author: WILLSON, C. J.

text:
    MEYERS et al. v. HAMBRICK.
    (No. 1304.)
    (Court of Civil Appeals of Texas. Texarkana.
    April 16, 1914.)
    1. Courts (§ 480*) — Stay of Execution from Another Court — Jurisdiction.
    Under Rev. St. 1911, art. 4653, providing-that injunctions granted to stay proceedings in. a suit or execution on a judgment shall be returnable to and tried in the court where the judgment was rendered, the court rendering a judgment has, alone, jurisdiction to stay execution thereof unless it is void and.its invalidity is apparent on the face of the- record.
    [Ed. Note. — Eor other cases, see Courts, Cent. Dig. §§ 1270-1278; Dec. Dig. § 4S0.*]
    2. Courts (§ 480*) — Jurisdiction — County Court — Stay of Execution from Another Court.
    Where the petition, in an action in the county court to foreclose a chattel mortgage, alleged that the property mortgaged was of the value of $600 and the- mortgage contained no recitation of value, a judgment of foreclosure was valid on the face of the record, and the county court alone was authorized to restrain execution on a showing that the property was worth an amount in excess of the jurisdiction of the county court.
    [Ed. Note. — For other cases, see Courts,. Cent. Dig. §§ 1270-1278; Dec. Dig. § 480.*]
    Appeal from District Court, Dallas County; J. C. Roberts, Judge.
    Suit by J. C. Hambrick against E. G. Meyers, trustee, and others. From a judgment for plaintiff, defendants appeal. Reversed, and cause dismissed.
    By a suit commenced in the county court at law of Dallas county, February 13, 1909, E. G. Meyers, as trustee for the A. G. Elliott Paper Company, sought a recovery against one R. E. Grabel on a promissory note for $33.33%, and against appellee Hambrick on certain promissory notes made by said Ham-brick to said Grabel, held by said Meyers as trustee to secure the payment of said note for $33.33%. Meyers also sought as against Hambrick a foreclosure of "a mortgage on certain personal property, alleged to be of the value of $600, made by Hambrick to secure his said notes to Grabel and assigned by the latter to Meyers as trustee. April 21, 1911, said county court at law rendered judgment in favor of said Meyers against Grabel for the amount then found by it to be due on said note for $33.33%, and in Meyers’ favor against Hambrick for $195.50, the amount found to be due on the notes held by Meyers as collateral security for said note for $33.-33%. By the terms of the judgment the lien of the mortgage on said personal property was foreclosed. By a suit commenced in the district court of Dallas county June 24,1911, resulting in the judgment from which this appeal is prosecuted, Hambrick sought and obtained an injunction restraining Meyers and one Brandenburg, sheriff of Dallas county, from “causing to be issued any executions upon or orders of sale upon said judgment (rendered by the county court at law as aforesaid), or in any wise undertaking to enforce said judgment of said county court at law.”
    Seay & Seay, of Dallas, for appellants. J. C. Muse and W. L. Crawford, both of Dallas, for appellee.
   WILLSON, C. J.

(after stating the facts as above). It appears that the suit was to enjoin the enforcement of a judgment of the county court at law of Dallas county. It does not appear from the record before us that that judgment was void. Therefore, to give effect to' article 4653 of the Revised Statutes of 1911, we must reverse the judgment appealed from, on the ground that the district court of Dallas county was without power to render it. The article of the statutes referred to, in part, is as follows: “Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered.” With reference to this statute, the courts of this state have repeatedly held that no other court than the one that rendered it has power in the exercise of original, as distinguished from appellate, jurisdiction, to stay the execution of a judgment of a county or district court, unless such judgment is void and its invalidity is apparent on the face of the record of the cause in which it was rendered. Seligson v. Collins, 64 Tex. 314; Bell v. York (Tex. Civ. App.) 43 S. W. 68; Adoue v. Wettermark, 22 Tex. Civ. App. 545, 55 S. W. 511; Smith v. Morgan, 28 Tex. Civ. App. 245, 67 S. W. 919; Ketelsen v. Pratt (Tex. Civ. App.) 100 S. W. 1172; Broocks v. Lee, 50 Tex. Civ. App. 604, 110 S. W. 756; Ry. Co. v. Butler, 52 Tex. Civ. App. 327, 135 S. W. 1064; Hillsman v. Cline (Tex. Civ. App.) 145 S. W. 726. In his petition for the injunction Hambrick alleged' that the county court was without power to render the judgment he sought relief against, because the property covered by the mortgage foreclosed by that judgment was of the value of $3,302.60. He further alleged that the fact that the property was of that value “was shown by the plaintiff’s (Meyers’) pleadings and mortgage on file in said cause.” The allegations were not supported by any testimony we have been able to find in the record sent to this court. The allegation in the petition filed by Meyers in the county court was that the mortgaged property was of the value of $600. In the mortgage copied in the record there is no recitation as to the value of the property it covered. For aught we have been able to discover to the contrary, the judgment rendered by the county court, on the face of the record of the cause in which it was rendered, was a valid one. Poulter v. Bank (Tex. Civ. App.) 146 S. W. 561; Manire v. Wilkinson (Tex. Civ. App.) 136 S. W. 1152. If it was, then said county court alone was authorized to grant the relief Hambrick sought.

The judgment will be reversed, and the cause dismissed.


source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    FINK v. SAN AUGUSTINE GROCERY CO. et al.
    (No. 6527.)
    (Court of Civil Appeals of Texas. Galveston.
    April 15, 1914.
    Rehearing Denied May 7, 1914.)
    1. Contracts (§ 335) — Actions top. Breach —Pleading—Fulfillment oe Conditions Precedent.
    Where an action is upon a contract in which the promises or covenants are mutual and concurrent, plaintiff must allege performance, or a readiness and willingness to perform, on his part, or some act or omission of defendant which justifies a rescission by plaintiff.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 1664^-1676; Dee. Dig. § 335.]
    2. Pleading (§ 402) — Defects in Petition-Cure by Supplemental Petition.
    Allegations in a supplemental petition will not cure defects or omissions in the original petition, but such defects must be cured by amendment.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. § 1343; Dec. Dig. § 402.]
    3. Sales (§ 353) — Actions fob Price or ' Value — Petition.
    A petition in an action upon a contract for lumber sold, though it showed that plaintiff had failed to deliver the amounts in the time prescribed by the contract, was not subject to general demurrer, where it also showed that defendant had failed to make the required payments, thus relieving plaintiff of, the duty to deliver.
    [Ed. Note. — For other cases, see Sales, Oent. Dig. §§ 995-1004; Dec. Dig. § 353.]
    4. Pleading (§ 21) — Ambiguous and Inconsistent Allegations. •
    Allegations of a petition in an action for lumber sold, declaring upon a cause of action for lumber- delivered at defendant’s special instance and request, were not ambiguous nor inconsistent with allegations declaring upon a written contract, and hence defendant’s exception was properly overruled.
    [Ed. Note. — For other cases, see Pleading, Oent. Dig. § 44; Dec. Dig. § 21.)
    5. Appeal and Errob (§ 1040) — Harmless Error — Pleading.
    Error, if any, in overruling defendant’s exception to a petition because ambiguous, in that it first declared upon a written contract for lumber sold and delivered, and then that it was 'delivered at defendant’s special instance and request, was harmless, in view of undisputed evidence establishing the written contract declared on.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 4089-4105; Dec. Dig. § 1040.]
    6. Courts (§ 104) — Opinions — Necessity — Statutory Provisions.
    Rev. St. 1911, art. 1639, when considered in connection with article 1636-, as it should be, does not require the Courts of Civil Appeals to file written opinions in affirmed cases, of which the Supreme Court has no jurisdiction of an application for writ of error.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 353, 355-358; Dec. Dig. § 104.]
    7. Courts (§ 247) — Appellate Jurisdiction ob Supreme Court.
    Where the Court of Civil Appeals merely affirmed the action of the lower court in overruling a general demurrer to a petition which only raised the issue as to what, under a proper construction of the petition, were the facts pleaded, • there was no question of, substantive law presented so as to give the Supreme Court jurisdiction under Rev. St. 1911, art. 1521, subd. 6, as amended by Acts 33d Leg. c. 55, providing that it shall have appellate jurisdiction in those cases where it appears the Court of Civil Appeals has erroneously declared the substantive law of the case.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Error to District Court, San Augustine County; L. D. Guinn, Special Judge.
    Action by the San Augustine Grocery Company, as assignee of the San Augustine Lumber Company, against W. A. Fink, and another. Judgment for plaintiff, and defendant Fink -brings error.
    Affirmed, and motion for rehearing overruled.
    H. B. Short, of Center, and Foster & Davis, of San Augustine, for plaintiff in error. Davis & Ramsey, of San Augustine, for defendant in error.

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

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

   PLEASANTS, C. J.

At a former day of this term we affirmed the judgment of the trial court in this case, without a written opinion'.: Plaintiff in error in due time filed motions for rehearing and for a written opinion. We have overruled both motions; but in view of the earnest insistence of counsel, in an able argument filed in support of said motions, we deem it proper to state the grounds of our conclusion that the judgment should be affirmed, and that the case was not one which required a written opinion by this court.

The suit was brought by the appellee, San Augustine Grocery Company, as assignee of the San Augustine Lumber Company, against appellant and the San' Augustine Lumber Company, to recover the sum of $565.75 balance due of the purchase price of 157,275 feet of pine lumber sold and delivered by said lumber company to appellant.

Plaintiff’s petition contains the following allegations: “Plaintiff further represents to the court that heretofore, to wit, on or about April 22, 1908, the defendant-San Augustine Lumber Company and W. A. Fink entered into a written contract, by the terms of which the defendant San Augustine Lumber Company, through its duly authorized officer, F. P. Adams, and its agent, agreed, bound, and obligated itself to sell and deliver to the defendant W. A. Fink f. o. b. cars at the mill of defendant San Augustine Lumber Company, in the county of San Augustine and state of Texas, certain pine lumber at certain stipulated prices, as follows:” Here follows an itemized statement of the lumber included in said contract, and the prices agreed to be paid therefor by appellant. This statement shows that' the lumber included in the contract aggregated 236,085 feet.

The petition continues: “The said defendant San Augustine Lumber Company further agreeing by terms of said contract to ship one car of lumber so sold, 1x4 and 1x8, at once, and balance as fast as can get out, and further agreeing to ship entire bill of lumber so sold and agreed to be shipped within four months, and in said contract acknowledging receipt, paid to it by said W. A. Fink, of the sum of $25-; and the said defendant W. A. Fink agreed, bound, and obligated himself to pay to the defendant San Augustine Lumber Company, for said lumber so bought to be delivered, and which was delivered, the price per thousand feet as stipulated and set out in said contract, as above set out, to the San Augustine Lumber Company, and did pay, at the time of entering into said contract, the said sum of $25 cash, and further agreeing by the terms of said contract to pay to the said defendant San Augustine Lumber Company 80 per cent, on receipt of bill of lading, and the balance of 20 per cent, when the last two ears were shipped. Plaintiff further represents to the court that the defendant San Augustine Lumber' Company, complying with the terms of said contract, did ship and deliver to the defendant W. A. Fink 11 cars of pine lumber on the dates as follows:” Then follows a statement of the various shipments made by the lumber company to appellant and the amount due upon each shipment. This statement shows that on various and sundry dates, beginning on April 29, 190S, and ending on August 19, 190S, the lumber company made shipments of lumber to appellant according to the terms of its contract, aggregating 157,275 feet, of the agreed value of $1,-704.46.

It is then alleged that appellant had made payments to the lumber company under his contract as follows: “On April 22, A. D. 1908, the sum of $25; on May 30, A. D. 1908, the sum of $632.47; on June 30, A. D. 1908, the sum of $221.70; and on August 30, A. D. 1908, the sum of $259.54 — making the sum total of $1,138.71, and leaving a balance due on said contract of $565.75, which has long since been due and unpaid; and the defendant, W. A. Fink, though often requested, has failed and refused and still fails and refuses to pay same, to plaintiff’s damage $1,000. Plaintiff further represents to the court that heretofore, to wit, on April 29, 1908, and on divers and sundry dates before and since said date the defendant San Augustine Lumber Company, at the special instance and request of the defendant W. A. Fink, and upon his written order and at the prices then and there agreed upon by and between them, sold and delivered to the said W. A. Fink 157,275 feet of pine lumber, amounting to the sum of $1,704.46, and on which said account against said W. A. Fink the said W. A. Fink has paid the sum of $1,138.71, leaving a balance due of $565.75, and all of which is fully set out in an itemized statement of said account, which is filed now among the papers of this cause and asked to be read into and made a part of this petition, and which said balapce so shown to be due on said account has long since been due and unpaid, and the defendant W. A. Fink, though often requested, has failed and refused, and still fails and refuses, to pay same, to plaintiff’s damage $1,000.”' It is then alleged that the lumber company had sold and transferred its said account for $565.75 against appellant to appellee, San Augustine Grocery Company, and had guaranteed in writing the payment of same.

The petition continues as follows: “Plaintiff further represents to the court that because of the order for said lumber by the defendant W. A. Fink, and because of the agreement as to the prices to be paid for said lumber by the defendant W. A. Fink, at the special instance and request of the said W. A. Fink, he (the said W. A. Fink) became liable and promised to pay to the said San Augustine Lumber Company the sums of money specified and set out in said account, and because of the sale and delivery of said account and contract by the defendant San Augustine Lumber Company, and its guaranty of the payment of same, each defendant, the San Augustine' Lumber Company and W. A. Fink, became liable and promised to pay to plaintiff herein the sums .of money specified and set out in said contract and account shown to be due, and for all of which plaintiff prays judgment. Wherefore plaintiff prays that defendants be cited to answer this petition; that, upon a final hearing of this cause, it have judgment for the sum of $565.75, with interest thereon at the rate of 6 per cent, per annum from April 22, 1908, for its damages, for all costs of suit, and for such other and further relief as it may be entitled to in law and equity and will ever pray.”

The appellant answered by general demurrer and several special exceptions, one of which is as follows: “This defendant further sp&eially excepts to plaintiff’s petition for the reason that the same is ambiguous and inconsistent in that the plaintiff first declares and predicates its cause of action upon an alleged written contract between the San Augustine Lumber Company and this defendant, and then declares upon another and different contract involving the same lumber, and which is shown by the petition to be the same transaction as first set out, and also undertakes to declare upon a cause of action for lumber delivered by the San Augustine Lumber Company to this defendant at his special instance and request, the petition showing that the same transaction is involved, wherefore he prays a judgment of the court.” He further answered by general denial and by special plea in which it is averred in substance that the lumber company failed and refused to ship him the whole quantity of lumber specified in said contract, and by reason thereof he was damaged in a sum larger than the amount of balance due said company on the lumber shipped him.

In reply to defendant’s answer, plaintiff filed a supplemental petition which contains the following allegations: “And further specially answering that portion of the said defendant W. A. Fink’s answer, wherein he sets up that the defendant San Augustine Lumber 'Company, because of a failure to comply with the terms of the contract set out in plaintiff’s petition, by failing to ship the lumber set out in said contract within four months from the date of said contract, and thereby breached its contract, it denies specially said allegations, and plaintiff says that, after the defendant San Augustine Lumber Company had shipped to the defendant the lumber which it did ship to the said W. A. Fink, the said W. A. Fink failed and refused to pay for all of said lumber to the amount of 80 per cent, under the contract, and thereby himself breached his contract, and he should not now be heard to complain; and the defendant San Augustine Lumber Company, because of the failure and refusal of the defendant W. A. Fink to pay for all of said lumber so shipped to him to the amount of 80 per cent., then the defendant San Augustine Lumber Company refused to ship to the defendant W. A. Fink any more lumber because he had failed and refused to pay for the lumber shipped to him in accordance with the terms of the contract (that is to say, to the amount of SO per cent.), and thereby breached his contract.”

The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff against both defendants for the sum of $654.15.

The first assignment of error complains of the action of the trial court in overruling defendant’s general demurrer to plaintiff’s petition. The propositions advanced under this assignment are as follows:

“Where the petition is based upon a contract which imposes upon the plaintiff duties to be performed prior to or concurrently with the defendant’s obligation under the contract, and the petition discloses such duties of the plaintiff and discloses that such duties of the plaintiff have not been performed, and the petition does not allege tender of performance by the plaintiff, or does not allege a legal excuse for nonperformance on the part of the plaintiff, the petition is insufficient on general demurrer; and the defect cannot be cured by sufficient allegations made in a supplemental petition.”
“The original petition of the plaintiff, upon which the case was tried, shows upon its face that the San Augustine Lumber Company, in whose right the plaintiff sues, contracted to sell to the defendant W. A. Fink a bill of lumber amounting to 236,085 feet, to be shipped as best the company could get it out, the entire bill to be shipped, however, within four months; and the petition further shows upon its face that only 157,275 feet was delivered, showing a balance of 78,810 feet undelivered, and there is no allegation in the petition offering performance by the lumber company, or excusing its failure to perform by some default on the part of Fink that would give it the legal right to rescind. The petition was therefore bad on general demurrer.”

It may be conceded that, as an abstract statement of the law, the first of these propositions is sound. Every essential element of a cause of action must be stated in the petition, and, when the suit is upon a contract or agreement in which the promises and covenants of the parties are mutual and concurrent, the plaintiff must allege and show performance or a readiness and willingness to perform on his part, or some act or omission by defendant which justifies a rescission of the contract by plaintiff. Townes on Pleading, p. 286; Garrison v. Cook, 96 Tex. 231, 72 S. W. 54, 61 L. R. A. 342, 97 Am. St. Rep. 906.

It is also a well-recognized rule of pleading that allegations in a supplemental petition will not cure defect or omissions in the original petition. The office of a supplemental petition is to plead facts in avoidance of defensive matters set up in defendant’s answer, and defects or omissions in an original petition must be cured by amendment. Townes on Pleading, p. 300.

It appears from the petition in this case that the lumber company, under the contract sued on, was obligated to ship the entire quantity of lumber included in the contract within four months from the date •of the contract, and that said company, at the time the suit was filed, which was long after the expiration of the four months, had only shipped 157,275 feet of the 236,085 feet called for by the contract, and there is no allegation that the lumber company was ready or willing or made any offer to ship the balance of said lumber. But the petition does, show that, before the expiration of said four months, the defendant had breached his contract by failing to pay the 80 per cent, of the contract price of the lumber shipped to and received by him. According to the statements contained in the petition, the amount due for lumber shipped under the contract up to August 19,1908, was $1,704.46. Eighty per cent, of this sum, which amounts to $1,363.56, should have been paid by appellant on the receipt of the bill of lading for the shipment of August 19th, but the statement set out in the petition shows that only $1,138.71 of said amount was paid. The appellant, having failed to comply with his contract to pay 80 per cent, of the contract price of each shipment of lumber, could not require the lumber company to make any further shipments; and, this being so, plaintiff was not required to allege any offer on the part off the lumber company to further perform its contract undertaking. The court did not err in overruling the general demurrer.

The “second assignment of error assails the ruling of the trial court in not sustaining the special exception to the petition before set out.

The assignment is without merit. The allegations of the petition objected to by said exceptions do not appear to have been necessary and might properly have been stricken out as surplusage, but they are not ambiguous nor inconsistent with the allegations declaring upon a written contract, and the exception to said allegations on this ground was properly overruled. If any error was committed in overruling this exception, it was harmless, in view of the undisputed evidence which established the written contract declared on by the plaintiff.

The third assignment of error complains of the charge of the court submitting the issue of whether the defendant breached his contract; the ground of the complaint being that such issue was not raised by the pleading. What has been said in discussing the first assignment disposes of the question raised by this assignment.

The remaining assignment assails the verdict on the ground that it is not supported by the evidence in that the undisputed evidence shows that the damage sustained by the defendant, by reason of the failure of the lumber company to ship him all of the lumber' included in the contract, exceeded the balance due said company by the defendant for lumber shipped by it .under said contract.

The defendant having breached the contract by failing to pay the 80 per cent, of the contract price of the lumber shipped him, the lumber company was under no obligation to ship him the balance of the lumber and cannot be held liable for any damage sustained by him because of his failure to receive all of the lumber included in the contract.

This disposes of all of the assignments presented in appellant’s brief.

Upon the motion for written opinion, our conclusion at the time the appeal was decided was and now is that the case is not one in which a written opinion by this court is required by the statute.

In the case of Tucker v. Freiberg & Kahn, 46 Tex. Civ. App. 160, 101 S. W. 837, this court held article 1639 of the Revised Statutes, when considered in connection with article 1636 of said statutes, should not be construed as requiring Courts of Civil Appeals to file written opinions in affirmed cases of which the Supreme Court- has no jurisdiction of an application for writ of error. That opinion has been adhered to and followed by this court since it was rendered, and we have no doubt of its soundness.

Such being our conclusion as to the proper construction of the statute first cited, it follows that, unless the Supreme Court has jurisdiction of an application for writ of error in the case presented by this appeal, no written opinion of this court affirming the judgment of the court below was required by the statute:

An Act of the Thirty-Third Legislature (Acts 33d Leg. c. 65) amends article 1521 of the Revised Statutes, defining the jurisdiction of the Supreme Court so as to read as follows: “Art. 1521. The Supreme Court shall have appellate jurisdiction coextensive with the limits of the state, which shall extend to questions of law arising in civil causes in the Courts of Civil Appeals in the following cases when same have been brought to the Courts of Civil Appeals by writ of error, or appeal, from final judgments of the trial courts: (1) Those in which the judges of the Courts of Civil Appeals may disagree upon any question of law material to the decision. (2) Those in which one of the Courts of Civil Appeals holds differently from a prior decision of its own, or of another Court of Civil Appeals, or of the' Supreme Court upon any such question of law. (3) Those involving the validity of statutes. (4) Those involving the revenue laws of the state. (5) Those in which the Railroad Commission is a party. (6) Those in which, by proper application for writ of error, it is made to appear that the Court of Civil Appeals has, in the opinion of the Supreme Court, erroneously declared the substantive law of the case, in which case the Supreme Court shall take jurisdiction for the purpose of correcting such error.” Acts of Thirty-Third Legislature, p. 107, e. 55.

It is not contended that this case comes under any of the first five subdivisions of this article, but it is claimed that, in affirming the judgment of the trial court, this court must have erroneously declared the substantive law of the case, and therefore, under subdivision 6 of the above article, the Supreme Court has jurisdiction of the case for the purpose of correcting such error. This contention cannot be sustained. No question of substantive law was involved in the decision of the case. A general demurrer to a pleading may often present a question of substantive law, but in this ease there was no issue made as to what facts were necessary to be alleged in order to show a right of recovery in plaintiff, but the issue raised was: What, under a proper construction of the petition, were the alleged facts? If, in a case of this kind, a general demurrer raises a question of substantive law, then the Supreme Court has jurisdiction of a writ of error in every case in which there is an assignment complaining of the ruling of the trial court on a general demurrer, and the amendment of the statute, instead of lessening the burden of the Supreme Court, by diminishing its jurisdiction, has greatly enlarged that jurisdiction. We shall not so construe the statute until it has been so construed by the Supreme Court.

The ever-increasing number of opinions of appellate courts with which the profession is burdened, and the great majority of which serve no useful purpose in the administration of the law, or in defining the public and private rights and obligations of the citizens, is an evil which should be mitigated as far as possible. Unless the appeal presents a new question of importance, there is no reason for delaying the business of this court, incumbering the record, and adding to the already vast number of useless opinions with which our reports are so largely filled, by writing an opinion in any case in which a written opinion is not required by the statute.

For the reasons stated, the motions have been overruled.


author: HARPER, J.

text:
    HEWITT v. STATE.
    (No. 3116.)
    (Court of Criminal Appeals of Texas.
    May 6, 1914.
    On Motion for Rehearing, May 20, 1914.)
    1. PROSTITUTION (§ 3) — INDICTMENT—SUFFICIENCY.
    An indictment under Acts 32d Leg. c. 23, which makes it a felony to procure a female to leave the state for the purpose of prostitution, need not allege the state into which the female was induced to go; the offense being •complete even though there was no particular destination determined upon.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 3; Dec. Dig. § 3.]
    2. Criminal Law (§ ISO) — Former Jeopardy —Counts Withdrawn erom Jury.
    Where defendant had pleaded not guilty to all nine counts of an indictment, but only one count was submitted to the jury, while such action did not amount to an acquittal on the other eight counts, it' did constitute former jeopardy as to those counts if the defendant did not consent to their being withdrawn from the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 316, 328; Dec. Dig. § 180.]
    3. Criminal Law (§ 1171) — Appeai>-Harmless Error.
    In such case, where the defendant was on trial a second time on the same indictment, error in permitting the district attorney to read all nine counts to the jury was harmless, where the court again withdrew from the jury all counts except the one upon which the former conviction was had.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    4. Prostitution (§ 4) — Evidence—Admissibility.
    In a prosecution for procuring a female to leave the state for the purpose of prostitution, evidence that the defendant had taken the prosecuting witness to a certain place in another state was admissible to prove that he had procured her to leave the state.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.]
    5. Prostitution (§ 4) — Evidence—Admissibility — Declarations oe Accused.
    In a prosecution for procuring a female to leave the state for the purpose of prostitution, where the defendant contended that the girl had insisted on going with him, and that he endeavored to persuade her to return home, evidence that the defendant had borrowed money from the girl’s father to enable him to search for her when he already knew where she was was admissible as contradicting his defense.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.]
    6. Criminal Law (§ 369) — Evidence—Ad! missibility — Other Oeeenses.
    The fact that such evidence also tended to show that the defendant was guilty of swindling does not affect its admissibility. .
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    7. Criminal Law (§ 1169) — Appeal—Harmless Error — Admissibility oe Evidence.
    Where the prosecuting witness had testified without objection that the defendant had told her about getting the money from her father, the subsequent admission of the father’s testimony to the same effect was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, .3137-3143; Dec. Dig. § 1169.]
    8. Criminal Law (§ 507) — Accomplice — Girl Induced to Leave State.
    Under Acts 32d Leg. c. 23, making it a felony to procure a female to leave the state for the purpose of prostitution, the female so induced to leave is not an accomplice, even though she went voluntarily.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    9. Criminal Law (§ 1090) — Appeal-Presenting Questions in Lower Court — Objections to Testimony.
    Where there are no bills of exception showing that objection was made during the trial to the admissibility of certain testimony, the admission of such testimony cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    10. Prostitution (§ 4) — Prosecution—Sufficiency oe Evidence.
    In a prosecution for procuring a girl to leave the state for the purpose of prostitution, evidence held sufficient to show that the defendant had such purpose when he induced the girl to leave and at all other times.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.]
    On Motion for Rehearing.
    11. Commerce (§ 48) — Regulation—Procuring Female to Leave State.
    Acts 32d Leg. c. 23, making it a felony to procure a female to leave the state for the purpose of prostitution, is not a regulation of interstate commerce, since it is not the transportation of the girl that is made punishable, but the acts within the state by which she was induced to leave.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 36-44, 46; Dec. Dig. § 48.]
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    J. R. Hewitt was convicted of procuring a female to leave the state for the purpose of prostitution, and he appeals.
    Affirmed and motion for rehearing overruled.
    Cunningham & Sewell, of Abilene, and James A. Stephens, of Benjamin, 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

   HARPER, J.

Appellant was convicted of pandering, and his punishment assessed at 25 years’- confinement in the penitentiary.

This is the second appeal in this case, the-opinion on the former appeal being reported in 158 S. W. 1120. On the former appeal this-case was reversed because the court did not define prostitution, and did not instruct the jury that the mere fact that the parties had lived together in adultery would not authorize a conviction under this statute. The court, in his charge • on this last trial, instructed the jury: “You are charged, before you can convict the defendant as charged in the indictment in this cause, you must find and believe from the evidence that the defendant took Alma Johnson out of the state of Texas and into the state of Louisiana for the ’purpose of prostitution, and in this connection you are charged that it is not sufficient that the defendant copulated with and had sexual intercourse with the said Alma Johnson, if he did so; but, before you would he authorized in convicting the defendant, you must find and believe from the evidence that the defendant took the said Alma Johnson out of the state of Texas and into the state of Louisiana for the purpose of inducing her to engage in sexual intercourse with other men, or to enter a house of ill fame. And if you have a reasonable doubt whether or not such was the purpose and intent of the defendant in taking the said Alma Johnson out of the state of Texas into the state of Louisiana, if he did so, then you will give the defendant the benefit of such doubt and acquit him.” Consequently the charge of the court met the requirements of the opinion on the former appeal, and is not subject to those criticisms.

It is insisted that the ninth count should have been quashed on appellant’s motion; this being the count under which he was convicted. This same motion was made on the former appeal, but the court declined to quash the indictment, merely suggesting that on another trial it might be well that it be made more specific. The complaint now made is that it is defective because the indictment does not allege into which state appellant induced Alma Johnson to go; the indictment merely alleging that “he procured her to leave this state for the purpose of prostitution.” We do not think it material into which state he induced her to go — the gravamen of the offense is procuring her to leave this state for the purpose named. They might not, when they leave, have specific destination in any foreign state, but if one induces a female to leave the state for such purposes, although no specific destination was named or agreed on, and they were going in search of a suitable location beyond the confines of the state, still the offense would be completed, even before they finally agree on a destination, when she has been induced to leave the state. Chapter 23, Acts 32d Leg., provides that if any person shall procure, or attempt to procure, or be concerned in procuring, with or without her consent. a female to leave this state for the purposes of prostitution, he shall be deemed guilty of 'a felony, and the ninth count in the indictment is in full compliance with this provision of that act.

The indictment contains nine counts, charging pandering in almost all the ways denounced by the statute. Appellant complains that the court erred in permitting the district attorney to read all the nine counts to the jury, as the court on the former trial had submitted only the ninth count; appellant contending that this was equivalent to án acquittal on those counts not submitted by the court to the jury. As they were not submitted to the jury for a finding on the former trial, of course it would not amount to an acquittal; but, as appellant had entered a plea of not guilty to all the counts on the former trial, if eight of them were withdrawn from the jury thereafter without his consent this would be former jeopardy as to those counts not submitted to the jury on the former trial.

However, on this trial the court only submitted to the jury the ninth count, which appellant admits in his oral motion was the count under which he was convicted on the former trial, and the court instructed the jury that the other counts, Nos. X, 2, 3, 4, 5, 6, 7, and 8, were withdrawn from their consideration, and they could not be considered for any purpose; this presents no reversible error.

Appellant also complains that the court erred in defining “pandering” in his charge, he defining it as it is defined in the statute; that he ought to have narrowed his definition to the only mode submitted by him to the jury for a finding — the mode charged in the ninth count in the indictment. The court in the charge instructed the jury, “Counts Nos. 1, 2, 3, 4, 5, 6, 7, and 8 in the indictment are withdrawn from your consideration, and you will not consider same for any purpose,” and then, in submitting the issue to the jury, submitted to it only the mode and method of pandering charged in the ninth count in the indictment, and under such circumstances a general verdict of guilty would and could only be applied to the ninth» count in the indictment, as the jury had been specifically instructed that no other count was submitted to them for a finding.

There was no error in permitting the prosecuting witness to testify, and the defendant on cross-examination to be asked, if he had not carried Alma Johnson to Shreveport, La. This would show that he had procured her to go “without the state,” and was germane to the issues involved in the case. It was not only necessary to prove that he had procured her to go without the state, but also that he procured her to do so for the purposes of prostitution, and it was as essential to prove one ingredient of the offense as the other.

The only other bill of exceptions in the record complains that the court erred in permitting S. P. Johnson, the father of the prosecuting witness, to testify that appellant obtained from him the sum of $25 for the purpose of paying appellant’s expenses in looking for and trying, to locate Alma Johnson, the contention being that said testimony was irrelevant, immaterial, and prejudicial to the rights of defendant, and tended to show the commission of another offense, to wit, swindling. The fact that this would tend to prove an extraneous crime would be immaterial, if it was res gestee of the transaction, or tended to connect the defendant with the offense charged, or tended to show the intent of appellant in carrying the girl away from her home. Gilbrath v. State, 41 Tex. 567; Long v. State, 11 Tex. App. 387; Davison v. State, 12 Tex. App. 215; Lynne v. State, 53 Tex. Cr. R. 337, 111 S. W. 729; Stanfield v. State, 43 Tex. Cr. R. 12, 62 S. W. 917; Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376. Appellant by his •evidence was contending that he had not carried the girl away from her home in Knox county, and that she had forced herself on him, and he was endeavoring to get her to return to her home, while the state’s evidence tended to show that he had debauched her before she left Knox county, and had carried her away, and was at the time he got this money keeping her in Dallas under an assumed name. Evidence that he claimed he did not know where she was; that he would look for her, if her father desired, as he could do it cheaper than the father, he being a minister of the gospel, and able to travel on a half-fare ticket, would all have a tendency, and a strong tendency, to show whether appellant had procured the girl to leave home as charged, or she had forced herself on him as contended by appellant. It was admissible only as a part of the transactions occurring in the scheme, as charged by the state, to procure this girl to leave her home and go with appellant out of the state.

Again the girl testified that when appellant came back from a trip to Knox county he told her about getting this money, claiming that he had blindfolded the people at Bomarton and Goree, and he had got this money from her father to hunt her up when he had her there in Dallas; that he had taken her father into a little back room of the bank and related to him everything he •could think of about how he, appellant, had been hunting for her. All this testimony of Miss Alma Johnson had been admitted without objection before S. P. Johnson had been offered as a witness, and, having gone before the jury without objection, and appellant also testifying that he had procured this money from Mr. Johnson, while pretending to hunt for his daughter, without objection, the admission of Mrs. Johnson’s testimony would present no error, as the testimony was already before the jury unobjected to, and no motion made to strike it out.

Appellant presented a special charge requesting the court to charge that if Alma Johnson voluntarily went out of the state for the purposes of prostitution, she would •be an accomplice. This is not the law, as has been frequently decided by this court under the peculiar provisions of the Code creating and denouncing this offense.

The only other special charge requested, as shown by the record, was fully embraced with the terms of the court’s charge as read to the jury.

There are a number of other complaints in the motion as to admissibility of testimony, but as no bills of exception are contained in the record, showing that any objection was made during the trial to the admissibility of such testimony, those grounds are not verified in a way we can review them.

The only other ground in the motion complains of the insufficiency of the testimony to show that appellant procured the girl, Alma Johnson, to leave Knox county and go with him to Louisiana, and there engage in prostitution. After a careful review of the testimony we have come to the conclusion that under the testimony in this , case the .jury would be authorized to find that this was the object and purpose of appellant from the time of his first move until he abandoned the girl at Shreveport, La. She was a member of the Baptist congregation at Bomarton in Knox county. He was pastor of his church. He was guilty of adulterous intercourse with this girl in his home and in her home, as is shown by all the testimony. She testified that during this time appellant often talked to her about New Orleans, La.; that he formerly lived there, and would describe what a great place it was; “that you could earn money there and be as lazy as you wanted to.” After having the adulterous relations with her in Knox county, she says she thought she was in a family way, and defendant induced her to go away with him; that she begged him to wait five or six days longer so she could determine whether or not she was pregnant, but he would not wait, and insisted on going at once; that, fearing she was pregnant, she went with him, and he first carried her to Dallas, and to other points, living all the time under an assumed name, finally going to Shreveport, La.; that at times appellant would tell her that she looked and acted like a prostitute, and would tell her about prostitutes wearing silks and diamonds. She testified, “During the time we were in Louisiana and elsewhere, he would very often say about me and about my clothes that I looked and acted very much like a common prostitute; then again he would say something about the prostitutes, how they would live and wear silks and diamonds; he would also relate to me everything that went on in a house of that kind; also he said he had been with those houses so much that he did not realize hardly what a house of ill fame was. He did not come straight out and ask me how I would like to live that kind of a life, but he would often ask me if I would not like to be earning money, and wear silks and diamonds; then was when he would call me ‘baby’ and pet names like that; and I would tell him, ‘No,’ I would not do such a thing; then at times he would again talk and tell what horrible places they were, and of things he had seen in them, and of what he had done; then I would ask him to stop. I would tell him with tears to respect me. And he did detail to me the manner of carrying on business in these houses. As far as clothes are concerned, of course lie knew that I liked to look neat, but I did not care for fine clotlies; be would often call me by some endearing name, and say, ‘Wby, my goodness, Alma, you could be wearing diamonds, you could be wearing satins of all colors, and be making an easy living.’ I was to make that money by tbe. bouse of ill fame. Later be related to me bow be could get us a nice little room; then I could have male company, and thereby earn money; and of course be would take part of tbe money, that was part of tbe plans, but I refused to do that.”

After a careful review of tbe entire record we find no reversible error, and tbe judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing, in which be raises but one question, and that one was not presented to tbe court below, nor to this court on the original bearing! He now insists that that portion of tbe pandering statute which provides that “any person who shall procure or attempt to procure or be concerned in procuring, with or without her consent, a female to leave this state for tbe purpose of prostitution, shall be deemed guilty of a felony,” is in violation of and contrary to that clause of the federal Constitution, which provides: “The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” He cites us to the cases of State v. Harper (Mont.) 138 Pac. 495, Morgan Steamship Co. v. Louisiana, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237, Peirce v. New Hampshire, 5 How. 597, 12 L. Ed. 256, and Cyc. vol. 7, pp. 421, 422. The last three citations have no further reference to legislation of this character than to hold that Congress has exclusive control over the regulation of interstate commerce, while the first case cited is a decision of the Supreme Court of Montana on a statute relating to the same question as does the statute involved in this case. The Montana statute prohibited the transportation of women from another state into that state for immoral purposes, and to punish those who aid women in obtaining such transportation. Our statute does not do this, but is aimed alone at acts done wholly within this state. The Supreme Court, in discussing the validity of the Mann White Slave Act (Act June 25, 1910, c. 395, 36 Stat. 825 [U. S. Comp. St. Supp. 1911, p. 1343]), and sustaining its' constitutionality in the case of Hoke v. United States, 227 U. S. 308, 33 Sup. Ct. 281, 57 L. Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905, rests its decision on the ground that, as the transportation of persons between the states is interstate commerce, Congress may regulate such transportation. The purpose of such transportation is but an incident thereto. And in that case Justice Kenna, who rendered the opinion, says: “We may illustrate again by the Pure Food and Drugs Act Let an article be debased by adulteration, let it be misrepresented by false branding, and Congress may exercise its prohibitive power. It may be that Congress could not prohibit the manufacture of the article in a state. It may be that Congress could not prohibit in all of its conditions its sale within a state. But Congress may prohibit its transportation between the states, and by that means defeat the motive and evils of its manufacture” — thus clearly recognizing the right of the state to control in regard to all acts done wholly within the state. Our statute does not seek to make criminal the transportation of a person from one state to another, nor in any manner seek to control transportation, but it only seeks to prohibit certain' acts being done wholly within this state. A person might attempt to procure a woman to leave this state for the purposes denounced, and she refuse. Certainly Congress could not punish that act, while the state law may and does. If, in addition to the acts done by appellant in Knox county, he, in addition thereto, provided her transportation, or aided her in any way to go from this state to Louisiana, he violated the Mann Act as well as our statute, and might be prosecuted therefor as a separate and distinct crime, but appellant in his testimony seems to be guarding against this by testifying he furnished no transportation, and did not aid her to secure it. This statute is of the same nature and character as article 1431, which punishes one for bringing stolen property into this state, the constitutionality of which act has never been questioned so far as we have been able to ascertain. In that instance we do not punish him for the original theft, but the bringing of stolen articles into this state is defined to be an offense. The federal statute prohibits the transportation of lottery tickets, but this does not render invalid the law of this state prohibiting the sale of lottery tickets within its borders. So in this case we are not seeking to punish a man for an act done in a foreign state, nor for the transportation of any person from this state to another state, but have defined as an offense acts done wholly within this state.

The motion for rehearing is overruled.


text:
    HARRIS v. STATE.
    (No. 3121.)
    (Court of Criminal Appeals of Texas.
    May 6, 1914.)
    1. Bigamy (§ 9) — Evidence—Admissibility.
    Where, on a trial for bigamy, accused, H. M. H., alias J. M. H., admitted his marriage to C. in 1912, but denied his prior marriage to E., a marriage license for the marriage of J. M. H. and E. and the return of a justice of the peace of the marriage under the license were. admissible.
    [Ed. Note. — Por other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.]

      2. Bigamy (§ 11) — Prior Marriage — Evidence.
    On a trial for bigamy, evidence held to support a finding that accused, who admitted his marriage to one woman, was the person who had previously married another woman.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 50-53; Dec. Dig. § 11.]
    3. Criminal Daw (§ 603) — Continuance-Absence oe Witnesses.
    An application for a continuance on the ground of the absence of a witness, which fails to state what the witness will testify to, is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    4. Criminal Law (§ 1032) — Trial—Substituting Indictment — Agreement oe Counsel.
    Where the original indictment was misplaced while in the hands of accused’s attorney, who stated that he had a copy which could be used as a substitute, which was done with consent, in the presence of accused, accused could not on appeal complain because he in person made no agreement for substitution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2627, 2628, 2642; Dec. Dig. § 1032.]
    5. Bigamy (§ 8) — Evidence—Admissibility.
    On a trial for bigamy, evidence that the first wife of accused had been guilty of adultery about six months after her marriage to accused was inadmissible.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 41-49; Dec. Dig. § 8.]
    6. Criminal Law (§ 1120) — Bills oe Exceptions — Rulings on Evidence.
    A bill of exceptions complaining of the exclusion of evidence, which states the questions propounded to the witness, but not what answer the witness was expected to give, is insufficient to raise any question for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    7. Criminal Law (§ 721) — Argument oe Prosecuting Attorney — Failure oe Accused to Testiey.
    A statement by the prosecuting attorney in argument that a witness had identified accused as the one who roomed with his wife at the home of the mother of the witness, and that the witness had not been impeached nor contradicted, was not objectionable, as a direct or indirect reference to the failure of accused to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    8. Criminal Law (§ 720) — Argument of Counsel — Comment on Witnesses.
    That a witness testifying for accused had been convicted of a felony and had been pardoned by the Governor could properly be referred to in the argument of the prosecuting attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    9. Bigamy (§ 9) — Evidence—Hotel Registers — Admissibility.
    Where, on a trial for bigamy, the proprietor of a hotel identified accused as the person who stopped at her hotel, and also identified accused’s first wife as the woman who was there with accused, and testified that accused informed her that the woman was his wife, a leaf out of the register of the hotel, showing that accused had registered there with his wife, was admissible..
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 34-53; Dec. Dig. § 9.]
    10. Criminal Law (§ 444) — Evidence—Public Records.
    Where a witness testified that a marriage license offered in evidence on a trial for bigamy was the original license issued by the clerk, and that the witness was deputy clerk and knew the signature on the license to be genuine, the license under the seal of the clerk was properly received in evidence, though not filed with the papers in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. § 444.]
    11. Criminal Law (§ 938) — New Trial— Newly Discovered Evidence.
    A new trial on the ground of newly discovered evidence, based on the testimony of a witness, was properly denied, where the witness was in attendance during the trial, and was not placed on the stand after conferring with accused’s counsel.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    Appeal from District Court, Cherokee County; L. D. Guinn, Judge.
    Harry M. Harris, alias John M. Harris, was convicted of bigamy, and he appeals.
    Affirmed.
    See, also, 161 S. W. 125.
    J. E. Rose, of Palestine, 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

      For other eases 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 bigamy, and his punishment assessed at five years’ confinement in the penitentiary.

Appellant ádmitted his marriage to Miss Venia Chaney on the 16th day of July, 1912, and denied that he had theretofore married Miss Alice Ellison on the 15th day of December, 1911, in San Antonio.

The marriage license issued authorizing the marriage of John M. Harris and Alice Ellison was properly proven upon this trial, and there was no error in admitting it in evidence, as was also the return of Ben I. Fisk, justice of the peace, showing that he performed the ceremony on the 15th day of December, 1911. So the really only contested issue in the case, as made by the testimony, is whether or not appellant, Harry M. Harris, is one and the same person as the John M. Harris who married Miss Ellison in December, 1911.

The party who witnessed the marriage in San Antonio was unable to identify appellant as the man; that he witnesses so many marriages in Mr. Fisk’s office he would be unable to identify any of them, unless he personally knew the parties. However, the other facts and circumstances in evidence amply support the verdict of the jury in finding that appellant was the man who married Miss Ellison on the 15th day of December, 1911, and the court therefore did not err in refusing to instruct a verdict of not guilty. Miss Politzer swears tliat appellant was in San Antonio at tliat time, and lie introduced Miss Ellison as liis wife, and they roomed at her mother’s.

As to the motion for continuance, it appears that all the witnesses named in the application attended court, except one, W. M. Powers, and by reading the application for continuance it is seen that it is not therein stated what facts were expected to be proven by this witness; in fact, it wholly fails to state that the witness would testify to anything, or it was expected he would testify to any fact. Under such circumstances, there was no error in overruling the motion for continuance.

It further appears that the prosecuting attorney had the indictment when the case was called for trial, and called his witnesses from the bach of it; that he then delivered the papers to defendant’s attorney, 'who made a list of the witnesses, and returned the papers to the prosecuting officer. It was then found that the indictment during this time had been lost or mislaid. As the indictment had been misplaced while the papers were in the hands of defendant’s attorney, he stated he had a copy of the indictment served on appellant, and that could be used as a substitute indictment. This was done at the suggestion and with the consent of appellant’s counsel while he was present. It is now contended that, while appellant’s counsel did as stated, yet appellant in person made no such agreement, and the substitution should have been made in the manner provided by the statute. While it would always be better to pursue the statutory mode of substituting an indictment, yet, when it was done by agreement, objection thereto comes too late after trial, when it is not contended that the indictment substituted is not a copy of the original indictment.

There was no error in refusing to admit testimony that the first Mrs. Harris had been guilty of illicit intercourse with other persons in August, 1911, or six months after the date of her marriage to appellant. This might furnish grounds for divorce, but in and of itself would not divorce appellant, nor authorize him to marry another woman while she was his legal wife. It would not shed any light on whether or not he had in fact married her in December, 1911.

The bills in regard to this matter are too incomplete anyway; for while they state the questions propounded, yet they do not state what answer the witnesses would have given or were expected to make.

Bill of exceptions No. 7. is not approved by the court, but the court specifically says no such testimony was admitted, and, of course, if the testimony was not admitted, the court did not err in the premises.

The bill complaining of the remarks of the district attorney is not approved by the court, but he says that the county attorney stated “that the witness Politzer had expressly identified defendant as being the man who roomed with his wife at her mother’s, and she had not been impeached nor contradicted,” and that this was all that was said by him about the matter. This is not a direct nor indirect reference to defendant’s failure to testify, and was perfectly legitimate argument.

The fact that the county attorney commented on the fact that the first witness for defendant had been convicted of the crime of murder, and was pardoned by the Governor, was legitimate argument. The fact that the witness had been convicted of a felony was admissible, as affecting his credit as a witness, and the prosecuting officer had a right to comment thereon.

The leaf out of the register at the Ferguson hotel at Mineóla, showing that appellant had registered at that hotel in March, 1912, and that he registered himself and the lady with him as “J. M. Harris and wife” was properly admitted in evidence. Mrs. Oroft, the owner of the hotel, identified appellant as the person stopping at her hotel, and the first Mrs. Harris, n6e Miss Ellison, as the woman stopping there with him at that time. She also testified that appellant had informed her that this was his wife.

As Mr. Patterson testified that the license offered in evidence was the original license issued by the clerk, that he was deputy in the county clerk’s office, and knew the signature to be genuine, and it being under the seal of the clerk, there was no error in admitting the license, although it had not been filed with the papers in the case.

That paragraph in the motion for new trial alleging newly discovered evidence presents no ground for a new trial as approved by the court. The court shows that the witness was in attendance in court, and, after being conferred with by appellant’s counsel, he was not placed on the witness stand.

Appellant has filed an application asking that we order the original license sent up to this court. A copy of it is in the statement of facts; it is- not alleged that it is not a true copy, and no useful purpose can be served in so doing. No contention is made that the original license would aid us in solving the questions.

We have carefully reviewed each ground in the motion for a new trial, and each bill of exceptions, and none of them present error ; therefore the judgment is affirmed.