Case, 68 Tex. Cr. R. 639, 151 S. W. 827, as authority. The Kearse Case is not in point and has no bearing on the question here involved, nor does the case cited by Judge Harper in 14 Tex. App. 401, opinion by Judge White. I do not care to review those cases.

It will be noticed that in the ease of Diaz v. State I wrote the opinion reversing it, following the statute and decisions in regard to pleas of guilty and the introduction of testimony in felony cases. This rule has been heretofore held mandatory, and the reasons are assigned in the authorities there cited. My Brethren wrote the opinion in the Fiores’ Case directly contradictory to what I wrote in the Diaz Case. I let the opinion as I had written it stand in the Diaz Case, but put at the bottom a short statement there found that I could not agree to the affirmance, but followed the decision in Flores’ Case in the affirmance. The statute Judge Harper cites, that defendant may waive any matters guaranteed him by the Constitution except the right of trial by jury, is but an act of the Legislature. It ought not to be questioned that the Legislature cannot set aside any constitutional guaranties accorded the defendant, unless the Constitution expressly authorizes that body so to do. That the accused cannot waive other rights accorded him besides the trial by jury has been so long settled that it is not the subject of debate. I shall make only one suggestion: The Constitution guarantees in a felony case no man shall be tried for his life or liberty without an indictment having been previously presented by a grand jury. No court has held that a citizen of Texas can be tried without presentment of indictment by a grand jury in a felony case. Not only so, but it has been universally held that citizens convicted of crime have been released from the penitentiary because there was no indictment preferred; that is, the indictment presented was by a grand jury composed of more or less than 12 men; and it has also been held that such is not an indictment. It is also the law that an indictment is not a valid one unless it concludes “against the peace and dignity of the state.” This, too, where the question was not raised until it reached the appellate court. The eases supporting this proposition are well understood, and have been in Texas, and everywhere, so far as the writer is aware, where the constitutional provision in regard to that matter is the same as it is in our Constitution. This came for thorough adjudication in Cox v. State, 8 Tex. App. 254, 84 Am. Rep. 746. The statutes with reference to pleas of guilty in felony cases have been closely adhered to and strictly enforced. These statutes change several rules under our procedure with reference to ordinary cases. The general rule is that every citizen of Texas is presumed to be sane until appellant proves by a preponderance of evidence that he is insane. Under the statute pleas of guilty in felony cases the rule is reversed, and all the authorities hold that, where the statute so provides, the presumption shifts, and the accused is presumed insane, the state must show his sanity in order to sustain the plea of guilty. This statute travels upon the idea that no rational man would deliberately admit that he was guilty of a felony. Under such circumstances the law assumes he would be insane. Not only is this so, but the judgment must show his sanity as an adjudicated fact, and that he has not been induced to make this confession of guilt by any hope of pardon or other matters that would look to an infamous punishment. These statutes with reference to pleas of guilty under such circumstances do not stop here. They most solemnly provide that in all cases under such plea the evidence shall be introduced, unless it is one of those instances where the punishment is fixed absolutely without graduation or gradation. The majority admit this has always been held mandatory, but because the defendant may waive any right accorded him except trial by jury, therefore the waiver of his right covered .everything, except trial by jury; therefore he can be sent to the penitentiary under graduated punishment by waiving the introduction of testimony. I cannot agree with this proposition. It is not only in the face of the jurisprudence and adjudicated cases, but contrary to the statute. I do not care to follow this matter further. I have said this much in addition to what I wrote in the Diaz Case. The judgment ought to be reversed and remanded.

For these reasons I respectfully enter my dissent in this case and apply it as well to the Diaz Case.
      <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DIAZ v. STATE.
    (No. 4225.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Antonio Diaz was convicted, and appeals.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was under a plea of guilty for violating the local option law, the jury awarding the maximum penalty of three years’ confinement in the penitentiary.

No evidence was introduced during the trial of the case except with reference to the suspended sentence plea. The failure of the state to introduce evidence in regard to the merits of the case is shown by a bill of exceptions. The trial judge signs this bill with the statement that the defendant waived the introduction of testimony. This does not meet the requirements of the statute. This statute is held to be mandatory and evidence must be introduced unless the penalty is fixed in a definite and in certain amount or number of years. Wherever the punishment is graduated from a minimum to a maximum term, evidence must be introduced. This statute was enacted as well for the benefit of the state as for the defendant. This question has been discussed so often we deem it unnecessary to go into it further. The authorities will be found collated in Mr. Branch’s Crim. Law, § 677; Branch’s Ann. Penal Code, p. 325, and Vernon’s Ann. Statutes, vol. 2, p. 289.

The judgment is affirmed.

I wrote this opinion, but my Brethren do not agree and write their reasons in Flores’ Case, 190 S. W. 496 (No. 4226), this day decided. I cannot agree with them, but do not care to write at length in either case. I dissent in Flores’ Case, and write this on authority of Flores’ Case.


text:
    MARION v. STATE.
    (No. 4284.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1916.
    On Motion for Rehearing, Dec. 27, 1916.)
    1. Rape <&wkey;52(l) — Evidence.
    Evidence of complaint and condition of victim, a child of eight, held sufficient to sustain conviction of rape.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. §§ 71, 72, 76; Dec. Dig. &wkey;52(l).]
    2. Criminal Law <&wkey;814(10) — Question for Jury — Insanity.
    In rape trial, refusal to submit to the jury accused’s insanity from use of drugs was proper; there being no evidence thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1979, 1981; Dec. Dig. &wkey;814(10).]
    8. Criminal Law &wkey;>814(17)' — Instruction —Circumstantial Evidence.
    In rape-trial, requested instruction on circumstantial evidence was properly refused, although victim did not herself testify, where there was res gestae testimony of condition and complaint of the victim, this being positive testimony.
    [Ed. Note. — For other cases, see Criminal Eaw, Cent. Dig. §§ 1883, 1979; Dec. Dig. &wkey; 814(17).]
    4.Criminal Law <&wkey;665(l), 713 — Segregating Witnesses.
    In trial for rape of accused’s daughter, it was proper for the court to place all his children in custody of an officer, and allow no communication with them, nor comment to the jury by accused’s counsel on such action; it all occurring out of the presence of the jury.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520, 1535, 1663, 1678; Dec. Dig. &wkey;665(l), 713.]
    5. Witnesses <&wkey;244 — Leading Questions.
    In trial for rape of accused’s daughter, it was not error to permit the prosecutor to ask other children of accused leading questions and call their attention to their written and signed testimony before the grand jury and also before the county attorney; these witnesses being hostile to the state and very favorable to accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 848; Dee. Dig. <&wkey;>244.]
    6. Criminal Law <&wkey;1169(5) — Harmless Error-Admission oe Evidence — Effect of Withdrawal.
    In rape trial, error in admitting answer to question whether the victim had ever been mistreated before as she was on the occasion of the crime was not reversible, where the court later expressly withdrew all such testimony and charged the jury to entirely disregard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. <&wkey;>1169(5).J
    7. Rape <&wkey;48(2) — Evidence—Res Gestas.
    In statutory rape trial, testimony of a neighboring woman, called in after the commission of the crime, that the victim told her who the party was who caused her injury, but not stating who this was, was proper; the declaration of the victim at that time not being res geste.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 68; Dec. Dig. <&wkey;48(2).]
    8. Witnesses &wkey;j340(3) — Character — Evidence.
    In rape trial, evidence of misconduct of witness for the state was irrelevant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1121; Dec. Dig. <&wkey;340(3).]
    9. Criminal Law <&wkey;726 — Comment of Counsel.
    In trial for rape of accused’s young daughter where accused’s counsel commented on failure to make the victim a witness, the prosecutor was justified in stating that the jury could see why she was not called from the fact that her little brother, as witness for the state, was caused to change his testimony and swear falsely by his father’s influence; it appearing that the victim was under the same influence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. i&wkey;726.]
    On Motion for Rehearing.
    10. Criminal Law <&wkey;366(l) — Evidence — .Res Gestas.
    Where victim of rape does not herself testify, testimony of res gestae statements by her are not inadmissible, as being secondary or inferior evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 811; Dee. Dig. &wkey;>366(l).]
    11. Witnesses <&wkey;370(2) — Hostility — Evidence.
    Upon trial for rape of accused’s daughter, testimony not tending to show hostility of a daughter, testifying for the state, against accused, but merely such witness’ hostility to another daughter, was irrelevant.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1189; Dec. Dig. <&wkey;>370(2).]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Hodge Marion was convicted of rape, and appeals.
    Affirmed.
    W. H. Fears and Geo. Hines, both of Waxa-hachie, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the rape of his own little daughter, Lelia, 8 years of age, and his penalty was assessed by the jury at death.

The uncontradicted testimony shows that appellant lived in a small house in Waxahachie with three of his children, a daughter Nellie, who was about 12 years of age, his son Carl, about 10 years old, and Lelia, the assaulted girl, about 8 years old. The two little sisters slept in a bed in one room, and appellant and his little boy in another bed in an adjoining room. He had been separated from his wife for several years. On the morning of June 21, 1916, Nellie got up about 5:30, leaving Lelia in the bed, went into the kitchen and made a fire in the stove to cook breakfast. Appellant sent his little boy to town to get bread. As soon as he left, appellant called Lelia to him. Nellie said, as she was not in the room, she didn’t know that Lelia went to her father, but she thought she did. In a few minutes thereafter Lelia came to Nellie, crying; told Nellie to get her clothes for her, which she did, and put them on her. When putting them on, she saw blood running from the privates of Lelia down her leg clear onto the floor. She saw that the blood was coming from her privates. She asked Lelia who had done that, and Lelia told her her papa. The child bled profusely, saturating her own clothes, so that Nellie had to change them a time or two. She put her in bed, and the blood from her saturated the sheet. Fresh blood was also found on the sheet on appellant’s bed that morning. As soon as appellant and his son got their breakfast, they hitched up a buggy and left the house. Soon afterwards Nellie called in some of the neighbor ladies to help her with the child. They did help her. One of them testified that in bathing the child’s private parts, she found on the outside of her privates other substance than blood. It was colored white (evidently semen). They had Nellie to phone for a doctor. The doctor soon arrived, and, making a hasty examination, saw that the little child had been raped, and he testified she bled from her privates profusely. Eater, in' connection with another physician, he examined her thoroughly, and found that her privates had been horribly ruptured. He had to take eight stitches in sewing her up. Shortly after the rape was perpetrated, appellant was arrested. Fresh blood was found on the front of his drawers and his front shirt tail. The state introduced appellant’s written confession, in which he denied raping his daughter, stating she “came to my bed this morning and told me she hurt herself on the picket fence. She had not been out there this morning that I know of.” He said he did not know how the blood got on his bed nor on his drawers and shirt tail; that he was not drinking the night before when he went home. The evidence unquestionably was isufficient to without doubt establish appellant’s guilt. He himself did not testify. Neither did the assaulted girl, Eelia, testify.

Appellant complained that the court should have given his charge submitting the question of his insanity to the jury, caused, as he claimed, by the continued and recent use of cocaine or of cocaine with whisky. The court refused the charge, on the ground that the evidence raised no such issue. We think the court was correct. The evidence raised no such issue which would have authorized or required the court to submit such issue to the jury. In fact, there was no evidence that he had recently taken any cocaine or whisky so as in any way to make him insane therefrom at the time.

Neither did the court err in refusing to give a charge on circumstantial evidence. The testimony of Nellie to the res gestae of the transaction was positive testimony, taking the case out of the rule of depending solely on circumstantial evidence. Kenney v. State, 79 S. W. 817, 65 L. R. A. 316; Croomes v. State, 40 Tex. Cr. R. 675, 51 S. W. 924, 53 S. W. 882; Thomas v. State, 47 Tex. Cr. R. 534, 84 S. W. 823, 122 Am. St. Rep. 712; Neely v. State, 56 S. W. 625; Flores v. State, 79 S. W. 809; Hunter v. State, 54 Tex. Cr. R. 226, 114 S. W. 124, 130 Am. St. Rep. 887; Cook v. State, 22 Tex. App. 525, 3 S. W. 749. And this notwithstanding Lelia, the assaulted girl, did not herself testify. In addition, we think the positive facts proven by Nellie were in such close juxtaposition, showing that appellant raped Lelia, as to be equivalent to direct testimony, so as to make it unnecessary to charge on circumstantial evidence. Holt v. State, 9 Tex. App. 582; Crews v. State, 34 Tex. Cr. R. 543, 31 S. W. 373; Cabrera v. State, 56 Tex. Cr. R. 141, 118 S. W. 1054; Bass v. State, 59 Tex. Cr. R. 191, 127 S. W. 1020; 2 Branch’s An. P. C. pp. 1039, 1040; White’s An. C. C. P. § 813, subd. 3, and authorities collated by Judge White.

Appellant has some complaints to the action of the trial judge in placing appellant’s small children, Nellie, Carl and Lelia, into the custody of one of the officers of the court, during the trial with instructions to permit no one to talk to either of them about the case except in the presence of an officer, and in not permitting appellant’s counsel, in argument to the jury, to state and comment on this action of the court, it all occurring out of the presence and hearing of the jury. As explained by the court in allowing his bills, this action by the court presents no error. On the contrary, the action of the court was commendable.

Appellant has some other bills, complaining of the action of the court in permitting the county attorney to ask Nellie, and Carl also, what might be termed “leading questions” and in calling their attention to their testimony in writing, and signed by them before the grand jury and also before the county attorney. All these matters, as explained by the court in his qualification of appellant’s bills, which were accepted by him and about which there seems to be no question, show no error. Each of these witnesses, as explained, was hostile to the state, and very much in favor of their father — so much so that it is clear each of them did all they could to avoid testifying to the facts when against their father and in favor of the state. It is unnecessary to cite the authorities on this question.

The state asked Nellie, in substance, whether or not Lelia had ever been mistreated before in the way she was on this occasion. It seems the state was undertaking to show that this was a fact, and that appellant was the cause thereof on the previous occasion. At the time this question was asked Nellie, appellant objected to it, and, after she testified, moved to strike it out, but the court declined to do so at that time, in effect holding that, unless later connected up, he would exclude it. After the testimony was concluded, the court expressly withdrew all of it from the jury, and charged them positively to consider it for no purpose whatever. As explained by the court in the bills, this matter presents no. reversible error, as this court lias many times held. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 926, 37 Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 66 S. W. 97; Robinson v. State, 63 S. W. 869; Trotter v. State, 37 Tex. Cr. R. 468, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v. State, 2 Tex. App. 342; Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Miller v. State, 186 S. W. 38.

The court did not err in permitting Mrs. Franklin, the neighbor lady whom Nellie called in to assist her with Lelia, to testify that Lelia told her who the party was who had caused her injury. The court did not permit the witness to tell who Lelia said this was, because her declaration at that time was not res gestee. See eases collated in 2 Branch’s An. P. O. p. 1001.

Appellant complained of the action of the court in refusing to permit Nellie’s older sister, Genie, to detail at considerable length, as shown by the bill, Nellie’s conduct with one Peray. This, as we think, was irrelevant to any legitimate issue in the case. It is unnecessary to further state or discuss it.

The record in many ways shows that the assaulted girl Lelia would neither testify nor talk to nor tell the attorneys, for either defendant or the state, the facts, or anything she would testify; in effect that she would not testify at all. Neither side introduced her or placed her on the stand. Under the circumstances, the statement by the county attorney in argument to the jury, to the effect that they could see the reason why he did not put her on the stand, as the jury easily saw, when he put the little boy on the stand, how he, owing to the influences of his father, was caused to change’ his testimony and attempt to clear his father by swearing falsely, presents no reversible error. An examination of the boy’s testimony clearly justified such an inference as the county attorney stated shown above as to him, and, as stated by the county attorney, the jury doubtless could not help but see the reason she was not placed on the stand. The appellant attempted to make capital of the fact that the state did not place the girl Lelia upon the stand.

We have thoroughly considered the record in full and all of appellant’s assigned errors. We are forcibly impressed with the fact that appellant had a fair and impartial trial; that his guilt was established without any doubt, and that his outraging his little innocent 8 year old daughter, horribly mangling her person in ravishing her, justified the jury to assess the death penalty; and, as the matters are presented, we cannot do otherwise than affirm this judgment, which is ordered.

The judgment is affirmed.

HARPER, J., absent.

On Motion for Rehearing.

PRENDERGAST, P. J.

Appellant now contends that the res gestee statements of Lelia, testified to by Nellie, was secondary evidence, and inadmissible because the child Lelia herself did not testify, contending that her testimony would have been the best and primary evidence, and that Nellie’s was secondary or inferior. He is mistaken in his contention. Res gestee testimony is not secondary or inferior testimony. Presiding Judge White, in Cook v. State, 22 Tex. App. 526, 3 S. W. 749, says: “This rule as to res gestae overrides all other rules known to the law governing the admissibility of testimony;” and in that case held that the res gestae declarations of the wife were admissible against her husband, notwithstanding the statute which prohibits the wife from testifying against the husband. Robbins v. State, 73 Tex. Cr. R. 367, 166 S. W. 529; Shamblin v. State, 75 Tex. Cr. R. 498, 171 S. W. 718. The reason the child Lelia did not testify was explained in the original opinion.

The offered testimony of Genie Marion which was excluded by the court did not show, or tend to show, any hostility, bias, or otherwise, affecting Nellie against her father. It would only have tended to have shown that she may have had some animosity against her sister Genie, but under no phase of the case was it admissible to show that Nellie had any feeling at all against her sister Genie. That had nothing to do with any issue in the case.

We have again examined the case thoroughly; and, as explained in the original opinion, the argument of the county attorney objected to, we are still of the opinion, showed no error against appellant, and we are of the opinion still that the testimony was not of sufficient force to show, or tend to show, that appellant was insane at or about the time he committed the alleged act. Therefore the court’s action in refusing to charge on insanity was undoubtedly correct, and we think there can be no question but that under the law it was neither necessary nor proper for the court to have given a charge on circumstantial evidence.

The motion is therefore overruled.
      @=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes