author: HARPER, J. DAVIDSON, J.

text:
    McLEOD v. STATE.
    (No. 3569.)
    (Court of Criminal Appeals of Texas.
    May 26, 1915.
    Rehearing Denied June 16, 1915.
    Dissenting Opinion, July 19, 1915.)
    1. Statutes <&wkey;179 — Penal Statutes — Construction.
    Under Pen. Code 1911, art. 10, declaring that undefined words in a statute shall be construed in the sense in which they are understood in common language taking into consideration the context and subject-matter, the court in construing a word in a penal statute must consider the context and subject-matter and, if possible, ascertain the legislative intent which governs over the literal import of the word, without regard to grammatical rules.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 258; Dec. Dig. &wkey;>179.]
    2. Sunday &wkey;>6 — Places oe Amusements— Statutes — Violatio ns .
    An owner of a moving picture show, who gave an exhibition on Sunday without selling tickets, but placing a jar near the place where the ticket seller usually stood to receive donations and receiving donations in a substantial sum, violated the statute punishing the proprietor of any place of amusement permitting his place to be open on Sunday and declai-ing that the term “places of amusements” includes theaters and other such amusements as ai-e exhibited and for which an admission fee is charged, since the purpose of the statute is to prevent the keeping open on Sunday of theaters and places of public amusement where a remuneration is accepted and received by the proprietor for so doing.
    [Ed. Note. — For other cases, see Sunday, Cent. Dig. §§ 11, 12; Dec. Dig. <&wkey;>6.]
    Davidson, J., dissenting.
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    E. L. McLeod was convicted of crime, and he appeals.
    Affirmed.
    Baskin, Dodge, Baskin & Eastus, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

The information charges that appellant on the 21st day of March (Sunday) was the proprietor of a place of public amusement, a picture show, and permitted a moving picture show to be exhibited in said place of public amusement and for which an admission fee was charged. When he was tried he was adjudged guilty, and he brings the case to this court upon one assignment of error — that the evidence does not show that an admission fee was charged, and was therefore insufficient to sustain the judgment.

Appellant himself testified:

“My name is E. L. McLeod. I am the owner and manager of the Isis moving picture show, located at No. 2103 North Main street, in the city of Ft. Worth. I have been operating this show for more than one year. It is fully equipped for a moving picture exhibition. The usual admission fee charged for admitting a person into this show on week days is live and ten cents. On Sunday, the 21st day of March, 1015, I gave an exhibition of moving pictures in the afternoon and night of that day. The show was opened at 2 o’clock in the afternoon and continued open until 10 o’clock of that evening. No admission fee was charged, and no tickets were sold. The young lady who always sits at the ticket window during week days for the purpose of selling tickets was not there. All orderly persons desiring to witness the moving pictures on that day were admitted free and allowed to depart without being asked or required to pay an admission fee. I was personally in charge of the show and was in and about the premises during the whole of the afternoon and evening for the purpose of looking after the comfort of those attending the show, and to preserve order as it was usual for me to do on other days. No one else was on duty about the show that day except myself and the operator of the picture machine. I paid the operator for his services on that day. The music was provided by an electric piano, and the pictures exhibited were similar to those shown week days. Before the show was opened, 1 placed a glass jar near the ticket window on the outside for the purpose of receiving donations from any person who wished to donate on entering the show. The donations dropped into the jar amounted to .$30.50. I took charge of this money .and applied it to my own use as I would any other money I considered my own.”

It is thus seen that no tickets were sold, and no admission fee demanded; a receptacle was placed where the ticket seller stood on other days of the week, in which to re-, ceive contributions.

Our statute provides that the proprietor of any place of public amusement who shall permit his place of public amusement to be open for the purpose of trailic or public amusement on Sunday shall be fined not less than $20 nor more than $50. If the statute stopped there, there could be no question that the above state' of facts would render appellant guilty of violating the law, but in the statute it is stated:

“The term place of public amusement shall be construed to mean circuses, theaters and other such amusements as are exhibited and for which an admission fee is charged.”

Appellant contends that a literal construction 'should be given to the word “charged” —that is, that a price was demanded before one was admitted to the show — and cites us to the case of Ex parte Jacobson, 55 Tex. Cr. R. 240, 115 S. W. 1194, in which the following language was used:

“A reading of the law makes it evident that the opening of places of amusement is not • a violation of the law, unless an admission fee is charged. If an admission fee is not charged, though the place of amusement is open on Sunday, ;S * * there would be no violation of its provisions.”

While we do not question the rule of law there announced, if a proper construction is given to the words “admission fee charged,” yet such expression of opinion in that case was but obiter dicta. The question was not involved in that case, for in that case the opinion makes it plain that an admission fee was charged, demanded, and received from each and every person who entered the theater. The question in that case was solely whether or not the appellant in that case, with others, was guilty of an unlawful assembly. That and that alone was decided.

Appellant also refers us to article 10 of the Penal Code, which reads:

“Words which have their meaning specifically defined should be understood in that sense, though it be contrary to their usual meaning; and where words are not defined, they are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed.”

Appellant would have us take the words “admission fee is charged” in the sense they are understood in common language, without taking into consideration the context and subject-matter to which they are employed. This we are not authorized to do, for one provision is equally as binding as the other, and both are binding on this court, and it has always been held, in passing on the meaning of a word used in the Code, we must take into consideration the entire provision and ascertain the intent of the Legislature in the use of the word, taking into consideration the context and subject-matter, and, if the intent can be ascertained, it must govern over the literal import of the words, without regard to grammatical rules. Brooks v. Hicks, 20 Tex. 666; Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595; Rigby v. State, 27 Tex. App. 55, 10 S. W. 760; Sartain v. State, 10 Tex. App. 651, 38 Am. Rep. 649; Albrecht v. State, 8 Tex. App. 314; Barkley v. State, 28 Tex. App. 99, 12 S. W. 495; Ex parte Robinson, 29 Tex. App. 186, 15 S. W. 603.

Taking into consideration the entire provision of the Code — that it shall be unlawful for any place of public amusement to be open on the Sabbath for public amusement, and that the term “place of public amusement” shall be construed to mean theaters and such other amusements as are exhibited and for which an admission fee is charged — it is, we think, clear that it was the intent and purpose of the Legislature to prohibit any such place to be open on Sunday where a remuneration was received and accepted by the proprietor for keeping his place open and giving such public amusement. In this case appellant placed a jar at the point where the ticket seller usually stood, a silent solicitor lor contributions— pay for admission to the picture show. It was not compulsory; but, if the “contributions” received on a few Sundays should be too small to pay the necessary expense o£ running the picture show, we are satisfied the generosity of the proprietor would fall to a low ebb, and the picture show be closed on the Sabbath. The “silent solicitor of contributions” is but a substitute for a ticket seller, and such attempted evasion of the law cannot be countenanced. It has been attempted before in this state, and failed.

In the case of Wallis v. State, 78 S. W. 231, a saloon keeper kept his place of business closed, but handed out two bottles of beer that he claimed to have sold on Saturday, but was to keep on ice. Such acts were held to be but an attempt to evade the plain provisions of the law.

In the case of Knox v. State, 77 S. W. 13, the appellant kept his doors closed, but left one unlocked which people could open and go in. This was construed to be keeping his place of business open for the purpose of traffic, although all openings were closed. This court said;

“If even the doors were closed by defendant, as is here shown, and parties passed in and out as they pleased, that would be evidence of the fact that the saloon was open.”

In that case the word “open” was not given its literal meaning, but it was taken in connection with the other provisions of the act, and given a sensible construction that would effectuate the purposes of the law. So in this case, it is our duty to give to the article of the Code the construction that will render it effective — prevent people from keeping open on Sunday their theaters and such places of public amusement where a remuneration is expected and received by the proprietor for so doing. In this instance it is shown he received $30.50 for the performances given on that day, which we are satisfied is about as much as he would have received had a ticket seller stood at the door and demanded an admission fee.

Since this court construed the Sunday law as prohibiting the operation of moving picture shows on Sunday in Ex parte Lingenfelter, 64 Tex. Cr. R. 30, 142 S. W. 555, Ann. Cas. 1914C, 765, a session of our Legislature has convened and passed. During its session a bill was introduced authorizing cities to permit moving picture shows to be operated on Sunday if they so desired, it being House Bill No. 182, and it was overwhelmingly defeated, the vote being 72 to 43; thus making it clear that it was not the intent and purpose of the Legislature in enacting the Sunday law to permit moving picture shows to be operated on Sunday.

In the opening chapters of that holy book, the Bible, we find that:

“In the beginning God created the heavens and the earth. * * * And the heavens and the earth were finished, and all the host of them. And on the seventh day God finished his work which he had made; and he rested on the seventh day from all his work which he had made.”

We are further informed that man was made in the image of God, and from the beginning of time experience has shown that in creating man God so framed his handiwork that he also should rest from his usual vocation and calling one day out of every seven; that it is the law of nature, and if violated it brings its own punishment. In our younger days we may labor every day in the week during the year, but experience has demonstrated it shortens the days of our life. Such constant work in one’s usual vocation weakens the mental power, undermines the physical strength, and in the end destroys the faculties thus brought into constant use. The state has recognized this, and commanded that we cease our usual labor one day in seven, believing that we would remain vigorous men and women for a greater length of time, and there would be less insanity and invalidism. We believe this to be true, and we think our Legislature so thought in enacting this statute. For the same reason our "child labor laws were passed, our laws which fix eight hours as a day of labor, etc. The Legislature did not mean in saying that theaters and moving picture shows should not operate on Sunday, as some seen to think, that they were immoral, no more than in saying that the dry goods merchant should not sell his goods on Sunday. They felt that the dry goods merchant, his clerks, and employes needed the rest of one day in seven, and felt that the moving picture operator also needs this rest, that their days might be lengthened, and their mental and physical strength maintained to the end.

We are of the opinion that the facts show that appellant violated the law, and the trial court did not err in so holding.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). In order to sustain a conviction under article 302 of the Penal Code, it is necessary, first, that moving picture shows come within the denunciation of that article, and, second, that a fee must be charged for admission to its exhibitions. This is the statute and is fully recognized by the majority opinion in this case as well as the majority opinion in Lingenfelter v. State, 64 Tex. Cr. R. 30, 142 S. W. 555, Ann. Cas. 1914C, 765. That moving picture shows eo nomine are not named in the statute is also fully recognized in the Lingenfelter Case, and expressly so by the Legislature as shown by the action of that body at the general session of the Thirty-Second Legislature in House Bill No. 497. For a review of the history of this matter and such action of the Legislature, see the Lingenfelter Case at page 59 of 64 Texas Crim. Reports, 142 S. W. 555, Ann. Cas. 1914C, 765. This court by a majority opinion held in that case that such shows are not mentioned, but they held them to be theaters, and by such holding brought or sought to bring picture shows within the terms of the statute. By the terms of the statute theaters run on Sunday are prohibited only when an admission fee is charged. The statute does not mention moving picture shows. I dissented in that case, believing, and yet believe, that a moving picture show is not a theater. This ought not really to be debatable. For a discussion of these questions, see the opinion and dissenting opinion in Ldngenfelter Case. I do not believe it would serve any useful purpose now to again review that phase of the statute.

Judge HARPER for the majority seeks to fortify his opinion in this case by reciting the fact that the iast Legislature declined to permit cities to authorize the operation of picture shows within the city limits. X am persuaded that he is not justified in this position. The action of the legislature, if supporting him, in any sense at all, does so on the theory that, the Lingenfelter Case having held picture shows to be theaters, the Legislature therefore could not authorize the city to set aside, annul, or repeal a state law as to theaters. The Legislature was correct, if it be conceded that the majority were correct in holding picture shows to be theaters. In the act of the last Legislature above mentioned that body did not say nor intimate that a picture show was or is included in article 302, but it may be supposed that the Legislature recognized the fact that as the majority opinion of this court declared the law it should be binding on that body whether correct or not. If they took that view of it, they may do so, or at least feel justified in refusing cities authority to suspend, repeal, or annul a state law, that is, if the picture show is a theater. It is an axiomatic truth that a city cannot annul or suspend a state law, and it is equally axiomatic that the Legislature cannot authorize it so to do, and this by express provision of the Bill of Rights, for it is therein declared that no law shall be suspended except by the Legislature. That body cannot delegate to any city the power to suspend or repeal a state law. But I do not agree that a moving picture show is a theater. I do not care to pursue this particular phase of the case further, and refer to what I had to say on this subject in my dissenting opinion in the Lingenfelter Case.

It is held by the majority that “contributions” as shown by the facts were “admission fees,” and therefore constituted what the statute inhibited, “fees charged for admission.” It is conceded the contributions were entirely voluntary and a great many who attended the exhibitions did not contribute anything. I cannot agree with such a conclusion. Charging a fee for admission is a demand, a condition precedent for attending the exhibition. Without its payment entry to the show is effectually barred. This is not so with reference to voluntary contributions. In the latter case the show was open to all who may desire to attend, and this without money and without price. Contributions made are voluntary and need not be paid. They are not demands, but in a sense generosity. This is too well understood by all church organizations and church attendants to admit of doubt or call for discussion. “Receiving contributions” or “talc-ing up collections” is practically the only way revenue for church purposes is realized or obtained. It would strike the priest, preacher, or layman as a novelty to assert that such contributions or collections constituted or is a demand of admission fee for attendance upon divine services or for the purpose of carrying on the great work of the Christian church of spreading the teachings of Christianity. It would be rather a revelation to the church to announce that attendance upon its services is dependent upon admission fees as a condition precedent to be paid in advance, or that to enjoy the blessings “of a free salvation” the communicant must pay stipulated sums of money as a prerequisite. A fee demanded as a prerequisite is a financial proposition to be complied with before the happening of the contingency. The contributions are voluntary and in church purposes supposed to be of an unselfish nature, and one that carries the idea of service and duty to others rather than to the donor. In view of these high ideals of duty and service, the churchman, priest, or layman is solemnly told that contributions and collections are only “evasions,” subterfuges, and duplicitous; that they are really fees for admission to attendance at church services. From any viewpoint, legal or otherwise, contributions should not be held to be “evasions'.” Evasion is not synonymous with admission and require payment under the demand, nor is a contribution box of the church a “silent solicitation for contributions” to be treated as a demand for payment. It is not a fee charged for admission to church services or privileges. It is a gift of more or less value as the ability, willingness, generosity, or conscience of the donor may suggest. It is conceded that no one was charged an admission fee. This ought to have ended the case. This distinction between voluntary contributions and exacting an admission fee is the very attribute that distinguishes a lawful gift from simony.

Back to the case. I feel persuaded that the evasion found by my Brethren is a matter of construction in their opinion not to be found in the facts, or in the “silent solicitation for contributions,” and is not sustained by the facts nor within the terms of the statute. All offenses in Texas must be plainly defined as a prerequisite to punishment of a citizen of this state. The statute does not authorize such conviction except upon cliarg- • iiig an admission fee. Contributions and gratuities are not made part of the statute. The whole ease is one of judicial construction and in effect judicial legislation. The statute nowhere mentions moving picture shows, and the Legislature refused to include such shows in the statute, as evidenced by their action above referred to, refusing to amend this article by inserting moving picture shows. See Acts 32d Legislature. 64 Tex. Cr. R. 60, 142 S. W. 555, Ann. Cas. 1914C, 765. As I understand the decisions and the act of the Legislature refusing to include moving picture shows, the conviction in this and the Lingenfelter Case, by virtue of judicial construction, constituted it a judicial and not a legislative offense. Lingenfelter Case, 64 Tex. Cr. R. 59, 142 S. W. 555, Ann. Cas. 1914C, 765.

As to authority on the Sunday law we are cited to “the opening chapter in the holy book, the Bible,” by the majority opinion. Since filing this dissent Judge HARPER has changed his original opinion so as to make “chapter” read “chapters,” in referring to the opening chapter of Genesis. I do not exactly understand the application of this citation to the case. The seventh day rest or Sabbath, as it may be termed, is not found in the “opening chapter of the Bible,” but is recorded in the second chapter of Genesis, second verse, where it is stated, “God ended his work on the seventh day,” etc. The creation' is generally supposed to have occurred prior to the seventh day, and it has always been generally understood that God created man during the six days, perhaps on the sixth, and it is true from the reading of the first chapter in Genesis that God gave him power of control and dominion over the earth and all created things. This authority is found in the “opening chapter of the holy book, the Bible.” The seventh day, or day of rest, did not occur until after God had turned over this dominion to man and ordered him to “subdue” the earth, and placed him in control of all created things. After granting such authority to man, the Creator rested on the seventh day. This created man superior to the Sabbath of the Jew or of Genesis. This was expressly recognized by the Saviour on one occasion when the Pharisees chided him on the fact that his disciples were violating the Sabbath day by plucking ears of corn, when he stated to them the Sabbath was made for man and not man for the Sabbath. This was the expressed recognition by the Saviour of the power conferred upon man in the beginning. This citation by my Brethren from the Bible, had it been in the opening instead of the second chapter, was certainly not seriously intended to sustain the proposition that a failure to charge an admission fee was an “evasion” of the Sabbath on which the Creator rested. The rest day of the Sabbath was a cessation from labor. It was not a financial proposition. The cessation from running the picture shows is not cessation from labor, but it was, as construed, intended to prevent collection of fees and making money. The labor is just the same whether the fee is charged or is not charged, 'provided the picture show operates. The statute therefore under consideration was not enacted on the theory that rest from labor on the Sabbath is the issue, or for the reason that it was a cessation of labor on Sunday, but is based exclusively and entirely on the proposition that such places of amusement can only be interdicted when a fee is charged. If the “admission fee” is eliminated, my Brethren write positively that it would not be a violation of the Sunday law to operate the picture show. So the labor question does not enter into it. The statute under consideration was not enacted for the purpose of cessation from labor, but to prevent the owners of the establishment from charging an admission fee to such places of amusement on Sunday. The labor is just the same, whether an admission fee is charged or is not charged.

But the citation is unfortunate in another way. The Sabbath of the Jew, or the Sabbath of Genesis, if not before abolished, is substituted and abolished by the act of the Legislature (article 302 P. 0.) under discussion so far as the police power of this state is concerned. I suppose at this late day no one could contend or assert it to be a fact that the Jewish Sabbath, or the Sabbath of Genesis, is the Sunday of the Christian world to-day. Theologically and perhaps from church history viewpoint the present Sunday may be regarded as the Lord’s day of the apostolic times, or the first day of the week in honor of the resurrection, and not the seventh day of the Jews, or the rest day of Genesis. Whether the present Sunday is the first day of the week or not, one thing seems to be definitely certain and settled, and that is, it is not the Jewish Sabbath, and one of the statutes of this state recognizes that fact, because it makes an exception under the labor statute (P. C. arts. 299, 300) with reference to those who observe and keep any day of the week other than our Sunday as their day of rest. Whether it be right or wrong, whether it be sacrilege or not, it is clear that the Texas statute repealed, or at least does not recognize the Jewish Sabbath under the terms of article 302 of the Penal Code, but does recognize it to some extent in article 300 of the Penal Code in the following language:

“Nor to any person who conscientiously believes that the seventh or any other day of the week ought to be observed as the Sabbath, and who actually refrains from business and labor on that day for religious reasons.”

This language seems to refer to article 299, which punishes those who labor, or compel, force, or oblige their employés, workmen, or apprentices to labor on Sunday. Most of the churches or denominations fail to recognize the Jewish Sabhath as our Sunday, and the legislative department does not do so, except as above quoted. Whether the Sunday of the present era is the Lord’s day or the day observed by the earlier followers of Christianity may be shrouded in some doubt. That the early Christians seem to have adopted the first day of the week, instead of the seventh day, as their holy day, does not seem to' admit of serious doubt. Whether Sunday, as we now term it, obtained its name from the observation of the first day of the week, or whether it came under and by virtue of the royal edict of Constantine dated 7th of March, anno Domini 321, is not entirely clear; but since the issuance of that royal edict we have had Sunday laws. Investigation historically of the origin of the Sunday law under this edict of Constantine and the causes which brought it about would be entertaining, but not necessary in this opinion. That Sunday law was very similar to article 299 of our present Penal Code. It interdicted laboring and following ordinary pursuits on Sunday except in cases of necessity. But whether it be the substitution of the Lord’s day or the first day of the week, or the Sunday law of Constantine, or the act of the Legislature, would make no material difference so far as the Sabbath of Genesis is concerned. The Sabbath of Genesis is not the Sunday of Texas legislation. Our statute is purely a police regulation. It is not a church ordinance and cannot be. Union of church and state cannot legally occur in Texas. Our legislative bodies and political theories of government are interdicted from prescribing religious tests or mingling church with state. Every man in Texas is vouchsafed the right to worship God as he believes, and suitable laws have been enacted to protect him and those who believe and worship with him from intrusion from outsiders. “The Sabbath is made for man and not man made for the Sabbath.” This is the same proposition announced in Genesis.

Therefore I think my Brother HARPER was unfortunate in selecting the Jewish Sabbath, under the circumstances of this case, to support his contention that a “contribution” is an “evasion” of the statute and eguivalent to a “fee charged for admission.” I am still of the opinion that moving picture shows are not theaters, and agree with the Legislature as above quoted that there was no law against it in Texas, and it is only so by judicial legislation of my Brethren making a moving picture show a “theater,” not by legislative act. I refer to my dissent in the Lingenfelter Case, and still hold there is no violation of the law in exhibiting moving picture shows on Sunday whether there be charged an admission fee or not. The statute does not include, nor attempt to include, moving picture shows within its terms. The judgment ought to be reserved, and the prosecution dismissed. I cannot therefore agree with my Brethren in their conclusion.
      <gs»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    LEACH v. STATE.
    (No. 3783.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.)
    1. Witnesses &wkey;>337 — Impeachment — Fok-mek Conviction — Remoteness.
    Where defendant testified in his own behalf, his cross-examination, for the purpose of impeachment, eliciting his statement that he had been convicted of cattle theft, and had served his term in the penitentiary, and the admission in evidence of the certified copy of the judgment of conviction and sentence 12 years before, when defendant was a mere boy, without evidence of intervening convictions or that defendant had not reformed, was erroneous, as being too remote.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. &wkey;337.]
    2. Witnesses <&wkey;410 — Impeachment — Corroboration.
    In such prosecution, where the defendant cross-examined the train auditor, the state’s only material witness, who testified positively that defendant rode on the pass issued to another, to lay the predicate to impeach him and to show that his testimony was in part fabricated, the state could support the witness by corroborating testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. &wkey;»410.]
    Appeal from Hunt County Court; H. O. Norwood, Judge.
    Hamp Leach, was convicted of unlawfully using the pass of another to travel free on one of the railroads in the state, and he appeals.
    Reversed and remanded.
    Clark & Leddy, of Greenville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully using the pass of another to travel free on one of the railroads in the state.

Appellant has a bill of exceptions, which shows: That he testified in the case. That on cross-examination, for the purpose of impeaching him, he was asked by the state if he had not been indicted in Newton county for a felony. He first answered he did not remember. Thereupon the state’s counsel asked him if it was not a fact that he was indicted for cattle theft in said county, convicted, and sentenced to the penitentiary for 2 years and served out his time, to which he then replied that such was a fact. That when the state’s counsel propounded said questions he had before him a certified copy of the judgment of conviction and sentence, and thereupon his counsel asked to be permitted to see the judgment and sentence, which was accorded him. Upon inspecting them he for the first time learned that the date of conviction was June 26, 1903, and, upon further interrogating appellant, it developed that said offense for which he was convicted was committed when he was about 15 years of age, the trial occurring some 2 years after the commission of the offense, whereupon he moved the court to strike out said testimony and instruct the jury not to consider it, because it was too remote to affect his credibility, the conviction occurring 12 years previous to this trial, when he was a mere boy. The court overruled this motion, and refused to exclude said testimony and order the jury not to consider it, to which he then excepted. That thereafter the state’s attorney introduced in evidence the said certified copies of conviction and sentence, which showed that he was convicted June 26, 1903, and sentenced July 1, 1903, to serve in the penitentiary 2 years. That, when these judgments were offered, he objected to their being introduced in evidence, because the time of conviction was too remote to be admissible to affect his credibility, and that he was a mere boy at the time. The court overruled his objection, and he excepted. The only qualification the court makes to this bill is that appellant did not object to the testimony of his said conviction at the time it was offered, and that at the time he made the motion to strike out the testimony he did not understand that the county attorney’s question showed the date of the conviction, and that he first learned the date from an inspection of said judgments.

The true rule on this subject, as stated by this court in Vick v. State, 71 Tex. Cr. R. 62, 159 S. W. 57, is laid down in the case of Winn v. State, 54 Tex. Cr. R. 538, 113 S. W. 918, and Oates v. State, 67 Tex. Cr. R. 488, 149 S. W. 1194, as follows:

“Testimony of this character after a long lapse of years should not have been introduced where there was nothing in the record to show that defendant has not reformed; in other words, the law will not permit the early indiscretions of a witness to be brought into requisition to besmirch and becloud his subsequent life. To do so, as expressed by Judge Green-leaf [in one of the cases cited below] would be to preclude any possible chance of a reform, and would enable state’s counsel to parade the early misdeeds of a subsequently useful life to be introduced to bedoud and discredit the subsequently honorable and useful life.”

This bill shows that appellant was a mere boy only 15 years old. when he committed the said theft for which he has been convicted more than 12 years before the trial of this case, and there was nothing, as shown by the bill, to show that he had not reformed. If the bill had shown affirmatively that he had been convicted or legally charged with felonies between the time of his former conviction and this trial, as we held in the Oates Case, supra, then said testimony would have been admissible, but the bill shows no such state of fact. Therefore the court committed an error in permitting thig testimony, as shown by this bill, which results in the reversal of this case.

There is but one other question which it is necessary to pass upon, and that only in view of another trial. A. M. Kirby was the state’s material witness, and the only one by whom it could make out its case against appellant. He was the train auditor of said railway company, and testified, in substance, on his direct examination, that on December 13, 1914, appellant rode upon the pass issued by said railroad to J. R. Ratliff, and that he was positive that appellant was the man who rode on that pass at that time. This was the substance in full of his testimony on direct examination. The appellant thereupon put him through a grilling cross-examination, laying the predicate to impeach him on various points by the testimony of others, and seeking to show that his testimony in certain particulars was recently fabricated because he had learned that the appellant had some two or three witnesses to impeach him.

We think it unnecessary to point out the various matters wherein appellant .sought to impeach him and introduced witnesses subsequently, whose testimony was directly in impeachment of him in various particulars. Such being the ease, the state could clearly support him by the testimony in the various particulars pointed out in appellant’s bills of exception on that point. Hence the court committed no error in permitting the supporting testimony objected to by appellant’s several bills on that subject. Jones v. State, 38 Tex. Cr. R. 103, 115, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; English v. State, 34 Tex. Cr. R. 200, 30 S. W. 233; Mitchell v. State, 36 Tex. Cr. R. 302, 33 S. W. 367, 36 S. W. 456; Reddick v. State, 35 Tex. Cr. R. 469, 34 S. W. 274, 60 Am. St. Rep. 56; Akin v. State, 56 Tex. Cr. R. 329, 119 S. W. 863; Messer v. State, 43 Tex. Cr. R. 109, 63 S. W. 643; Keith v. State, 44 S. W. 850.

Reversed and remanded.
      <S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    ALEXANDER v. STATE.
    (No. 3748.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.
    On Motion for Rehearing, Nov. 17, 1915.)
    1. Criminal Law «&wkey;l(X92 — Appeal—Biílii of Exceptions — Time foe Filing.
    A bill of exceptions, taken on appeal from a conviction in the county court, could not be considered, where it was filed .22 days after court adjourned; the time for filing bills of exception and statements of fact being limited by statute to 20 days after adjournment of court, when predicated upon an order of the court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829; 2834-2861, 2919; Dec. Dig. <&wkey;1092J
    2. Criminal Law <&wkey;1159 — Question of Fact — Conflicting Evidence.
    Where the evidence for the state would justify a conviction, and that for defendant would show that he did not sell whisky, but acted as another’s agent in securing it, the Question was for the jury, and the Court of Criminal Appeals will not disturb the conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 8074-3083; Dec. Dig. <5&wkey; 1159.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Carl Alexander was convicted of violating the local option law, and he appeals.
    Affirmed.
    Chas. Ashworth, of Kaufman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for violating the local option law; his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

There is a bill of exceptions in the record to the refusal of the court to permit the prosecuting witness Evans to answer the following question:

“Did you not have a fight with the defendant that same night after the party at the place where you say the liquor was sold?”

He would have, had he been permitted to do so, testified he had such a fight. Appellant contends this was relevant to show motive with which the witness was testifying against appellant. The bill of exceptions cannot be considered, because it wad filed 22 days after court adjourned. In county court cases the time for filing bills of exception and statement of facts is limited by statute, as construed by this court, to 20 days after adjournment of court, and this must be predicated upon order of court. This bill, therefore, cannot be considered.

It is contended the evidence is not sufficient. That is sharply an issue. That for the state would justify the conviction, and that for the defendant would show that he did not sell whisky, but got it from another party for the benefit of the people who wanted the whisky, and that he acted as their agent in securing the whisky, and not as a seller. The jury had the right to solve that question, and believe the state’s witnesses. On that ground this court would not be justified in disturbing the verdict of the jury.

The judgment is affirmed.

On Motion for Rehearing.

On a previous day of this term the judgment herein was affirmed, without considering the bills of exception; they being filed too late. The other ground presented on original submission was want of sufficient evidence to show the alleged sale of intoxicating liquors in local option territory. On motion for rehearing a new proposition is presented, to wit: That the statement of facts does not show that local option was in effect in Kaufman county. This for the first time is called to our attention, and not noticed in the original opinion. An inspection of the evidence discloses that this position is well taken. The evidence does not show that local option was in effect in Kaufman county. A conviction for violation of the local option law cannot be had until after the adoption of that law by the people in the given territory, and this must be shown by the statement of facts.

For this reason, the affirmance will be set aside, the rehearing granted, and the judgment will be reversed, and the cause remanded.
      <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    MORENO v. STATE.
    (No. 3768.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Indictment and Information <&wkey;87 — Time of Offense — Statute.
    Under White’s Ann. Code Cr. Proc. art. 4:60, subd. 6, providing that the time of the commission of the offense must be anterior to the filing of the information, an information filed April 7th, charging the offense of carrying a pistol to have been committed on April 1st, was sufficient.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. §§ 244 — 255; Dee. Dig. <©=»87.]
    2. Indictment and Information <&wkey;86 — Requisites — Venue.
    In an information presented by the county attorney for Wise county in the county court of that county, charging that defendant “then and there” unlawfully carried a pistol, the words “then and there” related back to allegation as to the party by whom and the county in which it was presented, and sufficiently alleged venue.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 230-243; Dec. Dig. <®=vjS6.]
    3. Criminau Law &wkey;>1124 — Appeal—State - ment of Facts.
    Where no statement of facts accompanies the record, the Court of Criminal Appeals cannot pass on an exception complaining of error in not setting aside the verdict on ground of the insufficiency of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dea Dig. &wkey;1124.]
    4. Weapons &wkey;>17 — Offense — Sufficiency of Evidence.
    Evidence in a prosecution for unlawfully carrying a pistol, as shown by the trial court’s statement in approving the bill of exceptions, held sufficient to sustain a conviction.
    [Ed. Note. — For other eases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. <&wkey;17.]
    5. Criminal Law <©=51036 — Admission of Evidence-Time for Objection.
    In a prosecution for unlawfully carrying a pistol about April 1st, evidence that defendant was seen with a pistol in September previous, admitted without objection until after conviction, presented no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1631-1640, 2639-2641; Dee. Dig. <&wkey;>1036.]
    Appeal from Wise County Court; J. W. Walker, Judge.
    Matilde Moreno was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed. "

      Spencer & Shults, of Decatur, and H. E. Lobdell, of Bridgeport, for appellant. C. C. McDonald, Asst. Atty. Gen., for tlie State.
   HARPER, J.

Appellant was convicted under the following information:

“In the name and by the authority of the state of Texas. M. W. Burch, county attorney of the county of Wise, state aforesaid, in behalf of said state, presents in the county court of said county, at the April term, 1915, of said court, that Matilde Moreno, on or about the 1st clay of April, A. D. 1915, did then and there unlawfully carry on and about his person, a pistol, against the peace and dignity of the state.”

After verdict, and after his amended motion for a new trial, appellant filed a motion in arrest of judgment on the grounds: (1) That the information does not allege that the offense was committed before the filing of the information; (2) that the information does not allege venue. The information shows to have been filed on April 7, 1915, and charges the offense to have been committed on April 1, 1915. April 1st is certainly anterior to April 7th. Subdivision 6 of article 466, White’s Ann. Code Ctf. Proe., provides: That the time of the commission of the offense be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation. It is only where the information is filed on the day the offense is alleged to have been committed that it is essential that it allege that the offense was committed prior to the filing of the information. If the date alleged and the filing of the information show that the date alleged is anterior to the filing of the information, this is in compliance with the statute. Wilson v. State, 15 Tex. App. 150, and cases cited under section S43, White's Ann. Code.

As to venue, we think the words “then and there” relate back to the allegation that “M. W. Burch, county attorney of Wise county, presents in the county court of said county,” and does allege venue. In the case of Vick v. State, 69 S. W. 156, an information in almost identical language was held to allege venue sufficiently. See, also, Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 157, Ann. Cas. 1914C, 863, and authorities cited.

In the first bill of exception it is complained that the court erred in not setting aside the verdict on account of the insufficiency of the evidence. No statement of facts accompanies the record, therefore we cannot pass on this question. However, in approving the bill the court states:

“But two witnesses testified in the pase, both for the state. Mary Corona and Katie Rascoe. Both testified that they saw a white-handled, nickel-plated pistol in the hip pocket of defendant, in the town of Bridgeport, in Wise county, Tex., on the 1st day of April, A. D. 1915; that defendant came to the home of Katie Rascoe on said date, in company with Notsie Grill, who had been cut in the neck, and that defendant unwrapped a handkerchief from around the barrel of his pistol for the purpose of stanching the flow of blood from Notsie Grill’s neck. Both witnesses testified to seeing defendant have the same pistol on a different occasion on or about September, A. D. 1914. No objection to the charge or exception to the evidence or ruling of the court were reserved by defendant during the trial of said cause, and the case was submitted to the jury without argument.”

If but two witnesses testified in the case, and they both testified to seeing appellant with a pistol on April 1, 1915, the date alleged in the information, the evidence is certainly sufficient.

Appellant insists that it was fundamental error to permit the witnesses to testify that they saw appellant with a pistol on April 1, 1915, and also in September, 1914. No objection was made to the introduction of the testimony at the time it was admitted, nor at any other time until after verdict was rendered, consequently this presents no error. If the state should undertake to prosecute appellant a second time, by showing that the evidence adduced on this triajl embraced both dates, the judgment could be pleaded in bar to a second prosecution.

As no statement of facts accompanies the record, it would be useless to discuss the other questions presented, as none of them are of a character we can review with no facts before us.

The judgment is affirmed.
      <gs>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. DAYIDSON, J.

text:
    TYRONE v. STATE.
    (No. 3567.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    Rehearing Denied Oct. 13, 1915.
    Dissenting Opinion, Nov. 17, 1915.)
    1. Criminal Law <&wkey;660 — Conduct os’ Judge — Remarks to Panel.
    Any objection to remarks by the court to the regular jury panel cannot be sustained, where accused made no objections to the jurors drawn from such panel, and it did not appear that when such jurors were accepted he had exhausted his peremptory challenges.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1536, 1537; Dee. Dig. <&wkey;> 600.]
    2. Criminal Law <&wkey;706 — Examination — Error.
    Accused cannot complain that the district attorney used a memorandum in examining witnesses, where there was nothing to show that such memorandum was notes of the testimony given at the preliminary examination, or before the grand jury, and the district attorney declared that it was merely a memorandum to refresh his memory.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. &wkey;>706.]
    3 Criminal Law <&wkey;655 — Triai>-Remakks of Court.
    Where accused objected to the district attorney using a memorandum in examining a witness, and there was nothing to show that it was notes of testimony taken at the examining trial or before the grand jury, the court may properly remark that he did not desire more time wasted on frivolous controversies.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. &wkey;>655.]

      4. Witnesses &wkey;>330 — Cross-Examination— Scope.
    Where accused’s wife took the stand and testified that deceased had sexual intercourse with her while she was under a hypnotic influence. she may be cross-cxamined as to whether hex- husband did not examine her as to such ti-ansaction.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. &wkey;330.]
    5. Criminal Law <&wkey;1120 — Appeal—HARMLESS ERROR.
    Where the record did not disclose the answer, the impropriety of a question on cross-examination cannot be urged on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. &wkey; 1120.]
    6. Criminal Law <&wkey;730 — Trial—Argument of Prosecutor.
    Where the district attorney in his argument quoted from notes of the testimony of witnesses, and the court charged the jury that they should disregard any argument not based on the evidence, and, though refusing to again interrupt the district attorney gave a requested cbai-ge that statements made in argument were not evidence, accused cannot complain of the district attorney’s use of his memorandum.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. @^730.]
    7. Criminal Law <&wkey;8G5 — Trial — Instructions.
    In a prosecution for felony, it was not error for the court to inform the jury, after they had been deliberating, that it would be necessary for him to go to his home, and to urge them to continue their deliberations and arrive at a verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2069; Dec. Dig. <^^865.]
    8. Criminal Law <&wkey;649 — Trial—Adjournment.
    For the judge to leave court and visit his home when he returned the next day does not ipso facto woi-k an adjournment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1512-1516; Dec. Dig. &wkey; 649.]
    9. Criminal Law <&wkey;939 — New Trial — Newly Discovered Evidence.
    In a prosecution for manslaughter, where accused’s wife claimed that deceased hypnotized and then had intercourse with her, newly discovered testimony in rebuttal of the state’s medical experts, that such acts could not have been consummated during hypnosis, is no ground for new trial, for accused should have anticipated such contention and prepared to meet it with medical experts and standard medical works.
    [Ed. Note. — For other cases, see Ci'iminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. <&wkey;> 939.]
    Davidson, X, dissenting.
    Appeal from District Court, Eastland. County; Thomas L. Blanton, Judge.
    W. I. Tyrone was convicted of manslaughter, and he appeals.
    Affirmed.
    The district court gave to the panel of jurors for the week the following verbal instructions:
    “In the trial of every case in the district court it is frequently necessary during the trial for the court to retire the jury during argument for counsel on the admissibility of testimony. That is a matter which is controlled by law, and when you are forced to retire every few minutes, if that should be the case, you must not become nettled at the attorneys who make the objections, or any one else, as the law demands it, and you are as much responsible for it as any one else, so you will have to take it as a matter of course. I mention this because sometimes jurors become nettled at attorneys for making objections which force jurors to retire. It is the duty of a good attorney to make an objection, whenever ho thinks it is to the interest of his client, and the law requires that the court should retire you, and so it is a matter over which none of us have any control. We just have to take it as a matter of course.
    “You are asked on your voir dire frequently whether you know anything about a given case, and at the time being you may not remember that you do know anything about it, and you so answer, and ax-e taken on the jury. Later on the evidence of some witness may remind you of some fact or circumstance about which you have personal knowledge. If that should occur, it would be your duty as a good juror not to consider it for any purpose, your private knowledge of a matter, and you should not mention to any of your colleagues that you know anything about the case. You are to try the case solely upon the law and the evidence that is brought to your attention in the courthouse, and not in regard to something you have heard on the outside. You are asked on your voir dire whether you will try a case according to the law and the evidence. That means evidence which is introduced and admitted by the court; and if you consider anything that is not admitted by the court you would bo violating your oath, and be doing a great injustice to the parties litigant. I have heard jurors when I was in the practice say that the court excluded testimony, but they considered it just the same, because they thought it was pertinent to the issues. Now, if you do that, you can see where you would be doing the parties a great injustice. They accept you on the jury, believing that you will carry out 3rour oath; and if you should consider that which is not admitted by the court you will be violating your oaths, as well as doing them a great injustice.
    “The verdict of a petit jury in the district court is the agjfeed consensus of opinion of each and all 12 men on the jury. It is not altogether what just one man thinks about the case, although it takes his opinion, agreed to with the others, to constitute a verdict. It is not just what 3 men, or 5 men, or 7 or 11 men, think. It is what each and all of the 12 men, after they have carefully considered the case, after they have exchanged ideas with each other, after they have discussed the matter from different viewpoints — it is what they are willing to agree upon in the case. Sometimes a juror, after he spends several days trying a case, goes into the jui'y consultation room, and just because every other juror does not think just exactly as he thinks, he thinks that there is no possible chance for the jury to agree, and he thinks that there is a hung jury. Men ought to he willing to discuss matters among themselves and get each other’s viewpoints. There is no two of you men alike. Every one of you are different. You are different in your looks, your statures, your physiognomies, your viewpoints, and every way; and yet, that being the case, it is possible for 12 men dissimilar in every way to reach a verdict that is just and righteous according to the law and the facts in the case.
    “A hung jury is a detriment to the interest of the state, and also to the defendant, and to all parties litigant in civil cases. It ought to be just as easy for one set of 12 honest, upright, conscientious men constituting a jury to find a verdict on a given state of facts and the law as it would be for any other jury of 12 men of equal conscientiousness; ini other words, it ought to be just as easy for one jury to find a verdict on the same facts as it is for another jury on the same facts to reach a verdict. Some of us imagine that all of the contrariness in the world wears dresses. That is a mistake. Some of it wears pants; and if we would just weed out of the jury room all personal contrariness and personal arbitrariness, it would be very easy for von to find a verdict on the facts. If you will just forget the standing of parties, just forget what their names are, and who they are, and try the case according to the evidence and the law, a jury would have little trouble in reaching a verdict. If you will just forget for the time being who the parties are, tlieir standing, and their identity, and their names, and all about them, and just try the case as though you had never heard of it before, and then it is tried in a just and righteous way. The parties then, get the benefit of the law, applied to the facts of that particular case.
    “In the trial of every criminal case a defendant is permitted to testify in his own behalf. That is a matter, however, which is regulated almost entirely by the judgment and discretion of his counsel. An attorney, under our law, might have a good reason, consistent with the innocence of his client, for not placing Mm on the stand. Under our law, where the defendant does not testify, you not only cannot consider it against him, but you cannot even mention that fact to any of your colleagues. If you should mention it, it would cause the court to set aside any verdict you might render, and might ’possibly cause the court to place a punis7ime,nt upon t%e juror who disobeys the instructions; so you want to be very careful.”
    W. D. Morns, of Albany, S. W. Bishop, of Gorman, and J. R. Stubblefield, of Eastland, for appellant. O. O. McDonald, Asst Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted at the January, 1915, term of the district court of Eastland county of manslaughter, and his punishment was assessed by the jury at confinement in the state penitentiary for a period of five years.

Our able Assistant Attorney General has so ably discussed and disposed of every question raised in the motion for a new trial, we adopt the brief as the opinion of the court:

“Bill No. 1 complains that the court erred in giving verbal instructions to the panel of jurors for the week before this case was called for trial and before it was set for trial. A special venire was afterwards ordered, and two men, Dane and Gillette, who were on the panel for the second week, were accepted as jurors. At the time appellant made no objection to either juror, and the record does not disclose that appellant had exhausted his peremptory challenges when either of said jurors was accepted. This complaint is wholly without merit. Reed v. State, 168 S. W. 541; McGaughey v. State, 169 S. W. 287. But not only is this hill wholly without merit, but the entire instruction copied in this bill and delivered to the jury for the week on the part of the trial court was so able and so proper and so commendable that I ask this court, if they agree with me in this view, to copy said instruction in the opinion that it may be preserved in the jurisprudence of our state as an able appeal to the loftiest sentiments of citizenship.

“In the next two bills appellant complains that the court erred in permitting counsel for the state to read from a memorandum testimony which was given by the witness Alvin Tyrone before the grand jury, for the purpose of impeaching said witness and for the further purpose of placing him in a bad attitude before the jury; it being alleged that said witness was not an unwilling witness and state’s counsel was not surprised at his testimony. The bill further complains that the court, in the presence and hearing of the jury, said to counsel, ‘Gentlemen, I don’t want any more of the time of the court wasted with frivolous controversies,’ it being alleged that said remark was calculated to prejudice the rights of appellant. These hills as qualified and as accepted by appellant show that the only objection or exception taken by appellant was with reference to the district attorney’s questioning the witness while looking at a piece of paper which he had in his hand. Judge Morris, for appellant, stated he objected to counsel reading from the testimony before the grand jury, and the district attorney replied that he was not reading from the grand jury testimony, but was referring to private notes in order to know how to frame questions to the witness. The court thereupon said that if it was the private notes of counsel he had a right to refresh his memory with them. Counsel for appellant then said it was either the grand jury testimony or testimony taken at the examining trial. The court ruled that, if the district attorney was using either grand jury testimony or examining trial testimony, the defendant could see it, but he had no right to see private notes of counsel for the state used purely as a memorandum to refresh his memory. These bills as qualified and accepted by appellant are wholly without merit, because appellant’s counsel offered no testimony to show that the paper in the hands of the district attorney was testimony adduced at any former trial or hearing. And it was certainly proper for the court, in order to stop further colloquy between. counsel in the courtroom and in order to preserve order and decorum, to state to counsel to be seated; that he did not want any more time wasted with frivolous controversies, such as this one was.

“In the next bill appellant complains that the court erred in permitting the state to ask the witness Mrs. W. I. Tyrone, on. cross-examination, over appellant’s objection: ‘Is it not a fact that your husband, W. I. Tyrone, had you to place one hand on the Bible and one hand on your heart and say that there had never been anything wrong between you and Dr. Evers?’ The bill nowhere discloses what answer was given to said question. But reference to the statement of facts discloses that the witness answered that he had not. In the first place, this was certainly legitimate and proper cross-examination. The defendant himself placed his wife on the stand and elicited from her the remarkable story that deceased had exerted hypnotic influence over her to such an extent that she was- powerless to resist him, and that, being absolutely devoid of will power, yet conscious of the doctor’s acts, and while under Ms influence, she yielded to deceased and permitted him to have carnal intercourse with her; and further that she had communicated the story of her debauchery to her husband, and on account of the cMldren they had agreed to keep it quiet; that before she would tell Mm she exacted a promise from him that he would not kill deceased, etc. Certainly, therefore, the state had the right to ask her on cross-examination, not only what her husband said when such information was first communicated to him, hut how he was affected, and any other matter proper and material to the main testimony given, and further for the purpose of laying a predicate for her impeachment on any of such matters. See Dee Stacy Case, recently decided.

“In the second place, since no answer is set out in the bill, the same is insufficient, as this court cannot determine whether or not appellant was injuriously affected. And if reference be bad to the statement of facts, it will be observed that a negative answer was returned to said question, and hence appellant cannot claim that he was prejudiced thereby.

“Appellant also complains that the court erred in permitting the district attorney in his closing argument to read from a written memorandum made by himself which he referred to as testimony of some of the witnesses. Counsel for appellant thereupon requested the following instruction: ‘You are instructed that the statement of the district attorney that a certain written instrument was the evidence of a witness in this case is not evidence, and you will not consider the statement so made by the district attorney whatever, hut you will disregard such statement, and you cannot consider the same against this defendant for any purpose.’ It appears that when objection was made the court immediately orally instructed the jury that they could not consider the argument of the district attorney or of any other attorney as evidence in the case, and that the written memorandum from which the district attorney read to them a moment before while making his argument was not evidence and they should disregard the same. He further instructed them, in this connection, that unless they found that arguments of counsel were supported by the record evidence in the case they should disregard any portion of the same not supported by such evidence. However, after delivering such oral instruction, counsel for appellant wrote out a written charge to the same effect and asked the court to again interrupt state’s counsel in order to road their written charge, which the court marked ‘given,’ and the court declined further to interrupt the speech of state’s counsel. Said special charge was, however, handed to the jury with the court’s main charge. As T view the matter, this bill is absolutely without the semblance of merit, and I believe it would be had the court refused to give either the written charge or the oral instruction. The writer of this brief has scarcely addressed a jury in’ a murder case in which he did not take notes during the trial of tlie cause on important testimony from leading witnesses and copied it in his memoi-andum hoik, and while addressing the jury, in order to be absolutely correct in quoting the witnesses, would read from the memorandum the exact words by the witnesses, and has left it to the jury to say whether or not he was correct in quoting said witnesses’ testimony. But in this case appellant certainly cannot complain because he had the benefit of both oral and written instructions; and, since the court had orally instructed them, certainly he was not called upon to again read to the jury the special charge which he had given.

“Appellant contends the court erred in sending for the jury after they had been deliberating on their verdict about 24 hours, and telling them he had to go to his homo in Abilene, and urging them to continue their deliberation conscientiously in an effort to arrive at a verdict. Tlie remarks are set out in full in the bill to which the court is respectfully referred. I submit that said instructions were altogether proper and commendable, and were but an appeal to tlie jury to do their duty as good citizens. His entire statement to them is absolutely devoid of a single improper reference or remark as I view it. Iio distinctly told them to take plenty of time, do good work, and stay in a good humor; all of which instructions were devoid of prejudices conducive to a well-considered, impartial, unbiased verdict. Muckleroy v. State, 42 S. W. 383; Dow v. State, 31 Tex. Cr. R. 278, 20 S. W. 583; Jordan v. State, 30 S. W. 445; Wilkerson v. State, 49 Tex. Cr. R. 170, 91 S. W. 228; Brady v. State, 74 S. W. 771; Carlisle v. State, 56 S. W. 365. I also submit that the necessity of the judge’s going to his home in Abilene did not ipso facto adjourn said court, and that part of this complaint is without merit. White v. State, 61 Tex. Cr. R. 498, 135 S. W. 562; Scott v. State, 47 Tex. Cr. R. 568, 85 S. W. 1060, 122 Am. St. Rep. 717. He returned on the next day and remained in attendance on court.

“Appellant contends that the court erred in overruling his motion for a new trial on the ground of newly discovered evidence, in this, that the state, over objection of appellant, proved by the witness Dr. Sheppard that it was impossible for any person to wield a hypnotic influence over another person to the extent that such person would submit to the sexual embrace of such other person, or that the person under such influence would lose all will power to resist such act of intercourse, etc. Appellant alleges that for the first time, after the trial of this cause, he ascertained that the witness Dr. Johnson, a resident of Eastland county, would testify to the contrary. In connection with this bill, I ask the court to refer to appellant’s motion for new trial wherein appellant alleges that Peterson & Haynes’ Legal Medicine and Toxicology, vol. 2, p. 138, states that there is no doubt that the hypnotic state may be induced and used for sexual purposes, etc., and further states that said book is a standard medical authority. I attribute appellant’s complaint as to newly discovered testimony to the untiring zeal on the part of his attorneys to find some pretext on which to hand at least a faint hope for a reversal of his cause, rather than to a desire to submit any real substantial matter to the court in this bill. It would be a reflection on the ability of appellant’s counsel as criminal attorneys to say that they could not foresee that, when they introduced appellant’s wife and elicited from her her wierd and unreasonable story, her testimony would be attacked by the state for every legitimate angle. And appellant’s counsel must have known that the reasonableness of the story would depend on the reasonableness of hypnotic power. That very fact must have charged them with the duty to search the medical authorities on that -subject; and, when Dr. Sheppard had concluded his testimony, they had but to refer to the standard medical work upon which they rely for a new trial, the index of which would have immediately directed them to the paragraph which they now claim1 as newly discovered evidence, and, when they had found it, their necessity in the case would have immediately prompted them' to consult Dr. Johnson and all other able physicians to find testimony further to support their contention. But they did not even ask the time of the court to look up the medical authority or to consult with a physician; and certainly they cannot be heard to complain at this late date. The testimony of Dr. Sheppard adduced by the state and complained of herein was material on the part of the state because, if appellant’s wife’s story was unreasonable and probably untrue, then it would certainly be considered by the jury as tending to throw light on the fact as to whether or not she ever communicated such a story to her husband prior to the homicide.

“Appellant also insists that the court erred in overruling his motion for new trial because the evidence was wholly insufficient to sustain the conviction for manslaughter. And in apparent sincerity appellant’s counsel contend that this is true because appellant himself says that he killed deceased in self-defense, and therefore, if he did, he should of necessity have been acquitted. Appellant’s counsel at the moment must have forgotten that there were other witnesses who testified in this case, among them .being appellant’s own children, his daughter-in-law, his aged mother, and others, and it must have for the moment escaped the attention of appellant’s counsel that these witnesses had contradicted appellant on almost every material point in his entire testimony. The bill needs no further comment.

“The indictment in this case is valid, and the state’s witnesses, if they are to be believed— and the jury evidently did believe them — furnished ample testimony on which to base the conviction. The charge of the court presents in a most favorable light to appellant every defense even remotely raised by the evidence of appellant’s witnesses. Indeed, the charge is so perfect that not a single exception is taken to it by appellant’s counsel. And not a single requested charge was asked and refused. An extended statement of the facts would be useless. As I view the record, it is absolutely clear of error on the part of the trial court, and the judgment should be affirmed.”

And as requested by Mr. McDonald, the reporter, in connection with this case, will publish the court’s remarks to the jury when it was impaneled for the week.

The judgment is affirmed.

DAYIDSON, J.

(dissenting). Before the adjournment of the last term of this court, the judgment herein was affirmed. Motion for rehearing was filed and disposed of during the present term. I did not then believe, and in the light of further investigation am more fully persuaded the opinion is not correct, and that the judgment ought to have been reversed.

Appellant was allotted five years in the penitentiary under a conviction for manslaughter. As evidenced by the statute this is the maximum punishment. This is mentioned for the reason that, if there were any circumstances on the trial which led erroneously to conviction or to enhanced punishment, conceding appellant’s guilt, then the verdict was wrong and the judgment erroneous. This record discloses that it was the custom of the trial judge to deliver on each recurring Monday morning during his term of court a charge or lecture, to the jury for that week, in which he instructed them, substantially, there should be no hung juries in the trial of causes; that one set of twelve jurymen ought to dispose of a case as easily and as readily as any other twelve jurors; that hung juries were detrimental to the state, were expensive, and cost the state money; that causes should be tried without regard to the “standing” of the parties to the litigation, and the jurors should disregard such standing; that they should lay aside all their “contrariness,” and should agree to a verdict. Defendant was not present when this charge was given and had no opportunity then to enter his protest. Many exceptions, however, have been urged and were urged when this matter was called to his attention. This charge was not given on the trial of the case. Had it been, this judgment would have been promptly reversed. I believe even the majority of this court and the Assistant Attorney General would so concede. Two of the jurors thus charged sat upon the trial of the case and convicted appellant. It is a matter of judicial knowledge to this court that it is and has been the habit and custom of that trial judge to so charge the jury. Reed v. State, 168 S. W. 641. The Reed Case was tried in the same county by the same judge as was this case, but at a previous term of the court. The Assistant Attorney General recommended a decided approval of this charge by this court. A majority of this court adopted that request as evidenced by their opinion. Partisanship is commendable on the part of attorneys. An attorney’s view usually is that his side is right, but the court does not primarily so hold. The case must so present itself from careful revision. Such request, if indulged, should be of a character that the court, from every standpoint, could say the request should be endorsed as correct and as the law of that case. Zeal is commendable, but this belongs to attorneys, not the court. He may be commended for his success, but I cannot agree with the court in adopting his zealous views.

The accused is accorded and entitled to a fair trial by an impartial jury. At least, the Constitution and our law so guarantees. This is time honored, it is the growth of our jurisprudence, and guaranteed by section 10 of the Bill of Rights. This means twelve impartial jurors in the district court. Article 1, § 10, of the Bill of Rights. Also, article -6, § 13. This remains inviolate. Constitution, art. 1, §§ 15 and 29. Each of the twelve jurors shall be fair. It does not mean a part of the jury ofjwelve, but it means all and each juror. The verdict must be from twelve unbiased jurors. It does not mean a fraction of the jury. The verdict is the independent vote and verdict of each juror. This is guaranteed by the Constitution, and it is provided by the Constitution and the statute that the accused cannot be deprived of such trial. The verdict is not that of a majority of the jury; it must speak the truth as to the conscience and judgment of each juror. There is no warrant of law for the proposition thav less than a full jury of twelve men can under any circumstances in a felony case render a verdict, or that the verdict shall be rendered by a majority of the jury. It is not the law that the majority shall control the minority or dictate their verdict. Nor am I aware as to which part of the jury — -the majority or the minority — constitute the “contrary jurors,” where the jury does not agree. The trial court, however, from Ms charge, seems to have thought it was the minority. This may be or it may not be, but it is not the province of the judge to decide that question. The law takes this from the court and places it exclusively in the hands of the jury. There is no rule of law that fixes infallibility in a majority of the jury. Each juror must decide for himself upon his judgment and conscience, and to test this the statute authorizes that the jury may be polled to ascertain if the verdict is that of each juror unbiasly given. If not, the verdict is not to be received. The forcing of a majority verdict upon the minority for any reason is violative of every principle of law, and is subversive of all ideas of a fair trial, and overturns tbe constitutional and statutory guaranties. Tbe jury could not be fair under sueb circumstances, nor could it be impartial. If tbe charge mentioned bad been given on tbe trial of the ease, no citizen of Texas, be he layman, attorney, or court, would have sanctioned it. It subversively struck; at the very basis of a fair trial by an impartial jury, and invaded tbe province of tbe jury. No appellate court- would have sustained a conviction thus obtained.

Nor do our Constitution, statutes, or jurisprudence proceed on tbe idea that tbe life, liberty, or property of a citizen shall be taken because it may be costly to tbe state for tbe jury to disagree as to their verdict, or that a conviction should be upheld obtained for that reason. This idea is more than a criticism and reflection upon our people and their ordained government. Tbe life, liberty, and property of our citizenship are not held on or by such sordid consideration. Life, liberty, and property are placed on higher lines and grander planes. We have not placed nor rested these great principles on financial consideration. Life, liberty, and property are not the subject of cost bills. Innocence is not to be weighed by such methods or means, and it is to be hoped will never be. The Bill of Rights fixes it definitely and provides that no man’s life, liberty, or property shall be taken except by due process of law. It excludes the idea that either shall be taken to prevent cost or expense. Every criminal trial involves cost and expense, but this lias not heretofore been urged as a reason for verdicts or convictions. If this is to be the law, or regarded as such, our lives, liberty, and property will become the subject not only of financial consideration, but to be decided to save expense accounts. I protest against such propositions either as law or policy. Law, and not money, is the legal criterion in the trial of cases.

Again, the “standing of parties” in criminal cases has heretofore been considered of most material consideration. One of the basic principles of this and other right-minded governments is the “standing” and character of the citizenship. Such “standing” and character has at all times been considered of inestimable value in governmental and social relations. In criminal cases this has been the subject of express legislation. In murder cases, as in other cases, the standing and character of the citizen when tried for his life or liberty has been thought heretofore to be of the most material consideration. It is deemed unnecessary to collate the statutes and ‘ decisions manifesting this great truth and principle. The books teem with such jurisprudence, and beyond dispute even by the most strenuous seeker for the imnishment of the citizen. It aids and is in accord with the great underlying principles of innocence and its overruling presumption. This belongs only to the jury to be weighed by them. It is expressly so provided by statute. The court is debarred from passing on such facts. He instructs as to the law; he may not and cannot invade the jury box. Sanctity against the judge guards the jury box and protects the citizenship against his expression of opinion on the evidence.

“Character” is but a synonym of the high “standing” of the womanhood and manhood of our country, and its citizenship for integrity. It is the product, or intended so to be, of our civilization, political and religious, and has been in our history and social life. Purity of life has been indorsed among all right-thinking people in all times of history. On the plains and among the Judean hills Christ denounced the Pharisee and pronounced benedictions upon purity in life. To this end and for the establishment of character, the clergy, Protestant and Catholic, have preached the teachings of the Savior, and beginning at Jerusalem have heralded the principles of the Sermon on the Mount to all nations for over 1900 years. The churches or denominations have established and supported colleges and universities so that character lofty and pure might form the basis of society, and from their viewpoint inculcate the great doctrines of Christianity. To the end that our people be taught high standards of life and character, our secular school systems have been created, fostered, supported, and cherished. Our system of public education, common schools, normal colleges, A. & M., and State University crystallizes the thought in which is involved, and about which revolves, the great central idea of upbuilding character in our youth and as the basis and hope of the future of our civilization. In that great system inheres the welfare, development, and character building of the youth, future manhood and womanhood, and the higher destiny of our great commonwealth. The past and present furnish the greatest and most perplexing problems which have involved and do involve the destiny of our people and the great issues' of the future. To meet that and build character of student bodies, those institutions are endowed and upheld as the central thought of our civilization and polity, and this whether the school system be sectarian or nonsectarian, religious or secular. Higher civilization based on nobility of character is in the last analysis the central thought of our advanced and advancing humanity, civilization, and jurisprudence. It involves the higher destiny of our country and people.

The trial judge who delivered the derelict charge set out in this record, but for the fact of his high character, could not have entered the legal profession through which he is permitted to qualify for the distinguished judicial position he occupies and which enabled him to deliver that charge to the jury. That judge selected the jury commissioners by whom the jury he addressed was drawn because of their high “standing” as citizens. The jury he was addressing were chosen on the theory of their character and standing, probity and integrity, and fitness to decide the great questions of life, liberty, and property submitted to them. The very basic reason for their selection as jurors they were instructed to disregard in deciding upon the lives and liberty of their fellow men. Presumption of innocence is based on the natural as is the legal idea that the citizenship are not criminals, at least to the extent that the prosecution must prove beyond a reasonable doubt the accused guilty of a legal violation. Standing and character is the underlying thought of this fundamental principle of law and government. This charge of the trial judge strikes essentially at the very life of that great principle, and means, if carried out, its destruction.

Character is worth something in all phases and departments of life. It is a priceless asset not only to the individual, but to society, civilization, and humanity. It is on this principle that humanity moves, works, builds, and this from the mother’s touch in infancy at the home fireside till the close of eventful life.

Under our supposedly advancing civilization towards higher planes, loftier thoughts, and purer character, I am persuaded we have not yet reached the point where character shall be ignored or be leveled with viciousness; or where the .good and the noble are to be classed on equality with the impure, or the manhood and womanhood of “standing” and character with those who have neither.

Our Constitution, statutes, jurisprudence, history, polity, civilization, institutions, state and church, in all things and from every standpoint have been based upon the “standing” and character of the womanhood and manhood of our age and country, past and present, and upon these we are building the expectancies of the future of humanity. These all stand as enlarging monuments of protest to the submarine sentiment expressed in the unfortunate charge.

To this end the suspended sentence law was enacted. That law left that matter exclusively to the decision of the jury. The court is powerless to interfere with it. The very basis of the suspended sentence law is the standing and character of the accused, and yet the court said to the jury they must not consider his standing, in face of the fact that appellant filed his plea for suspended sentence in this very case, but the jury failed to recommend it. What effect did the judge’s speech or charge have upon this feature of the ease? That is one of the questions. Can we tell? We know that the jury refused to suspend the sentence, and we further know that appellant was awarded the highest punishment allowed by law for the offense of which he was convicted. It may be this charge from the “Lord’s annotated” turned the scale against the defendant, and doubtless did, and caused the jury to resolve all issues against him.

The wife of appellant was placed upon the stand, and testified for her husband, to the insulting conduct on the part of the deceased toward her, and further that deceased had had carnal intercourse with her, and that he had accomplished this by hypnotizing her, and that she communicated these facts to the defendant prior to the homicide. After she had so testified, the state, upon cross-examination, asked the following question:

“Isn’t it a fact that your husband, the defendant, W. I. Tyrone, had you to place your hand, one hand on the Bible and one hand on your heart, and say that there had never been anything wrong between yourself and Dr. Evers?”

Evers was the deceased. Various objections were urged to this; that she was the wife of defendant, and could not be cross-examined on any matter about which she did not testify in her direct examination, and because it was an effort on the part of the state to introduce a privileged communication or conversation between husband and wife. Appellant also asked the court to instruct the jury not to consider this for any purpose. The court qualifies this bill by stating such question was proper examination of the matters elicited by the defendant. The writer agrees with the appellant in this contention. This was privileged matter which is held sacred by the statute.

It does seem to me that this record manifests the fact that the appellant has not had a fair trial such as the law guarantees to the citizen when tried for his life and liberty. If the rule of substantial justice is to be invoked for the state and made the criterion of decision against the citizens, why would a failure of substantial justice be equally invoked in behalf of the citizen as to his right for fair and just trial? The rule ought to be made to work both ways, if used in criminal trials, and not used to deprive the citizen of a fair trial.

For the reasons indicated, the judgment ought to be reversed, and the cause remanded.
      <Ss»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ite^For other cases see same tonic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    VAUGHAN v. STATE.
    (No. 3752.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    Homicide &wkey;s257 — Assault with Intent to Kili^-Sueeioienct oe Evidence — Intent. Evidence in a prosecution for assault with intent to kill held, insufficient to sustain a conviction, in that it did not justify a finding of intent.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 543-552; Dec. Dig. &wkey;>257.]
    Appeal from District Court, Marion County; J. A. Ward, Judge.

      Robert Vaughan was convicted oí assault to murder, and he appeals.
    Reversed, and cause remanded.
    W. L. Grogan, of Jefferson, for appellant. O. 0. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

There are a number of grounds noted in the motion for a new trial, but none of them in our opinion present error, unless it be the ground that alleges the insufficiency of the testimony to sustain the verdict. In an assault to murder case, the evidence must be of that character which would authorize the finding of a specific intent to kill. Jobe v. State, 1 Tex. App. 183; Patrick v. State, 33 S. W. 352; Parker v. State, 53 S. W. 115; Reyes v. State, 48 Tex. Cr. R. 346, 88 S. W. 245; Poster v. State, 39 Tex. Cr. R. 399, 46 S. W. 231; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99. We always dislike to disturb the verdict of a jury on the evidence, but, as held by this court in Jobe’s Case, supra:

“The intent with which the act is committed in this character of offense is a material fact; and, when there is a deficiency of proof of such intent, this court has no discretion.”

We have read and re-read the evidence in this case, and to our mind there is no evidence that would justify a finding of intent to kill. An assault was made-beyond question under our statute, but the evidence and all the evidence negatives the specific intent to kill. The injured party, Harrison Pitts, negatives any idea of malice or ill will, as do also all the witnesses for both state anu appellant, in our opinion. There are some isolated circumstances which, unexplained and taken by themselves, might tend to show sudden malice, growing out of play; but, when the testimony is taken as a whole, these isolated circumstances are made to appear insignificant. When the appellant shot, he says he had no intention of shooting Pitts. The distance was great, and the shot barely buried themselves in Pitts’ leg. Appellant at once went to him, protested he had no intention of shooting Pitts, assisted Pitts to arise, carried him to his (appellant’s) home, and went after a doctor for Pitts. After the doctor arrived, the doctor says he examined Pitts and found several shots in both the lower limbs. They did not go in deep — just went under the skin — and, it was so trivial, it would hurt worse to get them out than to let them remain. Appellant’s whole conduct on the occasion, as testified to by the witnesses, negatives that state of mind incident to a case of attempt to murder. As before said, while we are always reluctant to disturb the verdict of a jury on the facts, yet, when the record as a whole seems wanting in proof tending to show malice or ill will, we deem it our duty to do so.

The judgment is reversed, and the cause remanded.
      @=5For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes