text:
    Ex parte STEPHENSON.
    (Court of Criminal Appeals of Texas.
    Oct 14, 1913.)
    1. Bail (§ 43) — Bailable (Defenses — Death as Alternative Punishment.
    Const, art. 1, § 11, and Code Cr. Proe. 1911, art. 6, provide that all -prisoners shall be bailable by sufficient sureties unless for capital offenses when the proof is evident. When such constitutional provision was adopted, murder in the first degree was punishable by death only. Act April 3, 1913 (Acts 33d Leg. c. 116), abolishes degrees of murder, and prescribes as the punishment for murder death or imprisonment for life, or for any term of years not less than five. Hold, that the mere fact that death is one of the penalties authorized does not render murder nonbailable; but, if the court, exercising a well-guarded and dispassionate judgment, reaches the conclusion that the death penalty, if the law is properly enforced, will be imposed by the jury, bail should be denied, while if it reaches the conclusion that the jury probably will not and should not inflict the death penalty, bail should be granted.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. §§ 153-164; Dec. Dig. § 43.]
    2. Criminal Law (§ 1148) — Appeal—Discretion oe Court — Admission to Bail.
    On an application for bail by a person charged with murder, the trial judge has a reasonable discretion in determining whether the death penalty probably will or should be imposed, and on appeal the presumption will be indulged that his judgment is correct.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3050-3052; Dec. Dig. § 1148.]
    Appeal from District Court, Hardin County; L. B. Hightower, Judge.
    Habeas corpus proceeding by W. C. Stephenson to obtain his release on bail. From a judgment denying bail, petitioner appeals.
    Reversed, and bail granted.
    T. B. Ridgell, of Rockwall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was held under an accusation for murder alleged to have been committed August 19, 1913, after the act of the Legislature approved April 3, 1913 (page 238), abolishing the degrees of murder, and changing the penalty therefor, was in effect. On a habeas corpus hearing the district judge denied bail, from which appellant prosecuted this appeal.

The statement of facts, is quite lengthy. It is the rule of this court not to discuss the facts in habeas corpus bail cases. Before said act of 1913 the offense of murder was in two degrees, first and second. The punishment for the first degree was by death or confinement in the penitentiary for life; for the second degree, It was confinement in the penitentiary for any term not less than five years. By said act of 1913 the degrees of murder were abolished, and the punishment, as prescribed by that act, is death or confinement in the penitentiary for life or for any term of years not less than five.

In 1876, by and when our present Constitution became effective, murder of the first degree was punishable by death only. McInturf v. State, 20 Tex. App. 335. Since then the penalty was so changed as to make it punishable by death or imprisonment for life as stated above. Section 11, art. 1, of our Constitution is: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found, upon examination of the evidence in such manner as may be prescribed by law.” This is also enacted as a part of C. C. P., art. 6. The fact that by and at the time this constitutional provision was adopted, murder in the first degree was punishable only by death should be taken into consideration. Mr. Harris, in his Texas Constitution, under this article (page 107), we think, lays down this correct proposition from the authorities: “(3) ‘Proof is evident,’ if the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, and in such case bail is not a matter of right. Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99; Ex parte Beacom, 12 Tex. App. 318; Ex parte Coldiron, 15 Tex. App. 464; Ex parte Evers, 29 Tex. App. 539, 16 S. W. 343.”

The rule is “all prisoners shall be bailable.” The exception is “when the proof is evident” that not only the accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment, this conclusion to be reached by the well-guarded and dispassionate judgment of the court or judge passing upon the question. The denial of bail in any case and the confinement of the accused in jail to await trial is not, and is not intended as, any punishment of the accused for his crime; but the reason for refusing bail and so confining him is to be certain that he shall be present at the court and stand his trial. If upon a consideration of all the evidence, it is reasonably probable to tbe well-guarded and' dispassionate judgment of tbe judge or court that a jury in tbe proper enforcement of tbe law will inflict tbe death penalty, then tbe theory of tbe law is that life is so dear to tbe accused no amount of bail will secure his attendance at tbe trial, hence bail should be denied him. Tbe judicial history of our state and tbe long experience of the judges and courts demonstrate that in tbe trial of cases, where tbe death penalty can be inflicted, tbe juries do not, and probably should not, inflict tbe death penalty’in tbe great majority of such cases. Our statute (article 329, C. C. P. subds. 2, 3), in prescribing rules when bail is granted, is: “2. Tbe power to require bail is not to be used in such manner as to make it an instrument of oppression. 3. Tbe nature of tbe offense and tbe circumstances under which it was committed are to be considered.”

In addition to treason, our statutes authorize several offenses to be punished capitally, such as murder in tbe first degree heretofore, now in any case; murder in certain eases of arson, perjury when committed in a capital ease under certain circumstances, rape, and robbery with firearms. Tbe punishment for rape is death or confinement for life, or for any term of years not less than five. For robbery with firearms it is death or confinement in the penitentiary for any term not less than five years. It is unnecessary to state tbe penalties for tbe other capital offenses, as these are stated merely for illustration. It was never tbe policy of tbe law, nor tbe legislative intent, that bail should, as a 'matter of law, be denied in all eases for rape, or robbery with firearms, or any other of tbe capital offenses, simply because the death penalty was authorized to be inflicted. ' As stated by the statute above quoted, the nature of the offense and the circumstances under which it was committed are to be considered, and the power to require bail (or deny it) is not to be used in such manner as to make it an instrument of oppression. It is certainly true that there have been and will always be cases for any of the capital offenses, where, notwithstanding the jury is given the power to inflict the death penalty, they will not do so, and should not do so.

The question to be determined in this case is whether, under the nature of the offense charged, and the circumstances under which it was committed, upon a consideration of all the evidence, the court, in a well-guarded and dispassionate judgment, should reach the conclusion that the death penalty, if the law is properly enforced, will be imposed. If so, bail should be denied. If not, then bail should be granted. Of course, there must necessarily be lodged with the trial judge the exercise of a reasonable discretion, based on the character of judgment above designated, and upon appeal this court 'must, indulge the presumption that his judgment is correct.

In this case, after a thorough consideration' of the evidence, we have reached the conclusion that in all probability the jury will' not, and probably should not, inflict the death penalty, hence bail should have been granted. We do not mean to intimate that the discretion given to the jury to assess capital punishment should not be imposed in this case. That matter is left to them, guided properly by the trial judge, and properly guarded by him on a motion for new trial, if the death penalty should be imposed. For a further-discussion of this question see Ex parte Russell, from Harris county, this day decided,, and to be discussed in a supplemental opinion.

The judgment of the lower court in denying bail is therefore reversed, and the appellant is hereby granted bail in the sum of $5,000. Upon the execution of proper bond, in accordance with law, the sheriff, having him in custody, is directed to discharge him.


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    COBB v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Criminad Law (§ 1119) — Appeai^-Reversad.
    A conviction would not be reversed, because accused was unrepresented by counsel at the-trial, preventing him, as claimed, from fairly presenting his defense, where it did not appear' that he was prevented from securing counsel by the court or by outside influences, and the character of his defense was not shown by a statement of facts or otherwise.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dee. Dig. § 1119.]
    Appeal from Bowie County Court; Lee-Tidwell, Judge.
    B. J. Cobb was convicted of violating the pistol law and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State-.

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

   DAVIDSON, P. J.

Appellant was fined $100 for violation of the pistol law.

The record contains neither a statement of facts nor bills of exceptions. The only ground of the motion for new trial is the-allegation that appellant was unable to obtain counsel to represent him on the trial of his-case, and was tried without the benefit of counsel. He alleges he is not a lawyer, and was so embarrassed and excited in the trial of the cause that he was not able to have his defense fairly presented to the court; that this excitement was so great that while he was on the witness stand he was unable to relate the facts constituting his defense with that degree of clearness necessary to a proper understanding of same by the court; and that the judgment of the court is not supported by the law and evidence.

His defensive matter, whatever it may have been, is not in the record either by statement of facts or made to appear in any way with the motion for new trial, except the statement above made. Why he was not able to obtain counsel, he does not allege or undertake to show. There is nothing to show that he was prevented from obtaining counsel otherwise than by a failure on his part to do so. There is no allegation or charge that he was prevented from securing counsel by outside influences or by the court. What was his defense, or what was the evidence for the state, is not stated; therefore we are unable to intelligently review the question as presented.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    HARE v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Weapons (§ 11) — Carrying Weapons — “Place op Business.”
    A person employed by a company to cut timber could lawfully carry a pistol in going from his and his partner’s camp to the timber allotted to them for cutting, and from such allotment, when they finished cutting there, to another allotment; this being his "place of business” within the statute.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. §§ 10-14; Dec. Dig. § 11.]
    Appeal from Liberty County Court; I. B. Simmons, Judge.
    H. Hare was convicted of carrying a pistol in violation of law, and he appeals.
    Reversed and remanded.
    H. S. Lilley, of Dayton, for appellant. C. E. Lane, Asst Atty. Gen., for the State.

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

   DAVIDSON, J.

This conviction wag for carrying a pistol in violation of the law. The evidence shows substantially that appellant was working for a company, and employed to cut timber; that they had certain allotments of land definitely marked on which the different hands were to cut this timber, and the hands worked in pairs or partners. A certain amount of this timbered land was marked out and defined, and these partners cut the timber together, and no other hands were permitted to cut timber on that allotment. Appellant’s camp, or the camp of himself and partner, was something like two miles from where they were cutting timber. They had gone over to their place of work, and, as we gather from the record, appellant and his partner were going from one allotment of land, on which they had finished cutting timber, to another, which had been awarded them by the man in charge of the company’s work. While going down what they called the right of way in the direction of his new allotment of land, a witness in the case named Bass accosted appellant’s partner, who was with him, which resulted in a difficulty between Bass and appellant’s partner, a man named Renfro. Bass obtained an axe, and Renfro went to appellant and got a pistol from him, with which he fired several shots at Bass; one or more of them striking him.

The state’s contention is that, when the trouble came up between Bass and Renfro, Renfro got the pistol from appellant’s jumper, and used it. The defendant’s testimony on this particular phase of the case is that he did not have the pistol on his person, but that it was in a sack which he was carrying. He also testified that Renfro had carried this pistol in his, Renfro’s, sack from his tent, because he was afraid it would be stolen, as they had missed several things from their tent during their absence when at work; that, when moving from one allotment of land over to the other at Renfro’s request he carried this particular sack which contained the pistol, and Renfro carried one of his, appellant’s, sacks. This is a sufficient statement of the facts.

Appellant’s contention is that, as the cutting of timber on these particular allotments was his place of business, under any view of the law he had a right to have a pistol at his place of business, and, that, had he carried the pistol from his camp to the place where he was seen with it, it would not be a violation of the law. This is presented from the state’s viewpoint of the evidence. Appellant further contends he did not carry the pistol, and did not own the pistol, and that it was an accidental matter; that he had it in his possession by reason of the fact he was carrying Renfro’s sack. We are of opinion that under no view of this testimony ought appellant to have been convicted. If it was his pistol, and not Renfro’s, he had a right to carry it from his tent to the place he was at work, and he had a right to carry it from one allotment of land he had finished cutting timber on to another allotment, with other matters that he was carrying. There is no evidence that he ever carried a pistol before, and the evidence does not show that the pistol belonged to him, but that it belonged to Renfro. His testimony on this phase of the case seems not to have been controverted. The state relied upon the fact that, when the difficulty came up between Renfro and Bass, Renfro went to appellant, and got the pistol from him, and that this constituted appellant a violator of the law. As before stated, if appellant was going from one place of business to another to begin work at a new place of allotment, he had a right to carry the pistol to that place. That was his place of business, and he had a right to have the pistol on the land. Under any view of this case we do not believe the state has made out a case which entitles it to a verdict.

The judgment is reversed, and the cause is remanded.


author: PRENDERGAST, P. J.

text:
    EDWARDS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    Vagrancy (§ 2) — Sufficiency of Complaint.
    A complaint, charging in one count that on a certain day defendant was “a vagrant person in that on said date he was able to work and did not work, and has no property to support him,” in another count he “was then and there a vagrant in that he habitually loafs and loiters around the streets and alleys and frequents places of ill fame in the city,” and in another that he “was a vagrant person in that he is a professional thief and is engaged in unlawful pursuits,” held insufficient to charge vagrancy under any of the many definitions thereof given by Pen. Code 1911, art. 634.
    [Ed. Note. — For other cases, see Vagrancy, Cent. Dig; § 2; Dec. Dig. § 2.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Baxter Edwards was convicted, and appeals.
    Reversed, with instructions to dismiss.
    E. W. Neagle, of Sherman, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of vagrancy, and fined $200. This prosecution was begun by a complaint only before a justice °of the peace of Grayson county. The complaint was evidently drawn not by the county attorney or any one familiar with the sufficiency of a pleading charging this offense. After the formal part the complaint alleges that on February 10, 1913, appellant was “a vagrant person in that on said date he was able to work and did not work, and has no property to support him.” In another count, that on said date he “was then and there a vagrant in that he habitually loafs and loiters around the streets and alleys and frequents places of ill fame in the city of Denison, Tex.” Again, in another count, that he “was a vagrant person in that he is a professional thief, and is engaged in unlawful pursuits.” Then in another entirely separate paragraph “that he has no property to support him, and is able to work and does not work.” Appellant, by proper motions in arrest of judgment and for a new trial, attacked the sufficiency of each and all of these grounds of the complaint.

Our statute (P. C. art 634) defining vagrancy gives many definitions thereof. It is unnecessary for us to copy this statute, as it can readily be referred to and seen.

We have carefully examined this complaint, in connection with the statute, and in our opinion neither count thereof is sufficient under any or all of the definitions of our Code to charge an offense. The county court therefore erred in not sustaining said motions and holding said complaint insufficient.

The judgment will therefore he reversed, with instructions to the county court to quash the complaint and dismiss the cause.


author: HARPER, J.

text:
    COULTER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    On Motion for Rehearing, Oct. 29, 1913.)
    1. Cbiminal Law (§§ 1036, 1044, 1137*) — Appeal — Admission of Evidence — Objections in Lower Court — Testimony Elicited by Defendant.
    One convicted of a crime cannot complain of error in the admission of testimony, where there was no objection thereto and no motion to exclude it, or where the testimony was elicited by himself.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641, 2672, 2674, 2675, 3007-3010; Dec. Dig. §§ 1036, 1044, 1137.*]
    2. Homicide (§ 300*) — Instructions—Self-Defense.
    Where the evidence showed that the deceased and the father of the defendant had had a previous altercation on the day of homicide, and that on behalf of the defendant indicated that shortly thereafter, when the defendant and his father and brothers were crossing a lot, the deceased fired a shot which passed between the father and brother, an instruction that if the brother of the defendant fired at deceased before deceased fired at him, and the defendant was acting with his brother as principal, the defendant was guilty notwithstanding the fact that deceased was making effort to shoot the brother at the time the fatal shot was fired was erroneous, since the jury might believe that the first shot fired by the deceased was fired at the father and not at the brother, and the brother would have been justified in shooting in defense of his father.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.*]
    On Motion for Rehearing.
    3. Homicide (§ 300*) — Instructions—Self-Defense.
    Where the theory of the prosecution was that the defendant acted as principal with his brother when the latter killed the deceased, an instruction on the law of self-defense predicating an acquittal upon the fact that, at the time the fatal shot was fired, the brother reasonably believed that the deceased was making an attack upon him was erroneous, since the test was as to the defendant’s belief and not that of his brother, where there was a conflict of the evidence as to the existence of a controversy.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. § 300.*]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Henry 'Coulter was convicted of manslaughter, and he appeals.
    Reversed and remanded, and motion for rehearing overruled.
    Win. McDonald, of San Augustine, King & King, of Nacogdoches, and D. M. Short & Sons, of Center, for appellant C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted, charged with murder, and when tried convicted of manslaughter, and his punishment assessed at two years’ confinement in the penitentiary.

The evidence in this case would show that deceased, A. C. Lynch, and Hinson Coulter were brothers-in-law. That deceased rented four or five acres of land from Hinson Coulter and erected a mill thereon. The pond, from which the water for the mill was secured, was inside of Hinson Coulter’s pasture; an underground pipe making the connection. It appears that deceased cut a gate in the fence of Hinson Coulter’s pasture, and when Coulter learned of it he nailed it up and then went to the mill and so informed deceased. Words ensued; the exact language used being conflicting. Anyway Coulter went to his home some 400 yards distant. It appears after he left deceased fired his pistol three times but not at any person. Deceased and one of his employes, McBride, went near the house of Coulter after an oil pump, and while they were there a pistol was fired twice in the lot of Mr. Coulter. The testimony of the state would then show a third shot was fired from the inside of the lot, knocking up the dirt near the feet of deceased; that he then cursed those in the lot for G-d d-n sons of b-s and dared them to come out and fight it out, at this time drawing his pistol, when the state’s witnesses say two more shots were fired from the lot and deceased fell with a bullet in his brain. The state’s witnesses testify positively that deceased fired no shot and did not draw any weapon until after the third shot was fired. After the shooting was over a pistol was taken from Raymond Coulter, with only one empty shell, showing it to have been fired once, and all the witnesses testify that he fired at least once, and the defendant’s witnesses would have that one inflicting the fatal wound. Two of the state’s witnesses, Judge Green and John White, state that after the shooting appellant, Henry Coulter, came up to the fence with a pistol in his hand and made a remark to deceased’s son, Robert.

The defendant’s witnesses would show that, after the difficulty at the gin, Hinson Coulter came to the house, and then he, his three sons, Henry, Raymond, and Amos, and Elisha War started to the field to work. They say only one of them had a pistol; Raymond Coulter had a pistol; that when he got in the lot he fired twice at some guineas; that he then reloaded his pistol. There is no contention that those two shots were fired at deceased. The defendant’s witnesses say that, when the two shots were fired in the lot, deceased began to curse, drew his pistol, and fired, shooting between Hinson Coulter and his son Raymond; that Hinson Coulter jumped behind the barn, and Raymond Coulter behind a tree; that Raymond Coulter and deceased both fired then about the same time and deceased fell. When deceased’s pistol was secured, it would indicate two shots had been fired out.

This shows the contention of the parties, the state’s being that after the trouble at the gin Hinson Coulter had said he would return ; that he and all his boys did go towards the gin; and that deceased fired no shot but that all five of the shots then fired were fired by those inside the lot — the Coul-ters. The appellant’s contention is that they had no thought of going towards deceased but were going to the field to work; that Raymond fired two shots at the fowls, when deceased began to curse, drew a gun, and fired at Hinson Coulter and his son Raymond. Further contending that appellant had no pistol, did not shoot, and was in a position where he could not see the difficulty.

There are threé bills of exception in the record to the introduction of certain testimony. As to the first two, the court states, in approving them, that no objection was made to the testimony when elicited and no motion made to exclude it. As to the third, the court states the testimony was elicited by defendant. Under such circumstances, of course, these bills present no error.

As appellant was found guilty of only manslaughter, it is only necessary to discuss the question: Did the court properly present that issue and the issue of self-defense? We think the court correctly applied the law of principals to the case, and the criticisms of that portion of the charge are without merit. However, the court instructed- the jury: “If from the evidence you believe beyond a reasonable doubt that Raymond Coulter killed A. 0. Lynch, but you further believe, or if you have a reasonable doubt as to whether or not such is a fact, that at the time of so doing, and before Raymond Coulter made any effort to shoot A. 0. Lynch, if he did so make any effort, A. O. Lynch had made, or was about to make, an attack on Raymond Coulter as viewed from his standpoint, which from the manner and character of it caused Raymond Coulter to have a reasonable expectation or fear of death or bodily injury, and that, acting under such reasonable expectation or fear of death or bodily injury, Raymond Coulter killed A. C. Lynch, then you will acquit the defendant, Henry Coulter; and if A. C. Lynch was armed and was making, or was about to make, an attack on Raymond Coulter, and Raymond Coulter believed at the time he shot (if he did shoot) that A. C. Lynch was about to attack him, and if the weapon used by Lynch, and the manner of its use, was such as was reasonably calculated to produce death or serious bodily harm, then the law presumes he intended to murder or inflict bodily injury upon Raymond Coulter.”

Thus it is seen the court instructed the 'jury and applied the law solely as to what they thought Raymond Coulter believed and how it appeared to him. Appellant’s acts and conduct could not and should not be judged by the belief of and appearances to Raymond Coulter; but if it reasonably appeared to him (appellant) that deceased was about to kill Raymond Coulter, or his father, Hinson Coulter, and under such circumstances lie acted, he would be entitled to an acquittal irrespective of what Raymond Coulter may have thought about the matter. While it is true, if Raymond Coulter was justified in his acts, appellant would be entitled to an acquittal, yet even though Raymond Coulter should be held to be not justifiable, yet ifit reasonably appeared to appellant that his brother or father was in danger of death or serious bodily injury, and acting under such belief he so conducted himself as to make himself a principal in. the transaction, yet he would be entitled to have the jury pass on the question as to whether under the facts and circumstances it so reasonably appeared to him, and he should not be held bound by how the jury might conclude it reasonably appeared to his brother Raymond. We and each of us are liable only for our own acts; and, in a case where self-defense is an issue, the jury should always be instructed as to his rights, viewing the matter from his standpoint and not the standpoint of another. The evidence is sharply conflicting as to who fired the first shot at the lot; and if the jury should believe that Raymond did fire the first shot, but appellant did not see him do so and did not know that fact as he testifies, if he then saw deceased with a gun in his hands, which all the witnesses say he then had, and he under such circumstances did in fact draw a pistol and shoot, as is contended by the state, he would be entitled to a charge on that theory of the case, if Henry Coulter took any part in the shooting or difficulty, it is shown by circumstantial evidence, and under such circumstances the jury should have been told in addition to the above charge that if he did participate in the difficulty, that at the time he did so it reasonably appeared to him that his brother or father .was in danger, and acting under such belief he acted in such a manner as to become a principal in the transaction, he would not be guilty.

Again the court instructed the jury: “If you believe beyond a reasonable doubt that Raymond Coulter, with intent to kill A. C. Lynch, or Henry Coulter acting as principal, drew his pistol and attempted to shoot A. C. Lynch, or did shoot at A. • C. Lynch before said Lynch made any effort to shoot the said Raymond Coulter, as viewed from his standpoint, and you further believe beyond a reasonable doubt in said altercation Raymond Coulter shot and killed A. C. Lynch, and you further believe beyond a reasonable doubt that the defendant, Henry Coulter, knowing these facts, acted with Raymond Coulter in such killing as a principal, as that term has heretofore been defined to you, then you will find the defendant, Henry Coulter, guilty of some grade of homicide as you may determine from the charge hereinbefore given, notwithstanding that you may believe from the evidence that, at the time Raymond Coulter fired the shot that killed A. C. Lynch, Lynch was making an effort to shoot said Raymond Coulter.”

The evidence in this case would show that the fight was between deceased and Hinson Coulter, the father of the two boys. Raymond Coulter was not present and did not participate therein. The evidence offered in behalf of appellant would show that, when the two shots were fired at the guineas, deceased drew a pistol, cursed and fired the ball passing between Raymond Coulter and his father, Hinson Coulter. If Raymond Coulter knew of the difficulty between his father and deceased, and deceased fired the shot as testified to by them, the most natural inference-would have been that deceased was shooting at his father and not him. Raymond Coulter had had no difficulty with deceased, while his father had just had an altercation with deceased, and yet this charge requires the jury to find, before appellant would be entitled to an acquittal, that deceased shot at Raymond Coulter before Raymond Coulter acted. The jury could not, under the evidence in this case see why deceased would desire to shoot at or kill Raymond Coulter, and yet, under the evidence, hearing the two shots, they .might have arrived at the conclusion that deceased' shot at Hinson Coulter, with whom he had just had a serious difficulty. These charges as given do not present the issues made by the testimony in this ease; and, because the charge does not fairly and succinctly present that issue, this cause should be reversed and remanded, and we have indicated sufficiently our view of the law of this case in commenting on those two charges, and it will not be necessary to discuss the other grounds in the motion.

The judgment is reversed, and the cause is remanded.

On Motion for Rehearing.

At the last term of this court this cause was reversed and remanded, and the state has filed a motion for rehearing, contending that we were in error in the following particulars: First, he says there is no testimony that Lynch, if he shot, shot at any person except Raymond Coulter. This record does not disclose that Raymond Coulter had had any trouble prior to that date, but it does disclose that on that day appellant’s father, also the father of Raymond Coulter, had had a difficulty with Mr. Lynch, and it was the state’s contention I-Iinson Coulter-with his boys were on the way to the mill to renew the difficulty. According to the testimony offered in behalf of the defendant, Raymond Coulter had fired twice at some-guineas, when deceased Lynch began to curse and shot in the lot where Raymond Coulter, appellant, and his father were all situate. Hinson Coulter, the father, testified: “Henry and Raymond and Amos and Elisha War all went into the lot together. I heard Raymond shoot at some guineas-there two or three times in his ma’s garden. The lot, fence and the garden fence was all one string. It joins and one string makes both strings of the lot and the garden. I don’t know whether it was before Raymond —at must have been just as he shot the last time — I heard somebody cursing in front of the lot towards the big road. I turned right around and stepped to the wagon tongue, and Raymond was coming up there, and we were nearly side by side, and I saw Arch, and just as we got in full view of him he shot, and it knocked up the dust between ipine and Raymond’s feet, and I just ducked back.”

Henry Coulter, appellant, testified, he had no pistol and did not shoot He 'testified about Raymond shooting at the guineas; he then heard Mr. Lynch cursing and Raymond went in that direction; that Pa (Hinson Coulter) went up to the wagon with Raymond, and his father ducked when Lynch shot in the lot the first shot.

Mrs. Evy War testified about hearing the shots in the back of the lot and deceased, her uncle Arch, then began cursing, saying: “He just grabbed his hat and popped it against his leg and said, ‘Come on out here, you G-d d-n cowardly sons of b-s. I am out here waiting for you. I am going to kill the last G-d d-n one of you.’ He just kept swearing and cursing, and I said to Mama I would make him go on to the mill and behave himself, and I holloed and told Uncle Arch to go on back to the mill and behave himself, and he said, ‘You needn’t say a G-d d-n word;’ and about that time he pulled his pistol and shot. He shot right straight in the lot, looked to me like, under the shed.”

Mrs. Coulter testified to her husband and the others being in the lot, and that Raymond fired at the guineas, when Mr. Lynch commenced cursing and went that way. “He just reached up and grabbed ahold of his hat and slapped it against his hip that way (indicating) and holloed and told them they needn’t be throwing their dares, the ‘G-d d-n cowardly sons of b-s; come out there; he was out there ready for them and waiting for them.’ And I ran out to the gate and holloed and said, ‘Arch, my folks ain’t bothering you; they are going to the field to work; you go on back to the mill.’ And he said that I needn’t say a word to him, he aimed to kill every G-d d-n one of them when they come on through that lot. He (Lynch) shot right towards the lot.”

Now if, as the state contends, appellant knew of the difficulty between deceased and his father and did not know of any trouble between Raymond and deceased when this shot was fired, would not the natural and only inference he could draw be that deceased was shooting at his father, the person with whom he had the difficulty? Would it not so appear to him? The state’s able counsel are mistaken in asserting that the evidence, and all the evidence, shows that deceased fired the first shot (if he shot) at Raymond Coulter and no other person.

Again counsel for the state insist we erred in holding that the charge on self-defense was erroneous in limiting appellant’s right to act, if it reasonably appeared to Raymond Coulter that deceased was about to shoot him (Raymond Coulter), etc. Appellant cannot be bound by the way the matter appeared to Raymond Coulter. The charge should have instructed the jury that, if it reasonably appeared to him (Henry Coulter) that deceased was about to or had made an attack on Raymond Coulter, his father, etc., he would have the right. Every person is to be judged as it may appear to him and not as it may‘appear to some other person. If he acted with Raymond Coulter in the commission of an offense, of course he would be bound by the act of Raymond Coulter, . but in this case it was an issue as to whether he did anything; but if he did shoot, but at the time reasonably appeared to him that deceased was about to slay his father or brother, he would be guilty of no offense, although his brother might not have so viewed the matter. If a conspiracy was shown beyond doubt, the rule might be different, but in this case appellant earnestly insists he was not acting with Raymond Coulter, and there is testimony supporting him, making that an issue in the case.

The motion for rehearing is overruled.


text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    1. Homicide (§ 43) — Manslaughter—Elements.
    Under the direct provision of the statute, as well as in the absence of statute, to reduce voluntary homicide to manslaughter there must exist “sudden passion” in accused, which must have arisen from an “adequate cause.”
    TEd. Note. — For other cases, see Homicide, Cent. Dig-. § 67; Dee. Dig. § 43.]
    2. Homicide (§ 340) — Appeal — Haemless Error — Instructions.
    The submission of manslaughter, when that was not in the case, was favorable to the accused, so that he cannot complain thereof on appeal.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §⅜ 715-717, 720; Dec. Dig. § 340.]
    3. Homicide (⅜ 45) — Manslaughter—Adequate Cause.
    Under Pen. Code 1911, art. 1131, providing that insulting words or gestures, or an assault and battery so slight as to show no intention to inflict injury, unaccompanied by violence, are not adequate cause to reduce homicide to manslaughter, the fact that decedent called accused a son of a bitch and struck at him with his open hand, without hitting him, was not adequate cause.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 69; Dec. Dig. § 45.]

      4. Homicide (§ 40) — Issues—Cooling Time.
    Where there was but one difficulty, which was immediately and continuously prosecuted until the killing, within a very short time after the difficulty had begun, the question of cooling time was not in the ease.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 62-64; Dec. Dig. § 40.]
    5. Criminal Law (§ 805) — Instructions.
    A contention, that an instruction that, under the hypothesized facts, the jury “may” find accused guilty of manslaughter, was erroneous for using the quoted word instead of “must,” was hypercritical.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 1958, 1989; Dec. Dig. § 805.]
    6. Homicide (§ 800) — Instructions — Threats.
    Where the only threats made, if any, were made during the progress of the difficulty and in accused’s presence and directly to him, it was not necessary to charge on the law of threats.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    7. Homicide (§ 254) — Sufficiency of Evidence.
    Evidence held to sustain a conviction for second degree murder.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 533-538; Dec. Dig. § 254.]
    Appeal from District Court, Concho County; Jno. W. Goodwin, Judge.
    Roy Wilson was convicted of second degree murder, and appeals.
    Affirmed.
    Stone & Wade, of Ballinger, for appellant. W. U. Early, of Brownwood, Woodward & Baker, of Coleman, and C. E. Lane, Asst. Atty. Gen., for the State.

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

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep'r indexes

   PRENDERGAST, P. J.

Appellant was convicted of murder in the second degree and his punishment fixed at 49 years in the penitentiary.

Por some time prior to July 20, 1912, appellant, a young man then 23 years old, and the deceased, Roy Stuart, a boy or young man, then 20 years old, lived in the same community and had been friends. The deceased was entirely blind in his right eye, and appellant knew this. On July 20, 1912, they both went to the toVn of Paint Rock, in Concho county. The deceased, while there, went into a store and made some purchases. Appellant later came in the same store and met him, when they spoke and had some incidental conversation. They at once separated. Appellant and his brother Harvey and a third party, shortly afterwards, were sitting on a bench on the outer edge of the sidewalk in front of the market. The deceased, from the north, came driving down the street of said' town, going south, this street running north and south, and, when he got opposite appellant some 15 or 20 feet from him, stopped his buggy and asked appellant to come out, he wanted to see him. Appellant went to the buggy, where they had some conversation and altercation. The substance and effect of this was, as stated by appellant alone, that deceased asked appellant if he had called him a son of a bitch. Appellant denied he had and asked him who told him. Deceased said Lexie Ditto told him. Whereupon appellant said Ditto lied, or was a damn liar; that then deceased said to him, “You are a damn lying son of a bitch,” and deceased then slapped his left hand on his pocket and struck at appellant with his right. Appellant jumped back and caught at deceased’s arm or shoulder. Neither struck the other; that thereupon deceased slapped his horse with his lines and started off in a rapid trot. Appellant took after deceased and ran down the street behind deceased’s buggy for some distance. The deceased drove rapidly some 75 yards from where the altercation had first occurred, stopping in front of Barbee’s store. He immediately got out of his buggy and walked briskly into Barbee’s store, which is about 90 feet long, to about the middle of the store, looking for something. One of the clerks asked him what he wanted, and he said an ax handle. The clerk indicated to him where the ax handles were, and he thereupon at once took one and walked back out of the front of Barbee’s store onto the sidewalk with it. When appellant saw he could not overtake deceased when goilng away from him in his buggy, he ran onto the sidewalk on which the stores fronted and continued down it until he got in front of Ratchford’s store next to Barbee’s, where he met his father. His brother Harvey, who was sitting with him when deceased first called him out to his buggy when the altercation occurred, immediately, in a hurry, followed his brother, appellant. Appellant saw deceased go into Barbee’s store and testified that he saw him coming out of that store with the ax handle, when appellant, his father, and brother immediately went into Ratchford’s store, passed through it into the rear — it was also 90 feet long — without stopping until they got back of the stores, when as one witness testified, in substance, the three halted and huddled together for a moment, when the father passed something to appellant. The three then immediately continued, went into the back of Barbee’s store, walked from the back to the front, the three abreast, the father in the center, appellant to his right, and the brother to his left. Another witness testified that when they reached the front door of Barbee’s store he was standing in it to one side, and that appellant’s father told him to look out, or get out of the way, and that he immediately did so. When they got to the door, without stopping, appellant walked out some 8 or 10 feet on the sidewalk in front of the door, the father and brother halting back nearer to the door, when appellant, facing north, made one or two steps and proceeded immediately to begin firing his six-shooter at the deceased. One of the witnesses testified that when appellant came out o£ Barbee’s store he had a pistol in his hand. Another that he tiptoed out to where he did the shooting.

A large number of witnesses, who were wholly disinterested, and not related to either party, were present on the sidewalk where the shooting occurred and saw it all. The effect of their testimony is that, when deceased emerged from Barbee’s store with the ax handle, he had it down at his side like a walking cane and had some conversation with parties at the time about the rain the day before. Then walked up from in front of Barbee’s to the front of Batehford’s store as if looking for some one; that he then turned and came back to a point in front of. Ratchford’s store, stopped, .facing about east, and looked at a party crossing the street; that he made no demonstration with the ax handle and said nothing and did not attempt to raise the ax handle and strike at the appellant, or any one else; and that while thus standing the appellant deliberately and rapidly fired his six-shooter at him three times in rapid succession, each shot of the three striking him in his right side, one just above, the other just below, and the other back of, the' right nipple, all three balls ranging directly from his right to his left side; that with the first shots deceased drew himself up and placed his right arm across his breast, his hand about on his left shoulder, and with the first two shots began to fall, and did fall prostrate on the sidewalk with his head close to the outer edge thereof and his feet back towards Ratehford’s store, where he was standing when first shot; that after he was down, either of the three wounds being necessarily fatal, as the doctors testified and the facts proved, the appellant deliberately took aim and shot him twice again; that when he fell he turned around with his face up and his left side then toward appellant; that one of the balls, evidently the last fired, was then fired through his left arm into his left side while he was lying prostrate on the sidewalk in the last throes of death. To take the whole testimony of the many eyewitnesses, who were all disinterested, it is certain that deceased did not see appellant when he came out of Barbee’s store and was not aware of his presence until he was ruthlessly and without the slightest provocation shot down by appellant. While appellant and his father and brother testified that deceased drew back the ax handle in a striking position towards appellant immediately before the shooting, every other eyewitness — and there were many of them — testified to the reverse. The distance from appellant to deceased when the-shooting occurred was shown to be not less man 15 feet by actual measurement Some of the witnesses, by actual measurement, make it not less than from 15 to 18 feet. Appellant himself, on cross-examination, said: “It looked to me like his face was turned directly towards me; that was the way it looked to me; but he might not have seen me. I had known Roy Stuart since about January, 1905. He was blind in his right eye, and I knew that at that time. He was standing mighty near straight facing me when that shooting began. He might have been leaning a little bit with his right side more towards me.” Nearly every disinterested witness said deceased- at no time had his face towards appellant but was facing, looking east, with his right side — his blind side— towards appellant.

The testimony, as a whole, without contradiction, establishes that the appellant was cool, collected, and deliberate all the way through from the time the difficulty first arose in the buggy until after he had slain the deceased. In his own testimony he did not testify that he had any sudden or other passion whatever, nor did he testify that he had any anger, rage, sudden resentment, terror, or other passion rendering him incapable of cool reflection. To take his whole testimony, without reciting it, it shows that he was not thus aroused, nor did he claim to be.

The court submitted manslaughter to the jury. The state contends manslaughter was not raised. In our opinion, after a most thorough and full consideration of the evidence, we are of the opinion that manslaughter was not in the case and should not have been submitted to the jury.

In McKinney v. State, 8 Tex. App. 645, this court, through Presiding Judge White, said: “A killing upon such sudden passion as is mentioned may be murder in the second degree, even though the passion was anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection. To make such killing manslaughter, there must actually have existed not only such state or emotion of the mind, but the adequate cause which produced them must also exist. Penal Code 1879, art. 602 (1137). Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, may be sufficient to cause the emotions of the mind known as anger, rage, sudden resentment, or terror, to the extent even of rendering it incapable of cool reflection, and yet a killing under such circumstances would not be manslaughter. Why? Because such insulting words or gestures, or such assault and battery, are not adequate causes (Penal Code, art. 596 [1131]), and manslaughter cannot be predicated upon any voluntary homicide upon sudden passion not arising from an adequate cause (Penal Code, art. 593 [1128]).”

In the recent case of Davis v. State, 155 S. W. 548, this court said: “It may be laid down as an uncontroverted proposition that two things are requisite to constitute manslaughter: First, adequate cause; second, existing passion. If these coexist, the homicide is manslaughter. If they do not combine or coexist, it may be murder in one of the degrees.” Likewise, in Redman v. State, 149 S. W. 677, this court said: “The statute itself defining manslaughter requires two requisites to reduce voluntary homicide to manslaughter, to wit, ‘sudden passion,’ and that that ‘passion must arise from an adequate cause.’ If either of these requisites are lacking, the offense cannot be manslaughter, but must be murder in one or the other degrees.”

The law is not only thus settled by the decisions of this court, but is unquestionably so settled by our manslaughter statute. Kelly v. State, 151 S. W. 309; Clore v. State, 26 Tex. App. 624, 10 S. W. 242; Hill v. State, 11 Tex. App. 456; Neyland v. State, 13 Tex. App. 536; Blackwell v. State, 29 Tex. App. 194, 15 S. W. 597; Miller v. State, 31 Tex. Cr. R. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Ex parte Jones, 31 Tex. Cr. R. 422, 20 S. W. 983.

While the court should not have submitted manslaughter, his having done so was favorable to appellant, and he has no ground of complaint therefor. Eggleston v. State, 59 Tex. Cr. R. 542, 128 S. W. 1105; Alexander v. State, 63 Tex. Cr. R. 112, 138 S. W. 721.

This court has repeatedly and expressly held that to call a person a son of a bitch is not adequate cause. Simmons v. State, 23 Tex. App. 653, 5 S. W. 208; Levy v. State, 28 Tex. App. 203, 12 S. W. 596, 19 Am. St. Rep. 826; Barbee v. State, 34 Tex. Cr. R. 129, 29 S. W. 776; Timon v. State, 34 Tex. Cr. R. 363, 30 S. W. 808. The statute itself states (P. C. art. 1131) what are not adequate causes: “Insulting words or gestures, or an assault and battery, so slight as to show no intention to inflict pain or injury, * * * unaccompanied by violence, are not adequate causeg.” At most, all that deceased said or did towards appellant was, as testified to by appellant, he called him a son of a bitch, or. damned son of a bitch, and struck at him with his hand. He committed no battery upon him whatever, and when he did this he immediately departed from appellant. So that there was neither adequate cause, nor was there any sudden passion. In no- contingency was appellant, under the law, guilty of manslaughter.

Even if manslaughter had been in the case, none of appellant’s objections to the court’s charge on that subject present any error. While the court correctly told the jury, in accordance with the manslaughter statute, that the provocation must arise at the time of the commission of the offense and that the passion is not the result of a former provocation, yet he fully and completely, as was proper, when a question of that kind arises, told the jury that, in passing upon the sufficiency of the provocation and the effects of the passion on appellant’s mind, the past conduct of the deceased towards the defendant, his threats and bearing, in fact all the facts and circumstances in the case, should be considered by the jury. By no proper construction of the charge was the jury restricted in any way to the consideration of what occurred at the immediate killing and not when the difficulty first began.

The whole evidence in this case demonstrates that there was but one difficulty between these parties, not two; that it began at the buggy of the deceased and was immediately and continuously followed up by both parties until, within a space of a very short period of time, the killing occurred. So that the question of cooling time was not in the ease, even if the evidence, which it did not, had shown appellant’s passions had been unduly aroused.

Appellant’s criticism of the court’s charge that in submitting manslaughter to them, after giving the necessary facts that must be found by the jury from the evidence beyond a reasonable doubt, “then you may find him guilty of manslaughter,” is hypercritical. The word “may” is sometimes used interchangeably with “should” or “must” and vice versa. In no event could the use of this word “may” have been any injury to appellant.

There was no reversible error, under the facts of this case, in the court’s charge on self-defense as claimed by appellant on the question of threats claimed to have been made by deceased towards appellant. As stated above, there was but one difficulty between these parties, all occurring continuously and without any break, or cessation from the time it began until the killing occurred. The court was not called upon to charge on that subject at all, even if what appellant testified deceased said to him, when they separated and he was following him up in his buggy, could be considered a threat. In Hancock v. State, 47 Tex. Cr. R. 9, 83 S. W. 699, this court said: “The charge is further criticised because of this omission to submit the law in regard to threats. The only threats, if any, were made at the time and during the progress of the difficulty, and were made in' the presence of appellant and directly to him. It was not necessary to charge on the law of threats under this state of case. It was a part and parcel of the transaction itself; one of the remarks made while the first difficulty was in progress, made to appellant himself. It is only necessary to charge the law o'f threats when those threats have been made prior to the difficulty and. communicated. Whenever the threat is made by the assaulted party to the party making the assault during the progress of the difficulty, it is not necessary to charge these separately. It will be noted there was no attempt to prove any previous trouble between them. The only trouble that had occurred at all began in the saloon, at which place this threat should have been made if made at all. There was no threat made after leaving the saloon; nor was deceased making any attempt to execute any threat. So there was no error in this omission.” Armstrong v. State, 50 Tex. Cr. R. 27, 96 S. W. 15; Dobbs v. State, 54 Tex. Cr. R. 552, 113 S. W. 923; Davis v. State, 52 Tex. Cr. R. 149, 106 S. W. 144.

The court did not err in refusing appellant’s fourth special charge. The facts of this case did not call for it and it is not the law.

Appellant’s only other complaint is that the evidence is insufficient to sustain the verdict. The evidence is not only amply sufficient to sustain the verdict, but the verdict finding him guilty of murder in the second degree is a just and righteous one.

The judgment is affirmed.


text:
    STUBBS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.)
    1. Criminal Law (§§ 1092, 1099) — Statements 03? Fact — Time of Filins.
    Where the term of the county court at which accused was convicted adjourned May 3d, a statement of facts and bills of exception, not approved and filed until July 2d, cannot be considered, coming more than 20 days after adjournment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 829) — Triai^-Instruc-TIONS.
    The refusal of a special request, covered by the charges given, is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ⅞ 2011; Dec. Dig. § 829.]
    3. Criminal Law (§ 1088) — Bill of Exceptions — Motion for New Trial.
    That the bill of exceptions embraces the motion for new trial does not add anything to the motion, or give accused any additional grounds for review.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2676, 2746-2751, 2757, 2766, 2782-2802, 2899; Dec. Dig. § 1088.]
    4. Criminal Law (§ 1159) — Appeal—Verdict — Evidence—Sufjmciency.
    A verdict by the jury on conflicting evidence will not be disturbed on appeal.
    [Ed. Note. — For other ■ eases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    5. Criminal Law (§ 824) — 'Trial—Instructions.
    In a prosecution for misdemeanor, special charges must be requested, if any special issue is desired to be presented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.]
    6. Larceny (§ 78) — Trial—Instructions— Applicability to Evidence.
    In a prosecution for misdemeanor theft, no charge on the voluntary return of stolen property is necessary, where the evidence showed that the property was not returned until after prosecution was begun.
    [Ed. Note. — For other eases, see Larceny, Cent. Dig. § 182; Dec. Dig. § 78.]
    Appeal from Limestone County Court; A. M. Blackmon, Judge.
    Bill Stubbs was convicted of theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of misdemeanor theft, and his punishment assessed at one hour in jail and a fine of $5.

The term of court at which appellant was tried adjourned on May 3, 1913. The statement of facts and bills of exception were not approved and filed until June 2, 1913, more than 20 days subsequent to the adjournment of court for the term; consequently, the motion to strike them from the record must be sustained. But, were we to consider them, they would not avail appellant. One of the bills is to the refusal of the court to give a special charge requested. This charge was fully covered by the court’s main charge. The other bill only embraces the motion for a new trial. This adds no strength to the motion for a new trial.

The first two grounds of the motion complain of the insufficiency of the testimony. The testimony is amply sufficient to support the verdict. It is true the testimony of the defendant would show that the buggy robe was taken by a mistake; but this issue was fully presented to the jury, and they found adversely to that contention.

There was no special charge requested in regard to a voluntary return of - the stolen property, and in a misdemeanor case a charge must be requested, if it is desired that any special issue be presented. However, if a charge had been presented, the evidence does not raise that issue, as the prosecution had been begun before any steps had been taken looking to the return of the property.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    PINKERTON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 27, 1913.
    Rehearing Denied Oct. 22, 1913.)
    1.Burglary (§ 41) — Sufficiency of Evidence.
    Evidence held to sustain a conviction for burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103,109; Dec. Dig. § 41.]
    2.Criminal Law (§ 511) — Evidence—Corroboration of Accomplice — Sufficiency.
    Evidence, in a prosecution for burglary held to sufficiently corroborate the testimony of an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. § 511.]
    3.Criminal Law (§ 508) — Evidence—Testimony of Accomplice.
    A witness who had testified in a prosecution for burglarizing a store that he and accused hid knives taken therefrom at a certain place the day after the burglary was properly allowed to testify that just after he was before the grand jury he went to such place, and that the knives were gone.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. § 508⅜
    4. Burglary (§ 35) — Admission or Evidence —Tracks.
    In a prosecution for burglarizing a store in the night, evidence that witness found the tracks of a buggy, horse, and men at the store and traced the tracks to a lot at the place in which accused lived, was admissible where such tracks were identified as being made by accused and those with him.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 83; Dec. Dig. § 35.]
    5. Criminal Law (§ 1091) — Appeal—Bill or Exceptions.
    A bill of exceptions to the admission of evidence will not be considered if some of the evidence is admissible and the objectionable part is not expressly pointed out.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    6. Burglary (§ 34) — Admission or Evidence. ■
    In a prosecution for burglary of a store, evidence by the owner that he thereafter received a box of knives of the same brand that he handled was admissible, where accused’s accomplice had testified that the knives which accused stole and he and accused buried the day after the burglary were afterward removed by some one, and another witness testified that the knives returned to the owner were found under a schoolhouse near the burglarized store.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 85; Dec. Dig. § 34.]
    7. Criminal Law (§ 1186) — Appeal—Harmless Error.
    In a prosecution for burglarizing a store, the court instructed that if accused, either alone, or acting with another so as to constitute him a principal, unlawfully burglarized the store with intent to steal, the jury should find him guilty. Held, that the instruction was not prejudicial, even if erroneous, merely because there was no evidence that accused kept watch at the store, the evidence being that his accomplice did so, and because there was no evidence that accused burglarized the store al'one; Code Cr. Proc. 1911, art. 743, forbidding reversals because of defects, if it was not calculated to injure accused’s rights.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.]
    8. Criminal Law (§ 770) — Issues—Evi-dencie.
    The fact that one who with two others, slept in a schoolhouse near the burglarized store on the night of the burglary had since moved to Oklahoma, and the sheriff could not find him in the county, and that knives from the burglarized store were found under the schoolhouse, did not authorize the submission of the issue that such person committed the burglary, where the persons sleeping at the schoolhouse with him testified that he was in the schoolhouse all night.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    Appeal from District Court, Erath County; W. J. Oxford, Judge.
    Ed. Pinkerton was convicted of burglary, and appeals.
    Affirmed.
    Chandler & Pannill, of Stephenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the ¡State.

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

   PRENDERGAST, J.

From a conviction for burglary with the lowest penalty prescribed by law fixed, appellant prosecutes this appeal.

Mr. A. A. Kerr was a merchant in the small country town of Ex Ray in said county, and handled general merchandise, including most everything used in a country store. It included a stock of poeketknives and canned oysters and salmon. On Saturday night April 27, 1912, his store was burglarized, and two boxes of poeketknives — one full, the other not full — and some salmon or oysters, or both, were stolen therefrom. On that Saturday night there was a dance some few miles north from Ex Ray, and, among others who attended it, were five young men — appellant, Ed. Glasgow, Dick Gordon, Sid Davidson, and John Secreast. The dance ended some time between 12 o’clock midnight and 2 o’clock a. m. Said Gordon, Davidson, and Secreast left the dance, going to their homes, traveling in a single horse top buggy. Glasgow and appellant left the dance riding one horse, one behind the other, following said buggy; the horse they were riding belonged to appellant’s father. When they got in about a mile from Kerr’s store a rain came up. The parties in the buggy had the top up, the side curtains on, and the storm apron in front up so as to protect them from the rain. There was considerable wind with the rain. When the rain began they had to turn the buggy around from the way they were going so as to prevent the wind from blowing the rain on them. Appellant and Glasgow reached them just at this time, got off the horse, and got in the buggy with the other three to keep out of the rain; they remained in the buggy some 20 or 30 minutes until the heavy part of the rain was over. They then got out of the buggy, mounted the horse, as before, and started on home. The homes of all these parties were beyond Ex Ray, and they had to pass by Kerr’s store in order to reach their respective homes. The place where the dance was, was oft' of the main road, and all these parties reached the main road, running about north and south, about one mile from Ex Ray.

Ed. Glasgow testified: That directly after he and appellant started from the dance home, appellant said to him they would not lose anything by riding in the rain. BTe asked him “Why?” Appellant replied, “We will rob them damn stores at Ex Ray.” He told appellant he thought it best not to do so. They said nothing to the parties in the buggy about this. That shortly before he and appellant reached said store appellant asked him if “we were going to break into the store,” and he again replied he thought it best not to do so. They then rode on up in front of tbe store and stopped; tbe store fronted east; it bad a gallery clear across tbe front. In tbe center of tbe store in front was tbe door, and a window on either- side. That when they stopped tbe borse in front of tbe store appellant got down, stepped np on tbe gallery, and be got down, got up on tbe gallery, and beld tbe borse at tbe south end of tbe gallery. That appellant told him to bold tbe borse and watch, and said he was going in tbe store. Appellant then went to tbe north window, and went to work at it to get in tbe store. That be removed one of tbe panes of glass from tbe window, reached in at that, and removed tbe stick from over tbe window which prevented tbe window from being raised. Appellant then went- in tbe store and remained some little time, Glasgow remaining out, bolding tbe borse and watching. That just before appellant went in tbe store tbe other three parties passed, going south in tbe road in tbe buggy, and did not stop. Neither of them got out of tbe buggy. This road was a public road in about tbe center of about a 75 or 80 foot street in front of said store, and tbe buggy passed no nearer tbe store than tbe road. That just after these parties passed in tbe buggy appellant succeeded in effecting an entrance into tbe store, and while be did not remain long, be was in there several minutes. He came back out of tbe store through this window, approached tbe witness, and told him, “Let’s go.” They both got on tbe borse again, went up tbe road some 400 or 500 yards from tbe store to a church building. That they there stopped tbe borse, tied him in front of tbe church, and went into tbe church. Appellant there showed him four cans of oysters, which they cut and ate in tbe church. That appellant then stated to tbe witnéss that be bad also gotten some pocketknives out of tbe store. That after remaining in tbe church 10 or 15 minutes they went out, unhitched, and both walked and led tbe borse from there to appellant’s father’s gin lot at bis father’s residence. Tbe distance from tbe church to appellant’s father’s bouse, some of tbe witnesses say, is about 100 yards; said Glasgow said about 400 yards from tbe church. That when they got through tbe gin lot gate, they unsaddled and turned tbe borse loose, then went into appellant’s father’s, bouse. Appellant, procuring a light, went into bis room, showed tbe witness the pocketknives which be bad gotton out of tbe store and they then went to bed and slept till late tbe next morning, when they were awakened. That after they got up next morning, at appellant’s instance, they took tbe two said boxes of pocketknives, went some 200 or 300 yards distant from appellant’s father’s bouse, dug a bole in tbe ground on a knoll by a ravine, and buried tbe two boxes of knives. That appellant stated that if they searched bis bouse they would not find tbe knives. That nothing was said at that time about dividing tbe knives between them. That then they went back to appellant’s father’s bouse, where be remained a few minutes, and, without getting any breakfast there, be started to bis home some few miles distant, walking. That in thus going to bis home be passed some bous-es, and perhaps met some pafties, and among others, be thinks be saw Mr. Shelby. That tbe next day, Sunday, at Sunday school be spoke to appellant about tbe matter of going into tbe said store, and appellant said to him that they “bad been tracking us and were sure to get us,” and told tbe witness be would have to stand pat on it. Tbe witness replied be guessed be would. About a month later, be met appellant at another dance, and appellant again asked him if be was going to stay with him, and he replied be guessed be would. Again, on Wednesday or Thursday night before tbe witness went before tbe grand jury, appellant again asked him if be was going to stand pat, and be made tbe same reply. That appellant said be would do that towards tbe witness. He further testified: “After I was before the grand jury in this matter, I went with Mr. George Shelby to look for tbe knives and the place where they bad been buried on tbe Sunday morning after tbe burglary, going there directly from tbe grand jury room. We did not find tbe knives, but did find the bole where they bad been buried. We bad no trouble in locating tbe place where tbe knives bad been buried” — and be then showed tbe place to Mr. Shelby.

Said Gordon and Secreast both testified for tbe state, corroborating said Glasgow as to their being at said dance that night and leaving there, the manner and direction in which they traveled, about tbe rain coming up, and stopping and turning tbe buggy, and said Glasgow and appellant reaching them on said horse, getting oft of tbe borse, into tbe buggy with them, and remaining until after tbe heavy shower of rain was over; that appellant and Glasgow then got out of tbe buggy, remounted tbe borse and preceded them towards Ex Ray; that they traveled down the road in tbe buggy, passing in front of said store in tbe road; that they did not stop tbe buggy there; that neither of tbe three got out, but that they went on some 200 or 300 yards past tbe store, leaving tbe road to one side and went to a Mr. Pinkerton’s — not appellant or appellant’s father— borrowed from him a wagon sheet, went from there a short distance to a schoolhouse, hitched their borse and buggy, went into tbe schoolhouse with tbe wagon sheet, and all three went to bed, covering with the wagon sheet, and remained and slept until the next morning; that neither of them left tbe schoolhouse after reaching it until tbe next morning, and they were all three there when they went to bed and when they awoke and got up; that they then got their buggy and I proceeded tbe next morning to their respective homes; that neither of the three in the buggy entered the store of Mr. Kerr on that night; that they did not stop on the road in going through the town; neither did they see anybody about the store as they passed through town. Gordon testified: “I do not even remember to have seen the store or to have looked that?way in passing it. * * * We all three remained at the seholhouse the balance of the night, and did not leave the schoolhouse, and did not go from there to the Kerr store, but went from the schoolhouse home.” Secreast testified: “I remember to have seen the bulk of the Kerr store as we passed by, but did not pay any particular attention to it, and did not see anybody at the store when we passed. * * * After we got to the schoolhouse all three of us went to bed in the wagon sheet, and stayed there the balance of the night.”

Said Kerr testified in addition to what is shown above. He corroborated Glasgow fully as to how and where an entrance was effected in his storehouse that night. That he went to his store the next morning, Sunday morning, and the window pane being out of a window and the stick removed first attracted his attention. That he then went into his store and looked around and missed some cans of salmon. “I could not state whether it was salmon or oysters, but I know there was some salmon gone.” That he carried canned oysters in his stock generally, but did not remember so particularly about having oysters at that time. That he found two boxes of pocketknives missing, one a full box, and the other with at least three or four knives in it. Kerr further testified: “On Sunday morning I saw the tracks of a horse there at the front gallery of the porch, and from the looks of the tracks the horse had probably stood there for some little time, and there were the same tracks leading from this south end of the gallery on up the road. X examined the tracks there at the store porch, and then followed them on up the road to the churchhouse, and then on by the churchhouse to the gate that goes into Mr. Pinkerton’s gin lot, where I left them, and did not examine them any further. Dr. McDonald was with me at the time I was making this examination of the tracks. Thdre was only the one track that we followed from the south end of the gallery on up to the churchhouse, and from there on to the gin lot gate. There were no other horse tracks along the way that I noticed. I also saw the tracks of a buggy along the road in front of the store. I could not state whether the buggy had stopped or not, but it seemed to have passed on down the road. I followed the buggy tracks on up to the schoolhouse, and saw there that it had stopped. I did not find any man’s tracks about my premises on this Sunday morning, or if there were any there I did not notice them. I could follow the tracks of this horse all right¡ from the gallery on up to the church, and then to the gin lot gate, but I did not notice anything peculiar about the track, or any distinguishing marks about it. I just noticed that it was a shod horse. Since the date of this burglary I have received a box of knives, handed to me by Ollie Mclnrow, or brought to me by him. They were the Rex brand of knives, and the same kind of knife that I handled at that time. I do not know where Mclnrow got the knives, except from a hearsay statement. The box containing the knives had the cost mark removed from it when they were returned to me. I had my cost and selling mark on the boxes the knives were kept in at the time in question, and the knives I received from the Mclnrow boy were in the same kind of a box, and were knives of the same brand as the ones I carried in stock, and the box returned to me was also marked with the Rex label or brand.” He further testified that he did not attempt to track the horse any further than to appellant’s father’s gin lot gate; that when he got there he turned back towards the schoolhouse, and there saw the buggy tracks that had stopped there, and where a horse had been standing, as though hitched to a tree; that the Pinkerton gin lot was about 100 yards further on from the churchhouse; that said box of knives returned to him by the Mclnrow boy were given to him just a few days before this trial. “When I got it, the box seemed to be a little yellowed like it had been carried for some time, and on the top of the box where I always put my cost mark had been-scratched away, or else had been in water and decayed off, and the general appearance of the box was dirty.” On cross-examination by appellant on this point, he testified that when the Mclnrow boy brought the box of pocketknives to him he told him that they had been found under the schoolhouse. “The cost mark had been written on the box itself, and had either been scratched away or had been effaced in some way.”

Dr. McDonald substantially testified the same thing about the horse tracks, men’s tracks, and buggy tracks, and where he and said Kerr tracked them, the same as Kerr had testified.

Burling Dorris testified: That he was a blacksmith, lived about 400 yards north of said Kerr’s store, and on the evening after the burglary had occurred that night he went north on the road about a mile to his pasture, and that he tracked the buggy and the said other horse back north some distance, and saw a place where two horses seemed to have stopped for a time. He did not follow the buggy and said other horse’s tracks beybnd that. That he also saw said horse’s and men’s tracks at said Kerr’s store. That the tracks he saw of the horse were of a horse shod slick with a Ho. 0 shoe. That about two weeks before this he had shod a horse with this character and size of shoe for Mr. Pinkerton (appellant’s father). That he had before that shod a good many other horses around in the country with the same character of shoe, and that the tracks he saw about Kerr’s store were made with a 0 shoe, or a shoe without the cork. On cross-examination he testified that the track of the horse pulling the buggy was a different track from the other horse track; that the horse pulling the buggy was shod with a cork shoe.

Will King testified substantially as Kerr and McDonald had testified about the horse tracks at Kérr’s store, and therefrom towards and up to the church, but that he followed the tracks no further; that he also tracked the buggy to the schoolhouse, substantially as the others had testified.

Andrew Shelby testified that the Sunday morning after the burglary the night before he saw said witness Glasgow in the road below his (Shelby’s) house, and that Glasgow was coming from the direction of Ex Ray and a little west of the home of Mr. Pinkerton, appellant’s father, and about one-half mile from Pinkerton’s house.

George M. Shelby testified that he lived near Ex Ray, about one-half mile from Kerr’s store, and remembered the circumstances of the burglary of Kerr’s store; that he had known Ed. Glasgow about a year and a half; that during the last term of the lower court he went with Ed. Glasgow to Ex Ray, and from there down on a branch with Glasgow near the home and east of said Pinkerton’s about 200 or 300 yards from Pinkerton’s house, “and I found a little hole in the ground in some little low brush. In going there we first struck a trail that led down to this branch and went on down to a second bottom, and on the right-hand side in a little bunch of bushes, and near an oak tree, was a small hole in the ground near the root of the tree. Ed. Glasgow found the hole and showed it to me.” On cross-examination he testified he did! not discover the hole until the boy, Ed. Glasgow, showed it to him, and that they had been there only a short time when he did. On re-examination by the state he testified that the hole was about 4 or 5 inches wide, about 2 ½ inches deep, and 6 or 7 inches long, or something like that. The bole appeared to have been made by some one, and was not a natural hole in the ground.

Ed. Glasgow, recalled by the state, testified that he had known appellant about a year and a half, never had any trouble at any time, and his feelings towards him now are as good as ever, and he liked him as well as he ever did.

This is a sufficient statement of the evidence to review the questions presented by appellant. The evidence is unquestionably sufficient to sustain the conviction, and the accomplice, Glasgow, is amply corroborated.

Appellant has seven hills of exceptions to the introduction of testimony. One is to that part of the testimony of Glasgow substantially quoted above, wherein he tells about going from the court at Stephenville just after the time he was before the grand jury, to where he testified he and appellant had buried some knives, hunting for them, and w-hat he said and did with Shelby thereabout.

Another bill is to the testimony of said George M. Shelby on the same subject. His grounds of objections to said testimony were that they were the acts and declarations of said Glasgow and Shelby in his absence, that Glasgow, the accomplice, could not corroborate himself thereby, and that said testimony was immaterial, irrelevant, and hearsay. The court, in qualifying the bill to said Shelby’s testimony, stated: “With the explanation that Glasgow testified that he and defendant on the morning after the burglary hid the knives in that place; that he, the witness, left this neighborhood on the following day, and never was in it nor about where the knives were hid till he went to Stephenville or from the grand jury room, in company with George Shelby, a grand jury bailiff, back to said place; and the court thought it proper to let Shelby tell what discoveries he made at said place.”

Appellant’s second, fourth, fifth, and sixth bills are to the introduction of the testimony by said Kerr, McDonald, King, and Dorris about the said tracks that they found and respectively testified about. The grounds of his objections are substantially that they merely describe the horse tracks, and did not connect appellant therewith, that the horse tracks were not identified as those of the horse ridden by him, and that the testimony was immaterial and irrelevant. To the bill objecting to Kerr’s evidence, the court made this qualification: “That witness swore he followed the identical horse back from where the horse stood at the east gallery of his store, to the church and on the defendant’s father’s gin lot, and in the gate of said gin lot. That defendant lived with his father, and that the gin lot was connected with the residence lot of defendant’s father, and in close proximity to said residence”— and he made the same qualification to the bill objecting to McDonald’s evidence.

In our opinion all this testimony objected to by appellant was admissible, and the court did not err in admitting it.

As to the tracks of said horses, buggy, and men, the testimony of the witnesses was not as to comparison of tracks, but the testimony of said Glasgow, Gordon, and Seereast had particularly identified the buggy, horse, and men’s tracks as the tracks made by the horses and Glasgow and appellant, by the positive testimony of these witnesses. This was not a case of circumstantial evidence, and that line of authorities about the comparison of tracks for the purpose of identification, when the case is wholly circumstantial, are inapplicable in this case. It is needless to cite the authorities showing the admissibility of this testimony, but see subdivision “D,” sec. 1074, pp. 688, 689, White’s Ann. C. C. P.

As to appellant’s bills to tbe testimony of said Glasgow and George M. Sbelby, above specified, appellant cites us to McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795, and several other cases, some quite recent, to tbe effect that if a conspiracy to commit a crime has been completed, tbe admission, statement, or confession of tbe accomplice are inadmissible against the accused when tbe accused is on trial. These cases announce a correct principle of law, but they are not applicable to this case. Here tbe testimony objected to was of tbe accomplice himself. He testified fully to tbe facts. Tbe state was not attempting to prove by other and independent witnesses what tbe witness Glasgow himself bad said to them, or confessed outside of tbe court, and not as a witness. Certainly, tbe positive testimony of Glasgow was admissible, and so was that of Sbelby, objected to, under the circumstances of this ease.

Again, without question, a part of tbe testimony of each of these witnesses was admissible. Even if there had been some particular portion of it inadmissible, appellant made no specific objection to that, but objected to tbe whole. In Ortiz v. State, 151 S. W. 1057, this court said: “A bill of exceptions is too general for consideration if it includes a number of statements, some of which are clearly admissible, and there is nothing in the objection directly pointing out the supposed objectionable portions of the evidence,” citing Branch’s Crim. Law, § 47; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872.

Appellant’s other bill, No. 3, is to the testimony of said Kerr about the said pocketknives. His grounds of objections to this testimony were that it was too remote, and the knives were never shown to be in appellant’s possession, and not identified as the stolen knives, and that it was irrelevant, hearsay, and prejudicial. The court, in allowing the bill, did so with this explanation: “That the witness also stated without objection that Mclnrow told him the knives were found under schoolhouse, and the Glasgow boy had theretofore testified to the absence of the knives from the place they were first hid.” This testimony was admissible. Appellant’s objections go more to the weight of the testimony than to its admissibility. The jury were entitled to the proof, and it was for them to weigh the evidence in connection with all the other facts and circumstances in the case, and they could give it such weight as to the identity of the knives, and that they were the stolen knives, and appellant’s connection therewith, as they thought it entitled.

The court in its charge gave a correct general charge, conceded to be so by appellant, as to who are principals under the statute. He next charged in submitting the ease, in effect, that if the jury believed from the evidence beyond a reasonable doubt that the appellant, Ed. Pinkerton, in said state and county, on or about the time alleged in the-indictment, either alone or acting under such circumstances with Ed. Glasgow as to constitute him a “principal,” as that term is-hereinbefore defined, did unlawfully and fraudulently, at night, by force, break and enter the said storehouse of Kerr with intent then and there on the part of him, said Pinkerton, fraudulently to take, steal, etc., corporeal personal property belonging to said Kerr, with the other necessary ingredients to-be found, then to find him guilty, etc. Appellant’s objections to these charges are that there was no evidence that appellant kept watch, etc., but the evidence was wholly that Glasgow kept watch, etc., and that there was-no evidence that appellant alone burglarized said store, but that he did so, and that Glasgow aided, watched, etc. The charge may not be very happily worded, but it certainly is not so worded as to do appellant any injury whatever in this case. He was given the lowest penalty prescribed by law. Under such circumstances, even if it should be conceded that there was some error of verbiage in the charge, under article 743, C. C P., this court is forbidden to reverse the judgment on that account, because the error appearing, if so, was not calculated to injure-the rights of appellant.

The court did not err in not submitting whether or not said Davidson, or some other person than appellant, committed the burglary. There was no evidence that called for any such charge. The testimony of Gordon and Secreast, the two parties who were with Davidson all that night, positively exclude-the idea that Davidson committed the burglary. The fact that since the burglary Davidson had moved to Oklahoma, and that the sheriff had a subpoena for him and could not find him in Erath county, and that the-boy who returned the knives to Kerr stated that he found them under the schoolhouse,. was not sufficient evidence to found such a charge upon. The offense was committed the-night of April 27, 1912. Appellant was indicted at the June term, 1912, and not tried until the subsequent term on December 17, 1912.

The judgment will be affirmed.