author: DAVIDSON, J.

text:
    LUNA v. STATE.
    (No. 3788.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Ceiminal Law &wkey;>1092, 1099 — Bills of Exception — Piling after Adjournment— Necessity fob Order.
    Where the statement of facts and bills of exception in a criminal case were filed after ad: journment of court, without an order entered for the purpose, they will riot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. &wkey;1092, 1099.]
    2. Criminal Law <&wkey;866 — Misconduct of Jury — Verdict by Lot.
    Where, in a prosecution, for theft, to decide the term of imprisonment the jurors agreed to' put down what each juror thought was right, add it up, and divide by 6, which resulted in 7% months as the punishment, but, after debating the matter, the jury concluded not to follow such result, but to give defendant 6 months’ imprisonment, and so wrote their verdict, in the absence of showing that before their first attempt to settle the verdict by lot the jury bound themselves to stand by it, such conduct of the jury presented no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2063; Dee. Dig. <&wkey;866.]
    Appeal from Brooks County Court; J. A. Brooks, Judge.
    Cayetano Luna was convicted of theft, and he appeals.
    Affirmed.
    J. W. Wilson, of Falfurrias, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for the theft of a gun; the allegation being that the gun was worth $15.

The statement of facts and bills of exception cannot be considered. They were filed after adjournment of the court, and without an order entered for that purpose; therefore they will not be noticed in the disposition of the ease. This about disposes of the record and questions presented in it.

There is one question that perhaps we might notice; that is, the misconduct of the jury, or rather the fact that the jury determined their verdict by lot. This is set out in a bill of exceptions; but it is also made a part of the motion for a new trial, with appended affidavits. The affidavits show that, after the jury retired to consider their verdict, they had not agreed or determined among themselves exactly the length of imprisonment in the county jail. To settle this they agreed among themselves to put down what each juror thought was right, add it rap, and divide by 6. This brought 7% months as the punishment. After discussing the matter a while, they concluded not to follow this, but decided they would give appellant 6 months in the county jail, and so wrote their verdict. It is not shown that the jury, before they added up and divided the number of months, bound themselves to stand by this verdict or quotient. Instead of giving appellant 7% months, they finally, after discussion, agreed to give him 6 months.

We notice this, because it may be it should be considered independent of the bill of exceptions, on account of the affidavits attached to the motion for new trial. But as presented there is shown no error from any viewpoint.

The judgment will, be affirmed.


source: Caselaw Access Project

author: PRENDBRGAST, P. J.

license: Public Domain

text:
    PARK v. STATE.
    (No. 3630.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.
    On Motion for Rehearing, Nov. 17, 1915.)
    1. Larceny <&wkey;55 — Evidence—Sufficiency.
    Evidence held to sustain a conviction of theft.

    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dee. Dig. &wkey;>55.]
    On Motion for Rehearing.
    2. Criminal Law <&wkey;200 — Separate Offenses — Burglary and Larceny.
    Under Pen. Code 1911, arts. 1317,1318, providing that one who commits burglary, and who while in the house burglarized commits any other offense, shall be punished for burglary, and for the other offense, a theft committed at the same time and in the same transaction of a burglary is separate from the burglary, and accused may be convicted of both.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. &wkey; 200.]
    3. Indictment and Information &wkey;>137 — Quashing Indictment — Grounds—Former Jeopardy.
    That an indictment charges the same offense charged in another indictment under which accused has been convicted is not ground for quashing the indictment, but accused, to raise the point, must plead former jeopardy.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. <&wkey;137.]
    4. Criminal Law &wkey;>730 — Trial — Misconduct of State’s Attorney.
    The act of the state’s attorney in asking, on the cross-examination of accused on trial for theft committed at the time of his commission of a burglary, if he had not been convicted of the burglary was not reversible error, where the court sustained an objection to the question, and. at accused’s request at the time directed the jury not to consider the question, as it had nothing to do with the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1698; Dec. Dig. <&wkey;>730.]
    5. Criminal Law <&wkey;1119 — Misconduct of State’s Attorney — Bill of Exceptions.
    A bill of exceptions, complaining of the remark of the state’s attorney when a witness presented and identified an instrument, “They are just taking up the time of the court for nothing,” presents no reversible error, where it does not show how and in what way the remark affected accused’s case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. <&wkey; 1119.]
    6. Criminal Law <&wkey;1119 — Misconduct of State’s Attorney — Bill of Exceptions.
    A bill of exceptions, showing that accused excepted to the remark of the state’s attorney, after a witness had stated that he did not know the value of automobile tires: “Well, stand aside; if you have not sense enough to know the value of automobile tires, you can go” — presents no reversible error, where it does not attempt to show that accused was injured by the remark.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dee. Dig. &wkey; 1119.]
    7. Criminal Law &wkey;>1120 — Rulings on Evidence-Bill op Exceptions — Sufficiency.
    A bill of exceptions which recites that, at the conclusion of the testimony of a witness, counsel for accused moved to strike out all the testimony of the witness because not qualified' as an expert to testify, and that the motion to strike was overruled, to which ruling accused excepted at the time, but which does not show what the testimony of the witness was, does not show reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. <&wkey;> 1129.]
    8. Larceny <&wkey;45 — Evidence — Admissibility.
    Where, on a trial for the larceny of Federal Rubber Company tires, some of the witnesses called the tires “Goodrich tiros” the testimony of a witness, detailing a conversation with accused and a third person about the stolen tires, was properly received in evidence, though the witness, after detailing the conversation, stated that he believed that the third person said that the tires were “Goodrich tires.”
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 135, 136; Dec. Dig. <&wkey;>45.]
    9. Criminal Law <&wkey;1051 — Questions Reviewable.
    Under Code Cr. Proc. 1911, art. 938, providing that the court, on appeal, must presume that the venue was proven in the trial court, unless it affirmatively appears to the contrary by bill of exception, the court on appeal will not consider the question of venue not raised in the case, and 'no bill of exception taken on that question.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. &wkey;>1051.]
    Appeal from District Court, Bastrop County; Ed R, Sinks, Judge.
    F. L. Park was convicted of theft, and he appeals.
    Affirmed, and motion for rehearing overruled.
    G. O. Brown, of San Antonio, Aaron Bur-leson, of Smithville, and John T, Duncan, of La Grange, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDBRGAST, P. J.

Appellant was convicted of the theft of some automobile tires of more than the value of $50, and his punishment assessed at the lowest prescribed by law.

This is a companion ease to 3631 against the same appellant, for burglary, this day decided. 178 S. W. 516. The burglary case was tried first. Much of the testimony is the same in both cases. We have carefully read, studied, discussed, and compared the testimony in each case, one with the other. The testimony in this case is much fuller and of additional facts from what was proven in the burglary case. For instance, in this case the waybill was produced, identified, and introduced in evidence, and the witnesses testified thereabout; it was not introduced in the burglary case. So was other documentary evidence introduced herein which was not introduced in the burglary case.

We think it unnecessary to detail the evidence herein. There is no bill of exceptions in the record, nor is the motion for new trial therein. The only question raised in this court, and so stated by appellant’s attorneys in oral argument when the case was submitted, is whether or not the evidence was sufficient to sustain the verdict; his contention being that it is not. We are of opinion it is. The testimony in this case was sufficient to show, and the jury authorized to find and believe: That the alleged stolen tires were shipped over the Missouri, Kansas & Texas Railway Company of Texas from' Dallas, by the shipper on April 14, 1914, to the consignee at Houston in a through shipment, in car 70181, M., K. & T., waybill No. 1761. That the train on which this car was hauled was hauled by a crew from Dallas to Waco. That appellant received it at Waco and hauled it to Smithville, reaching Smithville at 1:20 p. m. April 16th, where he turned over his papers, including said car and its contents, to the local agent there. After reaching Elgin, going to Smithville with this train, appellant told his engineer that he had this car, that it contained automobile attachments, and that the bottom of the door of the car had rotted off. The car reached Houston, hauled by the third crew from Smithville to Houston on April 17th, and when it reached there the seals of the car were shown to be unbroken, but the door of one side was rotted out some 10 to 12 inches, so that a person could pull the door open from the bottom, get in the ear, take out the tires, and then get out without breaking the seals. That shortly after this car had been hauled from Smithville he and one Terrell, in Smith-ville, approached Mr. Eggleston, an automobile man there, went into Eggleston’s place of business, called him back privately, and asked him if he did not want to buy some automobile tires. Eggleston replied no. They discussed the matter awhile, but on this occasion, when Eggleston asked where he got the tires, he told him that he had pulled the car door open, swung it open from the bottom and had gotten the tires out of a car. After Eggleston refused to buy them, he asked if there was any place there they could hide them, and Eggleston told him, “No.” Another witness testified that about 12 o’clock at night appellant, said Terrell, and one Thurmond hired his buss. The three got in it and had him drive down to the stock pens at the railroad in Smithville. When they reached the stock pens the three got out, were gone about five minutes, and brought back what the witness described and the jury were clearly authorized to believe were automobile tires, put them in the buss, and themselves got back therein. That they drove back towards town again, but before they got there they stopped, all three got out, taking the automobile tires with them, and disappeared. Some of the automobile tires which were shipped in this car and stolen therefrom were afterwards traced to and found in San Antonio and recovered by the railroad. A San Antonio party bought these tires from one Billy Edwards. About this time Phillips loaned Edwards $50, who gave the money to Pred Thurmond, one of the parties who was with appellant and Terrell the night they got the tires when they drove to the stock pens, Edwards stating that the $50 was to pay Terrell for tires that he and appellant were in trouble about, and that he paid the money to Thurmond on the order of Terrell therefor. This is a mere outline of some of the testimony. Taking it as a whole, we think it amply sufficient to sustain the verdict. Whether appellant took, the tires from the ear while it was standing in the yard at Smithville, or took them from the ear before he reached 'Smithville, would be immaterial, for wherever he first took the stolen property he is substantially and reasonably shown to have been in possession thereof with others at Smithville, and hence, under the law, could be convicted in Bastrop county, where he was tried and convicted.

Tins writer is of the opinion that the evidence in the burglary case, while not as full as in this case, was sufficient to sustain the verdict in that case.

After most careful consideration we have reached the conclusion that the evidence is sufficient to sustain the verdict in this case, and the judgment is affirmed.

On Motion for .Rehearing.

After the rendition of the original opinion herein, appellant’s motion was granted for a certiorari to bring up copies of his motion to quash the indictment and his motion for a new trial and his bills of exceptions, which were omitted from the original transcript. The clerk complied and sent up an additional record containing these papers, which are now before us, and they have been duly considered.

Appellant’s motion to quash the indictment gives as the only reason therefor “that on yesterday, E'ebruary 1, 1915, this defendant was tried and convicted in State v. E. L. Park, No. 20-40, in this court, for the offense of burglary of a railroad freight car, charged to have been in possession of J. T. Hungate,” who is the agent of a certain railroad company, and given two years in the penitentiary, and claiming that he cannot be twice put on trial for the same offense. This case charges him with theft, not burglary. A conviction for theft committed at the same time, in the same transaction of burglary, is not the same offense, and accused can be convicted of both, as expressly provided by our statute. P. C. arts. 1317, 11318, and cases cited thereunder. Besides, even if they were the same offense, it would be no ground to quash the indictment, but must be properly pleaded as jeopardy.

Appellant again, in his motion for rehearing, as was done when this cause was at first submitted, earnestly contends and argues to a considerable extent that the evidence was insufficient to sustain the verdict. Each member of the court has read and studied the evidence. We adhere to the original opinion that the evidence was sufficient.

In his first bill of exception it is shown that the state’s attorney asked appellant, on cross-examination, for the purpose of impeachment, if he had not the day before been convicted of burglary. He objected to this question. The court sustained the objection and, at his request, at the time, instructed the jury that they were not to consider the question at all; that it had nothing whatever to do with the case one way or another. Notwithstanding this, appellant excepted to the mere asking of the question. This bill presents no reversible error. Martoni v. State, 167 S. W. 351, and authorities there cited; Sweeney v. State, 146 S. W. 883, and authorities there cited.

Appellant’s next bill, after the proper style and the usual “Be it remembered,” states that “the fcttlowing proceedings were had,' to wit. Then follows more than two pages of typewritten matter, which consists of questions asked, objections made, ruling of the court, answers of the witness, and the. remarks of the attorneys for both sides. On the first page the only thing we can see that he complains of to which he excepted is that, in a brief argument, when the witness Vann presented and identified the original waybill for the shipment of the tires alleged to have been stolen, this remark of one of the state’s attorneys was made: “They are just taking up the time of the court for nothing.” How and in what possible way that injuriously affected appellant's case we are unable to see, and he in no ■way attempts to show in the .bill, and, of course, it presents no reversible error. On the next page of this bill and what follows on the page following, there appears to be nothing to which appellant excepted at the time, and no error is presented thereby.

His next bill is in form exactly similar to the preceding one. .It appears from it that the state introduced Harry Young for the purpose of attempting to prove the value of the alleged stolen tires. The witness did not qualify so as to testify to the values, and did not testify to the values. The closing remark of the prosecuting attorney after the witness had stated that he did not know the value so as to testify to it was this:

“Well, stand aside; if you have not sense enough to know the value of automobile tires, you can go,”

—and to this remark appellant excepted, but no reason is given, and no possible injury is attempted to be shown to appellant by the attorney’s remark.

His next bill is in the same style exactly. This bill shows nothing whatever was testified to by the witness Campbell to which he excepted. On cross-examination the appellant’s attorneys asked him this question: “Did he tell you who got those tires at the place where' you found them? [two additional tires found in shop at rear of Bexar Hotel].” The state’s counsel objected. The court sustained the objection,' and the defendant excepted. This in no way showed any reversible error.

His next and last bill after the style of the cause states:

“At the conclusion of the testimony of Mr. J. W. Vann, a witness for the state, counsel for defendant moved the court to strike out all the testimony given by said witness as to the value of the tires, because he is not qualified, not an expert, and knows nothing about the value of tires. The motion to strike out was overruled, to which ruling of the court defendant excepted at the time.”

This, as it is presented, shows no reversible error. It in no way shows what the testimony of the witness was, or anything other than as quoted above.

The next matter presented in this same said last bill is this:

“When the state had rested, counsel for defendant moved the court to strike out all the testimony of the witness Eggleston in regard to the conversation he had with defendant, F. L. Park, and William Terrell, because that conversation was about some Goodrich tires, when all of the state’s testimony shows that the tires alleged to be stolen were Federal Rubber Company tires; also moved the court to instruct the jury to return a verdict for defendant, because the state had failed to make out a case. The motions were overruled. Defendant excepted.”

This, as presented, shows no error; but, if we could look to the record otherwise for the testimony of E'ggleston, it would clearly show, in connection with the other testimony in the case, that the conversation appellant and Terrell had with him was unquestionably about the stolen tires. Eggleston, after detailing in full material testimony, says that, in the conversation with Terrell regarding the tires, “I believe he said they were Goodrich tires.” Another witness says that some others called them Goodrich tires, but the testimony of other witnesses shows that they were not Goodrich tires, but Federal Rubber Company tires. Even, if it had been conclusively shown that they were Federal tires, it would not justify the court to strike out his testimony because he said he believed Terrell said they were Goodrich tires. All that would be a matter of argument before the jury. The jury was entitled to the evidence, together with the other records, so as to properly pass upon the questions submitted to them.

In the original opinion, we said that, whether the appellant took the tires from the car while it was standing in the yards at Smithville, or from the car before he reached Smithville, would be immaterial,- for wherever he first took them he is substantially and reasonably shown to have been in possession thereof with others at Smithville, and hence, under the law, could be convicted in Bastrop county, where he was tried and convicted. Appellant contends that, as the indictment charges that the property was taken from the possession of Hungate, who was the local agent of the company at Smithville in Bas-trop county, if the property was taken by appellant before it reached the possession of Hungate at Smithville, the conviction could not be sustained, because the theft would not have been from Hungate. "What was said by the court in the original opinion was wholly unnecessary, and was on the question of the venue. The question of venue was not raised in the case, and no bill of exception, which is required by the statute, was taken on that question at all, so that, whether the statement by the court in the original opinion was correct or incorrect, it has nothing to do with the merits of the case, nor with the question of venue, as that question was not raised, as required by the statute. C. G. P., art. 938.

The motion is overruled.
      <g^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ^3>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    HAND v. STATE.
    (No. 3744.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Criminal Daw <&wkey;478 — Opinion Evidence-Competency op EXPERTS.
    A graduate chemist of several years’ experience, who at the time was a city chemist, and who made an analysis of the stomach of a man killed by poison, and found strychnine sulphate therein, was qualified to express an opinion as to how much strychnine sulphate would produce the death of a man.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1065, 1066; Dec. Dig. <&wkey;> 478.]
    2. Homicide <&wkey;164 — Evidence — Admissibility.
    On a trial for poisoning a man who died on July 3d, where defendant contended that deceased was a sickly man, and might have committed suicide on account of despondency caused by ill health, evidence that he had worked for a witness for nearly a year, extending up to June 25th, when he was excused on leave of absence, and that during all of such time he never lost a day on account of sickness or for any other cause, was admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 318; Dec. Dig. &wkey;>164.]
    3. Homicide <&wkey;166 — Evidence — Admissibility.
    On a trial of a woman for killing a man with whom she had been living, where the case depended on circumstantial evidence, evidence that, when she and deceased rented rooms from a witness, she told the witness that deceased was a millionaire, and that after his death she said he was a pauper, and would have to be buried by the city, at the same time saying that she had $30,000 in a bank, was admissible, it appearing that she had no such amount in that or any other bank, but that she then had $2,400 of deceased’s money, since, in a case depending solely on circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may be derived.
    [Ed. Note.—For other eases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. &wkey;>166.]
    4. Cbiminal Daw <&wkey;406—Evidence—State-ments by Defendant While under Ar-' rest.
    On a trial of a woman for killing a man with whom she had been living, an officer who after deceased’s death went to his rooming place to make an investigation testified that he found f2,400 in money shown to have belonged to the eceased; that defendant had some $330 in a purse which she claimed as hers; that he searched the rooms, and, not finding the remainder of the' money, informed defendant that he would take her to the city hall to be searched; that she then admitted that she had the money, reached down into her stocking, and handed the officer $2,100; that she claimed deceased gave her the money, and said she had a will, but that she had left it at another place; but that later she pulled off her shoe and took the will out of the bottom of her shoe. Held that, the money having been found by reason of her statements made at the time, this testimony was admissible, even though defendant had been under arrest at the time, which was not shown to be the case.
    [Ed. Note.—Eor other cases, see Criminal Daw, Cent. Dig. §§ 785, 894-917, 920-927; Dee. Dig. &wkey;>406.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Sallie Hand, alias Sallie Wheeler, was convicted of murder, and she appeals.
    Affirmed.
    D. B. Camp and D. A. Dawhon, both of San Antonio, for appellant. Joe H. H. Graham, Asst. Dist. Atty., of San Antonio, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of administering strychnine poison to Eugene Savoy in sufficient quantity to cause his death. That Savoy died of strychnine poisoning is shown beyond peradventure of a doubt, but appellant earnestly insists that the evidence is insufficient to show that she administered it to him.

An able presentation of both the theory of the state and defendant is made by the attorney for the defendant and the attorneys for the state. After a careful review of the testimony, we are of the opinion the circumstances shown are sufficient to sustain the verdict. The court instructed the jury that it was a case depending on circumstantial evidence in a well-prepared charge. Appellant makes no complaint of the charge, and, viewing the evidence as we do, we will not disturb the verdict.

There are several bills of exception in the record; the first complaining that Herman Nester was permitted to testify as to his opinion as to how much strychnine sulphate would produce the death of a man. The witness qualified as an expert, being a graduated chemist of several years’ experience, and at the time he testified being city chemist of the city of San Antonio. He made. the analysis of the stomach of the deceased, and testified to the finding of six-tenths of a grain of strychnine sulphate in the body of the dead man.

One of the contentions made by appellant was that deceased was a sickly man, and therefore may have committed suicide on account of despondency caused by his ill health. The evidence shows that deceased and appellant became acquainted in June, and that they lived together from about July 3d until the day of his death. Appellant objected to Henry Fink, Jr., being permitted to testify that deceased had been in his employ for nearly a year, extending up to June 25th, when deceased was excused on leave of absence; that during all the months deceased was in his employ he never lost a day on account of sickness or any other cause. The court did not err in admitting this testimony.

Appellant, at the time she and deceased rented rooms from one of the witnesses, told the witness that deceased was a millionaire. After his death she said deceased was a pauper, and would have to be buried by the city, at the same time saying she had $30,000 in the Frost National Bank. The record would clearly show she had no such amount of money in that or any other bank, but did have some $2,400 of deceased’s money in her possession at the time she said he was a pauper. This being a case depending on circumstantial evidence, the testimony was admissible, for, as said by this court in Noftsinger v. State, 7 Tex. App. 307, in a case depending wholly upon circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may be derived.

Shortly after the death of Eiugene Savoy, Officer Dancaster went to his rooming place to make an investigation. He said he found about $2,400 in money; that appellant had some $330 in a purse, which appellant claimed was hers. He searched the premises, and, not finding the remainder of the money, he informed appellant he would take her to the city hall and have her searched. She then admitted she had the money, and reached down in her stocking and handed the officer some $2,100. She claimed that deceased had given her the money. The officer asked her if she had a will, and she said she had, but that it was at a residence near the San Antonio & Arkansas Pass depot. Eater she pulled off her shoe and took the will out of the bottom of the shoe. Appellant objected to this testimony on the ground that she was under arrest. There is nothing in the record to show that she was then under arrest, nor that she was arrested on that occasion even after the money was found. The money was found by reason of her statements made at .the time, and this would render the testimony admissible even if she had been under arrest.

There was no error in overruling tlie motion requesting the court to instruct the jury to return a verdict of not guilty. As herein before stated, the facts and circumstances were sufficient to authorize a verdict of guilty.

The judgment is affirmed.
      &wkey;>For other cases see same .topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


author: PRENDERGAST, P. J.

text:
    FREEMAN v. STATE.
    (No. 3690.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Criminal Law &wkey;368 — Evidence — Res Gestae.
    On a trial for assault with intent to murder, evidence that, while defendant and another were assaulting the prosecuting witness, a third person told them not to do it, was admissible as res gestse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. &wkey;>368.]
    2. Homicide c&wkey;>257 — Assault to Mubdee— Acts Constituting.
    On a trial for assault with intent to murder, the evidence was sufficient to show that F., in a drunken condition, went where defendant and others wore working; that his conduct and language to them were such as to be considered insulting; that some of them attacked him, and he hastily retreated; that, while they were pursuing him, defendant and another of his assailants threw rocks or bricks at him, one or more of which struck him on the head, felling him to the ground, and breaking or crushing his skull; that he lay there helpless until taken to the hospital by an officer; that it was several days before he recovered consciousness, and much longer before he was able to leave the hospital. Held, that the evidence was sufficient to support a conviction for assault with intent to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. &wkey;257.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    R. Freeman was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Clem C. Countess, of Belton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of assault with intent to murder and assessed the lowest punishment.

He has only one bill of exception. The substance of it in full is: That the state’s attorney asked one witness, “State to the jury, what, if anything, Mr. Thrillkill said to Stephens and Freeman at the very time they were throwing at Fagg?” and the witness answered : “He said, ‘Ernest, don’t do that. Raleigh, don’t do that.’ ” And he asked another witness “Didn’t you hear Thrillkill tell Stephens don’t do that, and Raleigh don’t do that?” and the witness answered, “Yes.” His objection to this was it was irrelevant, immaterial, and prejudicial and inadmissible because hearsay. We think it was admissible as res gestee. It was addressed to appellant, and the other party Stephens, “at the very time they were throwing at Fagg,” the assaulted party, and at the very time the offense charged was being committed by them. Branch, Cr. Law, § 339, p. 198.

Appellant’s able attorney made a forcible and earnest oral argument, when this case was submitted, and, in addition, has filed a lengthy brief, which we have fully considered, ingeniously contending that the evidence was insufficient to show his intention to murder, that the assault was with a deadly vveapon, that he participated in the assault, that the injuries of the assaulted party were caused by the assault, or that he was in a position to inflict them. We have carefully studied the whole evidence, and think none of his contentions are tenable. The testimony on some points is conflicting, but we think amply sufficient to sustain the verdict. It was sufficient to show, and cause the jury to believe, that Fagg, the assaulted party, in a drunken condition went into the back part of a hotel where appellant, said Stephens, and others were employed and at work; that his conduct and language to them was such as to be considered insulting; that some of them attacked him, and he hastily retreated out of the hotel through the back premises across an alley; that, while they were pursuing him and he running from them they each, appellant and Stephens threw rocks or bricks at him, one or more of which struck him in the head felling him to the ground, breaking or crushing his skull; that he lay there helpless and unconscious until later taken by an officer to a hospital; that it was several days before he recovered consciousness, and much longer before he was able to leave the hospital.

The court gave a correct charge to which there is no exception, submitting every issue to the jury requiring them to find every fact essential to his guilt beyond a reasonable doubt, before they could convict.

The judgment is affirmed.


text:
    ROBISON v. STATE.
    (No. 3707.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Libel and Slandee <&wkey;>148 — Pbivileged Communication.
    Where, upon being questioned by the brother concerning statements made by him that he had had sexual intercourse with the sister, defendant asserted the truth of the charge, and, when asked if he would make a statement to that effect, agreed to do so in the presence of some one else as a witness, and under that arrangement went with the brother to a justice before whom he made and swore to the statement that he had had such intercourse, the statement was slander, since it was not a privileged communication.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 407-411; Dec. Dig. &wkey;> 148.]
    2. Libel and Slandee <&wkey; 144 — Repetition-Request.
    The repetition of a slander made by the originator thereof at the request of the person slandered and with an assertion of its truth is slander.
    [Ed. Note. — For other eases, see Libel and Slander, Cent. Dig. § 403; Dec. Dig. &wkey;144.]
    3. Libel and Slandee <&wkey;156 — Evidence— Sueeiciency. •
    In a prosecution for slander, evidence held to show that the slander was uttered maliciously.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 437 — 441; Dec. Dig. <&wkey;> 156.]
    4. Libel and Slandee <&wkey;148 — Malice — PRIVILEGE.
    Malice on the part of defendant in communicating a slander destroyed his privilege under an otherwise privileged communication.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 407-411; Dec. Dig. <&wkey;> 148.]
    5. Libel and Slander <&wkey;156 — Malice — How Shown.
    Malice destroying such privilege may be shown by the style and tone of the slanderous statement, or that publication was made without exercising care and diligence to ascertain the truth.
    [Ed. Note. — For other cases, see Libel and' Slander, Cent. Dig. §§ 437 — 441; Dec. Dig. <&wkey;> 156.]
    C. Witnesses <&wkey;830 — Slander — Medical Examination.
    In a prosecution for slander in asserting illicit relations with a woman, it was not error to exclude the question on cross-examination of the woman whether she would submit to a medical examination to disclose the truth, since such examination could not show with whom intercourse was had, nor could the witness be legally compelled to undergo such examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. <&wkey;>330.]
    7. Criminal Law <&wkey;801 — Misdemeanor — Trial — Reading Charge.
    It is not mandatory in misdemeanor cases to read, before argument, the charge to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1947; Dec. Dig. &wkey;>801.]
    8. Criminal Law <&wkey;922— New Trial — Error in Charge — Failure to Except.
    Where, in a prosecution for misdemeanor, defendant does not except to the charge when presented to him, before being read to the jury, he cannot raise the question for the first time on motion for a new trial.
    [Ed. Note. — For other cases, see Criminal' Law, Cent. Dig. §§ 2210-2218; Dec. Dig. <&wkey; 922.]
    Appeal from Hamilton County Court; J. L. Lewis, Judge.
    J. H. Robison was convicted of slander, and he appeals.
    Affirmed.
    Langford & Chesley, of Hamilton, and Mears & Watkins, of Gatesville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of slander, and prosecutes this appeal. The alleged slander is based upon an affidavit made by him before E. Brooks, justice of the peace, in which he stated on oath “that he had been going with Miss Elmer Stephens on and off for about one year. I had free intercourse with her as often as I wanted to during all that time.” Proper innuendo averments are contained in the complaint and information. A number of questions are raised in the motion for a new trial, but appellant’s counsel, in able oral argument before this court and in the brief filed, discussed but one question, and that is that the affidavit was made under circumstances which made it a privileged communication, or qualified privileged communication. However, he stated that he did not waive the other questions raised, and in the event we held against him on this contention, he asked that we pass also on all other questions in the record. The record before us would disclose that Joe Martin, in a conversation with George Smith, had told Smith that Miss Stephens was pregnant; that Robison (appellant) had a baby on the road; and Robi-son had received a letter from Miss Stephens’ father to come and get the girl or take a shotgun, or words of similar import. Mr. Wolf, learning such a report was in circulation, informed Mr. Stephens of the report, and that Joe Martin was circulating it. Mr. Stephens told his son Harrison Stephens, and Harrison Stephens went to see appellant about the report that Martin was circulating. He says, knowing that appellant (Robi-son) had been going with his sister, and believing that the report put in circulation by Martin was a slander, he went to see appellant about the matter, and asked him how he considered the character of his sister, and appellant replied that it was bad; that he then asked appellant if he would make a statement of what had occurred between him and the girl, and he said he would if some one else was called as a witness. Harrison Stephens and appellant then went to Justice Brooks, when appellant made the statement recited in the complaint, and swore to it.

Appellant contends that these circumstances rendered the statement privileged and no prosecution could be based thereon, and cites us to the cases of Davis v. State, 22 S. W. 979, Hix v. State, 20 S. W. 550, and McDonald v. State, 164 S. W. 831, as sustaining such contentions. We do not think they have any application to a case of this character. In I-Iix’s Case the facts show that Mr. Wilkerson had heard that Hix had slandered his daughter by making certain statements. A meeting was arranged, and at that meeting Hix denied ever having repeated the language he heard, but told Mr. Wilkerson “that his wife had been informed by Allen Glascoe that Dr. Zachary had said that Miss M. E. Wilkerson had miscarried.” Thus it is seen that Hix disclaimed having ever repeated the statement to any one and gave the source of his information, and merely repeated to the father what he had heard in order that the father could discover and bring to justice the slanderer. This was held privileged, of course, and not the basis for a slander charge against Hix. There was no proof that Hix had repeated the slander, or that he had done more than Mr. Wolf did in this case, and that was, give to the father information by which he could seek out and discover the slanderer, if a slander had been uttered, and no one contends that Mr. Wolf’s acts would render him liable to a criminal prosecution.

In Davis’ Case the facts are not stated, but the case was reversed because of a variance in the complaint and information. However, in the opinion it is stated: “Being pressed by the father of the girl,” he said to the father, “he had seen his daughter engaged in an illicit act with one H. Keeling,” citing Hix v. State, supra. And the opinion shows that the remark was not made in the presence of any other person. We are not informed what the facts in that case were, but if the remark made by Davis was originating a slander, was in fact false, even if spoken to him alone, we are of the opinion that a charge of slander could be based thereon, and this court has so held in several cases since that opinion was rendered. In McDonald’s Case the facts show that Whynan went to McDonald and asked what was the trouble between him and his wife. McDonald at first declined to state, but upon Whynan insisting he told Whynan that he had heard that his wife was having sexual intercourse with divers persons, and J. B. Wagner had told him (McDonald) that eight different men had had intercourse with his (Whynan’s) wife. The record discloses that McDonald had made this statement to no other person, but simply told Whynan what he had heard, upon being pressed. He also told Whynan that he, McDonald, had also had intercourse with his wife. In the opinion it is shown the slander charge was based on what McDonald told Whynan he had heard, and not on what McDonald himself stated of his own knowledge, and the opinion states, in holding the alleged communication privileged, “we are not discussing that part of his communication to Whynan that he himself had had sexual intercourse with Mrs. Whynan, if false.” It was thus made plain in that opinion, if the basis for the alleged slander, had been what McDonald himself had stated as true, and it in fact was false, it could be made the basis for a charge of slander. These are all the cases cited by appellant on this question. In Davis v. State, 167 S. W. 1108, this court held that though one went to another to inquire about a matter, and the person thus approached should himself utter a false and slanderous statement, affirming the truth, a prosecution could be based thereon.

But the facts in this case are wholly different from the facts in either of the above-cited cases. In this case it is shown, and appellant in his testimony on the trial admits, he told Joe Martin what Martin told Smith. This was the origin of the slander, if slander it be. When Wolf told Mr. Stephens what Joe Martin was circulating, Stephens had no knowledge that appellant was the originator of the statements alleged to be slanderous. And as the statements of Martin coupled appellant’s and his daughter’s name, what was more natural than appellant should be applied to to aid the family of the girl in refuting the slander being circulated by Martin. But when applied to, appellant, being aware of the fact that he originated the report, and had told Martin all Martin was telling, does not inform the family of the girl that he had done so, but proceeds to amplify the slanderous report, and make statements that he knew were false, if false — statements he knew would damn the girl in the eyes of the public. And not content to make the statement to the brother, he suggests a third person being present, and to this third person, called in at his suggestion, he proceeds to make an affidavit to this third person, alleging: “I had free intercourse with Elmer Stephens as often as I wanted to.” The rules of law, under such state of facts, is that the rule of privilege does not apply where there has been a previous unprivileged publication by the defendant of the same or similar libel or slander, which causes the inquiry to be made, for in that ease it is the defendant by his own wrongful act who brings it on himself. Odgen on Slander, p. 294.

In Cyc. vol. 25, p. 371, the rule is stated to be: Where a person originates a slander and afterwards repeats it in answer to a question by the person slandered, in the presence of a third person brought by him for the purpose of hearing the answer, the repetition is slander.

In Griffith v. Lewis, 7 Q. B. 61, the court held: “Where plaintiff inquired of defendant if he had accused her of using false weights in her trade,'and defendant, in the presence of a third person, answered, ‘to be sure I did. You have done it for years.’ ” It was held to be a slander for which an action would lie. See, also, Watson v. Nicholas, 6 Humph. (Tenn.) 174; Nott v. Stoddard, 38 Vt. 25, 88 Am. Dec. 633, and cases cited. It is thus seen where one who originates the slander, repeats it in the presence of others, and asserts it to be within his personal knowledge, the statement not being true, is slander. There is a broad difference between such an allegation, and a statement by the person approached that he had heard another say so and so, and does not claim to have any personal knowledge of the matter. While this exact question has never before been before this court in so far as we have been able to ascertain, yet we are not without precedent in the decisions of this state. In the case of Davis v. Wells, 25 Tex. Civ. App. 155, 60 S. W. 566, one of our Courts of Civil Appeals had a similar question before them, and they held it libelous and that an action would lie thereon, they saying:

“If it should he determined that the communication is privileged, exemption from liability will not exist if it was made upon express malice or with a want of good faith.”

In this case there can be no question of good faith. Appellant alleged that he had camal knowledge of the girl, and on the witness stand he asserts this to be true, and the court instructed the jury:

“That if you believe from the evidence that the said Elmer Stephens, at the time of the alleged imputation of want of chastity, if you find such imputation was made by defendant, was. guilty of the acts set out in the information in this case, or that at said time, the said Elmer Stephens was not a chaste and virtuous woman, you will acquit the defendant, whether you believe such want of chastity resulted from sexual intercourse with the defendant or some other person.”

The jury under such charge must have found that the appellant’s statement was false, else they would not have convicted him, and as he alleged he had carnally known the young lady, it is apparent, if false, such statement could not have been made in good faith.

Counsel insisted though that even though the communication was not privileged, it ought to he held qualifiedly privileged; that is, the evidence must show that malice existed in the mind of defendant at the time he made the false statement. The court so instructed the jury in his charge, telling them: 1

“In order to entitle the state to a conviction in this case the alleged imputation of a want of chastity in the said Elmer Stephens, if made by the defendant, must have been made either maliciously or wantonly. Therefore, I further charge you that although you may believe from the evidence, beyond a reasonable doubt, that the defendant did impute to the said Elmer Stephens a want of chastity by saying of and concerning her the things set out in the information in this case, yet, if you believe from the evidence that such things, so set out in said information, if said by the defendant, was not said either maliciously or wantonly; or if you have a reasonable doubt thereof, you will acquit the defendant.”

In other parts of the charge the court defined the words “wanton” and “malicious.” And the evidence will support a finding that the statement was maliciously made.

It is true appellant testified on the trial he had no ill will towards any of the Stephens family, but his acts and conduct contradict his words. He had been going with Miss Stephens. Her father commanded her to stop going .with appellant. She informs appellant that he can come to see her no more — that her father forbids. The father says appellant had been getting drunk, and engaging in other unseemly conduct, and this was the reason for forbidding him to come to his home. As soon as appellant is informed he was forbidden the house, he hunts up Joe Martin and puts this slander in circulation, and, when questioned about it, reiterates and affirms it to be true. He admits the young lady was at this time associating with his sisters and the best people in the community. All the witnesses say that prior to the time appellant put this calumny in circulation, Miss Stephens’ general reputation for virtue and chastity was good, and they had never heard it questioned; that she moved in the best circles of society. This would authorize the jury to find that appellant acted with malice, if they believed his statement to be false; and the general rule is, as stated in Cyc.:

“Malice on the part of defendant destroys his privilege. Such malice may be shown by the style and tone of the libelous statement, or by the fact that publication was made without exercising care and diligence to ascertain the truth.”

In this instance there was no question of exercising care and diligence to ascertain the truth of the statement. Appellant knew at the time he made the statement it was false, if it in fact was untrue; and the jury so found under proper instructions, and, so holding, there was no error in admitting the affidavit in evidence.

The bills in regard to admitting in evidence the statement of Wolf to Mr. Stephens: The questions propounded to W. L. and Az Henderson, as qualified and approved by the court, present no error. It was permissible to show the bias and interest of the two Hen-dersons, and the fact that Mr. Wolf gave Mr. Stephens the information he did was necessary to be shown to obtain a thorough comprehension of the case.

When Miss Elmer Stephens was on the witness stand, on cross-examination appellant propounded to her the question: “If she was willing to undergo a medical examination to determine who was telling the truth in the matter.” The state objected to the question, and the court sustained the objection. Appellant does not state in the bill what the answer of the witness would have been, nor what he expected it to be, nor that if she agreed to undergo an examination what he believed would be the result. We might infer that he hoped the examination would demonstrate she had had intercourse with some man, but this would not indirectly tend to prove that appellant was the person with whom she had intercourse. We have always held that where a medical examination has been held, the physicians were properly permitted to testify to the conditions found, but a court can hardly be expected to stop a trial and hold it in abeyance while such an examination is being conducted. Such a request ought to be timely made, if made in good faith, that such an examination can be held without delaying the court in its orderly proceedings. We can see no reason why the appellant should not be permitted to make such request, and that the young lady be given an opportunity to permit the examination or refuse to do so. This would be a matter that the court could not force her to undergo, but She might be given the opportunity to do so, if agreeable with ber; but, tbe request for sucb a proceeding in tbis instance being propounded in tbe midst of tbe trial, we cannot say tbe court erred in bis ruling in refusing to permit tbe trial to be delayed for sucb an inquiry at sucb a time.

Tbe court did not read bis charge to tbe jury before argument, but did submit it to counsel before reading it to tbe jury. Tbis is a misdemeanor case, and, as before beld by tbis court, it is tbe better practice to read tbe charge to the jury, as in felony cases, before argument, but this is not mandatory in misdemeanor oases. Appellant would have tbe right to except to tbe charge when presented to him, but tbe record shows be reserved no exception to it when be was given an opportunity to read it, and not doing so at that time, complaint could not be made for the first time in tbe motion for a new trial. When he was given an opportunity to read it, before it was read to tbe jury, then was the time for him to make bis objection and request any corrections be desired.

Tbe court did not err in refusing tbe peremptory instructions to acquit, nor err in refusing to give the special charge asking the court to instruct tbe jury, that as a matter of law, tbe affidavit made by appellant was a privileged communication.

Tbe judgment is affirmed.
      ©=oFor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

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


text:
    TAYLOR v. STATE.
    (No. 3670.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Weapons &wkey;17 — Criminal Prosecutions —Sufficiency op Evidence.
    On a trial for unlawfully carrying a pistol, evidence on the whole case and on the issue as to whether defendant was a traveler held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    2. Criminal Law <&wkey;1159 — Appeaí>-Review —Questions oe Fact.
    Where the evidence was sufficient to sustain the verdict, whether defendant or the witnesses for the state were to be believed was a matter for the jury and the trial court alone.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. <&wkey; 1159.]
    3. Criminal Law <&wkey;1038 — Appeal—Reservation of Grounds of Review — Instructions.
    No error with respect to the refusal of requested charges was shown, where the transcript failed to show that defendant excepted to the charge and requested the submission of his special charges before the charge was read to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646;. Dec. Dig. &wkey;rt038.]
    4. Weapons <&wkey;17 — Criminal Prosecutions —Instructions—‘ ‘Traveler. ’ ’
    On a trial for unlawfully carrying a pistol, an instruction that a “traveler” was a person making a trip from one county to another, and away from his home, with the intention of being aw.ay on some business or journey out of his ordinary pursuit, and that a mere incidental delay connected with his journey did not prevent him from being a traveler within the law, did not correctly state the law and was properly refused.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    5. Criminal Law <&wkey;1099 — Appeal—Record —Matters Presented for Review.
    In a motion for new trial in a criminal case, defendant attacked the verdict on account of the action of the jury de hors the record and for alleged improner argument of the county attorney, and also for newly discovered evidence. All of these matters were specially contested and controverted by the county attorney, and the court heard evidence thereon, but this evidence was not shown by the record. Defendant’s bills of exceptions were filed long after the adjournment of the court. Held, that such matters were not so presented as to be reviewable, since, in order to be reviewed, such matters must be presented by a proper statement of facts, filed during term time, showing what the testimony was.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <&wkey; 1099.]
    6. Criminal Law <&wkey;1092 — Bills of Exception — Allowance.
    Where. no exception was taken at the time to alleged improper remarks of the county attorney and the matter was not called to the judge’s .attention until two weeks after the trial, and then by a motion for a new trial, and the county attorney contested the matter and specially denied using the language charged, the judge properly refused to allow a Kill of exceptions to such remarks.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <i&wkey;1092.]
    Appeal from Coryell County Court; H. E. Bell, Judge.
    W, O. Taylor was convicted of unlawfully carrying a pistol, and be appeals.
    Affirmed.
    Watt L. Saunders, of Gatesville, for appellant. C. C. McDonald, Asst. Atty. Gen., for tbe State.
   PRENDERGAST, P. J.

Appellant was indicted and upon trial convicted for unlawfully carrying a pistol. Tbe lowest punishment was assessed.

He claimed and testified: That be lived at Waco, in McLennan county, and owned a farm in Coryell county, which he looked after. That on October 13, 1914, be went from Waco to bis farm to attend to various matters of business there, carrying with him in bis grip the large dark-bandied Colts 45 pistol which his brother-in-law bad requested him to bring to him. That at no time during this trip did be carry it on his person. After arriving in Coryell county, he stayed all night with Mr. Rubarth. The next morning he went to Mr. Moore’s to see him about bis rent and other things, which be did, and there, that morning, took the pistol out of bis 'grip, put it in Moore’s buggy, told Moore about it, and requested him to deliver it.to bis brother-in-law, which was shown to have been done. That be neither saw nor bad that pistol again. That is not tbe pistol lie is charged witii carrying. That day, and the following, he is shown, and admits, to having gone around to various places in the neighborhood to see various persons and attended to various matters of business. That day, among other places, he went to another brother-in-law’s, Olyce Parsons,’ to see him about business matters. That Olyce was not then at home, but his wife was. She invited him, and he went into her house, sat down, talked to her about his troubles, and wanted to see her husband about some business matters, and also phoned while he was there. She testified she passed behind him while he was sitting, and his back was to her while he was phoning, and she saw his pistol scabbard sticking out underneath his coat and the shape of a pistol under his coat; that his coat was pulled up tight when he was phoning; that she smelled whisky on his breath, and she said, “he tried to get close to me and acted like he was drunk.” After leaving Olyce Parsons,’ the next day he went around to various other places seeing different persons about matters of business, and in his rounds shortly before he took a mail hack, and went into Olyce Parsons’ field where Olyce was at work to see him about some business matter. While there Olyce told him he did not want him to come to his house drunk any more, scaring his wife, and that his wife thought he had a gun on at the time. That he (appellant) pulled back his coat, and the witness swore, “I saw the white handle of a pistol. * * * It was small.” Again: “Yes, I saw him with a pistol on. He pulled back his coat, and I saw it. It was in his hip pocket.” Appellant had his grip with him at this time. After talking to Olyce in his field a few minutes, the witness told him the mail hack from Purmela to Levita was coming over the hill, and appellant went and caught it. Appellant swore he had no pistol on the day before when at Mr. Parsons’ house, nor in Parsons’ field when Parsons swore he did, saw it, etc.

The evidence was clearly sufficient to sustain the verdict on the whole case and also on the issue of his claim that he was a traveler at the time he carried the pistol. The jury believed the state’s witness, and did not believe appellant. This was for the jury alone and the lower court.

The judge gave a charge correctly submitting every issue made by the evidence. Appellant made no objection whatever to the charge at the time. He, however, requested two special charges which the court refused; but, as said by this court in the recent case of Younger v. State, 173 S. W. 1040:

“The transcript fails to show that appellant excepted to the court’s charge before being read to the jury and a request at that time for the submission of his special charges.”

Hence, as presented, no error is shown. However, his first, on the issue of his carrying said pistol to his brother-in-law, was clearly on the weight of the evidence, and about a different pistol from that which he was charged with carrying. Besides, the court, in first telling the jury the law, correctly charged that:

“It is not a violation of the law to merely carry a pistol on one’s way to deliver same to its owner.”

And in submitting the case for a finding told them, if they believed beyond a reasonable doubt he carried the pistol at the time and place alleged, to find him guilty, unless he was at the time carrying it on his way to deliver it to its owner. And again affirmatively submitted this issue in his favor telling the jury, if you-believe he was merely on his way to deliver the pistol to its owner, acquit him and find him not guilty.

In his second special charge he requested the court to tell the jury that a traveler “is a person making a trip from one county to another, and away from his home with the intention of being away on some business or journey out of his ordinary pursuit, and that a mere incidental delay connected with his journey does not prevent him from being a traveler in the meaning of the law.” This is not the law. Williams v. State, 169 S. W. 1154; Younger v. State, supra. Besides, the court gave a correct charge on the subject and submitted that issue in the same way as the above question of carrying the pistol to its owner was submitted.

Appellant’s application for a continuance was wholly insufficient, under the -statute, showed a clear lack of diligence, and, besides, the evidence of the witness was wholly immaterial to any issue in the case.

The court’s charge more than once told the jury that the burden of proof was upon the state to prove appellant guilty beyond a reasonable doubt before they could convict him. It is not susceptible of the construction that it required him to establish either of his defenses beyond a reasonable doubt. The reverse of this is true.

In his amended motion for a new trial he urged some grounds attacking the verdict on account of the action of the jury de hors the record; also, on the ground of claimed improper argument of the county attorney; and also for what he claimed was newly discovered evidence. All of these, matters, as well as every other ground of his motion and bills of exceptions, were specially contested and controverted by the county attorney in his sworn plea in answer thereto. The record shows that when the court heard his said motion, and the contest thereof, he heard evidence thereon. What that evidence was, whether by affidavit or oral testimony, or both, is not shown by the record. All his bills of exceptions were filed long after the adjournment of the court. Under such eir-cumstances, none of these matter's are presented in such a way that we can review them. It has been the uniform holding of this court at all times, in a long line of de-

eisions, that such matters, in order to be reviewed by this court, must he presented by a proper statement of facts on the subject, filed during term time, showing what the testimony was. One of the leading cases is Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, and some of the others are collated in Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 730.

There was certainly no error in the judge refusing to allow appellant a bill of exceptions to the claimed remarks of the county attorney when it was conclusively shown that no exception was taken thereto at the time. The matter was not called to the judge’s attention until two weeks after the trial, and then by his amended motion for new trial. As stated, the county attorney contested this matter, and specially denied he used the language charged.

We have not discussed separately each of appellant’s many assignments, though we have considered all of them. No error is pointed out that would authorize or require this court to reverse this case.

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


text:
    ELLIS v. STATE.
    (No. 3792.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Criminal Law <&wkey;956 — New Trial — Newly Discovered Evidence.
    A new trial on the ground of newly discovered evidence, based on an affidavit that the affiant heard the witness inform accused that he had heard another say that accused was not the party guilty of the theft, will be denied, where the absent witness was in jail and could have been produced as could the affiant, and accused made no sufficient excuse for not having called such witness before, claiming that he merely forgot.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dee. Dig. <©=» 956.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    George Ellis was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of misdemeanor theft, and his punishment assessed at a fine of $50 and two days in jail.

There is no bill of exceptions in the record.

Appellant contends that the evidence is insufficient to sustain the conviction. We have carefully read it, and, in our opinion, it is not only sufficient but clearly shows appellant’s guilt.

No other question is raised in such way that it can be considered, unless it be his contention that claimed newly discovered evidence would require a new trial. The state contested his motion on all the grounds raised, and especially on this ground. His claim on this ground is based on the purported affidavit of G. Q. Willis, which is attached to his motion, to the effect that he (Willis) heard Aimer Byars tell George Ellis that he (Aimer Byars) heard Allen Rhodes say that he • (Allen Rhodes) saw Henry Adams with the said, or alleged, stolen flour, and that he had nothing to do with the alleged theft of same. Appellant in his motion said that Aimer Byars, while they were both confined in the county jail at Quitman, told him that he heard Allen Rhodes say that Allen Rhodes saw Henry Adams with the alleged stolen sack of flour, and that defendant had nothing to do with the theft of the same; that he knew of this claimed witness before and at the time of his trial, but that he and his friends had forgotten the name of the witness who used said language; and that, if he had not forgotten the name of the witness, he would have had him testify at the trial. He claimed he could not get the affidavit of the witness to accompany his motion. As stated, the state by the county attorney vigorously contested appellant’s motion, and among other things attached the sheriff’s affidavit to his contest, wherein the sheriff swore that he had the said witness Ai-mer Byars confined in the Wood county jail on a charge of theft at the time the motion for a new trial herein was overruled, and that fie was later that morning carried to the poor farm four miles from town to serve his sentence on said charge; that appellant’s attorney had access to said Byars, and that he could have had him present on the hearing of his motion but did not ask for his presence; that the said G. Q. Willis was also in the jail at said time on a complaint out of Che state of Oklahoma charging him with theft; and that Willis had been trying to get a lawyer to sue out a writ of habeas corpus and talked to appellant’s attorneys before he made said affidavit in this case.

Under all the authorities, the court clearly was justified in overruling his motion for a new trial. Section 1149, White’s Ann. C. (X P., and the eases there cited.

The judgment is affirmed.


text:
    EDWARDS v. STATE.
    (No. 3774.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Criminal Law <&wkey;511 — Evidence—Accomplices — CORROB ORATION.
    In a prosecution for cattle theft, evidence of corroboration held sufficient to connect defendant with the offense and to justify conviction ■on an accomplice’s testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. &wkey;> 511.]

      2. Criminal Law <&wkey;508— Evidence — Accomplice’s Testimony.
    Where a theft is established, a conviction may be had on accomplice testimony on proof of facts and circumstances tending to connect accused with the offense.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1099-1123; Dec. Dig. <&wkey; 608.]
    3. Criminal Law <&wkey;S29 — Trial — Instructions.
    The refusal of requested charges covered by those given is not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;829.]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Robert Edwards was convicted of cattle theft, and he appeals.
    Affirmed.
    Duncan & Duncan, of Bellville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

Wesley Shelly testified for the state, and testified he and appellant entered the pasture of Mr. E. B. Wilson, roped a cow, and took her to the home of appellant. There they butchered her, and divided the meat. He says they buried the entrails near the place where the cow was butchered, and he carried the head and hide with him in his buggy, and he buried the head on his place; that he agreed to take the hide to town and sell it, and they were to divide the money received for the hide. He then testified to selling the hide to Mr. Barder on Monday following, and says that appellant sent him word by King Jackson to purchase him some flour and other articles and send them to him by Louis Brown.

Mr. Barder testified he purchased a red cowhide from Wesley Shelly, and paid him $6.40 for the hide; that Mr. Palm brought a cow’s head there and fitted it to the hide; that it was the same color as the hide, and fitted the hide he had purchased. There was no brand on the hide, but there was a hole on the hip of the hide about six inches square. This head had been found on Shelly’s place, where he admitted he had buried it.

King Jackson testified that appellant, upon learning that he was going to town, requested him to tell Wesley Shelly to send him his flour by Louis Brown. How appellant knew Shelly would be in town that morning is not disclosed, unless Shelly’s testimony is true.

Ed Kirkpatrick testified that on that Monday he sold Wesley Shelly two sacks of flour, two buckets of lard, 25-pound sack of salt, and a can of oil.

Louis Brown testified that on that Monday Wesley Shelly got him to carry to appellant a sack of flour, a bucket of lard, and something else in a sack; he did not remember what it was.

It is thus seen that Wesley Shelly sold the hide of the stolen cow to Barder, and a part of the property purchased with the proceeds of the stolen property is traced direct to appellant. This certainly tends to connect him with the theft. A jury would naturally inquire: How did he know Shelly would be in Bellville that day, how did he know he would have the money to buy the flour, and why on that day of all days did he send him word to send his flour? Appellant admits getting these articles, and admits sending word by King Jackson to send him the flour by Louis Brown, and that Louis Brown brought the flour and articles and delivered them to him, but he undertakes to explain that he had borrowed $10 from Herman Granon, and had loaned Shelly $6 of this borrowed money. But when Herman Granon was called as a witness, he said he did loan appellant $10, but said it was about three years before the date of this theft, and this would not explain why appellant knew Shelly would be in Bellville on that Monday with money to buy flour. Shelly also testified that the entrails and an unborn calf were buried on appellant’s place, at a certain place, describing it. Officers went to this place and found where a hole had been dug, and they say there was a fearful scent in the hole, but no entrails were found and no unborn calf, but within about 100 yards of appellant’s house the body of an unborn calf was found. Joe Arnold testified he was living on Mr. Wilson’s place and was looking after his cattle; that he missed three or four of these cattle the latter part of December or first of January. One was a red cow. She was fat and large, and was with calf at the time he missed her. The cow had broad horns. He further testified he examined the hide found at Barder’s.; that, taking into consideration the color and size of the cow, the hide looked to him to be about as good a comparison as could be found anywhere. He tells of other facts and circumstances that led him to believe it was Wilson’s cow. Thus a cow is shown to be missing,' independent of the testimony of Wesley Shelly, and facts and circumstances are proven that would support the conviction of Shelly, as the horns and head and fresh beef were found on his place. And we think, when a portion of the proceeds of the sale of this stolen cow is traced direct to appellant, and other circumstances in the case, the testimony, independent of the testimony of Shelly, tends to connect appellant with the theft. The necessary corroborating testimony does not have to show in and of itself that appellant was guilty of stealing the cow. After it has been proven that a cow had been stolen, all it was necessary to prove, independent of the accomplice’s testimony, were facts and circumstances that tended to connect him with the crime. In Jernigan v. State, 10 Tex. App. 549, this court, speaking through Judge Hurt, said:

“This $100 hill, being the proceeds of the sale of the cattle, can be and is familiarly termed the fruits of the crime, and occupies the same relation as a means of proof in a great many cases as the possession of recently stolen property does to theft. In this case the bill constitutes the fruits of the theft. It follows, therefore, that if the defendant is shown to have had guilty possession of or connection with this bill, that fact would be a strong corroboration of the accomplice. Two things are necessary, however, to make the transaction crimina-tive: (1) This must be the bill for which the cattle were sold; (2) the defendant must not only have been informed of than fact, but that the cattle were stolen, thus constituting the bill a fruit of the theft.”

It is shown by the undisputed testimony, independent of the testimony of the accomplice, that the flour and lard received by appellant were fruits of the crime. Now does the evidence measure up to the second requirement? It does not have to be proven by positive testimony, but can be shown by circumstantial evidence. Independent of the testimony of the accomplice, by King Jackson, it is shown that appellant knew that Shelly would be in Bellville that day with money to buy the flour, etc. How did he know this fact? Shelly did have the money received from a sale of the stolen hide. He gets and keeps these proceeds of the stolen property. When told that Shelly had said he (Shelly) had sold him a part of the beef in payment of a debt due by Shelly to him, he denies Shelly was indebted to him in any sum, and yet the flour and lard are found in his possession. The evidence justifies a finding that, when he received these articles, he knew they were the proceeds of the hide of the stolen animal. This is the sole contention briefed by appellant’s counsel, and we are frank to admit that it is not entirely free from difficulty, but a careful study of the record convinces us the corroboration is sufficient.

The court gave six of the special charges requested by appellant, and they, together with the court’s main charge, fully covered the issues in the case, and it was not therefore necessary to give the other two special charges requested.

The charge on alibi is clothed in language frequently approved by this court, and is not subject to the criticism that it assumes facts against the defensive theories. It was only necessary that the corroborative testimony “tended to connect the defendant with the offense charged”; it was not required that such testimony connect the defendant with the crime. If such proof was made, independent of the testimony of the accomplice, there would be no need of the accomplice testifying.

The judgment is affirmed.
      <&wkey;>For other oases see same topic anfl KEY-NUMBER in all Key-Numbered Digests and Indexes

      «gxsíEor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    SMITH v. STATE.
    (No. 3776.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Law <&wkey;1090 — Appeal—Bills op Exception.
    The impropriety of overruling a motion for continuance cannot be reviewed without a bill of exceptions.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789,2803-2822,2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. &wkey; 1090.]
    2. Criminal Law &wkey;>1097 — Appeal—Statement op Facts — Necessitt.
    The sufficiency of the evidence to sustain a conviction cannot be considered without a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Doc. Dig. &wkey;l097.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Noce Smith was convicted of theft, and he appeals.
    Affirmed.
    C. C. McDonald. Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was given a misdemeanor punishment under a felony indictment charging him with theft of personal property.

Motion for a continuance was overruled, and that is assigned as error in the motion for new trial. Appellant failed to reserve a bill of exception; therefore this matter cannot be considered.

All the other matters in the motion for new trial pertain to the sufficiency of the evidence and matters growing out of the evidence, which cannot be considered without the testimony. The record does not contain a statement of facts.

The judgment will be affirmed.


text:
    McGEE v. STATE.
    (No. 3770.)
    (Court of Criminal Appeals of Texas.
    Nov. 3. 1915.)
    Criminal Law <&wkey;1102 — Statement of Facts — Time op Filing.
    Where there was no order in the record authorizing a statement of facts to be filed after adjournment of county court, a purported statement of facts must be stricken.
    [Ed. Note — For othgr cases, see Criminal Law, Dec. Dig. <&wkey;>1102.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Sam McGee was convicted of crime, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of adultery, and fined $100.

There is no order in the record authorizing a statement of facts to be filed after the adjournment of court There is in the record what purports to be a statemént of facts filed on the 20th day after the court adjourned. The Assistant Attorney General’s motion to strike out the statement of facts under the circumstances must be sustained.

There is no bill of exceptions in the record. In the absence of a statement of facts and bill of exceptions, no question is raised which can be reviewed.

The judgment is affirmed.
      <2s»For other cases see same topic and KEY-NUMBElt’in all Key-Numbered Digests and Indexes


text:
    BACKUS v. STATE.
    (No. 3741.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Law &wkey;>1092 — Record—Bills ox? Exception — Approval by Trial Court.
    Bills of exception cannot be considered on appeal, where the trial court refused expressly to approve them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283A-2861, 2919; Dec. Dig. @ax>1092.]
    2. Criminal Law <&wkey;082 — Impeachment — Arrests for Misdemeanors and Felonies.
    The state on the cross-examination of accused filing a plea for suspension of sentence on conviction may show that he had been repeatedly arrested for various misdemeanors and once for felony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dee. Dig. <&wkey;> 982.]
    Appeal from District Court, El Faso County ; W. D. Howe, Special Judge.
    E. C. Backus was convicted of knowingly having in his possession a forged instrument with intent to pass the same, and he appeals.
    Affirmed.
    Weeks & Yowell, of El Paso, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted on two counts — -the first for forgery; the other for knowingly having in his possession a forged instrument with intention to pass the same. Only the second count was submitted, and he was found guilty on that count, and his punishment assessed at the lowest prescribed by law.

Appellant claims that the evidence was insufficient to sustain the conviction. We have carefully read the statement of facts, and, in our opinion, the testimony was sufficient to sustain the conviction, and we would not be authorized to reverse the case on that ground.

There is in the record what might otherwise be considered bills of exception, but the court refused expressly to approve them. Hence they cannot be considered.

There is one which complains that the court permitted the state to ask him and required him to answer on cross-examination that he had been repeatedly arrested for various misdemeanors and once' for a felony. The court, in approving the bill, expressly states that the appellant did not except when he overruled his objections to that character of testimony. The appellant filed his proper plea seeking the suspension of a sentence in case he was convicted. Even if he had excepted to the action of the court, it would present no error, because on his plea for suspended sentence said testimony was admissible. Williamson v. State, 187 S. W. 360; Conatser v. State, 170 S. W. 314.

The judgment is affirmed.


text:
    BETHANY v. STATE.
    (No. 3773.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Forgery &wkey;>34— Indictment — Variance between Purport Clause and Instrument.
    Where the purport clause in an indictment alleges the instrument forged to have been the act of one or more named persons, while the instrument set out by its tenor is the act of more or less persons than alleged, the variance is fatal, especially in the absence of any innuendo or explanatory averments as to the nature of the instrument and its character.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. <&wkey;34.]
    2. Forgery &wkey;o28 — Indictment—Requisites —Purport Clause.
    An indictment for forgery need not state in the purport clause the names to the instrument forged.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 66-70, 7A-76; Dec. Dig. &wkey;2&]
    Appeal from District Court, Austin County; Frank g. Roberts, Judge.
    Horace Bethany was convicted of forgery, and he appeals.
    Reversed, and prosecution ordered dismissed.
    Johnson, Matthaei & Thompson, of Bell-ville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of forgery; his punishment being assessed at two years’ confinement in the penitentiary.

The Assistant Attorney General confesses error on the variance between the purport and tenor clauses. The indictment alleges that Horace Bethany, naming the date and county, did unlawfully without authority, and with intent to injure and defraud, willfully and fraudulently make a certain false instrument in writing, purporting to be the act of another, to wit, purporting to be the act of "Willie Smith, which said false instrument is to the tenor as follows. Then follows the instrument itself, signed by Horace Bethany, Richard Bethany, and Willie Smith.

The indictment was attacked in the lower court on motion in arrest of judgment. Without taking up these matters seriatim, there are no innuendo or explanatory averments in the indictment with reference to the count in the indictment. It seems under the authorities that, where the purport clause unnecessarily alleges the instrument to be the act of one or more named parties, and the instrument set out by its tenor is the act of more or less parties than are alleged in the purport clause, the variance is fatal. This is the rule aptly stated by Mr. Branch in his work on Criminal Law, in section 382. There are quite a number of cases cited by Mr. Branch in support of this statement of the law. It is unnecessary, we think, here to recapitulate these cases. Mr. Branch has done so, and they will be found there collated. It is also stated by the same writer, in the same section, that if the indictment undertakes to allege whose act the instrument purports to be, any variance between the purport and tenor clauses will be fatal He also collates quite a number of authorities under this statement of the law.

It was not necessary to have stated in the purport clause the names to the instrument, but, having done so, and the instrument set out by its tenor shows it was signed by additional parties to those alleged in the purport clause, it seems, under the authorities, that this would be a fatal variance, especially in the absence of any innuendo or explanatory averments as to the nature of the instrument and its character.

There are other interesting questions in the case, and some serious doubt about the sufficiency of the evidence, but those are not 'discussed in view of the above holding.

The judgment will be reversed, and the prosecution ordered dismissed.
      @=oI?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WILLIAMS v. STATE.
    (No. 3740.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    Criminal Law <&wkey;>1092, 1099 — Bills or Exception — Statement oe Facts — Time oe Filing.
    The court on appeal from a conviction in the county court cannot consider bills of exception and statement of facts filed within 20 days after adjournment of the term, where the record contains no order allowing the filing thereof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834r-2861, 2866-2880, 2919; Dec. Dig. &wkey;1092, 1099.)
    Appeal from Jasper County Court; C. C. Brown, Judge.
    Shepherd Williams was convicted of carrying a pistol, and he appeals.
    Affirmed.
    C. C. McDonald, Asst Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of carrying a pistol in violation of the statute, his punishment being assessed at a fine of ?100.

The bills of exception and the statement of facts were both filed after the adjournment of the term of court. The record contains no order allowing the filing of these papers; therefore they cannot be considered. Where appeal is taken from the county court, under the decisions in this state, it is necessary that an order of 20 days be entered of record. Without this the statement of facts or bills of exception cannot be considered, although filed within 20 days. Such has been the uniform ruling of the court. Without these matters before the court, there is no question that can be revised:

The judgment will therefore be affirmed.


text:
    BAGLEY v. STATE.
    (No. 3725.)
    (Court of Criminal Appeals of Texas.
    Oct. 20, 1915.
    Rehearing Denied Nov. 17, 1915.)
    1. Criminal Law <&wkey;595 — Continuance — Absence oe Witnesses — Materiality oe Testimony.
    On a trial for selling intoxicating liquor in prohibition territory, one witness testified that he purchased a bottle of whisky from defendant about 9:30 a. m., and another, after dark, about 7:30 in the evening. Another witness claimed to have purchased whisky about dark. The court’s qualification of a bill of exceptions indicated that the sales were made on February 27th. Eeld, that the refusal of a continuance because of the absence of witnesses who would have testified to defendant’s whereabouts between 10 a. m. and 5:30 p. m., on February 26th, was not error, as their testimony would not have been material to any issue in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dee. Dig. &wkey;595J
    2. Criminal Law <&wkey;780 — Instructions — Testimony oe Accomplices.
    If, on a criminal trial, the evidence suggested that witnesses for the state were accomplices, the court should have charged the provisions of Code Ci\ Proe. 1911, art. 801, providing that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and that the corroboration is not sufficient if it merely shows the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. 4&wkey; 780.]
    3. Criminal Law <&wkey;507 — Instructions — Testimony oe “Accomplice.”
    Where a sheriff agreed with R. to pay him for each bootlegger he might aid him in catching, and, pursuant to such agreement, R. purchased whisky from defendant, he and the sheriff were not “accomplices” within the rule governing accomplices’ testimony, in view of Pen. Code 1911, art. 602, providing that the fact that a person purchases intoxicating liquor from one who sells it in violation of the provisions of that chapter shall not constitute such person an accpmpliee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. <&wkey;> 507.
    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    4. Intoxicating Liquors <&wkey;141 — Criminal Oeeenses — Pursuing Business oe Selling Liquor.
    That defendant may have been in some other business would not prevent him from pursuing the occupation of selling liquor to all who applied to him.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. &wkey;>141.]

      Appeal from District Court, Harrison County; P. O. Beard, Special Judge.
    Tom Bagley was convicted of pursuing the business of selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    Lane & Lane, of Marshall, for appellant. O. C. McDonald, Asst. Atty. -Gen., for the State.
   HARPER, J.

Appellant was convicted of pursuing the business of selling intoxicating liquor in prohibition territory, and his punishment assessed at three years’ confinement in the state penitentiary.

A motion in arrest of judgment was filed, insisting the indictment alleged no offense against the laws of this state. In the brief filed by appellant’s counsel, this question is not presented. We judge that upon further examination of the indictment appellant’s counsel ascertained it was in language frequently approved by this court, and that this court had held that such indictment charged the offense alleged.

Appellant insists that the court erred in overruling his application for a continuance on account of the absence of the witnesses A. L. Hayden and Wirt Hope. By these witnesses he states he expected to prove that each of them were with appellant on the 26th day of February from 10 o’clock in the morning until 5:30 o’clock in the afternoon, and during that time he did not sell any whisky to Jess Richardson nor O. W. Blueher. In approving the bill of exceptions, the court states:

“The evidence shows that neither Wirt Hope nor A. L. Hayden were in the city of Marshall, Harrison county, on the 27th day of February, and knew nothing of .the sales of liquor to either Joss Richardson or O. W. Blueher on the 27th.”

If appellant expected to prove his whereabouts on the 26th and the evidence on the trial shows that the sales, if any made, were made on the 27th, and not the 26th, the testimony would be material to no issue in the case. Again-, the witness Richardson testified he purchased one bottle of the whisky about 9:30 in the morning, and the other after dark, about 7:30 in the evening. Blue-her testified he purchased the whisky he cttaimed to have bought about dark. So if Hayden and Hope would testify they were with appellant from 10 o’clock to 5:30 and he sold Richardson and Blueher no whisky during that time, it would in no sense dispute the state’s testimony, nor have any tendency to show it was not true. The record disclosing the testimony would be material to no issue in the case, the court did not err in overruling the motion for a new trial on this ground.

This case was tried the 14th day of last April, and no exceptions were reserved to the charge of the court as given, although there were several special charges requested. Special charge No. 1 seems to have been embodied in and made a part of the court’s main charge; at least, it is fully covered by the court’s charge. The other special charges requested relate to accomplice testimony, and requests the court to instruct the jury that Jess Richardson, O. W. Blueher, and Sheriff Sanders were accomplices, under their testimony, and requested the court to apply the law of accomplices’ testimony to their evidence. Appellant refers to article 801 of the Code of Criminal Procedure. If the evidence suggested these men were accomplices, then, of course, the provisions of article 801 ought to have been given in charge to the jury, but article 602 of the Penal Code provides:

“The fact that a person purchases intoxicating liquor from one who sells it in violation of the provisions of this chapter shall not constitute such person an accomplice.”

Richardson testified he purchased one bottle of whisky from appellant on the 27th about 9:30 in the morning, and purchased another bottle on the same day about 7:30 in the evening. He testified the sheriff had agreed to pay him $25 for each bootlegger he might detect, provided the sheriff was placed in such position he might see the sale made. Sheriff Sanders testified he made that agreement and saw appellant make the sales to Richardson. Appellant insists that, notwithstanding the above provision of the Code, the fact that Sanders had agreed to pay Richardson $25 for each bootlegger he might aid him in catching would render them accomplices, bringing them both within the rule governing accomplices’ testimony. This was decided adversely to appellant in Walker v. State, 72 S. W. 401, soon after the adoption of article 602. In that case, this court, speaking through Judge Davidson, held:

“Alexander was the purchaser, and Hightower was president of an anti-saloon league, who employed Alexander to ferret out violations of the local option law; and it may be conceded that Alexander induced appellant to sell him the whisky for the purpose of instituting criminal proceedings against him. * * * It is a sufficient answer to all these questions to say that, under the facts, * * * neither of the witnesses is an accomplice” — citing the' above provision of the Oode.

The rule as thus announced has been adhered to. See Branch’s Criminal Law, § 554.

Appellant at the same time may have been a cattle buyer, but this would not prevent him from also pursuing the occupation of selling liquor to all who aijplied to him, and this he seems to have done. Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1046.

Judgment affirmed.
      <S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes