text:
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    1. Bribery (§ 1) — Statutory Provisions— “Executive, Legislative, oe Judicial Officer.”
    In Pen. Code 1911, art. 174, providing that any person who shall bribe or offer to bribe any “executive, legislative, or judicial officer” shall be punished as therein provided, the quoted words are meant in their broadest sense and are intended to embrace every officer, whether a state, county, or precinct officer.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. §§ 2, 3; Dec. Dig. § 1.]
    2. Bribery (§ 6) — Indictment—Sufficiency.
    Under Pen. Code 1911, art. 174, making it a criminal offense to offer to bribe any executive, legislative, or judicial officer, where an indictment charged an offer to bribe an assistant county attorney, it was not necessary for it to allege whether he was a state or county officer.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. §§ 8-8; Dec. Dig. § 6.]
    3. Bribery (§ 6) — Indictment— Sufficiency.
    Under Pen. Code 1911, art. 174, making it a criminal offense to offer to bribe any executive, legislative, or judicial officer, an indictment charging an offer to bribe an assistant county attorney was not defective because it recited that he was a judicial officer of the state, even conceding that he was not a judicial officer, since this recital was immaterial and could b.e treated as surplusage; the indictment having alleged the office he held.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. §§ 5-8; Dec. Dig. § 6.]
    4. Criminal Daw (§ 37) — Entrapment — Bribery.
    A person tendering a bribe to an assistant county attorney for the purpose of influencing his official action was guilty of offering a bribe, even though the county attorney made the first advance and by his words, acts, and conduct induced accused to make the offer, and although the assistant county attorney did not intend to accept the bribe.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 42; Dec. Dig. § 37.]
    5. Criminal Law (§ 780) — Instructions— Testimony of Accomplices — Corroboration.
    Where an assistant county attorney made the first proposition, and induced accused to offer a bribe, even though he did not intend to accept it, and was merely seeking to entrap or detect accused in the commission of an offense, he was an accomplice, and hence, where there was evidence tending to show that such was the case, the court should have charged that if such were the facts the assistant county attorney’s testimony must be corroborated as to those facts connecting accused with the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.)
    6. Bribery (§ 14) — Trial—Instructions.
    On a trial for offering a bribe to an assistant county attorney to induce him to file a motion to set aside a judgment of conviction against a third person and to recommend to the judge that the judgment be set aside, where accused claimed that he offered the money merely in payment of such third person’s fine, the court should have made it plain in its charge that, if the money was tendered under the belief that it was to be used in paying the fine, accused would not be guilty and would be'guilty only if he tendered the money to influence the attorney’s action as an official.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. § 13; Dec. Dig. § 14.*]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Sam Davis was convicted of an attempt to bribe, and be appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted for attempting to bribe one of the assistant county attorneys of Dallas county, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant filed a motion to quash the indictment on a number of grounds. As the first count was not submitted by the court to the jury, those grounds complaining of that count need not be considered. As to the second count, it charges that appellant did offer to J. G. Wilson, assistant county attorney of Dallas county, $100 to file a motion to set aside and recommend to the judge of the district court of Dallas county that a judgment of conviction then and there had against one Dilmous Davis, wherein the said Dilmous Davis had been adjudged guilty of an offense against the laws of the state, and sentenced to ten years in the penitentiary, be set aside.

Article 174 of the Penal Code (1911) states if any person shall bribe or offer to bribe any executive, legislative, or judicial officer he shall be punished by confinement in the penitentiary for a. term not less than two nor more than five years. These words, “executive, legislative, and judicial,” are meant in their broadest sense, and were intended to embrace every officer in this state— state, county, and precinct. The government is said to be divided into three separate and distinct departments — executive, legislative, and judicial; and the Legislature, by the use of these words, intended and did make it plain that each and every officer in the state was embraced therein.

It is immaterial whether he was a state, county, district, or precinct officer; the allegation that he was assistant county attorney of Dallas county was sufficient, and it was not necessary to state whether this made him a state or county officer.

The indictment alleges that appellant did then and there unlawfully and corruptly offer to bribe J. G. Wilson, a duly and legally appointed and qualified assistant county attorney of Dallas county in the state of Texas, being then and there a judicial officer of the state, etc. Appellant insists that a county attorney is not a judicial officer. Under article 176, P. 0., it would seem that the Legislature has classed him, under the bribery statute, a judicial officer; but this would be an immaterial allegation, as the indictment had alleged the office he held, and these words are not essential to charge the offense and could be treated as surplusage.

“ ‘The gist of the offense,’ says Mr. Bishop (2 Bishop’s Crim. Law, § 86), ‘seems to be tlie tendency of the bribe to prevent justice in any of the governmental departments — executive, legislative, or judicial.’ So in Walsh v. People, 65 Ill. 60, 16 Am. Rep. 569, in holding that an unsuccessful attempt to bribe is criminal, the court say: ‘The reason of the law is plain. The offer is a sore temptation to the weak or depraved. It tends to corrupt, and, as the law abhors the least tendency to corruption, it punishes the act which is calculated to debase and which may affect prejudicially the morals of the community.’ Bribery is a crime which directly affects the community at large through its officers and representatives. Among ancient peoples, and even among the Romans, the giving of rewards and emoluments to public officers, and especially judicial officers, was tolerated and even encouraged; and, without such inducements, no audience could be had. See 4 Bla. Com. 139. The enlightened civilization of the present age quickly apprehended the danger of any such custom; and hence the fiat of the common law against it. And in modern times, the heinousness of the offense becoming more apparent as the power of wealth increased, the crime has been made punishable as a felony. The reason of the rule of the common law, and of the greater stringency of modern statutory law, is clear. The spirit of any democratic government is utterly abhorent to anything which tends to corruption in the representatives of the people, or threatens the purity of the administration of the government. And as wealth and power may become powerful forces in this dangerous direction, the protection of equal rights among the people demands that a severe penalty be visited upon any member of the community who gives, or offers to give, anything of value to any representative of the community, whether executive, legislative, or. judicial, and upon any such representative who receives, or offers to receive, any such reward as an inducement to official action. In fine, the gist of the crime is the danger and injury to the community at large. Such being the case, attempts to bribe become clearly indictable, for the state must guard against the tendency to corrupt as well as against actual corruption, both being alike dangerous and injurious to the community at large. Therefore an indictment for attempting to bribe a township trustee to appoint a certain person as school teacher need not allege that there was a vacancy. Shircliff v. State, 96 Ind. 369. Here is the tendency to corrupt to the injury of the community at large; therefore the offer was an attempt to ‘bribe.’ So one may be convicted of attempting to bribe a person to avoid the service of a subpoena, although the indictment alleges neither the existence, issuance, nor service of the subpoena. Scoggins v. State, 18 Tex. App. 298. For the same reason it is also bribery, though the act requested as the price of the bribe be not properly within the official power of the officer approached, provided it is contemplated that he act in an official capacity, and if necessary usurp functions not his own. At common law an offer of a bribe to a judge to decide a case not pending, but to be instituted afterwards before him, but which was never actually commenced, is indictable. See People v. Markham, 64 Cal. 157, 30 Pac. 620, 49 Am. Rep. 700. All the reasons of the rule here prevail. The tendency to corrupt justice is present at the time of the offer, and .the offense is then complete. Mr. Stephen says: ‘Every gift or payment paid in respect of, or in relation to, any business having been, being, or about to be, transacted before any such person in his office, is a bribe, whether it is given in order to influence the judicial officer in something to be done, or to reward for something already done, and whether the thing done or to be done is itself proper or improper.” Stephen’s Dig. Crim. Law, art. 126. See 97 Am. Dec. 713, 714.

The court did not err in overruling the motion to quash the indictment, for it clearly and succinctly charged a violation of article 174 of our Code. The testimony of Mr. J. G. Wilson, assistant county attorney, would support a conviction, corroborated as he is by the two deputy sheriffs. Mr. Wilson specifically denies that he solicited or induced appellant to tender him the bribe, while, on the other hand, appellant testifies in his own behalf, and first states that he did not offer to pay the money tó Mr. Wilson as a bribe; but, as he understood the matter, he was offering to him the money to pay a fine that was to be assessed against Dilmous Davis in lieu of the penitentiary sentence. He also testifies that he was induced by Mr. Wilson to make the proposition he did, that Hr. Wilson suggested, "You are always asking us for favors; and doing nothing for us,” and they then went into a private office, where the remainder of the negotiations took place. As stated before, Mr. Wilson denies making the first advance, but says, when appellant made a suggestive remark, they did go into a private office, and “he lead him on by apparent acquiescence and questions.”

Appellant requested the court to instruct the jury that, if the first suggestion leading to the bribery was made by Wilson and by his acts and conduct he was the inducing cause of appellant offering the bribe, this in law would make him an accomplice to the crime, even though at the time he had no idea of accepting the bribe and was merely inducing appellant to make the offer that a prosecution might follow. The court refused the special charge requested and refused to submit the issue of whether or not Mr. Wilson was an accomplice, and refused to instruct the jury that if Mr. Wilson was an accomplice they could not convict appellant, unless there was other testimony tending to connect the defendant with the offense charged. The court seemed to hold to the view that Mr. Wilson could not be an accomplice, holding that, if Wilson made the first advance and induced appellant to make the tender, no offense would be committed. And the case of O’Brien v. State, 6 Tex. App. 665, would seem to support the court in such holding; but we do not think this is the law. Every person is responsible alone for his own criminal conduct, and the lack of criminal intent on the part of Mr. Wilson could not and would not inure to the benefit of appellant if he, in fact, tendered him.the money as a bribe. If he did so, he would necessarily have the intent to bribe; he not knowing that Wilson did not intend to accept it as a bribe. The correct principle of law is tersely stated in the case of People v. Liphardt, 105 Mich. 80, 62 N. W. 1022, as follows: “We know of no case that holds that one who has committed a criminal act should be acquitted because induced to do so by another. It is merely when the criminality of the act is shown to be absent by the fact of the inducement that such proof justifies an acquittal.” The evidence as to Mr. Wilson, introduced both by the state and defendant, shows- an absence of criminality. But not so as to appellant. Even though Mr. Wilson induced him to make the tender, yet he made the tender (if the money was not to pay a fine) with the intent to influence Mr. Wilson in his action in the premises, and his act under such circumstances would be criminal.

Considerable legal hairsplitting has been indulged in by courts and text-writers in discussing this subject. It must be admitted at the outset that it is beyond the power of a private person to license the commission of a crime. As to these more serious crimes which are purely transgressions of the public right, it must follow that consent thereto of private persons directly injured thereby cannot, to any extent, purge such crimes of their character as public wrongs, nor render those who commit them less liable to punishment. The consent of a woman upon whom an abortion was performed constitutes no defense to a prosecution therefor. Commonwealth v. Wood, 77 Mass. (11 Gray) 85; Commonwealth v. Snow, 116 Mass. 47. Similarly, consent of the deceased is no defense to a prosecution for homicide. Regina v. Allison, 8 Car. & P. 418. In a prosecution for bribery, the fact that the prosecuting witness was the giver of the bribe in question cannot excuse defendant. Newman v. People, 23 Colo. 300, 47 Pac. 278. Nor is the latter exculpated by proof that the bribe was instigated for the purpose of entrapping him. People v. Liphardt, 105 Mich. 80, 62 N. W. 1022; State v. Dudoussat, 47 La. Ann. 977, 17 South. 685.

The offer to bribe a public official is a transgression of a public right, and the consent or nonconsent of the officer cannot affect the criminality of the act of the person who makes the offer, and even though Mr. Wilson by his words, acts, and conduct may have been the inducing cause of the offer to bribe, yet, if appellant did, in fact, tender money to the officer with the intention and for the, purpose of influencing his action as such officer, he would be guilty under our statute. It would not be an offense against Mr. Wilson so much’as an offense against the public welfare, and one which no officer would have the authority nor power to give his consent to.

Therefore we are of the opinion that the court erred in holding that if Mr. Wilson induced appellant by. his words, acts, and conduct to make a proposition to pay him so much money to influence his action as an official, and appellant did make the proposition, under such circumstances he would be guilty of no offense. However, under such circumstances, Mr. Wilson would, under the rules of evidence, be held to be an accomplice, and appellant could not be convicted upon his testimony alone, and the court should have instructed the jury that, if Mr. Wilson made the first proposition and induced appellant to make the tender, he would be an accomplice, even though he did not intend to accept the bribe, and by his acts was but seeking to entrap or detect appellant in the commission of an offense, and, under such circumstances, he must be corrrobated in those facts which connected defendant with the commission of the offense, if an offense had been committed.

There are several other matters complained of in the record, but we do not deem it necessary to discuss them. The court should make it plain in his charge that, if appellant tendered the money to Mr. Wilson under the belief that it was to be used in paying the fine of Dilmous Davis, he would not be guilty of any offense, and he would only be guilty of an offense if be tendered tbe money to Mr. Wilson to influence bis action as an official.

Reversed and remanded.


source: Caselaw Access Project

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

license: Public Domain

text:
    SANDERS et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.)
    1. Bail (§ 72) — Successive Bail Bonds— Liability.
    Under Code Cr. Proc. 1911, art. 510, providing that when a defendant who has been arrested for a felony under a capias has previously given bail to answer such charge his surety shall be released by such arrest and he shall be required to give new bail, where accused pending an appeal secured his release on bail, and after the reversal and remand of the cause and a second conviction the sheriff rearrested him, refused to release Mm on the first bond, and demanded a new bond, which was given, his sureties on the first bond were released, and the second bond was valid even though the. first bond had been a valid obligation conditioned after his second conviction for his appearance.
    [Ed. Note. — Eor other cases, see Bail, Cent Dig. § 288; Dec. Dig. § 72.]
    2. Bail (§ 77) — Pboceedings to Forfeit Bail Bond — Judgment—Citation to Sube-'T’TfT'c;_TJirT'Tn"' *tq
    Under Code Cr. Proc, 1911, art. 489, providing that upon a forfeiture of a bail bond by nonappearance of accused judgment shall be entered that the state recover the amount of the bond, which shall state that it will be made final unless good cause be shown at the next term of court why accused did not appear, and article 491, stating the requisites of the citation to the sureties to show such cause, and not requiring it to state that the bond was approved, as required by statute, and accused released thereon, it is not necessary that the judgment or citation should state such facts; this being a matter of evidence.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 335-349, 379, 403; Dec. Dig. § 77.]
    3. Bail (§ 75) — Bail Bond on Appeal — Liability OF SUBETIES AFTER REVERSAL.
    Under Code Cr. Proc. 1911, art. 903, providing that, in all appeals from convictions for felony where bail is allowed, the form of recognizance therein set forth, and which recites that accused and the sureties acknowledge themselves indebted to the state conditioned that accused shall appear before the court from day to day and from term to term and not depart therefrom without, leave of the court, in order to abide a judgment of the Court of Criminal Appeals shall be sufficient, and article 843, providing that the effect of a new trial is to place the accused in the same position in which he was before any trial had taken place, a bond given to, secure the release of a person convicted of felony pending an appeal becomes functus officio upon a reversal and remand of the cause, and the sureties are not liable upon accused’s nonappearance on the new trial, even though no bail bond was given prior to the first conviction, in view of the fact that article 903 was enacted 21 years after the Court of Criminal Appeals had so held with reference to appeals in misdemeanor cases, and uses precisely the same language in specifying the form of a recognizance in felony cases as article 919 uses with reference to misdemeanor cases, and also in view of the long and uninterrupted acquiescence in that decision by the bench and bar.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 309-312, 315-321; Dec. Dig. § 75.]
    Prendergast, J., dissenting in part.
    Appeal from. District Court, Angelina County; James I. Perkins, Judge. Proceeding for the forfeiture of an appeal bond by the State against P. M. Sanders and others.. From the judgment, defendants ap-
    peal.
    Reversed and remanded.
    King & King, V. E. Middlebrook, and In-graham & Hodges, all of Nacogdoches, for appellants. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J-

This is a suit on a forfeited appeal bond. It appears from the record that one Joe Bug Roquemore was indicted charged with murder in the first degree. Before trial the first time he did not seek to be released on a bail bond, but remained in jail until tried. When tried, on May 26, 1908, he was adjudged guilty of murder in the second degree and his punishment assessed at ten years’ confinement in the state penitentiary. His motion for a new trial being overruled, he gave notice of appeal, and asked that the amount of his bail on appeal be fixed, and the court did so, fixing it in the sum of $6,000. Thereupon, on June 6, 1908, he entered into an appeal bond in said sum with good and sufficient sureties, conditioned as required by law, and he was released from jail on said bond. Thereafter this court reversed said cause and remanded it to the district court of Angelina county for a new trial. No additional bail or appearance bond was demanded or required of appellant, but thereafter in May, 1909, the cause was again called for trial, and, the defendant appearing the cause was tried, and on the 12th day of May, 1909, the jury again found him guilty of murder in the second degree and his punishment assessed at confinement in the penitentiary for a term of 15 years, and the sheriff again took charge of Roquemore and confined him in jail. His motion for new trial being overruled on May 21, 1909, defendant gave notice of appeal, and his bail was fixed by the court in the sum of $8,000. On June 7, 1909, he entered into bond with appellants as sureties, conditioned as required by law, and he was again released from jail; the bond being approved by the judge trying the cause and the sheriff. His ease was again reversed by this court and remanded to the district court of Angelina county for another trial. No additional bond was required of Roquemore other than this bond on appeal, and when court convened his case was called for trial. He did not appear, and this last bond was forfeited. Citation issued to the sureties, and on final hearing the forfeiture was made final, from which judgment the sureties prosecute this appeal.

The first contention of appellants is that, when Roquemore was first convicted and gave the first bond in the sum of $6,000, there was no authority in law on the second conviction' to demand another bond, and the bond executed by them is not binding on them. This question has been frequently before this court, and it was held that even though the bond first given had been a valid obligation, conditioned after his second conviction for his appearance, that when the sheriff refused to release Roquemore on such bond, and demanded a new bond, which was given to secure the release of Roquemore, a forfeiture can be legally declared on such bond, and the sureties held liable thereon. Article 510, C. C. P.; Peacock v. State, 44 Tex. 11; Lindley v. State, 17 Tex. App. 120; Roberts v. State, 22 Tex. App. 64, 2 S. W. 622. We think it clearly the intention of the Legislature, and the act so contemplates, that after each conviction the amount of bail shall be fixed, and the defendant required to enter into a recognizance or bail bond in said sum, and at least after the second conviction, arrest, and incarceration of the principal, and the execution of a new bond, the sureties on the first bond on appeal were released, and if the state is entitled to any forfeiture it would be on the bail bond executed after the last conviction and which was executed to secure and did secure the release of Roquemore from custody.

The next objection urged is that the court erred in admitting in evidence the bail bond on which appellants were sureties; the ground of objection being: “Because there was no allegation in the judgment nisi or in the scire facias in this cause that said bail bond had ever been accepted or that the defendant had been released from custody by virtue of said bond, and there are no allegations in either that such bond had been approved by the sheriff of Angelina county, nor any allegation that the same had ever been approved by the judge trying said cause in which the bond was taken, or his successors in office, and that after said bond was given, approved, and accepted, defendant had been released from custody.” The law requires that the bail bond on appeal shall be approved both by the judge trying the case, and the sheriff of the county before the former is entitled to be released (articles 903 and 904, Code of Criminal Procedure); but is it necessary to plead such facts, or state them in the judgment nisi or citation to the sureties thereon? Article 489 of the Code of Criminal Procedure provides when the forfeiture may be had, and provides that “judgment shall be entered that the state of Texas recover of the defendant the amount of money in which he is bound, and of his sureties, the amount of money in which they are respectively bound, which judgment shall state that the same will be made final unless good cause be shown at the next term of the court why the defendant did not appear.” The judgment nisi in this case complies with these requirements. Article 491 states the requisites of the citation, and, while there are seven requisites named, none of them require that the judgment nisi, nor the citation, shall state the bond was approved and the principal released on the bond. This is a question of evidence and may be proved as any fact in a case. It is never necessary to plead one’s evidence in a case. In this case the evidence plainly shows that the bond was approved both by the trial judge an(l the sheriff, and the principal released on the bail bond. The same objections were urged to the introduction of the judgment nisi in evidence, but for the reasons above given we hold that the court did not err in admitting it in evidence.

The court instructed the jury to return a verdict for the state for the full amount of the bond, and this brings into review the only remaining question made by the record: This court having reversed and remanded the cause, would a proper construction of our statutes and the bond render liable the sureties for the failure of the defendant to appear at the next term ©f the court?

It is admitted by appellants that, had this court affirmed the judgment, the conditions of the bond are such that, in the event he failed to appear and abide the decision' of this court, the sureties on the bond would be liable, but they contend, under the peculiar wording of the Code, and the conditions in the bond on appeal, that the sureties were discharged from all liability when this court reversed and remanded the cause, and this contention has support in the decisions of this court. In passing on this question the Supreme Court held, when it had jurisdiction over these matters, that the sureties, on recognizance, on appeal would be liable, even though the case was reversed and remanded.

In the case of Weaver v. State, 43 Tex. 389, Judge Gould said: “It is sufficient to say that by the terms of the recognizance the sureties are bound for the appellants’ appearance at the district court to abide the judgment of this court. In the case we are considering, that judgment is not that the defendant be discharged, but that the case be reversed in order that it may be tried again. Until defendant has made his appearance and has obtained the leave of the court to depart, the condition of the recognizance * * * prescribed is for all appeals, whether by the state or defendant. Previous to the enactment of the statute prescribing this form, the law required the. defendant, when the appeal was by the state, to enter into recognizance with sureties ‘to appear before the district court to answer the criminal accusation against him in case the judgment of the district court be reversed.’ Paschal’s Dig. art. 3187. The form now prescribed is believed to be sufficient to secure the appearance of the appellant at the proper term of court to answer the accusation against him if the effect of the judgment of this court be to remand the ease for a new trial.” This court after its organization, in an opinion by Judge White, in the case of Riviere et al. v. State, 7 Tex. App. 55, followed that opinion; but in a later opinion, while the same learned judge was on the bench, this court held otherwise with his full concurrence, and based its opinion on a new provision of the Code of procedure, adopted subsequent to the decision in those eases.

The Twenty-Second Legislature added the following provision to our Code of Procedure, which is now article 945: “Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case the new trial had been granted by the court below.” Since the adoption of this provision of the Code, this question was before this court again in the case of Wells et al. v. State, 21 Tex. App. 594, 2 S. W. 806, and this court held: “It is only in the case of an affirmance of the judgment of conviction by this court that the defendant’s recognizance given on appeal can be forfeited. When the judgment of conviction is reversed, and this court awards a new trial to the defendant, the cause stands as it would have stood in case the new trial had been granted in the court below. * * * In such case the recognizance given on appeal has served its purpose, and is functus officio. * * ⅜ We conclude, therefore, that the recognizance of the defendant on appeal was no longer of any binding force after the reversal of the judgment and the awarding of a new trial by this court, and cannot support the judgment of forfeiture.” In this case both the Weaver and Riviere Cases are referred to, but it is held that they were not the law since the adoption of article 945. The opinion 'in this case was rendered in 1886; the law only allowing at that time a recognizance to be given in cases of misdemeanor convictions-

Thus it is seen that a construction was given of the language and conditions of the recognizance, and this opinion so far as we have been able to ascertain, has never been limited, nor overruled. The Legislature, with the knowledge that this court had given this construction to the recognizance in a misdemeanor ease, in 1907 (21 years subsequent to the rendition of the opinion in the Wells Case, supra), also provided for a recognizance and bail in certain felony cases, and in doing so used exactly the same language that had theretofore been used in recognizance in misdemeanor cases. See articles 919 and '903, Code of Procedure. And it is a well-recognized rule of construction that, when a Legislature in enacting a new statute uses identically the same language as that formerly used in the old statute, it is supposed to know the construction that had been placed on these words, and to have used the same words in the same sense as theretofore given them. For a long list of authorities, see Lewis v. State, 58 Tex. Cr. R. 361, 127 S. W. 808, 21 Ann. Cas. 656. Mr. Sutherland, in his work on Statutory Construction (section 255), says: “If the Legislature use words which have received a judicial interpretation, they are presumed to be used in that sense, unless the contrary intent can be gathered from the statute.”

In providing for the giving of recognizance or bail bond on appeal in felony cases, the Legislature using the same terms and language which were used in misdemeanor recognizances, it must be held that this recognizance should have the same construction, meaning, and intent as given to the misdemeanor recognizance. It is .said that the Legislature certainly did not intend, in adopting the felony recognizance, where a person had not given a bail bond prior to his conviction, that, in the event this court reversed and remanded the cause, the person charged with crime would be released. This phase of the subject should be considered, for sueh a construction may result in much mischief; but this court is not the lawmaking body, and, in construing each law passed, it must do so in accordance with the well-recognized canons of construction, and, when the Legislature knew the construction placed on liability of sureties on a misdemeanor recognizance and adopted the same language in a felony recognizance, we can find no just ground to hold that they intended the sureties assumed a greater liability in one instance than in the other. And while it may seem to work a hardship upon the state to so hold, yet, as the state elected the term* in which it would enact the law, and the sureties who went on this recognizance can justly claim that they did so, with the knowledge that this court had held in case the cause was reversed, their liability would cease, and now to change the construction to be given the language, in order to mulct the citizen in the amount of the bond, some $8,000, would be unjust to them. Neither construction will bring Roquemore back for trial; he is gone, whether the sureties are made to pay the bond or not. We think it would be the part of wisdom for the Legislature to change the phraseology of the recognizance and make it plain that, when one becomes surety thereon, he binds himself to have his principal in court, whenever demanded, whether the case is affirmed or reversed and remanded. ¡But in the case before us, the sureties appear, point us to the case of Wells v. State, supra, wherein this court had held their liability ceased with the reversal of the case, and demand that under it they be held not liable. An injustice will result regardless of the construction given, but we think a too grave injustice would be done the citizen, who must at his peril know the law, to say that, while this court held in the Wells Case that under the law their liability ceased upon- the reversal of the case (and which fact the law presumes they knew), yet, as the principal has escaped, we will hold that the law is not as it was written in that case, and a new construction given the same identical language, that the state may recover from them a large sum of money.

We are of opinion that as the court had construed the language of our Code, and held the sureties on recognizance on appeal discharged upon a reversal of the case, that, with tfiis construction known to them, the Legislature placed the same language in the felony recognizance, and under all the rules of law the same construction must be given the language as had theretofore been placed thereon.

We.wrote the above opinion some time ago, but as Judges DAVIDSON and PRENDER-'GAST were not then satisfied as to its correctness, and on a number of occasions, we have had this matter under advisement in order that we might agree upon a correct construction, harmoniously, but having reached the point where there will of necessity be a parting of our ways, unless some of us should surrender our convictions in the premises, we have decided to discuss at more length the last proposition involved. The court is unanimously of the opinion that all the questions discussed herein are correctly decided, except the last; but as to the last proposition Judge PRENDERO AST has prepared an opinion in which he contests the correctness of the decision on the proper construction of the felony recognizance, consequently it may not be improper to review our laws as applicable to bail bonds and recognizances.

Article 323 of the Code of Criminal Procedure provides: “A recognizance or bail bond, entered into by a defendant, and which binds him to appear at a particular term of the district court, shall be construed to bind him and his sureties for his attendance upon the court from term to term, and from day to day, until discharged from further liability thereon, according to law.” This article appears in the Code of 1856, being article 267, and its terms have not' been altered nor amended from that day to this in any material respect, and under the terms thereof we affirmed the case of Roscoe Wiseman et al. v. State, 156 S. W. 683, in an opinion by Presiding Judge Davidson, in the last few weeks (it not yet having been officially reported) although section 2 of. the Acts of 30th Legislature, p. 31, provided, that immediately upon a return of verdict of guilty, the defendant should be taken into custody, and the "sureties be considered as discharged”; one article of the Code above quoted providing that when a defendant, before trial, had entered into a bail bond, it should bind him and his sureties for the appearance of the defendant “until discharged from further liability in accordance with law,” and another provision (article 843): "The effect of a new trial is to place the cause in the same position it was before trial had taken place.” This was also a part of the Code of 1856, being then article 674. That the bond entered into did not permit the defendant to remain at large after conviction, for a felony pending an appeal, was also made plain by the Code of 1856. Article 721 of that Code reads: “Where the defendant appeals in case of felony, he shall be committed to jail until the decision of the Supreme Court can be made.” Thus in ease of felony from 1856 to 1907 no person convicted of a felony could give a bond or recognizance while his case was on appeal; but it was mandatory that he be .confined in jail pending his appeal, and under every decision rendered by this court from 1856 down to and including the Wiseman Case, just decided, it has been held that where a person charged with felony had given bond and was convicted, when a new trial was granted, either by the court trying the case or by this court, he was entitled to be released on that bond, and in the event he failed to appear for trial, after conviction and new trial granted, the sureties on the original appearance bond were liable, and a recovery could be had thereon. In the ease of Ex parte Guffee, 8 Tex. App. 409, this question is thoroughly discussed, and in that case it was held that where a person had been indicted, gave bond for his appearance, and was tried and convicted, appealed, and his case reversed, he was entitled to be released on his original bond, and the Code and reasons for the rule are there all brought in review, and in every case where this question has been raised the holding of this court has been in accordance with that opinion.

But the rule was different in misdemeanors, and instead of being compelled to remain in jail, as in felony cases, in the Code of 1856 it was provided that a person convicted of a misdemeanor might enter into a recognizance for his appearance (article 722, Code 1856), and that has been the law from that day to this. As to whether a surety on a misdemeanor recognizance on appeal was liable thereon in ease of reversal came up for decision in the case of Weaver v. State, 43 Tex. 389, for the first time, so far as we have been able to ascertain, and the surety on the recognizance was held liable as stated hereinbefore, and this opinion was followed in Riviere v. State, 7 Tex. App. 55, but the question came before this court again in the case of Wells v. State, 21 Tex. App. 594, 2 S. W. 806, and the cases of Weaver v. State and Riviere v. State, supra, were expressly overruled, aiid held no longer the law of this state; the opinion in the Wells Case being based on a new article of the Code of Criminal Procedure adopted by the Twenty-Second Legislature (1st Called Sess.), being section 45 of chapter 16, reading: “Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in case a new trial had been granted by the court below.” In the Wells Case it was held by this court that in case of reversal the recognizance on appeal became functus officio, and the defendant went bach on his original bond. It is claimed that this is but obiter dicta, as it was not necessary to a decision of that case. The appellant raised two questions on appeal, one that, the case having been reversed, he was not liable as surety on the appeal bond; and another was that the grand jury that returned the indictment was not a legal grand jury. Both contentions of the appellant were sustained, and how one can be considered obiter dicta any more than the other surpasses our comprehension. It might as well be said that when a case is appealed to this court, and we hold the first proposition submitted presents error, it is not necessary to pass on the others, as all but the first would be obiter dicta. “Obiter dicta,” as we have always understood that term, is when a question is discussed not raised and not an issue in that case; if the question is raised, is an issue in the ease, then a decision of that question is not obiter dicta. See Bouvier’s Law Dictionary, vol. 1, pp. 567 and 568. Again, it is sai'd if the Wells Case, supra, is not merely dictum, then it has not been referred to since being rendered. Why not go further and state that, since its rendition in 1886, that question has not been before this court until this ease was appealed. All the courts of this state had apparently accepted the opinion in the Wells Case as the law of this state, and have been following it, and the fact that the question had not been again presented is one of the strongest arguments that the bench and bar of this state accepted that opinion as the law, and appreciated the force and cogency of the reasoning therein contained. When we announce the law in a way that does not appeal to the judgment of the bench and bar, the question is time and again presented to us, and we are asked to review our former holding; but in this case the opinion of this court in the Wells Case, in the construction of the statute, stood unquestioned and unchallenged as the law of this state for 26 years, and this is the first time that it has been called in question. So the effort to belittle it by stating that no opinion has been found approving it, instead of doing so, but adds strength to that opinion, when it is known that no opinion of this court has ever questioned its correctness, and no case questioning it has been presented to this court until now.

It is then stated that the Wells Case is not the law, and should not have been rendered. If it is erroneous, the sooner it is overruled the better it will be, is an opinion in which we heartily concur. But is it erroneous in construing the statutes?

There is not, and has never been, any question under our Code that when a person gives a bond for his appearance, is tried and convicted, and a new trial granted by the trial court, the prisoner is entitled to be released on his original bond, by virtue of articles 823 and 848 of our Code of Criminal Procedure. They are subject to no other or different construction. Then in case a new trial is not granted by the trial court, and a recognizance or bail bond on appeal is entered into, article 911 of the Code provides that if we reverse the case, and grant a new trial, the case shall stand as it would have stood if a new trial had been granted by the court below. It is not seriously contended that, if he has given an appearance hond, in this instance he is entitled to be released on that bond, as was held in the Guffey Case, supra, and if he defaults the sureties on that bond are liable, as was recently held in the Wiseman Case, and in all other cases, decided by this court, and in that character of case of necessity the recognizance or bail bond on appeal would be deemed functus officio and the sureties discharged, because there cannot be two bonds and two sets of sureties liable on the two different obligations — one or the "other is discharged from all liability, and the Wells Case but followed a long list of decisions which had held that the sureties on the appearance bond were liable when the trial court or this court granted a new trial, and is in strict accord with the provisions of our Code.

But the contention is made that even though this be true, and if a defendant has given an appearance bond, upon the granting of a new trial by this court the sureties on the appeal bond or recognizance are discharged, and the sureties on the appearance bond are bound for his appearance, yet, in the event he has given no appearance bond, then the sureties on his appeal bond and recognizance are not discharged, and may be held liable for his nonappearance. We find no words used in our Code authorizing the construction that the sureties on the appeal bond or recognizance may be held liable in one instance and not in the other. Either they are liable, in the event a new trial is granted, for his appearance at the trial, or they are not liable. The language used in adopting the provisions of the Code authorizes no other construction. The Legislature could have so provided, but they did not do so, and while it might be for the best that it did so read, yet we have never been and are not now the lawmaking power. But it may be said that must have been the intention of the Legislature; if so, they had a poor and meager way of expressing their intention. How are we to gather the intent of the Legislature? First, by the words used, and, if they are plain and unambiguous, then there is nothing to construe, and we must give force and effect to what they have enacted. Next, if the language is ambiguous, or the meaning not clear, then we are authorized to take into consideration the object and purpose of the law, the evil sought to be remedied, and the circumstances under which the law was passed. But there is another rule of construction that has never been varied from, and that is, if it is the re-enactment of a law, the construction prevailing as to the language used will be the same in the new as in the old. If the language is borrowed from another statute, then the construction theretofore applied to that language will be applied to it in the new statute. All the authorities so hold, there being none to the contrary. If this was an entirely new statute, and none analogous thereto in our Code, other rules might prevail; but as the condition in the recognizance in felony cases is a literal copy, word for word and letter for letter, of the recognizance in misdemeanor cases, there is no rule of law which would authorize one construction to be placed on the recognizance on appeal in misdemeanor eases, and another construction to be placed on the recognizance on appeal in felony cases. As stated before, in felony cases from 1856 to 1906 a person convicted of a felony was required, to remain in jail pending an appeal, but during all that time a person convicted of a misdemeanor was permitted to give a recognizance pending an appeal, and in 1886 this court held in the Wells Case, supra, that, in case of reversal and. a new trial being granted, the recognizance on appeal had accomplished its purpose, and the sureties thereon were no longer liable. This was recognized as the law of this state for 20 years, and in 1907, when the Legislature authorized a person convicted of a felony to also give a recognizance, they used tile same language exactly as heretofore used in misdemeanor recognizance on appeal, and by all the rules of law the same construction should be placed on the conditions of a felony recognizance as had theretofore been placed on recognizance in cases of misdemeanor.

But it is insisted this will work great mischief, in that in some cases it will permit persons to be at large without bond in case this court shall grant a new trial. This ease was appealed to this court last year, and we thought that such might be the result, and we laid it on the shelf until the convening of the Legislature, and then called their attention to the matter. A bill was • introduced rectifying the matter, passed' one branch of the Legislature, but failed of passage in the other branch. If mischief is worked, as before stated, this court is not the lawmaking power of this state, and we cannot ingrait provisions on the .laws which the language will not authorize. The language in misdemeanor recognizances and the articles of our Code having been construed by this court in the Wells Case, that the recognizance on appeal became functus officio and the sureties discharged, the Legislature, knowing this to be the construction that had been placed thereon, used the same language in a felony recognizance, and we must presume that they knew and intended that such should be the construction that should be placed thereon. If mischief is worked, we do not feel responsible therefor; and while, as stated by Judge PRENDERGAST, if the language used is subject to two constructions, that construction should be adopted which would cause the least or no mischief, yet that rule has no application in a case where a statute has been construed, and the only -alteration or change made is not in the language used, but only in applying the statute to cases in which it was theretofore not applicable, the language being the same in the latter as in the former case.

The judgment is reversed, and the cause is remanded.

DAVIDSON, P. J.

In view of the Wells Case, 21 Tex. App. 594, 2 S. W. 806, and the legislation upon which it is based, and the repeated re-enactment of those statutes and the long and uninterrupted acquiescence in that decision by the bench and bar, I shall agree with Judge HARPER’S conclusion to reverse. I am somewhat further impelled to this view also by reason of the fact this court was unanimous in deciding the recent case of Wiseman et al. v. State. That case was discussed fully and on various occasions, and the final conclusion reached as therein announced. It occurs to me, if the decision in the Wiseman Case is correct, the judgment in this case should be reversed. I agree to the conclusion, therefore, that the judgment should be reversed.

PRENDERGAST, J.

(dissenting). I concur in the opinion of Judge HARPER in this case on every question discussed and decided except the last. After a most careful investigation and study of this question, I have reached the conclusion that this last question should be decided the reverse of what Judge HARPER has written. I do not propose to discuss the question at any length, but feel that in justice to myself it is necessary for me to express my views.

But one case is cited in the opinion to sustain it; that is, the case of Wells v. State, 21 Tex. App. 594, 2 S. W. 806. In the first place, I am convinced that that decision on the point cited is clearly dictum and should not be followed. The report of that case, and the opinion itself, shows that that question on the point for which it is cited in this case was not needful to the ascertainment of the question between the parties and was altogether unnecessary. As said by the United States Supreme Court in Carroll v. Carroll, 16 How. 275, 14 L. Ed. 936 “this court * * * has never held itself bound by any part of an opinion * * * which was not needful to the ascertainment * * * in question between the parties.” In this Wells Case, supra, it is shown that this court held that the indictment in that case in which the bond was given was absolutely void, because it was found by a grand jury composed of 13 persons, and reversed and dismissed the case on that ground. It was therefore wholly unnecessary for the court to have passed upon the other question, and is and should be held as dictum. I have searched diligently for any other decision by this court referring to or approving the opinion in said Wells Case on that question, and have not found any. It is the rule of this court, when a reversal is ordered, to preter-mit the discussion of any question which will not or cannot arise on another trial. This should have been done on this question, in the Wells Case. This rule is followed in this court all the time as shown by the reports. But, when this court affirms, it is necessary and proper to decide all pertinent questions, correctly raised.

In the second place, I believe the Wells Case on that point was not correct, and that the article of the Code (876) now article 945 was incorrectly construed. That article is: “Where the Court of Criminal Appeals awards a new trial to the defendant, the cause shall stand as it would have stood in ease the new trial had been granted by the court below.” On this same subject the statute then prescribed as it does now in article 843: “The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in the argument.” (Italics mine.) This latter clause, in my judgment, properly construed, should be applicable to said article 945. I think the Legislature’s intention; by the enactment of article 945, was that the effect of awarding a new trial by this court, as it says, should cause the case to stand ¿s it would have stood in case a new trial had been granted by the court below; that is, the former conviction should be regarded as no presumption of guilt, nor shall it be alluded to in the argument. Simply that, and nothing more.

But whether I am right in this construction or not is not the controlling question. Prior to the decision in said Wells Case, both this court and the Supreme Court, when it had criminal jurisdiction, expressly decided the question the reverse of what the Wells Case on this .point holds and what the opinion in this case holds. This is expressly conceded in Judge HARPER’S opinion herein. Those cases are Weaver v. State, 43 Tex. 389, and Riviere v. State, 7 Tex. App. 55. In the Weaver Case the Supreme Court fully discussed and pointedly decided the question. This court in the Riviere Case pointedly stated the question, recognizing the authority in the Weaver Case and in effect approved and followed it. I think this court should follow and approve the Weaver and Riviere Cases. The Weaver and Riviere Cases were not overruled by the Wells Case. On the contrary, they were expressly recognized thereby, and simply distinguished by a dictum incorrectly to the effect that a new statute made a change. But whether they are approved and followed or not, still, under the. facts of this case, I believe the only proper construction of our statute providing for an appeal bond on conviction of a felony should be, and is, to hold the sureties on such appeal bond liable if they do not 'have the appellant appear and stand trial in the district court when his case has been reversed by this court and remanded for a new trial. The facts in the Wells Case, supra, are altogether different from the facts of this case. In the Wells Case the defendant had made a bail bond and was out on bail at the time of his trial and conviction in the lower court. Upon conviction and appeal he entered into a recognizance so as to prevent remaining in jail pending his appeal. When this court reversed his case and ordered a new trial in the court below, the court held that that would revive and put in force again the bail bond theretofore given in the lower court before his trial therein. That is not the state of facts in this ease. In this he had given no bail bond in the lower court, prior to his trial and conviction therein.

The article of the Code of 1856 (267), now 323, is entirely different. That of 1856 bound the sureties, “until his (defendant’s) final acquittal or conviction.” Now, and when the Wells decision was rendered, that article had been changed to read, “until discharged from further liability thereon according to law.” Quite a difference!

It is true in law as well as in the affairs of life that “circumstances alter cases.” It is also true that a principle of law, when well established, and especially statutory, remains the same. But the application of a given principle to a given state of facts by no means follows. A principle of law that is applicable to one state of facts may be, and frequently is, wholly inapplicable to another. In fact, while a given principle of law may be applicable to one state of facts, the reverse or opposite principle may be applicable to an altogether different state of facts.

All rules of construction of statutes are adopted and applied, as held all the time by all the courts, for the purpose of ascertaining the legislative intent. As correctly and tersely said by our Supreme Court in Edwards v. Morton, 92 Tex. 152, 153, 46 S. W. 792, and approved and quoted by this court in Parshall v. State, 62 Tex. Cr. R. 187, 138 S. W. 764, and in fact by all the courts: “The intention of the Legislature in enacting a law is the law itself.” There are numerous rules for the construction of statutes. The fundamental object and purpose of all of them is to ascertain and give effect to the intention of the Legislature. I will call attention to some of these rules laid down by text-writers and this court.

In Lewis’ Sutherland on Statutory Construction (2d Ed.) vol. 2, §§ 415 and 416, he says: “The modern doctrine is that to construe a statute liberally, or according to its equity, is nothing more than to give effect to it according to the intention of the lawmaker, as indicated by its terms and purposes. This construction may be carried beyond the natural import of the words when essential to answer the evident purpose of the act; so it may restrain the general words to exclude a case not within that purpose. (416) There is no arbitrary form of words to express any particular intention; the intent is not identical with any phraseology employed to express it.„ Any language is but a sign, and many signs may be used to signify the same thing. In statutes, the sense signified is the law; the letter is but its servant or its vehicle. Language is so copious and flexible that when general words are used there is an absence of precision, and all words and collocations of words admit of more than one interpretation. In the construction of remedial statutes, while the meaning of the words is not ignored, it will be subordinated to their general effect in combination in a whole act or series of acts, read in the light of all the pertinent facts of every nature of which the courts take judicial notice. Liberal construction of any statute consists in giving the words a meaning which renders it more effectual to accomplish the purpose or fulfill the intent which it plainly discloses. ■ Eor this purpose, the words may be taken in their fullest and most comprehensive sense. Where the intent of the act is manifest, particular words may have an effect quite beyond their natural signification in aid of that intent.”

Our O. O. P. art. 25, is: “The provisions of this Code shall be liberally construed, so as to • attain the objects intended by the Legislature: The prevention, suppression and punishment of crime.” Article 5502 (3268) R. S., is: “The following rules shall govern in the construction of all civil statutory enactments: * * * (Subdivision 6) In all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.” Notwithstanding this is the statute as to the construction of civil laws, as this court, in Murray v. State, 21 Tex. App. 630, 2 S. W. 760, 57 Am. Rep. 623, said of said article of the Revised Statutes, so I say of this article 5502 (3268): “Though embraced in the civil statutes, is, in our opinion, equally as applicable, and of binding force in criminal prosecutions.” These statutes, in connection with articles 9 and 10 of the P. C., all of which must be construed together, require this court, as I understand it, to construe all of the penal enactments of the Legislature liberally, and that the old or common-law rule that they were to be construed strictly ' has been abrogated. The Road Cases, 30 Tex. 503; Ex parte Gregory, 20 Tex. App. 210, 54 Am. Rep. 516; Ex parte Garza, 28 Tex. App. 381, 13 S. W. 779, 19 Am. St. Rep. 845.

Again, this court, in Yakel v. State, 30 Tex. App. 394, 17 S. W. 944, said: “Statutes should be so construed as to prevent mischievous consequences. Such construction finds itself supported in the good order of society, protection of the weak against the strong, and should be favored, and more especially if such a construction be in opposition to one that would tend to bring about evil results. People v. Garrett, 68 Mich. 487, 36 N. W. 234; Holmes v. State, 88 Ind. 145; Am. & Eng. Encyc. of Law, p. 702, note 2. The purpose and object of the Legislature iñ. enacting the statute being known, it is the duty of the court to so construe it as to conform to that intent and carry out such purpose.”

In Albrecht v. State, 8 Tex. App. 314, this court held: “If a reasonable construction of the language would tend to effectuate this purpose, and another construction equally as reasonable would have a contrary tendency, under well-established canons of construction courts should not hestitate in choosing the former to the exclusion of the latter. Intention frequently controls express language in the construction of a statute. Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595.”

Again, in Sartain v. State, 10 Tex. App. 653, 38 Am. Rep. 649, this court said: “ ‘Courts are not confined to the literal meaning of the words employed, in the construction of statutes, but, as was said in Burgett v. Burgett, 10 Rep. 221, the intention of the lawmakers may be collected from the cause or necessity of the act; and statutes are sometimes contrary to the litera] meaning of the words. It has been decided that a thing within the letter was not within the statute unless within its intention. The letter is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter. 4 Bac. tit. Statute, 1, §§ 38, 45, 50. Every statute should be construed with reference to its object, and the will of the lawmakers is best promoted by such a construction as secures that object and excludes every other.’ Castner v. Walrod, 83 Ill. 171, 25 Am. Rep. 369; Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595.”

And in Whisenhunt v. State, 18 Tex. App. 496, this court again said; “It is a well-settled rule of statutory construction ‘tMt tlie intent and meaning should be followed although it may seem to be contrary to the letter of the statute.’ Sedgwick on Statutory Construction, 256. ‘Statutes are to be construed according to the intentions of the makers, if these can be ascertained with reasonable certainty, although such construction may seem contrary to the ordinary meaning of the letter of the statute.’ Id. p. 313; Staniels v. Raylond, 4 Cush. (Mass.) 314; Wilson v. Ireland, 4 Md. 444.”

Now I go to the bond itself in this case and quote it. It is: “The State of Texas v. Joe Bug Roquemore. No. 2,929. In the District Court of Angelina County, Texas. Know all men by these presents: That whereas, Joe Bug Roquemore, defendant in the above entitled and numbered cause, was heretofore on the 12th day of May, A. D. 1909, convicted in this cause for the offense of murder in the second degree, and his punishment assessed at confinement in the state penitentiary for a period of fifteen years; and whereas, on the 21st. day of May, A. D. 1909, the defendant’s motion for a new trial was by the court overruled, to which order and judgment of the court the defendant excepted and gave notice in open court of appeal to the Court of Criminal Appeals of the State of Texas; and whereas, the court thereupon fixed the amount of the bond of the defendant pending said appeal at the sum of eight thousand ($8,000.00) dollars: Now, therefore, we, Joe Bug Roquemore as principal, together with - and - as sureties, acknowledge ourselves jointly and severally indebted to the state of Texas in the sum of eight thousand ($8,000.00) dollars, conditioned that the said Joe Bug Roquemore principal herein, who stands charged with the offense of murder in this court, and who has been convicted for the offense of rhurder in the second degree in this court upon a trial of said charge, shall appear before this court from term to term and from day to day of the same, and not depart therefrom without leave of this court in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case. [Signed] Joe Bug Roquemore. P. M. Sanders. Jas. W. Christian. W. P. Clevinger. W. G. Watkins. A. J. Murphy. Dr. W. T. Castleberry. R. B. Cleninger. J. P. Cleninger. W. R. McLain.”

This bond is in substantial if not literal compliance with the form prescribed by our statute. Articles 903 and 904, C. C. P.

Now, what is the condition of this bond? It is: “Conditioned that said principal shall appear before this court (the district court) from term to term- and from day to day of the same and not depart therefrom without leave of this court in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case.” What is the judgment of the Court of Criminal Appeals when it reversed the judgment of the lower court on that appeal? Was it that the principal, Roquemore, should go scot-free? Or was it that his sureties were under no obligation whatever to bring him before the said district court when the case was again called for trial? In my judgment, clearly the effect of the bond upon the reversal of the case by this court was not that he should go scot-free. On the contrary, as the bond itself states, “he shall appear before this court (district court) from term to term and day to day of the same and not depart therefrom without leave of the court (the district court) in order to abide the judgment of the Court of Criminal Appeals of the State of Texas in this case.” I ask again: What was the judgment of the Court of Criminal Appeals in that case? Was it that he should go scot-free? Cer.tainly not. But he was to appear before that district court and stand another trial, the same as if he had never been tried before.

In my judgment to hold that the effect of that bond, upon the reversal by this court of said case, is to turn the appellant scot-free, and that it does not require that his sureties shall produce him before the district court to stand another trial, not only would do violence to the proper construction of said bond and the law, but it would be the reverse of what was intended and meant by the Legislature. As said by Judge Davidson in Yakel v. State, supra, “Statutes should be so construed as to prevent mischievous consequences.” And again, as said in Albrecht v. State, supra: “If a reasonable construction of the language would tend to effectuate this purpose, and another construction equally as reasonable would have a contrary tendency, under well-established canons of construction courts should not hesitate in choosing the former to the exclusion of the latter.” And as again said in Whisenhunt v. State, supra: “The intent and meaning should be followed although it may seem to be contrary to the letter of the statute. * * * Statutes are to be construed according to the intentions of the makers, if these can be ascertained with reasonable certainty, although such construction may seem contrary to the ordinary meaning of the letter of the statute.”

There is nothing in the condition of this bond, nor in our statute, which, to my mind, in any way points to the fact that when this court reverses a felony conviction and orders him to again be tried, and the appellant has prevented his confinement in jail, pending appeal, and has given no bail bond in the lower court prior to his conviction, that he' should go scot-free. On the contrary, in my judgment, the only reason.able construction, and I believe it was the clear intention of the Legislature, that he is to appear, and his bondsmen are required to produce him before the lower court, when his ease is called for trial again, and there from day to day and term to term keep him until he is properly convicted or discharged by that court. To hold otherwise, in my opinion, would not only do violence to the proper construction of said bond, but would be the reverse of what was intended and meant by the Legislature. If Roquemore had not given this appeal bond, unquestionably the sheriff would have, as the law requires, taken charge of him and confined him in jail until the disposition of his appeal by this court. Then, instead of going scot-free, the sheriff would have had him for the new trial ordered by this court. Instead of this, as said by our Supreme Court when it had criminal jurisdiction, in Gay v. State, 20 Tex. 507: “These manu-eaptors [his bondsmen] being his jailers, and he constantly in a state of commitment,” they must produce him before the district court for trial. In my opinion, being such custodians, they were bound by the bond they voluntarily entered into to produce him before the district court when his case was again called for trial, and, not doing so, and showing no excuse whatever for not doing so, they must necessarily be compelled to pay their plain voluntary obligation to the state. In law, if not in fact, but I believe in fact, they assumed this obligation knowing that if they did not properly so produce him they must pay their plain, unequivocal statutory obligation. If the construction of Judge HARPER should prevail, then said bond binds the sureties, only as if it read: If the Court of Criminal Appeals affirms his case on appeal, his sureties shall produce him before the district court. If the Court of Criminal Appeals reverses his case, and orders him to appear before said district court, and stand another trial, he shall go scot-free, and his sureties shall not have him before said district court to stand another trial, nor for any other purpose. To so hold, in my opinion, violence would not only be done to the language of the bond, but to its clear intent and the intent of the Legislature as well.

The form of an appeal recognizance in a misdemeanor case (article 919, C. C. P.) is not word for word, etc., the same as for felony (article 903), though they are not materially different.

The Wiseman Case, from Wilbarger county, recently decided by this court, is entirely correct, and this opinion by me is not in conflict therewith. Nor is it in support of Judge HARPER’S opinion herein. The sole question in the Wiseman Case on this question was: When one indicted for felony had duly made a bail bond before trial, then tried and a verdict of guilty rendered, but set aside and a new trial granted by the trial court at the same term, his bail bond was held to still be in force after the new trial was granted. The question in this ease was stated in the Wiseman Case, but, as stated therein, expressly not decided.

Certainly age alone should not make any dictum or wrong decision the law. The law itself should prevail over any decision, and especially a wrong decision, however aged it may be. If that should not be the case, then surely this -court should not overrule, as it does in effect, the case of O’Brien v. State, 6 Tex. App. 665, which is this day correctly done in the case of Sam Davis v. State, 158 S. W. 288, for that decision is seven years older than the decision in the Wells Case.

In my opinion this case should be affirmed.


author: HARPER, J.

text:
    DUNN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 28, 1913.
    On Motion for Rehearing, June 25, 1913.)
    1. Indictment and Information (§ 41) — Preliminary Complaini^Requisites and-Sufficiency.
    It is unnecessary to name the person swearing to a criminal complaint in the body of the complaint, and hence the complaint was not defective because the name in the body of the complaint and that signed thereto was not the same.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 152, 163-169; Dec. Dig. § 41.]
    2. Criminal Law (§ 1056) — -Appeau—Reser-vation of Grounds of Review — Exceptions — Necessity.
    In a misdemeanor case, errors in the charge as given, or in refusing requested charges, cannot be reviewed on appeal, where no exception is reserved at the time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    3. Criminal Law (§ 954) — Motions for New Trial — Specification of Grounds.
    A motion for a new trial, on the ground that the court erred in failing and refusing to give a requested instruction because such instruction was a part of the law of the case, was too general.
    [Ed. Note. — For other cases, see Criminal' Law, Cent. Dig. §§ 2341, 2363-2367; Dec. Dig. § 954.]
    4. Criminal Law (§ 1172) — Appeal—Error Favorable to Appellant.
    On a trial for aggravated assault, the submission of simple assault was favorable to accused, even though the evidence did not raise that issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154r-3157, 3159-3163, 3169; Dee. Dig. § 1172.]
    On Motion for Rehearing.
    5. Assault and Battery (§ 78) — Information— Sufficiency.
    An information, reciting that the county attorney in behalf of the state presented that accused, on or about a day specified and before the filing of - the information, with a crutch, then and there being a deadly weapon, unlawfully committed an aggravated assault upon a party named, and with such deadly weapon did then and there strike such person, against the peace and dignity of the state, charged an offense against the law.
    [Ed. Note. — -For other cases, see Assault and Battery, Cent. Dig. §§ 116-122; Dec. Dig. § 78.]
    ■6. Indictment and Information (§ 188) — Verdict — Conformity to Indictment oe Information.
    Such information was sufficient to support a verdict for simple assault.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 580, 581; Dec. Dig. § 188.]
    Appeal from Hood County Court; W. D. Dean, Judge.
    R. B. Dunn was convicted of assault, and he appeals.
    Affirmed.
    J. T. Daniel, of Stephensville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Information and complaint was filed against appellant, charging him with aggravated assault; when tried he was convicted of simple assault, and his punishment assessed at a fine of $15.

Appellant filed a motion in arrest of judgment on the ground that in the body of the complaint the person who made it is called Lon Lowe, while it is signed A. P. Lowe; the contention being that there is no proof that Lon Lowe and A. P. Lowe was one and the same person. Under all the decisions of this court, it was unnecessary to name the person swearing to the complaint in the body of the complaint, and, being unnecessary to state the name in the body, this presents no variance. In the case of Malz v. State, 36 Tex. Cr. R. 450, 34 S. W. 267, in the body of the complaint, it stated that R. L. Winfrey was the complainant, while it was signed at the bottom by William Jackson, and in that case the court says: “In the body of the complaint it is not necessary to state the name of the party making the complaint or affidavit at all. The statute requires that the name of the party making such complaint must be signed at the foot of the complaint, and not elsewhere’’ — and therefore the motion to .quash was properly overruled. All of our decisions so hold.

This is a misdemeanor complaint and conviction, and there are no bills of exception in the record. In Brunk v. State, 60 Tex. Cr. R. 264, 131 S. W. 1125, this court, speaking through Presiding Judge Davidson, said: “In the absence of an exception taken at the time, and special instructions requested and refused, we would not feel justified under our practice to reverse a judgment for the supposed error in the charge, even if it be conceded to be error. * * * Under our statute and the decisions construing the statute, the rule in regard to exceptions to the charge in misdemeanors is different from that in felony cases. As before stated, in order for appellant to take advantage of the supposed error he should have excepted to the charge as given at the time, and requested a special instruction properly submitting that issue.” See also Basquez v. State, 56 Tex. Cr. R. 330, 119 S. W. 861. As there were no exceptions to the charge of the court at the time of the trial, in fact in this case, there is none in the motion for new trial, so if the charge of the court should be erroneous, it is not presented in a way we could review it. Two special charges were requested, but no bills of exception were reserved to the failure of the court to give them. It seems that members of the bar will not take into consideration the difference in procedure in felony cases and in misdemean- or cases as prescribed in our statutes and decisions.

Not only were no exceptions reserved at the time of the trial, but the complaints in the motion for the new trial are too general, reading, “Because the court erred in failing and refusing to give in charge to the jury special instruction No. -, because said charge is a part of the law of the case.” Ryan v. State, 142 S. W. 878, and cases cited.

The contention that the court erred in submitting simple assault is a matter about which appellant ought not to complain. If in fact the testimony had not raised that issue, a submission of it would have been favorable to defendant. But in fact the evidence did raise that issue, and- the court would have erred if he had not submitted it.

The evidence for the state amply supports the verdict; and, the testimony offered in behalf of defendant, while admitting he struck Deering, would raise the issue of self-defense. The court in his charge presented this issue to the jury.

The appellant at the time, nor in the motion for new trial, points out do error in this charge, and the judgment will be affirmed.

On Motion for Rehearing.

Appellant has filed a lengthy motion for rehearing, citing many authorities holding that if an information charges no offense, this fact may be taken advantage of on appeal. This is unquestionably the law, but the information in this case reads: “In the Name and by the Authority of the State of Texas: I, Junior M. Ator, county attorney of the county of Hood, state aforesaid, in behalf of said state, presents in the county court of said county, at the December term, A. D. 1912, of said court, that R. B. Dunn on or about the 30th day of November, A. D. one thousand nine hundred and twelve, and before the filing of this information, in the county of Hood and state of Texas, R. B. Dunn, with a crutch, the same then and there being a deadly weapon, did unlawfully commit an aggravated assault in and upon Knox Deering, and with said deadly weapon did then and there strike the said Knox Deering, against the peace and dignity of the state. Junior M. Ator, County Attorney of Hood County, said State.” This unquestionably charges an offense against the law, and is sufficient to support a verdict for simple assault. All the other questions were passed on in the original opinion.

The motion for rehearing is overruled.


text:
    TEMPLETON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Criminal Law (§ 814) — Instructions—Applicability to Evidence.
    Requested instructions, not applicable to the evidence introduced, were properly refused.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§, 1821,1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    Appeal from Throckmorton County Court; T. J. Wright, Judge.
    F. Templeton was convicted of catching fish within an inclosure without the consent of the owner, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. KeyTNo. Series & Rep’r Indexes

   HARPER, J.

Appellant was prosecuted and convicted of catching fish within the inclosure of W. E. Jarmon without the consent of the owner.

Appellant filed a motion to quash the information and complaint, on the ground that the act upon which it was based has been repealed by a subsequent act of the Legislature. We held adversely to appellant’s contention in the case of Berry v. State, 156 S. W. 626, recently decided, but not yet officially reported. The statement of facts was not filed in time; but, if we could consider it, the evidence supports the verdict. The special charges, Nos. 1 and 2, requested, were not applicable to the evidence introduced, and the court did not err in refusing them.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    BRAUN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Criminal Law (§ Í097*) — Appeal — Affirmance.
    Where accused raised no question which can be considered without a statement of facts, the conviction must be affirmed if the record contains none.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dee. Dig. § 1097.*]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Dr. Ludwig Braun was convicted of theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

From a conviction of theft of property over the value of $50, appellant prosecutes this appeal. There is no statement of facts with the record, in the absence of which appellant raises no question which we can consider.

The judgment is affirmed.


author: HARPER J.

text:
    BLACK v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Criminal Law (§ 1144*) — Appeal—Presumption — Facts Not Shown by Record.
    In a prosecution for crime, where the court in overruling a motion for a new trial, based on the improper conduct of a juror and supported by an affidavit which is denied by the affidavit of the juror, states that he heard the evidence, the appellate court will presume that the trial court acted properly, in the absence of the evidence upon which he based his ruling.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774t-2781, 2901, 3016-3037; Dec. Dig. § 1144.*]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Tom Black was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER J.

The indictment in this case is drawn in terms frequently approved by this court, and the court did not err in overruling the motion in arrest of judgment. There is no statement of facts nor any bill of exception accompanying the record. There is an affidavit attached to the motion alleging the improper conduct of one juror. The state contests this and files the affidavit of the juror. The court in overruling the motion for new trial states he heard the evidence. This evidence is not brought forward in the record before us, and we must presume the court acted properly.

The judgment is affirmed.


author: HARPER, X

text:
    SULLIVAN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Criminal Law (§ 1090*) — Appeal—Bills oe Exception — Statement oe Facts — Necessity.
    On appeal in a criminal case; where the indictment was in proper form and the charge submitted the offense alleged in the indictment,’ the denial of a motion for a new trial could not be reviewed where the record contained no bill of exceptions nor statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204;' Dec. Dig. § 1090.*]
    Appeal from District Court, Orange County; W. B. Powell, Judge.
    William Sullivan was convicted of assault to murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, X

Appellant was prosecuted and convicted of assault to murder, and Ms punishment assessed at five years’ confinement in the state penitentiary. The indictment is in proper form; the court in his charge submitted the offense alleged in the indictment; and, there being no bills of exception nor statement of facts in the record, there is no ground in the motion for a new trial we can review.

This case was tried last October, yet the transcript in this ease was not filed in this court until the 16th of May. Appellant has been in jail all this time, the county put to. the expense of keeping him, when this record should have been sent to us in January last. An injustice has been done both appellant and the county.

The judgment is affirmed.


author: DAVIDSON, P. J.

text:
    ADAMS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Criminal Law (§ 1090) — Appeal—Recobd.
    ■ The denial of a motion for a new trial cannot be reviewed where the record contains neither a statement of facts nor bills of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Effie Adams was convicted of theft from the person, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of theft from the person; her punishment being assessed at two. years’ confinement in the penitentiary. The record is before us without a statement of facts or bills of exception. In the absence of both, the grounds of the motion for new trial present nothing that can be intelligenty reviewed.

The judgment is affirmed.


text:
    GONZALES v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Criminal Law (§ 1114*) — Appeal—Presentation Below.
    Where the record does not show' the evidence or any reserved exceptions to the court’s rulings, assignments of error that the verdict was contrary to law and evidence and in excluding and admitting evidence and in giving and omitting to give instructions cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. § 1114.*]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Justo Gonzales was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

This record is before us without the evidence or any reserved exceptions to the ruling of the court. In the motion for new trial it is complained the verdict is contrary to the law and the evidence, and the court erred in refusing to allow Victor Torris to testify for the defendant, and because the court erred in permitting the testimony that was had in the habeas corpus trial, and because the charge of the court on recent possession of stolen property was not full enough and did not give the jury the full charge on the pos'session of recent stolen property.

In the shape the record is in before us, these matters are not in condition to be reviewed; therefore the judgment is affirmed.


text:
    CAMPBELL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Criminal Law (§ 1019*) — Appeal — Decisions Reviewable — Cases Originating in Inferior Courts.
    Where a person convicted in the recorder’s court of a city for violating an ordinance appealed to the county court, where he was again convicted and his punishment assessed at a fine of $5, the county court’s judgment was final, and he could not take a further appeal to the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2578-2580; Dec. Dig. § 1019.*]
    Appeal from Nolan County Court; Jno. H. Cochran, Jr., Judge.
    Roy Campbell was convicted of violating :a city ordinance, and he appeals.
    Appeal dismissed.
    A. W. Christian, Co. Atty., of Sweetwater, and C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted in the recorder’s court, of the city of Sweet-water for violating an ordinance of that city. Upon conviction, he appealed to the county court of Nolan county, and when tried he was again convicted and his punishment assessed at a fine in the sum of $5, and he attempts to perfect an appeal to this court.

In the case of Richardson v. State, 3 Tex. App. 69, it was held that this court had no jurisdiction of an appeal in that character of case; the court saying: “The judgment of the county court was a finality, and no appeal could be taken to tMs court from it. The law is: ‘In all appeals from justices’, mayors’, or recorders’ courts there shall be a trial de novo in the county court, and, when the judgment rendered, or fine imposed, or the amount in controversy shall not exceed one hundred dollars, exclusive of interest and costs, the judgment shall be final.’ Gen. Laws 15th Leg. p. 18, § 3, and page 172, § 3; Const, art. 5, § 16; Ex parte Dennis Call, 2 Tex. App. 497.” In section 1228 of White’s Ann. C. O. P. will be found a long list of authorities so holding, and this is not only the unvarying rule since these decisions of this court, but the statutes so provide.

Appeal dismissed.


text:
    SEYMOUR v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Criminal Law (§ 417) — Evidence—DECLARATIONS 01T WIFE OF ACCUSED.
    In a prosecution for stealing chickens, where the testimony showed that the defendant had been seen taking a basket to his wife, a witness for the state in chief cannot testify that defendant’s wife wanted to leave the basket with the witness, stating that she was afraid somebody would get the basket and find the chickens in it, where the defendant was not present when such statement was made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-957; Dec. Dig. § 417.]
    2. Larceny (§ 55) — Evidence—Sufficiency.
    Evidence held, insufficient to sustain a conviction for stealing chickens.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. i 55.]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Ernest Seymour was convicted of the theft of chickens, and he appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of the thejlt of chickens. The alleged owner testified she lost three chickens worth several dollars; they were taken by some one; that she saw where feathers had been dropped and followed them in the neighborhood of where appellant lived. This was the next day after the chickens were missed. She saw appellant going up the river in the direction of a factory and followed him, thinking the chickens were in the basket which he carried. She requested a man to follow her, fearing that if she overtook defendant and found him with the chickens he might do her injury. This man testified that he followed along behind the alleged owner. No one testifies to defendant having- the chickens or that the chickens were in the basket. The defendant testified he did not take the chickens and did not have them in the basket. Defendant and his wife were living apart at the time. She testified that appellant brought her in the basket some glassware. at her request from their' home; that she at the time was living separate from her husband and with her daughter; that appellant brought the basket which contained glassware and some of his dirty clothes, which she was to and did wash. She testified the chickens were not in the basket. A witness was permitted to testify in chief that the defendant’s wife came to her and wanted to leave her basket, stating she was afraid that somebody would get the basket and 'find the chickens in it. This witness declined to permit appellant’s wife to leave the basket, and she took it away. She did not know what was in the basket. Objection was urged to this at the time for various and sundry reasons. This testimony was not admissible. It was offered as original testimony by the state. This all occurred in the absence of the defendant; it was a statement of his wife; she had not then been used as a ■ witness; and it was not offered as impeaching testimony. As presented, the bill of exceptions was well taken, and the objection should have been sustained.

As the evidence is presented by this record, we are of opinion the state has not made out a case. We have given practically every criminative fact in the record as we understand this testimony. The state’s witness testified that she found some feathers, and we may infer from her testimony that she intended to convey the idea that they were the same kind of feathers that would have come from her chickens. They were traced to the neighborhood of or close to appellant’s house. This is the state’s case, so far as defendant is concerned. The fact that she followed defendant the next morning and he had a basket on his arm is not a criminating fact against him unless the chickens were shown to have been in the basket. This was not done, and no witness testified that there were chickens in the basket. Appellant may be guilty and may have had chickens in the basket, but nobody testified to it and he and his wife deny it. This evidence is not sufficient.

The judgment is reversed, and the cause is remanded.