author: FLY, C. J.

text:
    PRYOR et al. v. SCOTT.
    (No. 5967.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 30, 1918.
    Rehearing Denied Feb. 20, 1918.)
    1. Appeal and Erbob &wkey;>301 — Assignments op Error.
    An assignment of error having no basis in the motion for new trial will not be considered.
    2. Trial <&wkey;349(l) — Special Issues and Peremptory Instructions.
    In action for commission for selling land, special issues as to the commission contract and its performance, and a peremptory instruction to find for plaintiff for a certain sum less than his claimed commission, regardless of answers to special isues, were irreconcilable and antagonistic, necessitating reversal.
    3. Brokers &wkey;>66 — Liability of Owner for Assigned Share op Commission.
    Knowledge of a ranch owner that his agent for the sale of the ranch had agreed to assign half his commission to a broker to secure a buyer made the owner and his agent liable to the broker for that part of the commission upoD sale through the broker’s efforts.
    4. Brokers &wkey;>71 — Rate op Commission.
    Where a broker was to receive a commission of 2% per cent, on a sale of property for $250,-000, he was entitled, when through his efforts the property was sold for $210,000, to 2y2 per cent, commission on the latter sum, in the absence of a subsequent agreement to receive less.
    Appeal from District Court, Bexar County ; W. S. Anderson, Judge.
    Action by R. L. Scott against Ike T. Pryor and another. From judgment for plaintiff, defendants appeal.
    Reversed and remanded.
    T. F. Mangum, of 'San Antonio, for appellants. E. M. Whitaker, of El Paso, and Terrell & Terrell, of San Antonio, for appellee.
   FLY, C. J.

Appellee sued Ike T. Pryor and E. A. Hutchins to recover $5,250, which was a commission of 2% per cent, on $210,-000, the selling price of land sold by Pryor, and for which appellee procured a purchaser. It was alleged that the agreement was made by Hutchins as agent for Pryor and that it was ratified by Pryor. Appellants alleged that the 2% per cent, commission was based on a sale for $250,000, and that appellee failed to procure a purchaser at that price, and then agreed with Pryor to accept as his part of the commission the sum of $1,000. The cause was tried by jury, and upon certain answers to special issues a judgment was rendered in favor of appellee for the sum of $5,250.

The first assignment of error has no basis in the motion for new trial, and will not be considered, and, there being no merit in the'second assignment of error, it is overruled.

Upon the trial of this cause the court presented the following special issues to the jury, which were answered as indicated:

“Question No. 1: Do you find that E. A. Hutchins, as agent for Ike T. Pryor, authorized R. L. Scott to act as agent for the sale of the property known as the Nan ranch, and the cattle and stock thereon? Answer: Yes.
“Question No. 2: Do you find that E‘. A. Hutchins, as agent of Ike T. Pryor, agreed to pay R. L. Scott 2y2 Pel' cent, commission for selling the property described in question No. 1? Answer: Yes.
“Question No. 3: Do you find that R. L. Scott, as agent, was the procuring cause of the sale of the said ranch and property at a price accepted by Ike T. Pryor to W. D. Connell, S. B. Tullos, and J. B. Ely? Answer: Yes.
“Question No. 4: If you have answered No. 1 ‘Yes,’ then do you find from the evidence that the said E. A. Hutchins assigned to R. L. Scott a commission equal to 2per cent, of the purchase price? Answer: Yes.
“Question No. 5: If you have answered the foregoing question ‘Yes,’ then answer whether or not Ike T. Pryor knew of such authorization and assignment prior to the sale of the property, and knowing same, if you find he did, accepted the services of R. D. Scott. Answer: Yes.”

However, presented with the special issues was the following instruction, requested by appellee:

“Gentlemen of the jury, you are instructed to render judgment for the plaintiff for $1,000, regardless of your answer to any question.”

And in obedience to that instruction the jury returned this verdict:

“In accordance with the instruction of the court, we find for the plaintiff $1,000, without reference to our answers to the special issues.”

The court rendered a judgment for $5,250 in favor of appellee based on the answers to the special issues, thereby ignoring the instructed verdict. The occurrence is perhaps without a parallel, and the third and sixth assignments of error which are based upon a clause in the motion for a new trial, assail the judgment as being based upon contradictory and irreconcilable findings. Upon what hypothesis or theory the peremptory instruction was requested and given cannot be gleaned from the record or brief of appellee. That the special issues and peremptory instruction are irreconcilable and antagonistic is apparent. Under the peremptory instruction, the court had no authority to render judgment on the answers to the special issues, because the special instruction demanded a verdict for a certain sum regardless of the answers to the questions. The peremptory instruction means nothing or it means a total destruction of the special issues and answers thereto.

The question arises as to whether the conflict of the charges should necessitate a reversal of the judgment and remanding of the cause, or whether this court should conclude that appellee was unwilling to risk the answers of the jury, and, as it was testified by Ike T. Pryor, that he had agreed to give ap-pellee $1,000, concluded that he might jeopaiv dize that amount, and desired to make the matter certain by getting that sum, and therefore render judgment here for $1,000. We have been unable to ascertain the motive for the special instruction, and conclude that it will perhaps meet more nearly the ends of justice by remanding the cause, so that the issue of whether appellee had accepted from Pryor the sum of $1,000 as his commission may be properly submitted to the jury.

Pryor admitted that he knew that Hutchins agreed to assign one-half the commission, and this fact made him and Hutch-ins liable to appellee for that part of the commission. Pryor became liable, if there was no new contract, for the 2% per cent, commission on the lower price for which he sold the land. Hodde v. Malone, 196 S. W. 347. Pryor had, in effect, agreed to give 5 per cent, commission as he, in effect, admitted that he had so agreed. He swore:

“I knew Mr. Scott would have 2% per cent, commission on $250,000 if he was instrumental in selling land for that amount of money.”

However, if, as Pryor swore, appellee agreed to accept $1,000 as his part of the commission, he would be entitled to receive no more than that sum. Pryor testified:

“I considered that I owed $1,000, because I promised him that and he agreed to accept that for his part of the commission.”

That contract, if made, superseded all prior contracts. Appellee denied that he agreed to accept $1,000 in payment of his commissions. Pryor admitted that he owed a commission to appellee, and the only real issue was as to whether the commission was 2y2 per cent, of $210,000, or $1,000. Pryor knew of the trade made by Hutchins and acceded to it and is bound by it, unless it was set aside by a later agreement. Hutchins admits that he agreed to pay appellee 2% peí-cent. commission on a $250,000 sale, and he would be bound for that unless appellee afterwards procured a sale for a less price, and then agreed to accept $1,000 for his pay. Hutchins acted with the knowledge and consent of Pryor.

We see no impropriety in the special issues submitted by the court, and assignments attacking them are overruled.

The thirteenth and fourteenth assignments of error are overruled. The evidence offered was clearly hearsay and was properly excluded.

The evidence tends to show that the first agreement as to the commission was based on a sale to be procured for $250,000,' and ap>-pellee failed to find a purchaser at that price, but did procure one for $210,000, to whom the property was sold by Pryor at that sum. Under those circumstances appellee, in the absence of an agreement to .receive less, would be entitled to recover the per cent, agreed upon originally. Graves v. Bains, 78 Tex. 92, 14 S. W. 256; Goodwin v. Gunter (Sup.) 185 S. W. 295; Hodde v. Malone, 196 S. W. 347. But if appellee agreed to receive a less sum, of course, he is bound by it, and can recover no more.

The judgment is reversed, and the cause remanded.
      «¡^¡For other cases see same topic anfl KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HALL, J.

license: Public Domain

text:
    CROWELL & CONNER et al. v. HOWARD et al.
    (No. 1343.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 23, 1918.
    Rehearing Denied Feb. 13, 1918.)
    1. Raileoads <&wkey;69 — Right of Wat — Conveyances — Estate Acquired.
    Where a conveyance of a strip/of land to a railroad company, in consideration, of $1 and the construction of the line of railroad through the grantor’s property was in the usual form of a general warranty deed and contained the usual covenants, it vested the railroad company with title to the property, and not merely a right of way across it.
    2. Injunction <&wkey;lY2 — 'Temporary Injunctions — Dissolution—Verification of Answer..
    Where, in a suit for an injunction, defendant’s answer cpntained general and special exceptions contesting plaintiff’s right to maintain the action, and defendants also moved to dissolve the injunction on grounds among others, attacking the sufficiency of the petition to state a cause of action, and the court dissolved the injunction, after consideration of the questions of law, the order was not erroneous, though the equities of the bill were not denied under oath, as the statute requiring verification of an answer denying the allegations of a petition for an injunction does not apply to a dissolution on demurrer on full hearing.
    3. Judgment &wkey;j251(l) — Conformity to Pleading.
    Where a deed to a railroad company conveyed the fee, and plaintiffs in a suit to restrain such company from extracting oil from the right of way did not sue to reform the deed or allege fraud, accident, or mistake in the execution of the conveyance, the court could not reform the instrument, but must determine the extent of the title conveyed by the recitals in the deed.
    4. Railroads <&wkey;73(l) — Right of Way — Use of Lands Acquired.
    Where under its deed a railroad company owned the fee in a strip of land on which its road was constructed, it could not be restrained from extracting oil therefrom, notwithstanding Rev. St. 1911, art. 1164, providing that no corporation shall employ or use its property directly or indirectly for any other purpose than to accomplish the legitimate objects of its creation, or those permitted -by law to he applicable.
    Appeal from District Court, Wichita County; Edgar Scurry, Judge.
    Suit by Crowell & Conner and another against P. L. Howard and others. From an order dissolving an injunction, plaintiffs appeal.
    Affirmed.
    Kay & Akin, of Wichita Falls, and Miller & Miller, of Ft. Worth, for appellants. Martin, Bullington, Boone & Humphrey, of Wichita Falls, for appellees.
   HALL, J.

Appellants Crowell & Conner, a partnership, joined by Texas & Plains Oil & Gas Company, a corporation, instituted this suit against P. L. Howard and Weowna Oil Company, a corporation, Wichita Falls & Western Railway Company, a corporation, and Missouri, Kansas & Texas Railway Company, a corporation, joining as codefendant E. C. Schaff, the receiver of said companies, and Mason Bros., a partnership, to enjoin the appellees from boring oil wells upon the right of way of said railway companies, alleging that appellants held contracts from the owners, conveying to them all the oil under 150 acres of land, and empowering them to produce the oil therefrom. It is alleged that the defendant Weowna Oil Company is a corporation composed of employes of the Missouri, Kansas & Texas Railway Company, and that P. L. Howard is the manager of said corporation ; that Mason Bros, are drillers, holding a contract with Weowna Oil Company to drill for oil on the right of way of said companies adjoining the lands of appellants. The defendants filed an answer in which they contested by exception the right of the plaintiffs Crowell & Conner and Plains Oil & Gas Company, to maintain this action, for the reason that the petition did not show that plaintiffs had any interest in the land described in their petition; this question being raised both by general and special exception. The defendants further answered, alleging that they owned a leasehold estate in the land by virtue of a lease duly executed by the railway company through its president and receiver, C. E. Schaff. Defendants also filed a motion to dissolve the injunction upon the following grounds: First, because the plaintiffs’ petition was insufficient to show that they had a cause of action against defendants; second, because said petition is insufficient in that it does not disclose that the plaintiffs have any interest in the right of way of the defendant Wichita Falls & Northwestern Railway Company of Texas; third, because the Weowna Oil Company holds a valid oil, gas, and mineral lease from the owners of the fee of said land embracing a strip 100 feet wide and running across the Christopher Winters survey; that said land was acquired by deed from M. Dodson, conveying the fee-simple title to the same to the Wichita Falls & Northwestern Railway Company, and that the Missouri, Kansas & Texas Railway Company is the lessor and successor of the Wichita Falls & Northwestern Railway Company; that said railway companies have, through their duly authorized officers, granted to the defendant Weowna Oil Company the right to drill upon said strip of land for oil and gas, and, though it might be true that the drilling and operation of wells upon said land by defendants would draw oil from out of and from under the land leased by plaintiffs, yet defendants have the right under the law to operate such wells upon, the land and plaintiffs have no right to complain thereof. The motion to dissolve was verified by the affidavit of one of the defendants. The motion was heard, and the court, after hearing all the evidence and considering the propositions of law raised by the exceptions of defendants, entered a general order sustaining the motion to dissolve the injunction, from winch order plaintiffs have appealed.

On January 21, 1907, M. Dodson, of Wichita county, Tex., executed a general warranty deed, in. the usual form, conveying to the Wichita Palls & Northwestern Railway Company a strip of land 100 feet wide across the Winters survey in Wichita county, for the consideration of $1 paid and the further consideration of the enhanced value to the remainder of Dodson’s land by reason of the construction of the line of railway through his property. Upon its face it is a general waranty deed, containing the usual covenants, and its effect is to vest in the railway company the title to the property, and not merely a right of way across it. The company took possession of the strip of land, built a railroad on it, fenced the right of way, and has since been using it for railway purposes. On June 20, 1917, the railway companies leased said right of way to the Weowna Oil Company, empowering it to prospect for oil, gas, and other minerals. In the meantime Dodson and wife sold the remainder of the Winters tract to Drumheller & Wynne, by general warranty deed, describing the entire tract, “less the right of way of the Wichita Palls & Northwestern Railway Company.” September 25, 1909, Drumheller & Wynne sold the land to W. T. Cropper, whose widow leased it to plaintiffs, Crowell & Conner and the Plains Oil & Gas Company. Plaintiffs drilled many shallow wells adjacent to the right of way, which produced from five to ten barrels of oil daily. Mason Bros., as drillers, were employed by defendants Weowna Oil Company and Howard to drill wells on the right of way property, and were proceeding to carry out their contract when stopped by the temporary injunction.

The proposition is urged under the first assignment that the court erred in dissolving the temporary injunction, because the equities of the complainants’ bill were not denied under oath either in the answer or motion to dissolve. In Smith v. Palo Pinto et al., 60 Tex. Civ. App. 531, 128 S. W. 1193, it is held that the statute requiring verification of the answer denying the allegations of a petition for injunction does apply to a dissolution on demurrer on full hearing. As disclosed by the judgment, the court dissolved the injunction after consideration of the questions of law. This assignment is overruled.

Under the second assignment of error it is urged that the plaintiffs’ petition showed they were entitled to the relief sought because the acts of the defendant in sinking wells upon the right of way would drain the oil from plaintiffs’ land, and that the railway company’s title to the right of way did not vest them with title to the oil under the land conveyed to them. The evidence of Dodson and certain other facts shown in the record tend to prove that the contract between Dodson and the Wichita Falls & Northwestern Railway Company contemplated simply a conveyance of the right of way, rather than the fee. As stated, however, the deed, subsequently executed, conveys the fee. The plaintiffs did not sue to reform the deed, and the petition does not allege either fraud, accident, or mistake in the execution of the conveyance. Under the pleadings, therefore, we must determine the extent of the title conveyed to the railroad companies by the recitals in the deed, and cannot reform the instrument in this proceeding. Alfalfa Lumber Co. v. Mudgett, 199 S. W. 338. In Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S. W. 453, Judge Stay ton said:

“The statute confers tho right on such corporations [railways] to own the fee in lands, whether these be necessary to the operation of the company’s business -or not, though in the one case they are required to alienate them, but in the other not. There is nothing in the article evidencing an intention to take away from a railway company, so long as it owns the fee in land, the rights and powers usually incident to such ownership; and the power of the Legislature to do this may be questioned unless in a case where this may become necessary as the police regulation. Tho ownership of land, when the estate is a fee, carries with it the right to use the land in any manner not hurtful to others; and the right to- lease it to others, and therefore derive profit, is an incident of such ownership.”

While it is true, as contended by appellants, that corporations are generally restricted to the objects of their creation, and but for the language just quoted, intimating that the Legislature would have no right to limit the powers of a railroad company over land owned by it in fee, when it was not such land as the law requires it to alienate, we would hold that article 1164, providing that no corporation, domestic or foreign, doing businéss in this state, shall employ or use its property directly or indirectly for any other purpose whatever than to accomplish the legitimate objects of its creation or those permitted by law to be applicable. Article 1164, title 25, chapter 3, is part of the statutory law applying to corporations generally, and but for the holding in the Calcasieu Company Case we would not hesitate to hold as the law of this case. Judge Stayton seems not to have considered this article of the statute at the time he rendered the decision in the Calcasieu Lumber Company Case. To the same effect is the case of Stephenson et al. v. St. Louis Southern Ry. Co. of Texas, 181 S. W. 569, in which writ of error was finally refused by the Supreme Court. The case of Right of Way Oil Co. v. Gladys City Oil & Gas Co., 106 Tex. 94, 157 S. W. 737, 51 L. R. A. (N. S.) 268, and Id., 137 S. W. 171, is not authority in this case, since it is clear from the language of the deed considered in that case that an easement only was conveyed.

Finding no reversible error, the judgment is affirmed.

HUFF, C. J., not sitting, being absent in Austin with committee of judges passing on applications for writs of error.
      (JSssFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    AUSTIN v. STATE.
    (No. 4887.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Criminal Law <@=>108.6(13) — Record — Matters to be Shown — Sentence.
    The Court of Criminal Appeals has_ no jurisdiction of an appeal from a conviction for felony, where the record fails to show sentence.
    Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.
    Anderson Austin was convicted of a felony, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of

a felony, but the record fails to show sentence, which is essential to give this court jurisdiction of the appeal. Branch’s An. P. C. p. 308, § 667, and cases cited.

Appeal dismissed.


author: PRENDERGAST, J.

text:
    AUSTIN v. STATE.
    (No. 4888.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Criminal Law <@^1080(13) — Record — Matters to be Shown — Sentence.
    On appeal from a conviction for the theft of cotton seed of over the value of $50, the court has no jurisdiction, and the appeal will be dismissed, where there is no sentence in the record.
    Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.
    Anderson Austin was convicted of theft, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of the theft of cotton seed of over the value of $50, and assessed the lowest punishment on his plea of guilty.

There is no sentence contained in the record. This court, therefore, has no jurisdiction, and the case is dismissed.


text:
    CASTORENO v. STATE.
    (No. 4856.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.
    Rehearing Denied Feb. 20, 1918.)
    1. Criminal Law <@=>1081 — Notice of Ap-peai>-Time.
    Under Code Or. Proc. 1911, art. 915, as amended by Acts 34th Leg. c. 104 (Vernon’s Ann. Code Or. Proc. 1916, art. 915), relating to notice of appeal in criminal cases, notice of appeal must be given during the term, and it is immaterial that defendant’s attorney was sick, and had no hearing on a motion for new trial, which was filed in time.
    2. Criminal Law <@=>1099(5) — Approving Statement of Pacts — Time—Statutes.
    Under Code Or. Proc. 1911, art. 845, granting 30 days after a term lasting less than 8. weeks to file a statement of facts, a statement, of facts may be approved by the court within the permissive time after the term, although no order was made during the term authorizing filing thereafter.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Catarino Castoreño was convicted of murder, and he appeals.
    Appeal dismissed.
    A. B. Cowen, of San Antonio, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of murder, and his punishment fixed at confinement in the state penitentiary for a term of 25 years. The incidents of the homicide are set out in the ease of Ysabel Castoreno v. State, 200 S. W. 401, decided January 23, 1918, it being a companion ease; the state’s theory being that appellant was one of the parties connected-with the homicide there described.

The term of court at which appellant was convicted began the 6th day of August, 1917, and adjourned the 1st. day of September, 1917, being a special term called to begin and end at the dates mentioned. Appellant was sentenced on the 1st day of September, 1917. A motion for new trial was filed in due time, hut appellant’s attorney was sick, unable to be present, and no order was made on the motion. After the expiration of the term, namely, on September 10th, appellant, through his counsel, sought to have the court pass on the motion for new trial, and sought to have notice of appeal entered; no notice of appeal having been given during the term. There is a statement in the record, signed by the trial judge in vacation, dated September 10th, in which he states that, no notice of appeal having been given during the term he refused to enter one in vacation.

Article 915, O. O. P., states:

“An appeal is taken by giving notice thereof in open court at the term of court at which conviction is had, and having the same entered of record.”

This court has held a. number of times that this statute is jurisdictional, and that the failure to enter a notice of appeal during the term prevents jurisdiction of the appeal attaching in this court. See cases listed in Vernon’s C. C. P. p. 877.

The statute was amended in Acts 1915, p. 159 (Vernon’s Ann. Code Cr. Proc. 1916, art. 915), the amendment providing as follows:

“That if notice is given and-the order is not entered of record at the term at which the case was tried, the court in term time or vacation may enter an order requiring the notice to he entered of record nunc pro tunc.”

It will be noted that this amendment does not modify the principle that the notice of appeal during the term is essential, hut provides that where the notice is given during the term and there is failure to enter it, that it may tie subsequently entered of record. Tbe failure to give a notice of appeal during the term at which appellant was tried precludes this court from entertaining jurisdiction of it.

The appellant undertook to file a statement of facts, which the trial court refused to approve, upon the mistaken view that it could not be filed after the term, in the absence of an order made ditring the term authorizing filing thereafter. Article 845, C. C. P., grants SO days after a term lasting less than 8 weeks within which to file a statement of facts, and further is construed to allow 90 days within which it may be filed. See cases, Vernon’s O. O. P. p. 832.

We are precluded from reversing the case, because appellant was deprived of a statement of facts without his fault, and are also precluded from considering the statement of facts agreed to, by the absence of jurisdiction, brought about by the failure to give notice of appeal. We have read the paper, however, and it appears to relate to the identical transaction passed upon in the case mentioned above.

The appellant, however, in this case raises the issue of alibi, which was duly submitted to the jury, and decided against him.

Por the reasons stated, the appeal is dismissed.
      ©^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PARKER v. STATE.
    (No. 4564.)
    (Court of Criminal Appeals of Texas.
    June 29, 1917.
    On Motion for Rehearing, Feb. 20, 1918.)
    1.Criminal Law <@=>1092 (7) — Bill of Exceptions — Time of Piling.
    At a term beginning January 1st and ending March 30th defendant was convicted, his motion for new trial being overruled on March 12th, at which time he was accorded 60 days within which to file bills of exception. On May 11th an additional extension of 10 days was granted, a*nd on May 26th defendant obtained an additional extension of 7 days. Vernon’s Ann. Code Or. Proe. 1916, art. 744, declares that on trial of any criminal action the defendant may tender his bill of exceptions, and the judge shall sign such bill of exceptions under the rules prescribed in civil suits, while article 845 declares that, when an appeal is taken from the judgment rendered in any cause in any district or county court, the parties shall be entitled to 30 days after the date of adjournment of court in which to prepare, or cause to be prepared, and to file a statement of facts and bills of exception, and upon good cause shown the judge trying the cause may extend the time, provided that, if the term of court may by law continue more than 8 weeks, such statement of facts and bills of exception shall be filed within 30 days after final judgment shall be rendered, unless the court shall by order entered of record extend the time for filing such statement of facts and bills of exception. Held, that bills of exception which were filed on June 1st cannot be considered, the time for filing the same having expired before the entry of the order of May 26th granting 7 days’ additional time for extension.
    On Motion for Rehearing.
    2. Prostitution <@=34 — Evidence.
    While the right of one accused of crime to make bond is guaranteed, evidence in a prosecution for pandering in violation of Vernon’s Ann. Pen. Code 1916, art. 506a, that accused agreed to obtain bond for a prostitute and urged her to continue to ply her vocation, is admissible.
    3. Prostitution <§=>4 — Evidence — Admissibility.
    In a prosecution under Vernon’s Ann. Pen. Code 1916, art. 506a, for pandering, evidence that accused whipped a prostitute and required her to remain at home for the purpose of plying her vocation is admissible.
    4. Prostitution <@=4 — Evidence — Admissibility.
    In a prosecution under Vernon’s Ann. Pen. Code 1916, art. 506a, for pandering, evidence that accused made inquiries of officers who were watching the house in which a prostitute in whom he was interested lived was admissible.
    5. Prostitution <@=>4 —Evidence—Admissibility.
    In a prosecution for pandering in violation of Vernon’s Ann. Pen. Code Í916, art. 506a, evidence that accused caressed a prostitute and received money from her while she was living in a disorderly house is admissible.
    6. Prostitution <@=34^-Evidence — Admissibility.
    In a prosecution for pandering under Vernon’s Ann. Pen. Code 1916, art. 506a, denouncing the offense of persuading or coercing an inmate of a house of prostitution to remain therein as an inmate, evidence that accused while a prostitute was living at another house struck her because he did not receive money enough from her is admissible, though the charge submitted the question whether accused induced the prostitute to remain in a house of prostitution at a different address; for accused’s control over the prostitute was material, and evidence of his striking her part of the res gestee.
    7. Criminal Law <@=829(1) — Trial—Instructions.
    The refusal of special charges covered by the charge given is not error.
    8. Prostitution <@=j4 — Evidence —Sufficiency.
    In a prosecution under Vernon’s Ann. Pen. Code 1916, art 506a, for pandering, evidence held sufficient to sustain a conviction.
    9. Criminal Law <@=>555 — Weight of Evidence. ■
    In a criminal prosecution, conflicts in the testimony of the prosecuting witness go to its weight, but not its sufficiency to sustain a conviction.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Pay Parker was convicted of pandering, and be appeals.
    Affirmed.
    A. S. Baskett, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

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

The prosecution is under the pandering statute (article 506a, Vernon’s P. C.). No defects are pointed out and none discovered. The evidence which is disclosed by the statement of facts is sufficient to support the finding of the jury. The court gaye a written charge to which it appears there was some exceptions filed. It is also apparent that there are exceptions taken to matters of procedure occurring in the course of the trial. These, as well as the exceptions to the charge, appellant undertook to bring before the court by bills of exceptions. It appears, however, that owing to the delay in filing these bills we are precluded by the law from considering them. The term of court at which appellant’s trial took place began January 1 and ended March 30, 1917. His motion for a new trial was overruled March 12th, at which time he was accorded 60 days within which to file bills of exceptions. On May 11th an additional extension of 10 days was granted and on May 26th he, by motion, sought and obtained an additional extension of 7 days.

The state, through the Assistant Attorney General, in a motion filed, brings to the attention of the court the facts recited above with reference to the several dates mentioned, and calls attention to the fact that the bills of exceptions were filed on the 1st day of June, 1917, and insists that the court is required by law to ignore them. The particular contention made by the state was that the order of the court made May 26th allowing 7 additional days was not effective because on May 21st prior to the date of the order named the time for filing the bills of exceptions allowed in previous orders had expired, and that after its expiration the court lost control of the matter. Supporting this contention, the state’s counsel cites decisions of this court in Armstrong Case, 60 Tex. Cr. R. 59, 130 S. W. 1011, and Presley v. State, 60 Tex. Cr. R. 102, 131 S. W. 332. These decisions, in construing the statutes with reference to the extension of time for filing bills of exceptions (article 845, C. Cr. P.), have construed them in accord with the state’s contention, and this construction makes it necessary for us to sustain the state’s motion.

Having examined the statement of facts and such matters in the record as, under the rules, we are privileged to pass upon, and being precluded from passing upon the questions raised by the bills of exceptions (see Vernon’s C. C. P. art. 744, and notes), and there having been brought to our attention no reversible error, and no fundamental error discovered, the judgment of the lower court is affirmed.

On Motion for Rehearing.

An affirmance of this case was ordered on account of an incomplete record, which record has since been corrected in connection with the motion for rehearing, rendering it proper that the merits of the case be considered.

The conviction was for pandering, which is denounced by article 506a, Vernon’s P. O. The particular phase of the statute upon which this conviction rests is the following:

“Or any person who shall, by promises, threats, violence or by any device or scheme, cause, induce, persuade or encourage an inmate of a house of prostitution to remain therein as such inmate.”

The promises, threats, violence, device, and schemes relied upon by the state were alleged as follows:

“By then and there promising the said Mary Owens that he, the said Pay Parker, would and could protect her from the law, and promising her that he would and could make bail for her whenever arrested for a violation of the law, and that he, the said Pay Parker, would and could protect her from arrest by peace officers, and that he would watch her house and keep a lookout for peace officers in that locality.”

Mary Owens, a negro woman, was a common prostitute. She took up with appellant, and she, or he and she together, rented and occupied a house at No. 2637 Main street. Por a while another negro woman and her man stayed in the house. Mary Owens claimed to have bought them out with money that appellant gave her. She said she bought because she thought she could make more money for herself than by having other girls there with her. Appellant stayed at a saloon near by where he was accessible. She said she “hustled there” and gave the money she made to appellant; that he brought some men there; that during the month she lived in the house she was arrested a number of times, as many as four times in one week; that Mr. Hightower got her out; that she learned of Mr. Hightower through appellant, who told her he sent him to get her out; that appellant on one occasion got her out and took her home; he told her to go home and hustle, remarking, “I will get you out if you get in;” this he repeated on various occasions; that sometimes when she was arrested appellant got her out, and other times Mr. Hightower got her out. She said, “When the officers went to- pull the box at Crowdus and Elm streets, the defendant would let me know so they wouldn’t get me and I could hustle;” that appellant whipped her, and said to her, “Why in the hell don’t you quit drinking and stay at home so you can make money.” She says when she was arrested so many times that if she did not have the arrangement with appellant about protecting her and getting her out she would have left there; that she knew she had some one to get her out of jail, so she went back. She claimed to have given appellant all the money she made.

There were some contradictions in the cross-examination of this witness. One of these is stressed by appellant, the witness testifying as follows:

“Pay never did whip me to make me stay there at 2637 Main street, but he whipped me to make me stay at home and make money so I could give him a dollar or two. I did move away from 2637 Main street to 2515 Main street. He never made me any promises that he would watch the officers for me. He would tell me to go on, home and hustle, and ‘I will get you out.’ He never made any agreement of that kind that he wanted me to stay there, and if I would stay there he would make my bond.”

There was some other evidence, most of which is complained of in hills of exception. One of these refers to a statement by the witness Mary Owens that she gave appellant $5 that she had made at the corner of Growd-us and Commerce streets, and that she did not know whether the defendant required her to give him all the money she made, but that she gave it to him, and that if she did not give it to him “he got all swelled up, sore, maybe he would curse her out, say something to her.” Objection urged to this was it was immaterial and irrelevant and not charged in the indictment. The statement quoted above is with reference to the appellant whipping her because she got drunk and would not stay at home, and asking her “why in the hell she did not stay at home and make money.”

Also objection was made to evidence of the fact that Mary Owens was arrested a number of times while she lived at 2637 Main street, and the defendant made her bond and told her to go back and hustle. With reference to this appellant insists that the right to make bond is a privilege guaranteed by the Constitution, which is true, but this evidence was offered in support of an allegation that the appellant promised to make bond as an inducement to a common prostitute to continue to ply her vocation. The right of one accused of crime to make bond is guaranteed, but is different from the right of one to agree as an inducement to commit crime that he would secure release from custody after it is committed.

The other two matters referred to, we think, were not subject to the objections made. The relation of the parties, appellant and Mary Owens, and his influence over her, the delivery by her to him of money she had made in prostitution, and the fact that he whipped her because she would not stay at home, or he wanted her to stay at home and make money, appear to have been admissible upon the issues raised. We have not been cited to any authorities to the contrary.

The proof that appellant made inquiry of officers who were watching the house of prostitution in which Mary Owens lived was, we think, legitimate. Nor can we agree with the soundness, of the proposition that the case should be reversed because the witness testified he had seen appellant, while at the house at which Mary Owens lived, kiss her, and that when appellant was arrested he was at the same house.

The objection to testimony that appellant struck Mary Owens, and received money from her on several occasions while she was living in the house mentioned, was, we think, not. objectionable. It seems to have been relevant to the issues involved.

Complaint is made of proof that while Mary Owens was living at another house at No. 2515 Main street appellant had struck her because he did not get enough money from her, the contention being that it was immaterial and irrelevant, and did not support the allegation of the indictment, and was prejudicial and tended to establish another offense. The court, qualifying the bill declined to approve that part of it last mentioned; that is, he says there was no complaint that it tended to prove another offense. It does not seem to us that it does so. There is no particular house named in the indictment during the relation of appellant with Mary Owens. She lived, it seems, in more than one house at different times. His intimacy and relation and opportunity to control her were circumstances bearing upon the issues in the case. The fact that the court based his charge upon an inquiry of the jury as to whether or not appellant was guilty of inducing her to remain in a particular house at No. 2637 Main street does not, it occurs to us, show error in admitting the testimony complained of. In so far as striking her was another offense, it seems to have been admissible as part of the res gesfee, one of the means of inducing Mary Owens to remain in a house of prostitution.

Appellant requested special charges which were applicable to his defenses, and the refusal of which would not have been justified except for the fact that the trial court in its main charge to the jury embraced in an appropriate manner the same matters as those contained in appellant’s special charges.

We think the evidence was sufficient to sustain the conviction. The fact that the witness Mary Owens made some contradictory statements with reference to certain phases of the evidence went to the weight of her testimony, and is not available to sustain appellant’s contention that her evidence was as a matter of law destroyed thereby.

The motion for rehearing is overruled.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte JONES.
    (No. 4908.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    1. Habeas Corpus <&wkey;54 — Second Application— Sufficiency.
    Where accused was indicted for murder and was granted bail on his application for ha-beas corpus and a second indictment for robbery with a deadly weapon was based upon the same facts and involved the same transaction, failure to plead in the court below the identity of the transactions cannot be supplied by second application for habeas corpus in such court and an original application in the appellate court, when such applications did not contain the facts requisite to a valid second application under Code Cr. Proc. 1911, arts. 185, 219, stating the essentials of such application.

      2. Criminal Law <§=o292(2) •— Fobher Jeopardy — Necessity of Pleading.
    General rule requiring pleading of identity of transactions involved in two _ indictments would not apply, where the two indictments embraced but one act and the difference was in name only and not in fact, since the court would .iudicially know of the former proceedings on the application ■ for habeas corpus under the first indictment and pleading and proof would be dispensed with.
    3. Criminal Law <&wkey;29 — Former Jeopardy.
    It is not always true that one transaction will constitute but one offense, but the volition must be identical.
    4. Habeas Corpus &wkey;92(l) — Scope of Review.
    Where accused had been charged with murder and had been granted bail in such prosecution and was then prosecuted for robbery of the same person at the same time, his contention that the transactions were identical was available on plea of former jeopardy in the second prosecution, but not on application for habeas corpus to require the granting of bail.
    Appeal from District Court, El Paso County; W. D. 1-Iowe, Judge.
    Habeas corpus on relation of Felix R. Jones, to review a denial of bail after Ms indictment for robbery with a deadly weapon.
    Affirmed.
    M. Scarborough, Purser & Peden, and L. A. Dale, all of El Paso, for appellant. Leigh Clark, Dist. Atty., of El Paso, and E. B. I-Iendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Relator was indicted for the robbery of Thomas Lyons with a deadly weapon, and, on habeas corpus proceeding, was denied bail by the district court of El Paso county, Thirty-Fourth judicial district.

We have carefully read the statement of facts, and, omitting a discussion of the evidence in detail, express the opinion that it was such as warranted the judgment.

Relator insists, however, that he is entitled to his discharge by reason of the fact that on his indictment for the murder of Thomas Lyons he was grafted bail on his application for habeas corpus, and that the present indictment for robbery is based upon the same facts and involves the same transaction as the indictment for murder. There was no pleading in the court below touching this contention, and relator endeavors to supply this defect by second application for habeas corpus in the court below and an original application here. Neither can be considered for the reason that they are not based upon facts requisite in a second application under article 1S5 and article 219 G. C. P. The general rule requires matters of this nature to be set up in the pleading. Johnson v. State, 26 Tex. App. 631, 10 S. W. 235; Pye v. Wyatt (Civ. App.) 151 S. W. 1087; Vernon’s C. C. P. p. 22; O’Connor v. State, 28 Tex. App. 288, 13 S. W. 14; State v. Railway (Civ. App.) 165 S. W. 491.

The rule would probably not be applicable in this case for the reason that, if in fact the two indictments embrace but one criminal act and differ in name only, and not in fact, and therefore relate to the same offense, the court would judicially know the proceedings in the application for habeas corpus in the murder case, and this knowledge would dispense with pleading and proof. Foster v. State, 25 Tex. App. 543, 8 S. W. 664.

It is not always true that one transaction will constitute but one offense. Wharton’s Crim. Law, vol. 1, p. 528. “The fact that the injuries were both inflicted in one criminal transaction is not sufficient. The volition must be identical.” People v. McDaniels, 92 Am. St. Rep. 121, note, and cases cited; Bishop’s New Crim. Law, § 1051; Keaton v. State, 41 Tex. Cr. R. 631, 57 S. W. 1125; Mann v. Commonwealth, 111 Am. St. Rep. 289; Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Ashton v. State, 31 Tex. Cr. R. 482, 21 S. W. 48.

Murder and robbery are made by statute separate offenses, embodying different elements depending not necessarily upon the same facts. Where an accused is indicted by separate indictments for distinct offenses, and claims that the identity of the transaction upon which the two indictments is based is such that it constitutes but one criminal act, the courts have generally refused to make inquiry and determine the identity in a habeas corpus proceeding. This was the holding of the Supreme Court of this state in Pitner v. State, 44 Tex. 579, and in Perry v. State, 41 Tex. 488, and of this court in Ex parte Crofford, 39 Tex. Cr. R. 547, 47 S. W. 533, and such appears to be the general rule. Bishop’s New Crim. Proc. vol; 2, p. 637, § 821, subd. 2; Ex parte Ruthven, 17 Mo. 541; Wright v. State, 7 Ind. 324; Wright v. State, 5 Ind. 290, 60 Am. Dec. 90; State v. Williams, 117 Mo. App. 564, 92 S. W. 151; Church on Habeas Corpus, § 253; 21 Cyc. 309; Hovey v. Sheffner, 16 Wyo. 254, 93 Pac. 305, 15 L. R. A. (N. S.) 227, 125 Am. St. Rep. 1037, 15 Ann. Cas. 318, and note. The reason of this rule doubtless is that the decision of the question of identity often depends upon controverted facts, and involves an inquiry into the credibility of witnesses, the existence of and inferences to be drawn from circumstances, and is a character of inquiry adapted to solution by a jury. The rule does not obtain in a case where the subsequent indictment is for the identical offense upon which a previously dismissed indictment was found, and where there is no controversy as to the identity. In such a case it is held, under article 217 C. C. P., which is invoked by relator in this case, that one granted bail after indictment for murder could not be denied bail in the same case where the original indictment was dismissed and a new one found. Ex parte Augustine, 33 Tex. Cr. R. 1, 23 S. W. 689, 47 Am. St. Rep. 17. The same principle controls the decision of this court in Ex parte Davis, 48 Tex. Cr. R. 644, 89 S. W. 978, 122 Am. St. Rep. 775, where relator was granted relief against an effort, after his acquittal of a particular murder in one county, to try him on the same charge in another, There was no question of identity of offenses,

The difficulty of determining the identity of offenses, that is to say, of determining whether they embrace one volition or more, whether they exhibit the will to commit one criminal act or more, is illustrated in numerous cases found in the reports. Instance, Taylor v. State, 41 Tex. Cr. R. 564, 55 S. W. 961; Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125; Augustine v. State, 41 Tex. Cr. R. 59, 52 S. W. 77, 96 Am. St. Rep. 765; Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491; Warren v. State, 79 Neb. 526, 113 N. W. 143; Mann v. Commonwealth, 118 Ky. 67, 80 S. W. 438, 111 Am. St. Rep. 289: State v. Caddy, 15 S. D. 167, 87 N. W. 927, 91 Am. St. Rep. 666, and numerous cases cited in the note to Hughes v. Commonwealth, 31 L. R. A. (N. S.) 693, and in People v. McDaniels, 137 Cal. 192, 69 Pac. 1006, 92 Am. St. Rep. 92, and notes.

No recital of the evidence nor review of the facts will be attempted. Summarized, they show that the deceased, Thomas Lyons, resided near Silver City, N. M., and on the night of May 17, 1917, reached El Paso by appointment with relator, got into an automobile with him and another about 9 o’clock at night, and that the following day his body was found in a ravine some four miles distant, bearing upon it evidence of various blows upon the face and head, from some of which death resulted. On the habeas corpus hearing in the murder case these facts and certain circumstances tending to bring relator into juxtaposition of the homicide were introduced, but no evidence of robbery or issue thereof was involved. On the hearing to be reviewed in this appeal the same evidence as that in the murder case was introduced, and in addition thereto evidence that the deceased was robbed by the relator, one witness testifying that relator admitted that he robbed deceased and killed him, stating among other things, that he hit him with a hammer knocking him senseless, and afterwards beat him over the head with a piece of twisted iron to keep him from coming to, and then took from him what money he could find. This witness also testified that relator admitted that he had been hired and paid to kill deceased. The truth of the testimony of this witness is vigorously attacked, and much of the evidence and other circumstances are controverted. The question as to whether relator robbed and killed deceased and as to whether in doing so he acted on one volition or two, whether he committed the offense of robbery and subsequently committed the offense of murder, or did but one criminal act, the credibility of the witnesses relied upon, the inferences to be drawn from the circumstances proved as bearing upon the identity of the transaction, were questions of fact which, with propriety could be passed upon under a plea of former jeopardy in the event jeopardy should attach in the murder case, and the prosecution for robbery be afterwards pressed, but they present a condition so complex as to illustrate the wisdom of the rule hereinabove referred to, declaring that the issue of the identity of the criminal act upon which separate indictments for different offenses are founded will be available in a plea of former acquittal, former conviction, or former jeopardy, but not determined in a habeas corpus proceeding. If, however, the law requires us to compare the evidence and determine the issue as to identity, we are unwilling to hold that the trial court was not right in its conclusion that the transactions were not identical in the sense that the judgment granting bail in the murder case would be res adjudicata of his claim for bail in the robbery case.

The judgment of the lower court is affirmed.
      <S=»Fo,' other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes

      ig^nFor other cases see same topic an! KEY-NUMBER In all Key-Numbered Digests and Indexes


author: DAYIDSON, P. J.

text:
    COLEMAN v. STATE.
    (No. 4885.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    Burglary <&wkey;16 — “Principal”—Aiding and Encouraging.
    One present, aiding and encouraging others to go into a house to commit burglary, is a “principal,” although he does not go into the house.
    •[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Principal.]
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Jack Coleman was convicted of burglary, and he appeals.
    Affirmed.
    Y. D. Harrison, of Marshall, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAYIDSON, P. J.

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

There are no bills of exception in the record, nor were any exceptions reserved to the charge. The charge is criticized, however, in the motion for new trial, but nothing is presented of such a nature as could bring in review the court’s action. There is no error fundamental in its character mentioned. It is contended that the evidence is not sufficient. The state’s case places appellant in such relation to the burglary that the jury was justified in reaching the conclusion that he assisted in the burglary, and, if he did not enter the house, was present aiding and encouraging those who went in. He took the stand and testified in Ms own behalf. Even under Ms testimony, we think the facts are sufficient to show that he was a principal.

The judgment will be affirmed.
      <£te»For other oases see same topi'c and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: DAVIDSON, P. J.

text:
    WALLACE v. STATE.
    (No. 4880.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    Criminal Law <&wkey;1090(14) — Review — Instructions — Record.
    In the absence of a statement of facts or bill of exceptions, an exception to the court’s charge on circumstantial evidence will not be reviewed, unless the matter is of a very serious or fundamental nature.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    John Wallace was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    See, also, 197 S. W. 869.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of passing a forged instrument, and allotted two years’ confinement in the penitentiary.

The record is before us without a statement of facts or bill of exceptions. Exception was reserved to the court’s charge on circumstantial evidence. The' charge seems to be in conformity with the law, but without the evidence the matter would not be reviewed, unless of a very serious or fundamental nature. We think the charge is sufficient to present that phase of the law.

The judgment is affirmed.


text:
    CIRUL v. STATE.
    (No. 4872.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    1. Rape &wkey;>34(l) — Indictment—Sufficiency —“Attempt.”
    An indictment alleging that defendant did then and there attempt to ravish a female under the age of 15 years other than his wife is sufficient to charge an assault with intent to rape, for the word “attempt” is more comprehensive than the word “intent,” implying both the purpose and an actual effort to carry that purpose into execution, and hence it includes an intent (quoting Words and Phrases, Second Series, Attempt to Commit Crime).
    2. Indictment and Information <&wkey;189(5)— Aggravated Assault— Sufficiency.
    An indictment charging assault with intent to rape includes, though not describing the means used to commit the lesser offense, a charge of aggravated assault for Code Cr. Proc. 1911, art. 771, provides that, where a prosecution is for an offense consisting 'ff different degrees, the jury may find the defendant guilty of any degree inferior to that charged, while articles 772 and 837, subd. 9, respectively declare that an assault with intent to commit any felony includes all assaults of an inferior degree, and that a verdict is not contrary to law and evidence where defendant is found guilty of an offense inferior in grade to, but of the same nature as, the offense proved.
    3. Assault and Battery <&wkey;54 — “Aggbavat-ed Assault” — What Constitutes.
    Under Pen. Code 1911, art. 1022, subd. 6, declaring that an assault and 'battery becomes aggravated when the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault and battery with a whip or cowhide, an assault upon a female child in which defendant took improper liberties is an aggravated assault, being one inflicting disgrace; for the statute by specifying an assault with a whip or cowhide did not restrict its purview to those assaults.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Aggravated Assault.]
    Appeal from Criminal District Court, Harris County;. C. W. Robinson, Judge.
    . G. Cirul was convicted of aggravated assault, and he appeals.
    Affirmed.
    Guynes & Colgin, of Houston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of an aggravated assault. The indictment was in two counts. After the formal allegations the first averred:

That on September 5, 1917, appellant “in and upon Mary Checkle, a female then and there under the age of 15 years, other than the wife of the said G. Cirul, did make an assault, and did then and there attempt to ravish and have carnal knowledge of the said Mary Checkle.”

The second alleged:

That on said date G. Cirul “did by force, threats, and fraud attempt to ravish and have carnal knowledge of Mary Checkle, a female then and there under the age of 15 years, the said female not being then and there the wife of the said G. Cirul.”

In Taylor v. State, 44 Tex. Cr. R. 154, 69 S. W. 149, the indictment therein alleged:

That said Taylor did “make an assault in and upon the person of one Pearl Neylond, a female under the age of 15 years, and,, not being the wife of him, the said Gus Taylor, did then and there attempt to ravish and have carnal knowledge of the said Pearl Neylond.”

TMs court, in an opinion by Presiding Judge Davidson, expressly held that:

That indictment was “sufficient to charge an assault with intent to commit rape. The use of the word ‘attempt’ is equivalent to charging an Intent. [Curry v. State] 4 Tex. App. 574; [Mayo v. State] 7 Tex. App. 342; [Atkinson v. State] 34 Tex. Cr. R. 424, 30 S. W. 1064; [Hart v. State] 38 Tex. 383. * * * And under the authorities above it sufficiently charges an assault with intent to commit rape.”

In Runnells v. State, 34 Tex. Cr. R. 432, 30 S. W. 1065, the indictment therein alleged:

That said Runnells did “in and upon Maud Hazen make an assault, and did then and there by said assault and by violence upon said Maud Hazen, and by putting the said Maud Hazen in fear of life and bodily injury, attempt to fraudulently take from the person and possession of said Maud Hazen, without- her consent” certain property and appropriate it to his own use, etc.

The court through Judge Davidson in that ease said that it was claimed the indictment was invalid “because it was not alleged that the assault was committed with intent to commit robbery,” and held as follows:

“ ‘Attempt,’ used in the indictment, sufficiently charges ‘intent’ in setting out the offense of assault with intent to commit robbery” — and cited some authorities.

In Atkinson v. State, 34 Tex. Cr. R. 428, 30 S. W. 1004, the indictment charged that appellant therein did make an assault, etc., upon one Knox, and by putting him in fear of life and bodily injury “did attempt to fraudulently take from the person and possession of the said S. D. Knox, certain personal property,” etc. The same contention in substance was made therein as in said Runnells Case, but it was held that the word “attempt” therein embraced the same as the word “intent” and that the indictment therein was good in charging an assault with intent to rob, citing several cases. In 1 Words and Phrases, Second Series, p. 358, it is said:

“The word ‘attempt’ is more comprehensive than the word ‘intent,’ implying both the purpose and an actual effort to carry that purpose into execution. In crimes which require force as an element in their commission, there is no substantial difference between an assault with intent, and an assault with attempt, to perpetrate the offense. Smith v. State, 126 Ga. 544, 55 S. E. 475, quoting and adopting the definition in Johnson v. State, 14 Ga. 55; 2 Bish. New Cr. Proc. (4th Ed.) *80.
“The only distinction between an ‘intent’ and an ‘attempt’ to do a thing is that the former implies purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution; and, since the word ‘attempt’ embraces the full meaning of ‘intent’ with something more, it is not impossible that the courts may hold it to be an admissible substitute in an indictment. Smith v. State, 72 Neb. 345, 100 N. W. 806, 807, citing 2 Bish. Cr. Proc. *80; Atkinson v. State, 34 Tex. Cr. R. 424, 30 S. W. 1064; Runnells v. State, 34 Tex. Cr. R. 431, 30 S. W. 1065.”

Unquestionably under these authorities the first count properly charged an assault with intent to rape.

The statute (article 771, C. C. P.) provides that:

“Where a prosecution is for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher, * * * but guilty of any degree inferior to that charged in the indictment.”

The next article provides that:

“The following offenses include different degrees: * * * 2. An assault with intent to commit any felony, which includes all assaults of an inferior degree.”

Article 837, subd. 9, C. C. P., provides that a verdict is not contrary to the law and evidence where the defendant is found guilty of an offense of inferior grade to, but of the same nature as, the offense proved.

Under these statutes it has been repeatedly held by this court that an indictment for an assault with intent to rape includes all degrees of assault of the same nature. Kearse v. State (Sup.) 88 S. W. 364; Knight v. State, 48 Tex. Cr. R. 41, 85 S. W. 1067; Ward v. State, 68 Tex. Cr. R. 154, 151 S. W. 1073. See, also, Bittick v. State, 40 Tex. 120; Davis v. State, 20 Tex. App. 302; Lofton v. State, 59 Tex. Cr. R. 270, 128 S. W. 384.

In Lofton v. State, 59 Tex. Cr. R. 272, 128 S. W. 384, the contention therein was that, as the indictment did not allege that the assault was made by an adult male upon a female, the court was not authorized to submit that issue to the jury. The court held:

“Under our Code an assault with intent to murder includes all lesser degrees of personal violence, and under an indictment for assault with intent to murder the court in submitting aggravated assault to the jury is authorized to submit to the jury either ground of the statute that constitutes aggravated assault that may be developed by the testimony directly growing out of the assault charged. See Peterson v. State, 12 Tex. App. 659; Davis v. State, 20 Tex. App. 302.”

This being true, it would necessarily follow that the manner or means used to commit the lesser degree of the offense need not be alleged. This conviction was had under article 1022, subd. 6, P. O., which prescribes that an assault and battery becomes aggravated when committed under any of the following circumstances: When the instrument or means used is such as inflicts disgrace upon the person assaulted, as an assault and battery with a whip or cowhide. Under this, this court expressly held that by naming a whip or cowhide it was not intended to limit the assault by the character of instrument with which it was made, that they were merely illustrative, and that under said subdivision of said article any other means which inflict disgrace are within the meaning of the statute. And in that case the fondling of the private parts of a female and the insertion of the appellant’s finger in her vagina was held an aggravated assault (Slawson v. State, 39 Tex. Cr. R. 178, 45 S. W. 575, 73 Am. St. Rep. 914; Caples v. State, 69 Tex. Cr. R. 394, 155 S. W. 267); and it was also held that the allegations in that indictment did not bring it under subdivision 5 of said article but under said subdivision 6 (citing authorities). In this connection see, also, Robertson v. State, 30 Tex. App. 502, 17 S. W. 1068, and cases cited.

Therefore the appellant’s objection to the court’s charge wherein he submitted the offense of aggravated assault when the instrument or means used was such as to inflict disgrace upon the person assaulted, such as the indecent fondling of the private parts of a female child by a man, because the indictment did not allege that he was an adult male, cannot be sustained. The statute and the decisions establish the reverse of the contention as true.

The proof in this case shows a most aggravated assault and battery by appellant, a man, 31 years of age, on a little girl 7% years old by fondling her private parts and inserting his fingers in her vagina and vio» lently disrupting her hymen.

The judgment is affirmed.
      (gssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HUNT v. STATE.
    (No. 4776.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.
    On Rehearing, Feb. 6, 1918.)
    1. Bail <§=>70 — Appeal Bond —Who Musi Approve.
    An appeal bond filed in vacation in a criminal case must be approved by the district judge as well as the sheriff.
    On Rehearing.
    2. Criminal Daw @=>1090(13) — Matters Re-vie w able — U n verified Matters.
    Alleged improper argument of state’s counsel, not verified by bill of exceptions or certified by the trial judge, cannot be reviewed.
    Appeal from District Court, Titus County ; J. A. Ward, Judge.
    Lon Hunt was convicted of burglary, and be appeals.
    Affirmed.
    Seb F. Caldwell, of Mt. Pleasant, for appellant. E. B. Hendricks1, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

The assistant Attorney General moves to dismiss the appeal. Appellant failed to enter into a recognizance, but filed an appeal bond, which seems not to be in compliance with the law. Court adjourned on the 14th day of July. The appeal bond was filed on the 10th of August. The law requires1 that the bond shall be approved when filed in vacation, as this bond was, not only by the sheriff of the county, but also by the district judge who tried the case. The sheriff did approve the bond, but the district judge did not. In order to make it a valid obligation the judge who tried the case must approve the bond in addition to the approval of the sheriff.

The motion will be sustained, and the appeal dismissed.

On Rehearing.

On a previous day of the term this appeal was dismissed because of an insufficient recognizance. This defect has been supplied, and the case will be reinstated.

Appellant insists the judgment should be reversed because of illegitimate argument of state’s counsel. He requested charges to disregard said argument, stating as a reason in the special charges, as he does in the motion for new trial, that the evidence did not justify such remark, and in fact that there was no evidence to form the basis of the argument Had this matter been verified by a bill of exceptions, it would have presented a question for consideration. That counsel made the statement imputed to him is not certified by the trial judge, and such matters are not shown to have occurred except as stated above. In order to have matters of, this sort considered on appeal, they should be in some manner verified by the court, and because this was not done this matter will not be considered.

We are of opinion that the evidence justified the jury in finding that appellant was the party who entered the alleged burglarized house and took the property.

The judgment will be affirmed.


text:
    STUBBLEFIELD v. STATE.
    (No. 4886.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Fornication <@=>7 — Proof.
    Under Pen. Code 1911, art. 494, defining “fornication”, as the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried, the state must show that the parties were single persons.
    [Ed. Note. — For other definitions., see Words and Phrases, First and Second Series, Fornication.]
    Appeal from ICaufman County Court; J. P. Coon, Judge.
    Luther Stubblefield was convicted of fornication, and he appeals.
    Reversed and remanded.
    Huffmaster & Huffmaster, of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of fornication. This offense is defined in article 494, P. O., as follows:

“ ‘Fornication’ is the living together and carnal intercourse with each other, or habitual carnal intercourse with each other without living together, of a man and woman, both being unmarried.”

There is no evidence to the fact that either the man or the woman named in the indictment were unmarried. The absence of this proof renders the evidence insufficient to sustain the conviction. The exact question was passed upon by this court in the case of Wells v. State, 9 Tex. App. 160, which was reversed on the same point. Presiding Judge White, writing the opinion, remarks:

“To make out the case the state should have shown the parties in the language of the statute were both unmarried.”

The same disposition on the same ground was made of the case of Watson v. State, 62 Tex. Cr. R. 620, 138 S. W. 611.

The judgment of the lower court is reversed, and the cause remanded.


author: PRKNDERGAST, J.

text:
    NOBLES v. STATE.
    (No. 4891.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Assault and Battery >@=>91 — Aggravated Assault — Self-Defense—Evidence.
    Evidence held to warrant a finding that defendant in assaulting a female was not acting in self-defense.

      2. Assault and Battery <&wkey;9C(3)—Aggra-vated Assault — Self-Defense—Instructions.
    In a prosecution for aggravated assault on a female, it was error to refuse to instruct on the question of self-defense, where defendant testified that the assault was made in self-defense.
    3. Assault and Battery <&wkey;96(7)—Aggra-vated Assault—What Constitutes.
    In a prosecution for aggravated assault on a female, it was error to refuse to charge that even if defendant committed an assault, but did not use any unlawful violence with intent to injure her, to acquit him.
    4. Assault and Battery <&wkey;84—Aggravat-ed Assault—Evidence.
    In a prosecution for aggravated assault on a female, that defendant went to the female’s house a few hours after the assault and said that she had better be careful or he would bust her jaws so they would ring like a church bell was admissible to show whether he intended to injure her at the time of the assault, or struck her in self-defense.
    Appeal from Hill County Court.
    John Nobles was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Collins, Morrow & Morrow, of Hillsboro, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRKNDERGAST, J.

Appellant has appealed from a conviction for aggravated assault. The complaint and information charge an aggravated assault and battery, on the ground that appellant was an adult male and Jennie Howard, upon whom the assault is alleged to have been made, was a female. He was an adult male and she- was a female.

It is unnecessary to detail the testimony. It is sufficient to state that the testimony by Jennie Howard, who was an old negro woman, was amply sufficient to establish that appellant committed an assault and battery upon her. Upon the other hand, that the testimony of the appellant was sufficient to show that the assault and battery he committed upon her was in Ms self-defense, and with no intent to injure her. Her testimony would also go to the extent of showing that the assault and battery committed upon her by appellant was not in his self-defense, but with the intent to injure her.

The court’s charge was properly objected to by appellant in several particulars. The charge is in separate numbered paragraphs. The first tells the jury what an assault and battery is, quoting the statute. Article 1008, P. C. In the second he tells the jury what is meant by “coupled with an ability to commit,” as used in said article 1008, P. C., quoting the first two subdivisions of article 1013, P. C. In the third is quoted the third subdivision of article 1013. This paragraph of the court’s charge should not have been given, as it is wholly inapplicable to any question raised in the case. In the fourth he correctly told the jury in accordance with the statute (article 1022, subd. 5), that an assault becomes aggravated when committed by an adult male upon a female. These portions and the remainder of the charge, we think, are correct and unobjectionable so far as they go.

However, the court refused to -submit any charge at all on the subject of self-defense. In this there was error. The appellant not only objected to the court’s charge because of this omission, but asked a correct charge in his charge No. 6, which should have been given.

The court should also have given appel lant’s special charge No. 4, on the subject, iij substance, that, even if he committed an as. sault upon her, but did not use any unlawful violence with intent to injure her, or if they had a reasonable doubt of such intention, to acquit him.

Appellant himself denied any intention to injure said female in the assault he committed upon her, and her testimony and that of her two daughters is to the effect that some few hours later appellant went to her house, and she forbade him entering, and went in to get something to prevent his entry, he told her that she had better be careful or he would bust her jaws so they would ring like a church bell.' He himself testified that he went to see her on this occasion to try to induce her not to prosecute him. This testimony by her and her daughters would tend or was admissible for the purpose of showing that he did not strike her a few hours before with an innocent intention, but that he was mad at the time, and committed a battery upon her with intention to injure her.

No other questions are raised which require any discussion.

For the errors pointed out the judgment is reversed and the cause remanded.
      <c^3»Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PHILLIPS v. STATE.
    (No. 4878.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    1. Larceny &wkey;>40(9) — Name of Owner — Variance.
    That the name of the owner of a stolon calf was J. L. P. and not J. R. P., as alleged, was not a material variance.
    2. Criminal Law <S&wkey;938(2) — New Trial— Newly Discovered Evidence.
    Matters coming out on a trial of defendant in another county prior to the trial in question cannot be newly discovered evidence.
    3. Criminal Law <&wkey;564(2, 3)—Evidence-Venue.
    Evidence with regard to venue of a crime is not required to exclude reasonable doubt, and the evidence may be circumstantial.
    4. Criminal Law &wkey;>112(7) — Venue — Larceny of Cattle.
    Where a calf was stolen in one county and taken into another, the latter county may be given as the venue of the theft.
    5. Criminal Law <&wkey;1090(3)—Review—Ven-ue—Bills of Exception.
    Although under Vernon’s Ann. Code Or. Proc. 1916, art. 938, the question of venue of a crime shall not be considered unless it became a question on the trial, and is brought up by bill of exceptions, where venue was one of the contested issues and remained a part and parcel of the main trial, it is not necessary to reserve a bill of exceptions.
    6. Criminal Law <&wkey;855(4) — Misconduct 03? Jury.
    That father of complaining witness talked with officer in charge of jury while the jury was in the room is not alone sufficient to warrant a reversal.
    Appeal from District Court, Archer County; Wm. N. Bonner, Judge.
    Jodie Phillips was convicted of theft of a calf, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the theft of a calf alleged to 'belong to J. R. Prideaux. It is claimed there is a variance between the allegation and the evidence upon this name. The alleged owner testified his name was J. L. and not J. R. Prideaux. Under the authorities this variance is not considered material. The authorities will be found collated in Mr. Branch’s Ann. P. C. § 463. They lay down what seems to be the conceded and unbroken rule in this state with reference to the question.

The motion for new trial also alleges newly discovered evidence. This is met by appellant’s statements in the motion for new trial. It seems appellant had been tried in Young county for the theft of an animal belonging to Prideaux. That trial occurred prior to that in which this conviction occurred. The matters he alleges to be newly discovered all came out in the trial in Young county, and at the time he was tried in this case he was fully aware.of the fact, and was aware of it before he announced ready. This could not be newly discovered.

While the evidence is circumstantial, yet under the authorities we are of opinion the venue was sufficiently proved, and that the jury was justified in so finding. Evidence with regard to venue is not required to exclude reasonable doubt of the fact that the offense was committed in the particular county. If the property was taken in Young county and brought into Archer county, this would be sufficient. Again, our statute requires that the question of venue shall not be considered unless it became a question on the trial, and this matter must be brought up by bill of exceptions. There is an exception to this rule, however, to wit, where that was one of the contested issues on the trial and remained a part and parcel of the main trial, then it would not be necessary to reserve a bill of exceptions. The statement of facts would sufficiently show this matter without referring it to a bill of exceptions. We are of opinion, however, that the circumstances are sufficient to warrant the conclusion that the animal was either taken in Archer county, or brought into it after it had been taken, provided it was taken in Young county.

The father of the alleged owner, it is stated in the motion for new trial, came into the courtroom where the jury was and sat down to warm while the jury was in the room, and talked with the officer in charge of the jury. It is not claimed he talked to any of the jurors, or talked about the case. Unless there is something more shown than this, we would not be justified in reversing the judgment.

The judgment is affirmed.
      <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte JACKSON.
    (No. 4918.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Habeas Corpus <&wkey;4 — Grounds — Right of Appeal.
    Where defendant, who contended that his theft of a motorcar was only a misdemeanor, was convicted of a felony theft, his remedy is by appeal, and he cannot secure relief on petition for habeas corpus on the theory that under the statute he was guilty only of a misdemeanor, and that as he was tried in a court which had jurisdiction to try both felony and misdemeanor cases, and was convicted of a felony, jeopardy attached.
    2. Statutes &wkey;>141(3) — Amendment—Constitutional Provision.
    Const, art. 3, § 36, declares that no law shall be revived or amended by reference to its title, hut in such case the act revived, or the section or sections amended shall be re-enacted and published at length. Acts 33d Leg. c. 100, § 1, declares that whoever shall steal or purposely take, drive, or operate, or purposely cause to be taken, driven, or operated upon the public road, highway, or other public place, any motor vehicle, etc., without the consent of the owner thereof, shall, if the value of such motor vehicle, etc., is $35 or more, be imprisoned in the county jail for not less than six months or for more than one year, or if the value is less than that sum, be fined not more than $200 or imprisoned not more than 30 days, or both. Acts 34th Leg. e. 105 (Vernon’s Ann. Pen. Code 1916, art. 1259a), entitled “An act to amend section 1 of chapter 100 of the Acts of the Regular Session of the Thirty-Third Legislature so as to leave out the words ‘shall steal or’ in section 1,” republished the section with those words omitted. Held, that the amending statute was valid, and hence one who stole a motorcar of the value of more than $50 is subject to punishment for theft as a felony.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Ex parte application by Jesse Jackson for a writ of habeas corpus. Prom an order remanding petitioner to custody, he appeals.
    Affirmed.
    Lopp & Roberson, of Pt. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was indicted for the theft of an automobile of the value of $2,700, which was alleged to have occurred December 1, 1917. He was convicted in one of the district courts of Tar-rant county on January 21, 1918, on his plea of guilty, and his punishment assessed at four years in the penitentiary.

On January 26th before the judge of the same court in which he was convicted, he sued out a writ of habeas corpus, as we understand, under two theories: First. That the theft of an automobile, whatever the value, was merely a misdemeanor under section 1 of the act of April 2, 1913, page 187 (Vernon’s Ann. Pen. Code 1916, art. 1259a) which section was, when enacted, as follows:

“Whoever shall steal or purposely takes, drives or operates, or purposely causes to be taken, driven or operated upon the public road, highway or other public place, any motor vehicle, bicycle, buggy, carriage or other horse driven vehicle, without the consent of the owner thereof shall, if the value of such motor vehicle, bicycle, or other vehicle is thirty-five dollars ($35.00) or more, be imprisoned in the county jail for not less than six months nor more than one year, or if the value is less than that sum, be fined not more than two hundred dollars ($200.00) or imprisoned not more than thirty days, or both”

—and that the act of March 22, 1915, page 160, was unconstitutional, and did not change said act of 1913 so as to make the theft of an automobile other than a misdemeanor. Omitting section 2 of that act, which was merely an emergency section attempting to put the act in immediate effect, that act of the Legislature is as follows:

“S. B. No. 332. Chapter 105.
“An act to amend section 1, of chapter 100, of the Acts of the Regular Session of the Thirty-Third Legislature so as to leave out the words ‘shall steal or,’ in said section 1, and declaring an emergency.
“Be it enacted by the Legislature of the state of Texas:
“Section 1. That section 1 of chapter 100 of the Acts of the Regular Session Thirty-Third Legislature be and the same-is hereby amended so that same shall hereafter read as follows:
“Section 1. Whoever purposely takes, drives or operates, or purposely causes to be taken, driven or operated upon the public road, highway or other public place, any motor vehicle, bicycle, buggy, carriage or other horse driven vehicle, without the consent of the owner thereof shall, if the value of such motor vehicle, bicycle or other vehicle is thirty-five ($35.00) dollars or more, be imprisoned in the county jail for not less than six months nor more than one year or if the value is less than that sum, be fined not more than two hundred dollars ($200.-00), or imprisoned not more than thirty days, or both.”

And second, as he was tried in the district court which had jurisdiction under the law to try both felony and misdemeanor causes and was convicted of felony, when under the law he could have been convicted for only a misdemeanor, jeopardy attached, and he was therefore entitled on habeas corpus to his discharge.

Neither of his contentions can be sustained. If he had been convicted of a felony theft, and had been guilty only of a misdemeanor theft, his remedy would have been by appeal and not by a habeas corpus proceeding. See the case of Ex parte Jones from El Paso, decided by this court on the 6th inst., wherein it was held, and the authorities cited and discussed, that former jeopardy could not be heard and decided on a habeas corpus proceeding. However, his conviction for felony theft under the law was perfectly legal and valid. He was not entitled to a writ of habeas corpus nor a hearing thereunder.

The said act of 1913 did make the theft of an automobile, whatever the value, a misdemeanor only, as was held by this court in Sparks v. State, 174 S. W. 351; Howard v. State, 174 S. W. 824; and Greenwood v. State, 174 S. W. 1049. Doubtless because said act as enacted made theft of an automobile only a misdemeanor, and this court so held, the Legislature at its next regular session, by said act of 1915, copied above, expressly so amended said act of 1913 as to cut out the words therein which made theft of an automobile a misdemeanor only, whatever the value, and left the law of theft of any personal property, including an automobile of the value of over $50, a felony under the statute of theft of property of over the value of $50. Articles 1329, 1340, Pen. Code. This act of 1915 and the caption thereof meets the requirements of section 36, art. 3, of the Constitution, as has many times been held by this court and the Supreme Court. We deem it unnecessary to discuss the question. Mr. Harris, in his Annotated Constitution of Texas, collates some of these cases under said section of the Constitution, and particularly on pages 277, 278, which see.

Therefore the judgment of the lower court remanding appellant to the custody of the sheriff is affirmed.
      ©soFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    AUSTIN v. STATE.
    (No. 4889.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    Criminal Law <&wkey; 1023(11), 1086(13) — Appeal— Sufficiency of Judgment — Matters to be Shown in Record.
    An appeal from a conviction for burglary will be dismissed, where the record contains no sentence, and the judgment recites the return of a verdict finding defendant guilty and assessing his punishment “at -years in the
    penitentiary,” and provides that defendant shall be punished as determined by the jury by confinement in the penitentiary “for - years.”
    Appeal from District Court, San Jacinto ■ Cbunty; L. B. Hightower, Judge.
    Anderson Austin was convicted of burglary, and he appeals.
    Appeal dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, and allotted four years’ confinement in the penitentiary.

The record is in rattier a bad condition. It contains neither a sentence nor a judgment that can be sustained. After setting out the usual formal parts, the judgment recites that the verdict was -received by the court, “and is here now entered upon the minutes' of the court, to wit: ‘We the jury find the defendant guilty and assess his punishment at-years in the penitentiary.’ ” The judgment follows this, and says that defendant shall “be punished as has been determined by the jury by confinement in the penitentiary for - years, and that the state of Texas do have and recover,” etc.

The grounds in the motion for new trial allege that defendant was under 17 years of age and hardly responsible for his acts. A teacher states that she had him under her control at school for one term, and for want of sufficient intelligence she was not able to teach him the alphabet. It is also shown by the affidavit of the mother, and there seems to be no question of the fact so far as the motion for new trial is concerned, that the boy was practically an idiot, or at least of very low order of mentality. The court rendering the judgment in this respect adjudicates the fact that defendant is clearly under 17 years of age, and, had he been the judge who tried the case, would have disposed of it under the recent case of McLaren v. State, 199 S. W. 811. It seems, from the statement of the judge, that one judge tried it, and on account of severe illness another judge presided on the hearing of the motion for rehearing. These matters are mentioned, so that upon another trial of the case they may not occur.

The appeal will be dismissed for reasons above given.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests am? Indexes


text:
    JONES v. STATE.
    (No. 4881.)
    (Court of Criminal Appeals of Texas.
    Feb. 6, 1918.)
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    Isadore Jones was convicted of forgery and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction of forgery with the lowest punishment assessed. But there are no statement of facts nor any bills of exceptions, and no question is raised which can be reviewed in the absence of these.

The judgment is affirmed.


text:
    RUFFIN v. STATE.
    (No. 4838.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Orin Ruffin was convicted of theft, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen, for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for theft from the person, with no statement of facts and no bill of exception. In the absence of these there are no questions raised which can be reviewed.

The judgment is affirmed.


text:
    Ex parte RUSSELL.
    (No. 4901.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Habeas corpus on behalf of W. G. Russell to obtain bail. Bail was refused, and relator remanded to custody, and he appeals.
    Reversed, and bail granted.
    Hudspeth & Harper and Loa, McGrady & Thomasson, all of El Paso, and W. H. Bledsoe, of Lubbock, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Under an indictment charging relator with the murder of Charles Qualey he was arrested, and resorted to a writ of habeas corpus for the purpose of obtaining bail. Upon the trial the trial judge refused to grant him bail, and remanded him to custody.

A review of the facts in the case induces us to believe that the case is bailable, and the court was in error. There are some legal questions raised, but we deem it unnecessary to review them. In the light of the testimony, after a careful revision, we are of opinion that relator is entitled to bail, which is granted and fixed in. the sum of $25,000. Upon the execution of the bond in the terms and under the requirements of the law, the officer having him in charge will approve the bond and release him from custody.

Reversed, and bail granted.