text:
    TAYLOR v. STATE.
    (No. 3595.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    Rehearing Denied Oct. 13, 1915.)
    1. Criminal Law <&wkey;59 — Principles—Who Are.
    Mere presence, without participation in the commission of an offense, win not constitute one a principal, but presence, with other circumstances, may be sufficient to show that such person was a principal.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. i&wkey;>59.]
    2. Homicide &wkey;>281 — Evidence — Admissibility.
    In a prosecution for homicide, evidence that accused was a principal held sufficient to go to the jury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 573; Dec. Dig. &wkey;?281.]
    8. Homicide &wkey;>305 — Evidence — Instructions.
    In a prosecution for homicide, where it appeared that accused was the father of the one who fired the fatal shot, and that he had brought with him the gun used in the killing, a charge that all persons are principals who are guilty of acting together in the commission of an offense, and, when an offense has been committed by one and others are present, the criterion is, Did the parties act together in the commission of the offense? and, if so, all are alike guilty, is erroneous under the circumstances.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 637; Dec. Dig. <&wkey;>305.]
    4. Witnesses <&wkey;255 — Examination — Refreshing Memory.
    The memory of a witness may be refreshed by propounding questions to her and exhibiting to her her testimony given at the coroner’s inquest.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 870-890; Dec. Dig. (&wkey;>255.]
    5. Witnesses <&wkey;>321 — Examination — Impeachment.
    Under Code Cr. Proe. 1911, art. 815, a party introducing a witness may attack his testimony when the facts stated by the witness are injurious to his cause, the state, when it introduces a witness cannot attack the witness because, even after an attempt to refresh her memory, the witness fails to recall matters testified to at the coroner’s inquest; in such case there being no injury to the state’s case.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1094, 1099, 1100; Dec. Dig. <®¿s321.]
    6. Criminal Law <&wkey;380 — Character Evidence-Admissibility.
    Where accused put his good character as a peaceable citizen in issue, testimony that it had been reported some 30 years before that he killed a man in another state and was a member of a gang of outlaws is too remote to be considered.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 843, 845; Dee. Dig. &wkey;> 380.]
    7. Homicide &wkey;>300 — Principals—Who Are.
    Where accused, charged as being a principal with his son, who shot deceased, testified that deceased reached for a pistol, a charge on self-defense should have been given.
    [Ed. Note. — For other . cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630'; Dec. Dig. <S=>300.]
    8. Homicide &wkey;»300 — Principals—Liability.
    Where accused was charged as being a principal with his son, who actually did the killing, he could not be convicted if he believed the killing was necessary to their mutual safety, or if the son so believed on reasonable grounds.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. &wkey;3¿00.]
    Appeal from District Court, Smith County; J. A. Bulloch, Special Judge.
    J. B. Taylor was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Simpson, Lasseter & Gentry, of Tyler, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with murder. When tried he was adjudged guilty of manslaughter, and his punishment assessed at two years’ confinement in the penitentiary.

The evidence in this case would show that the deceased, John Gilley, was a deputy sheriff and on the 24th of last December had arrested some negroes living on Frank Taylor’s farm. While carrying them to Tyler, Jesse Taylor overtook the officers. What then took place is a mooted question. The state’s evidence is that, when Jesse Taylor overtook the officers, he cursed and abused' them, and assaulted Mr. Broadwater, who was assisting Deputy Sheriff Gilley. Broadwater’s testimony is that deceased, Gilley, struck Jesse Taylor on the head with a pistol, it being accidentally discharged, killing Jésse Taylor. Appellant and his other two sons, Frank and Willis Taylor, placed no confidence in this theory of the case, but from what they heard they believed that Gilley had intentionally shot Jesse Taylor, when he had committed no assault; that he had followed Gilley and Broadwater to secure the release of the negroes, and had only requested their release, when words ensued, and Gilley shot Jesse Taylor in the back of the head. Without discussing further the evidence in regard to the killing of Jesse Taylor, or commenting thereon, the record makes it evident that a bad state of feeling existed between deceased, Gilley, and Broad-water, on the one hand; and appellant and his two sons, Frank and Willis, on the other hand, up until the time Gilley was killed on the morning of February 5th last.

Willis Taylor fired the shot that killed Gilley. This is shown by all the evidence, both for the state and defendant. The state sought the conviction of appellant on the theory that he was a principal in the commission of the offense. To sustain this it showed that after the killing of Jesse Taylor by Gilley appellant purchased a box of shotgun shells containing buckshot, and carried his gun with him wherever he went. This is not denied by appellant, but he gives as a reason that he did so to defend himself, as he had been informed that Gilley and Broadwater had said they would kill the entire Taylor family. The state further introduced evidence to the effect that after the killing of his son Jesse Taylor appellant had said to Travis Hanks that he believed Gilley had murdered Jesse, and they could not both live in the same community or county. In addition to this, the state introduced evidence which would show that the grand jury was in session and were examining into the facts relating to the killing of Jesse Taylor, Gilley having been bound over to the grand jury for having killed Jesse Taylor; that a subpoena had issued for Broadwater summoning him to appear before the grand jury on a given date; and that appellant was in Tyler on the date of the issuance of this subpoena. On the day Broadwater had been summoned to appear before the grand jury, appellant left his home and went to the home of his son, Frank Taylor, who lived on one of the roads leading from Gilley’s and Broadwater’s home to Tyler, carrying a shotgun with him loaded with buckshot. Willis Taylor was at the home of Frank Taylor, and the state contends that he watched the road, and when he saw Gilley and Broadwater coming he walked into the. hall and called, “Pa;” that appellant walked into the hall. Willis Taylor had the gun appellant had carried to the home of Frank Taylor that morning, and as Gilley and Broadwater were driving past Willis fired, killing Gilley and wounding Broadwater.

One of the contentions of appellant is that these facts and circumstances, if true, would not support a finding that appellant was guilty as a principal in the commission of the offense, even though Willis Taylor was guilty of some grade of culpable homicide. This contention cannot be sustained. While the contention of the state is that appellant was also armed at the time with another shotgun, this is vigorously contested by the appellant; also the fact that he knew that Willis intended to shoot GilUey, or that he aided by acts, or encouraged by words or gestures, his son, who did the shooting. It is true mere presence, without participation in any manner in the commission of an offense, will not constitute one a principal. His presence, however, is a circumstance tending to prove that fact, which, taken with other facts and circumstances, may be sufficient to warrant the conclusion he was a participant, in that he had advised the commission of the offense, was personally present, and by his acts and conduct encouraged the person doing so to commit the offense. It is also true that one personally present must have a knowledge that the person' committing the act intends doing so. But knowledge in this instance could be inferred if the jury should find that the state’s contention is the correct theory; that appellant had carried the gun to Frank’s, knowing Willis would be there; that he perhaps had knowledge that deceased Gilley and Broadwater would probably pass there that morning; that he could see Willis watching the road; that when Gilley and Broadwater came in sight Willis had walked into the hall and called appellant, appellant immediately following him, and was with Willis when he shot. These facts and circumstances would support a finding that appellant was a principal, and we would not disturb the verdict on that ground. However, appellant complains of the charge on who are principals.

In his main charge the court instructed the jury:

‘‘Now, all persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, and others are present, the ti’ue criterion for determining who are principals is: Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all.”

Under the peculiar facts in this case, we think the criticisms of this paragraph meritorious, and this in and of itself would present reversible error had the court not given a special charge requested on this issue. As the case will be reversed on other grounds, we will say that on another trial, in connection with the above paragraph of the charge, as it is admitted that appellant was present, he merely contending thac he did not encourage by words or gestures his son Willis, and did no act that would constitute him a principal, the court should instruct the jury that his mere presence would not constitute him a principal, and that, although appellant was present, unless he gave Willis some aid, or encouraged him by his words, gestures, or conduct on the occasion, or had advised the commission of the offense, he would not be a principal in the commission of the offense. Having instructed the jury what would constitute one a principal, appellant, under the evidence offered by him, had the right to have' presented in the same connection the rules of law governing when mere presence will not constitute one a principal offender.

The state’s theory of the case being as above stated, it called Mrs. Frank Taylor as a witness. She says appellant came to her home that morning, but she did not know whether or not he brought a gun with him. She testified that appellant and Willis Taylor were in one room of the house, and that Willis got up and walked out in the hall and called, “Pathat she did not-remember hearing him say anything else. She was asked if, when they walked out in the hall, she did not put her hands over her ears to keep from hearing the report of the gun. She says after the shot she placed her hands over her ears to keep from hearing any more shots if they were fired. This witness had testified at the coroner’s inquest and her testimony reduced to writing. The state was permitted to show her this written statement to refresh her memory and propound to her certain questions with this end in view. It is always permissible to refresh the memory of a witness. McLin v. State, 48 Tex. Cr. R. 551, 90 S. W. 1107; Spangler v. State, 41 Tex. Cr. R. 430, 55 S. W. 326. But, after having attempted to do so, one is not permitted to prove what his own witness had testified on a former occasion, unless the witness swears to facts injurious to his cause. Mere failure to swear to facts that one expects to prove by a witness furnishes no grounds to prove that the witness had so testified on a former occasion. At common law one could not impeach his own witness. By placing the witness on the stand he was supposed to vouch for the truthfulness of the witness. Our Code has so far modified the rule that a party may attack the testimony of his own witness when the facts stated by the witness called by him are injurious to him, but in no other instance can he attack a witness whom he calls. Article 815, C. C. P. Mr. Branch, in his Criminal Law, has well stated the correct rule, in section 866:

“Error to permit the state to impeach her own witness, where such witness merely fails to remember, or refuses to testify, or fails to make out the state’s case. A mere failure to make proof is no ground for impeaching such witness. Bennett v. State, 24 Tex. App. 77, 5 S. W. 527 [5 Am. St. Rep. 875]; Dunagain v. State, 38 Tex. Cr. R. 614, 44 S. W. 148; Smith v. State, 45 Tex. Cr. R. 520, 78 S. W. 519; Scott v. State, 52 Tex. Cr. R. 165, 105 S. W. 796; Wells v. State, 43 Tex. Cr. R. 451, 67 S. W. 1020; Owens v. State, 46 Tex. Cr. R. 16, 79 S. W. 575; Hanna v. State, 46 Tex. Cr. R. 8, 79 S. W. 544; Ware v. State, 49 Tex. Cr. R. 415, 92 S. W. 1093; Skeen v. State, 51 Tex. Cr. R. 40, 100 S. W. 770; Quinn v. State, 51 Tex. Cr. R. 156, 101 S. W. 248; Shackleford v. State, 27 S. W. 8; Finley v. State, 47 S. W. 1015; Knight v. State, 65 S. W. 89; Gibson v. State, 29 S. W. 471; Kessinger v. State, 71 S. W. 597; Erwin v. State, 32 Tex. Cr. R. 519, 24 S. W. 904; Williford v. State, 36 Tex. Cr. R. 425, 37 S. W. 761; Ozark v. State, 51 Tex. Cr. R. 108, 100 S. W. 927; Gill v. State, 36 Tex. Cr. R. 596, 38 S. W. 190; Largin v. State, 37 Tex. Cr. R. 574, 40 S. W. 280; Thomas v. State, 14 Tex. App. 72; Dawson v. State, 74 S. W. 912; Goss v. State, 57 Tex. Cr. R. 557, 124 S. W. 108.”

Having attempted to refresh the witness’ memory by exhibiting to her a copy of the statement she made at the coroner’s inquest, and she having denied making such statement, it was error to permit the state to introduce the following portions of her statement made at the coroner’s inquest:

“Willis Taylor was sitting down in the east room near the north window, and got up and went to the north window and said, ‘Yonder they are [or go], Pa;’ I don’t remember which; I think he said, ‘Yonder they are.’ * * * He [J. B. Taylor] came here this morning afoot, and brought a double-barrel shotgun with him. This is the gun that was on the bed in the west room. * * * When J. B. Taylor and his son Willis left the room, I placed my hands over my ears to keep from hearing the gun.”

It was also error to permit Justice of the Peace Gaines to testify to the same facts.

As Mrs. Frank Taylor is a daughter-in-law of appellant, and consequently likely to feel a deep interest in his trial, it may seem a harsh rule of law to the state that under such' circumstances, she having testified to facts at the coroner’s inquest which would have a strong tendency to show that Willis Taylor killed Gilley in accordance with a preconceived design of himself and appellant, and therefore was guilty of murder, and would have a strong tendency to show that appellant was a principal in the commission of the offense, he being present, yet the state cannot prove she did so testify at the coroner’s inquest, although she on the trial declines to so testify; yet such is the law. If, in addition to testifying that she did not recollect so testifying, she had testified to facts affirmatively hurtful to the state, she could have been impeached, but it was simply an instance where a witness declined to testify to facts that she had once before testified to, and the state had a good right to believe she would testify on this trial. The witness insisted she had no recollection of whether or not J. B. Taylor brought a gun with him that morning; that she does not recollect Willis Taylor going to the north window and saying, “Yonder they come, Pa,” just before the shooting, and that she had no recollection of putting her hands over her ears as they went out of the room to keep from hearing the shot. As before stated, at common law one could not impeach his own witness, and the Legislature has seen proper to modify this rule only to the extent that one may impeach his own witness when, to his surprise, he not only fails to testify as he expected, but instead thereof testifies to facts adversely to the interest of the person placing him on the witness stand.

In a couple of other bills it is shown that after appellant had testified in his own behalf he placed witnesses on the stand who say they had known him for 30 years; that appellant had lived in Smith county that long, and his reputation during all that time was that of a peaceable, law-abiding citizen. On cross-examination state’s counsel asked the witnesses if they had heard that appellant killed a man in Georgia before he came tq Texas. The first witness answered, “No,” before the court could rule on the objection that such circumstance was too remote to affect his reputation. The court, .however, sustained the objection when made. Notwithstanding the court did so, when the next witness took the stand, the prosecuting officer again propounded the same question, and before an objection could be made the witness answered, “Yes,” and stated that he had also heard that before appellant came to Texas he was a member of the Jesse James gang of outlaws. This was improper, and such testimony was wholly inadmissible for any purpose, being too remote in time to affect his standing as a law-abiding citizen. If it was true that appellant had killed a man in Georgia more than 30 years ago, and at that time was a member of the Jesse James gang, yet if during the entire 30 years he has been a citizen of Smith county, Tex., his life and conduct has been that of a peaceable, law-abiding citizen, the remote circumstances should not, and will not be permitted to be, explored as affecting his standing as a citizen at this time.

These are all the bills in the record, except the objections to the charge as given, and the exceptions to the refusal to give a number of special charges requested. Appellant was found guilty of manslaughter only, and a number of exceptions would pass out, but we do not deem it necessary to detail the various objections raised, nor give the 17 special charges requested and refused, but rather state simply the law as applicable to the facts in this case. As appellant testified that before Willis Taylor fired the gun deceased drew a pistol, etc., the court should have given in charge the law of self-defense as to Willis Taylor both from apparent danger to himself and his father and the right to defend from danger viewed in the light of threats communicated, and told the jury, if Willis Taylor was justifiable, appellant would be guilty of no offense, and instructed them that, even though they found Willis Taylor was not justifiable in killing deceased, yet they would find appellant not guilty, unless they found beyond a reasonable doubt he was a principal in the commission of the offense, and should also have instructed the jury, that, even though appellant was present and aided Willis Taylor, or by his conduct, words or gestures encouraged Willis, to commit the offense, yet if at the time he did so it reasonably appeared to him that his life or that of his son Willis was in danger, and, acting under such belief, he did acts that might otherwise constitute him a principal,, he would not be guilty; in other words, if Willis Taylor was justifiable, as viewed from his standpoint, appellant would not be guilty. If Willis Taylor was guilty, unless the jury found beyond a reasonable doubt appellant was a principal in the commission of the offense, he would not be guilty, or if he did acts that would constitute him a principal, yet in so doing, viewing the matter from appellant’s standpoint, it reasonably appeared to him that his life or the life of his son Willis was in danger, and this was the occasion of his doing such acts, he would not be guilty. The court’s charge as given did not aptly and tersely state all these propositions of law, but we are satisfied it is only necessary to call the court’s attention to them and he will do so on another trial.

There are some other verbal criticisms of the charge that we do not deem it necessary to discuss, but will only add that the court used inappropriate language in the following paragraph:

“If you shall find, or have a reasonable doubt thereof, that the defendant is guilty of some grade of homicide, and that he is not justified under the charge of self-defense, you will acquit him of murder, and find him guilty of no higher grade of offense than manslaughter.”

Appellant contends that paragraph suggests to the jury to find appellant guilty of manslaughter, even though they may have a reasonable doubt of his guilt of such offense. A man who did not read the paragraph critically might be misled into such belief, but on another trial it cannot again arise as appellant has been acquitted of murder, but language of such doubtful construction should not be used in applying the law of reasonable doubt as between murder and manslaughter.

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


source: Caselaw Access Project

author: HARPER J.

license: Public Domain

text:
    MITCHELL v. STATE.
    (No. 3612.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    State’s Rehearing Denied Oct. 13, 1915.)
    1. Homicide <@==>47 — Manslaughter—Pro vo - CATION.
    To reduce a killing to manslaughter, and upon defendant’s belief of adultery between his wife and deceased, the killing must take place at the first meeting of the parties after he has become aware of the facts.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. @==>47.] ^

    2. Criminal Law <g=»1159 — Review—Questions oe Eact.
    The jury is the trier of facts, and an appellate court, seldom feels authorized to reverse a criminal case solely on the ground of the insufficiency of the evidence, if the state’s evidence is worthy of credit, and, if true, supports the verdict.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 3074 — 3083; Dec. Dig. @=> 1159.]
    3. Homicide <@==>309 — Manslaughter — Instructions — Proper Provocation.
    In a prosecution for murder, where the evidence showed that the killing was occasioned by defendant’s belief of adultery of his wife with deceased, and that defendant, though he had no knowledge of it, had information authorizing him to believe that it had occurred, that he had come in contact with deceased after having such information, and that when he observed the efforts of deceased to renew such relations he shot from the window of his house and killed deceased near his store, an instruction that, if defendant’s wife and deceased had been guilty of adultery before the killing, and that defendant had no knowledge thereof and no information from -which he could believe such to be the case, the mere fact of adultery would not of itself reduce the killing to manslaughter, was erroneous, as not fairly presenting the issues made.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <@=> 309.]
    4. Homicide <@=>309 — Manslaughter — Instructions—Adequate Cause.
    Adultery with the wife may reduce a homicide to manslaughter, and accused, relying, on such defense, is entitled to an instruction to that effect.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. <@=> 309.]
    5. Homicide <@=>47—Manslaughter—Provo-cation.
    Adultery of defendant’s wife with deceased need not be such as to cause offense -to the wife, and where it is shown that she is equally at fault, yet, if the conduct is such as to be an outrage against the husband, adequate cause would exist reducing the homicide to manslaughter.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. § 71; Dee. Dig. <@=>47.]
    6. Homicide <@=>47 — Provocation — Manslaughter.
    Where defendant had reason to believe that his wife had committed adultery with deceased. and that the latter was then endeavoring to have such relations renewed, and it rendered his mind incapable of cool reflection, he would he guilty only of manslaughter on killing deceased.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. <§=>47. ]
    7. Witnesses <@=>269—Cross-examination-Scope.
    Where defendant claimed provocation arising from the adultery of Ms wife with the deceased, and the wife at the trial admitted such relations, the state on her cross-examination could prove her statements to the county attorney immediately after the homicide that she and deceased had been guilty of no misconduct, but could not elicit from her that defendant kept his gun downstairs and slept there, where he shot deceased from an upstairs window, as tending to show preconceived killing, as not proper cross-examination.
    [Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 949-954; Dec. Dig. <@=>269.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    J. C. Mitchell was convicted of murder, and he appeals.
    Reversed and remanded.
    Farrar & McRae, of Waxahachie, for appellant. Tom Whipple, Co. Atty., of Wax-ahachie, and C. C. McDonald, Asst. Atty. Hen., for the State.
   HARPER J.

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

Appellant insists that the evidence in this case would only support a verdict for manslaughter, and the court erred in submitting the issue of murder. In this we think he is in error, for, although it is apparent from the whole record that appellant killed deceased because of his belief that improper relations existed between deceased and his wife, it is the law of this state that in order to reduce a killing to manslaughter, when this ground is relied on, the killing must take place at the first meeting of the parties after he has become aware of the facts. The state’s theory is that, although the record discloses that perhaps the reason why appellant killed deceased was his belief that improper relations existed between him and his wife, yet he Rad met deceased on several occasions after he came to such conclusion, and on the occasion in question appellant went upstairs in his residence, waited until deceased came out of his store, and shot deceased from ambush when he was doing nothing more than standing talking to a friend. If this is true, the appellant would be guilty of murder, and we would not disturb the verdict on the ground of the insufficiency of the evidence. It is true, if we accept the defendant’s theory of the case, and he has some evidence to support it, it would be, as said by appellant’s counsel, a typical manslaughter case.

But the jury is the trier of facts under our system of jurisprudence, and it is seldom an appellate court feels authorized to reverse a case solely on the ground of the insufficiency of the evidence, no matter what tlie court’s individual opinion of, the evidence might be, if the state’s evidence is worthy of credit, and, if true, will support the verdict rendered.

The most serious question is, and virtually the only question as made by the record: Did the court properly submit the law of manslaughter as applicable to the evidence adduced on this trial? No other theory or idea can be gathered from the reading of this record other than that appellant killed deceased because of his belief that improper relations existed between deceased and his (appellant’s) wife. It would be a different question, though he believed this, as to whether the killing would occur under circumstances which would reduce the offense to manslaughter. One cannot meet the wrongdoer frequently, and, while brooding over his wrongs, deliberately determine to slay him, and then kill him from ambush and hope to, have the offense reduced to manslaughter. Under such circumstances it would be a premeditated killing, and not a killing from an impulse of the character defined by the manslaughter statute created by the wrong done or sight of the wrongdoer. We say that there can be no doubt that the killing was occasioned by the belief of appellant that deceased and appellant’s wife were guilty of improper relations, because the record suggests no other thought or motive, and the state’s witnesses themselves testify to such a state of facts as, we think, shows this beyond a shadow of a doubt. Mr. Odom, a state’s witness, says that appellant came to him to borrow money to send his wife away, and he loaned it to him for that purpose. He says:

“Defendant told me that his wife and Sparks were, lie thought, too thick, and he had just kept for some time from killing the man, and could not stand it any longer if he could not get shed of the woman, and asked me if X would loan him the money. I told him if it was agreeable for all parties and would save trouble I would.”

After the loan was made appellant gave the money to his wife, and she left. Mr. Odom says that appellant talked to him twice, and he seemed greatly troubled about the conduct of his wife and deceased. He and all other witnesses for the state, who lived in the community, show that the conduct of deceased and appellant’s wife was a matter of common talk; that, while no one knew that any act of intercourse had occurred, yet her frequent visits to the store and their conduct towards each other, had caused in the community generally an impression that everything was not exactly right. Appellant sent his wife away, hut she went only to Dallas. Two days thereafter deceased also went to Dallas, and the evidence would show to a moral certainty that deceased and appellant’s wife were in the same room in a hotel in Dallas. The testimony of the hotel clerk and Mrs. Brown, housekeeper of the hotel, show this, and Mrs. Brown made them leave the hotel. Appellant’s wife now admits that she and deceased occupied the same room in the hotel, and there had carnal intercourse; that she went home with deceased (his wife being absent) and spent the night with him. It is true appellant was not apprised of this as a fact until after he killed deceased. After this appellant’s wife came back home. Appellant insisted on her leaving, telling her that she would disgrace their children by her course of conduct with deceased. It is not a case where appellant is alone shown to have had that opinion, but all the witnesses from that community who testify show that such was the common' rumor. A state’s witness, Mr. Dillehay, who stayed at deceased’s store while he was gone to Dallas, went to appellant and explained to him he would not have stayed at the store for deceased if he had known he was going to Dallas, where appellant’s wife was staying; that deceased misled him, and led him to believe he was only going to Waxahachie. This in and of itself was enough to let appellant know that his neighbors held the same opinion which he held. Appellant says that after his wife came home from Dallas, and insisted on staying over his protest, he finally agreed that she could do so if she would not go to deceased’s store again, and have no further communication with him. Appellant then says that a few days after his wife’s return to her home he saw deceased making signs to her and waving a handkerchief at her. The testimony of the state’s witness Odom shows that deceased at this time knew how appellant was viewing the matter. Appellant and his wife had words over this incident. Appellant says he went on with his farming until the day of the homicide, when he says, not feeling well, he was lying down upstairs, and upon looking out the window saw deceased again making signs, as he thought, to his wife, when he grabbed bis gun and shot.

The court instructed the jury:

“If you believe from the evidence that defendant’s wife and the deceased had been guilty of carnal intercourse with each other prior to the killing, and you further believe from the evidence, beyond a reasonable doubt, that the dé-fondant had .no knowledge thereof, and no information from which he could reasonably believe such to be the case, then you are instructed that the mere fact of defendant’s wife and the deceased having had carnal connection with each other would not of itself reduce the killing to manslaughter.

Appellant filed written objections to this paragraph of the charge, and we think the objections well taken. It is an incorrect proposition of law as applicable to the evidence in this case. It is true that there is no positive testimony that appellant knew that an act or acts of intercourse had taken place, yet the record is replete with evidence that he knew of facts and circumstances and had information that would authorize him to believe, and he did believe, that improper relations existed, and that they were guilty of improper conduct. There is nothing in evidence to base a finding that appellant “had no information from which he could reasonably believe such to be the case.” The record, and the entire record, shows that appellant was in possession of information that led him, to believe, and he did believe, that improper relations existed, and the killing took place because of such belief; and in this instance we think the record discloses that his belief was well founded. This paragraph instructed a conviction for a higher grade of offense than manslaughter on grounds unauthorized by law under the evidence. As we view this record, there is but one ground that would authorize a conviction for a higher grade of offense than manslaughter, and that is that appellant did not slay deceased at the first meeting; for while appellant had this information the record shows he had come in contact with deceased since receiving such information, and, unless at the time of the homicide deceased did the acts appellant contends he did do, and from such conduct appellant- was led to believe that deceased was endeavoring to get his wife to renew such relations, then a jury would be authorized to find him guilty of murder. On this issue the state has evidence that appellant’s contention is not correct, but the issue should be fairly presented in the charge that, if deceased made the signs appellant contends he did, and this conduct, viewed in the light of the information appellant had received prior to that time, led appellant to ■believe it was an effort on tbe part of deceased to induce appellant’s wife to renew the-relations, and this conduct raised such degree of anger, rage, or resentment as to render his mind incapable of cool reflection, he would only be guilty of manslaughter.

Adultery with the wife is declared by the statute to be adequate cause, and the court should have so instructed the jury, and he erred in refusing to do so at appellant’s request. The court, in defining “adequate cause,” instructed the jury:

“You are charged that insulting conduct of the person killed towards the wife of the party doing the killing is adequate cause; provided the Idlling occurs immediately upon the happening of the insulting conduct or so soon thereafter as the pai'ty killing may meet with the party killed after having learned of such insulting conduct.”

Appellant introduced testimony tending strongly to show that deceased and his wife had been guilty of adultery, if it did not conclusively show that fact; yet the evidence and all the evidence would tend to show that this was with the connivance and consent of his wife. As said in Garrett v. State, 36 Tex. Cr. R. 230, 36 S. W. 454, the conduct need not be such as to cause offense to the female herself, and in a case like this, where it is shown that the wife is equally at fault with the deceased, it ought to be made clear to the jury in the charge that, even though the wife takes no offense, and the conduct is no offense to her, yet, if the conduct is such as to be an insult and outrage against the husband, adequate cause would exist.

Appellant testifies to a course of conduct continuing from April until the homicide, at one time appellant becoming so incensed at the conduct of deceased and his wife as to cause him to force his wife to leave home, and when she returned, although she agreed to cease all relations with the deceased, yet, if what appellant says is true, he witnessed deceased attempting on two occasions to induce her to renew such relations, the last time being when he killed him; and if appellant believed their conduct had been improper, and he had condoned the past, yet if he was caused to believe, and in fact did believe, that deceased was endeavoring at the time he shot to have the relations renewed, this would be such insult to him, if it caused anger or resentment, as would reduce the offense to manslaughter. Even though deceased had not attempted to renew the relations, the matter would be real to him if he so believed from the acts of deceased, and the charge should be so framed as to so inform the jury. Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46; Messer v. State, 43 Tex. Cr. R. 97, 63 S. W. 643; Canister v. State, 46 Tex. Cr. R. 223, 79 S. W. 24; Bays v. State, 50 Tex. Cr. R. 551, 99 S. W. 561; Gillespie v. State, 53 Tex. Cr. R. 168, 109 S. W. 158. In Miles v. State, 18 Tex. App. 168, the court discusses the principles underlying this character of case, and without quoting therefrom we respectfully refer thereto.

Without taking up each paragraph of the charge on manslaughter and the objections urged thereto, we simply say that appellant is correct in his contention that it does not present the law as applicable to the facts of this case.

An act of adultery is shown, and yet the court does not tell the jury that this, in law, is adequate cause. It may be the court did not do so because appellant does not testify that he knew the act had occurred, but appellant says that after Dillehay had told him about deceased going to Dallas as soon as his wife had gone there he believed it as firmly as if he had been present and witnessed it; and, while he may be said to have condoned the act by agreeing to continue to live with her, yet, if the deceased subsequently did acts which led him to believe, and he did believe, that deceased was endeavoring to have the relations renewed, and he killed him while he was engaged in such an act, the adequate cause of the adulterous act would become a part and parcel of the act when deceased was attempting to have the relations renewed. As said before, there is but one theory upon which the state would be entitled to a verdict for a graver offense than manslaughter, and that is that appellant had come in contact with deceased since the adulterous conduct, and he did not act at that time, and deceased at the time he was slain was not engaged in conduct which would lead appellant to believe that ho was then endeavoring to renew such relations with his wife. The case was not presented to the jury from this standpoint, but a jury under the charge was authorized to convict of murder, even though they might have believed that it thus appeared to appellant. The court should tell the jury that adultery with the wife is adequate cause, and, if appellant did not know of the adulterous relations, yet the conduct of the parties was such as to lead him to believe that such relations existed, and deceased was endeavoring at the time to have the relations renewed, or it so appeared to defendant, and this rendered the mind of appellant incapable of cool reflection, he would be guilty of only manslaughter. As appellant was found guilty of murder and given ten years in the penitentiary, and the law of manslaughter was not correctly applied to the facts in the case, this will necessitate a reversal of the judgment; and, as the case will be reversed, we will call attention to another matter.

As the wife of appellant was introduced as a witness, and she admitted the adulterous relations, the state on cross-examination was and should have been permitted to prove her statements to the county attorney immediately after the homicide, when she told him that she and the deceased had been guilty of no improper conduct. This was legitimate cross-examination. But the state ought not to have been permitted to elicit from her that appellant kept his gun downstairs and slept downstairs. The shot was fired from an upstairs window, and this evidence tended strongly to support the state’s theory of a preconceived killing or murder; that the appellant had taken his gun from where it usually stayed and gone upstairs with it and there remained in ambush until deceased appeared in front of his store. This was material testimony adduced by the state from the wife and in support of its theory. This was improper, as the defendant in his examination of his wife had limited it solely to her relations with deceased. Appellant objected to all the cross-examination, and any part of it being admissible. We might not feel authorized to reverse the case because of this improperly admitted testimony, as the exception should have pointed out the inadmissible or objectionable part of the testimony. On another trial, however, if objection is made to this portion of her testimony, and appellant’s direct examination embraces no more than it did on this trial, such objection should be sustained, for the state cannot prove a material fact by the wife because she has been called to testify by the defendant on an entirely different branch of the case.

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

      <5c»For other cases see same topic and KEY-NUMBFB. in all Key-Numhered Digests and Indexes


author: HARPER, J.

text:
    DENMAN v. STATE.
    (No. 3621.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied Oct. 13, 1915.)
    1. CRIMINAL Daw <i&wkey;507 — Prostitution <&wkey;> 1 — Solicitation of Female — Elements oe Oeeense — Statute—“ Accomplice. ’ ’
    Under Pen. Code 1911, art. 498, providing that it shall be unlawful to invite, solicit, procure, or use any means for the purpose of alluring- or procuring any female to have unlawful sexual intercourse, the mere solicitation completes the offense, and the fact that the female solicited at once consents, without persuasion, does not render her an “accomplice,” making requisite corroboration of her testimony for a conviction based solely thereon of the person soliciting.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1082-1096; Dec. Dig.
    507; Prostitution, Cent. Dig. §§ 1, 2; Dec. Dig. <&wkey;>l.
    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    2. Prostitution <&wkey;4 — Solicitation—Sufit-ciency oe Evidence.
    In a. prosecution for soliciting and procuring a female to meet and' have unlawful sexual intercourse with a male person an offense denounced by Pen. Code 1911, art. 498, evidence held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. <&wkey;>4.]
    Appeal from Harris County Court, at Daw; C. C. Wren, Judge.
    Rill Denman was convicted of crime, and he appeals.
    Affirmed.
    Heidingsfelders,'of Houston, for appellant. John H. Crooker, Crim. Dist. Atty., and E. T. Branch, both of Houston, and C. C. McDon-
    ald, Asst Atty. Gen., for the State.
   HARPER, J.

Appellant was tried by the court without a jury and adjudged guilty of soliciting and procuring a female, Margaret Clayton, to meet and have unlawful intercourse with a male person. The court adjudged him guilty and assessed his punishment at one month’s imprisonment in the county jail, and a fine of $50.

The only question raised that need be discussed is: Do the facts sustain the judgment of the court? The state introduced but one witness, Margaret Clayton, and her testimony makes a case against appellant. The only question is, is she an accomplice to the crime, for, if she is, her testimony is not corroborated in any essential particular. In fact, appellant by his testimony denies that he under any circumstances induced or procured Margaret Clayton to meet any man. The facts in this case are different from the facts in the companion case against appellant, in which he was charged with soliciting and procuring Grace Johnston to meet men for the purpose named, and in the ease wherein Joe Dooms is charged with procuring Grace Johnston to meet men, in this: In those two cases Grace Johnston testifies she approached appellant and Dooms and solicited and requested them to make dates for her under an agreement by which Grace Johnston would pay them for so doing. In this case Margaret Clayton testifies she did not approach appellant and solicit him to make dates; but, when she went to the Capitol Hotel and secured a room, appellant approached her, and asked “if there was anything doing,” and upon her telling him, yes, it would be all right, he proceeded to make dates with men, and would come and carry her to the rooms of the men, or would give her the number of the room and she would go.

It is thus seen that in this case the woman did not instigate the crime; she was not the procuring cause; but appellant of his own motion, with the intent to commit the crime, if it was agreeable with the woman, approached her. If an act of intercourse was essential to a completion of the offense, it might well be contended that, even under such circumstances, she would be such a party to the crime as to require that her testimony be corroborated before a conviction was authorized. But the statute makes it. an offense to “solicit and procure,” even though an act of intercourse should not occur, if intervening causes should prevent the sexual intercourse. For, if appellant should solicit a- woman to go with him to any place to meet a man for the purpose of engaging in carnal intercourse, he would be guilty even though the woman refused, and the fact that she consents does not make her an accom-pliee, for Ms offense was complete when lie made the solicitation. The Code provides (article 498) it shall be unlawful to invite, solicit, procure, or use any means for the purpose of alluring or procuring any female to meet a man for the purpose of having sexual intercourse with him. Margaret Clayton testified:

“I know the defendant, Bill Denman, who occupies the position of porter and bell boy at the Capitol hotel. He was a negro porter at said hotel at the time stated. On or about the 9th of January, 1915, I did go with Bill Den-man, defendant, from the place or room in which I was stopping, to another part or room there in the Capitol hotel, Houston, Harris county, Tex., for the purpose of having unlawful sexual intercourse with a man. Bill Den-man had a conversation with me, which caused me to go to some other place or room in said hotel. He asked me if there was anything doing, and I told him yes, by which I meant that I would fill dates with men up there; that is, that I would meet them and have unlawful sexual intercourse with a man, not my husband. The part that defendant had with it was that he would come to my room and tell me where to go, tell me the number of the room to go to.”

On cross-examination she testified:

“The defendant knew I would malee dates because he asked me ‘if there was anything doing,’ and I told him, ‘Yes.’ The defendant asked me if I would meet men. I did not ask him first; never had seen him before. He just asked me, ‘Anything doing?’ and I'told him, ‘Yes.’ ”

It is thus seen she was not the instigator in this instance, not the procuring cause for the crime to be committed, and the evidence does not bring this case within the rule announced in the companion case and the case against Joe Dooms.

The evidence not showing that she was an accomplice to the crime of soliciting and procuring, her unsupported testimony will support a conviction, and the judgment is affirmed.
      <g=^For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


author: PREND'ERGA’ST, P. J. DAVIDSON, J.

text:
    MARTIN v. STATE.
    (No. 3539.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    Rehearing Denied Oct. 13, 1915.
    Dissenting Opinion, Oct. 14, 1915.)
    1. Cbiminal Daw <&wkey;1092, 1099 — Appeal and Error — Proceedings for Transfer — Limitation of Time.
    Statement of facts and bills of exceptions on an appeal from a conviction of slander, approved and filed about 75 days after the term of .court at which accused was tried had adjourned, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. &wkey;1092, 1099.]
    2. Libel and Slander <&wkey;152 — Criminal Responsibility — Information — Sufficiency.
    An information for slander, based on an imputation of unchastity, which avers that “he, the said J. M., did then and there * * * say of and concerning the said E. S. in substance and effect the following,” and then states what accused said, using the third person “he,” is not defective as merely alleging what accused said or imported, without setting forth the language used, in view of Pen. Code, art. 10, requiring words to be taken, and construed in their ordinary sense, Code Cr. Proc. art. 452, making it unnecessary to plead that which need not be proved, article 453, providing that the certainty required in an indictment is such as will enable the accused to plead the judgment, in bar of any prosecution for the same offense, article 460, providing that an indictment shall be deemed sufficient which charges the offense so a person of common understanding may know what is meant, and article 25, providing that Code provisions shall be liberally construed.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 417, 419-424, 426, 427; Dec. Dig. &wkey;>152.]
    Davidson, J., dissenting.
    Appeal from Hamilton County Court; J. L Lewis, Judge.
    Joe Martin was convicted of slander, and he appeals.
    Affirmed.
    Langford & Ohesley, of Hamilton, and Ramsey, Black & Ramsey, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PREND'ERGA’ST, P. J.

Appellant was convicted of slander and assessed the lowest punishment.

The statement of facts and bills of exceptions were approved and filed about 75 days after the term of court at wMch he was tried had adjourned. Hence they cannot be considered.

The only question we can review is the sufficiency of the pleading. The prosecution was had upon a complaint and information, the latter following the former and based thereon.

After the necessary usual allegations in the first and closing parts, the information avers that on July 1, 1914:

“One Joe Martin did then and there orally, falsely and maliciously, and falsely and wantonly, impute to one Elner Stephens, then and there an unmarried female in this state, a want of chastity, in this, to wit: He, the said Joe Martin, did then and there, ini the presence and hearing of G. D. Smith, falsely, maliciously and wantonly say of and concerning the said Elner Stephens, in substance and effect the following: That Elner Stephens was all out of shape and that John Robison had left the country. That old man Stephens had written him, Robison, a note that he, Robison, would have to marry her or take a load of shot. That he, Joe Martin,, had told him, Robison, that there was no use of his going because it could be proved that others had been there besides him, Robison. The said Joe Martin meaning by the expression that ‘Elner Stephens was all out of shape’ that the said El-ner Stephens was pregnant; and meaning by the expression ‘that others had been there’ that other persons had been having carnal intercourse with the said Elner Stephens.”

Appellant made a motion to quash it on several grounds. We will discuss only his first. None of the others present any sufficient cause to quash, or to require any discussion.

His first ground is:

“Because the information does not purport to set out the language claimed to have been used by the defendant, but only purports to set out the substance and effect of same, whereas, under the law the exact language should be set out, the substance thereof proven by the state, and the effect thereof left to the court and jury.”

His able and eminent attorneys in their brief now say:

“We concede as well settled the rule many times declared by this court that in a slander case it is essential that the information or indictment set forth substantially the language which constitutes the imputation of a want of chastity. See Conlee v. State, 14 Tex. App. 222; Frisby v. State, 26 Tex. App. 180 [9 S. W. 463]. We do not contend that it is necessary to set out the language exactly or literally. * * This court has declared in the above-cited cases, as well as in others, that it is necessary only to set out substantially the language relied upon.”

There can be no question but that our law is as stated. So that it is unnecessary to cite the other cases to that effect, or discuss that question at all.

Appellant in his brief further says:

“The question here involved is whether or not this rule (that ‘it is necessary only to set out substantially the language,’ ‘it is not necessary to set out the language exactly or literally’) permits the pleader to state what on the face of the information purports to be merely the substance and effect of what was stated,” his contention being that said conceded rule “does not mean that he (the pleader) may set out merely the meaning or import of the words said.”

His contention might be conceded and yet in no way result in the information being held bad, for it does not aver “merely the meaning or import” of the words said, but instead it avers that “he, the said Joe Martin, did then and there say, in substance and effect, the following,” then gives what he said, using the third person, “he,” and not the first person, “I.” In other words, appellant would have us hold that when it is alleged that appellant said “in substance and effect” the following, then states what he said, is the same as alleging that appellant “meant or imported” the following, then states what he meant or -¡imported merely, and not what he said. This we cannot do. Averring that he “in substance and effect” said or did say, is by no means the same, as by what it is averred he said he “merely meant or imported,” a certain result or effect of his language uttered. In our opinion the averment is radically different from what appellant contends it should be held to be, and to hold as he contends, we think, would do violence to the language used.

As we further understand appellant’s contention, it is, if the pleading had left off the word “effect,” and averred he (Joe Martin) did, etc., say “in substance” the following, then the pleading would have been good. In our opinion, averring he did say “in substance and effect,” ought not, and cannot reasonably, he held to mean that what is then averred he said is “merely the meaning or import” of the language actually used.

Neither the case of Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340, nor Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388, mentioned by appellant, have any application to the question herein. Neither of those cases discussed or decided any question of pleading. No such question was raised therein. But in each of them was discussed a variance between the allegation and the proof, and decided only that question.

Our statute (P. O. art. 10) is:

“Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning; and all words used in this Code, except where a word, term or phrase is specially defined, are to be taken and construed in the sense in, which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed.”

This but prescribes a rule for the construction of the Oode, which is equally, and practically universally, applicable to “a word, term or phrase” used in a pleading or other writing. Taking into consideration the context and subject-matter of the whole of the pleading herein, we think there can be no question but that the phrase that “said Joe Martin did then and there * * * say of and concerning the said Elner Stephens, in substance and effect the following,” could not otherwise be “understood in common language” than what it is then alleged he said, was substantially what he did say, instead of “merely what he meant or imported.”

Besides, we have other statutory provisions as to what allegations are necessary to constitute a good pleading: “* * * That which is not necessary to prove need not be stated” in a pleading. O. C. P. art. 452. It was unnecessary to allege the language exactly or literally, but sufficient to allege it substantially only. If it had been alleged literally, it would have been sufficient to have proved it substantially only.

Article 453, O. O. P., says:

“The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.”

Article 460 is:

“An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.”
“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 25, C. O. P.

Appellant truly says, “it is not necessary to set out the language exactly or literally— it is necessary only to set out substantially the language.” And that, and that only, was what was done in said information. The information was good and valid.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). The charging part of the information is as follows:

“One Joe Martin did then and there orally, falsely and maliciously, and falsely and wantonly impute to one Elner Stephens, then and there an unmarried female in this state, a want of chastity, in this, to wit: He, the said Joe Martin, did then and there, in the presentee and hearing of G. D. Smith, falsely, maliciously and wantonly say of and concerning the said Elner Stephens, in substance and effect the following: That Elner Stephens was all out of shape and that John Robison had left the country. That old man Stephens had written him, Robison, a note that he, Robison, would have to marry her or take a load of shot. That he, Joe Martin, had told him, Robisoni, that there was no use of his going because it could be proved that others had been there besides him, Robison.”

Outside of the innuendo matters, this is the charging part of the information.

The attack is made in various ways upon this information, the substance of which is it does not sufficiently charge a violation of the slander statute. The contention is, in order to charge the offense of oral slander the words used in the imputation of slander must be set out, and, if this cannot he done verbatim or exactly, then the words must be substantially set out. The tendency not only of the decisions, but all of the text-writers, has been to hold and lay down the rule that the language used in imputation of slahder must be set out as used. This rule has been varied slightly to the extent that, where the words cannot be reproduced, they may be substantially stated. This has been the rule in Texas. The authorities are numerous and might here be mentioned, but Mr. Branch has collated the cases in his valuable work on Criminal Law, in section 602, and following sections, except those cases which have been decided since the publication of his work. The case of Barnett v. State, 35 Tex. Cr. R. 280, 33 S. W. 340, might be referred to as one of the leading cases and one of the best-considered cases. It was written by Judge Hurt when he was presiding judge of this court. The Barnett Case was reviewed in rather an exhaustive opinion by Judge Harper in Simer v. State, 62 Tex. Cr. R. 514, 138 S. W. 388, and approved. See, also, Neely v. State, 32 Tex. Cr. R. 371, 23 S. W. 798. Where a rule has been well settled, followed, and acquiesced in by the bench and bar, citation of numerous authorities are not necessary, nor would it be advisable to alter or change those decisions. Now, upon the face of this information it is clear that the language was not set out, nor attempted to be set out either exactly or in substance. The language in charging says “in substance and effect.” The effect of the language is not sufficient. The effect of the imputation is the thing to be decided. It may or may not impute a want of chastity. The imputation must be found in the language itself. Sometimes when the words used are obscure, innuendo or explanatory averments may assist the pleader, but the words must be set out at least substantially, and not the effect of the substance of the words. The information does not sufficiently charge slander, and must be held defective.

The other questions are not discussed.

The judgment ought to be reversed, and the prosecution ordered dismissed. This was written as the original opinion in this case, but the majority, not agreeing to it, took the ease and wrote an affirmance.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: YANTIS, J.

text:
    OWOSSO CARRIAGE & SLEIGH CO. v. McINTOSH & WARREN.
    (No. 2417.)
    (Supreme Court of Texas.
    Oct. 13, 1915.)
    1. Fraudulent Conveyances @=>3 — Bulk Sales Law — Police Power.
    The Bulk Sales Law (Acts 31st Leg. c. 27), requiring particular formalities for a sale of a stock of goods other than in the usual way, and making it invalid as to the creditors of the seller unless there is compliance, is a valid exercise of the police power, and does not unreasonably deprive the owners of merchandise of their control over it and right to contract in relation to it.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. § 5; Dec. Dig. <®=^3.]
    2. Fraudulent Conveyances i&wkey;229 — Remedies oe Creditor — Garnishment.
    Under Bulk Sales Law (Acts 31st Leg. c. 27) § 1, declaring that any sale of a stock of goods not in the ordinary course of business shall be void as against the creditors of the seller, unless the purchaser shall at least 10 days before sale make full inquiry as to the names of all creditors, obtain from the seller a written answer to such inquiries, which answer shall be sworn to by the seller, and notify such creditors of the sale, one who purchases a stock of goods without complying with the statute becomes a trustee for the creditors of the seller, and, notwithstanding the goods have been sold, by him and proceeds disposed of, the seller’s creditors may recover by garnishment.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 668-670; Dec. Dig. <&wkey;>229.]
    3. Appeal and Error &wkey;>747 — Assignment oe Cross-Error — Necessity.
    Where plaintiff did not on defendant’s appeal assign as error the denial of complete relief, the question will not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3053-3056; Dec. Dig. <&wkey;> 747.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by the Owosso Carriage & Sleigh Company against C. K. Sweet and McIntosh & Warren, garnishee. A judgment in part for plaintiff against the defendant garnishee was reversed and remanded by the Court of Civil Appeals (146 S. W. 239), and plaintiff brings error. Judgment of Court of Civil
    Appeals reversed, and that of trial court affirmed.
    I. J. Rice, of Brownwood, for plaintiff in error. T. C. Wilkinson, of Brownwood, for defendant in error.
   YANTIS, J.

This case involves, as the main questions, the constitutionality of what is commonly known as the “Bulk Sales Law,” passed by the Thirty-First Legislature, and the effect of the sendee of the writ of garnishment upon the proceeds of the sale of merchandise which was purchased by McIntosh & Warren, defendants in error, at private sale, and not in the ordinary course of trade, but in bulk, and in violation of all the provisions of said bulk sales statute, and afterwards resold by them and converted into cash prior to the service of the writ of ' garnishment upon them, which was issued at the instance of the Owosso Carriage & Sleigh Company, plaintiff in error.

Trial in the court below was had on an agreed statement of facts, which showed, substantially, as follows:

One C. K. Sweet was engaged in the implement, vehicle and hardware business in the town of Brownwood. The evidence strongly indicates that on the 10th day of August, 1909, he was insolvent. On said date, and for at least 30 days prior thereto, he was indebted to the plaintiff in error, a foreign creditor, in the sum of $1,700 for vehicles, etc., sold him by the plaintiff in error for use in said business. He was also indebted to various other wholesale dealers for goods used in said business, among them the Keating Implement & Machinery Company for $3,617.95, and the Emerson Manufacturing Company for $1,294. He owed various other creditors in the aggregate sum of $3,000. On said 10th day of August, 1909, he sold his stock of goods in bulk to McIntosh & Warren, defendants in error, for the consideration of $6,005.97; they assuming the payment of said $3,617.95 to Keating Implement & Machinery Company, and $1,-294 to the Emerson Manufacturing Company as a part of said consideration, and paying to said Sweet in cash the sum of $500, and giving him one negotiable promissory note for $594.02, due January 1, 1910, which was paid to said Sweet on the day of its maturity. The consideration paid was a fair price for the property. At the time of said transfer and sale of said merchandise, the said Sweet had no other property except some negotiable promissory notes, amounting in the aggregate to about $7,000, due him by various customers scattered over his trade territory, for merchandise which had been sold to them. The evidence shows that, if the crops had been good in that section for the years 1909 and 1910, said notes would have been worth something like their face value; but the crops were unusually short, and said noies were worth only about 50 cents on the dollar, and at the time of the trial it was agreed that Sweet was unable to pay all of his creditors, and was insolvent.

On October 19, 1910, plaintiff in error filed suit against the said Sweet on a promissory note in the sum of $1,695.34, and interest thereon, and at the same time caused a writ of garnishment to be issued, which was served upon the defendants in error on the 20th day of October, 1910. On the 20th day of December, 1910, plaintiff in error recovered in said suit its judgment against said Sweet in the sum of $1,883.60, with costs of suit and interest at the rate of 8 per cent.

The evidence indicates that there was no intentional fraud upon the part of the defendants in error in purchasing said merchandise, or on the part of said Sweet in making the sale, and while there is no distinct finding of fact by the trial court, or in the statement of facts to this effect, we will assume such to be true in the consideration of the issues. In making the purchase of said merchandise, the defendants in error did not at least 10 days prior thereto, or at any time prior to the sale, make inquiry of the said Sweet, the transferrer of said goods, as to the names and places of residence, or place of business of each and all creditors of said Sweet, and the amount owing to each said creditor by him, or obtain from him a written answer in any form to such inquiries ; nor did they 10 days prior to said purchase, or at any other time before said sale, notify each of the creditors of said Sweet of said proposed sale and transfer. The plaintiff in error had no notice of said proposed sale at any time before it occurred, and the bulk sales statute of 1909 was not complied with in any form in making said sale. Defendants in error, who were the garnishees, answered said garnishment suit to the effect that they were not indebted to said Sweet in any amount at the time said writ was served, or afterwards, nor at the time of answering the same, and that they did not have any of his effects in their possession. Plaintiff in error contested this answer, alleging both that they were indebted to said Sweet, and that they had effects of said Sweet in their possession at the time said writ was served, in that they purchased the stock of goods without complying with the bulk sales statute. The plaintiff in error did not allege that the defendants in error had sold said merchandise prior to the service of the writ of garnishment, and the defendants in error did not file any special exception to said pleading for said omission, but the defendants in error by their second special exception excepted to said pleading, as follows:

“Because it appears from said controverters’ affidavit that plaintiff is endeavoring to hold these garnishees liable for property that has passed out of their possession, on the ground that they should be held as trustees for property wrongfully received by them.”

In section 10 of the agreed statement of facts it appears that it was proven at the trial that the defendants in error, who were the garnishees, had sold all of said goods, wares, and merchandise prior to the service on them of the writ of garnishment, and that they had realized from same at least as much as they had paid for them. It does not appear which party to the suit introduced the evidence, and neither does it appear that either party to the suit objected to its introduction. It also appears that in their sixth assignment of error the defendants in error assert the fact of sale by them prior to the service of the writ of garnishment, and ask relief because of that fact, claiming that, having already sold the property before the service of the writ, no lien attached, and no liability arose against them.

Upon the trial of the case in the court below plaintiff in error awarded judgment against the defendants in error for the sum of $1,094, with 6 per cent, interest from the date of said judgment, which is the amount that was paid by defendants in error to Sweet as a part of the consideration for the transfer; but the trial court did not enter a judgment against the defendants in error for the full amount of the plaintiff in error’s judgment against Sweet, which was $1,883.-60, and the plaintiff in error’s cross-assignment complaining of the failure of the trial court to render judgment against the defendants in error for the full sum was abandoned on motion for rehearing in the Court of Civil Appeals. The judgment of the trial court was reversed and remanded by the honorable Court of Civil Appeals for the Third District, with instructions that a reasonable attorney’s fee be allowed by the court below in favor of the attorney for the defendants in error; said court holding that the writ of garnishment was served too late to be effective, on account of the resale of merchandise before its service.

The bulk sales law, so far as material to a correct determination in this case, is as follows:

“Section 1. That any sale or transfer of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the usual and regular prosecution of the seller’s or transferrer’s business; or a sale or transfer of an entire stock of merchandise in bulk, shall be void as against creditors of the seller or transferrer unless the purchaser or transferee shall at least ten days before the sale or transfer, in good faith make full and explicit inquiry of the seller or transferrer, as to the name and place of residence or place of business of each and all creditors of the seller or transferrer, and the amount owing to each such creditor by the seller or transferrer, and obtain from the seller or transferrer a written answer to such inquiries, which answers shall be sworn to by the seller or transferrer; and unless the purchaser or transferee at least ten days before the sale or transfer in good faith, notify or cause to be notified personally or by registered mail each of the seller’s or transferrer’s creditors of whom the purchaser or transferee has knowledge, of said proposed sale or transfer.
“Sec. 2. Any purchaser or transferee who shall conform to the provisions of this act shall not in any way be held accountable to any creditor of the seller or transferrer for any of the goods, wares or merchandise that have come into the possession of said purchaser or transferee by virtue of such sale or transfer.
“Sec. 3. Nothing in this act shall apply to sales by executors, administrators, receivers or any public officer conducting a sale in his official capacity, nor to a sale or transfer of stocks of merchandise for the payment of bona fide debts where all creditors share equally and without preference in the sale or transfer or the proceeds thereof.” Acts 31st Deg. c. 27.

The defendants in error assail the constitutionality of the act. If the act is an unreasonable restraint of the natural rights of the owners of merchandise over their control and use of their property, and their right of contract connected therewith, it should be held unconstitutional; but, if it is merely a proper exercise of the police power of the state in a wholesome restraint upon the said natural rights for the common good, then the said act would not be repugnant to the organic law. An unreasonable restraint of the natural rights of the owners of merchandise over the control and use of their property, and their right of contract connected therewith, would be intolerable, and viola-tive of rights guaranteed under the Constitution; but a wholesome restraint upon the natural rights of such owners for the common good would be within the police power of the state, and therefore valid.

The identical question involved here was before this court in the case of Nash Hardware Company v. Morris, 105 Tex. 217, 1-16 S. W. 874. In that case the conclusion was reached by this court, speaking through the late Chief Justice Brown, that the act was within the police powers of the state, and was. a reasonable regulation, and not in violation of the Constitution. We approve the holding in that case, and overrule the assignment which assails the constitutionality of the act.

Passing from this we will now consider the important question as to the effect of the service of the writ of garnishment upon the defendants in error subsequent to the sale of the merchandise by them, which they had purchased from Sweet. It is contended that the garnishment did not fasten upon either the property belonging to Sweet, or upon its proceeds after sale, for the reason, as asserted, that the property belonging to Sweet, which passed into the hands of the defendants in error, had been sold by them, and that the proceeds of the sale could not be reached by the writ of garnishment, and that the writ of garnishment would not be effective unless served before such sale. Upon the other hand, the contention is made that the writ of garnishment took effect and became a lien upon the proceeds of the sale of said merchandise.

In considering this question it should be remembered that the purchase by defendants in error from Sweet, however innocently intended, was in open violation of the bulk sales law, and, under section 1 thereof, “void as against creditors of the seller.” There was, then, no real sale, in law, but merely a change of possession. The parties could not accomplish that which was prohibited by law. The possession was transferred from Sweet to the defendants in error, which left them holding it in trust for the benefit of Sweet’s creditors, with the title still in Sweet. This necessarily follows as the result of the attempted sale being rendered void by the statute. A contract between citizens, however honestly made, cannot prevail as against a statute which prohibits the making of the contract. Either the contract or the statute must fall in such a clash, and it could not be seriously contended that two or more citizens of a state could repeal the state’s laws by contract among themselves. Neither could they defy the state’s laws, and expect the courts to uphold them. And if any one should suffer loss in the attempt, it should not fall upon a creditor who has been diligent to act within the law, but rather upon the ones who produced the situation and caused the loss.

Defendants in error had not the power nor the right to acquire title to this property as against creditors, for the statute in cases of this kind impounds and holds the merchandise for the benefit of the creditors of the seller. And since their act in attempting to purchase was void, it follows, as stated above, that the title to said property remained in Sweet, the seller, and did not pass to the defendants in error; and, when defendants in error sold said merchandise, the proceeds of said sale were subject to garnishment.

When the defendants in error sold the merchandise, the title to which remained by law in Sweet, they became indebted to Sweet for its value. Having sold and converted property which, in law, belonged to Sweet, it obviously follows that they owed him for its value. It is true, the law would not aid Sweet in recovering its value from the defendants in error; for, having acted in the sale in open violation and defiance of a statute, public policy would deny him a remedy, and leave the parties to the legal wrong where it found them. Especially would this be true since the'statute in question, under the circumstances of this sale, holds the property for the benefit of Sweet’s creditors, and the courts would not aid Sweet to withdraw it beyond their reach. But the plaintiff in error is not in the same attitude as Sweet. Not having participated in the wrongdoing, the law would aid it to recover the fund set apart by statute for creditors. Now the evidence shows that the defendants in error sold the merchandise for at least as much as they agreed to pay for it. In other words, the evidence shows that the defendants in error sold Sweet’s property for at least as much as $6,005.07, and at the time the writ of garnishment was served they still were indebted to Sweet in said sum, and the garnishment fastened upon said fund.

The identical question presented here has not been adjudicated by this court in connection with the bulk sales statute. In other jurisdictions the authorities appear to be somewhat in conflict, but the weight of authority is to the effect that, when one purchases merchandise in violation of the bulk sales law, he holds the property, not for himself, but as trustee for the seller’s creditors, who may reach the trust fund by writ of garnishment, even though the purchaser has paid full value for the merchandise and has resold it. 14 Am. & Eng. Encyc. of Law, pp. 341, 790; Waite on Fraud. Conveyances, § 177; Bump on Fraud. Conveyances, 507; Moore on Fraud. Conveyances, vol. 2, 743; 20 Cyc. 663; Interstate Rubber Co. v. Kaufman et al. (Neb.) 153 N. W. 585; Ferguson v. Hillman, 55 Wis. 181, 12 N. W. 394; Musselman Grocery Co. v. Kidd, Dater & Price Company, 151 Mich. 478, 115 N. W. 409; Marquette County Savings Bank v. Koivisto, 162 Mich. 554, 127 N. W. 680; Jaques & Tinsley Co. v. Carstarphen Warehouse Co., 131 Ga. 1, 62 S. E. 82; Kohn v. Fishbach, 36 Wash. 69, 78 Pac. 199, 104 Am. St. Rep. 941; Armstrong v. Elbert, 14 Tex. Civ. App. 141, 36 S. W. 139; Willis v. Yates, 12 S. W. 232; Holloway v. Bank, 92 Tex. 187, 47 S. W. 95.

This holding is not in conflict with Legeirse v. Kellum, 66 Tex. 243, 18 S. W. 509, Kessler v. Halff, 21 Tex. Civ. App. 91, 51 S. W. 48, and Blum v. Goldman, 66 Tex. 623, 1 S. W. 899. The holding in those decisions is to the effect that a creditor of an insolvent debtor cannot in a direct proceeding, without the aid of garnishment or other lien, obtain personal judgment against the purchaser, even though he purchase for the purpose of hindering, delaying, and defrauding the creditors of such debtor. The soundness of such holding could hardly be questioned, since in such a case the creditor did not lose anything by the wrongdoing of the fraudulent creditor in making the purchase. All the creditor lost was an opportunity to levy upon the goods of the debtor, but this damage is too remote to create a cause of action. In those eases no lien by garnishment, attachment, or otherwise, had been acquired by the creditor, while in the instant case a garnishment lien was secured.

The complaint by the defendants in error that there was error in rendering judgment for the plaintiffs in error because they failed to allege that the merchandise had been sold prior to the service of the writ of garnishment is without merit, since, as noted in this1 opinion, the defendants in error were indebted to Sweet for the value of the merchandise at the time the writ of garnishment was served, and it would seem unnecessary to plead in what manner they became so indebted. However this may be, they did not except to the pleading on said ground, and themselves made the allegation that they had disposed of the property prior to the service of the writ. They also allowed the proof to be offered without objection. Under such circumstances they should be held to have waived error on the question.

There being no cross-assignment of errors by the plaintiff in error before this court, complaining of the action of the trial court in not rendering judgment for the entire debt due by Sweet, it is unnecessary for us to decide whether a judgment should have been rendered for the entire debt due by Sweet to them.

For the reasons indicated, the judgment of the Court of Civil Appeals should be reversed, and the judgment of the trial court should be affirmed, and it is so ordered.
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