author: PRENDERGAST, J.

text:
    HARGROVE v. STATE.
    (No. 4477.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    Criminal Law c§=^>945(2) — New Trial — Absent Witnesses.
    In a prosecution for unlawfully carrying knucks, in which the evidence was conflicting as to whether defendant had knucks on his person as charged, it was error to overrule defendant’s motion for new trial to procure the attendance of witnesses who would testify that they were personally present at the difficulty, and would swear positively that the defendant did not at that time have knucks; plaintiff having used all' proper diligence to procure the attendance and testimony of such witnesses.
    [Ed. Note. — For other oases, see Criminal Law, Cent. Dig. §§ 2324^-2327.]
    Appeal from Hopkins County Court; T. J. Tucker, Judge.
    Ben Hargrove was convicted of unlawfully carrying knucks, and he appeals.
    Reversed and remanded.
    J. A. Dial and G. H. Crane, both of Sulphur ■Springs, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for unlawfully carrying knucks, with the lowest punishment assessed.

It was a sharply disputed issue whether appellant had on his person knucks at the time he was charged therewith. The state introduced several witnesses, most of whom, if not all, admitted hostility and- ill will against appellant. They testified positively that appellant did have on his person knucks at the time charged. The appellant disputed this pointedly, testifying positively that he had no knucks at the time, nor at any other time. He had some witnesses, who were present and witnessed the altercation, who testified that they were in'a position to see, and did see, and that they did not see appellant with knucks at the time the state’s witnesses testified he had them. Their testimony was not positive and direct that he did not at that time have knucks, but the effect ■of it might be that he did not.

The appellant had used all proper and necessary diligence to secure the attendance .and testimony of two witnesses, Jack Sparks and Elmer Campbell, who he alleged in his motion for a new trial in substance would testify that they were personally present at the time of said difficulty and saw what occurred, and would swear positively that he (appellant) did not at the time have knucks. 'This testimony was very material under the circumstances. At the previous term, when his witness Sparks was present, the state continued the case. We cannot say that the .jury would have convicted if he had had the testimony of these two witnesses, or even one of them. It may or may not have done so. At least, under the circumstances, he was entitled to a continuance to procure their testimony, and the court erred in overruling his motion for a continuance, or rather in overruling his motion for a new trial because thereof, for which error the judgment must be reversed.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    UTSLER v. STATE.
    (No. 4469.)
    (Court of Criminal Appeals of Texas.
    May 9, 1917.
    On Motion for Rehearing, June 13, 1917.)
    1. Parent and Child <§f^>17(5) — Abandonment or Neglect to Support — Statute— Information — Sufficiency.
    Acts 33d Leg. c. 101, § 1, provides that any parent who shall willfully or without justification desert, neglect, or refuse to provide for the support and maintenance of his or her child or children under the age of 16 years in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor, and fixes the punishment therefor. Section 3 provides that proof of desertion of such child in destitute or necessitous circumstances or neglect or refusal to provide for the support and maintenance of such child shall be prima facie evidence that such desertion, neglect, or refusal is willful. Section 6 prescribes that the act shall be liberally construed. Pen. Code 1911, art. 23, provides that use of the singular number includes the plural, and the plural includes the singular; and the words used in the masculine gender include the feminine also, unless by reasonable construction it appears that such was not the intention of the Legislature. An information alleged that accused was the father of four children named, and that he unlawfully, willfully and without justification neglected and refused to provide for the support of “said injured party, the said injured party then and there being under the age of 16 years and in destitute and necessitous circumstances.” Held, that the indictment sufficiently alleged that each of the children named was under the age of 16 years.
    [Ed. Note. — For other cases, see Parent and Child, Cent. Dig. §§ 179, ISO.]
    2. Indictment and Information <§=3137(1)— Complaint — Sufficiency — Motion to Quash.
    In prosecution of a father for failure to care for and support minor children where the complaint begins, “Personally appeared before the undersigned authority this affiant who after being duly sworn,” etc., and signed by affiant and properly sworn to before the proper officer and attested by the proper jurat, defendant’s motion to quash it because affiant’s name was not given in the body of the complaint was correctly overruled.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 4S0.]
    3. Criminal Law iS^595(10) — Continuance-Competency of Evidence.
    As the fact that a wife refused to give up the custody of her young children does not relieve the husband from his legal duty under Acts 33d Leg. e. 101, § 1, to support and maintain them when they are in destitute and necessitous circumstances, in a prosecution under such statute a refusal of a motion to continue on account of the absence of a witness who had testified to the wife’s refusal was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323, 1327.]

      4. Criminal Law <®=> 1169(8) — Admission of Evidence — Favorable Error.
    In a prosecution of a father for refusal to support Ms minor children, testimony that he had paid his wife money for her support or that of the children after the complaint and information were filed would be in his favor, and would not tend to show any offense against him committed after the pro'secution was begun.
    [Ed. Note. — Eor other cases, see- Criminal Law, Cent. Dig. §§ 3088, 3089.]
    5. Criminal Law <g=»1169(2) — Review—Reversible Ebbor.
    Erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3138.]
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Richard Utsler was convicted of deserting his minor children, they being in necessitous circumstances, and in failing to support them, and he appeals.
    Affirmed.
    W. W. I-Iagebush and Reid Williams, both of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for deserting his minor children and failing to support them, they being under necessitous circumstances.

The complaint and information, which were both filed September 27, 1916, were in three counts. The first was for the desertion and failure to support his wife. The second alleges that, on or about August 18, 1916, appellant “was the parent and father of Willie, Edward, Mary, and Eugene Utsler, hereinafter styled injured party, and the said defendant did then and there unlawfully, willfully, and without justification desert, neglect, and refuse to provide for the support and maintenance of said injured party, the said injured party then and there being under the age of 16 years and in destitute and necessitous circumstances.” It is unnecessary to recite the third count. The court by its charge expressly limited the jury to the consideration of the second count, and alone submitted the issue thereunder. Appellant moved to quash said second count on the ground that it failed to state which of said children was under the age of 16 and which one was in destitute and necessitous circumstances. The statute prescribing this offense is section 1 of the Act of April 2, 1913, p. 188, which is:

“That any husband who shall willfully or without justification desert, neglect or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous circumstances, or any parent who shall willfully or without justification, desert, neglect or refuse to provide for the support and maintenance of his or her child or cMldren under the age of sixteen years in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor and on conviction thereof shall [be] punished by a fine of not less than twenty-five dollars and not more than five hundred dollars or, by imprisonment in the county jail not more than one year, or by both such fine and imprisonment.”

Section 3 of that act provides:

“Proof of the desertion of such wife (or)_ child * * * in destitute or necessitous circumstances or of neglect or refusal to provide for (he support and maintenance of such wife (or) child * * * shall be prima facie evidence that such desertion, neglect or refusal is willful.”

Section 6 prescribes that the act shall be-liberally construed.

Under this statute this court has held, in Herrera v. State, 76 Tex. Cr. R. 361, 175 S. W. 696, and Hatch v. State, 76 Tex. Cr. R. 423, 174 S. W. 1064, that a complaint and information, following the language of the statute, as this does, was all that was necessary, and that such pleading as in this instance was sufficient.

Article 23, P. C., prescribes that use of the singular number includes the plural, and the plural includes the singular; and words used in the masculine gender include the feminine also, unless by reasonable construction it appears that such was not the intention of the Legislature. The information alleges that appellant was the father of the four children named, and that they are hereinafter styled the “injured party,” which would, of course, under that allegation include the four children -and each of them. As shown, it further alleged that they, the “injured party,” were under the age of 16 years. This allegation could not otherwise be construed than that each and all of them were under that age.

The complaint, or affidavit, begins: “Personally appeared before the undersigned authority this affiant, who, after being duly sworn,” etc. It is signed “Sam xviimms, Affiant,” and properly sworn to before the proper officer and attested by a proper jurat. Appellant’s motion to quash it because the affiant’s name was not given in the body of the complaint was correctly overruled. Article 269, C. C. P.; Upton v. State, 33 Tex. Cr. R. 231, 26 S. W. 197; Malz v. State, 36 Tex. Cr. R. 447, 34 S. W. 267, 37 S. W. 748; Singh v. State, 66 Tex. Cr. R. 156, 146 S. W. 892.

The evidence was amply sufficient to show, and did- show: That appellant and his wife were the parents of the four minor children named; Eugene was 4, Mary 8, Edward 11 years of age, and Willie 16 October 27, 1916; that appellant and his wife had separated about 2 years or longer before this prosecution was begun; that during all this time appellant was able to work, and did work, a good deal of the time, getting from $1.50 to $1.75 per day for his labor. That during all this time prior to this prosecution he never contributed a cent toward the support and maintenance of either of his said children and that they were in destitute and necessitous circumstances. His wife during all this time, when she was not sick or necessarily away upon the attendance of her mother, who died, undertook and did all she could to provide for the support and maintenance of herself and her said four minor children by working at a laundry, for which she received only the sum of §6 per weeks and a part of the time an additional $5 per week which their older son earned at work. That this was insufficient to support them. That the United Charities of Dallas, where they lived, from time to time provided her with food and raiment for their children. There was more or less crimination and recrimination by the wife and husband against one another. She claimed, and the evidence would justify the conclusion, that he quit her and took up and lived with another woman, and squandered his wages on that woman, or otherwise. It is unnecessary to detail the testimony.

Appellant made a motion to continue the case when it was tried on January 19, 1917, on account of the absence of Mrs. Tompson and Mrs. Simon, who lived in the city of Dallas where the ease was tried, alleging in his motion that they were sick when the sheriff served a subpoena on them. It is not shown by the motion or otherwise that they were sick when the case was tried, so that they could not then attend, and no process was then issued for, or served upon, them. The sheriff’s return on the subpoena ■states that he served said witnesses, and when he did, “They were both sick.” He alleged in his motion that they would testify that he in their presence and in the presence ■of his wife offered to take their children, give them a home, and provide for their support and maintenance, which his wife refused to agree to. The court refused the -motion on the ground that said testimony was not relevant, and was immaterial to the issues in the case. We think the bill on this subject shows no reversible error. The fact, if so, that his wife refused to give up the ■custody of her young children would not relieve him from his legal and moral duty to support and maintain them when they were in destitute and necessitous circumstances.

Appellant has some bills complaining of the court’s refusal to give two of his special charges. The charge given by the judge, together with quite a number of all those given by him which were specially requested by appellant, were amply sufficient, and covered every, feature of every issue raised by the testimony, and were even more favorable to appellant than the law and facts justified. He has another bill which states that his wife, Mrs. Utsler, over his objections, testified that some time in October, she believed, appellant gave her $2 in money, and this was when he was up at the Labor Bureau, and agreed to pay her $2 per week, and that he ' gave her $4 in all for two weeks, and that, another time he gave her §3. His objection, I in substance, to this testimony was that it was inadmissible and showed a separate and distinct offense from that charged in the complaint, because it was a payment by him to her after the complaint and information were filed. His bill is very meager. It, of itself, would show no material error. Certainly the fact that he paid her money either for her support or that of his children after the complaint and information were filed would be in his favor, and would not show, or tend to show, any offense against him committed after the prosecution was begun. Moreover, the same testimony was substantially given by their son Willie when he was on the stand, without any objection, and appellant himself and some other of his witnesses testified, not only to this in substance, but to his claimed payment to his wife of $5.10 in January, 1917.

This court, through Judge Ramsey, in Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169, said:

“It is well settled in this state that the erroneous admission of testimony is not cause for reversal if the same fact is proven by other testimony not objected to” (citing several cases).

This has been the uniform holding of this court in a large number of cases. Some of the later ones are: Tinker v. State, 179 S. W. 573; Bailey v. State, 69 Tex. Cr. R. 484, 155 S. W. 536; Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541. This bill shows no reversible error, and, as none other appears in the record, the judgment will be affirmed.

On Motion for Rehearing.

The sole ground on which appellant seeks a rehearing and reversal is that he claims the court erred in not granting him a continuance, and he calls attention to the affidavits of the two witnesses attached to his amended motion for a new trial. In his motion for a continuance he stated these two witnesses would testify that he, in their presence and in the presence of his wife, offered to take said children, give them a home, and provide for their support and maintenance, and that she refused to live with him, and refused to permit him to have the care, custody, control, support, and maintenance of said children. Both these witnesses in their affidavits swear they were sick on the day of the trial and could not attend on that account. Their affidavits are to the effect that they would have testified substantially as appellant alleged they would in his said motion. As said in the original opinion, the trial judge overruled his motion for a continuance, holding that the evidence of said witnesses would not have been relevant, and was immaterial to the issues in the case, and we so held in the original opinion. As stated therein, the testimony, besides his own, was ample to show, but his own as well, showed, that for more than 2 years after the separation of himself and his wife he contributed practically nothing to the support an'd maintenance of his little chib dren, who were wholly dependent upon their parents for support; that they were, from time to time during this period, in destitute and necessitous circumstances; and they were then supplied with food and clothing by a charitable organization of Dallas; -that their mother was able to make, and could and did make, only $6 per week for their support aá well as her own; and that she did everything in her power to support and maintain them. Neither the law nor justice would excuse him for failure to support and maintain his little children, even though his wife would no.t surrender possession of them to either him or to some other women who were in no way shown to be related to her or the children. The youngest child was only about 2 years old, the next 6, and the next 9 when the husband and wife separated, and their condition continued until they were 4, 8, and 11 years old at the time of this trial. He is shown to have had no home of his own, but, as stated in the original opinion, was living illicitly with another woman. He could not make it a condition precedent that his wife should surrender the possession of her little children to him or to any other woman before he would contribute to their support. It was his duty in morals and in law to support them while they were in their mother’s custody. No court would take them away from her and give them to him or to another in their very tender years. They needed her care and custody.

We are still of the opinion that the court committed no reversible error in overruling his motion for a continuance, nor his motion for a new trial based on that ground.

The motion for rehearing is overruled.
      (SxxoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      «gzzsFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J,

text:
    WOODS v. STATE.
    (No. 4493.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Cbiminal Law <§=^419, 420(1) — Heaesay Evidence.
    Testimony of witnesses, having heard men say they had had intercourse with defendant, tried on a charge of being a prostitute, was hearsay.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 973, 975, 976, 980-983.1
    2. Cbiminal Law <®^=>1169(1) — Pbejudicial Ekeoe.
    Admission of hearsay, there being little without it to establish the charge, was prejudicial error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3130, 3137.]
    Appeal from Jefferson County Court, at Law; D. P. Wheat, Judge.
    Nellie Woods was convicted, and appeals.
    Reversed and remanded.
    W. R. Blain, of Beaumont, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J,

Appellant, on a charge of vagrancy, was convicted, and her punishment 'assessed at a fine of $125. The complaint charged that she was a common prostitute, and pursued the occcupation of selling her person for illicit carnal intercourse.

Bills of exception Nos. 1 and 2 complain that the court, over appellant’s objection, permitted the state to prove by witnesses that they had heard several men-say they had had intercourse with appellant and paid her for it. We think this testimony should have been excluded under the rule of evidence which declares hearsay inadmissible. Cases listed, Branch’s Ann. P. C. p. 65.

Without this testimony there is very little in the record to establish the truth of the allegations in the complaint. Its admission was material and hurtful error, requiring a reversal of the judgment of the lower court.

The judgment is reversed, and the cause-remanded.


author: MORROW, J.

text:
    Ex parte GRIMES.
    (No. 4528.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Ceiminal Law <S=>258(1) — Justice oe the Peace — Acquisition oe Jubisdiction — Void Judgment.
    Where relator, having been convicted of a misdemeanor in a city court, and having had a fine entered against him, removed from the county, and wrote to the county attorney, of such county, inclosing $4 to be applied on his fine, but the county attorney construed it as an instruction to plead guilty o-f an offense in justice court, and a purported judgment was entered in justice court on relator’s plea of guilty by the county attorney for a fine of $1 for an offense not named, there being no com-plaint or other papers in the cause except a capias pro fine, under which relator was arrested, the justice court acquired no jurisdiction to render judgment against relator, and the judgment was void.
    [Ed. Note. — For other cases, see Criminal Law, Gent. Dig. §§ 545, 546.]
    2. Fines <®=^9 — Void Judgment — Pbocess Theeeon.
    Where judgment in a criminal case was void, a capias pro fine, under which defendant was arrested and delivered into the custody of another on execution by the latter of a convict’s bond, issued in furtherance of execution and enforcement of the judgment, was also void; the bond under Vernon’s Sayles’ Ann. Giv. St. 1914, arts. 6233, 6240, 6249-6256, being but a means of procedure to enforce the judgment.
    [Ed. Note. — For other cases, see Fines, Gent. Dig. § 11.]
    Appeal from Nacogdoches County Court; J. F. Perritt, Judge.
    Application for writ of habeas corpus on behalf of Joe Grimes. From an order refusing to discharge relator, he appeals.
    Relator’s discharge ordered.

      V. E. Middlebrook, of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an appeal from an order of the county court refusing to discharge relator on his application for writ of habeas corpus. The respondent, J. W. Parrish, had executed a convict’s bond wherein he had hired the relator from the county judge as a county convict who was convicted of a misdemeanor. Revised Statutes 1911, art. 6249. The justice of the peace of precinct No. 1 of Nacogdoches county issued a capias pro fine for the relator about April 13, 1917. Under this he was arrested and delivered into the custody of the respondent on the execution by the latter of the bond mentioned. It appears in cause No. 2469 in said justice court a purported judgment was entered December 1, 1916, on appellant’s plea of guilty for a fine of $1 for an offense not named therein. Has claim is that he had committed no offense; that no complaint had been filed against him; he had not been arrested. had never appeared in the case, nor entered any plea. He had been convicted of drunkenness in the city court of Nacogdoches and fine entered against him. This was in August, 1916. He removed to Kaufman county, and while there wrote a letter to the county attorney of Nacogdoches county inclosing $4. This, appellant claims, was sent as a payment upon the fine adjudged against him in the city court, and was sent to the county attorney instead of the city attorney, because relator thought that the county attorney had charge of all cases; that the in closure with letter was to be applied upon this fine and no other; and that he was not aware that any case was pending against him in the justice court or elsewhere except the unpaid fine in the city court. The letter was not found at the time of the trial, but the county attorney stated that he received it, and construed it into an instruction from the relator to plead guilty for-him of an offense in the justice court; that the latter did not give him any specific authority to do so, but that was his construction of it. He says:

“He told me in the letter that he was sending me a post office money order for $4 to apply on his fine.”

There was no complaint or other papers in the cause out of which the capias pro fine was issued found except the capias pro fine. The number of the case was 2469. The docket did not show the filing of any complaint; it was a printed docket having blanks to be filled in, and they were not filled in. There was nothing in these blanks to show who made the complaint, nor what offense it related to. Such entries as were on the docket were on page 2 of the docket in use in May, 1917. On page 1 of this docket was cause No. 2468 filed April 11, 1917, and on page 3 was cause No. 2470 filed April 14, 1917. It appeared that the docket for 1916 had been filled up, and that this cause, which appeared to have been filed on December 1, 1916, in its number and filing date, was between causes that were filed during April, 1917. This and other circumstances developed a very sharp issue as to whether in fact there had been a complaint filed against the relator in the justice court at all. We assume that the trial judge thought there were sufficient circumstances to justify him in concluding that there was a complaint filed. It is clear, however, that there was no arrest of the relator, and no appearance by him except such as was entered by the county attorney in entering the plea of guilty under the circumstances above detailed.

We do not believe that under the facts the justice court acquired any jurisdiction to render a judgment against the relator, and the judgment is consequently void. Emery v. State, 57 Tex. Cr. R. 425, 123 S. W. 133, 136 Am. St. Rep. 988; 12 Am. & Eng. Ency. of Pleading & Practice, p. 179; Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Lawrence v. State, 2 Tex. App. 479.

The purported judgment being void, the process issued in furtherance of its execution and enforcement is necessarily void. The basis for the authority of the county judge to hire the relator to the respondent was the void judgment against relator. The bond is but a means of procedure of enforcing the judgment. Vernon’s Civil Statutes, arts. 6233 and 6249 to 6256, inclusive, and also article 6240; Carter v. State, 29 Tex. App. 5, 14 S. W. 350; Ex parte Taylor, 34 Tex. Cr. R. 273, 30 S. W. 230; Ex parte Duren, 40 Tex. Cr. R. 162, 49 S. W. 374. The Chestnutt Case, 39 Tex. Cr. R. 624, 47 S. W. 649, was decided on the proposition that this court had no jurisdiction of the appeal because the relator had been released from custody; and was no longer held under the process under which he was restrained at the time the writ was granted. In this ease the relator has not been released. The judgment, which is the basis of this appeal, contains the following:

“It is therefore ordered and decreed by the court that the relator be, and is, in all things remanded to the custody of the respondent, J. W. Parrish.”

The case of Ex parte Miller, 44 Tex. Cr. R. 422, 72 S. W. 183, as well as the other cases above cited, illustrate the efficacy of a convict bond in restraining the convict and keeping him in custody and the control of the court over his person.

'Relator, being held under the bond which is based upon void proceedings, is necessarily held without due process of law. Harris, Texas Const. art. 1, § 19, notes 76 and 77, p. 195, and cases cited. He is entitled to his discharge, which is here ordered.
      <g^5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    WILLIAMS v. STATE.
    (No. 4498.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Ckiminal Law <®^>1093 — Appeal—Bill cot Exceptions — Inadequacy.
    In a prosecution for murder, a bill of exceptions to the admission of testimony, which bill did not sufficiently show the relation of the testimony to the case and its probablo effect to enable the Court of Criminal Appeals to pass on the question of error in the admission, was inadequate.
    [Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920.]
    2. Cbiminal Law @=^>1171(1) — Aeg-ument op Counsel.
    In a prosecution for murder, the special prosecutor stated in argument: That “it would be a menace to deceased’s eldest son to turn defendant loose; that it would be a rebuke to the little towsy headed children now sleeping in the courtroom.” Held, that such language, though improper, was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3127.]
    3. Homicide <^25€^-Mukdee — Guilt—Sufficiency of Evidence.
    In a prosecution for murder, evidence held sufficient to justify verdict of guilty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517.]
    Appeal from District Court, Wichita County ; Win. N. Bonner, Judge.
    C. E. Williams was convicted of murder, and he appeals.
    Affirmed.
    S. Heyser, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty.. Gem, for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder; his punishment being assessed at 30 years’ confinement in the penitentiary.

There are nine bills of exception in the record. All of these bills seem to have been reserved to remarks of the prosecuting officer with reference to the case in addressing the jury, except the ninth. It recites that Mrs. T. C. Hollander testified in the cause to the following facts:

“I have 12 children. My oldest son is 29 years of age, Martha is 17 years of age, John is 13 years of age, Clarence is 11 years of age, have a married daughter 24 'years of age, and am the mother of the other small children in the courtroom.”

To which testimony the defendant, through his attorney, objected because it was irrelevant, immaterial, incompetent, and highly prejudicial. These objections were overruled, and the testimony went to the jury. The defendant then asked the court to instruct the jury not to consider the testimony. This was overruled. This is all that there is in this bill. It is very indefinite: it does not undertake to show anything except the bare fact that the witness made the statements before the jury. The court makes no qualification, but signs the bill as presented. In order for this court to pass upon the question of alleged error in the admission or rejection of testimony, there must be a sufficient statement in the bill to show the relation of the testimony either rejected or admitted, as the case may be, to the case, and its probable effect. If excepted to by the defendant, why, it was error; if offered by him and excluded, the purpose and object for its introduction. Tested under these rules, we think this bill of exceptions inadequate.

The other eight bills of exception refer to the remarks of the prosecuting officer. The first one recites that the district attorney stated to the jury that “it was Williams’ lecherous desire to ruin the girl Martha,” to which language of the district attorney the defendant, through his attorney, excepted for the reason that such argument and language used was without support in the evidence, was irrelevant and immaterial to the main issue in the case, and was highly inflammatory and prejudicial, and was calculated to inflame the minds of the jury and cause them to lose sight of the real issue in the case.

Another bill recites that Nappier, special prosecutor, stated to the jury in his argument:

“That it would be a menace to Hollander’s elder son to turn Williams loose; that it would be a rebuke to the little towsy headed children now sleeping in the courtroom and to hear them say, ‘Mama, mama.’ ”

This language should not be indulged; but we are not prepared to say, in the face of this record, that such was of sufficient importance to require a reversal. There is some evidence in the record to the effect that there might be trouble between the elder son of deceased and the defendant. The language was a little sharp used by young Hollander to the effect he desired to have an opportunity to kill the son of a bitch, speaking of defendant. There is another reason that might' justify Nappier in making some of the statements, and this was with reference to the fact that the trouble seemed to have come up between deceased Hollander and defendant by reason of the fact that. Williams was undertaking to pay attention to Martha Hollander, a girl about 17 years of age, and, looking to this end, defendant had sent his wife away and sued her for divorce. This was very objectionable to deceased Hollander and his family, and the language shown to have been uttered by young Hollander was occasioned by these matters at the time appellant killed deceased. Anyway, the language used was not of sufficient gravity to require a reversal.

The same prosecuting counsel, Nappier, stated to the jury also that:

“It was Williams’ intention to debauch this girl; to debauch when he sought company of a little school girl, like Martha.”

This is an inference by counsel and we are inclined to think it is not an illegitimate deduction from the facts. There is evidence which seems to he to a large extent one of the controlling issues that defendant was seeking, oyer the protest of the Hollander family, at least the father, to force himself upon this girl and upon the family. The testimony is rather convincing along that line from one viewpoint and led to the tragedy. It is unnecessary to detail this testimony. The same may be said of the remarks of Private Prosecutor Nappier as contained in four other bills of exception.

Mr. Humphrey, the district attorney, made some remarks, which are as follows:

“Gentlemen of the jury, you must convict this defendant, C. E. 'V^illiams, not because he is only a murderer of the old man Hollander, for he is more than a murderer. He is moro than an enemy to society, in that he has taken the life of one of its members. He is an enemy to the fireside, in that ho has taken the father of a home. He is an enemy to his married vows, in that he sent his wife away and deserted her, the wife he had sworn to protect and love, and who had borne him a child, enduring the travail of childbirth in order to perpetuate his cowardly name. He is an enemy to virtue, in that he was seeking to snare with his lecherous designs Martha Hollander, a 17 year old girl, in order to gratify his passion and lust.”

We are of opinion that the district attorney had some warrant for this speech. If the state’s view of the case is right, appellant was not justified in any manner in killing the deceased. The evidence shows the deceased was walking very rapidly off; in fact, running from him when he shot him in the back. With reference to the statement that he was an enemy to his married vows, in that he sent his wife away and deserted her, the wife he had sworn to protect and love, and who had borne him a child, enduring the travail of childbirth in order to perpetuate his cowardly name, it is justified, perhaps, so far as real deductions are concerned, for defendant himself testified that he had sent his wife away and had immediately sued her for divorce; that they had one child. It is but natural to suppose that, if she had borne him a child, she underwent the travail of childbirth. He is also justified in the conclusion that appellant sought assiduously to pay his attentions to the girl Martha Hollander,- and that she was 17 years of age. The facts might be reproduced, but it is not necessary.

We are of opinion that the evidence is sufficient to justify the jury’s verdict. They could have found a less or heavier punishment, but they did not see proper so to do. The facts show that there had been trouble between defendant and deceased Hollander about the girl. 1-Ie had her picture and had induced her to have it taken and refused to give it up. It was demanded of him, not only by herself, but by her father. He refused. The matter became a little troublesome, and Williams supposedly sent his wife away and sued her for divorce in order that he might be freed from her. There are expressions of his, in addition to his acts, which showed that he had designs upon the girl either to marry or debauch her. His attentions to and acts toward the girl were objected to, not only by her family, but by the girl herself. Some trouble occurred between deceased and appellant SO or 40 minutes before the homicide. It is claimed by appellant in that trouble, and he supports it with his testimony, that the language about the picture became acute, and that deceased slapped him; that he immediately went away to some point in the city of Wichita Falls, secured his shotgun, and came by a store to buy shells. The store at which he applied not having suitable size, he went to a hardware store and bought shells, and immediately proceeded to where deceased was, and, as deceased ran into the store, shot him in the back and killed him. There were no exceptions taken to the charge as required by the statute. The jury was warranted in their finding on the facts. A charge on manslaughter was given as well as on self-defense. The self-defense theory was fully liberal to the defendant. It may be seriously questioned whether he was entitled to it from any viewpoint, even from his own testimony. But no such question is raised, and therefore not discussed.

We are of opinion there is nothing of sufficient importance shown in this record to-require a reversal, and it is therefore affirmed.
      tffcpFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte EVANS.
    (No. 4511.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.)
    1. Bail @^47 — Criminal Prosecutions — Authority to Admit to Bail.
    Under Code Or. Proe. art. 345, providing that, if an accused is ready to give bail, the magistrate shall prepare a bail bond, which shall be signed by the accused and his sureties, the magistrate being first satisfied as to their sufficiency, a magistrate had authority while his court was in session to take the bail bond of one accused of felony.
    [Ed. Note. — For other eases, see Bail, Cent. Dig. §§ 165-183, 257.] .
    2. Habeas Corpus @=>33 — Criminal Prosecutions — Right to Release on Batl.
    Under Code Cr. Proe. art. 346, providing that where an accused has given the required bail bond, either to the magistrate or the officer having him in custody, he shall at once be set at liberty, where a justice of the peace, while his court was in session, approved the bond of one accused of felony, the accused was entitled to discharge from custody.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ IS, 31.)
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Application before the district judge by Robert Evans for a writ of habeas corpus to’ secure his release under a bail bond approved by a magistrate. Writ was refused, and tlie relator appeals.
    Judgment reversed, and relator ordered discharged under the bond.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was arrested for a felony, and taken before the examining court, and bound over in the sum of $500 to await the action of the grand Jury.

Bond was approved by the court while court was in session. Afterward commitment was issued to the sheriff, and the sheriff refused to discharge appellant under the bond given to and approved by the magistrate. Writ of habeas corpus was applied for before the district judge, appellant claiming his right of release under the bond approved by the magistrate. The court overruled his contention, remanding him to the custody of the sheriff, intimating that the sheriff must take the bond. It is unnecessary to enter into a discussion of this matter at any length. The magistrate had the legal authority to take the bond while his court was in session. See Revised Code of Criminal Procedure, arts. 345, 346. If the party be ready to give bail, the magistrate shall prepare, or cause to be prepared, a bail bond, which shall be signed by the accused and his surety or sureties, the magistrate first being satisfied as to the sufficiency of the security. Article 346 proivdes, in all cases when the accused has given the required bond, either to the magistrate, or the officer having him in custody, he shall at once be set at liberty. See, also, Arrington v. State, 13 Tex. App. 551. Indirectly this matter has come up in other decisions; for instance, in the Russell Case, 24 Tex. 505. In that case it was held that the magistrate, after the adjournment of his examining court, had no authority, under the law, for taking a bond; that the sheriff was the only man who could take it. This same line of rea-' soning is followed in quite a number of cases. The Arrington Case was a scire facias proceeding, and there' was a question as to whether the forfeiture was proper. The court, through Judge Willson, held:

“It is shown by the record that the bond was taken under the order of the magistrate, and ■while his court was in session, and that thereupon the defendant, by order of the magistrate, was released from custody. We think this was sufficient, and that, although the bond was taken and approved by the deputy sheriff, it was with the knowledge, sanction, and approval of the magistrate, and was as valid as if the magistrate had actually taken and approved the same.”

That case shows that the bond was taken while the magistrate’s court was in session, and that the question of whether or not, under those circumstances, the act of the magistrate in open court authorizing the sheriff to take the bond, and approving it while court was still in session, was held to be a sufficient compliance with the law, which-authorizes the magistrate himself to take it. We are of opinion, under the statute, when the justice of the peace, while his court is in session, approved the bond, it entitled appellant to his discharge from custody.

The judgment will be reversed, and the relator ordered discharged under the bond approved by the magistrate.
      ®=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BOSTICK v. STATE.
    (No. 4496.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Affidavits <@==>5 — Who May Takb — Bystander’s Bili>-Verification Before Attorney.
    A purported bystander’s bill of exception sworn to before the defendant’s attorney can in no circumstances be considered.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27.]
    2. Bail <®=o94 — Appeal—Finality of Determination.
    Where defendant 'was charged with gaming, and a judgment forfeiting his bail bond was entered, but there was no final judgment, and the bystander’s bill of exceptions was incomplete, being sworn to before, defendant’s attorney, there was nothing for review.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418-423.]
    Dood Bostick was charged with gaming, and his bail bond was forfeited, and to review such action he brings certain proceedings which the State moves to dismiss.
    Proceedings dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This case is an anomaly. The papers, if in a condition to be considered, would show that on March 12, 1917, the grand jury of Rockwall county indicted appellant for gaming, and that by the proper orders the indictment was transferred and duly filed in the county court on March 15th. On April 16th there appears a judgment nisi against appellant and his sureties on a forfeiture of his bail bond. The sheriff certifies that he holds appellant in jail under the authority of an alias capias. The only other matter shown in the papers is a purported bystander’s bill, signed by three persons and sworn to before appellant’s attorney as a notary public. There is no certificate by the clerk of the county court, or other court, attesting the validity of any of the papers filed herein. It is unnecessary to state appellant’s pretended bill of exceptions. It being sworn to before appellant’s attorney, under no circumstances could it be considered if everything else was regular. There is no final judgment and nothing in this proceeding that can he reviewed by this court The Assistant Attorney General’s motion therefore to dismiss the proceedings is granted.

Proceedings dismissed.
      <®=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BOSTICK v. STATE.
    (No. 4494.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Affidavits <®=3o — Pbksons Who Mat Take —Attobney.
    A purported bystander’s bill of exceptions sworn to before the defendant’s attorney can in no circumstances be considered.
    (Ed. Note. — Eor other cases, see Affidavits, Cent. Dig. §§ 18-27.]
    2. Bail <&=>94-Appeal — Scope—Records— Sufficiency.
    Where the transcript contains an indictment, order of transfer of the indictment from the district to the county court, a judgment nisi forfeiting a bail bond, and a bill of exceptions not approved by the judge, but sworn to by bystander whose affidavit was taken by an attorney in the case, and a bailor’s certificate of commitment, there is nothing for the court to consider and the appeal will be dismissed.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2776, 2SS6.]
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Frank Bostick was charged with an offense, and there was judgment forfeiting his bail bond, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The transcript contains an -indictment with an order of transfer of said indictment from the district court to the county court. It contains a judgment nisi forfeiting appellant’s bond; it contains a hill of exceptions not approved by the judge, hut attempted to be proved by bystanders. The affidavit of the bystanders is taken by the attorney in the case, and, of course, cannot be considered. Then we have the jailer’s certificate of commitment. This is the record. It is somewhat difficult to understand just what character of proceeding this was intended to be. The bill of exception being out of consideration, there 'is nothing for the court to consider. There is no notice of appeal, and no action of the court below except the judgment nisi on the forfeited bail bond. In this condition of the record there is nothing for this court to consider, and the appeal is dismissed from the docket.


text:
    BOSTICK v. STATE.
    (No. 4495.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Bail @==>94L-Appeal — Judgments Appeal-able.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 894, providing a defendant in any criminal action upon conviction has the right of appeal under the rules hereinafter prescribed, the court has no jurisdiction to hear an appeal in the'absence of final judgment, so that an appeal from a judgment nisi forfeiting bail bond must be dismissed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418 — 423.] ’
    2. Bail <@=^94 — Appeal—Judgments Appeal-able.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 915, notice of appeal is prerequisite to an appeal from judgment forfeiting bail.
    [Ed. Note. — Eor other cases, see Bail, Cent. Dig. §§ 418-423.]
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Jesse Bostick was charged with an offense, and there was judgment forfeiting his bail bond, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant is indicted for gaming, his case pending in the county court.

On April 16, 1917, his bail bond was forfeited and judgment nisi entered. In a bill of exceptions filed and proved by bystanders it appears that on April 18th he appeared in term time, demanded a trial, and offered to waive a jury and plead guilty. The court declined to try the case on the ground that it had been continued. By affidavit of the county attorney, found among the papers, it is stated that the plea of guilty was not tendered, in open court; that at the time it was tendered the court was not in session. The record shows appellant is in jail by virtue of this indictment.

This court is unable to pass upon the questions involved for the reason there is no final judgment in the record. Article 894, Vernon’s C. C. P., says:

“A defendant in any criminal action, upon conviction, has the right of appeal under the rules •hereinafter prescribed.”

It has often been held in the absence oí final judgment this court is without jurisdiction to hear the appeal. Republic of Texas v. Laughlin, Dallam, Dig. 412, and numerous subsequent cases listed in Vernon’s Code of Criminal Procedure, p. 807. Notice of appeal is also requisite. Article 915, Vernon’s C. C. P. p. 877, and cases cited. Appellant would not have the right to appeal from a judgment nisi in the forfeited bond case, but could do so only when that judgment was made final, and there being neither a final judgment in that proceeding, nor any judgment of conviction, or any notice of appeal, this court is without power in this proceeding to afford appellant the remedy he seeks, and can only enter an order dismissing the appeal for want of jurisdiction, which is here done.
      <gEs>For other cases see same topic and KEY*-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte RAMSEUR.
    (No. 4505.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    1. Infants <@=316 — Delinquent Child — Prosecution — Statutes.
    Under Code Cr. Proc. 1911, art. 1195, providing that, when the grand jury indicts a male under 17 years with a felony, he, or any one interested, before trial can set up by affidavit that he is a juvenile under 17, that the court shall hear the testimony, and that, if the defendant is under such age, the criminal proceeding shall be dismissed and he be proceeded against as a juvenile, and article 1199, providing that all proceedings under the delinquent child act shall be begun by sworn complaint and information filed by the county attorney, etc., where a 17 year old boy was indicted for burglary and he properly pleaded that he was under 17, and the trial court found that such was the fact, dismissed the criminal proceeding, and placed the case on the juvenile docket, a judgment adjudging the boy guilty of burglary, sentencing him to confinement in the Boys’ Industrial School, and remanding him to the custody of the sheriff, was void, since the proper and only way to have proceeded against him after dismissal ■of the indictment was by complaint and information either in the district or county court alleging he was a delinquent and charging the facts.
    [Edr Note. — For other cases, see Infants, Cent. Dig. § 16.]
    2. Habeas Corpus <@=29 — Propriety oe Remedy — Delinquent Child.
    Habeas corpus to the Court of Criminal Appeals is a proper remedy for a boy under 17, indicted for burglary, and, after dismissal of the indictment, sentenced by the court to the Boys’ Industrial School as a delinquent without •complaint and information against him so alleging.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 24.]
    Application for writ of habeas corpus on behalf of Nelson Ramseur.
    Writ granted and ■ordered issued, with instructions.
    E. A. Camp, of Rockdale, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an application to this court for a writ of habeas corpus. •On a previous day the court ordered the application filed and the cause set down for hearing to determine whether the court would issue the writ, and, if so, what disposition it would make thereof. It was duly ■argued and submitted on the day set for its hearing.

The facts are agreed to. In substance they .are that on April 26, 1917, the grand jury of Lee county indicted appellant for burglary, the indictment being in due and regular form, simply charging that appellant committed that offense. He was arrested, gave bond, and when the case was called for trial, he properly pleaded that he was a juvenile under 17 years of age, and prayed the court that the said criminal prosecution against him be dismissed, and that if tried he should be proceeded against and tried as a delinquent. The judgment heard the testimony on his plea, found as a fact that he was under 17 years of age, and dismissed the criminal prosecution against him, and placed the cause on his juvenile docket. He in the proper time and way objected to the court then trying him as a delinquent under said indictment only, and moved that instead the proper complaint and information be filed against him charging him with being a delinquent, and that he be tried under articles 1195-1206, inclusive, of the Code of Criminal Procedure. His objection and motion were overruled, and the court forced him to trial on the indictment only. He then waived a jury and submitted the cause to the district judge. It was agreed that the evidence heard by the judge was amply sufficient to show that he was guilty of burglary beyond a reasonable doubt as charged in said indictment. The judge thereupon adjudged that he “is guilty of the offense of burglary, and is a delinquent child under the law, and that he be punished as has been determined by the court by confinement in the Boys’ Industrial School at Gatesville for a term of three years,” and remanded him to the custody of the sheriff of Lee county, Tex., to await the further order of the court. He is now, and since then has been, under said order and commitment in the custody of the said sheriff.

The said articles of the Code of Criminal Procedure (1195-1206, inclusive), and the time and manner of their enactment and amendment, have been repeatedly stated by this court in the recent cases of Ex parte McDowell, 76 Tex. Cr. R. 1, 172 S. W. 213, McCallen v. State, 76 Tex. Cr. R. 353, 174 S. W. 611, and Ex parte Bartee, 76 Tex. Cr. R. 285, 174 S. W. 1051, so that it is unnecessary to here again recite or state these matters.

Article 1195 prescribes that when the grand jury indicts a male under 17 years of age with a felony, he or any one interested for him before trial can set up by proper affidavit that he is a juvenile under 17 years of age, and directs the court to hear the testimony, and if he is under such age that the criminal proceeding against him shall be dismissed and that he be proceeded against as a juvenile. Article 1199 prescribes that all proceedings under the delinquent child act shall be begun by sworn complaint and information filed by the county attorney, as in other cases under the law, and that in such pleading the act claimed to have been committed by the child shall in a general way be stated, as constituting such child a delinquent child; in other words, as we understand the law, if the court, as in this instance, finds that the party charged with a felony is a male juvenile under 17 years of age, and dismisses the criminal action against him, then it would be improper to further proceed against him as a delinquent under said indictment, but that it is essential under such circumstances that the prosecuting officer shall then file a complaint and information alleging that the party is a delinquent and charging wherein he is a delinquent. That was not done in this instance. It was the proper, and only proper, way to have proceeded against the applicant herein after the court had dismissed the indictment against him. He could be proceeded against in either the district or county court. Of course, if proceeded against in the district court, the proper pleading should be preferred by the district attorney if he is present during the term of the court. If he declines to do so, then the county attorney can proceed against him in the eoun- ' ty court, or in the district court if he and not the district attorney is conducting the proceedings in the district court. As a delinquent under such circumstances cannot appeal, his remedy is by habeas corpus to this court, as was held in said Bartee Case, supra. These proceedings against a delinquent, especially after indictment found, are of such a criminal or quasi criminal nature that this court upon proper showing has power and authority to grant and hear the cause on habeas corpus. Ex parte Bartee, supra, 76 Tex. Cr. R. 285, 174 S. W. 1057.

In our opinion, the judgment of the district judge recited above, adjudging appellant guilty of burglary, sentencing him to confinement in the Gatesville school, and remanding him to the custody of the sheriff of Lee county, was without authority and void, and the writ of habeas corpus applied for herein is granted and ordered issued. The applicant has been held so long now that if no proceedings charging him as a delinquent by proper complaint and information have been filed, it is further ordered that he be discharged from custody by the sheriff of Lee county. This does not prevent the proper authorities from proceeding against him as a delinquent.

There is no other question necessary to be decided or discussed herein. The disposition we have made of this proceeding concludes the cause.

The writ of habeas corpus is granted and ordered issued, with instructions.
      <S=jToi other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte MEDRANO.
    (No. 4484.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.)
    Infants <@=>16 — Juvenile Delinquent — Complaint and Information — Statute.
    Under Code Cr. Proe. 1911, art. 1195, directing that the trial of a juvenile delinquent shall be begun by complaint and information, where the indictment for burglary against a Í7 year old youth was dismissed, and no complaint and information was filed against him charging him with being a delinquent child, judgment so declaring him was void.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 16.]
    Application on behalf of Siverio Medrano for writ of habeas corpus.
    Writ granted, and relator discharged from custody.
    W. F. Hendrix, of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an application to this court for a writ of habeas corpus.. Cta a previous day the court ordered the application filed and the cause set down for hearing to determine whether the court would issue the writ and what disposition it would make thereof. It was duly submitted on the day set for its hearing.

Appellant was indicted for burglary. He was shown to be under 17 years of age upon an investigation of an affidavit filed to that effect and the indictment dismissed. No information or complaint was filed against him thereafter, but by virtue of the same indictment he was in the juvenile court adjudged a delinquent child and his punishment assessed at confinement for not less than 2 years in the State School for the Training of Juveniles, at Gatesville, Tex. The matter is discussed in more detail in Ex parte Ramseur, 195 S. W. 864, this day decided. Article 1195, C. C. P., expressly directs that the trial of a juvenile delinquent shall be begun by complaint and information. The indictment having been dismissed, and there having been tiled no complaint and information, the judgment declaring the party a delinquent child would be void because of the statute mentioned and because of the fundamental law. Article 1, § 10, of the Constitution.

It is therefore ordered that the writ be granted, and that relator be discharged from custody and be no longer restrained by reason of this proceeding. This order does not preclude holding him on any proper complaint that may be filed.


author: RASBURY, J.

text:
    ROBBINS v. BELL et al.
    (No. 7725.)
    (Court of Civil Appeals of Texas. Dallas.
    March 17, 1917.
    Rehearing Denied June 2, 1917.)
    1. Railroads >@=>412(4) — Fencing Against Stock — Statute.
    A railway fence so out of repair that it will not exclude live stock is no fence within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6603, making railroads absolutely liable for the value of all live stock killed or injured by locomotives or cars unless the company has fenced its road, in which event it is liable only for injuries resulting from want of ordinary care.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1456, 1457.]

      2. Railhoads <§=3443(2) — Killing Stock — SUFFICIENCY OF EVIDENCE.
    In an action against a railroad for killing a mule, evidence held sufficient to justify the inference that defendant’s train actually struck the mule.
    . [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1608%.]
    3. Railroads <§=>446(2) — Killing Stock — Question for Jury.
    In. an action against a railroad for death of a mule alleged to have been struck on the road’s right of way, whether it was impossible for a locomotive or cars to have inflicted such injury as the animal received held a question of fact for the jury.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1628.]
    4. New Trial <§=>102(3) — Newly Discovered Evidence — Diligence.
    In an action against a railroad for killing a mule, the court properly denied defendant new trial for newly discovered evidence, materially affecting the controlling issue whether the mule was struck by defendant’s train, where the same diligence that secured the evidence after trial would have secured it before trial, the new witness being the son of a witness for defendant, and two of defendant’s counsel, prior to trial, having on one or more occasions conferred with him concerning his father’s testimony, during which counsel did not ask him concerning any knowledge he himself had of the matter.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 212.]
    ■ Appeal from Limestone County Court; J. E. Bradley, Judge.
    ■Suit by Mrs. J. P. Bell and others against J. W. Robbins, receiver of the Trinity & Brazos Valley Railway Company. From a judgment for plaintiffs, defendant appeals.
    Affirmed.
    Thompson & Barwise, of Ft. Worth, and 6. Scott Reed and C. S. Bradley, both of Groesbeck, for appellant. A. B. Rennolds, of Mexia, for appellees.
   RASBURY, J.

This is a suit for damages for the value of a mule alleged to have been negligently killed by appellant. The suit originated in justice court, and upon trial there resulted in verdict for appellees for $175. Appeal was had to the county court, where upon trial de novo before jury verdict was again for appellees, but for $85, followed by similar judgment, from which this appeal is taken.

The negligence alleged was that the fence inclosing appellant’s line of railway was out of repair, thereby permitting appellees’ mule to enter upon appellant’s right of way, and that said mule while thereon was struck by one of appellant’s locomotives and trains, so injuring him that he died as a result thereof.

It will not be necessary to recite appellant’s pleading since counsel for appellant concede appellees’ ownership of the mule and that the fence was negligently permitted to be out of repair. It is contended, however, that the facts developed- by the evidence are wholly insufficient to support or justify the verdict of the jury that the mule was injured by appellant’s moving train, and that the court should have directed verdict for appellant, which was requested and refused by the court; such action being properly assigned as error. The verdict of the jury finds its support in the testimony of several witnesses, and the material facts fairly deducible from their testimony are in substance these; Preceding the injury appellees’ mule was at large in a cornfield or pasture adjacent to and separated from appellant’s right of way by its fence. Subsequent to the alleged injury ap-pellees received word that the mule was injured, and commenced a search for it and an investigation of how it was injured.. The mule was found dead in the pasture, having died presumably from loss of blood. In support of appellees’ theory that it was injured' on the railway track four or five panels of the right of way fence between the pasture and appellant’s right of way were down so as to permit the entry of stock. Witnesses-were able to track the mule due to the fact that his hind feet were and his front feet were not shod. They tracked him from the pasture through the fence where it was down onto the right of way to a gate beyond where he entered, and thence on and in the center of the railroad tracks, where they discovered a few drops of blood. From this point they found his tracks where he came off the track. Also at said point they found inside the rails a sliver or piece of the animal’s hoof. About 15 feet from where the mule went off the tracks they found on the right of way a small pool of blood. Just before the mule got to the gate (which was used as a means of ingress and egress to and from appellees’ pasture across appellant’s track), and which the animal had passed in going upon the tracks, witnesses found another pool of blood. At the gate on the inside of appellees’ pasture they found another and a large pool of blood. From there the mule went about 250 yards and laid down in the road. From the last point the mule went to a tank for water, and thence to a little ravine, where he was found dead. An examination of the mule’s injuries disclosed that the leg was cut or mashed off just above the hoof. The skin was split, the bone cut, and the hoof was held to the leg by a tendon or ligament. There were no other wounds or abrasions on the body of the mule. A train passed through Mexia and over the place where it was claimed ap-pellees’ mule was injured about 8 or 9 o’clock p. m. preceding the night of the day appellees discovered the injured mule.

In contradiction of appellees’ theory of the cause of the injury much testimony was adduced tending to show that appellees’ mule was suffering with foot rot; that the joint or hoof was pulled apart or from its socket, and not cut or mashed; that no bones in the foot, leg, or joint were broken; also testimony tending to sbow that, due to the construction of the cowcatcher attached to the locomotive, it was impossible for such injuries to have been inflicted upon the animal as were inflicted. We do not detail the facts deducible from such testimony for the reason that, while it would have supported a verdict for appellant, it cannot be of assistance in determining whether appellees’ testimony is sufficient to support the jury’s verdict. Recurring then to appellant’s proposition, are the facts related wholly insufficient to show that the mule was struck and injured by one of appellant’s trains? In such connection it is to be remembered that by article 6603, Vernon’s Say les’ Oiv. Stats., railways are absolutely liable for the value of all livestock killed or injured by their locomotives or ears, unless such company has fenced its road, in which event it shall be liable only for injuries resulting from a want of ordinary care. Appellant’s road was fenced, but it is admitted that it was out of repair and would not exclude live stock.

A railway fence in such condition is no fence. M., K. & T. Ry. Co. v. Tolbert, 100 Tex. 483, 101 S. W. 206. As a consequence, unlike those cases where stock are injured upon public crossings while at large, or where they are by the negligence of others upon a fenced right of way, no question of negligence can arise, since by the statute the railroad is absolutely liable. Railway Co. v. Tolbert, supra. The sole inquiry in such cases is: Was the animal injured or killed by the locomotives or ears of the railroad company? Such is the inquiry here. Appellant relies upon the case of T. & P. Ry. Co. v. King, 45 Tex. Civ. App. 215, 99 S. W. 1031, decided by this court, where it was held that the verdict was unsupported by the facts. The facts in that case and the one at bar are, however, quite dissimilar. First, it may be said that in the case cited there was the issue of negligence vel non, since the animal in that case was killed in the corporate limits of the town of Terrell, wherein stock was by valid ordinance prohibited from running at large, and the opinion, in effect, states there was no evidence tending to show that, if the mule was struck, it was due to the negligence of the railway. See, also, G., C. & S. F. Ry. Co. v. Anson, 101 Tex. 198, 105 S. W. 989. Further, in King’s Case, supra, on the issue of whether the railway locomotives or cars actually struck the animal, it appears that, while tracks similar to those of the injured animal were found upon the tracks, together with hair and signs of blood, there was a total absence of injury or abrasion of any character upon the animal or any evidence tending to show that a train had passed during the time it was shown the animal was probably" injured. We made a similar holding upon similar facts in Stewart v. T. & P. Ry. Co., 165 S. W. 559. In the case at bar, however, the testimony is not wanting in the essential facts shown by the cases cited. Here, not only is as much shown as was in those eases, but in addition it is shown not only that the animal’s tracks and blood were upon the railroad tracks, but also a sliver or portion of its hoof. Further, a train was shown to have passed the point where the animal was injured at the time it probably was injured. Also there was upon the animal wounds and abrasions that could have been inflicted by a train, since it was shown that the skin at the place of injury was split, the leg bone cut, and a part of the hoof cut off. Further, unlike the cases cited, the progress of the mule from the track where the first blood and the sliver was found was plainly marked with blood.

To hold that from such facts and circumstances the jury could not legitimately draw the inference that appellant’s train actually struck the animal would not, in our opinion, be warranted in view of the limitations imposed upon appellate courts concerning the weight to be attached to questions of evidence. The jury’s finding cannot, as argued, be said to be mere conjecture, when the character of the injuries and the tracks, the blood, and the portion of the hoof upon the tracks are considered. It seems to us that any explanation other than contact with the locomotive and cars would be equally conjectural. But we also believe that a finding either way would find support in the facts and circumstances disclosed at trial, and that it cannot, as a consequence, be said that the verdict is founded on conjecture.

Whether it is impossible for a locomotive or cars to have inflicted such an injury on the animal as was inflicted, as is maintained by counsel for appellant, it seems to us, is itself a question of fact for the jury. They could’ have said it was. We cannot, in the light of the testimony, say it was not. It is conceivable that all manner of railway accidents may happen by which animals may lose leg or foot. In the light of observation and common knowledge, we know that railway accidents are constantly depriving human creatures, who are assumed to have greater intelligence than animals, of arm or hand or leg or foot. That similar accidents might occur to animals does not seem to us impossible.

It is next urged that the court erred in not granting appellant a new trial because of newly discovered evidence materially affecting the controlling issue in the case. All of the testimony tended to show that the only train which could have struck appellees’ mule passed the pasture between 8 and 9 o’clock p. m. After trial Mason Vestal, by affidavit, deposed, in éffect, that he was at the residence of appellee when said train passed through her pasture, and at that very time the mule alleged to have been injured was near the barn of appellees in plain sight of affiant. Mason Testal was tlie son of A. A. Testal, a witness for appellant. Two of counsel for appellant prior to trial had on one or more occasions conferred with Mason Testal concerning the testimony of his father, during which counsel did not interrogate him concerning any knowledge he had of the matter, nor did said Mason Testal himself divulge the facts recited in his affidavit. It occurs to us that the facts fail to show any diligence on the part of appellant. The same diligence that secured the evidence after trial would have secured it before trial. The opportunities to have secured it before trial were the same as those after trial. It is elementary that diligence before trial must be shown. Further, much force is, and should be, given the trial judge’s action in such cases.

Finding no reversible error in the record, the case is affirmed.
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author: WALTHALL, J.

text:
    WALLS v. KANSAS CITY, M. & O. RY. CO. OF TEXAS.
    (No. 697.)
    (Court of Civil Appeals of Texas. El Paso.
    May 17, 1917.)
    1. Carriers c®^>278(2) — Sams of Ticket — Submission oe Issues--Contributory Negligence.
    In action against railway company for agent’s mistake in selling ticket whereby passenger was carried to a station other than her destination, submission of defendant’s theory of contributory negligence held proper in view of pleading and evidence, where court also submitted plaintiff’s theory.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. § 1081.]
    2. Carriers <@=o271 — Duty to Carry Passenger to Proper Station.
    If railway company did not know passenger’s destination except as stated in ticket, the company owed her no duty other than to safely carry her to place called for by ticket, and would not be liable for damages resulting from her nervous condition caused by being carried to station other than her destination.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1067-1071.]
    Appeal from Nolan County Court; Jno. H. Cochran, Jr., Judge.
    Action by Mrs. D. E. Walls against the Kansas City, Mexico & Orient Railway Company of Texas. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Grisham & Grisham, of Sweetwater,' and J. E. Garland, of Lamesa,- for appellant. Beall & Douthit, of Sweetwater, and H. S. Garrett, of San Angelo, for appellee.
   WALTHALL, J.

The appellant, Mrs. L. E. Walls, brought this suit against the appel-lee, Kansas City, Mexico & Orient Railway Company of Texas, for alleged damages based upon an allegation that the receivers of the appellee, railway company, at San Angelo, Tex., delivered to her a ticket for Odell, Tex., when she requested one for O’Donnell, Tex., and that by reason thereof she was carried to Odell instead of to O’Donnell. She alleges that she is old, unused to travel, and that, upon learning that she was far from her intended destination, she became greatly excited, which resulted in a collapse from nervous prostration, and that as a result she was ill for many days and suffered physical and mental anguish. Appellee answered by general and special demurrers, denied that appellant applied for a ticket to O’Donnell, and alleged that the ticket sold her and which she used on the occasion was one purchased for her by a Mrs. Nettleton in the town of San Angelo, who called for a ticket to Odell. Appellee pleaded contributory negligence on the part of appellant in buying the ticket to Odell instead of to O’Donnell, and that, if it should be held that appellant was not responsible for the wrongs complained of, then, appellee alleged that same was the result of an accident for which appellee was not responsible. The case was submitted to the jury on the general issue, and the jury returned a verdict for appellee.

Appellant presents two assignments of error. The first assigns error “in submitting the theory of contributory negligence,” and insists in her proposition thereunder that:

“Where the facts under the law will not support a theory of contributory negligence, it is error to submit such theory of defense in the charge of the court.”

Wo think there was no error in submitting the issue of contributory negligence. Appel-lee tendered the issue in its pleading. We think we need not state the evidence. It was offered on two theories, both having ample support in the proof. Appellant’s theory was that she, in person, called for a ticket to O’Donnell, a station not on appellee’s line of road; that to go to O’Donnell it was necessary that, in taking the cars at San Angelo, on appellee’s railroad, she leave appellee’s train at Sweetwater, and go the rest of the distance on another road; that, to be certain there would be no mistake in the place to which she wished to purchase her ticket, she exhibited to the appellee’s ticket' agent at San Angelo, when she purchased her ticket, a letter directing that she purchase a through ticket from San Angelo to O’Donnell; and that she specially called the attention of the ticket agent to the place O’Donnell, and called for a ticket to that place, and did not call for a ticket to Odell; that she was old, was traveling alone, and did not know the location of the place to which she wished to go. Appellee’s theory, ánd upon which it offered its evidence, was that appellant did not buy the ticket in person, but that Mrs. Nettleton bought the ticket from appellant’s agent and called for a ticket to Odell, a place beyond Sweetwater from San Angelo, and on appellee’s line of road, and that neither the agent nor appellant’s train conductor knew more of appellant’s destination than was indicated by her ticket. Tbe jury, after bearing all of tbe evidence, found in' favor of appellee. Tbe court submitted tbe case upon both theories, and, in doing so, we think there was no error.

Appellant’s second assignment complains that tbe court was in error in giving a special charge requested by appellee “on the theory of accident,” and makes tbe proposition that an injury occurring from an accident is not a defense unless the accident was unavoidable. The contention made under this assignment is that “ ‘accident’ is not pleaded as a defense in a way to make it available for any purpose, for it is not pleaded that the injury was the result of inevitable accident,” and that the proof does not support the defense of inevitable accident. We think we need not discuss the question as to whether accident should have been submitted at all. Appellee pleaded accident as a defense, and the appellant did not except to the issue as a defense, nor to the sufficiency of the pleading as submitting the issue of accident. If Mrs. NettLeton bought the ticket for appellant to Odell and there was nothing in the pleading or proof to show that appellee’s ticket agent or its conductor knew her destination more than what was indicated by the ticket, we fail to see wherein appellee would owe appellant any duty other than to safely carry her to the place called for in her ticket, or how the appellee could be liable for damages resulting to appellant from a nervous condition in being carried to the place called for in her ticket. The assignment is overruled.

Finding no error, the case is affirmed.

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