author: HARPER, J. PRENDERGAST, P. J.

text:
    ST. JOHN v. STATE.
    (No. 3575.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Assault and Batteky &wkey;>05 — Aggkavat-ed Assault — Consent.
    In a prosecution for aggravated assault upon a girl nine years of age, her consent was immaterial as being too young to consent to the fondling of her person in an indecent manner.
    [Ed. Note. — Eor other cases, see Assault and Battery, Cent. Dig. § 93; Dec. Dig. t&wkey;^.]
    2. Assault and Batteky <&wkey;84 — Aggravated Assault — Evidence.
    In a prosecution for aggravated assault on a girl nine years old, a note written by defendant and given to the child did not constitute an assault, but, being of an affectionate character, might be read and considered in determining whether the subsequent acts of defendant amounted to an indecent fondling of the child's person.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. § 133; Dec. Dig. <§=84.]
    3. Assault and Batteky <&wkey;92 — Aggravated Assault — Sufficiency of Evidence.
    In a prosecution for aggravated assault on a girl nine years old, evidence held insufficient to show indecent fondling of her person by defendant.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. &wkey;> 92.]
    Prendergast, P. J., dissents.
    Appeal from Harris County Court; Clark C. Wren, Judge.
    Harold St. John was convicted of aggravated assault, and he appeals.
    Reversed, and cause remanded.
    E. R. Campbell, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., and E. T. Branch, both of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of making an aggravated assault on a little girl, and his punishment assessed at one year’s imprisonment in the county jail.

We agree with state’s counsel in the contention that it is immaterial whether or not appellant had the girl’s consent, she being only nine years of age. Being of that tender age, even if he had her consent, it would not authorize him to fondle her person in an indecent manner, and the cases of Knight v. State, 48 Tex. Cr. R. 41, 85 S. W. 1067, Rogers v. State, 40 Tex. Cr. R. 357, 50 S. W. 338, Hill v. State, 37 Tex. Cr. R. 283, 38 S. W. 987, 39 S. W. 666, 66 Am. St. Rep. 803, and Scroggins v. State, 51 S. W. 232, correctly so announce the law. But the issue in this case is: Does the evidence show that appellant was guilty oí indecently iondling the person of little Myrtle Ferguson? The note he wrote and handed to the little girl was an improper one, but in and of itself would not constitute an assault of any character. It may and should be read and considered in passing on the acts of appellant, and if, viewed in the light of this letter, his acts amounted to an indecent fondling of her person, the case should be affirmed.

The strongest evidence offered in behalf of the state is that of Officer Wilkins, who testifies that the father of Myrtle showed him the letter or note, and asked that he watch them when they went to the moving picture show that afternoon. Mr. Wilkins testifies:

“I went down in front of the Texas Theater on Main street, and when Myrtle Ferguson and her sister entered the theater I followed them, and procured a seat just behind them. Shortly afterwards the defendant came in. He could not get a seat with these girls at first and had to wait a little bit until a seat was made vacant. He then secured a seat next to the smallest girl and sat with her during the rest of the show. He would lean over close to this little girl and had his hand in her lap. He would lean over on her shoulder and put his face down close to hers. He would lean over close to her when talking to her. She had on a long rain coat, and his hand was slipped in between the folds of the rain coat in front. I followed them out after the show, arrested him, and took him down to the station.”

This is the state’s case, if it has one. Myrtle Ferguson testified that she and her sister, Mabel, were carried to the picture show by their father; he knowing that appellant would go with them to the show. She testified:

“On February 13, 1915, which was on Saturday, the defendant and my small sister, who is eleven years old, and myself saw a moving picture show together on Main street, at the Texas Theater. My sister and I went into the picture show first and left him (appellant) talking to my father out in front. Mr. St. John came in after we were seated, and he could not get a seat with us. He sat across the aisle until a seat was made vacant near us, and then I called his attention to it and he came over and sat with us. He sat on my left in the adjoining seat to mine, and my sister, Mabel, sat on my right, in the adjoining seat, and we saw the picture together. The lights in the show were dimmed. There were lots of people sitting in front of us and behind us, and during the show he had his hand in my lap resting on my knee, and let his hand rest in my lap and held my hand. He had held me in his lap and had had his arm around me in that way, and held my hand in his, a number of times before. He did not mean any harm, and I did not think it was wrong.”

Her eleven year old sister, Mabel, testifies in substance to the same thing, and says she and her sister often went to a moving picture show managed by appellant; that she had “often seen Mr. St. John hold Myrtle on his lap with one arm around her like a man holds a child on his lap. He never did seem to try to conceal or keep people from seeing that he was making over Myrtle and petting her and playing with her and holding her on his lap. 1-Ie did it right out before everybody and before me, and before his wife and his wife’s family, and where everybody in the moving picture show, or buying tickets, would see him. Myrtle never said anything to me about the defendant’s treatment of her. Mamma and papa knew that we were over there at the picture show all the time. I did not think there was anything wrong in his treating Myrtle in that way, and I never did object to it, or say anything about it either to Myrtle or my mother or to Mr. St. John or any of his people, and Mrs. St. John or her people never did say anything about it being wrong, and Myrtle never did say anything about it to me which showed that she thought anything about it other than as a child. I never did see Mr. St. John act with Myrtle in any way that was naughty, and never did hear him say anything naughty to her, and Myrtle never did tell me that he had ever said or done anything naughty to or with her.”

All the testimony shows that appellant and his wife were neighbors of Mr. Ferguson; that Mr. Ferguson’s little girls often went to a picture show run by appellant who admitted them free; that little Myrtle was a fa-voiite of appellant, and he made much of -her in the presence of his wife and in the presence of others. She was often in his lap, he playing with her as one would with a child. He says:

“X have known Myrtle Ferguson since we first began to run the moving picture show. Her home was about three or four doors from the moving picture show. She and her sister, Mabel, were over at and around the show almost every evening, and were around my wife and myself whenever they were over there. I became very fond of Myrtle, as did also my wife, and she seems to be very fond of us. I am very fond of children, and Myrtle has an affectionate disposition, and is very lovable. My wife was generally with me around the show, and her father was always there, being- usually in the operating room, and her mother and sister were frequently over there.' Myrtle’s sister, Mabel, always came over to the show 'with Myrtle. They both of them went in and out of the show whenever they pleased.”

Appellant does not deny laying his hand in the lap of the little girl on the occasion charged, but the evidence, under the peculiar circumstances of this case, we do not think shows an indecent fondling of her person.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting). In Judge HARPER’S opinion herein he does not give, nor purport to give, all of the testimony. In my opinion, outside of Officer Wilkins’ testimony, Judge HARPER calls attention to the exculpatory, and not to the inculpatory, testimony herein.

The sole question in this case is whether or not the testimony and the inference the trial judge was authorized to draw therefrom was sufficient to show that appellant committed an assault upon this little girl. This court, in reviewing that question, must, under the law, look to the inculpatory evidence especially, and, if from that the judgment could be sustained, it is the duty of this court to sustain it.

The testimony is too lengthy to undertake to state it all. X will state, however, the salient features of it.

The uncontradicted testimony by all the witnesses showed that appellant, in connection with his father-in-law, operated a picture show four doors distant from the home of said little girl, Myrtle Ferguson, and her parents. Appellant’s wife, his father-in-law and mother-in-law, and his wife’s sister all helped to run said picture show. The two little girls, Myrtle and Mabel, were in the habit of daily attending said picture show in the evening. This continued for several weeks. During this time, appellant began to fondle and caress and have in his lap this little girl; but a remarkable thing about all this is that it was always done in the presence of appellant’s wife and the other members of his family. They all practically so swore, and he expressly did so, saying:

“When I would pet her (Myrtle) and play with her and hold her on my knee in the manner about which X have testified, my wife was always present, and Myrtle’s sister was always present, and frequently my wife’s mother and sister and her father were around.”

Xlis wife swore:

“Whenever he would be noticing her (Myrtle) or petting her, or holding her in his lap, or playing with her, it would be right before everybody. Her sister Mabel would be there, and I and the other members of my family would be around.”

No one disputes this. It is also further shown, without controversy, that when he was thus fondling this little girl that they each occasionally wrote the other what they said were play notes, but they were always, like his other actions with this child, written and delivered in the presence of his wife and all the others, as stated above. As Myrtle testified:

“He and I had written play notes to each other and at the picture show before the time that he gave me this letter (hereinafter copied); they were just little play notes, and I would write them to him, and he would write them to me on pieces of paper while we would be right there together, but no such note as this. He never did call me darling or sweetheart in any of those play notes. I can’t remember now what was in them.”

From the whole of the testimony which I have carefully studied, no other conclusion can be drawn therefrom than that this little girl became enamored and infatuated — com-jjletely so — of appellant, and his said fondling and caressing her aroused and inflamed his lustful passions for this little girl. Let’s see what followed. His picture show got out of repair in some way and had to be stopped and shut down on that account, and it was thus stopped and shut down for some length of time. During the time it was thus closed, he did not see and come in contact with this little girl. So he thus wrote to her:

“My Own Darling Myrtle: I trust you will not be angry at me for writing this little note to you. Please do not show this to any one. I wonder if you have been missing being with me as I have missed being with you? I hope you have toot for I sure have suffered and I hope you have not suffered as much as I have. There has been a number of nights that I could not sleep because I was thinking of _ my sweetheart. I wonder if you have been thinking any of me or if you have forgotten all about me? I suppose it will not be long until you will have forgotten that you ever knew such person as I. I have loved you from the first time that I saw you and I always will love you. Perhaps in years to come you may love me. I hope so, but before that time comes I am afraid you will have forgotten all about me. I will look for you uptown Saturday between one and two p. m. With love and kisses.”

It is unsigned. No one could know from it that he wrote it. He intended it so. The little girl, Myrtle, testified:

“I had not seen Mr. St. John for several days before this Saturday. They had closed down the moving picture show near our house, in which he was working, for repairs, several days before, and he had not been there for several days. I saw him over in town on Thursday, February 11th, and he handed me the letter which you have shown me. I was with my sister and another girl at the time. They were a little in front of us, but my sister turned and saw him hand the letter to me. I don’t think he tried to keep any one from seeing him give the letter to me. My sister asked me to let her see the letter, but I would not do it.”

Let’s see what Myrtle’s sister Mabel testified on this subject. She said:

“I was with Myrtle when Mr. St. John gave her this note (referring to the letter above copied). Myrtle and I and another little girl were together on the street. He came up to us and was talking to us, and we walked along the street together. I was not facing them at the time, but was in front of them, and I turned around and saw him hand her the letter. I don’t know whether he knew I saw him hand her the letter or not, but he didn’t try to conceal it. She would not let me read the letter after she got it. That night when we got home I told Mamma about Myrtle getting the letter from Mr. St. John, and Mamma made Myrtle give her the letter.”

Let’s see what appellant testified on this subject. He said:

“I wrote this letter to Myrtle, which you hand me (referring to the letter above copied), and I gave it to her myself on Thursday before I was arrested. I handed it to her in the presence of her sister, Mabel, and another little girl. They were walking ahead of us and their backs were turned when I handed Myrtle the note. I did not know that they saw me give it to her.”

Read the letter again. Then ponder it. Ponder each sentence of it. He was a young man, 24 years old; he was a married man. Mark the last sentence, “I will look for you uptown Saturday between one and two p. m.” She met the engagement. She found him — he found her. What did Mabel say? She said:

“She (Myrtle) would not let me read the letter after she got it. That night when we got home X told Mamma about Myrtle getting the letter from Mr. St. John, and Mamma made Myrtle give her the letter.”

Myrtle said:

“My sister told my mother about the letter, and that I would not show it to her, and Mamma made me show it to her.”

Myrtle’s father and mother that night consulted about this letter and appellant’s conduct towards the child. They thereupon placed the affair in the hands of the officers. The police officer detailed Officer Wilkins to go to the theater and watch appellant’s conduct towards this child when she would meet him there for him to take her to one of the moving picture shows. Her father took the two little girls around in his automobile. He was a jitney man, drove up in front of this theater, and found appellant there watching for his victim. This was the first time Myrtle’s father had ever seen appellant. Her father and mother neither had ever seen him before. It appears that the officer whom the child’s father had had detailed was not in sight. He did not then turn over his child to appellant, but instead, delaying, took her one or two rounds, with him and then brought her hack. Seeing the officer there, he then turned her over to appellant. The father detained him in conversation awhile. The girl went in the theater and procured a seat. The officer seated himself just behind them to watch, and did watch. A little later appellant went into the show. He could not at first get a seat beside the little girl. He sat elsewhere, he watching her too. Soon the seat beside her was vacated and appellant immediately took it. Then what did he do? Officer Wilkins says:

“He would lean over close to this little girl and had his hand in her lap. He would lean over on her shoulder and put his face down close to hers. He would lean over close to her when talking to her. She had on a long rain coat, and his hand was slipped in between the folds of the rain coat in front.”

Appellant himself denied that he slipped his hand in between the folds of the coat, but said:

“At times during'the show my hand lay over in her lap and on her knee. * * * I did not have my hand underneath the folds of her rain coat, but it lay only across her lap, and I did not lean over on her when talking to her.”

The officer who was detailed for the specific purpose of watching him did so and testified positively, as shown above, that he did place his hand underneath the folds of her rain coat and that he did lean over on her when talking to her. The testimony of all the witnesses shows the lights in the show were dimmed. Every one knows how that is. Myrtle said:

“During the show he had his hand in my lap resting on my knee and let his hand rest in my lap and held my hand.”

Mabel, on this point, testified:

“Mr. St. John had his hand in Myrtle’s lap while the picture show was going on and was holding her hand. We all three talked about the pictures, but I did not pay any attention to them, because I was looking at the pictures.”

He contended and testified that he had no improper motive whatever. Of course, he would so testify. The judge who saw him and heard him, and saw and heard all the other witnesses, did not believe him when he so testified. Said letter and his actions spoke louder than his sworn testimony when he was seeking to avoid punishment for his crime.

The statement of facts does not distinguish between what is drawn out on direct examination and what on cross-examination. Evidently what I will now quote was his testimony on cross-examination, when asked about the letter he had surreptitiously attempted to slip and did, to this child. He said: ,

“I don’t know why I started it ‘My Own Darling Myrtle,’ except that it was just like I wopld have spoken to my own child. I had never addressed ■ her that way in a letter before. I don’t know why I told her ‘I trust you will not be angry with me for writing this little note to you.’ 1 can’t say why I thought she might be angry. I put in this note, ‘Please do not show this to any one,’ because I didn’.t want any one to find out that I had written a note and ‘kid’ me about it. I wrote in this 'letter, ‘I wonder if you have been missing being with me as I have missed being with you,’ because we had not seen each other for several days, and I had, of course, missed seeing her, as I was very fond of her. I don’t know why I put in this letter, ‘I hope you have not suffered as much as I have.’ I had not suffered on account of not seeing her. When I wrote in the letter, ‘There has been a number of nights that I could not sleep because I was thinking of my sweetheart,’ I don’t know now whether X was referring to Myrtle or not. I sometimes called my wife ‘sweetheart.’ It is a fact that I did not lay awake nights unable to sleep because I was thinking of my wife, and neither did I lay awake nights unable to sleep because I was thinking of Myrtle. When X said, ‘There has been a number of nights that I could not sleep because I was thinking of my sweetheart,’ X might have been speaking of my wife. I can’t say why I put in this letter, ‘I have loved you from the first time that I saw you, and I always will love you, perhaps in years to come you may love me,’ except that I have always been very fond of the child and wanted her to always love me and think well of me in the future. I did not expect to follow this child up in years to come, except as a friend. I closed the letter with the words, ‘With love and kisses,’ but that is the first time X ever said anything to her about kisses and love. I had never kissed her in my life. I had, never written a note like this one to her before. Don’t know why I closed it the way I did. I did not sign the letter. It was not necessary, because I expected to hand it to her in person.”

In order for appellant to commit an aggravated assault upon this child, it was not necessary for him to have placed, or attempted to place, his hand upon her privates. The laying of his hand in her lap, slipped in between the folds of her rain coat, and his holding her hand in his and leaning over on her shoulder and putting his face down close to hers, was such assault, under the circumstances, as shown without question by this record. It may have been done with the consent of this child. She knew no better. He did. This violence to her person, she being of such tender years, was an aggravated assault under our law. If the child had been old enough to understand, there can be no question but that his conduct would have created in her “a sense of shame or other disagreeable emotion of the mind.” P. C. art. 1009. And as said by this court in Hill v. State, 37 Tex. Cr. R. 279, 38 S. W. 987, 39 S. W. 666, 66 Am. St. Rep. 803, quoted and approved in Rogers v. State, 40 Tex. Cr. R. 357, 50 S. W. 338, and the other two cases cited by Judge HARPER, such an act “committed upon a child of such tender years is a crime whether with or without her consent. Legally she has no will to resist or consent. There may be an actual submission of a child without constituting legal consent.” I think the case of Scroggins v. State, 51 S. W. 232, is not so strong as this case, and this court affirmed that case.

To my mind, the evidence in this tase, the whole of it, not only authorized the trial judge to find as he did that the acts and conduct of the appellant towards this child showed an aggravated assault upon her, but required him to so find. I think the judgment should be affirmed and not reversed.
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source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    TULLEY v. STATE.
    (No. 3625.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    1. Indictment and Information tj&wkey;161 — Amendment oe Ineoemation — Name oe Prosecuting- Attorney.
    Code Or. Proc. 1911, arts. 598, 599, authorizing the amendment of an information after it had been filed as to matters of form, authorizes the court to permit an information to be amended by inserting the name of the assistant criminal district attorney and to be signed by him.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 516-523; Dec. Dig. <&wkey;>161.]
    2. Criminal Law <&wkey;1109 — Aepeaj>-Biel oe Exceptions — Contents—Order.
    While an order permitting' an amendment to the information should be entered of record and copied in the transcript, a showing in the bill of exceptions that permission was granted by the court to make such amendment is sufficient evidence of that fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2897, 2898, 2900, 2902, 3204; Dec. Dig. &wkey;1109.]
    Appeal from Harris County Court, at Law; C. C. Wren, Judge.
    Clarence Tulley was 'convicted of aggravated assault, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of an aggravated assault.

But one question is presented in the motion for a new trial, and which was also presented in motion to quash the information and motion in arrest of judgment. All the motions are based on the fact that the information as filed read:

“In the name and by the authority of the state of Texas,-criminal district attorney of Harris county, Texas, at the May term, A. D. 1914, of the county court at law of Harris county, Texas, comes in behalf of the state of Texas, and in connection with the complaint of Jack Parsley herewith filed, presents in and to said county court at law: (And then follows a count charging appellant with .aggravated assault.) -,
“Criminal District Attorney, Harris County, Texas.”

When the motion was filed to quash the information on- the ground that it did not show to have been presented by an officer authorized to do so, Mr. Nicholson, assistant criminal district attorney, asked leave of the court to amend the information by inserting his name in the blank at the beginning of the information, and to sign his name as assistant criminal district attorney, and when leave was granted he did so amend the information, and it then read, “H. L. Nicholson, assistant criminal district attorney of Harris county, Texas, presents,” etc., and it was signed by Mr. Nicholson. Appellant contends that the court had no authority to permit the information to be amended after it was filed. Articles 598 and 599 of the Code of Criminal Procedure authorize an information to be amended after same has been filed in matters of form. It has been frequently held that a complaint may be amended by authorizing an officer to affix his signature and office he holds thereto, and we can see no reason why the court could not grant the district attorney permission to sign his name to the information ; it being otherwise complete. Jones v. State, 30 Tex. App. 426, 17 S. W. 1080. Article 35 requires that the officer prosecuting pleas for the state shall file an information, after a complaint has been filed, and this he did, except to verify that it had been filed by his signature thereto, and this was a matter of form and not substance.

In the bill of exceptions it is shown that an order was made by the judge authorizing the amendment to be made. This should have been entered of record and copied in the transcript; but, as the bill of exceptions shows that permission was requested and granted by the court, this is sufficient evidence of that fact.

The judgment is affirmed.
      <§=x>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, J.

text:
    CLIFFORD v. STATE.
    (No. 3598.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    1. Disorderly House &wkey;>17 — Prosecution-Evidence — Sufficiency.
    In a prosecution for keeping a disorderly house, evidence held sufficient to sustain a conviction under the statute.
    [Ed. Note. — For ■ other cases, see Disorderly House, Cent. Dig. §§ 26-29; Dec. Dig. &wkey;17.]
    2. Disorderly House <&wkey;17 — Prosecution— E viden ce — Wei out — Reeutatio n .
    Evidence of general reputation of defendant’s house as a disorderly house is not sufficient alone to sustain a conviction for keeping a disorderly house.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 26-29; Dec. Dig. <&wkey;>17J
    3. Disorderly House <&wkey;9 — Offenses—Elements.
    Under the statute providing that any person who shall directly or as agent for another or through any agent keep or be concerned in keeping or aid or abet in keeping a disorderly house or shall knowingly permit the keeping of such a house in any building owned, leased, occupied, or controlled by him directly, as agent for another or through any agent, shall be punished as prescribed, it is not necessary to sustain a conviction that the defendant be proved to be the owner, lessee, or tenant of the house.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. § 1; Dec. Dig. &wkey;>9.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    'Billie Clifford was convicted of keeping and permitting to be kept a disorderly house, and she appeals.
    Affirmed.
    Chambers, Watson & Reyes, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

The information contains three counts. The first charges appellant with keeping, and being concerned in keeping, and knowingly permitting to be kept, a house, building, edifice, and tenement for prostitution, where prostitutes were permitted to resort and reside for the purpose of plying their vocation. The second count charges that appellant kept, and was concerned in keeping, and knowingly permitted to be kept the said house, building, edifice, and tenement for prostitution, where prostitutes were permitted to resort and reside for the purpose of plying their vocation. In the second count she was charged as being the lessee of the house. In the third count she is charged with being the tenant of the house.

The court gave no charge except those requested. For the state he charged the jury with reference to an assignation house, theater, playhouse, etc. The second charge given for the state was that if the state had proved any one of the counts the jury should convict. The third was that any person who shall directly, or as agent for another, or through any agent keep or be concerned in keeping or aid or assist or abet in keeping a bawdyhouse or a disorderly house in any building, etc., or be concerned in keeping and knowingly permitting to be kept a baw-dyhouse, etc., shall be punished. Another charge was given, supposedly at the request of the defendant, though the record is not clear, that in order to justify a conviction under the information the state must show beyond a reasonable doubt that the defendant was the owner, lessee, or tenant of the house, and must also show same was a disorderly house, and unless this has been shown beyond a reasonable doubt, an acquittal should follow. That was given. He also charged there must be other evidence beyond general reputation, and also that appellant must be the owner, lessee, or tenant of the house. There are no exceptions reserved to any of the charges given for the state. The statute (Pen. Code 1911, art. 500) provides that:

“Any person who shall, directly or as agent for another, or through any agent, keep or be concerned in keeping, or aid or assist or abet in keeping, a bawdyhouse or a disorderly house, in any house, building, edifice or tenement, or shall knowingly permit the keeping of a bawdy-house or a disorderly house in any house, building, edifice or tenement owned, leased, occupied or controlled by him, directly as ag'ent for another, or through any agent, shall be deemed guilty of keeping, or being concerned in keeping, or knowingly permitted to be kept, as the case may be, a bawdyhouse or a disorderly house, as the case may be, and, on conviction, shall be punished,” etc.

Appellant was convicted under this statute. This statute seems to be broad enough to cover almost anything in the way of being concerned in keeping a disorderly house or a bawdyhouse. Now the indictment charges her with knowingly keeping, etc., and permitting people to resort there for the purpose of prostitution. The facts show- that these girls were there, and they were prostitutes ; at least offered to go to bed with men who visited there. It is also shown that appellant was the “landlady” and looked after the premises. The general reputation of the house is shown to be one kept for prostitution.

Of course, appellant could not be convicted on general reputation; there must be other facts. There seems to have been enough facts to show that women of dissolute character, prostitutes, resorted there, and were found plying their vocation, or offering to do so, and the evidence is that she was the “landlady” of the house, and claimed to be.

It was not necessary, it occurs to us under this statute, for her to be either the owner, lessee, or tenant. If she kept the house, or was concerned in keeping it in any way, this statute seems to be broad enough to cover her case; at least such have been the decisions of this court. While the writer has not been altogether in harmony with the decisions on these matters, still the case under the decisions is sufficiently made out by the facts to justify a conviction under this statute and under the allegations in the complaint. It would be useless now, on tbe part of the writer, to review these questions. One of the latest cases upon this question is Davidson v. State, 173 S. W. 1037, recently decided, in an opinion by Judge Harper.

The judgment will therefore be affirmed.
      <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    Ex parte BROWN.
    (No. 3588.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.
    Rehearing Denied June 23, 1915.
    Dissenting Opinion, July 5, 1915.)
    1. Extradition <@=^32 — Sueeiceency oe Complaint.
    The affidavit or complaint upon which a requisition from the Governor of another state was based recited that the complainant, being duly sworn, stated that accused, being the bailee of certain watches therein described, feloniously converted them to his own use with intent to steal them, and that the complainant had just and reasonable ground to believe, and did believe, that accused committed such offense. Held, that the affidavit when considered as a whole, was not made on information and belief, and was sufficient.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 36-38; Dec. Dig. <@^32.]
    2. Habeas Corpus <&wkey;85 — Evidence—Extradition.
    In habeas corpus by a person arrested pursuant to a requisition from the Governor of another state, his own testimony that he was not guilty of the offense charged was properly excluded.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. &wkey;>85.]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Habeas corpus by Joseph L. Brown. From a judgment remanding the petitioner to custody, he appeals.
    Affirmed.
    Gibson & Wander, of Houston, and Heid-ingsfelders, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was arrested under the warrant of the Governor of Texas issued upon the requisition of the Governor of Illinois. He sued out a writ of habeas corpus before Judge Robinson, Judge of the Criminal District Court of Harris County, who heard all the evidence and remanded the appellant, from which he appealed.

There are but two questions raised by appellant’s bills. There is no statement of facts. By his first bill he complains that the court erred in admitting in evidence the affidavit or complaint claiming that it' was made only on information and belief, and for that reason was insufficient. The affidavit or complaint shows to have been made before one of the judges of the municipal court of Chicago, and is signed and sworn to by Ed A. Garvey. After the formal parts and the statement of Garvey’s name and residence it is that he—

“complains to Charles A. Williams one of the judges of the municipal court of Chicago, and, being duly sworn and examined on his oath, states that Joseph L. Brown did, on the 9th day of January A. D. 1915, at the city of Chicago, in the county aforesaid, then and there being the bailee of the following goods and chattels, to wit: 132 watches, of the value of $776.50, the_ personal goods, chattels and property of the United Watch Company, a corporation, did then and there feloniously and unlawfully convert the same to his own use and gain, with the intent then and there to steal same, contrary to the statute in such case made and provided, and against the peace and dignity of the people of the state of Illinois.
“This complainant further says that he has just and reasonable grounds to believe, and does believe, Joseph L. Brown committed said offense. Wherefore the said Ed A. Garvey prays a warrant may issue against the said Joseph D. Brown, according to law.”

Judge Robinson held that, considering this complaint 'or affidavit as a whole, it was not on information and belief alone, but was sworn to positively. We think the trial judge was correct. The first paragraph of the affidavit clearly is positive and not on information and belief. The second clause does not so modify the first or the whole affidavit as to show that it was made on information and belief only. Doubtless the second clause was added because of the statute of the state of Illinois, requiring that that additional matter should be thus stated.

The other bill complains that the court refused to permit the appellant to himself testify to the effect that he was not guilty of the offense charged. There is no question but that this cannot be done. Ex parte Denning, 50 Tex. Cr. R. 631, 100 S. W. 401. There is no need to cite any other authorities.

The judgment of the trial judge will therefore be affirmed.

DAVIDSON, J.

This is a complaint on information and belief, and therefore not a sufficient basis for extradition.

PRENDERGAST, P. J.

The court stenographer has called our attention to the dissenting opinion herein, prepared to be filed after the motion for rehearing had been overruled and the court adjourned for the term. Our original opinion quotes the affidavit made the basis for extradition. The lower court, and this court, correctly and specifically held: “It [the affidavit] was not on information and belief aloné, but was sworn to positively.” Simply that and nothing more. No one can mistake our holding. So that the attempted strictures on us by the dissenting opinion, and the citation of authorities to the effect that where such an affidavit is made solely on information and belief, it is insufficient as a basis for extradition are as wholly inapplicable apd foreign to the question as would be a citation to the Ten Commandments, or to authorities on arson, murder, rape, or any other distinct crime wholly disconnected with the crime charged herein; hence the authorities mentioned in the dissenting opinion are neither directly nor indirectly embraced in, nor affected by, our original opinion.

DAVIDSON, J.

(dissenting). When the opinion was handed down I stated at the bottom of the opinion that the complaint which formed the basis of the extradition was made on belief, and, therefore, not sufficient. The exact language is stated in the majority opinion, that is, that the affiant says he has just and reasonable grounds to believe, and does believe, Joseph L. Brown committed said offense. This is what is popularly termed a complaint on information and belief. In all the decisions heretofore by the Supreme Court of the United States and by this court this character of complaint has been held insufficient as a basis of extradition. It has been decided so frequently that it would look like a work of supererogation to cite authorities, but to show that it has been the recognized rule in Texas as well as elsewhere, I cite Ex parte Rowland, 35 Tex. Cr. R. 108, 31 S. W. 651; Ex parte Baker, 43 Tex. Cr. R. 281, 65 S. W. 91, 96 Am. St. Rep. 871. These cases have been followed in all subsequent cases in Texas. It has been the uniform ruling of the Supreme Court of the United States, and in obedience to the decisions of that high court, its decisions being the controlling authority, the acts of this court ought to be bound. The reasoning for the rule is given in the various decisions. These cases and this line of authority have been followed in Texas until the opinion in this case. I do not care to write further. The complaint was not sufficient. The relat- or ought to have been discharged.
      &wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    MILLS v. STATE.
    (No. 3628.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.)
    1. Intoxicating Liquors &wkey;>205 — Criminal Prosecution — Indicóme nt — Sufficiency.
    Where an indictment for engaging in business of selling liquor in local option territory charged that the notice of the result of the election was published the necessary four weeks in a newspaper selected in the manner required by law by the county judge of the county for such publication, and that the selection and publication were duly certified by the county judge, and the certificate entered of record in the minutes of the commissioners, the indictment sufficiently showed that the county judge ordered the publication for the necessary time in a selected newspaper.
    [Ed. Note. — Eor other eases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. &wkey;>205.]
    2. Intoxicating Liquors <&wkey;221 — Criminal Prosecution — Indictment—Sufficiency.
    An indictment for engaging in business of selling liquor in local option territory that failed to allege that the sale was not permitted by law was not void, and evidence of the commission of the offense was admissible, since it is matter of defense to be shown that the sale was permitted by law; the burden of proof being on defendant to show that he had the legal right to sell intoxicants under the statute.
    [Ed. Note. — Eor other eases, see Intoxicating Liquors, Cent. Dig. §§ 246-248; Dec. Dig. <&wkey;> 221.]
    3. Intoxicating Liquors <&wkey;230 — Criminal Prosecution — Evidence.
    Where an indictment for engaging in business of selling liquor in local option territory charged that defendant was engaged in the business and in pursuit thereof made two sales to one D.j as well as to other persons unknown, the admission of testimony of R. that he bought whisky from the defendant was proper; there being two elements of the offense — that accused was engaged in the business of selling intoxicants in prohibited territory, and that he made at least two sales.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. § 290; Dec. Dig. &wkey;>230.]
    4. Criminal Law <&wkey;368 — Prosecution—Evidence.
    In a prosecution for engaging in business of selling liquor in local option territory, where a witness was allowed to testify that he did not know who got a bottle of whisky purchased, after stating that his father and two others were present, the witness not being allowed to testify to any statement not made in the presence and hearing of defendant and not constituting a part of the res gestae of the transaction, connected with money being furnished and whisky being delivered as its result, the evidence was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815', 821; Dec. Dig. <i&wkey;368.]
    5. Intoxicating Liquors &wkey;>236 — Prosecution — Sueeiciency oe Evidence.
    In a prosecution for engaging in business of selling liquor in local option territory, evidence held sufficient to support jury’s finding of guilty.
    [Ed. Note. For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. &wkey;>236.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    J. T. Mills was convicted of selling liquor in local option territory, and he appeals.
    Affirmed.
    Will S. Payne, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The indictment is attacked because it does not sufficiently allege the offense of engaging in the business of selling liquors in local option territory. Under the authorities since Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, the indictment is sufficient. It is also contended the indictment is insufficient because it does not show the county judge ordered the publication for the necessary four weeks in a selected newspaper. We cannot concur with this proposition. The indictment charges that it was published the necessary time in said newspaper; that it was a newspaper selected in the manner required by law by the county judge of Taylor county for the purpose of such publication; that it was published in the paper; and that the selection and publication was duly certified by the county judge, and certificate entered of record on the minutes of the commissioners’ court. We think that is sufficient allegation to cover that phase of the law.

It is also contended in a bill of exceptions that the court is wrong in permitting A. B. Dean, one of the alleged purchasers, to testify as to sales of whisky made to him by the defendant under the indictment, for the reason that said indictment is void in that it fails to allege that the sale “was not permitted by law,” which is a necessary allegation in the indictment, to make it valid; that the words, “except as permitted by law” being statutory, the contention is it must be alleged. This has been and is the opinion of the writer, and this court so held in the Keith Case, 58 Tex. Cr. R. 418, 126 S. W. 569, cited by appellant; but the Keith Case was overruled in the Slack Case subsequently decided, from which decision the writer wrote and filed a dissenting opinion. But the decisions since the Slack Case have been uniform from the majority of this court, that it is not necessary to negative the exceptions, that that is a matter of defense, and the burden of proof is on the defendant to show that he had the legal right to sell intoxicants under the statute. Dozier v. State, 62 Tex. Cr. R. 258, 137 S. W. 679; Bell v. State, 62 Tex. Cr. R. 242, 137 S. W. 670, 36 L. R, A. (N. S.) 98, Ann. Cas. 1913C, 617.

It is also contended, in another bill of • exceptions, that the court was wrong in permitting Deán to testify that there were three bottles of whisky in the transaction, whereas the evidence shows that he only bought two from appellant. Appellant excepted to the ruling of the court “in permitting the witness Dean to testify that there were three bottles, which was not the evidence; that there were only two sales tried to be shown by the state that the defendant made to the witness Dean and Russell. Further than that, the state had not shown by either witness that the defendant was engaged in the business of retail liquor dealer, unless the two sales sought to be proved constituted engaging in the business.” The indictment charges that appellant was engaged in the business, and in pursuit of that business made two sales to Dean as well as other persons to the grand jury unknown. The state introduced Russell, who testified that he bought whisky from appellant. It was not charged in the indictment that Russell bought from appellant. Appellant’s objection goes to the effect that this was not admissible. The rulings of this court are adverse to this contention. There are two things absolutely necessary to constitute this offense: First, that the accused was engaged in the business of selling intoxicants in prohibited territory; and, second, that he made at least two sales. This is statutory and necessary, of course, to be shown in order to constitute this offense. The fact that Russell was permitted to testify to a sale in connection with other facts tended to show as a circumstance that appellant was engaged in the business. Such has been the ruling of-this court.

Appellant also reserved an exception to the ruling of the court permitting Dean to testify that “he did not know who got the alleged bottle of whisky, when the evidence shows that the witness could not tell where the alleged sale of whisky went to,” after stating that his father, E. P. Dean, Bob Russell, and J. J. -Kuykendall' were present, and that any act or declaration on the part of any of the last-named persons could not bind the defendant for an alleged sale of whisky, and was prejudicial to the rights of the defendant, and was not competent testimony against him. The court qualifies this bill by stating:

“The court did not permit any statement that was not made in the presence and hearing of the defendant, and which did not constitute a part of the res gestse of the transaction, connected with money being furnished, and whisky being delivered as its result.”

With this qualification this bill shows no error. The facts, briefly stated, show that A. B. Dean and his father, E. P. Dean, came to Taylor from Jones county, reaching there Friday evening; that A. B. Dean said he was feeling badly and wanted some whisky. He went to a certain wagon yard and inquired for whisky and failed to get it. Finally appellant came, and at his request Dean furnished $2.50 and defendant gave him a bottle of whisky. The next day the Deans, Russell, and Kuykendall and appellant were together at the same place, and they secured another bottle of whisky from appellant, and later another one from Kuykendall. On Saturday evening they bought playing cards and went to appellant’s house and engaged in some sort of gambling. Dean said that he became unconscious, but waked up the next morning about 4 or 5 o’clock and found all his money gone. It is also in evidence that appellant had receipted for 12 bottles of whisky at the express office, and that Kuyken-dall had also receipted for a shipment of whisky, and on each occasion Kuykendall and appellant were together. When defendant receipted for his whisky, Kuykendall was present; and, when Kuykendall receipted for his whisky, appellant' was present. Under the decisions, there was no error in admitting the testimony about which this complaint is made, and that the evidence under these decisions will support the finding of the jury.

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


text:
    GLEASON v. STATE.
    (No. 3643.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.)
    1. Seduction <@=>34 — Elements.
    Where the prosecuting witness agreed to intercourse in return for defendant’s promise to marry her, such a transaction of barter of sexual favors for the promise contained none of the legal elements of a seduction.
    [Ed. Note. — Eor ojher cases, see Seduction, Cent. Dig'. §§ 58-60; Dec. Dig. <§=>34.]
    2. Seduction <@=>40 — Criminal Prosecution —Evidence.
    In a prosecution for seduction, the child of prosecuting witness should not have been brought before the jury, identified, and introduced as evidence.
    LEd. Note. — For other cases, see Seduction, Cent. Dig. §§ 72, 76, 79; Dec. Dig. <§=40.]
    Appeal from District Court, Jack County; F. O. McKinsey, Judge.
    Wilburn Gleason was convicted of crime, and he appeals.
    Reversed, and cause remanded.
    Stark & Stark, of Jacksboro, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of seduction, and he prosecutes this appeal.

Miss Maggie Davis, the prosecuting witness, testified:

“My name is Miss Maggie Davis; age 23 years now. I was raised near Cundiff; not born there, but came there when I was about two months old, and have lived there ever since. I am acquainted with Wilburn Gleason. On the night of November 28, 1912, he and I were coining, back from a literary entertainment. That night we had been to a literary entertainment at the house of Mr. M. L. Gleason, a brother of the defendant, at Cundiff, and we were coming back. This was about 11 o’clock. He began to want me to show him a good time. He said he would marry me if I would submit to him. That was the cause of my submitting. I would not have submitted to him if he had not promised that. I had intercourse with him in the buggy. Q. Just state the position he placed you in. A. Just pulled out the edge of the seat, and caused me to lie back. I bore a child after that, and the defendant is the father of that child. I was not married to the defendant at that time; not married to anybody. That was in Jack county, Tex. After that I told him my condition, and reminded him of his promise. He said that we would make it all right, not to tell the folks. I spoke to him about that frequently, every time I met him. He would just keep putting it off till long towards the last, and said he wouldn’t do nothing finally. He said I could go to hell or any other damned place I wanted to.
“The defendant went with me right smart and calme to see me lots. He came to see me off and on for about two years. Pie would take me to parties, places of amusement, church, and parties, and visited me lots. Q. State whether or not the defendant, when you told him about your condition, said he had ruined other girls. A. He did. He said that he had had intercourse with other girls; that I was not the only one. He called the name of one girl that he had intercourse with. I don’t remember any other statement in that connection. I believe that is about all he said he had intercourse with other girls. At the time of my confinement the defendant was up at their old place, about 150 yards from our house. He left the county immediately after that. I don’t know where he went. He was there the day the baby was born, and left immediately after. He returned to Jack county about a week or two before Christmas, 1913.”

This is all of her testimony on direct examination, and if true and corroborated in every detail it would not support a conviction. She simply says: “He began to want me to show him a good time. He said he would marry me if I would submit to him. This was the cause of my submitting.” This was trading for a promise of marriage, and as she carried out her part of the trade, appellant ought to have carried out his part; but such evidence is what is termed “barter and sale,” and does not tend to show any of the elements of legal seduction. Spenrath v. State, 48 S. W. 192; Gorzell v. State, 43 Tex. Cr. R. 84, 63 S. W. 126.

The evidence in this case being wholly insufficient to sustain the conviction, as the young lady’s testimony, if true, as a whole does not make a case of seduction, in that it does not show any of those acts, wiles, and blandishments so necessary to win the heart of a woman, and cause her to surrender her virtue to him, but simply shows a plain promise to marry in exchange for sexual favors, it will be necessary to reverse the case. And as we will reverse, and the state may be able to adduce additional testimony and may desire to further prosecute the case, we will say that the child should not have been permitted to have been brought before the jury, identified and-introduced as evidence as was done in this case.

The judgment is reversed, and the cause remanded.


text:
    HOWARD v. STATE.
    (No. 3578.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.
    On Motion for Rehearing, June 25, 1915.)
    1. Statutes <@=>124 — Subject and Title— “Jurisdiction.”
    The provision of the act creating criminal district court No. 2 for Dallas county (Acts 32d Leg. 1st Called Sess. e. 19), autborizing transfer of causes to such court from court No. 1, is, as required by Const, art. 3, § 35, within the title, “An act to create an additional criminal district court for Dallas county,” and to “prescribe the jurisdiction”; “jurisdiction” meaning the authority of which judicial officers take cognizance of and decide cases, the right to adjudicate concerning the subject-matter in any given case.
    [Ed. Note. — For other eases, see Statutes, Cent. Dig. §§ 184-186; Dec. Dig. <§=>124.
    For other definitions, see Words and Phrases, First and Second Series, Jurisdiction.]
    2. Statutes <g=5 — Extra Session — Authority oe Legislature — Governor’s Submission.
    The Governor’s authorization to the Legislature to create an additional criminal district court for Dallas county authorized it to define the court’s jurisdiction.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 4; Dec. Dig. <§=>5.]

      3. Jury <§=66 — Objection to Panel — Drawing erom Wheel.
    The jury list having been drawn from the wheel, as prescribed by the statute, slight subsequent irregularities, as failure to properly fill •out or certify the blanks would not vitiate the jury panel absent a showing that some injury might or could be done defendant thereby.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 283-290, 306; Dec. Dig. <§=66.]
    4. Criminal Law <§=603 — Continuance — Motion.
    The allegations of a motion for continuance that defendant had just learned that J., indicted for the same offense, had turned state’s evidence, and that J. had, under another name, unknown to defendant, been convicted of a felony, in a county also unknown to defendant, and had never had his citizenship restored, are too vague and indefinite.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. <§= 603.]
    5. Burglary <§=28 — Indictment — Ownership.
    The carrier had such possession _ that an indictment for burglarizing a car containing' potatoes properly alleges ownership of them in it not merely where after arrival at destination the real owner was permitted to show them to prospective purchasers and sold them but after the freight was paid and the bill of lading surrendered and part of the potatoes checked out by its representative; it still being liable as warehouseman for the remainder.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 67-78; Dec. Dig. <§=28.]
    6. Criminal Law <§=449 — Opinions — Possession.
    Opinions as to who, under given facts, had possession of potatoes are inadmissible; this being a question of law.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1034-1037, 1040-1057; Dec. Dig'. <§=449.]
    7. Criminal Law <§=448 — Evidence—Opinion or Recital oe Facts.
    It is not an expression of opinion, for one who had examined and observed, to state that potatoes he saw in a car and at another place were the same potatoes and in the same kind of dirty sacks, and that the sacks were sewed with the same character of twine, and branded the same.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. <§=448.]
    8. Criminal Law <§=871 — Verdict—Signing by Foreman.
    The foreman having signed the verdict, it was not vitiated because he did not write “foreman” in full, but an abbreviation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2079-2081; Dec. Dig. <§= 871.]
    9. Criminal Law <§=1170% — Trial — Unresponsive Answer — Exclusion.
    Error cannot be predicated on an answer of a witness; it having been unresponsive and excluded on objection.
    [Ed. Note. — For other cases, see Criminal La.w, Cent. Dig. §§ 3129-3135; Dee. Dig. <§= 1170%.]
    10. Criminal Law <§=711 — Trial—Limiting Argument.
    Where the issues are few and not complicated and the testimony short, limiting each side to 45 minutes for argument is not an abuse of discretion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1657; Dec. Dig. <§=711.j
    11. Criminal Law <§=1091 — Conduct oe Judge — Absence—Losing Control oe Trial.
    The bill of exceptions shows that the judge lost control of the trial, constituting reversible error in felony cases, it showing that during the prosecuting attorney’s opening address, in which he used fervent and violent language, the judge was in another room, talking, and could not hear what was taking place in the courtroom, and that defendant’s counsel, desiring to take an exception, had to go out for the judge, and also reciting that the judge lost control of the trial.
    [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.]
    12. Burglary <§=24 — Indictment—Day or Night.
    An indictment, simply charging burglary, without stating whether committed by day or night, is sufficient for daytime burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 34; Dee. Dig. <§=24J
    13. Burglary <§=9 — Entry—Means.
    Entry for burglary may be either by force, threats, or fraud, and need not be by all three.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 6-12; Dee. Dig. <§=9.]
    14. Criminal Law <§=814 — Instructions — Evidence.
    Requested charges as to issues not raised by the evidence are properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833,1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <§=814.]
    15. Criminal Law <§=829 — Instructions— Repetition.
    Requested charges, being covered by the main charge, need not be given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <§=S29.]
    16. Criminal Law <§=1176 — New Trial-Motion — Refusal oe Reading.
    Refusal to permit reading of the motion for new trial was not error, it containing only matters ruled on during trial, and being overruled, thus giving defendant the benefit of all grounds alleged in it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3190, 3191; Dec. Dig. <§= 1176.]
    17. Burglary <§=23 — Indictment.
    It is not fatal to an indictment for burglary that it is alleged defendant broke and entered the car with intent to take “corporeal property,” omitting “personal”; it being in the same count alleged he took from it corporeal personal property, with intent to appropriate it to his own use and deprive the owner of its value.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 63-66; Dec. Dig. <§=23.]
    On Motion for Rehearing.
    18. Criminal Law <§=1112 — Appeal—Con-CLUSIVBNESS OE RECORD — IMPEACHING BILL oe Exceptions.
    A bill of exceptions cannot be impeached by affidavit of the trial judge, it not being contended it is not a correct copy of the original, or was obtained by fraud, but merely that the judge read only the first part of it.
    [Ed. Note. — For other cases, see Criminal Taw, Cent. Dig. § 2896; Dec. Dig. <@=>1112.]
    Appeal from Criminal District Court, Dallas County; W. D. Crawford, Jr., Judge.
    Fletcher Howard was convicted, and appeals.
    Reversed and remanded.
    McCuteheon & Church, of Dallas, for appel-. lant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of burglary, and his punishment assessed at two years’ confinement in the state penitentiary.

There are two criminal district courts in Dallas county, No. 1, presided over by Judge Seay, and No. 2, presided over by Judge Crawford. It appears that the indictment in this case was returned into criminal district court No. 1, and by that court transferred to criminal district court No. 2, where it was tried. Several bills of exception were reserved to the authority of criminal district court No. 2 to try the cause.

It is first claimed that the portion of the act creating criminal district court No. 2 (Acts 32d Leg. 1st Called Sess. c. 19), which gave authority for these two courts to transfer causes from one court to the other, is void; it being contended the caption of the act did not recite that it gave authority to transfer causes. Section 2 of the act reads:

“From and after the time this law shall take effect the criminal district court of Dallas county, and the criminal district court No. 2 of Dallas county shall have and exorcise concurrent jurisdiction with each other in all felony causes and in all matters and proceedings of which the said criminal district court of Dallas county now has jurisdiction; and either of the judges of said criminal district court may in their discretion transfer any cause or causes that may at any time be pending in his court to the other criminal district court by an order or orders entered upon the minutes of his court; and where such transfer or transfers are made the clerk of such district court shall enter such cause or causes upon the docket to which such transfer or transfers are made, and, when so entered upon the docket, the judge shall try and dispose of said causes in the same manner as if such causes were originally instituted in said court.”

This gives the two courts concurrent jurisdiction of all criminal offenses of the grade of felony, and specifically authorizes either court to transfer any cause to the other. The caption reads as applicable to this question:

“An act to create an additional criminal district court for the county of Dallas, and to prescribe the jurisdiction thereof; * * * to limit and conform thereto jurisdiction of the (present) criminal district court of Dallas county; and to repeal all laws * * * in conflict herewith.”

Section 1, art. 5, provides that:

“The Legislature may establish such other courts (than those named) as it may deem necessary, and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district [court] and other inferior courts thereto.”

If under this provision of the Constitution the Legislature had authority to create criminal district court No. 1, it would also have authority to create criminal district court No. 2, for its authority is general to establish such other courts as the Legislature may deem necessary, and if the Legislature deems this court necessary, then authority to create it cannot be questioned. And when the caption of the acts provides for the creation of the court and also to “prescribe its jurisdiction,” what other or additional words were necessary to give notice to the world that in the body of the act will be found provisions which relate to and prescribe what cases may be acted on and tried by that court. Mr. Bouvier in his Law Dictionary defines “jurisdiction” to mean:

“The authority by which judicial officers take cognizance of and decide causes. The right to adjudicate concerning the subject-matter in any given case.”

Section 35, art. 3, only requires that no bill shall contain more than one subject, which shall be expressed in its title. This act relates only to one subject, the creation of another criminal district court and prescribing its jurisdiction; that is, what authority and power it shall possess. As said by our Supreme Court:

“Only the general or ultimate object is required to be stated in the title, and not the details by which the object is to be attained. Any provision calculated to carry the declared object into effect is admissible.” Johnson v. Martin, 75 Tex. 40, 12 S. W. 321; Snyder v. Compton, 87 Tex. 378, 28 S. W. 1061; Doeppenschmidt v. Railway, 100 Tex. 532, 101 S. W. 1080.

And this question is discussed by this court in Ex parte Abrams, 56 Tex. Cr. R. 467, 120 S. W. 883, 18 Ann. Cas. 45, and Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176, and it was there held:

“Suppose there be more than one object mentioned in the act. If they be germane or subsidiary to the main subject, or if relative directly or indirectly to the main subject, have a mutual connection and are not foreign to the main subject,” the act is not unconstitutional.

The creation of the second criminal district court in Dallas county was deemed necessary on account of the condition of the docket of criminal district court No. 1, the number of cases pending, etc., and the creation of a second court would have afforded but little, if any, relief, if authority to transfer causes to that court had not been contained in the bill. The act itself recites that “the great accumulation of cases upon and the crowded dockets of the criminal district court of Dallas county renders necessary immediate relief by the creation of a new criminal district court for said county,” and the object and purpose of the act was to create another court to assist in trying causes then pending, as well as other cases as they might arise. We hold that under the provisions of tlie act in question criminal district court No. 1 had authority to transfer this cause to district court No. 2, and that court had authority to try said cause, and the court did not err in refusing the motion to retransfer the cause to criminal district court No. 1, and did not err in overruling the plea to the jurisdiction of criminal district court No. 2, and did not err in overruling the motion in arrest of judgment, on the grounds above stated.

The Governor’s submission of the question to the Legislature was comprehensive enough to authorize that body to create the court and define its jurisdiction, “The Governor specifically authorized the Legislature to create an additional criminal district court for Dallas county,” which would necessarily carry with it the authority to define its jurisdiction.

The motion to quash the jury panel for the week was properly overruled. The recitals in the bill reserved to the action of the court in overruling the motion show that Judge Crawford, Mr. Barnes, deputy clerk of the court, and Paul Adair, a deputy sheriff, were present when the list of jurors was drawn from the wheel. This was the main object intended to be accomplished by the jury wheel law—that the names of all the jurors should be placed in the wheel, and the list drawn from the wheel in the presence of the judge, the clerk or his deputy, and the sheriff or his deputy. This is shown to have been done, and as that was done, some slight irregularity subsequent to that time would not vitiate the panel, unless it was shown, or attempted to be shown, that some injury might or could have been done appellant by the irregularity. This is not even suggested by the bill. The bill shows it was the jury drawn for that week of the court from the wheel as prescribed by law; that the blanks were not properly filled out or certified to would be an irregularity that would not vitiate the panel of jurymen drawn for that week of the court. Such provisions of the law have been held to be directory and not mandatory. Roberts v. State, 30 Tex. App. 291, 17 S. W. 450; Jackson v. State, 30 Tex. App. 664, 18 S. W. 643. As stated before, the object and purpose of the law was that in counties of certain population, or containing cities of given population, the list of jurors should be placed in a wheel and drawn therefrom in the manner prescribed by law. It is not contended that this was not done in this case.

After the above motions had been overruled, appellant filed a motion for continuance, alleging that he had just learned that Dave Johnson, who was also indicted for the burglary with which appellant was charged, had turned state’s evidence; that Dave Johnson had been convicted of a felony, served a term in the penitentiary, and had never had his citizenship restored. The allegations would demonstrate that appellant did not know these facts, but was simply relying on information some one furnished him, without giving the name of his informant. In his application he states that Johnson was convicted under another name, and shows he does not know the name under which he was convicted, if convicted. The application also shows that appellant was unaware of the county in which Johnson had been convicted, if ever convicted. The allegations are too vague and indefinite, and the court did not err in overruling the application. It also appears that Dave Johnson testified as a witness in the case, and no question was propounded to him which would elicit the fact that he had theretofore been convicted of a felony in any county, or under what name he was convicted, if convicted. On the issue that appellant did not know Dave Johnson had turned state’s evidence, it seems to us the least diligence on his part would have ascertained that fact. On the day of his arrest, November 25th, Johnson made a confession to the officers, which was reduced to writing; this was lost by the county attorney, and on January 28th he made another statement or confession. Thus it is seen that if appellant had been diligent he could have ascertained what the testimony of Dave Johnson would be—in fact his application for a continuance shows that he did know what his testimony would be, for he says:

“Your defendant says that Dave Johnson will swear that he and this defendant went to the alleged burglarized railroad oar, and that this defendant opened the door to same and took from said oar seven sacks of potatoes, which potatoes were taken by them to the grocery store of L. W. Gardiner in the city of Dallas, Dallas county, Tex., in a one-horse wagon which this defendant had induced the said Dave Johnson to obtain for this purpose; that these potatoes were found in the possession of defendant at the time he was arrested. Dave Johnson will swear that defendant burglarized the said car and stole the said potatoes as alleged in the indictment, all of which is material to the state’s case.”

This is exactly what Dave Johnson did swear on the trial, boiled down to a few words. .

The appellant was charged with burglarizing a oar containing potatoes. The evidence would show that the car of potatoes had been consigned to A. F. Hardie & GO., Dallas, Tex., to be disposed of for the benefit of the shipper, an Idaho firm. It appears that the original purchaser had refused to accept the car of potatoes, and the commission house of A. F. Hardie & Co. had been authorized to dispose of the car of potatoes for the Idaho firm. On November 24th A F. Hardie carried a representative of R. B. Hardie Produce Company (J. T. Hardie), and showed him the car of potatoes. The freight had not been paid, nor bill of lading surrendered at this time, nor was the bill of lading surrendered on that day, or freight paid. The fact that A F. Hardie was permitted to show prospective purchasers the car of potatoes would not oust possession of the railroad company. The railroad company, when it accepted the car of potatoes for transportation, was in possession of them, and had a qualified ownership in them until the delivery of the potatoes to the consignee or person authorized by him to receive them. It became its duty to deliver them to the real owner, and a sale of the potatoes by the real owner to a third party while in possession of the railroad company under its contract of shipment and transportation would not disturb the possession of the railroad company, and the court did not err in so holding. It appears that after A. P. Hardie had contracted to sell the potatoes to R. B. Hardie Produce Company on the 24th; on the 25th of November (some time during the day), the freight was paid by A. P. Hardie, and bill of lading surrendered, the hour the payment was made not being shown, but this would be immaterial in the light of the facts stated in the bill of exceptions. It does not so airpear in the statement of facts, but in a bill of exceptions (and this governs) it is recited that prior to the time appellant and Dave Johnson broke and entered the car and took therefrom seven sacks of potatoes, Mark Murphy, a representative of R. B. Hardie Produce Company, had hauled three wagonloads of the potatoes. The question is, Did the fact that a portion of the potatoes had been hauled out of the ear oust the possession of the railroad company of that portion of the potatoes which had not been taken out of the car? The railroad was under obligation under its contract of shipment and transportation to make an actual delivery of the property to the consignee, or some one authorized by him to receive the property. The payment of the freight and delivery of the bill of lading to the railroad did not transfer possession of the property to the consignee, but only gave him the right of possession, and placed the railroad company under obligation and made it its duty to make a delivery of the property. If it had refused to do so, it could have been compelled to make a delivery, but a delivery had not been made by the mere payment of the freight. M. P. Ry. Co. v. Haynes & Co., 72 Tex. 175, 10 S. W. 398. Under certain conditions its liability as carrier might cease, but it would have possession as warehouseman until actual delivery was made.

It is a matter of common knowledge that when a consignee of a car load shipment pays the freight and delivers the bill of lading, the railroad then sends a representative to make a delivery of the goods, and to check them off as they are delivered. If the conveyance of the consignee will not haul all the car load, the car is closed until the wagons return, and then the railroad proceeds to cheek out the remainder of the car load. The bill of lading was a mere receipt and contract issued by the railroad to the shipper, evidencing that it has property of the shipper in its possession under contract to carry and deliver it to the consignee. When the consignee carries the bill of lading to the railroad company and pays the freight, the railroad company is then under obligation to make a delivery as it contracted to do. Was it deprived of possession of the entire car load by making a physical delivery of a portion thereof, or did it retain that character of possession of the part not delivered which would support an allegation that it was the owner under articles 858 and 863? We think so. Hutchinson on Carriers (3d Ed.) § 666, wherein it is stated as a rule of law that judicial notice will generally be taken of the several modes of delivery as matters of law as to usage. We have, however, in this case, the positive testimony of Mr. Sharp that he checked these potatoes as delivered.

Theft is defined to be the fraudulent taking of personal property belonging to another from the possession of some person holding the same for the owner of the property. Possession is defined, in this sense, as the one who exercises actual control, care, and management. These words do not mean that if there is a loss of the property, as contended by appellant, the person in possession would be legally liable for its value. Of course, if the facts showed the possessor was legally liable for its value, there could be no question that ownership might be alleged in such possessor, but that is not the only test. If A. leaves property in the custody of B. until he calls for it, and B. uses the same care of the property as he does his own, and it is destroyed by fire, or lost without B.’s fault, he is not liable to A. for the value of it, yet he would have that care, custody, and management of the property which would authorize ownership to be alleged in him under our statutes governing theft And while the railroad was under obligation to make a delivery of all the potatoes in the car to the consignee, we think perhaps, as appellant contends, that if all the potatoes were in fact in the car at the time the owner paid the freight and took out a portion of them, if subsequently the car had burned, the railroad would not have been liable for the value of those burned, if it used due care to prevent the damage — there had been a symbolic constructive delivery such as would relieve it from liability in case of damage or loss without negligence on its pari) — for it might be that circumstances showed its possession was not that of a carrier, but warehouseman. But the remainder of the potatoes were still in the house or car of the railroad company, and if lost or destroyed by the want of proper care, or by the negligence of the railroad company, we are inclined to think it would be liable to the owner in case of loss as warehouseman; for it knew by its being its custom to check the actual delivery of the property that the remainder, not physically delivered, was left in its car and in its possession, to be checked out when the owner came for the remainder of the potatoes, and it was such possession as that ownership might be alleged to be in it in a ease of theft and tlie court did not err in so Holding. Hutchinson on Carriers, § 006. This disposes of a number of the bills of exception, and renders it unnecessary to take up each one of them and discuss them separately.

The court admitted all evidence of the facts, and it was not error to exclude the opinion of witnesses as to whose possession the potatoes were in under the facts, nor whose loss it would be in case of loss. This would be a question of law on the facts, and this the court should pass on.

By another bill it is shown that T. C. Sharp was permitted to testify:

“I found some potatoes at the city hall that were in .possession of Chief Detective Tanher. At that time he had the potatoes there, seven sacks. Yes, sir; I noticed the kind of sacks they were in; I noticed the particular sacks and the potatoes at the city hall; also that was in the car. I found a comparison. You asked me how did they compare. The sacks that the potatoes were in at the city hall and the sacks that the potatoes were in at the car, how did they compare? Well, they were the same potatoes as was in the same sacks, dirty potatoes, so they contained the same kind of potatoes, the sacks were all the same. As to the kind of marks or brands that were on the sacks, well there were two sacks, one sack that I found in the car had a Los Angeles stamp on it, branded with a star, and one other at the city hall.”

Johnson had testified that he and appellant went to this car; that appellant opened it and handed him out seven sacks of potatoes ; that by instructions of appellant he had carried the potatoes to a Mr. Gardiner and sold them to him; that appellant was nea'r and he called to him to help unload the potatoes, and as he came over .to do so the officer arrested both of them, and carried the potatoes to the city hall. The officer making the arrest corroborated Johnson as to seeing him carry the potatoes to Gardiner; the presence of appellant; the fact that Johnson called to him, and as he came to assist in unloading the potatoes he arrested them both and carried the potatoes to the city hall. Under such circumstances we think it perfectly legitimate for Mr. Sharp to testify that he had seen the potatoes in the car (in fact was the railroad official who checked out the potatoes to Hardie), and, from an inspection of the potatoes in the ear, and those in the city hall, “that they were the same potatoes and in the same kind of dirty sacks.” This is all the testimony objected to on this point, and when we read the entire excerpt from his testimony copied above, it is shown he was testifying to facts he observed, and not giving an opinion. Mark Murphy, the man who hauled the potatoes from the car for Hardie, also testified:

“With reference to the sacks I was taking from the car, the sacks at the city hall compared with them the same, and were sewed with the same twine and branded the same. There was a sugar sack amongst them I got at the city hall just the same as the one we had at the house; they were sewed with grass twine.”

This testimony was also admissible. He testified both the sacks he hauled from the car and the sacks at the city hall were sewed with grass twine — the same character of twine being on both; that they were branded the same, etc. This is not an expression of an opinion, but a recitation of facts coming within his observation.

The criticism that the verdict of the jury was not signed by the foreman is without merit. A photograph of the verdict is in the record, and it shows to have been signed by “R. L. Houston, Form.” If the word “foreman” had not been placed below the name of Mr. Houston, or an abbreviation of the word, when the verdict was signed by him, the fact that he was foreman could be shown otherwise. It is not questioned that he was foreman of the jury, and that he did not write the word “foreman” in full below his signature but in abbreviated form, does not vitiate the verdict.

In another bill is is shown that Mr. Hardie, while testifying, stated that said potatoes at the city hall were identified as the ones that came from the car. The bill shows:

“Said answer was not responsive to the question asked the witness, and hence said answer could not be foreseen; that as soon as the witness did so answer, appellant requested the court to exclude said answer from the consideration of the jury.”

This the court did, and as the court excluded the testimony at the very time it was objected to, the bill presents no error.

It is made to appear that the court limited the argument to 45 minutes to each side. Appellant objected to this, contending he should be granted more time. The issues were not at all complicated. The state’s testimony is that appellant, on the morning of November 25th, went to Dave Johnson and asked him to get a wagon; that he had some potatoes he wanted him to haul; that Dave got a wagon from Z. Giddings, and Dave says he and appellant went to the car and appellant opened the car, and handed the potatoes to him, and he placed them in the wagon; that at appellant’s instance he carried the potatoes to Gardiner to sell, appellant coming along on the opposite side of the street; that he sold the potatoes to Gardiner, and called appellant to help unload them, when they were arrested. Three witnesses were introduced who testify that appellant did come and get Dave to get the wagon. Z. Giddings, for defendant, says Dave came to get the wagon, and told him he was going to haul hay; did not say anything about potatoes; that he did not see appellant when Dave got the wagon. The officers corroborate Dave about having the potatoes at Gardiner’s and calling to appellant. They then testify that they carried the potatoes to the city hall. There was evidence then introduced as to the identity of the potatoes being the potatoes that came from the car, only two witnesses being introduced on that issue, both for the state. Appellant did not testify, and called but two witnesses to the facts in the case. Giddings testified that Johnson told him he was going to haul hay with -the wagon, and J. T. Hardie to prove that he examined the car of potatoes on the 24th and agreed to purchase thorn from A. P. Hardie ' on that day, and that the firm for whom he purchased them began to haul them on the 25th, prior to the time of the burglary, this being on the issue of whether or not the railroad company had such possession as would authorize an allegation of ownership in them. There were but 10 witnesses to any facts in the case, and their testimony embraces only about 20 pages of typewritten matter. As the issues were not complicated, we cannot say the court abused the discretion confided in him. We suggest that the trial court should never restrict the argument so that a fair and full presentation of the facts and deductions therefrom may not be made, and if the issues were at all complicated, or the testimony of any great length, we would feel inclined to hold the time too short. On Dave Johnson’s testimony the issue was, was he worthy of belief? and if worthy of belief, was his testimony corroborated in material parts? The next is, Who was in possession of the potatoes? These are all the issues made by the evidence, and it seems to us that three-quarters of an hour was ample time to discuss those issues to the jury and the evidence bearing thereon. As said in Morrison v. State, 40 Tex. Cr. R. 496, conduct of trial, or question of argument, is largely in the sound discretion of the trial court. Taylor v. State, 56 S. W. 69. The bill before us shows no facts which would raise the issue that the court had improperly limited the argument in this case.

The next bill complains that the judge lost control of the court, in that the trial judge, while state’s counsel was making his opening address to the jury, went into an adjoining room and was talking to the county attorney, who was not engaged in the trial of this case. It appears that counsel for the defendant desired to reserve an exception to the remarks of the assistant county attorney who was addressing the jury, and had to go and get the judge. In Scott v. State, 47 Tex. Cr. R. 568, 85 S. W. 1060, 122 Am. St. Rep. 717, this court held, mere temporary absence, although he did not hear all the proceedings, in the absence of injury shown, would not present reversible error. And in White v. State, 61 Tex. Cr. R. 498, 135 S. W. 562, this court held:

“It is also insisted that it was reversible error for the judge of the court, during the argument of the case by the attorneys for appellant, to absent himself from the courtroom, and this without in any way showing that anything occurred during his absence to the detriment of the appellant. We are cited to the case of Bateson v. State [46 Tex. Cr. R. 34] 80 S. W. 88. In that case it was clearly shown that many things occurred during the absence of the court from the room that were objectionable, and that if the court had been present, exception would have been made thereto at the time, but that they were prevented from making such objection because of the absence of the judge, and to have gone and hunted him up would have unduly interrupted the case, and that of itself and the calling attention thereof to the jury would have been detrimental to the appellant. What was said with reference to the absence of the judge during the trial in that case must be construed in connection with what was shown to have therein transpired. We do not understand that in that case the temporary and short absence of the judge from the courtroom, when he is in easy access in an adjoining room, would, without any prejudice or injury to the appellant, authorize or justify a reversal on that account alone. The judge should, of course, remain in the courtroom or in such proximity, and view of the jury and parties engaged in the trial, that he can at all times be approached, and control the proceedings, and we cannot understand why a judge should absent himself from the courtroom and permit the trial to continue. If necessity compels his retirement for any purpose, he should suspend the proceedings until his return. What we say on this point is that, as no injury whatever was shown to the appellant by the judge absenting himself at this time, a reversal of this case would not be authorized on that account alone.”

It is thus seen that it is held that it is improper for the trial judge to absent himself from the courtroom at any stage of the trial (and this we would emphasize), yet reversible error is not presented unless something is shown to have occurred that would injure, or be calculated to injure, appellant, and this appears to be the correct rule in all cases except in cases where the death penalty may be assessed. However, in this case the court in the bill certifies—

“he left his seat upon the bench and went from the courtroom and went into another and different room from the courtroom without the knowledge or consent of the defendant or his attorneys, and lost control of the trial, and was removed such distance that he could not and did not hear the argument.”

The bill further recites that during his address to the jury the county attorney said, “I knew he would be corroborated — I had this statement I took from him just like he told it to me” — that counsel arose to except to such remarks, and discovered the judge was absent; that he was compelled to go in search of the judge, ana leave the county attorney “making a fervent and violent argument to the jury, which he could not hear and object to, being in search of the trial judge.” As before stated, every temporary absence from the court, while to be condemned, will not be cause for reversal of the case, but when the bill shows that the judge absented himself from the courtroom, where he could not be reached by calling, and where he himself certifies he “lost control of the trial,” and the bill does not show all that was said, on account of the attorney for the defendant being compelled to go in search of the judge, but on the other hand, affirmatively shows that during said trial the county attorney was using “fervent and violent language,” we cannot say that no injury resulted. The weight of authority seems to hold that in felony cases, where the judge loses control of the trial, reversible error is presented. On the other hand, if only temporary absence is shown, and nothing happens during the time that could have injured the person on trial, it presents error, but not reversible error. The length of time of absence of the judge is not shown in the bill, only that he was in another room talking, and that he could not an'd did not hear what was taking place in the courtroom. Under the circumstances shown in this case, we are of the opinion, as the bill shows the judge lost control of the trial, that appellant is entitled to a new trial.

The only exception reserved to the charge is that as the indictment simply charges burglary, without stating whether it was committed in the daytime or night, it was improper for the court to instruct the jury that if they believed beyond a reasonable doubt that appellant did, in the daytime, commit the offense, etc., they would convict. Appellant contends that as the indictment simply charged burglary, without stating whether it was in the daytime or night, the court erred in applying the law to the facts in his charge. It is not necessary for the indictment, in an ordinary case of burglary, to charge whether it was committed in the daytime or in the night. Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395; Conoly v. State, 2 Tex. App. 412; Summers v. State, 9 Tex. App. 396; Gonzales v. State, 12 Tex. App. 657. The indictment being sufficient to charge the burglary in the daytime, and the evidence conclusively showing that, if the burglary took place, it was in the daytime, the court correctly applied the law to the facts.

Appellant presented a special charge requesting the court to instruct the jury “that if appellant did enter the ear, it would not be sufficient if he entered same by force or threats, or fraud, or by any two of said means, but all three of said means must accompany said entry.” This is not the law— proof that he made the entry by either of said means would authorize a conviction. The statute authorizes a conviction if entry is made by either of said means.

There is no evidence that appellant had the waybill or freight bill to this car of potatoes; consequently the court did not err in refusing to give the special charge raising that issue. Issues not raised by the testimony should never be submitted to the jury. The court having instructed the jury that Dave Johnson was an accomplice, and that his testimony must be corroborated, in language frequently approved by this court, it was not necessary to give the special charges requested by defendant on this issue. The other special charges requested, in so far as they are the law of the case, were covered by the court’s main charge.

This leaves but two questions to be disposed of: First, Did the court err in refusing to permit appellant’s counsel to read to him his amended motion for a new trial? We have read the very lengthy motion, and in it is assigned no matter that was not complained of during the trial of the case. It is but a repetition of the matters that were complained of in the rulings of the court during the trial, and sets forth in full the various motions filed, to the jurisdiction of the court, the motion to retransfer the cause, the motion asking the court to hold as unconstitutional that portion of the law authorizing transfer of causes from criminal district court No. 1 to criminal district court No. 2, etc. No new matter is set up in the motion, but only those matters which had been ruled on by the trial court during the trial. If any new matter had been set up in the motion, and the court’s attention called to it, we are satisfied the trial court would have heard him on that portion of the motion. We suppose when the various questions were raised during the trial, the court heard the motions read, and heard appellant on the other matters at the time they occurred, and, having ruled on each and every ground set up in the motion for new trial, the fact the court refused to hear appellant read the motion would not present such error as would call for a reversal. Of course, this court necessarily must read the motion as well as the record as a whole, and if the motion points out any error, it would be our duty to reverse the case, even though the trial court had heard it read. The trial court overruled the motion, and by so doing appellant was given the benefit of all grounds alleged in the motion.

Appellant’s motion to quash the indictment contains one ground not hereinbefore discussed, and that is that in a portion of the indictment, it is alleged that appellant broke and entered the car with the intent to take from said car “corporeal property,” instead of alleging that he broke and entered the car with intent to take “corporeal personal property.” Of course those provisions of the Code under which appellant was prosecuted only punishes for the intent to take personal property and not real property, and if this was the only allegation contained in the indictment, it might be contended that the indictment did not allege whether it was personal or real property that appellant had the intent to take, but in the same count it is alleged that appellant did take from the car corporeal personal property with the intent to appropriate same to his own use and benefit, and with the intent to deprive the owner of the value thereof. Under such circumstances we do not think the omission of the word “personal” in one place where it would have been proper to insert it, when the indictment as a whole would show that appellant was charged with breaking and entering a ear, with intent to steal personal property, and that he did take therefrom personal property belonging to another, with the intent to appropriate same to his own use and benefit, would be fatal to the indictment.

There are a great many bills of exception, and we have carefully read and reviewed each of them; and, in our opinion, no error is pointed out which would call for a reversal of this case, other than the bill which shows the judge lost control of the trial.

The judgment is reversed and the cause remanded.

On Motion for Rehearing.

The state has filed a motion for rehearing herein, and attaches the affidavits of Hon. W. L. Crawford, Jr., district judge, Mike T. Lively, county attorney, and A. O. Allen, assistant county attorney, all of whom swear that the trial judge did not lose control of the court, and Judge Crawford says, had his attention been called to that portion of the bill so reciting, he would not have approved the bill. If the bill of exception does not correctly recite the facts, it is to be regretted, but it has always been an unbroken rule of decision that the record on appeal cannot be impeached by ex parte affidavits. It is not contended that the bill in the record is not a correct copy of the original bill now on file in the district clerk’s office, or that any fraud or artifice was practiced in securing the approval of the bill by the trial court; only that the judge only read that portion of the bill “containing the remarks complained of,” and did not read the remainder of the bill. If this bill of exception could be thus attacked, then in every case filed here on appeal, either the state or defendant could attack the record by ex parte affidavits, and this court turned into a trial court, witnesses subpoenaed from all portions of the state, and then testimony heard, in order that we might determine the correctness of the contention. This is not allowable; and, this being the only ground in the motion for rehearing, it Is overruled.
      <@=>l<'or other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes