author: HUFF, C. J.

text:
    GULF, T. & W. RY. CO. v. CULVER.
    (No. 622.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 30, 1914.)
    1. Appeal and Error (§ 499) — Questions Reviewable — Rulings on Instructions— Bill oe Exceptions — Statutory Provisions.
    Under Rev. St. 1911, arts. 1970,1971,1973, 1974, 2061, as amended by Acts 33d Leg. c. 59, and art. 1972, providing for the submission of instructions to counsel and the presentation of objections before reading to the jury, and declaring that objections not so made shall be waived, and that either party must present to the judge in writing such instructions as he desires to be given, and, when instructions asked are refused, the judge shall note which are given and whjch refused, and the ruling in the giving, refusing, or qualifying of instructions shall be regarded as approved, unless excepted to, when considered in connection with articles 2058, 2059, 2062, authorizing either party dissatisfied with any ruling of the court to except and embody the same in a bill of exceptions, etc., objections to the general charge must be presented before the same is read to the jury, and that fact must be shown by a bill of exceptions, and bills of exception to the refusal of several requested special charges must show that the charges, were presented before the general charge was read, or the rulings cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2295-2298; Dec. Dig. § 499.]
    2. Evidence (§ 271) — Admissibility— Self-Serving Declarations.
    A statement by plaintiff, suing for a personal injury, made several hours after the accident to a night watchman in explanation of his having a lamp burning, to the effect that he had been injured by an accident, and that his injuries were paining him, and he kept the lamp burning to apply a liniment, is inadmissible as self-serving.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.]
    3. Evidence (§ 127) — Admissibility— Self-Serving Declarations.
    One suing for a personal injury may not testify to statements made several hours after an injury to third persons as to his injuries and pain suffered in consequence thereof.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 377-382; Dec. Dig. § 127.]
    4. Evidence (§ 123) — Declarations — Res Gestas.
    A statement by a foreman of a section railroad crew, made two or three hours after an injury, to a member of the crew; is not a part of the res geste, and is inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 351-368; Dec. Dig. § 123.]
    5. Evidence (§ 271) — Declarations -Self-Serving Declarations.
    The testimony of a witness that plaintiff, suing a railroad company .for a personal injury, told her a few days after the accident that he was hurt on the railroad was inadmissible as self-serving.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.]
    6. Master and Servant (§ 270) — Injury to Servant — Evidence—Admissibility.
    In an action for injuries to a section hand by falling from a hand car by the breaking of a handle bar, the testimony of a witness that, if he was going to make a handle bar, he would not make it out of wood like that out of which was made the handle bar which was broken in the accident, was not admissible on the issue of whether the employer used ordinary care in furnishing a suitable handle bar.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. " 270.]
    7. Trial (§ 120) — Argument of Counsel — Improper Argument.
    Though counsel in his argument may draw deductions from the facts and present them to the jury, he cannot charge that the adverse party has induced witnesses to give perjured testimony, where there is nothing to show it in the record, beyond the mere fact that the adverse party endeavored to secure the attendance of witnesses necessary to maintain his case, or to hunt up persons familiar with the facts in the case.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 285-287; Dec. Dig. § 120.]
    8. Trial (§ 125) — Argument of Counsel-Improper Argument. ■
    The argument of counsel for plaintiff, suing a railroad company for a personal injury received while employed as a section hand, that plaintiff was poor, and that the railroad company had access, not only to its own books, but to the books of other railroads, to ascertain the location of other men who were working with plaintiff at the time of the injury, and that such men had the privilege of transportation over other roads, was improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 303-307; Dec. Dig. § 125.]
    9. Trial (§ 121) — Argument of Counsel-Improper Argument.
    Where the district attorney was counsel for plaintiff in a civil action, the argument of the district attorney that a witness for defendant had committed perjury, and that he could convict him of that offense, was improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 294^-298, 300; Dec. Dig. § 121.]
    10. Appeal and Error (§ 1060) — Prejudicial Error — Argument of Counsel.
    The argument of counsel for plaintiff that the refusal of the court to direct a verdict for defendant showed that the court thought that plaintiff had a case, and that the jury ought to find for him, was prejudicial to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.]
    Appeal from District Court, Baylor County ; Jo. A. P. Dickson, Judge.
    Action by G. L. Culver against the Gulf, Texas & Western Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Ben B. Cain, of Dallas, Sporer & McClure, of Jacksboro, and Joe A. Wheat, of Seymour, for appellant. Browne & Hawkins, of Paducah, and I. O. Newton, of Seymour, for appellee.

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

   HUFF, C. J.

G. L. Culver, appellee, brought suit against the Gulf, Texas & Western Railway Company, appellant, for damages, personal injury, alleged to have been sustained by appellee while in the employment of appellant as a section hand, and while at work on appellant’s roadway. He alleges that he fell from a hand car while it was being operated by himself and others, which, fall was occasioned by the breaking of a handle bar near the socket, and that he fell backward from the hand car, striking the cross-ties on his back and side, alleging serious and permanent injuries to his side and back, both external and internal. The negligence alleged is that appellant failed to furnish appellee with a safe place to work, and with safe appliances with which to labor, and in failing to exercise due and reasonable care to have the handle bar inspected ; that the handle bar was made of inferi- or wood, brittle, and unsuitable for the use for which it was employed. The appellant answered by general denial, contributory negligence, and alleged that, if appellee was injured, his injuries were trivial, and would have been of no consequence if appellee had taken proper care of himself; that he failed to call in a physician or use medical remedies necessary to heal his injuries; that he resumed work the next morning after the fall, etc., and, if there were any such injuries as alleged, they were the result of his own negligence. The trial before a jury resulted in a verdict and judgment for $2,000 in favor of appellee, from which appellant appeals.

Appellant’s assignments, from 2 to 19, inclusive, are based upon the court’s charge and the failure of the court to give certain special instructions requested by appellant. We have concluded under the law, with reference to exceptions to the charge of the court and the refusal of special instructions, as amended by the Thirty-Third Legislature, p. 113, that we cannot consider the assignments with reference to the charge of the court and the refusal of certain special charges. These assignments will therefore be overruled.

The appellant will be considered to have waived the error assigned in the charge of the court, and the refusal of special charges and the action of the court thereon will be considered approved by appellant.

We find in this record a paper filed by the clerk of the trial court designated, “Defendant’s exceptions and objections to the court’s charge.” There are 10 paragraphs of this instrument, concluding, “Respectfully submitted before the charge was read to the jury, with request that same be corrected,” signed by counsel for appellant. We find no bill of exceptions taken to the action of the court in refusing to correct the charge in the particulars pointed out. There is no order or any other method entered of record showing an exception. There is nothing in the record to show that these objections were presented to the court before the charge was read to the jury, except the statement by attorneys for appellant, and the conclusion of the objections, as above set out. At the end of each specially requested charge, we find the following:

“Which special charge No. 2 was by defendant asked to be given by the court in charge to the jury, and was by the court refused, which refusal was excepted to by defendants, and now here tenders his bill of exceptions and asks that it be made a part of the record in this cause. Jo. A. P. Dickson, Judge of the 50th Judicial District of Texas. Refused, Jo. A. P. Dickson, Judge Presiding.”

It will be observed that the bill does not show that the charges were presented to the trial judge before the main charge was prepared or read to the jury, nor does it show that it was presented to opposite counsel for their examination. From aught that'ap-*' pears, the charge may have been presented after the court read its charge to the jury. Prom the record before us, we are in doubt whether the judge approved the bill or refused it. It may be the word “Refused” is intended to indicate that the charge was refused, and not the bill of exceptions. W'e are left to conjecture, and we are very much in doubt just what is the meaning and purpose of the refusal.

The act of the Thirty-Third Legislature, relating to the time and manner of submitting instructions to the jury, provides (article 1970) that the preparation and delivery of a written charge to the jury on the law of the case shall be delivered by the judge, “in the manner and subject to the restrictions hereinafter provided.”

Article 1971: “After the evidence has been concluded the charge shall be submitted to the respective parties or their attorneys for inspection and a reasonable time given them in which to examine it and present objections thereto, which objections shall in every instance be presented to the court before the charge is read to the jury and all objections not so made and presented shall be considered as waived.”
Article 1973: “Either party may present” written charges which he desires given. The judge may give the charge or a part thereof, or refuse them, and he shall read such part as given “provided, such instructions shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination.”

Under article 1974, the court shall note which charge is given and which refused, and such charges shall be filed with the clerk and constitute a part of the record of the court, subject to revision for error. This last article (1974) stands as it did before the amendment, with the significant omission of the following words:

“Without the necessity of taking a bill of exception thereto.”

Article 1972 does not appear to have been amended, but is left as it was originally, which provides that the court’s charge shall be filed as part of the record, and—

“shall be regarded as excepted to and subject to revision for errors therein, without the necessity of taking a bill of exceptions thereto.”

The Thirty-Third Legislature amended article 2061, which now reads:

“The ruling of the court in giving, refusing or qualifying of instructions to the jury, shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

Article 2061 is part of chapter 19, R. S., relating to bills of exceptions and statement of facts. This article, before its amendment, provided that the ruling of the court in giving and refusing or qualifying instructions “shall be regarded as excepted to in all cases.” The articles preceding article 2061 provide when and how bills of exception shall be taken. Article 2058 provides that whenever, in the progress of the cause, either party is dissatisfied with any ruling, opinion, or other action of the court, “he may except •and be granted time to embody the same in a bill of exceptions.” Article 2059 requires no particular form of words in drafting a bill of exceptions. Article 2061 provides that the bill may refer to the statement of facts in certain instances.

“2062. Where the ruling or other action of the court appears otherwise of record, no bill of exceptions shall be necessary to preserve an exception thereto.”

In the giving of the charge to the jury and the refusing requested instructions, what is the manner and restrictions provided by law? The court prepares the charge and presents it to the parties; they have time to make objections before it is read to the jury. If there are no objections presented, they are considered waived. The question, then, is: How are these objections to be preserved in the record? . Clearly the law is not now as it was before the amendment. This court, speaking through Judge Hendricks, held that it is—

“necessary that the record, in a proper manner, shall exhibit the action of the court in refusing the objections to the general charge, when objections are made, and, when refused or overruled by the trial judge, the exceptions of the litigant shall be preserved and incorporated into the record in an appropriate manner.” Insurance Co. v. Rhoderick, 164 S. W. 1067; Railway Co. v. Galloway, 165 S. W. 546.

We believe there is no other deduction to be drawn from the amendments above referred to. This interpretation is supported, we think, from an examination of the statutes, keeping in view the old law, the evil and the remedy; and also upon the authority of our Supreme Court, as well as that of courts in other jurisdictions having statutes similar to ours. In the case of Railway v. Cody, 92 Tex. 632, 51 S. W. 329, in passing on a request to submit the case upon special issues, the trial court simply marked the request, “Refused.” Our Supreme Court said:

“We are of opinion that a party who desires to review the action of the court in refusing a submission upon special issue should except to the ruling of the court and take a bill of exceptions thereto.”

By the' law as it now stands, objections must be made to the charge of the court before it is read to the jury, or such exceptions are waived. This court cannot know when the objections were made, whether before or after the charge to the jury, or in fact whether ever brought to the attention of the trial court, unless in some way the record shall show that fact. A mere paper found in the record signed by the attorneys is not evidence of that fact. If there should appear an exception in the answer to the petition or an application for a continuance, and nothing else in the record to show the action of the court thereon, it would not, we take it, be contended that the presumption would be that the court acted on such exception or motion for continuance. It, as we understand the rule, has always been held that the record must show affirmatively the action taken by the court thereon, or the presumption is they were waived. The Indiana Supreme Court, under a statute somewhat like ours, as we gather it from the opinions of that court, held, in the case of Puett v. Beard, 86 Ind. 104-107:

“Complaint is made by the appellants of the refusal to give an instruction asked by them. Counsel for appellee stoutly maintain that the complaint is unavailing, for the reason that the record does not show when the instruction was asked, and contend that, for aught that appears, it was not asked at the proper time. The record sustains the claim that it does not appear that the instruction was asked at a proper time, and the law supports the contention that, unless it does affirmatively appear that the request was made in due season, the ruling cannot be successfully assigned for error. This we say because one complaining of a ruling must, in order to secure a reversal, affirmatively show that he placed himself in an attitude to rightfully ask that which the court refused him. If this is not done, the presumption of regularity, which always attends the proceedings of the trial court, in the absence of a contrary showing, will require the appellate court to assume that the party did not do that which the law required him to do in order to entitle him to the ruling asked. It is a long-settled rule that instructions must be asked before the argument begins, or the court may rightfully refuse them.” German Fire Insurance Co. v. Columbia, etc., 15 Ind. App. 623, 43 N. E. 41, 46; Craig v. State, 127 Ind. 286, 26 N. E. 842.
“Where a special request is a condition precedent to the right to demand a ruling, it must appear by the record to have been made in due season and in the appropriate mode. A party cannot successfully complain of a ruling, unless the record regularly shows that he did all that the law required of him to do in order to make it the duty of the court to give the particular decision. If a party has been in fault in this respect, he will not be aided on appeal.” App. Proc. (Elliott) § 731.

The appellant having no bill in this case showing that the objections were presented to the general charge of the court before the same was read to the jury, and the bills of exceptions to the several requested special charges failing to show that these special charges were presented to the court and to the opposite counsel before the general charge was read to the jury, we think does not affirmatively show error on the part of the court in rejecting the special charges, or in refusing to sustain the objections to the general charge. For the reason above assigned, we overrule assignments Nos. 2 to 19, inclusive.

The twentieth assignment complains of the action of the court in admitting the statement testified to by appellee Culver to the night watchman at Paducah. The court, in qualifying tie bill, sets out the evidence objected to as follows:

“The witness testified that he had kept a light burning in his room, and had to apply liniment to his injuries when the same would pain him, and that one night when he was suffering with his injured side, and had his lamp burning, the night watchman came to his room and asked why he had the lamp burning, and the witness answered that he had been injured by an accident on the railroad, and his injuries were then paining him, and he kept the lamp burning to apply his liniment.”

The appellant objected to this testimony because the evidence was a self-serving declaration, and was not statements sought to be detailed by the night watchman, but by the plaintiff himself, and the statement of why he had a light burning was hearsay and incompetent testimony.

The testimony of the witness as to what he told the night watchman we do not think admissible. It was not part of the res gestee; it was not an expression of present pain or suffering. The physical condition was not then speaking through the party, but the witness was talking about his injuries and suffering. It was an explanation in answer to a question by the night watchman. From the evidence admitted, it does not appear to be the involuntary expression of present pain, but was only an explanation of why the light was kept burning in answer to an inquiry. This testimony was clearly self-serving. Jones on Evidence, §§ 344, 345; Railway Co. v. Moore, 69 Tex. 157, 6 S. W. 631.

In addition to what we have said above, the declaration was that of the party to another, sworn to by himself. We do not think the party should show his injuries by swearing to the declaration he had made to others. By such a rule he could tell others about his injuries, and how he suffered, and then get on the stand and swear what he told others and thereby prove he had suffered, without ever having subjected himself to the pains and penalty of perjury. The statement that he was injured on the railroad was not admissible, was not res geste in any sense of the word, and was material, in that it sought to establish a controverted fact, to wit: That he was injured on the railroad. McCowen v. Railway Co., 73 S. W. 46; Railway Co. v. Gill, 55 S. W. 386; City of Galveston v. Barbour, 62 Tex. 172, 50 Am. Rep. 519.

The twenty-first assignment complains of the action of the court in permitting appellee to testify:

“That evening the section foreman made a statement, and he said that, if any of us made any statement about this accident, he would fire the last one of us. He said for us to keep quiet; there was about nine men on that hand car, and about sixteen men on the job. He had two cars.”

The objections urged dre that the statement was not res geste; that, if made by the section foreman, it could not bind the appellant, and was out of the line of his duties as section foreman, and could throw no light on the accident; and that it was hearsay, incompetent, and prejudicial to the rights of defendant. The trial court qualified the bill as follows:

“Approved with the following qualification: The statement in the opinion of the court was a. part of the res gestee; it was also admissible as impeachment of the witness A. H. Barton, and the proper predicate had been laid.”

A. H. Barton was foreman on the section upon which appellee was at work, and had charge of the men and car from which ap-pellee fell. The fall from the hand car occurred, according to appellee, about 11 o’clock in the morning, as the foreman and his men were going in to dinner. He testified that after the fall' he got back upon the ear and went to dinner. That evening the purported statement was made by the foreman. From the statement of facts, we infer the declaration was made after they went back to work that afternoon. Appellee says:

“After the accident I went to dinner, and that evening went back out to try to work.”

The appellee was the first witness on the stand and made thé statement above objected to upon his direct examination. Barton’s, the foreman’s, deposition was taken, and, in answer to the cross-interrogatory by appellee, denied having made the statement attributed to him by appellee. We are unable to agree with the learned trial judge that the statement by the foreman was part of the res geste. It is evident, if the statement was made, that it was some two or three hours after the accident. It was not part of the accident or related to the circumstances immediately surrounding it, and is in no way explanatory of the accident. It was an act or declaration made by the foreman, for which the appellant is not responsible.

“To render the declarations of an agent admissible against the principal, such declaration must have been made concerning an act within the scope of the authority of the act, and at the time the act was being performed by the agent. If the declaration be made before or after the act was done, it is not part of the res gestse, and therefore not admissible.” Waggoner v. Snody, 98 Tex. 512, 85 S. W. 1134; Railway Co. v. Robinson, 73 Tex. 277, 11 S. W. 327.

In discussing the declaration of an engineer after the accident, Judge Harlan, of the United States Supreme Court, in the case of Railway Co. v. O’Brien, 119 U. S. 99, 7 Sup. Ct. 118, 30 L. Ed. 299, said:

“His declaration, after the accident had become a complete fact, and when he was not performing the duties of an engineer, * * * was not explanatory of anything in which he was then engaged. It did not accompany the act from which the injuries in question arose.”

The record in this case shows that this statement was introduced before Barton testified or his deposition was offered. To impeach the evidence of Barton, he must have testified to the fact sought to be impeached. If, as we hold, this declaration was not res gestse, then it was immaterial in so far as appellant was concerned. It did not in any way establish or prove liability on the part of appellant. The agent bad no right to make any such statement, and, if he did so, he made it on his own personal responsibility.

“The testimony was collateral to the main issue, and was not subject to impeachment.” Texas Co. v. Strange, 154 S. W. 327.

In that case it is also held:

“The statement of Dodge, being subsequent to the injury, and not while the transaction was pending, and a mere opinion, was not binding on the appellant, therefore illegal, and should not have been admitted,” citing Railway Co. v. Sherwood, 84 Tex. 125, 19 S. W. 455, 17 L. R. A. 643; City of Austin v. Forbis, 99 Tex. 234, 89 S. W. 405.

The twenty-second assignment is sustained. The testimony of Mrs, M. G. Culver to the effect that appellee told her a few days after the accident that he was hurt on the railroad we do not think was admissible, for the reasons heretofore given in considering assignment No. 20. We dohiot think the evidence of Roe Graham should have been admitted. The testimony is to the effect that, if he was going to make a handle bar, he would not make it out of wood like that out of which was made the handle bar exhibited as the one which was broken in the accident. What the witness would use himself was not admissible upon the issue before the jury, and did not, in any way, elucidate the question as to whether appellant had used ordinary care in furnishing a suitable handle bar. Assignment No. 23 will therefore be sustained.

Assignments 24, 25, 26, and 27 relate to the argument of counsel for appellee, made before the jury. R. D. Browne, of counsel for appellee, used the following argument:

“Gentlemen of the Jury: This railroad company has brought a lot of perjured testimony before you in this case with which to defeat the rights of this poor boy. The witness Claude Sartin has been induced to swear falsely in this case. When he came on the stand I looked at him. 1-Ie dropped his eyes. I felt sorry for him, for I knew that the defendant had corrupted him and brought him here to swear to a falsehood, and he did it.”

Again he said:

“The man who Bock was sending out to find these boys, Garrison, did not take the stand, and I say that he had talked to every one of those boys, and he did not take the stand and say that he did not talk to every one of them. I say I can deduct from that, gentlemen of the jury, that he talked to the others, and the witnesses Barton and Sartin they have brought here to perjure themselves. That is the reason they have not got those other boys on the stand here to-day to testify—is that they did not exactly suit Mr. Garrison when he went over and found them. He could not talk them over and make them do as he had made Sar-tin and Barton do. He could not make them agree to perjure themselves to defeat the rights of the boy they had seen fall from the cai\ That is the reason, gentlemen of the jury, in my judgment, they did not come 'here to-day, or did not take the depositions of these other boys. Not only have they their own books to look over to see if they are working on railroads, but they have books of all railroads in the country; not only have they their own roads to carry them, but they have the trains of all the roads to carry them.”

Mr. Newton, also of counsel for appellee, and district attorney for that district, used the following argument:

“Gentlemen of the Jury: When the defendant’s witness A. H. Barton testified that that handle bar in that car was made of bois d’ arc, he committed perjury, and, if I was prosecuting the said A. H. Barton before a Baylor county jury, I would convict him and send him to the penitentiary for ten years.”

Again be said:

“Gentlemen of the Jury: Sporer, Ben Cain, and Joe Wheat have said that this evidence is not sufficient to make a ease, and they have asked the court to instruct you to return a verdict for the defendant, and the court refused to do it, because the court knew that it was a case, and it shows that the court thought that the plaintiff had a case, and you ought, therefore, to find for the plaintiff.”

We regard some of this argument as inflammatory, and not justified by the facts in the ease. While counsel may draw deductions from the facts and present them to the jury as such, we think they should be careful not to charge that the opposite party had induced others to swear falsely. Before a charge of that kind is made before a jury, we think there should be something else in the record than the mere fact that the party endeavored to secure the attendance of the witnesses necessary to maintain their case, or to hunt up the parties who ought to be and are familiar with the facts in the case. It is frequently true that a party is unable to get the attendance of witnesses without paying them for their time and making arrangements for their expenses, and from the fact that the witness which they secure may not agree with the testimony of the other party, it does not necessarily follow, nor do we believe warrant the conclusion, that the party so summoning the witness is guilty of subornation of perjury. At any rate, we believe that a better practice would be for attorneys to refrain from arguments of that kind.

Counsel also referred to the fact that this is a poor boy, and that the railroad had access, not only to its own books, but to the books of other railways, for the purpose of ascertaining the location or whereabouts of other men who were working with appellee on the railroad at the time of his injury, and that they had the privilege of transportation over other roads. This may be a fact; but -it would not be admissible as testimony, and we do not think admissible as an argument before a jury.

The assertion of Mr. Newton, as district attorney, that he would be able to convict Mr. Barton of perjury before a jury of that county may be true or not; the fact that he has such confidence in his ability to do so or in the integrity of the jurors of that county is but' the expression of his opinion, based partly upon his knowledge of the people of that county. We hardly think that such is a legitimate deduction from the evidence in this ease, such as would elucidate any issue then to be tried before the jury. The fact that Mr. Barton may have been contradicted by other testimony, and by other witnesses, we do not believe warranted the district attorney in asserting that in his opinion he could convict him of perjury on that account. The jury did not try that case upon any attorney’s opinion as to what he might do before some other jury upon some other issue.

We also think the argument of Mr. Newton to the effect that the court had refused to instruct a verdict for appellant showed that the court thought that the plaintiff had a case, and that the jury ought therefore to find for the plaintiff. If the jury accepted the statement of the attorney to the effect that the court is of the opinion that the plaintiff had a case, it must necessarily have had great weight with the jury, and we do not think such an argument is legitimate or permissible, and the action of the jury should not be influenced or sought to be influenced by the opinion that the trial court may have upon the facts before them. They are the exclusive judges of the facts, and not the court, and the fact that the court had refused to instruct a verdict for the plaintiff did not show that the trial court believed the plaintiff was entitled to recover from the facts then proven. It simply showed that it was his purpose only to let the jury pass upon the facts, and counsel should not have made that statement, in our opinion, and we believe the argument was calculated to influence the jury to the prejudice of the appellant’s rights, and was calculated to obtain a verdict upon the argument of counsel, rather than upon the testimony in the case.

We overrule assignment No. 1 and the other assignments with reference to the sufficiency of the testimony. We think the court properly submitted the question of negligence to the jury; that is, there is sufficient evidence in the case which, in our opinion, required the court to submit the case to the jury for their finding.

For the reasons heretofore set out in this opinion, the ease is reversed and remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    COLLMORGEN v. STATE.
    (No. 3142.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    Rehearing Denied June 26, 1914.)
    1. Criminal Law (§ 1032) — Indictment — Objections in Lower Court — Review.
    An indictment in the language of Pen. Code 1911, art. 373, punishing municipal officers becoming interested in any contract for the purchase of any order on the municipal treasury, is not insufficient when attacked for the first time on appeal for failing to describe the particular warrant purchased by accused or failing to set it out in hsfec verba.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2627, 2628, 2642; Dec. Dig. § 1032.]
    2. Municipal Corporations (§ 174) — Officers — Criminal Liability — Statutes — Indictment.
    An information, alleging that accused, being an alderman of a town, became interested in a contract for the purchase of a draft on the treasurer of the town for which it was liable for $60, sufficiently alleges that the draft was for $60.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 410-414; Dec. Dig. § 174.]
    3. Municipal Corporations (§ 174) —Officers — Criminal Liability — Indictment —“Amount.”
    The word “amount,” in Pen. Code 1911, art.. 373, punishing any municipal officer becoming interested in any contract for the purchase of any order on the treasurer of the municipality by fine of not less than 10 nor more than 20 times the amount of the draft, means the face amount of the draft, and not its cash value at the time it was purchased by the officer or what he in fact paid for it.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 410-414; Dec. Dig. " 174.

    For other definitions, see Words and Phrases, vol. 1, pp. 375, 376.]
    4. Municipal Corporations (§ 174)— Officers— Criminal Liability — Statutes.
    An alderman of a town purchasing a draft drawn in favor of a third person against the town violates Pen. Code 1911, art. 373, notwithstanding his ignorance of the law or his acting in good faith.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§' 410-414; Dec. Dig. " 174.]
    Appeal from Angelina County Court; E. B. Robb, Judge.
    W. A. Collmorgen was convicted of crime, and he appeals.
    Affirmed.
    M. M. Feagin, I. D. Fairchild, and Mantooth & Collins, all of Lufkin, 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

   HARPER, J.

Appellant, being an aider-man of the town of Lufkin, is charged with purchasing a warrant from the city marshal; the information reading, omitting formal parts, that “on or about the 27th day of February, A. D. 1913, W. A. Collmorgen was then and there an alderman, in and for the city of Lufkin, in Angelina county, Tex., and while holding said office, and acting as such officer, he, the said W. A. Collmorgen, did unlawfully and willfully contract directly and become interested in a contract for the purchase from B. F. Nerren of a draft and order on the treasurer of the city of Lufkin, Tex., for which the said city of Lufkin, Tex., was then and there liable, upon the city treasurer of said city of Lufkin, Tex., for the sum of $60 in money, and for the payment of which said draft and order the said city of Lufkin, Tex., was then and there liable.”

No motion was made to quash the information in the trial court, and no motion made in arrest of judgment; but in this court it is insisted that the information is insufficient to charge an offense under article 873 of the Penal Code. By reference to this article it will be seen the complaint follows the language of the statute. However, appellant insists that the information should have described the particular warrant purchased, or set- it out in hsac verba. In support of this contention, appellant cites us to the cases of Pierce v. State, 14 Tex. App. 365; Ex parte Porter, 16 Tex. App. 321; and Ex parte Haubelt, 57 Tex. Cr. R. 515, 123 S. W. 607. Those cases are not applicable, for in them there was no indictment or information, and the questions here raised were not raised in those cases. Appellant also refers us to the ease of Taylor v. State, 50 Tex. Cr. R. 362, 97 S. W. 94, 123 Am. St. Rep. 844. That case merely holds that, where a person is charged with rape on a girl under fifteen years of age, it is not necessary to allege the act of intercourse was without her consent.

The nezt complaint is that the information does not allege the amount of the draft. By reading the information herein copied, it will be seen that this complaint is without merit, for it does allege that the draft was for $60. As a general rule, it is only necessary to allege an offense in the language of the statute. Smith v. State, 34 Tex. 612; Francis v. State, 21 Tex. 280; Williams v. State, 1 Tex. App. 90, 28 Am. Rep. 399; Thompson v. State, 16 Tex. App. 74; Warder v. State, 29 Tex. App. 534, 16 S. W. 338; Runnells v. State, 34 Tex. Cr. R. 431, 30 S. W. 1065. In Antle v. State, 6 Tex. App. 202, the rules are stated when it is necessary to allege other matters than the language of the statute, and by reference to that case it will be seen that this case is not within the exceptions. In the case of Bradfield v. State, 166 S. W. 734, decided April 15th of this year, the questions here involved were fully discussed and the authorities cited, holding that it was not necessary to set out the draft in hiec verba in the information, and that allegations contained in this information are sufficient as it fully sets out the offense as defined by the statute. Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Hammono v. State, 29 Tex. App. 445, 16 S. W. 99; Martin v. State, 31 Tex. Cr. R. 27, 19 S. W. 434; Earle v. State, 33 Tex. Cr. R. 570, 28 S. W. 469.

The next contention is that appellant ought to have been permitted to show that, while the draft was drawn for the sum of 360, yet, owing to the financial condition of the city of Lufkin, it was not worth on the market exceeding 75 per cent, of its face value ; that, the punishment being fixed by law at not less than 10 times the amount of the draft, we ought to construe the word “amount” to mean the cash value of the draft. If this was the proper construction of the language of the statute, then his contention would be sound; but as the statute fixes the punishment on the amount of the draft and not at its cash value at the time it was purchased or what was in fact paid for it, the court did not err in excluding this testimony.

While in this instance the facts would not justify a conclusion that appellant as alderman had an improper motive in purchasing the draft, but would rather demonstrate a lack of knowledge of the law, yet the law intended that no official should so manipulate the public funds as to be able to purchase them below par, and to relieve all officials of an incentive to do so, it was made an offense for the officials named to purchase a draft or warrant, and to secure its enforcement a very heavy penalty is attached. While ignorance excuses no man, yet, as the alderman took the draft in this instance in payment of an amount due him by the marshal, it is shown that this system had been carried on for some time; the marshal trading with the alderman, and the alderman taking the draft in payment of the amount due each month at a discount of 20 per cent.

When this case was called for hearing, the state moved to dismiss on account of defective recognizance. Counsel for appellant asked that it be sustained, and that he be permitted to at once file a new recognizance. This was done, and upon filing the new recognizance the cause was reinstated and heard on its merits on that day; but, after a careful and painstaking inspection of the record, we find no error. It may be that there exists grounds of executive clemency, for the transactions between the alderman and marshal may have been the result of ignorance of the law as contended by appellant; but this furnishes no ground for a reversal of the judgment by us.

The judgment is affirmed.


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

text:
    Ex parte MUSE.
    (No. 3183.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.
    On Motion for Rehearing, June 24, 1914.)
    1. Habeas Corpus (§ 113)—Review—Decisions Reviewable.
    No appeal lies from the denial of a writ of habeas corpus.
    [Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. §§ 102-115; Dec. Dig. § 113.]
    On Motion for Rehearing.
    2. Intoxicating Liquobs (§ 14)—Constitu-tionality of Acts.
    The Allison Law of August 21, 1913 (Acts 33d Leg. [Ex. Sess.] c. 31), providing that except as otherwise provided therein it shall be unlawful for any person to deliver to any other person any. intoxicating liquor for shipment, transportation, or carriage within the state, and that it shall be unlawful for any person to deliver any intoxicating liquor to any other person in the state, is constitutional.
    [Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. § 16; Dec. Dig. § 14.]

      3. Intoxicating Liquors (§ 210) — Criminal Prosecutions — Indictment.
    An indictment under the Allison Law of August 21, 1913 (Acts 33d Leg. [Ex. Sess.] c. 31), charging in two counts that the law prohibiting the sale of intoxicating liquors had been duly voted upon, carried, and was in force in the county at the time of the offense charged, and that accused unlawfully delivered to Y. intoxicating liquors for shipment, transportation, and carriage within the state, and that he unlawfully delivered to Y. intoxicating liquor in violation of such law, charged an offense under that act, which expressly provides that an indictment need not negative the exceptions therein made, but that they shall be available only as defensive matters.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 250; Dec. Dig. § 210.]
    4. Habeas Corpus (§ 102) — Scope op Inquiry.
    After indictment found, the only matters open to consideration on habeas corpus are the sufficiency of the indictment to charge an offense and the constitutionality of the act under which the indictment is drawn.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 87-89; Dec. Dig. § 102.]
    Davidson, J., dissenting.
    Appeal from District Court, Cooke County; C. F. Spencer, Judge.
    Habeas corpus by L. D. Muse. From a Judgment remanding the relator to the custody of the sheriff, the relator appeals.
    Affirmed on rehearing.
    J. T. Adams, of Gainesville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Deo. 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

   PRENDERGAST, P. J.

On May 2, 1914, the grand jury of Cooke county duly indicted said Muse for a felony. On the same date the clerk issued the proper capias on said indictment under which the sheriff of Cooke county duly arrested and held said Muse. On May 27th appellant petitioned the district judge of Cooke county for a writ of habeas corpus, alleging the said indictment, capias, and that he was held by the sheriff thereunder, merely alleging that he was illegally restrained of his liberty and confined in the county jail of Cooke county by the sheriff. The judge at no time granted the writ, but the sheriff, in response to Muse’s petition for the writ, waived time, etc., and broughfhis prisoner before the district judge showing the said authority for his holding him. The judge heard evidence on Muse’s petition and held that he was legally held in custody and under restraint by the sheriff, and denied his writ of habeas corpus and remanded him to the custody of the sheriff, from which action by the judge appellant gave notice of appeal and has attempted to appeal.

An appeal from such action does not lie, and this court has no jurisdiction thereof. Ex Parte Thomas, 61 Tex. Cr. R. 573, 136 S. W. 60.

This case is therefore dismissed.

On Motion for Rehearing.

Appellant has made a motion for rehearing. He accompanies it with proper certified copies which were omitted in the transcript when we acted on the ease originally, showing that the court below did grant the writ of habeas corpus applied for, and heard the-evidence and tried the case regularly so far as it could be heard and tried under a writ of habeas corpus. The former judgment herein entered dismissing this cause is therefore set aside, the rehearing granted, and we now pass upon the merits of the ease, so far as we are authorized to do in this proceeding.

Appellant was regularly indicted by the grand jury of Cooke county under the act of August 21, 1913, p. 62, known as the Allison Law. The indictment contains two counts. Both properly allege that the law prohibiting the sale of intoxicating liquors in Cooke county had been duly voted upon, prohibition carried, proper orders, publication, etc., made so that the prohibition law was in force in said county at the time the offense in this case is alleged to have been committed.

The first count is under section 2 of said act, which, so far as this offense applies tO' appellant is concerned, is:

“It shall be unlawful for any person * * * in this state to deliver to any other person * * * any intoxicating liquor for shipment, transportation, carriage or delivery within this state.”

The first count avers that on April 26, 1914, appellant in said state and county “did unlawfully deliver to Bill Young intoxicating liquor for shipment, transportation, and carriage within this state.”

The second count is based on section 4 of said act,' which, so far as appellant is concerned, is:

“It shall he unlawful for any person * * * to * * * deliver any intoxicating liquor to-any other person * * * .in this state.”

The second count avers that on April 26, 1914, appellant, in said state and county, “did unlawfully deliver to Bill Young intoxicating liquor in violation of said law,” etc. Each count is drawn in .accordance with the two articles of said statute as shown. Sections 7 to 11, inclusive, make various exceptions which would prevent the alleged acts from being unlawful. Section 12 provides that it shall not be necessary in any prosecution under this act to negative the exceptions herein made, but the same shall be available to defendant as purely defensive matters. We therefore do not consider the question with reference to these exceptions. The indictment did not have to negative them, but, as stated by the law, they are purely defensive matters.

After indictment found, this court, by no habeas corpus proceeding, can prevent the lower court and the jury from trying the case on its merits so far as the facts are concerned. Under such circumstances, this court can only determine in this habeas corpus proceeding whether or not the said act of the Legislature is constitutional, and the indictment charges an offense thereunder. If unconstitutional and void, because thereof, this court could give relief by discharging appellant; but, if the act is constitutional, then this court has no power or authority to prevent the lower court from trying the case on its merits.

Appellant attacks said act as unconstitutional on various grounds. We think it unnecessary to state them. In our opinion the act is clearly constitutional, and the indictment charges an offense under the act.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). As no reasons are given by my Brethren for holding the “Allison Law” constitutional, I deem it unnecessary now to give my reasons for believing it to be unconstitutional. I shall not therefore undertake to discuss it now or give any reasons why I cannot agree with the general statement of my Brethren that the act is constitutional. If when the act comes for final discussion my Brethren should adhere to their present expressed views, I will take up and discuss the matter.


text:
    SMITH v. STATE.
    (No. 3146.)
    (Court of Criminal Appeals of Texas.
    May 27, 1914.
    Rehearing Denied June 24, 1914.)
    1. Animals (f 30) — Quarantine Lines— Orders of Commission.
    The Governor and the sanitary commission, which was required by Rev. St. 1911,.art. 7322, to fix quarantine lines to prevent the spread of Texas fever, etc., so as to conform to the federal quarantine line, and was created long-prior to the passage of Acts 33d Leg. c. 169. authorizing the Governor and commission to fix a different line, may, between the date of passage and the time the new act went into effect, fix a new line which would become effective at the same time that the act became effective.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. § 80; Dec. Dig. § 30.]
    2. Animals (§ 29) — Constitutional Law (§ 63*) — Sanitary Commission — Delegation of Legislative Authority — What Constitutes.
    Acts 33d Leg. c. 169, authorizing the Governor and sanitary commission to fix quarantine lines to prevent the spread of Texas fever, etc., is not a delegation of legislative authority which renders it invalid, for the act prescribes that when the Governor and commission deem it necessary to protect live stock such lines shall he established.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. § 79 ; Dec. Dig. § 29 ; Constitutional Law, Cent. Dig. §§ 108-114; Dec. Dig. § 63.]
    3. Oeiminal Law (§ 1037) — Triait—Abgument of Counsel — Haemless Eeeob.
    In a prosecution for driving cattle across a quarantine line without having them dipped or inspected as required, argument of counsel that a small fine would not be any punishment to accused with his big farms is not reversible error, where no charge instructing the jury to disregard such remarks was requested and the evidence showed that accused was the owner of more than one farm.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    Appeal from Knox County Court; J. H. Milam, Judge.
    J. R. Smith was convicted of driving and causing to be driven cattle from a point south and east of the quarantine line to a point north and west of the quarantine line without having them dipped or inspected as required, and he appeals.
    Affirmed.
    J. S. Kendall, of Munday, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of driving and causing to be driven cattle from a point in Knox county south and east of the quarantine line into that part of Knox county north and west of that line without having same dipped or inspected as required by the regulations of the live stock sanitary commissioner, and his punishment assessed at a fine of 8150, from which conviction he prosecutes this appeal.

Appellant insists that, as at the time the commission fixed the quarantine line in Knox county, and the issuance of the Governor’s proclamation, the law passed by the Thirty-Third Legislature (chapter 169) had not gone into effect, their action was illegal and void, and the line that appellant caused the cattle to be driven over and across had never been legally established as a quarantine line, and therefore appellant is guilty of no offense. If the action of the Governor and commission was premature, and done at a time they had no authority to act, appellant’s contention might be sound. But the sanitary commission was not created by the act of the Thirty-Third Legislature, but the commission had been in existence under and by virtue of chapter 8 of title 124 of the Revised Civil Statutes since 1893, with full authority and power to establish, maintain, and enforce quarantine lines. It is true that prior to the act of the Thirty-Third Legislature, by article 7322 of the Revised Statutes, the commission was required to fix the quarantine line so as to conform to the federal quarantine line established by the United States Department of Agriculture, but this article of the statute was repealed by the act of the Thirty-Third Legislature, and the commission was authorized to establish, maintain, and enforce quarantiné lines wherever they deemed it necessary to protect the domestic animals of this state from Texas splenetic fever and from all contagious and infectious diseases of a communicable character, whether said diseases exist in Texas or elsewhere; so that from and after July 1, 1913, the commission was no longer limited in establishing quarantine lines to the lines as fixed by the United States authorities. Experience had shown that such restriction was an impediment to the protection of live stock in this state, and the commission was given authority to establish other quarantine lines when conditions demanded it. It is true the act of 1913 did not go into effect until 90 days after the adjournment of the Legislature, or July 1, 1913, but did the Governor or the sanitary commission by the rules and regulations established and promulgated seek to enforce the provisions of chapter 169 of the act of the Thirty-Third Legislature prior to July 1st? By the terms of the regulations •and rules adopted it is specifically shown they did not; for therein they specifically provided that the line therein established should become effective July 1, 1913, thus recognizing that they had no authority to establish, enforce, and maintain such line until the act of 1913 had become the law of this state. That the sanitary commission and the Governor, with the knowledge that the law had been amended so as to authorize them to establish other quarantine lines than that fixed by the United States authorities, took steps to establish, maintain, and enforce such lines whenever they deemed it necessary for the protection of live stock from splenetic fever, contagious and infectious diseases, at the earliest possible moment after the law authorizing them so to do became effective, should not render them subject to criticism, but they should be commended for so doing, and, as they had provided that the line created in the rules and regulations of the commission and the proclamation of the Governor should not become effective until after the law passed by the Thirty-Third Legislature had gone into force, their act was not illegal and void.

It is also contended that, as this act of the Legislature authorized the sanitary commission and the Governor to establish, maintain, and enforce such quarantine lines, it was a delegation of “legislative powers,” and therefore unconstitutional and void. If it should be construed that this was a delegation of the power conferred by the Oonstitution on the Legislature to enact a law, we would agree with appellant that the law was unconstitutional, but the sanitary commission and the Governor were acting not only under the authority of law, but under specific command of the Legislature in establishing those lines whenever they deemed it was necessary to do so to protect the live stock of this state from splenetic fever, or infectious or contagious diseases. The authority to do so was contained in a' law enacted by the Legislature, and no legislative power to enact law was by it vested or sought to be vested in the sanitary commission or the Governor. Stanfield v. State, 83 Tex. 321, 18 S. W. 577; Johnson v. Martin, 75 Tex. 37, 12 S. W. 321; San Antonio v. Jones, 28 Tex. 19; Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488; State v. Pond, 93 Mo. 606, 6 S. W. 469.

Appellant insists that the case should be reversed because the county attorney in his address said: “A small fine of $50 will not be any punishment to Dr. Smith, with his big farms and ranches.” No charge was requested instructing the jury not to consider such' remarks, and, under the testimony in this case, we think the record discloses that appellant owned farms south of the Brazos river, and a ranch north of the river, and under such circumstances these remarks present no reversible error.

The judgment is affirmed.


text:
    TRUETT v. STATE.
    (No. 3109.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    Rehearing Denied June 26, 1914.)
    1. Criminal Law (§ 600) — Continuance-Absence of Witnesses — Admissions by State.
    Where the state, to avoid a continuance on the ground. of the absence of witnesses for accused, admitted the truth of every fact set forth in the application for a continuance, and the court charged that the jury were bound to take such facts as true and they could not consider any evidence in contradiction thereof, accused could not complain.
    [Ed. Note. — Eor other eases, see Criminal Law. Cent. Dig. §§ 1342-1347, 1604; Dec. Dig. § 600.]
    2. CRIMINAL Law (§ 57) —Intoxication — Insanity — Statutoby Provisions.
    Under Pen. Code 1911, art. 41, declaring that neither intoxication nor temporary insanity produced by voluntary use of intoxicating liquors shall be an excuse for crime, nor shall intoxication mitigate either the degree or the penalty of crime, but evidence of temporary insanity produced by liquor may be shown by accused in mitigation of the penalty attached, and in case of murder, to determine the degree of crime, temporary insanity produced by the voluntary use of intoxicating liquor is no defense to crime unless the intoxicants have been used so continuously for so long a time and so excessively as to produce delirium tremens or mania a potu, and the criminal act takes place while the person is suffering therefrom, and an admission that accused was at times addicted to the use of intoxicating liquors, and the use thereof produced in his mind great excitement so as to render him incapable of forming a criminal intent or of knowing right from wrong, is at most an admission of temporary insanity from the use of intoxicating liquors and does not establish a defense to crime.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§' 65, 69, 70; Dec. Dig. § 57.]
    3. Homicide (§ 81) — Manslaughter—Adequate Cause.
    Temporary insanity, produced by the voluntary recent use of intoxicating liquors, is not adequate cause and will not reduce a homicide to manslaughter, though Pen. Code 1911, art. 41, provides that in case of murder temporary insanity produced by excessive use of intoxicants may be considered in determining the degree of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 107; Dee. Dig. § 81.]

      4. Homicide (§ 161) — Evidence—Admissibility.
    Where the state’s evidence showed an intentional killing of decedent by shooting and accused did not show anything suggesting an accidental shooting, evidence that accused’s pistol was a tricky one, and that it would go off by just touching the trigger, was properly excluded.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 302; Dec. Dig. § 161.]
    5. Criminal Daw (§ 829) — Trial—Instructions — Refusal of Instructions Covered by Charge Given.
    It is not error to refuse special charges fully covered by the court’s main charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §• 2011; Dec. Dig. § 829.]
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Sam Truett was convicted of murder, and he appeals.
    Affirmed.
    Morrow & Morrow, of Hillsboro, for appellant. C. E. Lane, Asst. At£y. Gen., for the State.

      For other oases 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.

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

The deceased was at the lot of Mr. Johnson working with some mules, when appellant rode up, and he in his dying declarations details the difficulty as follows:

“When Sam Truett came, he rode up on his horse and called me, and I went out to him, and he said, ‘Brigham, how much do you owe me?’ I said: T owe you $17.50; but you figured it $18.50, so I’ll pay you $18.50.’ He said, ‘Brigham, do you mean to pay me or not?’ I told him: ‘Sam, yes I aim to pay you. If I wasn’t aiming to pay you, I would tell you.’ He raised up in his saddle and said, ‘Brigham, by God! Do you aim to pay me?’ I said: ‘Yes, I aim to pay you; I am not that sort of a man. I borrowed your hard money, and I expect to pay you, Sam, as quick as I can get it.’ He turned and asked me did I think he was scared of me. I said: ‘No, you have no right to be afraid of me. I haven’t done anything to you.’ Then he said, ‘By God! I aint.’ I said, ‘That’s all right, Sam.’ Then I turned and walked on into the lot and got Hez Brown to drive Mr. Johnson on over to Hillsboro. I told Hez I would walk over to Hillsboro. Then Mr. Johnson and them went on out of the lot and left Will Johnson and Gentry and Roy Brown in the lot, and I got through the fence and started, and Sam overtaken me again and asked me again, ‘Brigham, how much do you owe me?’ I said, ‘You figure that I owe you $18.50, and I will pay you as quick as I can.’ He got up in stirrup of his saddle and undone the front of his pants, and got his gun, and was leaning over on his saddle, and I walked off from him and started back towards the house, and Sam said, ‘If you say three words to me, I’ll kill you;’ and I said, ‘You’ll just have to kill me, I haven't done a thing to you.’ Then he shot me. He then rode off a little bit and stopped and looked back and then rode off again. I was unarmed when he shot me. The ball entered my stomach.”

Gentry Welch, Roy Brown, and Will Johnson testify, in the main, to the same state of facts. Appellant testifies he was so drunk he has no recollection of the difficulty; does not remember the occurrence, nor how it occurred.

When the case was called for trial, he filed an application for continuance on account of the absence of several witnesses who lived in Lee county, his former home. By these witnesses he stated he expected to prove that they knew his general reputation, and that he was a peaceable, quiet, inoffensive, law-abiding man. He states he also expected to prove by them that at times he was addicted to the excessive use of intoxicating liquors, and that the effect is to produce upon him such a condition of mind of great excitement at times and such as to render him at the time incapable of forming a criminal intent, and to such extent as to render him incapable of knowing right from wrong. When this application was filed, the state filed the following written admission:

“The state admits as a fact that the witnesses named in defendant’s motion for a continuance knew the defendant to be addicted to the excessive use of intoxicating liquor at times, and that its effect upon him was to produce such a condition of mind of great excitement at times, when under the influence of such liquor, and at such times render him incapable of forming a criminal intent, and to such an extent as to render him incapable of knowing right from wrong, and that such facts are true. The state admits as true every fact sought to be proven by the defendant by the witnesses set out in his motion for a continuance.”

At the request of appellant, the court instructed the jury:

“You are instructed that all. of the statements of facts which are set out in the defendant’s written application for a continuance which has been read in evidence before you by defendant’s counsel are admitted by the state to be true, and you are oound under the law to treat each of the said statements of fact so admitted as true, and none of the evidence introduced before you is intended or can be considered by you as contradicting any of the said admitted facts contained in said application for a continuance.”

In McGrew v. State, 31 Tex. Cr. R. 336, 20 S. W. 740, it is held that if the prosecuting officers admit the facts stated in the application for continuance to be true, and if they go to the jury as evidence, the defendant has no right to complain that the application was overruled.

In this case the court permitted the entire application for continuance to be read in evidence, also the written admission of the state, and then instructed the jury that they were bound to take such evidence as true, and that they could not consider any evidence in contradiction of said admitted facts, and certainly appellant in this case has no right to complain. However, appellant insists that a proper construction of the language used in the application for continuance would show that state of insanity which would entitle him to an acquittal, and the court should have so instructed the jury. Doubtless this would be true prior to the adoption’ of article 41 of tlie Penal Code; but by this provision when the insanity is produced by the voluntary recent use of intoxicating liquors, and it is only temporary, coming on with the excessive drinking, and departing when the effect of the intoxicating liquor has passed, it is no defense to crime, unless the whisky has been used so continuously for so long a time and so excessively as to produce delirium tre-mens or mania a potu, and the criminal act takes place while the person is suffering from such delirious, crazy condition of mind. The admissions in this case cannot be construed as an admission that appellant, at the time of this homicide, was suffering from delirium tremens; but the admission is'that when drunk he was temporarily insane only, and the evidence outside of this admission is ample to show that when not drunk appellant, as testified to by his own witnesses, was rational and sensible as any ordinary negro; in fact, Mr. Pate says that when so appellant “was rather more than an ordinary negro so far as intelligence is concerned.” The evidence would show that on this “spree” appellant began drinking only the day before; that he, while drinking, was not drunk the day or night before, nor early in the morning. Mr. Johnson, a witness for appellant, saying, when he first saw him that morning appellant was apparently all right, but when he saw him again about two hours thereafter he was then drunk, although still able to ride his horse and talk. In fact, all the testimony shows that on the morning of the homicide and at the time of the homicide appellant was not so drunk that he could not ride his horse, and go about; but of course this does not preclude the idea that his mind was not in that condition from intoxication which would prevent him from remembering the transaction. Whisky may produce temporary insanity without, to use the expression of the street, “flooring a man.” And as the evidence,«and all the evidence, would tend to show only temporary insanity, and did not in the least tend to show that appellant was at the time of the homicide, prior nor subsequent thereto, suffering from delirium tremens, or a condition that is sometimes expressed as “settled insanity” as distinguished from temporary insanity, the court did not err in refusing the special charges requesting him to instruct the jury to acquit; but he rightly instructed them the temporary insanity produced by intoxication should be taken into consideration in mitigation of the punishment.

Appellant also contends that the court erred in not submitting the issue of manslaughter, as the county attorney admitted that intoxication created an “excited state of mind” in appellant. One voluntarily drinking intoxicating liquors and producing in himself an excited state of mind would not be adequate cause under the law of this state to reduce an unlawful killing to the grade of manslaughter. Appellant says he knows nothing of what took place on the occasion, and the other witnesses to the homicide testify to no state of facts which would be “adequate cause” in law to produce a state of mind which would reduce the offense below the grade of murder. Appellant contends that, as when the laws of this state divided murder into two degrees, article 41 of P. C. provided that in case of murder the temporary insanity produced by excessive use of intoxicants might be considered by the jury for the purpose of determining the degree of murder, as the law has been amended defining murder so as to consolidate murder of the first and second degree, and article 41 was not amended, it necessarily must be so applied now as to authorize the jury to consider whether or not such condition will reduce the offense to manslaughter. This court has often had occasion to construe this statute, and has always held that temporary insanity produced by intoxication would not reduce the offense to manslaughter, and we think properly so held, for “manslaughter” under our Code is defined as a state of mind produced by an “adequate cause” — the wrongdoing of the person slain or some one acting with him. Certainly one by his own acts cannot produce this “adequate cause”' by drinking intoxicating liquor or committing any other act. It is the acts of the opposite party that must produce the adequate cause, not appellant’s own acts. The Legislature never contemplated nor intended that such condition should reduce an unlawful killing below the grade of murder, and the mere consolidating of the two offenses of murder in the first and the second degree, and defining murder so as the one offense now embraces both the former, would not require nor call for any other construction of article 41 than that heretofore given.

Appellant’s wife was permitted to testify:

“That the pistol with which appellant fired the fatal shot was a tricky pistol, and one had to be pretty careful with it. That one don’t want to fool with it at all unless he aims to shoot it, because if you just touch the trigger it will go off.”

In addition to this, appellant desired to prove by the witness:

“That on a former occasion, before the homicide, while defendant was handling the pistol, it went off and wounded him in the leg.”

Appellant contends that this testimony was admissible as tending to raise the issue of accidental homicide. As hereinbefore stated, appellant testified he had no recollection of the transaction, and could tell nothing about how it occurred. The state’s evidence showed an intentional shooting, and all the witnesses who witnessed the difficulty so testify, and the fact that defendant on a prior occasion had shot himself in the leg with this pistol would not raise the issue that on this occasion it was accidentally fired, when the witnesses testify that appellant pulled his pistol, pointed it at deceased, and fired it. There is nothing to suggest an accidental shooting on the occasion when appellant killed deceased, and the testimony offerd was not germane to any issue raised by the evidence had on the trial. Therefore the court did not err in refusing to submit the issues of accidental or negligent homicide, as the evidence, and all the evidence, shows an intentional shooting. The location of the wound does not even suggest, much less raise, these issues or either of them. Appellant was horseback, while deceased was standing on the ground. The shot entered his left side and pass down through the bladder. Downward would be the natural range of a ball intentionally fired under such circumstances.

Neither was there any testimony raising the issue of self-defense. Appellant, as here-inbefore stated, testifies that he was so drunk he knew nothing about the occurrence, and none of the other witnesses testify to any state of facts which would show or tend to show that appellant was then in danger of losing his life or suffering some serious bodily injury.

The only complaints of the charge of the court have heretofore been herein discussed, and the special charges in so far as they were the law of the case were fully covered by the court’s main charge, and the court did not err in refusing to give those not given.

The judgment is affirmed.


text:
    BYBEE v. STATE.
    (No. 3135.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.)
    1. Criminal Law (§ ‘670) — Appeal—Offer of Proof.
    Accused cannot complain of the exclusion of a question to a witness, where there was no offer of proof showing- what the reply of the witness would have been.
    [Ed. Note. — Eor other cases, see Law, Cent. Dig. §§ 757, 1593-1596; § 670.] Criminal Dec. Dig.
    2. Criminal Law (§ 1170) — Appeal—Harmless Error.
    Accused cannot complain of the exclusion of a question to a witness, where the witness had previously answered the question several times.
    [Ed. Note. — Eor Law, Cent; Dig. § 1170.] other cases, see Criminal j 3145-3153; Dec. Dig.
    3. Prostitution (§ 4)— Evidence — Admissibility.
    In a prosecution for procuring a womai for another man to have sexual intercoursi with, evidence of the other man’s conversatioi with accused before the appearance of the fe male, of the fact that the woman had sexual in tercourse with him, and of the man’s paymen to her, is admissible.
    [Ed. Note. — Eor other cases, see Prostitution Cent. Dig. § 4; Dec. Dig. § 4.]
    4. Criminal Law (§ 365) — Evidence—Res Gestas — Admissibility.
    In a prosecution for the procuring of a woman to have sexual intercourse with another man, evidence that during the intercourse she robbed the man, and gave part of the money to accused, is admissible as part of the res gestee.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 807; Dec. Dig. §' 365.]
    5. Criminal Law (§ 1170%)-Appeal-Harmless Error.
    The error in requiring a witness to answer questions which she refused to answer on the ground of self-incrimination is harmless, where the witness, on afterwards taking the stand, waived her privilege.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    6. Ceiminal Law (§ 721%) — Trial—Argument of Counsel.
    In a prosecution for procuring a woman for another man to have sexual intercourse with, where it appeared that the woman changed her clothing in the room of accused’s wife before she was brought to the other man, it is not improper for the prosecutor to refer to the fact that accused failed to introduce his wife; she being competent for him, and incompetent for the state.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721%.]
    Appeal from McLennan County Court, Geo. N. Denton, Judge.
    Pernie Bybee was convicted of soliciting and procuring a woman to have sexual intercourse with a male person, and he appeals.
    Affirmed.
    Tirey & Tirey, of Waco, 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

   HARPER, J.

Appellant was prosecuted and convicted of soliciting and procuring Billie Golden, a woman, to go to a room in the Waverly Plotel Annex in Waco, for the purpose of meeting and having sexual intercourse with a male person, to wit, J. P. Brown.

It is unnecessary to detail the evidence, it being amply sufficient to show that appellant was guilty of the offense; and, unless there was some error committed in the trial of the case, it should be affirmed. There are a number of bills of exception in the record, and we will take them up and discuss them in their order,

It is first insisted that the court erred in sustaining the objection to the question, “You don’t know of your own knowledge whether or not he [appellant] had anything to do with this woman, [Billie Golden] coming to your room,” propounded to the witness J. P. Brown, the man whom appellant was charged with procuring the woman for. In the first place the bill does not show what answer the witness would have given, or was expected to give; therefore nothing is presented for review by this bill. McCray v. State, 38 Tex. Cr. R. 609, 44 S. W. 170; Lensing v. State, 45 S. W. 572; Monk v. State, 44 S. W. 1101; Kalsky v. State, 37 Tex. Cr. R. 247, 39 S. W. 362; Pitner v. State, 37 Tex. Cr. R. 268, 39 S. W. 662; Cooksie v. State, 26 Tex. App. 72, 9 S. W. 58. But if we go to the statement of facts, we find that the witness did answer this question on two or three different occasions before the objection was sustained.

Another bill complains that the court erred in permitting the witness to state what was done after Billie Golden came in his (Brown’s) room. This was the best evidence of why she was solicited and procured to go to that room, and the testimony that she was induced to go there for the purpose of having sexual intercourse with Brown was the gist of this offense. But it was strenuously objected that if the testimony to show that she went there to have sexual intercourse with Brown, and that he paid her §2 for this privilege, it was inadmissible to prove that, while he was seeking to have sexual intercourse with her and was down on her, she abstracted $50 from his. pockets, and if that was admissible, then certainly it is claimed that the fact that she gave appellant $10 of the stolen money was inadmissible, because it showed a different and distinct offense; it being contended this evidence did not show system nor intent in the commission of the offense. This may be conceded, but appellant overlooks another ground when such testimony becomes admissible, when it is a part of the same transaction and is res gestse of the offense for which one is on trial. Thompson v. State, 11 Tex. App. 55; Wilkerson v. State, 31 Tex. Cr. R. 89, 19 S. W. 903; Menefee v. State, 50 Tex. Cr. R. 249, 97 S. W. 486; Campos v. State, 50 Tex. Cr. R. 290, 97 S. W. 100. Not only is this true, but, when Dr. Brown testified he asked appellant if he could get him a woman, and appellant told him he could, and that appellant later came to his room and told him that the woman would come up in a few moments, appellant, on cross-examination of this witness, showed that appellant was not in the room when the woman came in, and that he could not swear that the woman who came was sent by appellant, then the testimony of Billie Golden that appellant came after her, carried her to the hotel to the room in which his (appellant’s) wife was staying, where she changed her clothing, and that appellant told her the number of the room to go to, and when she came out appellant met her and demanded a parti of the money, and received it, was all admissible to show that appellant was the man who procured this woman to go to Brown’s room. None of the exceptions to Brown’s testimony present any error.

In three bills of exception it is shown that when Billie Golden was placed on the stand she refused to answer a number of questions, on the ground that her answer would tend to incriminate her. These exceptions are vigorously urged, but they pass out when it is shown that the woman afterwards took the stand, waived her privilege, and fully answered any and all questions propounded tí her in regard to this transaction. It then becomes a question as to whether or not her testimony was admissible, and the only serious objection to it is to permitting her to testify that she did get the money off of Dr. Brown, and that she gave appellant, on his demand, $10 of the money. As hereinbe-fore stated, while this might tend to show appellant guilty of another and different offense, yet it was res gestse of the offense for which he was being tried, and was admissible on the issue of whether or not this was the woman appellant had procured and sent to Brown’s room, the woman testifying, as here-inbefore stated, that appellant came and got her and carried her to his wife’s room, instructed her as to the room to go to, and when she came out asked if she had got the money, and when told she had, asked for and received a portion thereof. This clearly showed that Billie Golden was the woman appellant had procured to go to Brown’s room fon an illegal purpose.

The only other bill of exceptions in the record we deem necessary to notice is the one that complains of the remarks of the county attorney. Billie Golden testified that appellant came after her, carried her to his wife’s room to change her clothes; that she borrowed a kimona from appellant’s wife in appellant’s presence; appellant then told her which room to go to, and she went to Brown’s room; that when she left Brown’s room she went back to the room of appellant’s wife, and left the kimona, and put on her own clothes. On her way out of the hotel appellant met her and demanded a part of the money, and she gave him $10. In commenting on this testimony the county attorney asked;

“Where is the appellant’s wife? And if this testimony is not true, why has she not taken the stand to deny this testimony?”

On the issue of whether or not appellant had procured Billie Golden for Brown was a material issue, and the wife was placed in position to know whether or not appellant had carried the woman to her room, and the vvoman had borrowed a kimona from her, and whether or not at that time appellant had instructed Billie Golden to go to Brown’s room, as testified to by the woman, and the failure of the appellant to call his wife, would be noticeable, and that counsel commented on the fact that he had failed to call his wife as a witness would be legitimate. She was a¡ competent witness for him on this question. Battles v. State, 53 Tex. Cr. R. 209, 109 S. W. 195; Richardson v. State, 44 Tex. Cr. R. 211, 70 S. W. 320; Harris v. State, 47 S. W. 644; Hall v. State, 22 S. W. 141. In Mercer v. State, 17 Tex. App. 467, this court said, speaking through Judge Willson:

“We do not think the remarks of the prosecuting attorney, in his closing argument to the jury, which are complained of by the defendant, were beyond the scope of legitimate argument. It was disclosed by the evidence that the defendant’s wife must have known important facts bearing directly upon the issue in the case, and that she was within easy reach of the process of the court. She could have explained fully the occurrence testified about by his two daughters when he got his gun and said he would blow his brains out. She could have testified, perhaps, to many other facts which would have shed light upon this horrible transaction. It was not within the power of the prosecution to adduce her testimony, because, being the defendant’s wife, she was not permitted under the law to testify against him in this case. He alone could call for her testimony and compel its production. Her knowledge of the facts, whatever that knowledge might be, was at his command — was within his reach — and without he produced it, or consented to its production, it was a sealed book, which no human tribunal had the power to open against him. Under these circumstances we think the prosecuting attorney was justified in the remarks complained of.”

After a careful review of the record, we are of the opinion that no reversible error is presented, and the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    FISHER v. STATE.
    (No. 3162.)
    (Court of Criminal Appeals of Texas.
    June 10, 1914.)
    1. Assault and Battery (§ 96) — Criminal PROSECUTIONS — INSTRUCTIONS — SELF-DEFENSE.
    Where, on a trial for simple assault, there was evidence that, during a dispute between accused and the assaulted party the day prior to the assault, the assaulted party took a pistol from a drawer and was about to assault accused, when stopped by a third party, and that when the assault occurred he was reaching into his pants pocket, and accused testified that he thought he was going to kill him, instructions limiting accused’s right to exercise self-defense to the use of such force as was reasonably necessary to protect himself against violence, was -erroneous, as he was entitled to have self-defense submitted from his standpoint.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    2. Assault and Battery (§ 96) — Criminal Prosecutions — Instructions — Self-defense.
    On a trial for assault where self-defense was raised by the evidence, accused was entitled to have it submitted, though the other evidence justified a verdict against him, and though the preponderance of the evidence was in favor of the state.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 142-150; Dec. Dig. § 96.]
    Appeal from Collin County Court; H. L. Davis, Judge.
    R. C. Fisher was convicted of simple assault, and he appeals.
    Reversed and remanded.
    F. E. Wilcox and W. R. Abernathy, both of McKinney, 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

   PRENDERGAST, P. J.

Appellant appeals from a conviction for simple assault.

His defense was self-defense. This is the second appeal. The first is reported in 151 S. W. 544.

He has properly raised and complains of these charges of the court, to wit:

i'Every person is permitted by the law to defend himself against any act of unlawful violence offered to his person, but in exercising this right of self-defense he is only permitted to use sueh degree of violence os is reasonably necessary to prevent or protect himself against such unlawful violence. * * * ”

This part of the court’s charge was an abstract statement of the law. When the court applied this and submitted the issue to the jury for a finding, which is the other charge complained of, he told the jury:

“Now, if you believe from the evidence that the defendant in inflicting the injury, if he did, upon the said J. D. Killough as charged in the second count of the indictment, acted in his own self-defense against an assault made by said J. D. Killough upon him, or to prevent sueh assault, and that he did not use greater force than was reasonably necessary to prevent such assault, then you will find him not guilty.”

We have underscored the parts of the above charges of which appellant complains. Under the decisions of this court, the charges ought not to have been given and present reversible error. Marsden v State, 53 Tex. Cr. R. 458, 110 S. W. 897; Aycock v. State, 55 Tex. Cr. R. 142, 115 S. W. 590; Parish v. State, 153 S. W. 330; Russell v. State, 158 S. W. 547; Shoemaker v. State, 160 S. W. 356.

We would not be understood as holding that such a charge is error in all cases where self-defense is an issue. The proper distinction is made where such charge is proper, in Vinson v. State, 55 Tex. Cr. R. 491, 117 S. W. 846, and cases there cited.

It is elementary that the defense of an accused, where raised by the evidence, must be submitted, even though the other evidence would justify a finding against him.

The evidence in this case on this issue from appellant’s standpoint is substantially this: Killough, the assaulted party, was the agent of the railroad company at the little town of Prosper in Collin county. Appellant Fisher, among other things, raised hogs. On May 15, 1913, Fisher took some hogs to said station for shipment on the railroad to Ft. Worth. He unloaded the hogs in the stock pens of the railroad from his wagons, intending to load them from the stock pens into the car. The stock pens were several hundred yards from the depot where Killough lived. Fisher went from the stock pens down to the depot to see Killough, the agent, about the car and loading his hogs. He found no one there. After waiting awhile, he went back up to the stock pens to see about unloading others of his hogs which had just reached' there. Later he went back to the depot to see Killough, the agent, about the matter. I-Ie then saw Killough about the building leisurely fixing ice water off some distance, not accessible to Fisher at the time. After waiting some 10 minutes, Killough made his appearance, when Fisher then asked him when a train would go through to haul his hogs. Killough told him he. did, not know anything about it, bnt promised to find out ior him. Fisher went back to the stock pens again to see about his hogs and later returned to the depot to see Killough again. When he went back to the depot, he asked Kill-ough if he had found out anything about the train. Killough said he had not. Fisher asked him if he wanted to bill out the hogs. Killough replied that he would attend to him when a passenger train, which was then expected, had gone through. From Fisher’s standpoint and testimony Killough would give him no satisfaction, apparently very neglectful and indifferent to him and his business, and went about other things. Mr. Graham, who had helped haul some of the hogs in, was with Mr. Fisher, and Fisher said to Mr. Graham, “they must be trying to run this office like they are at Frisco,” and he and (Graham) then walked out of the depot, sat down, and waited awhile. They could see no passenger train coming, and they went back into the waiting room, stepped up to the ticket window, and asked Mr. Killough how late he could get his hogs billed out. Killough then began to curse and abuse Fisher, among other things saying:

“See here, Bob Fisher, God damn, if you think you can come up here and run this depot like you have Frisco, you are sadly mistaken. God damn you!" X will smash your face.”

Fisher attempted then to apologize to him, telling him that he meant no affront to him by what he had said. Killough then said to him:

“Bob Fisher, God damn you! I know you. You can’t come up here and run over me.”

That Killough then ran back to a drawer in his office, jerked it out, and got out a six-shooter. Mr. Chapman, a friend of Kill-ough, was in the ticket room with Killough at the time, and got between him and the window where Fisher was, and said to Killough, in substance, “You can’t do that, you musn’t do that” Fisher, seeing that Killough was about to assault him with a pistol, .at once departed from the depot and did not return to it again. Fisher was told by two parties that Killough was a very bad man, had killed his father-in-law, and Fisher was afraid of him.

Fisher let his hogs stay in the stock pens at the railroad that night. The next day he tried from some of the other officials of the railroad to arrange about the shipment of his hogs, but could get no satisfaction thereabout. The next morning he got his wagons and went to the stock pens to reload his hogs in his own wagons from the stock pens and take them away therefrom. The stock pens were locked up and he could not get in them. He thereupon took an ordinary handsaw and was sawing one of the planks in two, and building a chute therefrom to run his hogs through this hole to be thus made and load them in his wagon, which was the only practical way, it seems as he thought, to do so. Fisher said the reason he did not go to the depot to s'ee'Killough about getting his hogs out of the stock pens was that Killough had run him off from there with a pistol the Monday before, and he had been advised to stay away from him, and decided that it was best to have no further business with him, and that he was afraid of him. While he was thus engaged, Killough went from the depot, some 400 to 600 yards from the stock pens to where Fisher was. Fisher did not discover him till he got right at him, when Killough said to him not to tear up the stock pens; that Killough then seized him by the collar with his left hand, ran his right hand in his pants pockets, and when he did so Fisher jerked the handsaw back over and struck Killough with it. He said: “I hit him because X was afraid of him. I though he was going to kill me.” After he had struck him once with the saw, Killough began to fight him, and he struck him another lick with the saw; all, as he claims, in self-defense of the assault Killough was then committing upon him under the circumstances and from his standpoint, as detailed by him.

The evidence as to the facts of the immediate assault was conflicting. For a further statement of the evidence, see report of former appeal. It may be that the preponderance of the evidence was in favor of the state and against appellant’s contention. However that may be, the appellant was entitled to have his self-d.efense submitted from his standpoint and not hampered or curtailed as was done by the charge of the court in this case, requiring that he use no more force than was necessary to protect himself from Killough’s assault on him. We think it unnecessary to discuss the question further or to give any more .of the evidence. What we have said shows the error of the court’s charge.

Nothing else raised by appellant shows any error, and it is unnecessary to discuss any further question.

For the error of the court in the charges above indicated, the judgment is reversed, and the cause remanded.


author: DAVIDSON, J.

text:
    FITZGERALD v. STATE.
    (No. 3177.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    Criminal Law (§ 1120) — Appeal — Scope of Review — Record—Evidence.
    Alleged errors assigned in motion for a new trial concerning the admission of testimony and the insufficiency thereof to sustain a conviction cannot be reviewed, where the evidence is not in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.

      A. J. Fitzgerald was convicted of a misdemeanor, and he appeals.
    Affirmed.
    O. 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, J.

This is a misdemeanor conviction. The record is before us without a statement of facts or bills of exception. The matters raised in the motion for new trial relate mainly to alleged errors of the court in admitting testimony and the insufficiency of the evidence to sustain the conviction. The evidence is not before us, and therefore these matters cannot be revised.

The judgment is affirmed.


text:
    WHITEHEAD v. STATE.
    (No. 3188.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    Criminal Law (§ 1099) — Bill of Exceptions — Statement of Facts — Filing — Time.
    Where a statement of facts and bills of exception were not filed until nearly 90 days after adjournment of the court at which defendant was tried, they were subject to a motion to strike.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-28S0; Dec. Dig. § 1099.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    C. M. Whitehead was convicted of unlawfully cutting timber on the land of another, and he appeals.
    Affirmed.
    J. W. Minton, of Hemphill, 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

   PRENDERGAST, P. J.

Appellant was convicted for unlawfully cutting timber on the land of another and fined $10.

What purports to be a statement of facts and bills of exceptions were not filed until nearly 90 days after the court at which appellant was tried adjourned. The state makes a motion to strike them out on that account, which is granted. Durham v. State, 155 S. W. 222; De Friend v. State, 153 S. W. 881; Stephens v. State, 158 S. W. 531, 532; Wilson v. State, 160 S. W. 454; Hampton v. State, 161 S. W. 966; Newsome v. State, 162 S. W. 891; and a great many other cases. There is no question raised which can be considered in the absence of a statement of facts.

The judgment is therefore affirmed.


text:
    PULLUM v. STATE.
    (No. 3193.)
    (Court of Criminal Appeals of Texas.
    June 24, 1914.)
    Criminal Law (§ 1184*) — Appeal—Review —Disposition of Cause — Defect of Sentence.
    Where accused was properly convicted, but the sentence imposed did not comply with the indeterminate sentence law (Acts 33d Leg. c. 132), as it should have done, the clerk of the appellate court will be directed to enter the proper sentence, and the judgment, as reformed, will be affirmed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.*]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    E. D. Pullum was convicted of swindling, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

There, is no statement of facts. The indictment follows the statute and the approved forms, and properly charges the offense.

The sentence does not comply with the indeterminate sentence law. It should have done so. The clerk of this court will enter the proper order of sentence, and this judgment, as reformed, will be affirmed.