text:
    BALDWIN v. STATE.
    (No. 4702.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.
    On Motion for Rehearing, Dec. 12, 1917.)
    1. Criminal Law <@⅜>1087(1) — Notice of Appeal-Necessity.
    Where the record contains no notice of appeal, the appeal will he dismissed.
    On Motion for Rehearing.
    2. Criminal Law <@= 1170(1) — Review—'Exclusion op Impeaching Testimony — Reversible Error.
    Where the prosecuting witness, whose testimony alone made tho state’s case, testified that the feeling between him and defendant was good, and that they had had no altercation since the date of the offense, it was reversible error to exclude testimony to the contrary, on the ground that the state of feeling existing after the prosecuting witness had been before the grand jury could not be considered.
    3. Witnesses <@=318 — Corroboration—Testimony Given Before -Grand Jury.
    Unless the witness had been impeached, his corroborating statement, that his testimony before the grand jury was the same as that given at the trial, was inadmissible.
    Appeal from Kaufman County Court; J. P. Coon, Judge.
    Charley Baldwin was convicted of unlawfully carrying a pistol, and appeals.
    Reversed and remanded.
    Chas. Ashworth and Ross I-Iuffmaster, both •of Kaufman, for appellant. E. B. Hendricks, Asst. Atty, Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of unlawfully carrying a pistol, his punishment being assessed at .a fine of $100.

There are two troubles in the record which preclude the consideration of the matters presented for revision. The first is the record does not contain notice of appeal, and, second, there is not found in the transcript an order of the court allowing the filing of statement of facts and bills of exception after the termination of the term of court. For these reasons the appeal cannot be considered, and, if it could be, without proper order in the record authorizing the consideration of these matters, they could not be reviewed.

For the reason indicated, viz. want of notice of appeal, the appeal will be dismissed.

On Motion for Rehearing.

On a previous day of the term the appeal was dismissed for reasons stated in the opinion. The defects have since been cured and a motion for reinstatement of the case and hearing on its merits reguested. This will be granted, and the case disposed of on its merits.

The case for the state was made by the testimony of the witness Gibson Dodd, who testified that on the night of December 1st, at Bill Hughes’ residence, he saw' defendant with Bill Hughes between Hughes’ house and the barn, and saw defendant with a pistol in his hands. “He had it in both handsf kind, of holding it out in front of him.” This was the state’s case. On cross-examination a predicate was laid to contradict him. The defendant' introduced Hughes for this purpose, Hughes stating that he did not see appellant with a pistol at the time. He denied being present at the point' designated by the witness Dodd at the time stated by Dodd. He also denied seeing appellant with a pistol. He stated he was at the barn with appellant at a different time than that indicated by Dodd, but did not see appellant with a pistol at any time that night. Appellant denied by all of his testimony having a pistol that night.

A bill recites that, while the witness Dodd was on the stand testifying, he was asked by appellant’s counsel what state of feeling existed between him and the defendant, to which witness answered that it was good.' He was then asked the further question: “Is it not a fact that you and defendant had a difficulty' since the party at Bill Hughes’ down at Rhodes’ store?” Witness answered in the negative. He was then further asked if it was not a fact that he started to hit defendant with a quart bottle of whisky, to which witness answered he did not; and thereafter while defendant was on the stand testifying in his own behalf his counsel propounded to him the following question, “What is the state of feeling between you and the prosecuting witness, Gibson Dodd?” to which the defendant would have answered, if permitted to do so, that the feeling between himself and prosecuting witness was bad. Appellant was again asked this question: “State whether or not you and prosecuting witness Gibson Dodd had a difficulty since the party at Bill Hughes’ down at Rhodes’ store?” The defendant would have answered, if permitted to do so, that he did have such difficulty. He was then asked “whether or not he started to hit you with a quart bottle of whisky,” to which he would have answered, if permitted to do so, that the prosecuting witness Dodd did try to hit him with a bottle of whisky. The state’s objection was sustained, and the witness not permitted to answer, but would have answered as indicated. This testimony was sought for the purpose of impeaching and showing the animus of the witness Dodd against defendant. The court qualifies this bill as follows:

“The objection to the testimony set out in the bill was sustained for the reason that the witness Dodd testified on tlie trial that he became a witness in the case after he had been called before the grand jury, and that he testified to the same facts before the grand jury that he was testifying to on the trial, and the court held that the defendant could show the state of feeling between defendant and the witness Dodd prior to and at the time the witness Dodd went before the grand jury but not after-wards, which question -defendant’s counsel refused to ask.”

This hill of exceptions clearly shows error. It is not necessary that the state of feeling between the parties should be relegated to the time of going before the grand jury and prior thereto. If his state of feeling was bad at the time of the trial, this could be shown both to impeach and to show his animus. The animus relates to his testimony to be considered by the jury. Had he been permitted to be impeached,; he might have stated that his state of feeling was good at the time he went before the grand jury, and that his testimony was the same then as delivered before the jury; but that would not preclude the defendant from showing the contrary, and even the corroborating statement of the witness would not be permissible unless he had been impeached, and in this instance the court refused to permit the impeachment, or to show the animus.

For these errors, the judgment is reversed, and the cause remanded.
      c§cs>For otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

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

license: Public Domain

text:
    REESE v. STATE.
    (No. 4588.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    Dissenting Opinion Dec. 31, 1917.)
    Intoxicating Liquors ®=5286(8) — Criminat-PROSECUTIONS — SUFFICIENCY OF EVIDENCE.
    Evidence that defendant made three sales of intoxicating liquor during the month of January, and that shortly before such sales he was seen in possession of about a gallon of whisky, which he was taking from a depot to his home, was insufficient to support a conviction for pursuing the business of selling intoxicants in local option territory.
    Prendergast, J., dissenting.
    Appeal from District Court, Camp County; J. A. Ward, Judge.
    Louis Reese was convicted of an offense and he appeals.
    Reversed and remanded.
    Bass & Engledow, of Pittsburg, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted for pursuing the business of selling intoxicants in local option territory, his punishment being assessed at two years’ confinement in the penitentiary.

The indictment charges three sales during the month of January. Two of these sales were proved; the other was seriously contested. These were made to different parties at different times. Such is the evidence for the state. The only evidence, as we understand this record, showing, or tending to show, the following of the business of selling intoxicating liquor, outside of the three sales, is found in the testimony of Davenport, who said he came with appellant in his wagon from the little town of Newsome, who had about a gallon of whisky which circumstances indicated he had gotten at the depot and was carrying home. He discovered it was whisky by reason of the fact that appellant opened the case that contained the whisky and took out one of the bottles, opened it, and they took a drink. This whisky was seen in the wagon shortly before the sales indicated by the state’s evidence. We are of opinion that this is not sufficient testimony to show that appellant was engaged in the business of selling intoxicants. There is no fact, or set of facts, as we understand the record, which shows that he had whisky at any other time or place, or undertook to sell any, or was in possession of any other than as indicated. We are of opinion this case is brought within the rule laid down in the cases of Thomas v. State, 66 Tex. Cr. R. 374, 147 S. W. 262; Floyd v. State, 66 Tex. Cr. R. 407, 147 S. W. 264; Whitehead v. State, 66 Tex. Cr. R. 482, 147 S. W. 583; Molthorp v. State, 147 S. W. 1159; Oliver v. State, 68 Tex. Cr. R. 414, 152 S. W. 1066.

The judgment is reversed and the cause remanded.

PRENDERGAST, J.

(dissenting).

The proof of appellant’s guilt was clear, brief, and uncontradicted. It showed that on Saturday evening appellant got a case of whis-ky, it seems by express, at the town of New-some, and took it home in the witness Davenport’s wagon. Appellant opened one bottle and he gave Davenport a drink at the time. Davenport swore he went to appellant’s house next morning, Sunday, and “borrowed” a quart of whisky from him. This “borrowing” has uniformly, and in a great many cases, been held by this court to' be a sale under our law. See 1 Branch’s An. P. O. p-. 704, where he collates some 12 or 15 cases so holding. There are many others. The Oliver Case, cited by Judge 'DAVIDSON in this case, so holds. Davenport further swore that when he “borrowed” this quart, neither of the negro hoys, Willie or Arthur Johnson, were there, and he did not pay appellant the money for the whisky at the time. Both these negro boys swore they were at appellant’s that Sunday morning, and saw said Davenport buy some whisky from appellant, and saw him at the time pay the money therefor. So that appellant made two distinct sales, of whisky that day- to Davenport — one sale and one loan, or at least one sale in any event.

Clifford Spencer, an 18 year old negro, on the same day, Sunday, went for some whis-ky. He went to John Hashaway’s and found appellant there. Appellant told Clifford lie liad none there with him, but could get some. Clifford paid him then for a quart. He went to his home, got the whisky, took it back to John’s, put it on the gate post, and waited near and in, sight for Clifford to come and get it. While he went for the whisky, Clifford went off from John’s to wait for it. Clifford soon appeared, got the whisky off of the gate post, and hastily rode away. This made.two, if not three, sales by appellant on the same day, Sunday, just the next day after he got the case of whisky, and this latter sale to a minor.

W. H. Lane swore he bought a pint of whis-ky from him the next day, Monday. They tried to cover up or muddle this sale in this way: Lane, his nephew Oliver Bailey, and appellant were together at a schoolhouse. Appellant had a pint of the whisky with him in his pocket. Lane wanted to buy it, he handed Bailey $1, Bailey handed appellant the $1, and appellant then handed the whisky to Lane.

This was three, if not four, sales by appellant within two days after he received this shipment of this case of whisky — pretty lively business for 'a bootlegger in so short a time. Of course it is not known how many other sales he made about this time out of this case of whisky, nor how soon he would get another stock of whisky. Business was so active with .him out of this one case, doubtless he would have quickly gotten more stock and continued his business if he had not been caught by the state and his lively business thereby interfered with.

It has never before been held that, in order for a bootlegger to engage in the business of selling liquor, he must provide or keep in store a large stock of liquor. He can start his business on one case of whisky as well or better than on a dozen eases, or a barrel, or more. In fact, he can cover up — hide—his business and prevent detection much easier on a small than a large quantity. And that is what they always do in starting that business, and even after being engaged in it for some time. The evidence excludes the idea that appellant got this case of whisky for any other purpose than to sell it out — engage in the business of selling it. The only time he is shown to have done anything with it, except sell it out, was that when he first put it in Davenport’s wagon he took a bottle out of the case and gave Davenport a drink, advertising the fact he had the whisky. This ad. was quite effective, for Davenport the next day bought once if not twice from him, and Spencer once, and the next day Lane bought, and no telling how many others bought from him.

The law in no way requires the state to prove that an accused shall engage in the business for a year, a month, or a week before he is guilty of engaging in the business. One day is ample time. It is frequently the case that at barbecues, picnics, and such like gatherings for one day, or even only part of a day, persons engage in various businesses thereat, selling cold drinks, nuts, fruits, etc., for only that length of time; yet there is and can be no question but that for that length of time they engage in such businesses.

In Stokeley v. State, 37 Tex. Cr. R. 638, 40 S. W. 971, this court, in a unanimous opinion delivered by Judge Hurt, held that Stokeley was guilty of keeping a disorderly house in his own residence when only one prostitute stayed therein at night for but a few hours, and piied her business of prostitution therein for only that short time. This case is by analogy much stronger than that case.

Under the law and facts, this case should unquestionably have been affirmed.
      —.TTor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    YANCY v. STATE.
    (No. 4705.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.)
    1. Witnesses @==>376 — Impeachment—Rebuttal oe Impeaching Evidence.
    In a prosecution for assault to murder, where the daughter of the assaulted party testified for defendant, and the state, to discredit her, showed that after the assault she got into defendant’s bug'gy and drove off, it was improper to refuse to permit defendant to show that she drove off with him to secure medical assistance for her father.
    2. Criminal Law @=>369(3) — Oeeense—Other Oeeenses.
    In prosecution for assault to murder committed with a pistol, it was improper on cross-examination to bring out that accused always carried his pistol and was armed when he passed the house of the assaulted man on previous occasions before they had had trouble.
    3. Criminal Law @=361(3) — Triad—Rebutting Testimony.
    Where the state introduced evidence tending to show that accused and witness, who was with him shortly before the offense occurred, entered into a conspiracy by which they were to separate as they did and meet again after accused committed the assault on another, evidence tending to rebut that contention of the state by showing that they separated because accused desired to meet a young lady is improperly rejected.
    Prendergast, J., dissenting.
    Appeal-from District Court, Hill County; Horton B,. Porter, Judge.
    Archie Yaucy was convicted of assault to murder, and he appeals.
    Reversed and remanded.
    N. J. Smith and J. E. Clarke, both of Hills-boro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder, bis punishment being assessed at two years’ confinement in the penitentiary.

The evidence shows that the assaulted' party, Carutliers, owned a farm and lived upon it, and was the father of ten daughters. Appellant on Friday night preceding the trouble on Monday had attended an ice cream function in company with one of Oaruth-ers’ daughters. On Sunday evening, after this Friday night, appellant and another party drove through the premises of Oaruth-ers and were accosted by Oaruthers, and Oaruthers talked to him in a rough and in an insulting manner. The purport of it was he was incensed at appellant for going with his daughter to the function and interdicted his going with his daughters. He made threats against appellant. The road appellant and his friend was traveling was used commonly by the neighborhood. On the following Monday appellant passed through the premises again in a buggy by himself. Oaruthers was in the yard under the shade of a tree. After appellant passed about 300 or 400 yards, Caruthers followed him rapidly and called to him to stop. Appellant stopped. Caruthers approached, and the difficulty occurred in which appellant wounded Oaruthers two or three times. The eyewitnesses' to the transaction differ as to how the difficulty occurred. The state’s theory was that when Oaruthers approached, and before getting quite to appellant’s buggy, the shooting occurred. Oaruthers had said some very rough things to him as he approached indicative of carrying out the threat he had made on the previous Sunday. Appellant’s theory of it, which is supported by himself and two of Caruthers’ daughters, was that, when he (appellant) stopped his buggy, Oaruthers approached, came in between the wheels on the left-hand side of the buggy, was pretty vigorous in his language, and made threats and reached as if to pull a pistol or knife, or something, and appellant fired. After firing a time or two, Oar-uthers ran behind the buggy and fell, got up, and ran off in a nearby field.

Grace Caruthers testified in behalf of the defendant as to the condition of the parties, and in fact that her father was at the wheels of the buggy or between the wheels of the buggy at the time the firing began. She immediately after the shooting, as appellant drove down the road, holloed at him, got in the buggy, and rode away. This fact was proved by the state in criticism of her testimony and as impeachment. The defendant then offered to prove in explanation of her conduct that she got in the ■ buggy for the purpose of going to the little village of Kimball close by for a doctor to come to the assistance of her father. This testimony was excluded on exception by the state. This was error. Her getting in the buggy and going with appellant under the circumstances was calculated to influence the jury adversely to her testimony. Her explanation, if believed by the jury might be satisfactory, that she was not in sympathy with appellant, but was seeking assistance for her father. This testimony should have gone to the jury.

Another bill of exceptions recites that on cross-examination the state asked appellant why he carried his pistol when passing through the farm and near the house and on the premises of Oaruthers. Various objections were urged to all this, and he was permitted and required to answer: “I do not know that X ever went through there without it, hardly ever. I carried it all the time.” This was error.

Another bill recites that while Tom Ezell was testifying in behalf of defendant, and after it had been shown that on the morning preceding the difficulty between defendant and Oaruthers, he and appellant, by an appointment previously made, met at Green Briar School House for the purpose of taking an empty beer keg to the town of Blum to ship to Ft. Worth, and, after they had carried this keg to Blum and were returning home, witness left defendant to go to his home about 1½ miles or 2 miles from where they separated, and that defendant started towards his (defendant’s) home, and after it was shown that the defendant after leaving witness decided to. go to Kimball, after he had gotten about a half mile from Green Briar School House, and after it was further shown that he had started to Kimball and had graveled the road leading by prosecuting witness’ house and into and through the field which was a road used by the general public and after the facts and circumstances of the difficulty had been shown, and after it had been further shown that witness had met defendant and Miss Grace Caruthers in a buggy about a half mile from the scene of the difficulty and at a place in the road off of defendant’s road to his home, the defendant offered to prove by the witness Tom Ezell, as a reason why he did not gó straight home and as a reason why he met the defendant and prosecuting witness, that he had an engagement with Miss Grace Oaruthers to see her that evening at Mr. Parker’s, which was a short distance off the main road, for the purpose of making an engagement to attend a moving picture show at Blum. Under the circumstances', this testimony ought to have gone to the jury. The theory of the state in introducing this testimony was that Ezell and appellant had a conspiracy that they were to separate as they did, and meet again after appellant engaged Caruthers in a difficulty. This would have been an explanation, if believed by the jury, as to why Ezell was going in the direction he was going at the time, and for the purpose for which it was offered. It is a universal rule, not only under the well-known principles of evidence, but by the statute, that where a damaging fact, or a fact thought to be damaging, is introduced, the opposing party may meet that by testimony which tends to show that it was not intended as claimed by the party offering it. In other words, wherever a fact thought to be damaging is introduced against a party he may meet that by any available legitimate testimony to counteract or explain such fact.

For the reasons indicated, the judgment will be reversed, and the cause remanded.

PRENDERGAST, J., dissents.
      @=2Kor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J..

text:
    KRAUSS v. STATE.
    (No. 4742.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    Criminal Law <⅜^1144(17) — Appeal — Presumptions — Modification of Judgment.
    Where a bill of exceptions complaining of the overruling of a motion to correct the date of the judgment shows that the court heard evidence on the motion, but the evidence is not pre- . served in the bill or otherwise, the court must presume that it justified the overruling of the motion.
    Appeal from Eoard County Court; G. L. Burk, Judge.
    P. D. ICrauss was convicted of petty theft, and he appeals.
    Affirmed.
    Robert Cole, of Crowell, and Weeks & Weeks, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J..

From a conviction of petty theft with a fine of $25 assessed, appellant prosecutes this appeal.

• There is no- statement of facts agreed to by attorneys or approved by the court. Appellant has one bill of exceptions to the overruling of his motion to correct the date of the judgment rendered against him. This bill, however, shows that the court heard evidence on his motion, but the evidence is in no way, either in his bill or otherwise, preserved so that this court can tell what it was, and hence his bill presents no reversible error. The court must presume that the evidence justified the judge to overrule his motion. There is nothing else presented which can be reviewed.

The judgment is affirmed.


text:
    BROOKS v. STATE.
    (No. 4746.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    1. Larceny <®=>3 (2) — Intent to Appropriate —Time of Forming Intent.
    If defendant took possession of a hog for the purpose of protecting his crop and the original taking was not fraudulent, his subsequent appropriation or killing of the hog was not larceny.
    2. Larceny <g=»57 — Sufficiency of Evidence —Fraudulent' Taking.
    On- a trial for hog theft, evidence indicating that defendant took possession of the hog to protect his crop held insufficient to show a fraudulent taking,' even if sufficient to show that he subsequently killed the hog.
    Appeal from District Court, Polk Couuty; L. B. Hightower, Judge.
    G. W. Brooks was convicted of hog theft, and he appeals.
    Reversed and remanded.
    G. C. Clegg, of Trinity, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of hog theft, his punishment being assessed at two years’ confinement in the penitentiary.

The evidence discloses that McKinnon owned a boar about three years of age and which seems to have been a noted hog in the community. There were some peculiarities about the head of the hog which became of some importance in the testimony. His busks -were somewhat prominent and could be seen by looking at the hog from a distance. That McKinnon owned a hog of that description is not questioned, and that appellant took the hog up and put it in his pen at his home is also not questioned. Appellant took up the hog some time the latter part of August, and it was seen there by a number of witnesses in appellant’s possession, who, upon being asked about the hog, stated it belonged to McKin-non and that he had taken it up to protect his crop, claiming authority from McKinnon so to do. McKinnon, however, denied giving appellant -authority to take iup this particular hog, but gave him permission to take up others that were depredating on his crop. Appellant’s testimony agrees with his statement to the neighbors with reference to his possession. Appellant also testified, as did members of his family, that the hog was turned out after the crop was gathered, and all of his testimony denies that he killed the hog. The state seems to rely on the fact that the disappearance of the hog could only be accounted for by reason of the fact appellant killed him; and there was a head of a hog found some time in October, the formation and tusks of which resembled the head of the hog belonging to McKinnon. The head was dry and the ears were gone. In fact it seems to have been but a skull and it was found some distance from appellant’s homo. Objection was made to the introduction of this evidence unless it was otherwise identified or shown to be the head of the alleged stolen hog. The court rather sustained this, or stated at the time the objection was made that the testimony with reference to the head found would not be admissible. This is shown by the statement of facts, and there seems to be no further evidence with reference to the identification of the head. The jury was not instructed to disregard this testimony, and it stands in the attitude above stated. The testimony is full in detail with reference to the hog and its description, but the case depends upon the original taking.

If appellant took the hog for the purpose of protecting his crop and subsequently appropriated it, there could he no theft. The state introduced the statement of appellant to the effect that he did so take it. The appellant testifies he did and subsequently turned the hog out. There is no evidence that he killed the hog, and, if he did, it could not be theft unless the original taking was fraudulent. We are of opinion this testimony does not show a taking of the hog fraudulently, and it shows, if the killing occurred, it was long after the original taking, and this would not relate back to a fraudulent taking and connect with the original taking, even if appellant subsequently appropriated the hog. There seems to be no testimony amounting to anything that appellant killed the hog, unless it is found in the fact that the hog disappeared and was last seen in his possession.

Under these facts, we are not satisfied that-this judgment ought to be affirmed, and it is ordered to be reversed and the cause remanded.
      ig^jPor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COLEMAN v. STATE.
    (No. 4724.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.)
    1. Criminal Law @=784(1) — Larceny <§=77 (4) _ Instruction —■ Possession of Stolen Goods. .
    . Possession of recently stolen property is but a circumstance, and involves a charge on the law of circumstantial evidence and a charge on the facts and circumstances with reference to explanation of possession.
    2. Larceny <§=13 — Taking ■*- Consent of Owner.
    If defendant obtained possession of the horse he is charged with having stolen with the consent of the owner there was no theft.
    3. Larceny <@=377(4) — Instructions.
    In a prosecution for larceny, defendant’s account of his possession of the property compatible with his innocence must be submitted to the jury appropriately.
    4. Criminal Law <§=>781(8) — 'Trial—Instruction — Disproof of Exculpatory State: ments.
    Where the state puts in evidence defendant’s exculpatory statements, it must disprove them to the jury’s satisfaction, and the jury must be so informed by the charge of the court.
    5. Larceny <@=>12 — G-uilt of Receiver of Property.
    If defendant received a stolen horse, but was not present when it was stolen, and did not participate in the original taking, he was not guilty of larceny of the horse’merely because he was a receiver.
    6. Criminal Law <@=379 — Evidence—General Reputation <of Defendant.
    Where defendant put his reputation for truth and veracity in evidence, the opinions of state’s witnesses, and their testimony as to defendant’s general reputation for truth and veracity, based largely on their individual ideas of defendant in regard to their dealings and contact with him, were improperly received.
    7. Witnesses <@=274(1) — Character Evidence-Knowledge of Witness — Preliminary Examination.
    Defendant may demand the right to examine a witness in regard to the predicate for his testimony as to defendant’s general reputation for truth and veracity, and should be permitted to examine him critically, to develop that his conclusion was reached from personal matters and not from defendant’s general reputation.
    8. Criminal Law <@=1170½(5) — Appeal — Harmless Error.
    Where the court gave defendant the broadest and most unrestricted right of cross-examination of witnesses as to defendant’s general reputation for truth and veracity, to develop that their conclusions were reached from personal matters and not from general reputation, doing so after the witnesses had answered favorably to the state that defendant’s reputation was bad, the privilege was accorded defendant too late to cure the error, since errors in the introduction of testimony are not waived nor avoided by reason of cross-examination.
    9. Criminal Law <§=1036(2) — Appeal—Reservation of Grounds of Review — Diligence in Preserving Rights as to Evidence.
    Defendant was not wanting in diligence in maintaining his legal rights on trial where he requested leave to investigate witnesses’ general reputation for truth and veracity, to determine whether the witnesses would testify from general reputation or their own particular knowledge, where, after his bills of exceptions had been reserved, and the testimony gone before the jury, he moved to exclude such testimony from the jury.
    10. Criminal Law <§=658 — Conduct of Trial — Arrest of Witness for Perjury.
    Defendant’s witness was arrested and carried to jail for perjury immediately upon leaving the stand, and the next day was brought into court, and testified for the state exactly opposite to his previous testimony, denouncing it as false; 'the witness’ mind, after talking with the county attorney, seemingly having been impressed with the idea that unless he changed his testimony he would be sent to the penitentiary. Held that such procedure was improper.
    Appeal from District Court, Navarro County; H. B. Daviss, Judge..
    Will Coleman was convicted of horse theft, and he appeals.
    Judgment reversed, and cause remanded.
    Simkins <& Simkins, of Corsicana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of horse theft, his punishment being assessed at four years’ confinement' in the penitentiary. The case is one of circumstantial evidence. The alleged owner, George West, testified that his horse was taken out of his lot at night. The next evening, about 40 miles distant, appellant sold the horse. Appellant had a saddle .that had, some three months previously, been stolen from the Witherspoon farm. Appellant claimed that he sold the horse with the authority of West; that he did not take it nor the saddle, but they were sent to him by West through a party named Williams. There is a great deal of testimony pro and con, developing the different facts and circumstances, unnecessary to be detailed. Appellant sustained his account of his possession by witnesses who testified substantially that West and appellant together tried to sell this horse to Lancaster shortly before its disappearance. This is a case then of circumstantial evidence, based on the' disappearance of the horse at night from its owner’s possession, a sale by appellant the following day late in the evening, and a claim by appellant that he did not take the horse, but received it from West through his agent. This involves several questions with reference to the charge of the court. Complaint is made of these charges in different ways, which will hardly occur upon another trial.

Possession of recently stolen property is but a circumstance, and involves a charge on the law of circumstantial evidence, and a charge on the facts and circumstances with reference to explanation of possession.

If appellant obtained possession of the horse with the consent of the owner, there could be no theft.

Where he gives an account of possession compatible with his innocence this must be submitted to the jury appropriately.

Where the state puts in evidence statements of appellant which are exculpatory, the state must disprove these to the satisfaction of the jury, and the jury must be so informed by the charge of the court. The facts also raise the question of appellant’s presence and participation in the original taking.

If he received the horse, and was not present at the time, it would suggest a .charge to the effect that if he did not participate in the original taking he could not be guilty on the facts which showed he was only the receiver. These propositions are stated generally with a view of a charge upon another trial.

Appellant put his reputation for truth and veracity in evidence. The state undertook to combat this. The state’s witnesses, after being asked the general question, if they were acquainted with the general reputation of the defendant for truth and veracity, answered in the affirmative. When this point was reached appellant’s counsel demanded the right to examine witnesses as to their means of knowledge before being permitted to answer the general question. The bill states the purpose of this was to show that their opinion was not based upon reputation, but from personal experience with the defendant, and this also with reference to his reputation for honesty and fair dealing, it also being an issue. These two matters are treated generally instead of specifically. The court refused to permit this cross-examination as an attack upon the predicate. So far as the bill of exceptions is concerned the court did not inform the witness that he must testify only from general reputation and not from his own personal knowledge, or matters occurring between witness ánd appellant. The bills are lengthy, and it is unnecessary to go further into the statements. These bills further show that the opinion of these witnesses and their testimony was based largely upon their individual ideas of appellant, in regard to their dealings and contact with him. We are of opinion this was error. This has been the subject of decisions of this court as well as the Supreme Court of Texas and the Courts of Civil Appeals, and seems to be the general rule laid down by the Encyclopedia of Evidence, vol. 3, p. 45, and 40 Cyc. 2635.

'In Johnson and Warren, Executors, v. Brown et al., 51 Tex. 65, the Supreme Court says:

“We think the proper practice should be, that, after the impeaching witness has, prima facie, thus first qualified himself to speak of the general reputation of the -other witness (this to be decided by the court) then, before he answers the question as to what that reputation is, the opposite party, if he demands it, should have the right to cross-examine as to his means of knowledge; otherwise, if not qualified, and he has given his opinion, then, as said by the Supreme Court of North Carolina in the State v. Boswell, 2 Dev. Law [13 N. C.] p. 212, it may be too late to correct the error, as the injury has been done and an impression made on the minds of the jury which neither the charge of the court nor the remarks of counsel can entirely remove."

In the case of Clapp v. Engledow, 72 Tex. at page 256, 10 S. W. at page 464, the Supreme Court said:

“It would seem the better practice to allow cross-examinations upon the capacity of impeaching witnesses before allowing them to testify to such character,” citing Johnson v. Brown. 51 Tex. 77.

In Encyclopedia of Evidence, vol. 3, p. 45, it was said;

“It is considered proper practice in some jurisdictions to permit the witness, after answering the preliminary question and before saying what that reputation is, to be crossed as to the grounds for his belief that he has such knowledge.”

And in 40 Cyc. 2635, this language is found:

“And it has been held proper to permit cross-examination as to these matters before the witness is permitted to give the impeaching testimony,” citing the case .of McMillion v. Cook (Civ. App.) 118 S. W. 775, which is also a Texas case.

In the case of McMillion v. Cook, supra, the opinion was written by Mr. Chief Justice James of the Court of Civil Appeals for the Fourth district. He says:

“The proposition in the brief is that: ‘When the question was asked, .appellant’s counsel believed the witness would attempt to respond with an answer based upon some other opinion in the neighborhood than that' of appellant’s general reputation for truth and voracity, and should have been permitted to cross-examine the witness as to what he proposed to ba^e his opinion upon, before permitting him to testify that his general reputation was bad.’ The question put to the witness could not be understood other than as an inquiry into the general reputation of the party, or general opinion of the party, in the community of the party’s residence or acquaintanceship. * * ⅜ The proposition is a correct one, and it was error to refuse to' allow counsel the opportunity * * ⅜ to test his qualification. The rule of practice is well settled in this state, for to allow the witness to give the testimony and permit counsel to develop the witness’ disqualification only in a cross-examination, after the testimony is in, would, as stated in Johnson v. Brown, 51 Tex. 77, place the party at the disadvantage of having an impression prematurely made on the minds of the jury, which neither the charge of the court nor the remarks of counsel could entirely remove. See, also, for rule, Clapp v. Engledow, 72 Tex. 256 [10 S. W. 462], But should the judgment be reversed for such error, when it appears that •counsel failed to make any cross-examination whatever of the witness? If he had done this and he had developed what he expected he would have developed through a preliminary examination, he might have had the testimony of the witness stricken out by the court, and ⅜ * * the result of the trial might have been different.”

Appellant may demand, the right to examine the witness in regard to the predicate, and should be permitted to examine him critically and develop that his conclusion was reached from personal matters and not from general reputation of appellant in these respects. The court qualifies this bill by stating he gave the defendant the broadest and most -unrestricted right of cross-examination of the witnesses in regard to these matters.

This was done after the witnesses had answered favorably to the state that the reputation was bad. This came too late. It is not correct to say that an error of this sort may be corrected by reason of cross-examination. A cross-examination of the witness with regard to illegitimate testimony does not remove the error of the court in admitting erroneous testimony. Errors on introduction of testimony are not waived nor avoided by reason of cross-examination. The error has been already committed, and the cross-examination is for the purpose of eliminating as much of the effect as is possible by such cross-examination. The facts show that the opinion of these witnesses was based largely upon personal views and conclusions. This .was error for which the judgment must be reversed. George West was used as a witness. The question of sustaining his reputation for truth and veracity and as a man of fair dealing also was injected into the trial. The writer is of opinion there was no predicate laid for supporting the witness West. These matters were not impeaching, but they were matters brought out on cross-examination, but if upon another trial a predicate is laid, then we meet with the same proposition just above discussed. When the witnesses to sustain West were offered ■ appellant demanded the right to investigate these witnesses as to their means of knowledge, whether the reputation to which they were expected to testify was general or whether it arose from personal knowledge of West by the witnesses. The same ruling and same objections were urged in these bills of exception as in those with reference to appellant’s reputation and standing. For the same reason the court committed error in regard to this matter. Applicable to all these bills, the following extract from State of North Carolina v. Boswell, 13 N. C. 184, is quoted:

“The first question to be asked appears to be, Are you acquainted with the general moral character of the witness, whose credit is to he impeached? 1 Phil. Ev. 212- 4 Esp. Rep. 102. He may then be interrogated as to the means of obtaining his knowledge. Swift’s Ev. 143. It is true that, in Stark. Ev. 147, it is said: ‘When general evidence of this nature has been given to impeach the credit of a witness, the opposite party may cross-examine as to the grounds upon which that belief is founded.’ But it is then too late to correct the error; the injury has been done. An impression has been made on the minds of the jury, which neither the charge of the court, nor the remarks of counsel, can entirely remove. Thus may artifice gain an advantage to which honesty would disdain to stoop. A witness may be introduced, and express an opinion, when it may be known to the party offering him that his knowledge did not authorize its expression. Justice could be perverted, and the rights of parties sacrificed by testimony, which the rules of evidence were designed to exclude. Let it not be said, that the error can be corrected, and the injury redressed by granting a new trial because of the introduction of improper evidence. Increased expense, delay and inconvenience, must be the consequence. The opinion of the witness is forbidden ground, on which the court should not tread, until it be ascertained that it rests upon a firm foundation.” Approved Downie v. Murphy, 18 N. C. 82; State v. Parks, 25 N. C. 296: Howell v. Howell, 32 N. C. 82, 469; State v. Spurlin, 118 N. C. 1250, 24 S. E. 533.

In this connection it may be further stated that appellant, after all these bills of exception had been reserved and the testimony gone before the jury, made motions to exclude it from the consideration of the jury. This was also overruled by the court. So appellant is not wanting in diligence in the preparation of his exceptions and proceedings to maintain his legal rights.

There is another question which is of serious moment, but deemed unnecessary to discuss, as it will not occur upon another trial. ' It is this: Appellant’s witness Leon Harris testified, and the court ordered him arrested and carried to jail for perjury immediately upon his leaving the witness stand. He was carried to jail, and the next day brought into court and testified exactly the opposite to what he had previously testified, the latter time for the state, denouncing his former testimony as false. This bill is lengthy, and shows the facts and • circumstances with very lengthy explanations, as the trial judge terms it, of the matters as they occurred. It would be interesting but not of any particular value perhaps to narrate these matters and discuss them, but the witness’ mind, after talking with the county attorney, seems to have been impressed with the idea that unless he changed his testimony he would be sent to the penitentiary. This matter as it occurred is condemned by the decisions of this court. This much is said so that it may not occur upon another trial, and doubtless will not. Much of the court’s explanation are matters of fact de hors the record and improperly in the bill. If the judge wishes to state such matters in the bill he should testify as any other witness in regard to them.

. For the reasons indicated, the judgment is reversed, and the cause remanded.
      <S=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    VAJDAK v. STATE.
    (No. 4729.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    Waters and Water Courses ®=»60 — Willful Diversion of Water — Sufficiency of Evidence.
    Where defendant did not obstruct the natural channel across his land, but builta levee to obstruct water, which had been diverted by other parties from another channel into the channel in question, he was not guilty of a “willful” diversion of waters from its proper channel, contrary to Pen. Code 1911, art. 826, making such diversion a misdemeanor.
    Appeal from Burleson County Court; W. M. Hilliard,' Judge.
    Prank Vajdak was convicted of obstructing and diverting water from its proper channel, and appeals.
    Reversed and remanded.
    R. S. Bowers, of Caldwell, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged by information in two counts. The first count was under article 826, P. O., containing the following:

“If any person shall willfully obstruct any public ditch or shall willfully divert the water from its proper channel he shall be deemed guilty of a misdemeanor.”

The allegation is as follows:

“Did then and there unlawfully and willfully obstruct and divert the water from its proper channel, a stream situated and belonging to Burleson county, Tex., by then and there erecting an embankment, or levee across said natural channel or stream, thereby obstructing the water from its natural flow.”

The second count charged the obstruction-of the public road by substantially the same means. Both counts were submitted to the jury, and conviction was under the first.

It appears that there was a channel or drainway through which the water naturally flowed across appellant’s premises. Adjoining his premises was a public road, and some years prior to the alleged offense the county had thrown up this road into a levee about 100 yards long across the low ground, leaving at the place where the drain crossed the road an opening over which was constructed a bridge or culvert. This channel where it passed across the road and into appellant’s land was about 12 feet wide. The drainway or channel on appellant’s land adjoining the road had been filled up from washing from the road and from other adjacent lands west of the road, and had been in this condition some four years prior to the beginning of this prosecution. The drain was not filled up by appellant, nor was he in any way connected therewith. Another channel or drainway had been diverted by other parties and turned down by the side of the road so as to divert the water into the channel which was across appellant’s land. The water thus diverted where the attempted drain of another channel accumulated in the road -flowed over onto appellant’s land at a place above and below the drain-way through his land, and to protect his land against this overflow from the diverted water accumulating in the road he built on his own land a levee parallel with the road, leaving the levee open for the width of the drainway left in the road. This levee did not contribute to the filling of the ditch or drain through appellant’s land as that had been filled by the dirt washing into it from the road and elsewhere for some four years before appellant built his levee. The act complained of to support the prosecution must have been a willful act. Richardson v. State, 47 Tex. Cr. R. 592, 85 S. W. 282; Shubert v. State, 16 Tex. App. 645. The greater part of the evidence bore on the count in the indictment which charged an obstruction of the public road, and there was evidence which would have supported a finding, that the construction of the levee resulted in some injury to the public road. The appellant was acquitted, however, of that count, and as we understand the evidence, it does not show that appellant willfully obstructed the drain through his premises; on the contrary, it appears that the drain through his premises was not obstructed by him at all, but that it had been obstructed for several years by reason of the dirt washing into it, and as applied to the first count we think the evidence fails to support the charge.

There was evidence that some time after the appellant built the levee on his land one of the county commissioners had a conversation with him in which the appellant, in substance, declared that he was unwilling to open up the drain through his premises or permit it to be done. Similar testimony was held inadmissible in the Richardson Case, 46 Tex. Cr. R. 83, 79 S. W. 536, citing Hatfield v. State, 67 S. W. 110, and McMillan v. State, 77 S. W. 790.

The Assistant Attorney General in his brief concedes that this case shoul& be reversed, and in this conclusion we think he is correct.

Reversed and remanded.


text:
    EASLEY v. STATE.
    (No. 4656.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    1. Robbery <s=»24(5) — Assault or Violence —Sufficiency of Evidence.
    In a prosecution for robbery, evidence held insufficient to show an assault or violence.
    2. Robbery <⅞=>24(5) — Putting in Fear — Proof.
    The “putting in fear” to support a conviction of robbery must be sustained by evidence of acts or conduct or words or circumstances reasonably calculated to effect that result.

      3. Criminal Law ⅞=»1109(11) — Reversal-Misconduct of Jury.
    Where, on prosecution for robbery, there was some evidence which had the effect, or might have had the effect, of leading the jury to believe the defendant was under indictment for murder, and this affected. the verdict in that some jurors voted for conviction to shorten a sentence for murder, when in fact the defendant was not indicted, the conviction will be reversed where the evidence is very weak, but reversal would not be granted if the state had made a strong case.
    4. Criminal'Law <§=»959 —New Trial — Inquiry as to Use of Evidence Made by Jury.
    An inquiry into the use made by.the jury of legitimate evidence is not proper on motion for new trial.
    Appeal from District Court, Morris County ; J. A. Ward, Judge.
    Clofus Easley was convicted of robbery, and he appeals.
    Reversed.
    John M. Henderson, of Daingerfield, for appellant. E. B. Hendricks, Asst. Atty. Gen,, for the State.
   MORROW, J.

Conviction was for robbery and punishment assessed at five years’ confinement in the state penitentiary.

The indictment charged the manner of the offense in the following language: .

“Did then and there unlawfully in and upon John Clark did make an assault and did then and there by said assault and by violence to the said John Clark, and by putting the said John Clark in fear of life and bodily injury.”

And the case was submitted to the jury upon the issues thus alleged.

It appears that the injured party, John Clark, was a white man, and appellant a negro; both residing in the same community. The offense was charged to have occurred on the 15th of November, 1916. The indictment was found April 12, 1917. Clark testified that he had known appellant nearly all his life; that one evening he (the witness) was drinking; and that he went to a shack belonging to the brother of appellant, at which there was a crowd of negroes, and asked if he could get a bottle of whisky. He said:

“I guess defendant saw my pocketbook here in town that night. I don’t remember whether I exhibited my money to him or not. I gave him a dollar. I had my pocketbook out in front of him. After that I left town and started home. The next time I saw him was near Mr. Mason’s, just inside the corporation. He came up behind me. He had a stick something like a walking stick in his hand. We just walked along together like I would with anyhody; I never thought nothing until he walked upon me. We walked right on down the road together. We walked on together until we got by the side of Mr. Mason’s house. Walked up to Mr. Mason’s house, where the roads cross. Walked up to his back gate, and I asked Clofus where he was going. He said, T am just going down the road a piece.’ I said: ‘You ain’t got any business down the road; no negroes live down there.’ And he said, T want your pocketbook.’ I turned and looked him straight in the face, and says, ‘Clofus, what in the world do you mean?’ I then ran my hand in my pocket and gave it to him. I said, ‘if you don’t leave me alone, I will call Mr. Mason.’ I gave him the pocketbook because he had a stick in his hand. He never raised it, but I didn’t want any trouble, and I was afraid he would kill me if I didn’t give it to him. I gave .him the pocketbook through fear. If I hadn’t been afraid, he never would have got it. He told me the second time to give him my pocketbook. I don’t remember how he hád the stick in his hand.”

He further testified that this occurred about 10 or 11 o’clock at night after the stores in town were closed, and that there was a valley between where it occurred and his house. He also claimed to have bought a bottle of whisky from appellant at the time he gave him the dollar. The witness said that he did not know when this occurred, but that it was some time last year; that he did not phone the officers because he did not mean to; and that he would not have his wife find it out for five times the amount. The appellant was not represented by attorney, but cross-examined the witness, and from the cross-examination the following quotations are taken:

“You did not draw it (the stick) on me, but you had it all right. I 'didn’t think you would rob me and was certainly surprised when you did it. I will tell you exactly why I waited all this time before I indicted you. I never would have told it if the grand jury had not got me. That was on Saturday night. I don’t know whether it was November 15th, or not. I have nothing on earth by which I can fix the date exactly. I decided that, under the circumstances, I would not say anything about it, and did not try to remember it.”

The pocketbook was worth 50 cents and contained one dollar in money.

This is the entire incriminating evidence. The witness Clark said that he had never mentioned the matter until about a month before the grand jury met, when he learned that a negro had been killed or found dead and appellant had been arrested on suspicion . of connection with the homicide; that he then told of the robbery and was afterward brought before the grand jury. Appellant’s witnesses testified that he was sick and at ■ home at the date of the alleged occurrence, and appellant, testifying, denied that he sold the state’s witness whisky, denied the robbery, and denied that he was at the place where appellant claimed -to have gotten the whisky, and testified and introduced witnesses to show that he was not at the place where the state’s witness testified to have gotten the whisky and exhibited his pocketbook. We quote the entire cross-examination of appellant:

“Q. You are under indictment now for murder, ain’t you, under a charge for murder? A. Yes, sir; I am accused of it.”

On motion for new trial it was charged that, while the jury was deliberating, before they agreed on a verdict, and while two of the jurors were in favor of acquittal, it was stated and argued that appellant was under indictment for murder. Evidence was heard on the motion, and the jurors testified. There was some conflict as to just what happened. Several of the jurors testified, in substance, as follows: The jury was tied up for 24 hours, 2 for acquittal and 10 for con; viction. Those for conviction argued that the defendant should be convicted for the reason that he was charged with murder in the other case, and that if they gave him five years in .this case and he was convicted in the other case he might get a shorter term. One of them, Wjley, stated that the jury in its retirement discussed the fact that appellant was under indictment for murder, but he would not say that any juror told him directly that he was indicted for murder, but that it was talked of, and that he believed from what he had heard the other jurors say that he was under such indictment; that he hung out for 24 hours for acquittal; that it was said in the jury room that the defendant was indicted for murder, and that if they convicted him in this case it might make his sentence less in the other; but for this statement he would not have consented to the verdict; that it was his understanding that the grand jury was in session while the jury was deliberating.

The evidence that was given by appellant to the effect that he was charged with murder was not limited in the court’s charge, and no exception to his failure to do so was reserved. Appellant, as a matter of fact, was not indicted for murder, but at the time of his trial was held on complaint made on suspicion or belief that he was connected with the homicide and was subsequently discharged because there was no evidence against him. Under the indictment it was necessary to prove either the assault alleged, the violence charged, or that appellant obtained the property by putting the injured party in fear of life or bodily injury. The evidence fails to show an assault. Wharton’s Crim. Law, § 798; Barnes v. State, 44 Tex. Cr. R. 473, 72 S. W'. 177. Nor was there violence proved. 34 Cyc. p. 1799. Appellant, as far as the evidence shows, made no demonstration or threat. He possessed no arms, so far as disclosed, but had in his hand a stick which was not described either as to its size, or its weight, or its length, or the material from which it was made, further than the statement that it was like a walking stick. The “putting in fear” which is referred to in the statute must, to support a conviction of robbery, be sustained by evidence of acts or conduct or words dr circumstances reasonably calculated to effect that result. Cyc. vol. 34, p. 1800, subd. 4; Steward v. People, 224 Ill. 434, 79 N. E. 637, from which we quote the following:

“All the authorities agree that to constitute the crime of robbery there must be violence, or intimidation of such a character as that the injured party is ‘put in fear.’ The fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against Ms will.” 24 Amer. & Eng. Encyc. of Law (2d Ed.) p. 999; Davis v. Commonwealth (Ky.) 54 S. W. 959.

Whether the appellant’s contention that the jury received information that appellant during the trial had been by the grand jury, then in session, indicted for murder, as shown by the facts, developed on motion for new trial, is one of such doubt that, in view of the court’s finding to the contrary, we would hesitate to determine in his favor. The fact that some of the jurors believed, and acted on the belief, that the grand jury had so indicted him, is established. This belief was formed from statements made by other jurors, and their statements may have been founded upon the evidence adduced on the trial in cross-examination of appellant that he was accused of the murder. An inquiry into the use made by the jury of legitimate evidence would not be a proper subject of inquiry on motion for new trial. Turner v. State, 61 Tex. Cr. R. 103, 133 S. W. 1052. Prom this record it appears, however, that appellant was not indicted for murder, and that the erroneous belief or information that he was so indicted was used against him. The case is somewhat similar, in this respect; to Francis v. State, 57 Tex. Cr. R. 555, 123 S. W. 1114. If the state’s case was a strong one on the evidence, we would not, for the alleged misconduct of the jury, reverse. The state’s evidence is meager and of doubtful sufficiency. As stated above, there was no assault or violence; and, notwithstanding the injured party testified to fear, the facts justifying his fear are not proved in a satisfactory manner. The weakness of the state’s evidence is emphasized by the failure of the injured party to disclose the robbery and by the fact that there was no evasion of arrest upon the pari of appellant, but he, on the contrary, remained in the same community with and met his victim every day. The intimation in his cross-examination by the state’s attorney that he was indicted for murder was probably a controlling factor in his conviction.

We think, under all the circumstances disclosed by the record, the trial court was in error in refusing to grant a new trial, on which account the judgment of the lower court is reversed, and the cause remanded.
      <g^>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=»Eor other cases see same topic and KEY-NUMBER in all Key-Npmbered Digests and Indexes


text:
    EPPERSON v. STATE.
    (No. 4749.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    1. Criminal Law @^956(1) — Motion tor New Trial — Necessity of Affidavits or Proof.
    On motion for a new trial after a verdict on a plea of guilty on the ground that defendant was not represented by an attorney, and meant by his plea of guilty that he killed deceased, but not that the homicide was unlawful, where the proceedings as disclosed by the judgment followed the statute, the motion should have been verified by affidavit or proof, as the record could not he impeached by an unverified motion.
    2. Criminal Law <§=>1124(4) — Appeal—Matters Presented eor Review.
    A motion for a new trial after a verdict on a plea of guilty, on the ground that the evidence taken on the examining trial and attached to the motion showed that the killing was in self-defense, was not reviewable where the judgment overruling the motion recited that the court heard evidence, but the evidence heard was not brought up, especially where the identity of the evidence attached to the motion with that adduced on the examining trial was not verified by affidavits, and there was no bill of exceptions or statements of facts on the motion showing whether .such purported testimony was before the trial court.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Frank Epperson, alias Frank Eidwards, was convicted of manslaughter, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the Stata
   MORROW, J.

This appeal is from a sentence condemning appellant to two years’ confinement in the state penitentiary for the offense of manslaughter. The indictment was for murder. 'The state abandoned the charge of murder, and on a plea of guilty the jury rendered a verdict which is the basis for the judgment. The indictment is regular, and no errors in the conduct of the trial are complained of.

In a motion for new trial appellant, conceding that he entered a plea of guilty, complains that he was not represented by attorney, and that by entering the plea he meant that he had killed deceased, but did not mean that the homicide was unlawful. The motion for new trial is not verified. The proceedings, as disclosed by the judgment, followed the statute with reference to the entrance of a plea of guilty. The statement of facts shows the homicide and fails to show justification. The law would not permit impeachment of this record on consideration of a motion for new trial which was neither verified by affidavit or proof. Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649; Robinson v. State, 58 Tex. Cr. R. 550, 126 S. W. 276; Pilgrim v. State, 59 Tex. Cr. R. 499. 129 S. W. 363; Johnson v. State, 65 Tex. Cr. R. 43,143 S. W. 626; Bryant v. State, 69 Tex. Cr. R. 457, 153 S. W. 1156; Vernon’s C. C. P. p. 805, and cases cited. The rule recognized in these authorities is that when in a motion for new trial the matter is not shown 'by the record as relied on, verification of its truth is essential.

It is claimed in the motion that appellant acted in self-defense, and that the homicide was therefore justifiable. This, if true, depends upon evidence not adduced upon the trial, and not even newly discovered. Attached to the motion is what purports to be evidence adduced upon the examining trial. The identity of this evidence is not verified by any affidavit attached to the motion for new trial. There is no bill of exceptions or statement of facts upon motion for new trial showing whether this purported testimony was before the trial court on the hearing or not, nor is it brought before us by any bill of exception or statement of facts or otherwise. There is no information as to whether appellant’s motion was controverted or evidence introduced in opposition to it or not. The judgment overruling the motion for new trial recites that the court heard the evidence, and on such hearing overruled the motion. To authorize this court to review the action it is necessary that the evidence heard be brought up as a basis for the review. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reyes v. State, 196 S. W. 533, and cases cited; Guerra v. State, 189 S. W. 953.

We will add that the reading of the copy of the evidence on the examining trial attached to the motion discloses facts which would have raised the issue of self-defense, and if on a plea of not guilty appellant had been tried on the indictment for murder, and this evidence had been before the jury a charge on self-defense would have been required. This evidence, however, would not make, a case of self-defense as a matter of law.

The record disclosing no reversible error, the judgment of the district is affirmed.
      ©^oEor other cases see sam,e topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.- DAVIDSON, P. J- MORROW, J.

text:
    YOUNG v. STATE.
    (No. 4694.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.
    On Motion for Rehearing, Dec. 21, 1917.)
    1. Criminal Law <§=>543(1) — Evidence — Testimony at Examining Trial.
    Testimony of witness at examining trial, since removed from the state, is admissible at trial.
    2. Criminal Law <§=>547(3) — Evidence—Testimony at Examining Trial — Oral Proof —Preliminary Showing.
    Showing necessary for introduction of oral proof of the testimony at the examining trial of a witness since removed from the state that the testimony was not reduced to writing by the magistrate with the formality required by Code Cr. Proe. 1911; art. 300, so as to constitute it the primary evidence, held sufficient.
    3. Criminal Law <§=>547(1) — Evidence—Testimony at Examining Trial — Reading from Notes — Refreshing Memory.
    One may read the notes which he took of the testimony of a witness since removed from the state at the examining trial, he testifying that he took it down correctly, remembered the substance of it, and that he could give the details better by reading his notes; he thus using them to refresh his memory.
    4. Criminal Law <§=^531(3) — Trial — Admission of Confession.
    On conflicting testimony as to a confession being voluntary, it is properly admitted, with submission to the jury of the question of its being voluntary, and direction to disregard it if it was not voluntary.
    Davidson, P. J., dissenting.

      Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    A. P. Young was convicted, and appeals.
    Affirmed.
    Parmer &> Parmer and Taylor & Taylor, all of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.-

Appellant appeals from a sentence condemning him to confinement in the state penitentiary for a term of 5 years on conviction of the offense of robbery.

The state reproduced the testimony of R. W. E’chols, the alleged injured party, given at the examining trial of appellant, at which he was present. D: C. Woods, who was assistant county attorney, preliminarily, in reproducing the testimony testified that he attended the examining trial of appellant in his capacity as assistant county attorney; remembered R. W. Echols testifying; that he testified to a robbery that occurred near the railroad; that to give the details he would have to read the written statement, in regard to which he said:

“This is the testimony that I took down at the time. I took it down correctly. But I can give it better by reading this than I could by reciting- it.”

He further reiterated that he had the testimony down at the examining trial on paper which he had in his hand, and that it was his way of preparing the testimony in such trials. He was then permitted by the court to read from the writing in Ms possession the alleged testimony of the witness. Appellant objected to the evidence on several grounds which are disclosed in the bill of exceptions No. 1, which appears to be a reproduction of the proceedings while this witness Wood was upon the stand, in detail as recorded by the stenographer. The objections made we quote from the language of appellant’s attorney in reserving the bill:

“We reserve our bill of exception to all of that, and I want the bill to show that the assistant county attorney, who took the examining trial in this case, was permitted to read the testimony of the prosecuting witness, Echols, in the final trial of this case in the district court.
“The Court: You can show the facts. He testified that he took it down and heard him testify and it was correctly taken down.
“And on the ground that the statement read to the jury was not properly authenticated by the justice of the peace. It was not signed by the witness Echols, nor was it signed or shown to have been drawn up by the justice of the peace, nor was it shown to have come from the possession of the district clerk’s office.
“The Court: All right. Of course, if that was all done, you wouldn’t have to have Mir. Woods here. You could just shove it in and introduce it.
“We object to it further on the ground that the statute provides that every man shall be confronted with by the witnesses against him, and the testimony in this case showing that the state witness whose testimony is reproduced here is at this time residing in the state of Alabama.”

The record shows that the justice of the peace who conducted the examining trial was introduced as a witness by the state, and testified with reference to certain papers which were presented at the trial as follows:

“That is the examining trial record in that case. Those are the papers in that examining trial. They were sent to the district clerk’s office by me.”

In discussing this bill in their brief appellant’s counsel stress some matters which are not raised in the exceptions quoted. As to what ruling the court made and exceptions were taken, we are confined to the bill of exceptions. However, we are taking up the matters presented in the brief. Article 300 of our C. G, P., relating to examining trial, is as follows:

“The testimony of each witness examined shall be reduced to writing by the magistrate, or some one under his direction, and shall then be read over to the witness, or he may read it over himself; and such coreetions shall be made in the same as the witness may direct; and he shall then sign the same by affixing thereto his name or mark. All the testimony thus taken shall he certified to by the magistrate taking, the same.”

■Articles 832, 833, and 834 are as follows:

Article 832:

“Depositions taken in criminal actions shall not be read, unless oath be made that the witness resides out of the state; or, that, since his deposition was taken, the witness has died; or that he has removed beyond the limits of the state; or that he has been prevented from attending the court through the act or agency of the defendant; or by the act or agency of any person whose object was to deprive the defendant of the benefit of the testimony; or that, by reason of age or bodily infirmity, such witness cannot attend.”

Article 833:

“When the deposition is sought to be used by the state, the oath prescribed in the preceding article may be made by the district or county attorney, or any other credible person; and, when sought to be used by the defendant, the oath shall be made by him in person.”

Article 834:

“The deposition of a witness taken before an examining court or a jury of inquest, and reduced to writing, and certified according to law, in cases where the defendant was present when such testimony was taken, and had the privilege afforded him of cross-examining the witness, may be read in evidence as is provided in the two preceding articles for the reading in evidence of depositions.”

The contention that the reproduction of testimony under the circumstances defined in our statute (article 834, supra) is violative of the Bill of Rights of the Texas Constitution (article 1, § 10) has frequently been considered by this court where the reproduced testimony was of a witness who died after giving his testimony, and as to that of one who had removed beyond the limits of the state. A number of these cases are listed in Branch’s Ann. P. C. p. 47, § 76. Perhaps on no subject touched in the history of the court has there been displayed greater research or more profound learning than is to be found in some of these decisions presenting the views of distinguished jurists. This is notably true of the majority opinion and dissenting opinion in the Cline Case, 36 Tex. Cr. R. 337, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850, where the reproduced evidence was rejected. The views expressed hy this court in earlier decisions were contrary to the conclusion reached by the majority in the Cline Case. Black v. State, 1 Tex. App. 381;. Ray v. State, 4 Tex. App. 455; Dunlap v. State, 9 Tex. App. 188, 35 Am. Rep. 736; Simms v. State, 10 Tex. App. 166; Potts v. State, 26 Tex. App. 665, 14 S. W. 456; McGee v. State, 31 Tex. Cr. R. 74, 19 S. W. 764; Bennett v. State, 32 Tex. Cr. R. 216, 22 S. W. 684; Meyers v. State, 33 Tex. Cr. R. 216, 26 S. W. 196; Clark v. State, 28 Tex. App. 195, 12 S. W. 729, 19 Am. St. Rep. 817; Parker v. State, 18 Tex. App. 90; Johnson v. State, 26 Tex. App. 640, 10 S. W. 235; Peddy v. State, 31 Tex. Cr. R. 548, 21 S. TV. 542; Scruggs v. State, 35 Tex. Cr. R. 623, 34 S. W. 951; Conner v. State, 23 Tex. App. 383, 5 S. W. 189; Garcia v. State, 12 Tex. App. 340. The rule in the Cline Case was abandoned by a divided court in the opinion in Porch’s Case, 51 Tex. Cr. R. 7, 99 S. W. 1122, in a case where the witness whose testimony was reproduced was dead at the time of the trial, and in Hobbs Case, 53 Tex. Cr. R. 71, 112 S. TV. 308, where the witness was shown to be beyond the jurisdiction of the state. Without attempting to review the subject, the writer is of the opinion that the rule declaring the admissibility of such testimony is so generally recognized as proper that it should be adhered to. It has been recognized as the true rule not only in many of the decisions of our own court, but by the courts of last resort in most of the states of the Union, and is generally sanctioned by the text-writers. Wharton’s Crim. Evidence, vol. 1, §§ 227 and 231; Wig-more on Evidence, vol. -, art. —, p. -; 25 L. R. A. (N. S.) 882, note 13; 13 Ann. Cas. p. 973; Vernon’s Ann. C. C. P. pp. 768 to 770, also page 27.

It appears that proof was made on the trial that R. W. Echols, the absent witness, had removed to, and was a resident of, the state of Alabama. This also appears from the bill of exception, and brings the predicate within one of the alternative provisions of article 832, supra. It is insisted, however, in the brief that there was an absence of affirmative showing that the testimony was not reduced to writing by the magistrate under the formality required by article 300, C. C. P., supra, and that, in the absence of such proof, the presumption that it had been so reduced to writing would prevail, and that presumption would disclose that the manner in which the testimony was reproduced was by secondary, and not by primary, evidenc*. It was held in Sullivan’s Case, 6 Tex. App. 319, 32 Am. Rep. 5S0, that the writing under the certificate of the magistrate was primary evidence, and in the O’Connell Case, 10 Tex. App. 569, that, in the absence of .proof to the contrary, the presumption of the performance of his duty by the magistrate would exist. That the testimony of a witness at an ex-amining trial may be reproduced by oral proof has been the subject of judicial decision in a number of cases, many of which are listed in the notes in the case of the State v. Hefferman, 25 L. R. A. (N. S.) 882, and the right to use oral testimony where, the written testimony has been lost or is excluded for irregularities, or where the evidence was not reduced to writing, has been affirmed. Dunlap v. State, 9 Tex. App. 179, 35 Am. Rep. 736; Potts v. State, 26 Tex. App. 663, 14 S. W. 456; Kirby v. State, 23 Tex. App. 13, 5 S. W. 165; Stevens v. State, 38 S. TV. 167.

In the present case, if the point is raised by the bill of exceptions, we think it is met by the proof as disclosed in the record. The justice of the peace is shown to have brought all the papers from the examining court, or at least to have identified them at the trial. The predicate for the introduction of secondary evidence was for the court, and it appears from the bill that, responding to the objection of counsel that the written evidence was not certified by the inagistrajte, the court stated in effect, that that was true. The papers were then all before him. Moreover, we think it satisfactorily appears from the bill that the only record made of the testimony of Echols at the examining trial was that made by the assistant county attorney, who was used as a witness to reproduce it.

The complaint that there was error in permitting the witness Wood to read the statement that he had reduced to writing does not, we think, under the circumstances, constitute error. He testified that he remembered the substance of the testimony as given in the writing which was in his possession, and that he could give the details better by reading the writing than by undertaking to recite it. Prom this it was apparent that he was using the writing to refresh his memory and to enable him to accurately state the testimony given. It was not the introduction of the writing, but the introduction of the recollection of the witness, refreshed from the writing. No authority condemning such practice has been pointed out. We find in Lake v. Commonwealth, 104 S. W. 1003, 31 Ky. Law Rep. 1323, that the same practice was followed and approved by the court. See, also, Wharton, Crim. .Ev. vol. 1, § 231.

The state introduced the confession of appellant, which was in writing and in form in every respect. Objection was made to it on the ground that it was not voluntary and evidence upon that subject was introduced. Appellant testified, in substance, that the confession was brought about by promises and by personal violence and the fear of serious injury. This was controverted by the state’s testimony in every particular except that it was shown before the appellant made the statement the chief of police slapped him. It was claimed that it was not a serious blow, and was given to the appellant because of impudent language. This transaction appears to have been made some time before tbe confession was given, and that the chief of police was not present when the confession was made. The court submitted to the jury the question as to whether the confession was freely made, without compulsion or persuasion, and informed them that unless it was so made it could not be considered. The jury might have reached, under the evidence, a conclusion adverse to the voluntary nature of the confession. There was not sufficient evidence of such promises as would condemn it (Thompson v. State, 19 Tex. App. 616; Brown v. State, 45 Tex. Cr. R. 139, 75 S. W. 33: Branch’s Ann. P. C. p. 41); and under the conflicting evidence as to compulsion we do not feel authorized to disturb the finding of the jury responding to the instruction by the court to disregard the confession if it was not voluntary.

Finding no reversible error, the judgment of the lower court is affirmed.

DAVIDSON, P. J-

(dissenting).

While I do not believe it is legal to reproduce the testimony of the absent witness, but in view of what I have heretofore written, I deem it unnecessary to write further on the question.

On Motion for Rehearing.

MORROW, J.

Counsel for appellant insists ' that there was error in permitting the assistant county attorney, Woods, to read to the jury the written statement taken down by the witness at the preliminary trial. On this subject the following quotation from the bill is taken:

“The Witness: Well, this is his testimony that I took down at the time. The Court: Did you take it down correctly? The Witness: Yes, sir. Mr. Taylor: We presume that is true. The Witness: But I can give it better by reading this than I could by reciting it. The Court: I think this is all right, if you answer it is correctly taken down and he delivered it. Any objection to that? Mr. Taylor: What is he trying to do? Introduce the statement? Mr. McNamara: No, sir; we are not introducing the statement. The Court: Pie says that is an exact statement of what he made, and he took it down at the time he delivered it, and he will swear that it is correct.”

Mr. Wharton, in his work on Criminal Evidence (section 231), uses the following language :

“The evidence of the original witness may be proved by the notes of counsel, or of the judge, or of a shorthand reporter sworn to by the producing witness; nor is it necessary that the notes should purport to give more than the substance of the language of the original witness. In such cases the notes are not evidence per se; their only value being as a means of refreshing the memory of the witness.”

From Lake v. Commonwealth (Ky.) 104 S. W. 1006, we take the following quotation:

“Appellant also contends that the trial court erred in admitting the testimony of C. ®. Rankin, official stenographer of the court, and permitting him to read from the transcript of evidence Mrs. Chambers’ testimony in reference to appellant’s guilt of the crime charged, given on the examining trial, which transcript was made by Rankin from his stenographic notes of her testimony taken while she was on the witness stand. As Mirs. Chambers’ death occurred shortly after the examining trial, the question of whether her testimony given on that trial could be read from the transcript of the official stenographer of the trial in the circuit court was to be determined from the facts elicited by the questions asked the latter, and his answers thereto, before allowing him to read the transcript of her testimony to the jury. Therefore it was proper to prove by him that he had accurately taken her testimony in shorthand and correctly transcribed it, and that it was all contained in the transcript as read by him to the jury, and also proper to show by him that he was an experienced and skilled stenographer. It follows, therefore, that the lower court did not err in allowing the official stenographer to read to the jury the transcript of Mrs. Chambers’ testimony.”

Authorities supporting this conclusion are cited in the opinion, as well as under the text in Wharton’s Criminal Evidence.

Constrained to think the conclusion originally reached was cbrnrect, ‘ the motion for rehearing is overruled.
      <§=3Fo.' other eases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: <PREND'ERGAST, J.

text:
    MACKEY v. STATE.
    (No. 4617.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    State’s Rehearing Denied Dec. 21, 1917.)
    1. Intoxicating Liquors <s=>40(3) — Oblense —Indictment—Statute,.
    Where an election on the question of prohibition was carried prior to Acts 31st Leg. (1st Called Sess.) c. 15, making it an offense to pursue the business of selling intoxicating liquors in prohibition territory, that act was applicable, and a defendant might be convicted for such offense. .>
    2. Indictment and Information <©=>125(14)— Carrying on Business — Allegations of Indictment.
    In indictment for following business of selling intoxicating liquors in prohibition territory, allegations that defendant made other and different sales of liquor to persons unknown in violation of law were not improper, and did not render indictment bad.
    3. Intoxicating Liquors <©=>223(2) — Carrying on Business — Issues, Proof, and Variance-Other Sales.
    Under such indictment, whether alleging other unlawful sales to unknown persons or not the state may prove such other sales to show the offense charged.
    4. Intoxicating Liquors <©=>204 — Indictment — Allegations.
    In such indictment, allegation of specific sale was not required to aver that such sale Was “unlawful.”
    5. Intoxicating Liquors <©=>212 — Indictment-Carrying on Business.
    An allegation that defendant unlawfully engaged in such business; and on a certain day before the indictment made one sale to a named person, and on or about that day made one sale to the same person, alleged only one sale, and would be quashed on that ground.
    Prendergast, J., dissenting in part.
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    j. J. Mackey was convicted of following the business of selling intoxicating liquors in prohibition territory, and he appeals.
    Reversed, and cause dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   <PREND'ERGAST, J.

Appellant appeals from a conviction for pursuing the business of selling intoxicating liquors in Denton county, where prohibition was in force.

The only question is the sufficiency of the indictment. Appellant made a motion to quash it oh several grounds. It alleges that prohibition was carried in September, 3002, upon proper election, and that the commissioner’s court so declared and entered an order as prescribed by statute, which was duly published. Appellant contends that because that election was held, carried, etc., prior to the time the Legislature made it an offense by the act of 1909 to pursue the occupation or business of selling intoxicating liquors in prohibition territory, that therefore .the law prescribing this offense was inapplicable, and he- could not be convicted for said offense under said law. This has unifornSly been held against appellant from the first case that arose after the passage of said act down to the present time. It is unnecessary to cite all the cases. The first case was Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040; the last Gearheart v. State, 197 S. W. 187, in an opinion by Judge Morrow.

Another ground to quash- was because the latter part of the indictment alleged that appellant made other and different sales of said liquor in violation of said law, to persons to the grand jurors unknown. This is not an improper allegation in an indictment for this offense, nor would, or could, it render the indictment bad. It has uniformly been held that when such an allegation is made, or when not, the state has the right to prove other and different sales td other persons not specifically alleged to show that appellant was engaged in or pursuing such occupation or business. Some of the cases are cited in 1 Branch’s Ann. P. O. p. 681.

After making all proper allegations about the election, that prohibition carried, and the order of the commissioner’s court putting it into effect, publication thereof, etc., it alleged that on or about December 24, 1916, in said county, appellant did unlawfully engage in and pursue the occupation and business of selling intoxicating liquors in violation of said law, which was in full force and effect in said county at the time, and then this:

“And that the said J. J. Mackey did then and there, on or about the 24th day of December, A. D. 1916, in said county and state, and anj tenor to the presentment of this indictment, make one sale of intoxicating liquor to Bud Swanks, and on or about the 24th day of December, A. D. 1916, in said county and state, and anterior to the presentment of this indictment, the said J. J. Mackey did make one sale of intoxicating liquor to Bud Swanks.”

This is the only allegation alleging any specific sales to any person named. Appellant’s attack of this allegation is in two respects: First, he claims that this allegation should have averred that appellant on the date mentioned did make “unlawful” sales to said party. In an indictment alleging this offense, it is not essential to its validity that such word be used. Ikard v. State, 46 Tex. Cr. R. 605, 79 S. W. 32.

The other point he makes is that the language quoted alleges only one sale to Swanks on the date mentioned; that it does not allege two separate and distinct sales to Swanks on the same date. In the opinion of this writer, the language used does aver two sales, and not one only. Condensed it is: And that said Mackey did on or about December 24th make one sale of intoxicating liquor to Swanks, and on or about December 24th make one sale, etc., to said Swanks. Of course, it might have been better in alleging a second sale to have used the word “another” instead of “one” in the latter clause. But this writer’s Associates think his contention on this latter point is correct; that it is not reasonably certain therefrom that this allegation'avers two sales to Swanks on the same date; that the allegation rather seems to be a repetition averring the same sale; that while the first clause clearly alleges a sale on December 24th, the latter part does not allege “another” sale on that date; that if it had been intended by the pleader in the latter clause to allege a separate and distinct sale on the same date, it could have been done in clear and specific language by the use, instead of the word “one,” of “another,” or other words that would have shown that the latter clause was intended to.allege another and different sale than that alleged in the first clause. Martin v. State, 72 Tex. Cr. R. 454, 162 S. W. 1145. They hold the indictment should have been quashed on this ground.

Therefore on the holding of my Associates the judgment is reversed, and the cause dismissed.
      <S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes