author: DAVIDSON, J. PEENDEEGAST and HAEPBE, JJ.

text:
    JEMISON et al. v. STATE.
    (No. 3988.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.)
    1. Criminal Law &wkey;721 (6) — Trial—Argument oe District Attorney.
    In a prosecution for hog theft, argument of the district attorney that, “If it is not true that the defendants did not kill the hog, why was there no evidence to the fact that they did not kill the hog, as was positively testified -to,” was improper, as a direct allusion to defendants’ failure to testify in their own behalf.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. &wkey;>721(6).]
    2. Larceny i&wkey;60 — Ownership and Possession oe Property — Sueeiciency oe Evidence.
    In a prosecution for hog theft, testimony of the owner held, sufficient to show ownership and the possession of the hog, with actual control, care, and management of it, when stolen.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 156-158; Dee. Dig. <&wkey;60.]
    3. Larceny <&wkey;40(ll) — Possession oe Property — Variance.
    Where the indictment laid the ownership of the hog in one Smith, proof that Smith’s ranch was in charge of his agent, who looked after his interests, did not constitute a variance in the proof as to possession of the hog.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 126; Dee. Dig. <&wkey;>40(ll).]
    4. Larceny <&wkey;73 — Instruction—Possession and Ownership.
    Where it appeared that an animal was stolen from the alleged owner’s ranch, which was in charge of his agent, the charge that possession of property of which a person is unlawfully deprived is constituted by the exercise of actual control, care, and management of the property, whether the same be lawful or not, and that, to warrant conviction, the jury must find beyond a reasonable doubt that the animal was taken from the possession of the alleged owner, and that, if it was in the possession of others when taken, or the jury had a reasonable doubt on the point, they should acquit, was sufficient.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 196; Dec. Dig. &wkey;>73.]
    5. Criminal Law &wkey;>507% — Evidence—Accomplice — Sueeiciency oe Evidence.
    In a prosecution for hog theft, evidence held insufficient to make a state’s witness a par-ticeps criminis as principal, accomplice, accessory, or otherwise a party to the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1097, 1264; Dec. Dig. <§=> 507%.]
    Appeal from District Court, Anderson County;' John S. Prince, Judge.
    Lee Jemison and David Jackson were convicted of hog theft, and they appeal.
    Judgment reversed, and cause remanded.
    J. E. Rose and O. J. Addington, both of Palestine, for appellants. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellants were convicted of hog theft, and given two years’ confinement in the penitentiary each; the ownership being alleged in W. C. Smith.

A question is presented as to proper allegation of ownership under the facts. This comes from an attack on the sufficiency of the evidence to support that charge in the indictment as well as refusal of the special requested instructions directing the jury to enter a verdict of not guilty on the variance between the proof and allegation of ownership. Smith, alleged owner, lived in the town of Malakoff, in Henderson county. He owned quite a lot of property, land, and stock about 15 miles from Malakoff; some of it being in Anderson county. The particular point at which the animal was stolen was in Anderson county; therefore the prosecution was had in Anderson county. Sinith testified he had never lived on his ranch or farm; that he visited it occasionally; sometimes every week or two; sometimes it would be two months, and intervals between visits would be as much as three months. A man named Farmer was his employé and lived on the ranch. Smith testified that he knew nothing of the hogs; that Mr. Parmer was looking after his interests, and after the hog-disappeared Farmer so informed him. He said:

“I want to state that the man in charge of the place, Mr. Farmer, looked after the stock. I was there possibly once a month, and wouldn’t look at the hogs at all. This is why I didn’t miss the hog. I could not say that I know of my own knowledge that a certain hog is gone. X couldn’t say -who took it, because I wasn’t there; what I know is hearsay. I do not know of what disposition Mr. Farmer may have made of that hog, nothing only what he told me. I said that sometimes I would go down there once a month, and possibly not see the hogs while I was there, but Mr. Farmer was there looking after the hogs, cows, and horses that were on the place. He had been there since 1908, in that capacity, in my employ. I lived in Mala-koif, in the adjoining county. Malakoff is about 13 miles from the county line between Anderson and Henderson counties. This particular part of my ranch is in Anderson county, something like two miles below the line. Sometimes I would go down to the ranch once a week, and sometimes once in two months. I would be there every week for two or three weeks, and sometimes would not be there but every two months, have been away from there as high as three months.”

On cross-examination, after having been recalled by the state, and after a conference with Mr. Bishop, the district attorney, he stated:

“I don’t think that the particular hog in question was ever on my place at Malakoff; not since they were little pigs, if then.- I never lived on that ranch individually. Mr. Crist has been with me off and on for about 12 years. I never did have that particular hog at Malakoff.”

He further states:

“I don’t remember of having seen the particular hog that was claimed to have been missing from my ranch. To say I ever saw the particular hog, I couldn’t say; there was just a bunch of hogs in the hog pasture.”

In another portion of his testimony on recall, which is relied upon by the state to prove ownership in Smith as alleged, and not in Farmer, he states:

“Mr. Fannie Farmer was working for me on the ranch, looking after things. He did anything I wanted him to do. About the 14th day of May, 1914, Mr. Farmer only had such control and management and interest in the stock on this ranch as I would tell him. I reserved control of everything to myself. Mr. Farmer was not my overseer. He was just a day-laborer. Mr. Farmer was just a day-laborer, and worked for so much a month. Sometimes he would collect his wages by the month, and sometirnes it would be two or three months.”

We are of opinion that the position of appellants is correct. The ownership should have been alleged in Farmer. The fact that he worked under the supervision or general control of the absent owner would not change that position. All owners control their business, sometimes in person, and sometimes through employed agencies. Here it is made to appear that the real owner of the property did not control the ranch except in a general way, visiting it at intervals, and that E’armer was really\ in possession and control of things. Under the cases of Bailey v. State, 18 Tex. App. 432, Frazier v. State, 18 Tex. App. 440, Conner v. State, 24 Tex. App. 245, 6 S. W. 138, McDonald v. State, 70 Tex. Cr. R. 80, 156 S. W. 209, Williams v. State, 42 Tex. Cr. R. 18, 57 S. W. 93, Bryan v. State, 54 Tex. Cr. R. 59, 111 S. W. 1035, and Overturf v. State, 31 Tex. Cr. R. 10, 23 S. W. 147, it would seem that Mr. Farmer had the control and management of this property. The indictment should have alleged' ownership and possession in Farmer, and could have added, if it was thought proper to do so, that while he was custodian and special owner, Smith was the real owner. In that case want of consent of both would have to be alleged and proved. If general ownership of stolon property is in one man, and possession, care, and control in another, the indictment may allege the ownership in the general owner, but must allege the possession in the party in possession, so far as criminal pleadings are concerned, and it may be sufficient to allege ownership and possession both in the person having the actual care, control, and possession of the property. In addition to quoted testimony, Mattie Speer testified that she lived on the ranch; that Farmer was boss and general overseer; that Mr. Farmer seemed to be and acted as the general manager and boss of the whole situation at the ranch; when tenants wanted anything, they went to Mr. Farmer; when the horses or cattle and hogs or anything was to be seen about, they went to Mr. Farmer for directions; they never went to Mr. Crist; that while she was on the ranch she was boarding with Jemison, one of the appellants. She further says that Mr. Farmer was their boss and superintendent, to whom all parties on the ranch went for instructions. Mr. Farmer had the care, control, and possession of the horses, cattle, and hogs about the place. There are quite a number of other authorities that might be mentioned in this connection, but those mentioned are sufficient. We therefore conclude that the allegation of ownership and possession and want of consent, etc., should have been alleged in Farmer, as contended by appellants.

It is also contended that the case should be reversed on account of remarks of one of the prosecuting counsel in which he used this language:

“If it is not true that the defendants did not kill the hog, why was there no evidence to the fact that they did not kill the hog as was positively testified to by Henry Jackson?”

It is contended that this was an allusion directly to the failure of the defendants to testify in their own behalf. An exception was taken. There was another remark made by prosecuting counsel also to which exception was taken. That remark was as follows:

“These two men have practically confessed their guilt, because they brought no evidence here to deny it.”

In support of these propositions various authorities are cited which we think sustain appellants’ contention. Flores v. State, 60 Tex. Or. E. 25, 129 S. W. 1111; Wallace v. State, 46 Tex. Cr. E. 341, 81 S. W.-966; Barnard v. State, 48 Tex. Or. E. Ill, 86 S. W. 760, 122 Am. St. Eep. 736; Shaw v. State, 57 Tex. Or. E. 474, 123 S. W. 691; Williams v. State, 48 Tex. Cr. E. 75, 85 S. W. 1144; Huff v. State, 103 S. W. 394; Eeinhard v. State, 52 Tex. Or. E. 63, 106 S. W. 128. And for authorities generally see Branch’s Criminal Law, § 849, with the authorities already cited and there cited. Bearing upon this phase of the case, Henry Jackson testified for the state that he was present when the hog was killed, and connects the two appellants with the killing and cleaning of the hog and its appropriation. Quoting from his testimony, he says:

“Nobody else was there besides me and those two negroes. David Jackson was present when Lee hit the hog with a rock. They cleaned it with a knife—with David Jackson’s knife.”

He further states:

“Me and Lee and David were up there chopping corn. That was some time year before last in corn chopping time. We were all chopping corn in the same field. It was about 11 o’clock, just before dinner. They had fresh moat for dinner. I helped eat it. They put it on the table; I eat it. If they hadn’t put it on the table, I wouldn’t have eat it. I don’t know right exactly when was the first time that I told this; I ain’t talked nothing about this. I first told it to Mr. Smith and another fellow; I don’t know his name now. He lives in Anderson county, one arrested him. They come down there and arrested Lee, a tall man. I don’t know whether I would know him or not. It was the sheriff. He was a tall man. He and Mr. Smith were the only men that I ever spoke to about it, and that was about a year or over after the hog was killed. The reason that I never told it for a year or more afterwards and after these boys had left the farm, I ain’t never told nobody nothing. How comes me to tell Mr. Smith and Mr. Guinn? ' Mr. Fannie Farmer had already told Mr. Smith, I suppose.”

He further states:

“The men that had me up there promised me that I wouldn’t be prosecuted if I would tell this like I have told it on the stand.”

So it would seem that this witness, Henry Jackson, who testified for the state, was the only-one who witnessed the killing of the hog, and made himself a particeps eriminis in the transaction. The same day the hog was killed he testified he ate some of the alleged stolen hog, was present when it was done, and did not mention it for a long time. He excludes the presence of everybody except himself and the two defendants. This evidence raises the issue: First, that Jackson was a particeps eriminis, and needed corroboration in order to prove the state’s case; and, second, it excludes the presence of anybody and everybody to the taking of the hog at the time it was taken, except himself and the two defendants. So it will be seen that the court should have charged with reference to accomplice testimony; and it excludes the presence of everybody except himself and the two defendants. With this statement from the record it would seem to ibe practically evident that the two defendants were the only people who could contradict Henry Jackson", the state’s witness, on any fact connected with the taking. This being true, the remarks of the prosecuting officer should be regarded as a reference to the failure of these defendants to testify. There was nobody else by whom they could prove anything except by themselves and the state’s witness Henry Jackson. Under these authorities it is clear to our minds these remark's of the prosecuting officer was a reference to the failure of the defendants to testify. They could bring no witness to show they did not kill the hog except themselves. They did not testify in the case. Therefore these remarks were references to appellants’ failure to take the stand and testify. There was nobody else by whom appellants could have proven to the contrary of what Jackson said.

For the reasons indicated, the judgment is reversed, and the cause remanded.

PEENDEEGAST and HAEPBE, JJ.

(concurring). We concur in the reversal of the case on the sole ground of the argument of the district attorney alluding to the appellants’ failure to testify.

We are clearly of the opinion that the testimony of the owner of the alleged stolen hog was ample to show, not only that he was the real owner, but also in the possession of the hog, in that he wasi in the “actual control, care, and management” of it when it was stolen, if it was stolen, and that there was no variance in the proof and allegations as to the possession. The court specifically submitted the question to the jury in his charge as follows:

“Possession of the person so unlawfully deprived of property is constituted by the exercise of actual control, care, and management of the property, whether the same be lawful or not. In order to warrant a conviction in this case, the jury must find from the evidence beyond a reasonable doubt that the hog, when taken (if you find it was taken), was from the possession of W. O. Smith. If the hog was in the possession of Fannie Farmer or George Crist when taken (if it was taken), or if you have a reasonable doubt thereof, you will acquit the defendants,”

—which was all that was necessary, and, having given that charge, should not have given those or either of them requested by appellant on the subject.

We also think the testimony does not make the state’s witness Henry Jackson a particeps eriminis as principal, accomplice, or accessory, or otherwise a party to the offense.

The judgment will 'be reversed on the sole ground of the objectionable argument of the district attorney excepted to.
      <g=a>For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

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

license: Public Domain

text:
    LAIRD v. STATE.
    (No. 3900.)
    (Court of Criminal Appeals of Texas.
    Jan. 26, 1916.
    On Motion for Rehearing, March 1, 1916. Dissenting Opinion April 12, 1916.)
    1. Bail @=>64r — Time fob Entry — Loss o® Jurisdiction.
    Under Code Cr. Proc. 1911. arts. 901-904, where one convicted of perjury and appealing enters into a recognizance at the next term after the term at which convicted, and is allowed to go at large, his appeal should not be dismissed because the jurisdiction of the court is ousted by his having been allowed to go at large without a hail bond. (Prendergast, P. J., dissenting.)
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 278; Dec. Dig. @=>64.]
    2. Indictment and Information @=>137(1)— Quashins — Jurisdiction of Court.
    It is not ground for quashing an indictment for perjury in defendant’s suit for divorce that, because of his actual residence in the state for less than the statutory period, the court administering the oath had no jurisdiction. (Davidson, J., dissenting.)
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 480; Dec. Dig. @=3137(1).]
    3. Witnesses @=>64(1)— Husband and Wife —Divorce—Collateral Attack.
    One obtaining a decree of divorce by perjury as to his residence cannot, when prosecuted for the perjury object, as to his-former wife’s being a witness against him, that she is still his wife, because the divorce decree is void because of the insufficiency of his period of residence. (Davidson, J., dissenting.)
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 180; Dec. Dig. @=>64(1).]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    W. H. Laird was convicted of perjury, and appeals.
    Affirmed.
    Robert B. Allen and Chas. A. Pippin, both of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., and McCutcheon & Church, of Dallas, f.or the State.
   PRENDERGAST, P. J.

Appellant was convicted of perjury, and assessed the lowest punishment.

If this court had jurisdiction of this cause, some interesting, and perhaps difficult, questions would have to be decided. However, because we have reached the conclusion that this court has no jurisdiction, the decision of these questions is pretermitted.

The Assistant Attorney General has made a motion to dismiss this cause, because this court has lost, if it ever had, jurisdiction thereof. This motion is based upon an un-controvertedi state of facts, shown by the transcript and various affidavits. These are the facts:

The term of court at which appellant was 'convicted, both as a matter of fact and as fixed by law, convened July 5th and adjourned October 2, 1915. The trial occurred, and the verdict was rendered and the judgment thereon entered, September 24, 1915. Within that term and in proper time appellant made his motion for a new trial, and by leave of the court within term time filed an amend- : ed motion. These were heard and overruled by the court on October 1, 1915, at which time the appellant gave notice of appeal to this court, which was duly then and there entered on the minutes of the court. Immediately thereafter he was properly sentenced. In overruling his said motions, the court, as a part of that order, fixed the amount of appellant’s recognizance at $2,000, and he, being present and in custody, was committed to jail until the decision of his case on appeal by this court. The sentence also is to the same effect.

Appellant did not enter into a recognizance at that term of court, nor attempt to do so, so far as this record discloses, but the sheriff, by virtue of said orders and the law then having him in custody, properly confined him in the county jail. The next term of that court convened on Monday, October 4th, and continued in session for that October term the time required and authorized by law. On October 8th, during that October term, in open court, appellant attempted to gain his liberty, and did so by on that date in open court entering into a recognizance pending his appeal here. That recognizance, both in substance and in form, follows the statute. O. G. P. 1911, art. 903. Under that recognizance he was discharged by the sheriff from jail and from his custody, and he has continuously since then been at liberty, and still is.

Under the statutory law of this state from the organization thereof continuously down to the act of March 15, 1907, page 31, an appellant on a felony conviction, was required to be committed to jail, and held therein pending his appeal and until his appeal was decided by this court (Wh. Au. C. C. P. art. 876), and, if he secured his liberty from custody in any way the statute prescribed (Wh. An. C. C. P. art. 880): “The jurisdiction of the Court of Criminal Appeals shall no longer attach in the case,” but this court was required, on the motion of the attorney representing the state, “to dismiss the appeal.”

Said act of 1907 was carried into the Code of Criminal Procedure, under proper sections, by the revisions of 1911. By the provisions thereof (article 901, C. C. P. 1911) an appellant in a felony case, where the punishment assessed is 15 years or less, is given the right to remain on bail during the pendency of his appeal by entering into a recognizance in said court at the term of conviction in the sum fixed by the court. The next article expressly requires that, when a defendant appeals from a felony conviction, he be committed to jail unless he enters into such recognizance, and further provides that, “if he be in custody, his notice of appeal shall have no effect whatever to release him from custody until he enters into recognizance,” and that no recognizance shall be taken or allowed unless he is in custody of the sheriff at the time. Article 904 provides that if, for any cause, lie fails to enter into and make said recognizance “during the term of court but gave notice of and took an appeal from such conviction during such term, he shall, notwithstanding such failure, be permitted ta give bail and obtain his release from custody by giving, after the 'expiration of such term of court and in vacation, his bail bond to the sheriff, with two or more good and sufficient sureties,” in which he, together with his sureties, shall acknowledge themselves severally indebted to the state in the sum fixed by the court, upon the conditions provided for a recognizance, “but before such bail bond shall be accepted and the defendant released from custody by reason thereof, the same must be approved by such sheriff and the court trying said cause, or his successor in office. That when said bond is so given, approved and accepted, the defendant shall be released from custody.” Said act and our laws all the time have expressly provided for both recognizances and bail bonds. They are entirely separate and distinct. The statute makes them so. Articles 316, 317, 320, 321, O. C. P. 1911. This court has no right to legislate and enact that one is the same as the other, or that one can take the place of the other. The statute has at all times specifically and particularly enacted when and how either one or the other may be executed. That, when either is so separately executed at the time and under the circumstances fixed by the statute, it may have the same effect so far as authorizing the discharge of the appellant from custody is concerned, but does not make them the same instrument, and cannot do so, under the express provisions of our statute.

It has always been held by this court and our Supreme Court, when it had criminal jurisdiction, that a bail bond or recognizance is strictly statutory, and to entitle the state to a forfeiture thereon it must contain all the requisites presciibed by the statute. The principles of equity, as applied to private contracts, cannot be invoked in the construction of a bail bond or recognizance. Wallen v. State, 18 Tex. App. 414; Turner v. State, 14 Tex. App. 168; La Rose v. State, 29 Tex. App. 215, 15 S. W. 33.

Where a change of venue is had, a bond taken by the sheriff of the county a quo for the appearance of the defendant in the new county is void. Harbolt v. State, 39 Tex. Cr. R. 133, 44 S. W. 1110.

A bail bond taken in a misdemeanor case, of which the district court had no jurisdiction, under process issued by the district clerk, is void. Cassaday v. State, 4 Tex. App. 96.

A bail bond not signed is void even though an affidavit thereto is signed. Nelson v. State, 44 Tex. Cr. R. 595, 73 S. W. 398.

If such bond be not signed by the principal, it is void. Price v. State, 12 Tex. App. 235; Scarborough v. State, 20 S. W. 584; Tierney v. State, 31 Tex. 41.

One fair criterion for determining whether a recognizance or bail bond is sufficient would be if upon a forfeiture thereof the sureties could be held and a judgment had against them in a scire facias proceeding. We take it it would be clear that, if this court had jurisdiction and should affirm this case and appellant should not appear in the court below as required by said recognizance, the sureties herein could successfully defeat any judgment against them by showing, as the facts herein unquestionably are, that neither they nor their principal entered into any recognizance at the term of court at which he was convicted and appealed, but instead unlawfully and illegally entered into a recognizance at another and different term of .court, and that that court, at a subsequent term had no power or authority to take his recognizance.

We think it unnecessary to cite a large number of cases. The statutes alone are amply sufficient. Cases are cited by Judge White in his Ann. Crim. Proc., by Mr. Branch in his Crim. Law, and by Vernon’s Ann. Crim. Proc., under the various articles of the statutes applicable to this question.

We have concluded that the jurisdiction of this court has been ousted by the action of appellant, and the cause must therefore be dismissed.

DAVIDSON, J., absent.

On Motion for Rehearing.

HARPER, J.

On a former day of this term this cause was dismissed because appellant, after the adjournment of the term of court at which he was convicted, entered into a recognizance at the next term of the court, it being held that after the adjournment of the court for the term, at which appellant was tried, the statute only authorized the giving of a bail bond, and he having given a recognizance, the jurisdiction of this court was ousted when he was allowed to go at large after giving a recognizance — he would, in law, be regarded as having escaped confinement. At the time the case was originally before the court the writer at that time suggested this was not the construction that should be given the statute, but, instead, the proper construction/of it was that if the court was in session, a recognizance was authorized to be taken, and a bail bond could be given only when the court was in vacation. The articles governing this matter are articles 901, 902, 903, and 904. That the recognizance given is in accordance with article 903 is not questioned, but it is contended that the proper construction of these articles is that, if a recognizance is given, it must be at the term at which the trial was had, and, if not then given, a person can secure his release only by giving a bail bond, in lieu of a recognizance, and it is claimed this is the proper construction of article 904, which reads: • .

“If, for any cause, the defendant fails to enter into and make the recognizance -mentioned in article 908 during the terin of court, but gave notice of and took an appeal from such conviction during such term, he shall, notwithstanding-such failure, be permitted to give bail and obtain his' release from custody by giving, after the expiration of such term of court and in vacation, his bail bond to the sheriff, with two - or more good and sufficient sureties,” etc.

To the writer’s mind, this article was clothed in such language as to be subject to either construction, and while he thought that perhaps the better construction would be that if the court was in session, a recognizance should be given, and a bail bond was only authorized to be taken when the court was in vacation, and, therefore, no recognizance could be entered into, yet after discussing it with the other members of the court, as it was only a matter of procedure, he said he would not dissent from such holding, as he thought it better to get a settled construction. Since the original opinion has been handed down, we have been led to a further study of the question, and we find that, when the criminal procedure' required, when the court was in session, that a defendant, when arrested for a felony, enter into a recognizance in open court, and a sheriff was authorized to take bond only when the court was in vacation (articles 325, 326, White’s Ann. Proc.), it was held that if the court be in session, either at the term at which the indictment was returned or at a subsequent term, the sheriff could not take a bail bond, but the defendant was required to enfer into a recognizance. Kiser v. State, 13 Tex. App. 201; Gragg v. State, 18 Tex. App. 295; La Rose v. State, 29 Tex. App. 215, 15 S. W. 33. The Legislature, apparently on account of these decisions and the inconvenience sometimes caused, in 1907 (Acts 30th Leg. c. 71) amended this article of the statute, now article 337, and authorized the sheriff to take a bail bond even though the court be in session, but it took an act of the Legislature to authorize a sheriff to take a bail bond when the court was in session, whether at the term, at which the- indictment was returned or a subsequent term. At the same session of the Legislature, in 1907, the act was passed which, for the first time, authorized a person convicted of a felony to give a recognizance or bail bond on appeal, if the punishment assessed did not exceed 15 years’ confinement in the penitentiary. Chapter 19, Sess. Acts 1907. In the emergency clause to this bill the Legislature declares:

“The large amount of costs incurred by keeping the defendant in the custody of the sheriff during a trial when he is charged with felony, and during the appeal taken from felony convictions, and the frequent hardships endured by the defendants who are not guilty of a violation of law, and the liberty of the citizen, as well, as the interests of the. state, create an emer-' gency and an imperative public necessity requiring that the constitutional rule requiring bills to be read on three several days be and the same is hereby suspended, and that this act take effect from and after its passage, and it is so enacted.”

The purpose of the Legislature is made manifest by this act, to save costs of keeping the prisoners confined to th.e counties, and to keep innocent people from being punished by confinement in .the county jails. But in thus providing they wanted the court to have a supervision and see that adequate sureties were given, and if the court was in session, a recognizance must be given so that he might investigate the solvency of the sureties ; if the court was not in session, a bail bond could be executed, but the amount of this bail bond must be fixed by the trial judge, and he must approve the bond, in addition to the sheriff; that he might inquire of the sheriff as to the investigation he had made as to the solvency of the sureties. At this session of the Legislature they dealt with both bail bonds and recognizances before conviction and after conviction, and in one instance (before conviction) they provided that a sheriff might take a bail bond even though the court was in session, but, after conviction, the only instance in which a sheriff was authorized to take a bail bond was (and they use the words) “in vacation,” and then provided before the prisoner is released, the bond must be presented to the court trying the cause, and be approved by him. To the mind of the writer, it was the clear intent and purpose of the Legislature, after conviction, to only authorize the sheriff to take a bail bond while the court was in vacation, and. if the, court was in session, even though at .a subsequent term,, a recognizance must be entered into in open court. This construction is in accordance with the construction of the former act, which applied to prisoners before conviction, and which the Legislature amended at this session, and which it must, in consequence, have had in mind, and for this reason the writer thinks the cause should be reinstated; but, as here-inbefore stated, it is but a matter of procedure, and if a majority of the members of this court think the proper construction is that even though the court at which one is convicted is in session at a subsequent term, a bail bond only will confer jurisdiction on this court, he will acquiesce in such construction and dissent no further, and, being of the opinion that the ease should be reinstated, he will proceed to pass on the questions raised in the record.

In the first place, we do not think there was any error in overruling the motion to quash the indictment. The defendant, as plaintiff, brought suit in the civil district court of Hallas county for a divorce from his wife, Mrs. Jessie Laird, alleging that, at the time of the institution of the suit, he had been a resident of Texas for 12 months. In the indictment in this case this is alleged to be false and untrue, and appellant seemingly contends that if he had not been in fact a resident of Texas 12 months, the district court of Dallas county would have no jurisdiction of the cause of action, and therefore if he swore falsely in such a suit, no indictment for perjury ’ would lie. The petition was introduced in evidence, in which it is alleged—

“that plaintiff is a resident of Dallas, Dallas county, Tex., and has been for more than 12 months next preceding the filing of the petition.

If the defendant, Mrs. Jessie Laird, had appeared in that cause and filed a plea to the jurisdiction of the court and in abatement of the suit, alleging that appellant, plaintiff in that cause, had not been a resident of this state for 12 months, the court would have had jurisdiction to hear’ and determine that question and if appellant on the hearing of that plea had been sworn and testified he had been a resident of Texas for 12 months, yet upon hearing the other testimony the court had found his testimony false and dismissed the suit for want of jurisdiction to hear the cause, an indictment for perjury would lie, because the testimony was given in the course of a judicial proceeding in a court which had jurisdiction to hear and determine that question. And inasmuch as Mrs. Laird did not appear, and in order to get the court to hear and entertain the suit and grant him a divorce, if appellant testified he had been a resident of Texas for 12 months in order to obtain a decree of divorce from his wife, and such testimony was in fact untrue, an indictment for perjury based thereon will lie, and the court did not err in so holding. Cordway v. State, 25 Tex. App. 405, 8 S. W. 670; Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Higgenbotham v. State, 24 Tex. App. 505, 6 S. W. 201; Waddle v. State, 73 Tex. Cr. R. 501, 165 S. W. 591; Etheridge v. State, 173 S. W. 1031. And it has been held that assignment of immaterial matter, in connection with material matter, does not vitiate the indictment. Dorrs v. State, 40 S. W. 311; Jefferson v. State, 49 S. W. 88.

But the next question presented is one of more difficulty. Appellant contends that, even though perjury could be assigned on his testimony given on the divorce trial, the judgment and decree of divorce entered therein is absolutely void, and, if void, the woman from whom he was adjudged a divorce in that decree is his legal wife, and she cannot therefore be used as a witness against him. Appellant, according to this record, came to Texas from New York in December, 1913, leaving a wife and child in New York. In September, 1914, following he filed a suit for divorce in the Sixty-Eighth district court of Dallas county, Tex., alleging that he had been a resident of Texas for 12 months, and making, allegations in respect to his wife. In the petition he alleged he did not know the address of his wife, and she was cited by publication. When the case came on to be heard, Judge Whitehurst testifies appellant took the stand as a witness and testified he had been a resident of Texas for 12 months immediately preceding the filing of the petition for divorce, and testified to the truth of the allegations upon which he sought a divorce. Judge Wfiitehurst, on the testimony of appellant, granted the divorce, .and a decree was entered, granting him an absolute divorce from Mrs. Jessie Laird, the decree reading:

“A jury being waived, the court, having heard the pleadings and the evidence and the argument of counsel, is of the opinion that the material allegations in plaintiff’s petition are true. It is therefore ordered, adjudged, and decreed by the court that the bonds of matrimony heretofore existing between said plaintiff, Jessie Laird, and defendant W. H. Laird, be, and the same are hereby, annulled and dissolved, and that each party hereto is hereby restored to the status of single persons.’’

Appellant’s .contention is that, although he may have brought this suit, testified as stated above, and obtained to be decreed and entered this decree of divorce, as he had not 'been in Texas Í2 months, the decree is a nullity and void, and therefore Mrs. Jessie Laird was not, and is not, a competent witness against him. One must bear in mind, in passing on this question, that there is nothing in the record of the proceedings in the Sixty-Eighth district court which would render the judgment void, or tend to show that he had. not been a resident of Texas for 12 months. On the face of the pleadings and by the entire record made in that case, the jurisdiction of the district court is shown, and the regularity of its decree. If the decree is either void or voidable, it must be shown by evidence aliunde the record. Now so long as this record stands and no suit is brought to set it aside, can it be collaterally attacked,- and especially can it thus be attacked by the person who caused and at whose instance it was entered? Upon the decision of this question rests the question of whether or not Mrs. Jessie Laird was a competent witness against appellant. If she was not a competent witness the case must be reversed, because she gave very material testimony to show the falsity of the testimony said to have been given by appellant on the trial of the divorce suit. Now, the evidence, and all the evidence, shows that appellant brought the divorce suit and procured that judgment of divorce to he entered. Under the Constitution and laws of this state, the district court of the Sixty-Eighth district had jurisdiction of the subject-matter of the suit — the granting of divorces. Const, art. 5, § 8. Having jurisdiction of the subject-matter, the appellant in his petition alleged a state of case which invoked that jurisdiction, and on the record as made in that court thé decree is valid and binding on all the world, and especially binding on appellant. In the ease of Martin et al. v. Robinson, 67 Tex. 375, 3 S. W. 550, Judge Stayton, speaking for the Supreme Court, says:

“Such a court must determine whether the facts exist which make it lawful for administration to be granted, * * * and- if in this respect, having power to make the inquiry, it comes to an erroneous conclusion, its decree, founded on such conclusions, is voidable, but not void” (citing Lynch v. Baxter, 4 Tex. 431, 51 Am. Dec. 735; Burdett v. Silsbee, 15 Tex. 604; Giddings v. Steele, 28 Tex. 732, 91 Am. Dec. 336).

So in this case, when appellant’s petition in the district court, he being plaintiff in the action for divorce, came on to be heard, he having cited his wife by publication, the court, in accordance with the provisions of law, appointed an attorney to represent the defendant, the absent wife. This attorney filed a general denial, which put plaintiff to strict proof of his allegations. After this evidence the court may have erred in the conclusion he came to, yet under the evidence offered the court came to the conclusion that plaintiff had been a resident of Texas for 12 months, and such judgment cannot be collaterally attacked, but the only way to nullify it is to bring a direct suit for that purpose. As said by our Supreme Court in Crawford v. McDonald, 88 Tex. 631, 33 S. W. 325:

“The general rule is well established that a judgment, rendered by a court even of general jurisdiction is' void if it had, at the time of the rendition of the judgment, no jurisdiction of the person of the defendant or the subject-matter of the litigation. This principle is self-evident, because until the court acquires jurisdiction it has no power to proceed to investigate and determine private rights. Logically it can make no difference as to the validity of the judgment whether the lack of jurisdiction of the person or the subject-matter appears from the face of the record, or is made to appear by evidence aliunde. For if, for instance, no service was had upon the defendant, he not appearing in the case, the court, having no jurisdiction whatever over his person, is absolutely without power to bind him by an adjudication that he had been in fact duly served; and logically this want of power is the same whether the lack of jurisdiction appears on the face of the record or not. There is, however-, another rule of law equally well settled upon principles of public policy, which precludes inquiry by evidence aliunde the record, in a collateral attack upon a judgment of a domestic court of general jurisdiction, regular on its face, into any fact which the court rendering such judgment must have passed upon in proceeding to its rendition. Therefore it is well settled that where a personal judgment has been rendered against a defendant by a domestic court of general jurisdiction, and under the same his property has been seized and sold, he will not,, in a contest over the title to the property; be allowed to show, by evidence dehors the record, that the judgment was rendered without any service whatever upon Mm. Logically the judgment is in fact void, but on grounds of public policy the courts, in order to protect property rights, apply the rule aforesaid, which precludes inquiry into facts dehors the -record for the purpose of showing the invalidity of the judgment; and therefore for all practical purposes, in- such collateral attack, the judgment is held valid. This rule is analogous to,-and probably as important as, the rule forbidding the introduction of verbal testimony to vary or contradict the .terms of a written contract, except in a proceeding instituted for the purpose of correcting, reforming, or annulling the same. These principle's have long been acted upon by this court, as applicable to judgments of the district, probate, and justice courts, and have become settled rules of property in this state. Murchison v. White, 54 Tex. 78; Williams v. Ball, 52 Tex. 603 (36 Am. Rep. 730); Brown v. Christie, 27 Tex. 73 (84 Am. Dec. 607); Heck & Baker v. Martin, 75 Tex. 469 (13 S. W. 51, 16 Am. St. Rep. 915); Fowler v. Simpson, 79 Tex. 611 (15 S. W. 682, 23 Am. St. Rep. 370); Martin v. Burns, Walker & Co., 80 Tex. 677 (16 S. W. 1072); Hardy v. Beaty, 84 Tex. 562 (19 S. W. 778, 31 Am. St. Rep. 80). Whether an exception has been ingrafted upon this rule by the decision of the Supreme Court of the United States in Pennoyer v. Neff, 95 U. S. 714 (24 L. Ed. 565), and, if so, what is the effect thereof, is foreign to this discussion. Martin v. Burns et al, 80 Tex. 676 (16 S. W. 1072); Hardy v. Beaty, 84 Tex. 564 (19 S. W. 778, 31 Am. St. Rep. 80).
“Since the rule of public policy above referred to precludes inquiry in a collateral attack into even a jurisdictional fact, when the evidence thereof does not appear from the face of the record, it must follow, for stronger reasons, that the judgment in this case, affirming the sale, cannot be attacked collaterally by evidence dehors the record, to the effect that the sale was not in fact made at the place required by law. The court, .in confirming the sale, will be conclusively presumed, in this collateral attack, to have investigated and determined correctly that the sale was made at the proper place, and no evidence aliunde to the contrary will be permitted to impeach the correctness of the judgment. The only relief, if any, permitted by the rules of law against an improper determination of such question by the court in rendering such judgment of confirmation is to be found in a direct attack upon the judgment, where the court has full power to adjust the equities of the parties litigant. We are therefore of the opinion that tMs judgment cannot be attacked by the' evidence dehoi-s the record of the probate court that the sale was not made at the courthouse door of Grayson county. Brown v. Christie, 27 Tex. 73 (84 Am, Dec. 607).”

But were the above not the general rule, our Supreme Court has settled the question that appellant, having instituted the civil suit, and prosecuted it to judgment, cannot collaterally attack it. In Heffron v. Cunningham, 76 Tex. 313, 13 S. W. 259, it was held:

“One in whose favor a judgment is rendered in a suit brought in his name by counsel employed by him to sue cannot be heard, in a collateral proceeding, to attack the jurisdiction of the court, so long as he resorts to no means to correct or annul the judgment.”

This is not only the rule in this state, but Cyc. vol. 23, page 1067, says:

“The rule forbidding the collateral impeachment of judgments applies to all persons who were parties to the action in which the judgment was rendered” (citing cases from many different states).

In Cent. Digest, vol. 30, under title, Judgments, § 931, is cited a list of authorities which hold that a collateral attack on a judgment for want of jurisdiction of a party thereto, which must be shown by facts outside the record, can only be made by one not a party to the judgment. Thompson v. McCorkle, 136 Ind. 484, 34 N. E. 813, 36 N. E. 211, 43 Am. St. Rep. 334; Valentine v. McGrath, 52 Miss. 112; Hess v. Smith, 16 Misc. Rep. 55, 37 N. Y. Supp. 635; People’s Bank of Springfield v. Williams (Tenn.) 36 S. W. 983, and cases cited.

It is thus seen that the rule of law is that, if the court rendering the judgment has jurisdiction of tlie subject-matter, and tbe record as made would sbow that its jurisdiction bad been properly invoked, tbe judgment is not void, but voidable only, and cannot be collaterally attacked by tbe person securing tbe judgment to be entered, but must be set aside by direct proceedings, if it is to be avoided. And, as in tbis case appellant bad procured a decree of divorce to be entered in a court having jurisdiction of divorce proceedings, annulling tbe bonds of matrimony existing between bim and Mrs. Jessie Laird, be cannot collaterally attack that judgment, and, as tbe divorced wife is permitted, under our law, to testify, tbe court did not err in permitting ber to do so.

Tbe only other question presented in tbe brief is one of some difficulty to tbe writer. Tbe petition filed by appellant to obtain tbe divorce and tbe answer of tbe attorney appointed by tbe court to represent tbe absent defendant, whose residence was alleged to be unknown, and who was cited by publication, and tbe judgment decreeing a divorce, were properly admitted in evidence, and the admissibility of tbis testimony is not contested by appellant, but be contends tbe court erred in not limiting tbe purpose for which tbe jury might consider such testimony. Tbe general rule is as contended by appellant. He says:

“On the trial of the defendant herein the state introduced in evidence the original petition for divorce filed in the district court for the Sixty-Eighth judicial district of Texas in the case of W. H. Laird v. Jessie Laird,’ No. 180000, and also introduced in evidence the judgment entered in said cause as of March 1, 1915. Said petition and said judgment were competent and admissible to show inducement in the matter assigned as perjury, and for the purpose of showing that a trial was had in the district court for the Sixty-Eighth judicial district of Texas of matters over which said court had jurisdiction, and for the purpose of showing the materiality of the particular matters assigned as perjury in this case. While said testimony was admissible for the purposes stated, it is well settled, by an unbroken line of decisions in this state, that the court in its charge must limit and restrict the purpose or purposes for which same can be considered by the jury in arriving at their verdict. ‘Wherever extraneous matter is admitted in evidence for a specific purpose incidental to, but which is not admissible directly to prove, the main issue, and which might be taken, if not explained, to exercise a wrong and undue or improper influence on the jury as injurious and prejudicial to the rights of the party, then it becomes the imperative duty of the court to so limit and restrict it as that such unwarranted results cannot ensue; and a failure to do so will be radical and reversible.’ ‘In perjury, the judgment and record of the trial in which the perjury was committed are legitimate as evidence by way of inducement, though not to prove the perjury, and it is error for the charge not to limit and restrict said evidence’ (citing Davidson v. State, 22 Tex. App. 372, 3 S. W. 667; Washington v. State, 23 Tex. App. 336, 5 S. W. 119; Maines v. State, 23 Tex. App. 568, 5 S. W. 123; Littlefield v. State, 24 Tex. App. 167, 5 S. W. 650; Higgenbotham v. State, 24 Tex. App. 505, 6 S. W. 201; Kitchen v. State, 26 Tex. App. 165, 9 S. W. 461; Foster v. State, 32 Tex. Cr. R. 39, 22 S. W. 21; Estill v. State, 38 Tex. Cr. R. 255, 42 S. W. 305).”

Tbe writer thinks these cases correctly announce tbe law in bolding that when tbe record of tbe proceedings in tbe case in which it is contended tbe perjury was committed is introduced, such evidence must be limited, as contended by appellant, when that is tbe only purpose for which such testimony is legitimately admissible.

But appellant, by objecting to Mrs. Laird testifying when called as a witness, rendered tbe testimony admissible for another purpose. It became compulsory on tbe state to sbow that a decree of divorce bad been granted, and under said decree she was no longer tbe wife of appellant, and when be sought to collaterally attack tbis decree as being void, on tbe ground that tbe court bad no jurisdiction it became compulsory on tbe state to show that tbe decree was entered in a court having jurisdiction to grant divorces at tbe instance and request of appellant, and tbe record in that cause became admissible for that purpose, as well as a matter of inducement, and to sbow tbe materiality of tbe alleged false testimony. Appellant, by objecting to Mrs. Laird testifying, compelled tbe state to procure and introduce tbis testimony to render ber a competent witness, and be cannot be beard to complain that such testimony was only admissible as a matter of inducement. He by bis objection bad rendered it admissible for another and different purpose, and compelled its introduction to render a witness a competent witness, and this, perhaps, is tbe reason tbe trial court did not in bis charge seek to limit the testimony.

However, appellant contends that tbe testimony was of such a nature that it could be used by the jury in establishing bis guilt, and it was not admissible for that purpose. Appellant is correct in bis contention that tbe petition and judgment were not admissible on tbe issue of bis guilt of tbe charge of perjury; but would or could it have an undue influence in establishing appellant’s guilt? Tbe petition was an ordinary petition for divorce, in which it alleged appellant’s residence ; that tbe residence of Mrs. Laird was unknown, and, among other grounds, alleged that Mrs. Laird was an immoral woman, and had been guilty of immoral conduct. Tbe charge of perjury is based on tbe allegation that appellant on tbe trial of tbe divorce suit testified to tbe truth of such allegations, and that tbe testimony so given by bim was false, and known by bim to be untrue when be so testified. Tbe petition nor tbe judgment could and would have no bearing in proving tbe falsity of such testimony. In fact, if such testimony bad any bearing on that issue, wbicb we doubt, its tendency would be to show that such testimony was in fact true, because tbe court bad so found in tbe divorce suit, and adjudged a divorce on those grounds. So on that issue tbe falsity of his testimony could not have any bearing -to the hurt of appellant, but would rather have been helpful. ■

On another issue in the case; however, we cannot say such testimony would have no ■tendency to establish its truth. The indictment alleged that on the trial of the divorce suit appellant had testified:

“(1) On September 11, 1914, I did not know the address or whereabouts of the defendant, Mrs. Jessie Laird. (2) On March 1, 1915, I did not know the address or whereabouts of the defendant Mrs. Jessie Laird. (3) On September 11, 1914, I had been a resident of the state of Texas for 12 months next preceding the filing of my suit for divorce. (4) On September 11, 1914, I had been an actual bona fide inhabitant of the state of Texas for 12 months next preceding thereto. (5) Erom the 11th of September, 1913, to December 1, 1913, I was not an inhabitant or resident of the state of New York. (6) On or about September 1, 1913, I came to Texas accompanied, by my wife, Mrs. Jessie -Laird, who lived with me in Texas until on or about December 1, 1913, at which time she, the said Mrs. Jessie Laird, left me at San Marcos, Tex., and left with another man for parts unknown to me.” ‘‘(10) Mrs. Jessie Laird was unfaithful to me, and associated with immoral people.”

It was incumbent upon the state to prove: First, that appellant had so testified in the trial of the divorce case; and, second, that said testimony was false, and known by appellant to be untrue when he so testified. As before said, on the second of these issues, the falsity of such testimony, the petition and judgment, could and would have no bearing to the detriment of appellant, but on the first of these issues, that he had so testified, the petition and decree might, and probably would, have some tendency to prove that he had so testified. When appellant pleaded not guilty to the charge of perjury, before he could be adjudged guilty, the state was required to prove beyond a reasonable doubt, both that appellant had so testified, and that such testimony was false, and as the petition and judgment could and might have some tendency to prove that appellant had so testified, or might be so construed by the jury, the court in his charge should have instructed the jury that such testimony could not be considered by the jury in passing on the guilt of appellant on the charge of perjury.

Having said that much, we come now to consider whether or not a failure to so instruct the jury requires a reversal of the case at our hands. If it could have worked any injury to appellant, we should not hesitate to reverse the case, and upon this issue the writer has hesitated and been slow to arrive at a conclusion. Had the appellant on the trial of the perjury case offered any testimony that he had not so testified in the trial of the divorce case, the writer would not agree to an affirmance of this case, because the petition and judgment in that case might have had some tendency to prove that he had so testified. But inasmuch as appellant offered no testimony that he did not so testify, and the testimony and all the testimony introduced on that issue in the perjury trial was that appellant had so testified in 'the divorce suit,- the" jury, without the introduction ' of the petition and judgment, would not have been authorized to find that he had not so testified, or have- grounds, under the evidence' on the perjury trial, for a reasonable doubt that he had so testified. Under such- circumstances we have come to the conclusion that, in the absence of any testimony he had not so testified, we, under the decisions of this court, are not justified in reversing the case because the court failed to limit such testimony. The testimony was admissible, as admitted by appellant, on some issues in the case, and as to the issue on which he claims it should not have been considered by the jury, appellant offers no testimony, while the state offered testimony upon which the' jury could not have found otherwise, if the petition and decree had not been introduced in evidence. Trent v. State, 31 Tex. Cr. R. 251, 20 S. W. 547; Elliott v. State, 39 Tex. Cr. R. 242, 45 S. W. 711; Marsden v. State, 59 Tex. Cr. R. 38, 126 S. W. 1160; Fitzpatrick v. State, 37 Tex. Cr. R. 20, 38 S. W. 806. In the case of Franklin v. State, 38 Tex. Cr. R. 348, 43 S. W. 85, the court held that if the record introduced would not tend to show the falsity of the testimony alleged to have been given, it was not error to fail to limit the testimony.

In this case, after a careful review of the decisions of this court, we have arrived at the conclusion as the petition and judgment were admissible, not only for the purposes of showing inducement and materiality of the testimony alleged to be false, but were also admissible for another purpose, to show the competency of the witness, Mrs. Laird, and as said testimony would and could have no bearing on whether the alleged testimony, if given, was false, and from the further fact that the testimony and all the testimony adduced on the trial of this case shows that appellant did testify as alleged in the divorce suit, no such error is presented by the failure of the court to limit the purposes for which the petition and judgment were admitted as to authorize a reversal of the judgment.

In my opinion the case should be reinstated and affirmed.

DAVIDSON, J.

I agree to the reinstatement of the appeal, but do not agree to the affirmance. The judgment ought to be reversed. I may write later.

PRENDERGAST, P. J., dissents from the reinstatement, but concurs in the affirmance.

PRENDERGAST, P. J.

The opinion dismissing this cause was correct, and was agreed to expressly by both my Associates before it was handed down, though Judge DAVIDSON was absent the day it was handed down. But, as it is merely a matter of practice' for the first time established, though wrong, I will not further discuss it. •

In my opinion the petition in the divorce case was admissible in this, as an admission or statement by appellant, just as any- other admission or statement by him would have been, and the court did not err in not limiting, as it is claimed by appellant it should have been. Judge HARPER’S opinion otherwise is correct, and unquestionably the law of and applicable to this case.

The authorities and principles cited by Judge DAVIDSON in his dissenting opinion are wholly inapplicable to this case and the questions decided therein.

DAVIDSON, J.

(dissenting). I do not purpose to discuss the question of reinstatement, but wish to say that I agree with the conclusion reached by Judge HARPER that the dismissal was error. I deem it unnecessary to give my own views in regard to the reasons. His conclusion is correct.

I am persuaded that this judgment ought to have been reversed. Making a brief statement, the record discloses that appellant came to Texas from. New York, leaving there on the 11th day of December. On the 11th of the following September he filed his petition for divorce in one of the district courts of Dallas county, being in Texas only & months. This case was one of perjury, based upon appellant’s testimony in that case, in which he stated that he had been a bona fide resident of Texas for the required 12 months, and in the county of Dallas for the requisite 6 months. A divorce judgment was thereupon entered. It seems, further, that the wife had not been in Texas, but was a resident of New York at the time the petition for divorce was filed. She was cited, it seems, by publication. Article 4632, Revised Statutes 1911; as amended by Acts Leg. 1913, p. 183, § 1 (Vernon’s Say les’ Ann. Civ. St. 1914, art. 4632), provides that no divorce shall be granted in this state unless the party is a bona fide resident of this state, and has been for 12 months prior to instituting divorce proceeding, and of the county in which the suit is filed for 6 months prior to filing the suit. So far as the writer has been able to ascertain, a judgment of divorce obtained in this state is a nullity, and therefore void without the necessary residence. I do not purpose to discuss the case cited by Judge HARPER wherein the judgment was had in a probate court, and under which subsequently a sale of property occurred and that property became involved in litigation. The court held the probate judgment could not he attacked in collateral proceedings under the facts stated in that ease. Those interested in reading the opinion he cites may do so, but it has no application to this case, as will be evidenced by its perusal. It has been always regarded an essential difference between the judgments of those courts of competent jurisdiction which in some way improperly act and those courts which have no jurisdiction. Such judgments are placed on different footings. I do not purpose now to discuss that question.

It is the law that wherever a citizen of one state seeks to secure a divorce in another state, he must become a bona fide resident of the state in which he seeks the divorce for the length of time and under the circumstances provided, by the statutes of that- state, and until this has been done no divorce proceedings can be instituted, and if instituted and judgment is obtained, it is a nullity. I will cite some of the authorities along this line: 9 Am. & Eng. Ency. of Law, p. 734, and for cases collated see note 2. I also refer to 9 Am. & Eng.'Ency. of Law, pp. 741, 742, and. notes for collated authorities. I also refer to 7 Standard Encyclopedia and Procedure, pp. 739, 740, as to what it takes to constitute a resident and citizenship. I also refer to 7 Am. & Eng. Pleading and Practice, 146, as to what it takes to constitute an appearance. I also cite Emery v. State, 57 Tex. Cr. R. 423, 123 S. W. 133, 136 Am. St. Rep. 988; Bell v. Bell, 181 U. S. 175, 21 Sup. Ct. 551, same case reported in 45 L. Ed. 805; Andrews v. Andrews, 188 U. S. 15, 23 Sup. Ct. 237, 47 L. Ed. 366; Streitwolf v. Streitwolf, 181 U. S. 179, 21 Sup. Ct. 553, 45 L. Ed. 807. In addition I cite Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Lutcher v. Allen, 43 Tex. Civ. App. 102, 95 S. W. 572; Morgan v. Morgan, 1 Tex. Civ. App. 316, 21 S. W. 154; Chunn v. Gray, 51 Tex. 114; Redus v. Burnett, 59 Tex. 581; Norwood v. Cobb, 24 Tex. 554; 2 Black on Judgments, 927; 2 Freeman on Judgments, 580; .State v. Fleak, 54 Iowa, 429, 6 N. W. 689; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; Davis v. Commonwealth, 13 Bush (Ky.) 318; State v. Armington, 25 Minn. 29; Fay v. Ry. Co., 196 Mass. 329, 82 N. E. 7; Smith v. Smith, 19 Neb. 706, 28 N. W. 296; Litowich v. Litowich, 19 Kan. 451, 27 Am. Rep. 145; Folger v. Ins. Co., 99 Mass. 267, 96 Am. Dec. 747. These matters were pretty thoroughly investigated and discussed in Emery v. State, supra, in an opinion by this court, and the same conclusion reached there that the writer believes to be correct and here maintains.

It will be observed, with reference to such divorce matters, that they must be governed by state laws. The acts of Congress have no force and are not applicable — I mean as applying to granting divorces. It may be further stated that the state control of these matters is limited to citizens. The courts of Texas cannot grant a divorce to citizens of' other states. There must be, not only residence, but a bona fide domicile. On this question see eases collated in 9 Am. & Eng. Ency. of Law, pp. 741, 742, in note 1. Also as to domicile being the test, see page 742r supra, and page 743, and also 7 Standard Encyclopedia & Procedure, pp. 739, 740. It may also be stated in this connection that appearance merely does not confer jurisdiction. Statutory requirements must be fully met and complied with, or the judgment is a nullity. 9 Am. & Eng. Ency. of Law, p. 746, and notes. It would be useless to follow this question as to what it takes to constitute appearance. Consent cannot confer jurisdiction. Such decrees are void. Douglas v. State, 58 Tex. Cr. R. 122, 124 S. W. 933, 137 Am. St. Rep. 930; Stuart v. Cole, 42 Tex. Civ. App. 478, 92 S. W. 1040 ; 7 Standard Encyclopedia & Procedure, 807, note 23.

Without amplifying this phase of the matter further, I turn to another line of authorities which ought to be deemed now as fully settling the question adversely to the state. Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111, where a great number of cases are collated, the opinion having been written by Presiding Judge White. Ex parte Taylor, 34 Tex. Cr. R. 591, 31 S. W. 641; Ex parte Kearby, 35 Tex. Cr. R. 531, 34 S. W. 635; Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962; Ex parte Duncan, 42 Tex. Cr. R. 661, 62 S. W. 758; Ex parte Tinsley, 37 Tex. Cr. R. 517, 40 S. W. 306, 66 Am. St. Rep. 818; Ex parte Lake, 37 Tex. Cr. R. 656, 40 S. W. 727, 66 Am. St. Rep. 848; Parker’s Case, 35 Tex. Cr. R. 12, 29 S. W. 480, 790; Juneman’s Case, 28 Tex. App. 486, 13 S. W. 783; Ex parte Snodgrass, 43 Tex. Cr. R. 359, 65 S. W. 1061. These cases lay down the proposition that three things must concur and are absolutely necessary to the jurisdiction of the court or as jurisdictional matters: First, the court must have jurisdiction of the person; second, of the subject-matter; and, third, power to render the particular judgment rendered; otherwise prosecution will be void, as will also the judgment. All of these cases hold the jurisdiction of the person is essential to the validity of the proceedings ; otherwise it is a nullity and void. This rule has been followed in Texas in all its history, commencing with Fleming v. Nall, 1 Tex. 246. See, also, Tulane v. McKee, 10 Tex. 335; Glass v. Smith, 66 Tex. 548, 2 S. W. 195; Mitchell v. Runkle, 25 Tex. Supp. 132; Horan v. Wahrenberger, 9 Tex. 313, 58 Am. Dec. 145; Thouvenin v. Rodrigues, 24 Tex. 468; Foster v. Andrews, 4 Tex. Civ. App. 429, 23 S. W. 610. In 12 Encyclopedia of Pleading and Practice, page 179, this rule is stated:

“It is an elementary principle., recognized in all the cases, that to give binding effect to a judgment of any court, whether of general or limited jurisdiction, it is essential that the court should have jurisdiction of the person as well as of the subject-matter, and that a judgment, which appears upon the face of the record to have been rendered without jurisdiction of the subject-matter or of the person, or which may be shown to have been so rendered in cases where evidence upon the question is admissible, is absolutely void, no matter in what proceeding or in what action it may thereafter be set up or relied upon.”

This is supported by a great number of cases cited in the footnotes from many of the states in the federal Union. Some of these are collated in Emery v. State, supra. This rule has been held to apply also where the court has not acquired jurisdiction of the person under necessary process or pleading, although in fact the accused was tried, citing Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Lawrence v. State, 2 Tex. App. 479. This is the settled rule where the court l>as not the authority to try the case. Cases supporting this proposition are also collated in Emery v. State, supra.

Under all these authorities the proposition may be safely asserted that, if the court had not acquired jurisdiction of the person or the subject-matter, the judgment will be void. Article 4632, Revised Statutes 1911, as amended by the Legislature of 1913 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4632), says that no judgment for divorce shall be granted in this state unless the party seeking the divorce is a bona fide inhabitant for 12 months in the state, and in the county 6 months. The evidence in this case demonstrates that appellant had not been in the state but 9 months at the time the suit was instituted; therefore the court was without jurisdiction as to his person and subject-matter, and, of course, could not render a judgment.

There is another case I might notice in this connection against the proposition that the judgment is only voidable and cannot be attacked in collateral proceedings. Ex parte Parker, 35 Tex. Cr. R. 12, 29 S. W. 480, 790. It is unnecessary to review that case at length, or to state the matters in full. Parker was tried in Nueces county and convicted of homicide; his punishment being confinement in the penitentiary for the term of his life. In that case it was held that a writ of habeas corpus could be used to attack the validity of the judgment of the court, and that it is competent, notwithstanding the recitals in the judgment, to go behind the judgment and probe into the very truth of the matter as to whether an act done during the term was in fact done during the time recited by the record. Parker had been convicted, and the contention was made on trial of the writ of habeas corpus that the verdict was rendered after the adjournment by law of the term at which he was convicted. The writ was granted, the case tried, and the matter Investigated, all of which is shown by the report of the case.

These matters I have set out a little more fully than I anticipated. One of the main questions in the instant ease turned on whether the wife of the defendant, who testified in this ease, was a competent witness against him. The majority opinion is based upon the theory that the court did not have jurisdiction — that is, appellant had not been a citizen for 12 months — and therefore the testimony of appellant to that effect before the court granting a divorce was false, and constituted a basis for perjury. If the c-ourt had jurisdiction, it was not perjury, because appellant would have lived the requisite 12 months in Texas before exhibiting his application for a divorce. The perjury is predicated on appellant’s testimony in the divorce case to the effect that he had lived in Texas the necessary statutory time in order to get the divorce. If it was true he had been a citizen of Texas as required by statute, the state has no case; there could be no perjury. The majority opinion holds that his testimony was false in showing jurisdictional facts; that the court had no jurisdiction to try the divorce case, or to entertain it, and yet it holds that the party is guilty of perjury in a proceeding over which the court had no authority or jurisdiction. If the judgment was valid, the divorce was properly granted, and the wife could testify, because no longer his wife. Her competency as a witness against her husband is predicated alone upon the proposition that appellant’s testimony was the basis of the judgment. This being true, the wife was not divorced. There could be no divorce under the facts. She still labored under the incapacity as a witness, being the wife of the accused. Objection was interposed on the trial of the perjury case for the reasons stated.' The court below should have sustained these objections, and this court should have reversed the case because the court below did not sustain objections to the wife’s competency as a witness. The wife cannot testify in Texas against her husband in perjury cases. She did not testify in the divorce case. She was not in Texas. She was in New York. The judgment is a nullity: Eirst, because the court had no jurisdiction of the person, and his voluntary appearance under all the authorities did not confer jurisdiction. Consent could not confer jurisdiction. The sine qua non was the requisite residence. In order to have jurisdiction in this case the facts must -be true that appellant had lived in Texas the necessary time. Second, it had no jurisdiction of the subject-matter. The divorce proceedings were not maintainable in the district court until the party had lived here the necessary time. The court did not have jurisdiction of the subject-matter. There was no cause of action, and none could exist until the expiration of the 12 months. And, third, not having jurisdiction of the person or subject-matter, the court was powerless to render a judgment on the facts. The authorities all sustain these propositions, so far as I am aware, and the question of the judgment being voidable does not enter into this case. It was void.

These are some of the reasons upon which I base my conclusions that the majority opinion is wrong in the affirmance.

I therefore respectfully enter my dissent.
      ^saFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes