author: HARPER, J. DAVIDSON, J.

text:
    Ex parte INNES.
    (No. 3370.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.
    Rehearing Denied Feb. 10, 1915.)
    EXTRADITION <&wkey;41 — INTERSTATE — FUSITIVE eeoíi Justice.
    Under Const. U. S. art. 4, § 2, providing that a person charged in any state with crime, who shall flee from justice and be found in another state, shall on demand of the executive of the state from which he fled be delivered up to be removed to the state having jurisdiction of the crime and Code Cr. Proc. 1911, art. 1088, declaring that a person charged in another state with crime, who shall flee from justice and be found in the state, shall on demand of the executive of the state from which he fled be delivered up for removal to that state, a fugitive brought into Texas by requisition from another state may, while in custody, be surrendered to a third state on it demanding his return for a crime committed therein.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 51-53; Dec. Dig. &wkey;41.]
    Davidson, J., dissenting.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Habeas corpus by Ida Hay Innes for her discharge from custody under a requisition warrant. From a judgment denying relief, applicant appeals.
    Affirmed.
    Swearingen & Ward and Jno. H. Bickett, Jr., all of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

This is a companion case to that of Victor E. Innes, this day decided, 173 S. W. 297, and the facts are identical. There can be no question that relator is a fugitive from justice. She is charged with crime alleged to have been committed In the state of Georgia, and she fled from that state; but it is insisted that she fled to the state of Oregon and had her residence in that state, and the Governor of that state might honor a requisition, yet the Governor of Texas could not do so, because her presence in this state is not voluntary — that she had not fled to this state for an asylum. The only question we think it necessary to discuss is, Did the Governor of Texas have authority in law ■to grant the requisition and order her to be delivered to the Georgia authorities? The record discloses that she did not come into this state voluntarily, but that, being charged with crime, alleged to have been committed in Bexar county, the Governor of Texas issued a requisition on the Governor of Oregon, who honored same, and she was in Texas by reason of being brought here on that requisition. When tried for the offense with which she was charged in Bexar county, she was acquitted. It then developed that while she was in jail in Bexar county the Governor of Texas had granted a requisition from the Governor of Georgia, and, instead of being discharged from custody, she was immediately arrested on the requisition. A writ of ha-beas corpus was sued out before Judge Anderson, who refused to release her, and ordered her turned over to the Georgia authorities ■to be conveyed to that state to be tried for the offense with which she is charged in that state. From that order relator has appealed to this court, and makes the contention that, as she was brought here from Oregon by the officers, the Governor of this state has no authority to grant a requisition.

This is a question that has been before the courts of this country but a few times, and the decisions are not entirely in harmony. Mr. Spear, in his work on Extradition, sustains the contention of relator, and bases his reasoning mainly on the wording of the United States statute, which reads as follows:

Section 5278, U. S. Rev. Stat. (Comp. St. 1913, § 10126): “Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured,” etc.

It will be noticed that this statute requires the requisition to be issued by the governor of the state from which the person has fled, and it has been held, as contended by Mr. Spear, in almost an unbroken line'of decisions, that, unless a person was in the state at the time of the commission of the offense and subsequently left that state, such person cannot be extradited under the above statute and the provisions of the federal Constitution. However, this rule of law need not he herein discussed, for it is unquestioned that relator was in the state of Georgia at the date of the alleged offense, and subsequently left that state- and went to Oregon, from which state she was brought to Texas by extradition process.

It is contended that, as this construction has been given to those words in the statute and the Constitution, the same construction ought to be given to the words “to the state to which she has fled,” and, unless one has voluntarily gone into a state, the Governor has no authority to grant a requisition. The federal Constitution contains no such qualification, and provides instead:

“A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the cause.” Article 4, § 2.

Relator admits that the constitutional provision has no clause which limits the right to honor the requisition to the chief executive of the state to which the prisoner has fled, but instead uses the words, “in which he may he found,” yet the insistence is made that this clause of the Constitution is not self-executing, and therefore we must look alone to the statute enacted thereunder, and, as this statute contains the qualifying words “to which he has fled,” the power to honor a requisition is limited to the chief executive of a state to which such person may voluntarily go.

In support of his text, Mr. • Spear cites but one authority, that of the Daniel Case, 4 Clark (Pa.) 49, which came before Judge Parsons, of the quarter sessions court in Philadelphia, in 1848, the court holding, Judge Binns rendering the decision:

“Where a defendant is brought into a state as a fugitive from justice, he cannot be surrendered to the authorities of another state as a fugitive, but must be allowed an opportunity to return to the state in which he is domiciled.”

While this is the only authority cited by Mr. Spear, yet it may be said, in support of that doctrine, the Governor of New York, in 1889, refused to grant a requisition under such circumstances. James Hope was charged with crime in New York, and the Governor of California honored the requisition of the Governor of New York. Hope was tried and convicted. After having served the term of punishment assessed, the Governor of Delaware issued a requisition and asked the Governor of New York to surrender Hope to that state to be tried for a crime for which he stood charged in that state. The Governor of New York refused to grant' the requisition, basing his ruling on that line of cases in which it was held that, where a person has been extradited from one state to another on a particular charge, he could only be tried for that offense and no other offense. This rule has never been adhered to in this state, but, on the other hand, the reverse has been specifically held in this state. In the case of Ham v. State, 4 Tex. App. 666, this court held:

“Suppose, then, as in the case at bar, he is surrendered and extradited, can he be tried for any other offense than the one for which he was extradited? Where is the prohibition? Good faith and comity leave that entirely to the discretion of the state which had the right to demand him for any crime which he committed, and which, having once rightfully obtained jurisdiction of his person, is only limited in her treatment of him to the responsibility of seeing that the same privileges and immunities which her laws would afford to one of her own citizens are extended and guaranteed to him.
“Since the able briefs, both of the learned counsel for the appellant and Attorney General Boone, for the state, were prepared in this case, this identical question here discussed was sub"mitted ‘in the matter of Noyes,’ upon habeas corpus, before the United States District Court for the District of New Jersey, May 27, 1878, and it was held that ‘a fugitive from justice, extradited, under the act of Congress, from one state in the Union, on the charge of the commission . of a specific crime, can be held by the courts of the state to which he is surrendered for trial for another and different crime.’ Nixon, J., delivering the opinion in that case, most pertinently and pointedly remarks: ‘But here a court of competent jurisdiction has the custody of a person who is charged with the commission of certain offenses against the laws of the state. The answer to the charge is that some other person has done a wrong to the prisoner by violating the laws of another state in arresting him without proper authority. In a criminal case this can hardly be reckoned a pertinent response. It is a claim on the part of the accused that his criminal violations of the law are to be condoned by his personal injuries. It is asking the court to suspend its responsible duties, to wit, the trial of offenders against the Penal Code of the state, while the persons charged with the crime are instituting preliminary investigations into the methods adopted to bring them within its jurisdiction. Such a course, for obvious reasons, is allowable in a civil suit between private litigants; but, for like obvious reasons, cannot be, and never has been, allowed in criminal proceedings, where the object of the prosecution is to punish the offender against the public.”

This rule has been adhered to in Baker v. State, 43 Tex. Cr. R. 282, 65 S. W. 91, 96 Am. St. Rep. 871; Brookin v. State, 26 Tex. App. 124, 9 S. W. 735, and has the sanction of the Supreme Court of the United States. Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687, 37 L. Ed. 549.

In 19 Cyc. 97, it is said:

“Although there has long been a conflict in the decisions of courts of the several states, it is now generally accepted that a fugitive from justice, surrendered by one state upon the demand of another, is not protected from prosecution for offenses other than that for which he was surrendered, but may be tried for any crime committed in the demanding state either before or after extradition” — citing Carr v. State, 104 Ala. 4, 16 South. 150; Lascelles v. State, 90 Ga. 347, 16 S. E. 945, 35 Am. St. Rep. 216; State v. Healy, 89 Iowa, 94, 56 N. W. 283; Commonwealth v. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R. A. 206, 35 Am. St. Rep. 475; State v. Walker, 119 Mo. 467, 24 S. W. 1011; Petry v. Leidigh, 47 Neb. 126, 66 N. W. 308; People v. Cross, 135 N. Y. 536, 32 N. E. 246, 31 Am. St. Rep. 850; State v. Stew art, 60 Wis. 587, 19 N. W. 429, 50 Am. Rep. 388; State v. Glover, 112 N. C. 896, 17 S. E. 525.

So it is seen that the rule relied on by the Governor of New York in the Hope Case (Ex. Ch.) 10 N. Y. Supp. 28, is not only contrary to the rule in Texas, but is opposed to the great weight of authority, and is even no longer the rule in New York (People v. Cross, supra), and is entitled to but little, if any, weight, in passing on the question involved in this case.

The Daniel’s Case, relied on by Mr. Spear to sustain his text, was not rendered by a court of final resort, but only a court of quarter sessions, and is entitled to only such weight ■ as its reasoning may justify. In opposition to the doctrine therein announced, we find the question of surrender to a third state was before the courts in Illinois in 1879, in the case of People ex rel. Suydam v. Sennott, 20 Albany Law J. 230:

“The facts in the ease of Sennott are that, having committed a crime in Pennsylvania, he went first to West Virginia, where he remained awhile, and then to Chicago, in the state of Illinois, where he resided for about two years. He then left Chicago and went to New York, from which state he was brought back to Illinois on a charge of crime there committed. After his return he was discharged on habeas corpus; but he was immediately rearrested on a warrant issued upon. a requisition of the Governor of Pennsylvania demanding his rendition for the crime committed in that state. An application was at once made to Judge McAllister, of the circuit court of Cook county, Ill., for the discharge of the prisoner on ha-beas corpus. The ground chiefly relied upon was that he had not fled to Illinois, but was brought there against his will. It was contended that under the act of 1793 he must have fled to Illinois. The court said that the Constitution of the United States provided for the surrender of persons ‘who shall flee from justice and be found in another state.’ The act of Congress says: ‘Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which 'such person has fled.’ The court said a point was made of the difference in language, but if the Constitution and the act differed the former must prevail. ‘It seems to me,’ said Judge McAllister, ‘to be a fair interpretation of the constitutional provisions that, the' other requisites being supplied, it is only necessary, to justify the arrest under the executive warrant, that the person should be a fugitive from the justice of the demanding state, and be found in the state where the warrant issued. I therefore do not concur in the position that the relator cannot be amenable ■ to such warrant, unless he had fled to this state, and remained here as such fugitive at the time of his arrest. Having committed the crime in Pennsylvania, and then departed the state, he is to be regarded as a “fugitive from justice,” so long as he keeps out of the state, and subject to the extradition laws, unless that state has lost its right to demand him by her own lach-es. The executive warrant in these cases is a criminal process, and when he was discharged from imprisonment under the proceedings by which he was brought here, by what rule of law, if he was here as a fugitive from justice, he could be exempt from such process, I confess myself unable to understand. The Govern- or was under no duty to return him to New York, or guarantee a safe return. He might be privileged from arrest on civil process by a well-settled rule of law, but not from a criminal one. No such privilege is known to the law. The only requisites of a case, under the Constitution and laws, are: (1) The person demanded must be charged in some state with treason, felony, or other crime. (2) He must be a fugitive from justice, because he is expressly described as one who shall flee from justice, and who is to be delivered upon demand of the executive authority of the state from which he fled. (3) He must be found in, another state than the one in which the crime is charged to have been committed.’' The court, accordingly, dismissed the writ, and remanded tho prisoner into custody. He then obtained another writ of habeas corpus from Judge Drummond, of the United States Circuit Court for the Northern District of Illinois. Judge Drummond took the same view of the matter as Judge McAllister, and Sennott was taken back to Pennsylvania.
“The same question was considered by the Supreme Court of Indiana in 1886, in the following case: A person committed a crime in Michigan and fled to Indiana, where he was arrested and held in custody from December 12, 1884, till September 12, 1885, on an indictment for a crime committed in the latter state. On December 29, 1884, the Governor of Indiana, upon the requisition of the Govern- or of Michigan, issued a warrant for the prisoner’s -arrest and rendition. This warrant was not then executed, owing to the fugitive’s being held for trial in Indiana for a crime there committed. On September 12, 1885, he escaped from jail and fled to Ohio, from which state he was brought back to Indiana by regular rendition proceedings. He w.as then held in custody until April, 1886, when a nolle prosequi was entered. He was then arrested on the warrant of rendition, and claimed that, having been brought into Indiana from Ohio by ‘extradition’ proceedings, he could not be delivered up to the state of Michigan without an opportunity to return to Ohio. The court held otherwise.”

In commenting on this case, Mr. Moore, in his work on Extradition, says:

“In so doing it laid much stress on the fact that the fugitive originally came voluntarily into Indiana, and should not by reason of his flight from the state be placed in a better position than if he had not fled. This, the court said, distinguished it from most of the other cases. The force of this reasoning may be doubted. If it be held that a fugitive cannot be permitted to derive any advantage from his flight, the rule that he cannot be tried for an offense other than that for which he was surrendered must be rejected. This rule applies only to offenses committed previously to extradition, and, practically, previously to flight. It is not doubted that a fugitive may be tried for an offense committed subsequently to his extradition. The fact that he is within the jurisdiction as an extradited person does not exempt him from obedience to the laws. But the distinction noted by the court may be thought to be open to another objection. It assumes that, in order to be a fugitive from justice, the criminal must have come voluntarily into the state from which his surrender is demanded, or have sought asylum .there. For, it is to be remembered that when he was brought into Indiana on rendition process it was from Ohio, and he could not therefore allege on that ground that he did not flee from Michigan. As a rule, proof of seeking asylum is not necessary under treaties; and it certainly is not so in rendition under the Constitution, which only requires that he shall be ‘found.’ He may be inveigled or deceived into coming into the jurisdiction, or may be there as the result of casualty. It has been held that even the employment of legal processes or of illegal violence invests him with no personal privilege which he can set up as against the demands of justice, unless, where legal processes are employed, the law confers upon him such immunity. Such immunity the court did not hold to exist in interstate rendition. On the contrary, it referred with disapproval to the case cited from Binns’ Justices, to the effect that a person delivered up by one state to another cannot be given up to a third state without having had' an opportunity to return to that which surrendered him. The court observed that that case was decided by the court of quarter sessions of Philadelphia, and was therefore of little authority, and cited against it the opinion of Chief Justice Gibson in Dows’ Case. The decision of the Supreme Court of Indiana may therefore be held to have involved the rejection of the theory that, where one of the United States obtains possession of a criminal by rendition proceedings, it holds him' for the sole purpose of trying him on the charge upon which he was given up.”

After commenting on the above cases, Mr. Moore, on Extradition (section 646), says:

“Considering the case solely from the point of view of the prisoner, of what right can it be said that he is deprived by his delivery up to a third state? It is not his right to have the question of his surrender determined by the Governor of any particular state. That question is, under the Constitution, to be determined in any state in which he may be ‘found.’ This does not mean that, having once been found in a certain state, he is entitled thereafter to have the question of his rendition for all prior offenses determined by the Governor of that state, until he shall have left its jurisdiction voluntarily. Yet this is precisely what is signified by the right of return to the jurisdiction of the surrendering state, as held to exist in extradition cases; the reason being that the fugitive, when recovered, was under the protection of the surrendering nation. This principle possesses no relevancy to the states of the United States.”

Relator also relies on the case of Hyatt v. New York, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657. In that case the question presented in this case was not involved, but the sole question presented and decided was that, Hyatt not having been in Tennessee at the time of the alleged commission of the offense charged, he was not a fugitive of justice from Tennessee — that, not having been in the state, he had not fled from it — and the question of whether one, who has fled from a state after the alleged commission of an offense and been extradited from one state to another, can then be extradited to a third state, was not discussed or mentioned. Consequently, that case cannot be held to decide any question here involved.

So far as the authorities go, we have the Daniel Case, decided by the quarter sessions court of Philadelphia, and Mr. Spear on Extradition, holding that one cannot be extradited to a third state on the one hand, and we have the cases of Suydam v. Sen-nott, decided bs^ the Illinois courts, and then by Judge Drummond of the United States Circuit Court; the case of Hackney v. Welsh, decided by the Supreme Court of Indiana, 107 Ind. 253, 8 N. E. 141, 57 Am. Rep. 101; and Mr. Moore on Extradition, holding that a person who has been brought into a state by force can be extradited to a third state.

Church, in his work on Habeas Corpus (section 472), holds:

“A fugitive brought by requisition from another state may be surrendered to a third state.”

Cyc., vol. 19, p. 99, says the rule is that:

“As a state to which a person has been illegally brought may hold him to answer for his offenses against it, it may arrest and surrender him on extradition proceedings to answer for his offenses against another state.”

And in Brown’s Case (D. 0.) 28 Fed. 553, in which case Brown had committed an offense in Pennsylvania and fled to Canada, he was induced by duplicity and fraud to go into New York temporarily, and was arrested. It was held that the Governor could and should honor the requisition of the Governor of Pennsylvania.

So it may be said that the weight of authority sustains the action of Gov. Colquitt in granting the requisition in this case, and his act was not illegal. Again, 19 Cyc. 85 says: '

“As the Constitution, however, applies only to fugitives from justice, a state may in the exercise of its reserved sovereign power provide for the surrender of persons indictable for crime in another state, but who have never fled from it.”

And this rule is supported by State v. Hall, 115 N. C. 811, 20 S. E. 729, 28 L. R. A. 289, 44 Am. St. Rep. 501, and In re Mohr, 73 Ala. 503, 49 Am. Rep. 63, and other cases, and we see no reason why such is not a sound proposition of law. Before the forming of the Union, each state was a separate and independent sovereignty, and in forming the Union they parted with only such sovereign power as was ceded to the general government — all other powers of sovereignty inherent in them was reserved to each state —and we can see no good reason why a state cannot provide for the surrender of persons charged with crime in a sister state not provided for in the cession to the federal government or in furtherance of the ceded power. Our state has provided in article 1088, C. C. P.:

“A person charged in another state or territory of the United States with treason, felony or other crime, who shall flee from justice and he found in this state, shall, on demand of the executive authority of the state or territory from which he fled, be delivered up to be removed to the state or territory having jurisdiction of the crime.”

When relator was indicted in Georgia, and the authorities of that state, ascertaining that she had fled from that state, began to look for her, they found her in Texas. To what state could or should they apply for her extradition but the state of Texas. No other state had jurisdiction of her person at that time, and no other could at that time grant extradition process. The rule stated by Mr. Spear that “as she was brought here on extradition, if she chooses to stay, here and does stay here, Georgia would have no means of getting possession of her person and bringing her to justice for an offense committed in that state,” we do not believe to be the law; for it would nullify and render ineffective the plain intent and purpose. of the states in ceding authority to the federal government the right to provide for extradition of persons charged with crime from one state to another state. It was not intended to create an asylum under circumstances from which a person charged with crime could not be extradited, but the reverse is true, that no asylum should be provided by any state or territory.

The language of our statute is in accord with the provisions of the federal Constitution, is violative of no provision thereof, and specifically grants to the Governor of this state the authority to issue the requisition whenever a person charged with crime in another state is found, within the borders of this state, and our Governor having acted in conformity with and under the authority of the statutes of this state, which are in accord with the federal Constitution, we are of the opinion he committed no error in honoring the requisition, and the relator is remanded.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). I have been unable to agree with my Brethren in the disposition of this case. They have discussed questions that are not, in my judgment, germane, and I shall pass those without discussion.

The relator was extradited from the state of Oregon to Texas at the request of the Governor of Texas to answer a charge of murder. She was brought to San Antonio, tried, and acquitted of murder. The grand jury also indicted her for conspiracy. Upon acquittal for the homicide, the conspiracy case was dismissed. She was not, however, granted her freedom, but held by order of the court to await extradition demands from the state of Georgia. Resort to writ of habeas corpus was had to obtain release. This was refused. This is a sufficient statement of the facts to discuss the questions in hand.

The only contention I purpose to discuss is based upon the fact that relator is not a fugitive from justice in Texas from the state of Georgia, because she was brought from the state of Oregon to Texas under the extradition process, that is, by the strong arm of the law, and her presence in Texas was not of her own volition or voluntary act. The federal Constitution provides:

“A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up tb be removed to the state having jurisdiction of the crime.”

• This clause of the Constitution not being self-executing (see Hyatt v. Cochran, 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657; Kentucky v. Dennison, 24 How. 66, at page 104, 16 L. Ed. 717-728; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544) Congress passed the following statute (section 5278):

“Whenever the executive authority of any state or territory demands any person as a fugitive from justice; of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive, the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the pris-9ner may be discharged. All costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.”

This case, of course, arose under this section of the Acts of Congress. There are many decisions in the United States, both federal and state, construing the congressional act from various standpoints. There are few cases, however, in point on the particular question here raised, and so far as I have been enabled to discover the case of Suydam v. Sennott, 20 Albany Law J. 230, is the main case which holds that relator would be subject to extradition under the facts of this case. Hackney v. Welsh, 107 Ind. 253, 8 N. E. 141, 57 Am. Rep. 101, is cited in support of the Suydami Oase, but in my judgment it does not support it. In the Suydam Case, as in this case, the parties were by compulsory process brought into the asylum state. The party was not there of his own volition or act. In Hackney v. Welsh, supra, the extradited party, or the party sought to be extradited, was in Indiana of his voluntary act, and that is emphasized in the opinion of Judge Elliott. In that case the party came from Michigan to Indiana of his own volition and was there arrested, and was in Indiana at the time of .the demand of the Michigan executive for his extradition. After the extradition papers reached Indiana, the party escaped from jail and went to Ohio, and was subsequently extradited from Ohio to Indiana. The court held, as he came into Indiana of his voluntary act and had escaped after papers had reached Indiana from Michigan, he was subject to extradition. So it will be plainly seen that case has but little, if any, application here. The authorities, generally speaking, are opposed to the Suydam Oase, supra, and hold that the act of the alleged fugitive coming into the asylum state must be voluntary and not by compulsion. This, as I understand, was the holding in the Indiana Oase, supra. Mr. Spear, in his work on Extradition (pages 558 to 571), reviews the cases then in existence, and criticizes sharply the opinion in the Suydam Case as being incorrect, and reaches the conclusion that, in order to authorize the extradition of the party, he must have come into the asylum state of his volition. In other words, he must have fled into the asylum state. It might be entertaining to follow the reasoning of the decisions and-of Mr. Spear, but those who desire to do so can read these authorities. I do not care to write at length in regard to the course of such reasoning. The view expressed and entertained by Mr. Spear is also to be found in Hyatt’s Case, sui>ra, in an opinion by Mr. Justice Peckham of the Supreme Court of the United States, who uses this language:

It speaks of a demand by the executive authority of a state for the surrender of a person as a fugitive from justice, by the executive authority of a state to which such person has fled, and it provides that a copy of the indictment, found, or affidavit made before a magistrate of any state, charging the person demanded with having committed treason, etc., certified as authentic by the Governor or chief magistrate of the state or territory from whence the person so charged■ has fled, shall be produced, and it makes it the duty of the executive authority of the state to which such person has fled to cause him to be arrested and secured. Thus the person who is sought must be one who has fled from the demanding state, and he must have fled (not necessarily directly) to the state where he is found. It is difficult to see how a person can be said to have fled from the state in which he is charged to have committed some act amounting to a crime against that state, when in fact he was not within the state at the time the act is said to have been committed. How can a person flee from a place that he was not in? Pie could avoid a place that he had not been in; he could omit to go to it; but how can it be said with accuracy that he has fled from a place in which he had not been present?”

If relator could not have fled from the state of the alleged crime because of his want of presence in that state, how can it be said that he fled into the asylum state when he was carried there hy the strong arm of the law without any volition on his part or against his will. The act of Congress proceeds upon the theory that the act of the party in fleeing from the demanding state and fleeing into the asylum state is voluntary. It excludes the idea of compulsion or duress. If flight is a voluntary act, then it could not be imputed to him as a voluntary act that he had been carried by the overpowering command of official authority into a state as his voluntary act. It occurs to the writer that the conclusion is irresistible that Mr. Justice Peekham’s inquiry must be answered to the effect that, before a party is a fugitive in the asylum state, or has fled to the asylum state, he must himself do so voluntarily and not be ;arried by official authority. This is compulsion and in the nature of duress. It robs a party of all volition; in fact, it is not his act. If it requires flight from the demanding state, then by the clear reading of the act of Congress it requires flight into the asylum state. The language' is the same, is used in the same sense in both instances in the act of Congress, and to the mind of the writer there seems to be no escape from the conclusion that, if it must be the voluntary act of the alleged fugitive in leaving the demanding state, it must also be his voluntary act in being in the asylum state. This is clearly the reasoning in the Indiana case, supra. It is too well understood for discussion, that words and terms are to be taken in their ordinary and accepted sense, understanding, and meaning. To avoid this the legislative authority must give the terms and words a different meaning from such common acceptation. This is a statutory rule in Texas, and seems to be the rule everywhere in civilized countries. Congress did not see proper to change the meaning of the words “flight,” “fled,” or “fugitive,” and give those words a different meaning from their ordinary acceptation. The legislative authority may give particular meaning to words, and the courts would usually have no authority to give meaning different from that embodied in the legislative act. If the act defines them different from the common acceptation, that definition will be accepted by the courts; otherwise we go to the ordinary meaning of the words, terms, or language. The clause of the federal Constitution quoted is not self-executing; therefore it took the act of Congress to put it into operation. That body was clothed with supreme authority in the matter, and in its wisdom saw proper to enact the statute quoted and prescribe the conditions upon which the extradition may occur between the states. The courts, both state and federal, are bound by the act of Congress, and should follow the intent with which it was enacted. The statute is of such character as requires it to be strictly construed. Ex parte Morgan (D. C.) 20 Fed. 298; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544. This act of Congress does not militate against the sovereignty of the states, and could not be held to do so. The comity between states is to be found in the federal Constitution, and properly enacted legislation under such delegated authority. The states of the federal Union are sovereign, and as an act of sovereignty created the federal Constitution and delegated the authority therein specified. This does not change or alter the sovereignty but emphasizes it in the state. The states clothed the federal government with authority to do this particular thing, as well as many other things. This was a solemn compact entered into by the states of the federal Union for the ulterior purpose of carrying out the will of the high contracting parties. It was intended to bring about harmonious rule of action, and Congress, enacting this legislation, did so under the authority of the states of tlie federal Union. To that extent we may say that Congress is the supreme authority, and in the sense indicated this can be said to he true, and every state in the Union stands pledged to abide the solemn compact in good faith. These provisions of the Constitution not being self-executing, it devolved upon Congress to put that clause into operation and effect, and the methods and plans devised by such legislation are and ought to be binding until Congress sees proper to change them or otherwise provide. It has said: First, that a party to become a fugitive must have -fled, from the demanding state; second, to justify the authority of the demanding state to extradite, the alleged fugitive must have fled into the asylum state. The facts in this case exclude flight into Texas by relator, and proves beyond question that she was brought here -under extradition demand. Having been freed from the accusation against her in Texas, she did not therefore become a fugitive from justice in Texas from the state of Oregon, or from the state of Georgia. Her presence in Texas was not voluntary but compulsory. I do not care to discuss a state of' ease which would have arisen had she been discharged from custody and chosen to remain in Texas as her asylum or home. This she did not and was denied the privilege or right so to do. She was under arrest and compulsion from the time she was taken in custody in Oregon on extradition demand from Texas until her arrest on the demand of Georgia, and that custody is still existent. My Brethren have injected into this case a discussion, to some extent, of the right of Texas to exercise authority over the relator for offenses for which she was not extradited. That question is not in this case. Nothing of the sort was raised, nor is it here raised. Texas had disposed of the relator as to all demands either by an acquittal of murder or dismissal of the case of conspiracy; therefore there was nothing remaining in Texas to which she might be subject to prosecution. The only question here presented and discussed is whether she had fled into Texas as an asylum after having fled from the state of Georgia. It might be entertaining to review the cases and discuss the matter more at length, but I do not deem it worth while. The language of the act of Congress is plain, and, as I understand it, needs but little comment. She was in Oregon. This language would seem all sufficiently plain and ought to control. There are authorities which might be cited, but 'the reasoning of Mr. Spear has not been answered, and, in my judgment, will not he correctly answered ; and, until the Supreme Court of the United States has authoritatively held the other way, I shall believe the act of Congress means, when it speaks of fleeing from the demanding state and “fleeing into” the asylum state, the voluntary act of the alleged fugitive, and it does not mean that by being “compelled” by force of authority to come into the state would constitute “fleeing” into the state. Whether this act of Congress should be the proper rule or not I am not concerned. As Congress has acted, such act is binding.

So believing, I cannot agree with my Brethren, and therefore most respectfully enter my dissent, believing that the relator ought to be discharged from custody.
      (g^-'Fo-r other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    Ex parte INNES.
    (No. 3369.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.
    On Rehearing, Feb. 10, 1915.)
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Habeas corpus by Victor E. Innes for his discharge from custody under an extradition warrant. ‘ From a judgment denying relief, the applicant appeals.
    Affirmed.
    Swearingen & Ward and John H. Biclcett, Jr„ all of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This is a companion case to Ex parte Ida May Innes, No. 3370, 173 S. W. 291, this day decided by the majority, in which the judgment of the district court is affirmed, remanding the relator to custody to be extradited to Georgia. I dissented in that case and deem it unnecessary to write further.

On the authority of the majority opinion in No. 3370, this judgment will be affirmed.

On Rehearing.

On rehearing I want to say that I do not agree to the opinion of the court in cause 3370, and believe rehearing ought to be granted, and relator discharged.


author: HARPER, J.

text:
    ORANGE v. STATE.
    (No. 3408.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Criminal Law <©=>991 — Judgment—Punishment — Indeterminate Sentence.
    Where defendant was convicted of murder, the judgment should have been under the indeterminate sentence law, sentencing him to the penitentiary for not less than five years nor longer .than his natural life.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2525, 2528; Dec. Dig. <©=>091.]
    2. Criminal Law <@=>770 — Instructions — Affirmative Defense.
    A reliance on a plea of not guilty, and the fact that the state does not prove guilt beyond a reasonable doubt, does not call for any other or different affirmative charges than those on the presumption of innocence and reasonable doubt. It is only where the evidence presents an affirmative defense that an. affirmative charge to acquit, if the facts are consistent with defendant’s innocence, is called for.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. <@=>770.]
    3. Jury <@=>83 — Competency — Change op Opinion.
    A juror who, in answer to the question whether, after hearing the evidence and being of the opinion that defendant should be acquitted, the fact that the other 11 jurors were for conviction would or might cause him to change his opinion and lead him to an agreement, answered, “I don’t know; I cannot say; I am afraid and believe it might,” was not subject to challenge for cause.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 400, 402-404; Dec. Dig. &wkey;83.]
    Appeal from District Court, Lavaca County; M. Kennon, Judge.
    Victor Orange was convicted of murder, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at life imprisonment in the penitentiary, and the court so passed sentence. The judgment under the verdict of the jury should have been adjudged under the indeterminate sentence law, and provided that appellant be confined in the penitentiary for a period of years not less than five nor longer than his natural life, and the judgment is so reformed, and the clerk of this court will enter the proper judgment, and certify it to the clerk of the trial court for observance.

The court gave a full, fair, and explicit charge on the law of circumstantial evidence. The charge itself is not complained of, but it is urged that in addition thereto the court should have also presented an affirmative charge:

“If from the circumstances introduced in evidence, such circumstances are consistent with the innocence of the defendant, you must acquit him, although you find that a hypothesis of guilt will account for all the circumstances proven.”

A reliance on a plea of not guilty, and the fact that the state has not proven the guilt beyond a reasonable doubt, does not call for any other or different affirmative charge than that presented by the charge on presumption of innocence and reasonable doubt. It is only where the evidence presents an affirmative defense that such a charge is called for.

The only other question presented is that the court erred in not sustaining appellant’s challenges for cause as to three of the veniremen. As Messrs. George Baur and E. Nalkemper did not serve on the jury, those two bills need not be discussed. The bill presenting the contended-for erroneous ruling as to Joe Murphy appears in a different light. Appellant, at the time the challenge for cause as to this juryman was presented, had exhausted all his peremptory challenges, and Mr. Murphy was sworn in and served as a juryman on the trial of the case, and if the challenge should have been sustained it would present such error as would necessitate a reversal of the case. Code Cr. Proc. 1911, art. 692, provides 14 grounds as challenges for cause. It is not contended that any of them exist, but it is admitted Mr. Murphy answered the questions presenting those grounds in a way that would render him a competent juror. The only complaint is that in answer to the question, if after hearing the evidence he was of the opinion the appellant should be acquitted, and the other 11 were of the opinion he was guilty, “if that fact would or might cause him [the juryman] to change your opinion as to the guilt, and lead you to agree with them in their conclusion?” The juryman answered: “I don’t know; I cannot say; I am afraid and believe it might.”

It is a matter of common knowledge, known to all mankind, that if any body of men hear the same matter, and 11 out of 12 come to the same conclusion, it ordinarily would have an influence on the twelfth man, if he was a well-balanced, reasonable man. If his opinion was firm and fixed, it might not cause him to change it, yet the mere fact that the other 11 had arrived at a different conclusion would necessarily, to some extent at least, have weight with him in reviewing the matters in his own mind, and the question propounded would elicit from a great majority of thinking citizens the answer, “It might do so,” and we all know and appreciate the fact that, if he did not so answer, such would in fact be true, unless a man was one of those who are unreasonable, hardheaded, or stubborn by nature. The jurymen are sent into the jury box to reflect over and study the testimony, and if they were to eternally stand by their first impressions there would be but few verdicts rendered by 12 men. The only question is: Was the juryman convinced of the guilt of the person at the time the verdict of guilty was rendered? If so, it reflects a true verdict. We cannot hope to exclude from the jury box all men who might be influenced by the views of their fellow man. If so, a jury would be difficult to obtain.

The judgment is affirmed.
      <@=>I?or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PREND ERGAST, P. J.

text:
    ALZALDE v. STATE.
    (No. 3403.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    Criminal Law &wkey;>1184 — Appeal—Reformation of Sentence — Conformity to Indeterminate Sentence Law.
    Where the sentence does not conform to the requirements of the indeterminate sentence law (Acts 33d Leg. c. 132), it will be reformed by the court on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. &wkey;> 1184.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Eugennio Alzalde was convicted of murder, and he appeals,
    Affirmed, with instructions to correct the sentence.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PREND ERGAST, P. J.

The appellant was convicted, for the murder of Deputy Sheriff Ortiz in Dimmit county, and his punishment assessed at 15 years in the penitentiary. It is a companion case to that of Serrato and others (171 S. W. 1133 et seq.), heretofore decided by this court. There is no statement of facts, nor any bill of exceptions, and not even a motion for a new trial in this case. There is no question whatever raised which can be reviewed.

Like several others of these eases, the judgment and sentence does not follow, as plainly required, our indeterminate sentence law. It is passing strange to us why this is not done in the court below. The clerk ought and should be required to enter the sentence in accordance with the law. The attorneys, both for the state and the appellant, should see that that is done, and why the trial judge will approve a sentence without following this law we cannot understand. Their failure to follow the law entails considerable labor upon the officers of this court to correct their manifest error, while only a few words in the sentence in the court below would be necessary to make it conform to the statute.

It is necessary in this case for the sentence to be so reformed as to comply with the indeterminate sentence law; and, so reformed, the judgment will be affirmed.
      <@=»For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes


text:
    HANDY v. STATE.
    (No. 3411.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Burglary <&wkey;46 — Trial—Instructions — Applicability to Evidence.
    Shoes were stolen from a freight car, and the state’s principal witness thereafter attempted to exchange a pair of the stolen shoes at the store of the owner. The witness asserted that he had acquired the shoes from accused, and that accused claimed to have bought them. Accused, when questioned, denied the transaction, and that he ever had possession of the shoes. Belli, that an instruction on the possession of stolen property and the reasonableness of the explanation was improper, not being warranted by the evidence; the statement, if any, made by accused in regard to his possession, having been given before his right was questioned.
    [Ed. Note. — Bor other cases, see Burglary, Cent Dig. § 47; Dec. Dig. &wkey;46.]
    2. Criminal Law 4&wkey;417— Evidence — Admissibility.
    In a prosecution for burglary, where the state relied on flight as an evidence of guilt, the sheriff could testify to his attempts to locate accused, but could not testify that another, who reported the crime, told him to look out for accused.
    [Ed. Note. — Bor other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. <&wkey;> 417.J
    Appeal from District Court, Walker County; S. W. Dean, Judge.
    Bmsy Handy was convicted of burglary, and be appeals.
    Reversed and remanded.
    Dean, Humphrey & Powell, of Huntsville, for appellant.
   HARPER, J.

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

It appears that about Christmas in 1912 a box car of the International & Great Northern Railway Company, on the side track at Huntsville, was broken open and three pairs of shoes stolen therefrom. The shoes were the property of L. M. Holman, and some days after the burglary and theft Sam Hunter carried a pair of shoes to Mr. Holman and desired to exchange them for a larger pair of shoes — one was a 6%, and the other 7%. Mr. Holman recognized the shoes as a portion of those stolen from the car, and took possession of them. Mr. Holman does not say that Sam Hunter made any explanation of his possession of the shoes at that time. . Sam Hunter testified, and admitted he carried the shoes to Mr. Holman to exchange them for a larger pair, and on the trial of the case testified he got the shoes he carried to Mr. Holman from appellant. He says that on Sunday before he carried the shoes to Mr. Holman he was at the home of appellant’s mother, and appellant borrowed $2 from him on the shoes, and was to pay hifh back $2.10 on Tuesday, and, if he did not do so, the shoes were to become his property; that appellant did not pay him the $2.10 on Tuesday ; that he tried the shoes on, and, as they would not fit him, he carried the shoes to Mr. Holman to exchange them for a pair that would fit him; that appellant told him he bought the shoi^ from Mr. Holman. It is by this witness, and this witness alone, that appellant is in any way connected with the stolen shoes, or shown to have ever been in possession of them. It will be noticed he states that, when appellant pawned the shoes to him, appellant at that time told him he had bought the shoes from Mr. Holman. Appellant denies this, and denies that he was ever in possession of the pair of shoes carried by Sam Hunter to Mr. Holman. But if appellant was in possession of that pair of shoes, and pawned them to Sam Hunter, telling him at the time he had bought them from Mr. Holman, he at that time was not charged with stealing the shoes. His possession of the shoes was not then challenged, and he was dealing with them openly as his property, for Sam Hunter says Kitty Handy, Abe Handy, Etta Bowden, and Dink Bibbs were present. He not having been charged with theft, his possession not being questioned, even if he stated he bought the shoes from Mr. Holman, would this authorize the court to charge on recent possession of stolen property, and explanation of such possession?

It is shown by the record that, after Mr. Holman had taken the shoes from Sam Hunter, defendant made no explanation of his possession of the shoes, if in fact they had been in his possession; but he at all times denied ever having been in the possession of the shoes carried by Sam Hunter to Mr. Holman. So, instead of an admission of his possession, appellant’s defense, when charged with the offense, was a denial of ever having been in possession of the property. In Branch’s Crim. Raw, § 796, it is stated that it is “error to charge on reasonable explanation when defendant made no explanation of his possession, or when challenged as to the property stated that he does not know anything about it,” citing Mayfield v. State, 23 Tex. App. 649, 5 S. W. 161; Pranks v. State, 36 Tex. Cr. R. 150, 35 S. W. 977; Wilson v. State, 34 S. W. 284; Grande v. State, 37 Tex. Cr. R. 51, 38 S. W. 613; Hopperwood v. State, 39 Tex. Cr. R. 19, 44 S. W. 841, and other cases there cited. The case of Smith v. State, 44 Tex. Cr. R. 81, 68 S. W. 510, is peculiarly in point on the facts in this case. In that case as in this, the appellant did not admit possession, but denied he had ever been in possession of the stolen property, and the court held it was error to give such a charge. And in Dobbs v. State, 57 Tex. Cr. R. 55, 121 S. W. 859, the court says:

“There was not evidence at all that appellant made any statement as to his possession of the property alleged to have been stolen, that such possession was challenged, or that the circumstances demanded or called on him for a statement, unless we may say he was called on to make a statement when offering the property for sale.”

And under such circumstances the giving of such a charge is erroneous, citing many authorities. 0

If Sam Hunter had been on trial, such a charge would have been proper, as he testifies he made an explanation when Mr. Holman challenged his possession of the shoes; but as appellant’s possession, if he ever had possession, was never challenged, and he made no explanation under such circumstances, his defense being that he never was in possession of the stolen shoes, the charge should not have been given. A charge on circumstantial evidence was all that was necessary under the evidence.

Appellant also insists that the court erred in permitting the sheriff to testify:

“I was on the lookout for Emsy Handy in connection with this box car burglary. I was gone at the time it happened, and when I came back Mr. Birmingham reported to me what had happened, and told me to look out for Emsy Handy.”

As the state was relying on the circumstance of flight to aid in showing guilt, it was permissible for the sheriff to state what efforts he had made in trying to locate appellant, but he should not have been permitted to state that Mr. Birmingham told him “to look out for Emsy Handy.” On another trial, that portion of the sheriff’s testimony will be excluded, for it is but getting before the Jury the fact that Mr. Birmingham was of the opinion that appellant was guilty of the offense, and the opinion of a person is not 'admissible under such circumstances.

The other matters raised we do not deem it necessary to discuss, as they present no error; but on account of the above matters the judgment is reversed, and the cause remanded.
      <®=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    ORTIZ v. STATE.
    (No. 3405.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Cbiminal Law <@=»1184 — Sentence—Inde-TEEMINATE SENTENCE LAW.
    Where the trial court erroneously sentenced accused, convicted of murder, to a certain term, the judgment will be reformed on appeal to comply with the indeterminate sentence law.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. &wkey; 1184.]
    2. Cbiminal Law <&wkey;1086 — Appeal — Record.
    The overruling of a motion for continuance cannot be reviewed, where the record does not show that an exception was reserved.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2770, 2772, 2794; Dec. Dig. <@==>1086.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    L. R. Ortiz was convicted of murder, and he appeals.
    Reformed and affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 15 years’ confinement in the penitentiary.

The court sentenced appellant to serve 15 years in the penitentiary, instead of applying to him the indeterminate sentence law. The judgment will be reformed, so as to read that appellant is sentenced to serve a term in 'the penitentiary of not less than 5 nor more than 15 years, and judgment will be so entered, and certified to the clerk of the trial court.

No statement of facts nor any bills of exception accompany the record. There is a motion for continuance in the record; but when it was overruled, if an exception was reserved, the record does not disclose that fact, consequently it is not presented in a way we can pass on this matter.

The judgment is reformed and affirmed.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIDSON, J.

text:
    MENDOZA v. STATE.
    (No. 3404.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    Criminal Law <@=>1090 — Record—Bills of Exception — Statement op Facts..
    Where the record contains no bills of exception or statement of facts, refusal of reguest-ed charges and denial of motion for new trial will not be reviewed.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789,2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. <@=> 1090.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Luis Mendoza was convicted of murder, and lie appeals.
    Affirmed.
    C. E. Lane, Asst.- Atty. Gen., for the State.
   DAYIDSON, J.

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

There were several special charges requested and refused, and motion for new trial made. The record is before us without bills of exception or statement of facts. The matters contained in the record are such as have been passed on in several cases recently decided, and under the authority of those cases the judgment will be affirmed.


text:
    BRUCE v. STATE.
    (No. 3378.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.
    Rehearing Denied Feb. 10, 1915.
    Dissenting Opinion Feb. 15, 1915.)
    1. Criminal Law <@=>1110 — Record—Certio-rari to Perfect Record.
    Where defendant moved for certiorari to perfect the record so as to include his motion for a new trial, and accompanied his motion with a certified copy of the motion for a new trial, the court would consider it as a part of the record, and pass thereon without having it brought up by certiorari.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2903-2917, 2919; Dec. Dig. <@=>1110.]
    2. Criminal Law <@=>622 — Trial—Right to Severance.
    The right to a severance is mandatory, but, where the court granted a severance, it was under no obligation to wait an unreasonable time for the jury to return a verdict in the cases first tried before proceeding to the trial of the others.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1380-1383, 1385, 13S6, 1388-1390; Dec. Dig. <@=>622.]
    3. Criminal Law <@=>941 — New Trial — Grounds — Cumulative Evidence.
    Where one indicted with defendant for the same robbery, and who was not a competent witness for defendant, was tried and acquitted, so as to make his testimony newly discovered evidence, his testimony on his first trial, which the court attached to the bill of exceptions, placing defendant where the state’s evidence showed that the robbery occurred, was cumulative, and not a ground for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2328-2330; Dec. Dig. <@=> 941.]
    4. Criminal Law <@=>1092 — Appeal—Acceptance of Qualified Bill of Exceptions— Effect.
    An appellant who accepts a bill of exceptions as qualified by the court is bound by the qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834^-2861, '2919; Dec. Dig. <@=>1092.]
    5. Jury <@=>72 — Summons—Sheriff’s Jury.
    Under Code Or: Proc. 1895, art. 695, requiring the court to have the sheriff summon a jury, when, from any cause, there are no regular jurors for the week from which to select a jury, the court, excusing jurors for the week because they had heard the evidence in the trial of one indicted for the same offense, and were disqualified to try defendant, properly ordered a jury summoned by the sheriff.
    [Ed. Note. — Eor other cases, see Jury, Cent. Dig. §§ 333-347; Dec. Dig. <@=>72.]
    6. Criminal Daw <@=>404 — Evidence —Corroborative Evidence!
    In a prosecution for robbery in being compelled by defendant and others to.furnish money to buy bottles of whisky, where the evidence of the prosecuting witness and his reputation for truth and veracity were attacked, whisky bottles picked up at the place of the robbery were properly admitted in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dec. Dig. <@=>404.]
    7. Criminal Daw <@=>366 — Evidence — Res Gestas — Statement of Person Robbed.
    A statement of the prosecuting witness, who went direct from the place of the assault to an ice plant about a block away and told the foreman that he had been knocked down and stabbed, showing a wound on which there was fresh blood, and his request that the foreman go with him to the police station, were admissible as part of the res geste.
    [Ed. Note. — For other cases, see Criminal Law, Cent, Dig. §§ 806, 811, 814, 819, 820; Dec. Dig. <@=>366.]
    Davidson, J., dissenting.
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    B. K. Bruce was convicted of robbery, and he appeals.
    Affirmed.
    Ben L. Cox, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

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

Appellant files a motion praying for a writ of certiorari to perfect the record, claiming that his amended motion for a new trial had been omitted from the transcript. As he accompanies his motion with a certified copy of the amended motion for a new trial, we will consider it as a part of the record, and pass thereon, without the necessity of having it brought up by certiorari.

The first ground complains that the court erred in not postponing this trial until the jury in the Dolph Gass case had arrived at a verdict. It appears that appellant and some five others were indicted in separate indictments charged with robbing one Jim Brown.' They appeared, and by proper affidavit ashed that Barney Oass be first tried, Dolpb Cass second, appellant third, and then the'others in the order named. The court granted the motion, and first tried Barney Oass, and he was acquitted. Dolph Cass was then tried, and the cause submitted to the jury on the 17th day of September. The court waited until next morning, the 18th, for the jury to return a verdict, and, they not having done so, he then called this case for trial. Appellant asked that the case be postponed until the jury in the Dolph Oass case should return a verdict. This motion was by the court overruled, to which action of the court appellant took a bill of exceptions.

Appellant cites a number of authorities holding that a right to severance in this state is mandatory. Thiá is unquestionably the law, and the court granted the severance and placed the defendants on trial in the order requested, but we do not think the court was under obligation to wait an unreasonable time for the jury to return a verdict in the cases first tried. It has been frequently held that, where the court grants a severance as requested and places the defendants on trial in the order requested, he does not have to await the final determination of the case first tried before he proceeds with the trial of the others. Myers v. State, 7 Tex. App. 645; Krebs v. State, 8 Tex. App. 26.

It further appears that after the trial of this case and verdict returned, the jury in the Dolph Cass case having failed to arrive at a verdict, it was discharged, and Dolph Gass again placed on trial on September 21st. He was acquitted on the second trial. While there was no error in the court refusing to postpone this case until the jury had returned a verdict in the Dolph Cass case, yet, as he was subsequently acquitted during the same term, his testimony would be in the nature of newly discovered testimony, as he was not a competent witness at the time of the trial, and, if his testimony was of a nature to be beneficial to the defense of defendant, he would be entitled to a new trial. No affidavit of Dolph Cass is in the record as to what he would testify in this case; the only thing being in the record is that the court ordered his testimony on his first trial attached to the bill of exceptions to Ms overruling the motion to postpone this ease, the court saying:

“The court refuses to delay this trial as requested by counsel, for the reason that in the ease wherein the jury is now out said Dolph Cass testified fully, and the court here now makes all of said testimony a part hereof; which testimony of said Dolph Cass shows that he, the said Dolph Cass, was not present at the time the witness Jim Brown was assaulted, if he was assaulted, and could not have known of any facts that took place at that time if there was such an assault, and that said testimony could not in any way benefit the defendant B. K. Bruce on this trial, reference being made to all of said testimony of record in said Dolph Cass case, which is made a part hereof.”

We have read this testimony, and we find that Dolph Cass testified, after reciting some incidents:

“When that occurred I said something to Bonnie. I told Bonnie, ‘Let’s go.’ I says, T don’t want to fool with that old crazy nigger,’ and I commenced to walk on off, because I have been here about 14 years and never paid a fine, and never been before no court, and I didn’t want to be arrested, and I told Bonnie, ‘Let’s go.’ I says, ‘Don’t fool with that old crazy nigger;’ and after I got on out, and I says, ‘You better come on,’ and he came on, and we left from there and came on down by Joe Davis’ around by the compress, and come on straight up this street, and went to the Metropolitan Café and got two sandwiches and two cups of coffee from Mr. Keegan, the night waiter, and eat them. I got them on a credit. And we were over there about — I don’t know; we stayed there anyhow until about 6 o’clock, and I came on back down here to work at the' shop. I left Gus Wells down there and B. K. Bruce aud John. Crawford and that fellow Brown and Jim Wimras. There were five of them. I did not go back down there any more. I came from the Metropolitan Café to the barber shop where I was at work.”

It will be seen that Dolph Cass testified he had left before tbe robbery is said to have occurred, and did not go back, and he places appellant at the place where the state’s evidence showed the robbery did occur. Under such circumstances, appellant is not entitled to a new trial to secure his testimony.

In the next bill appellant complains that he was, without his consent, forced to go to trial before a jury summoned by the sheriff, and not the jury drawn for the week. The bill discloses that all the jurymen drawn for the week were used in the two companion cases first tried, except five, and these five had been excused by the court. The court, in approving the bill, says that during the first trial he had requested all jury men not impaneled on that case to remain out of the courtroom, and they had done so, but during the second trial the five not accepted op that jury remained in the courtroom and heard the evidence and were disqualified, and for this reason he had excused them. Appellant accepts this bill as thus qualified and is bound by the qualification. Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 501; Levine v. State, 35 Tex. Cr. R. 647, 34 S. W. 969; Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368. As qualified by tbe court, the bill presents n'o error, for article 695 of Code Cr. Proc. 1S95 authorizes and requires the court to have the sheriff to summon a jury when, from any cause, there are no regular jurors •for the week from which to select a jury.

In the third bill it is contended that the court erred in permitting certain whisky bottles to be introduced in evidence., The state’s prosecuting witness testified to having voluntarily furnished the money with which to procure the first bottle of whisky, and that he was compelled by defendant and the others to furnish the money to buy the remaining bottles of whisky. The whisky bottles were picked up at the place where the witnesses agree the game of craps took place that night. The appellant introduced witnesses to proye that the reputation of the prosecuting witness for truth and. veracity was bad. They also denied that any whisky was purchased that night, but said that drinks were taken out of a bottle that the prosecuting witness had with him. Taking the labels on the bottles and other circumstances in the case, these bottles tended to corroborate the evidence of the prosecuting witness, and, his reputation for truth and veracity having been assailed, there was no error in admitting the testimony, for the evidence in regard to the whisky was so entwined with the robbery transaction as to make it all a part of one transaction.

The only other bill of exceptions in the record complains of the action of the court in admitting the testimony of the witness Majors. This witness testified:

“I remember the occasion along about the middle of August of this disturbance down here in nigger town. I was at the light plant that morning. I was not night watchman at the ice plant; I was fireman. 1 was working there at night I was there about 4:30 or 5 o’clock in the morning. I saw this one-armed nigger, Jim Brown, that morning. He came to me some-wheres between 4:30 and 5 o’clock; somewheres right along about that time. He came in the plant walking pretty fast. From his manner and conduct there he was pretty badly excited, and I think he was drinking some from his breath. He had a wound right here on his thigh somewhere; I don’t know just how much. There was a little bit of fresh blood on it. He made a statement there to me. He said that he had been knocked down and stabbed right there, and he stopped right there close to the door by me, and I examined him, and he pulled down his pants, and there was a little place — fresh blood right along here, somewhere on his thigh. He said they had knocked him down and robbed him.”

He further testified that the negro said he was afraid to go to the police station by himself, and asked him to go with Mm. The court, in approving the bill, says:

“Same was clearly res gestee, the evidence being uncontroverted that the scene of the alleged assault was only about a block from the ice .plant where said Majors was working; that said witness Brown ran from the scene of said alleged assault hurriedly to said ice plant, and in an excited, scared condition related to Majors what had taken place; that he was still scared .and excited when said Majors left him on his way to the police station.”

Appellant contends that we should not consider this qualification; he contending that .there is nothing in the evidence to show that the ice plant was only one block away. Of course, as qualified, the evidence would be admissible, but if we should ignore the qualification, the record would show it to be res gestee of the transaction. The assaulted party testified he went direct from the place of the assault to the plant and told .Majors, and asked him to go to the police station with him, and Majors’ testimony shows that the negro was excited and bleeding from his wound in the thigh. The entire record discloses that it could have been but a few minutes time from the time of the alleged assault until he appeared at the light plant and had the conversation with Majors, and the court did not err in holding th§ testimony res gestee of the transaction.

There are no other grounds in the amended motion other than as presented tn these four bills of exception, and, as they nor either 'of them present error, the judgment is affirmed.

DAVIDSON, J.

(dissenting). When the case was called for trial appellant filed an affidavit for a severance. It was agreed among the parties and recognized by the court that Oass should be tried first. He was placed upon trial, and the jury retired. The case against appellant was called over his protest. He asked the court to postpone his trial until the jury in the Oass case had returned a verdict. There was no continuance sought, and there was none necessary, and the request would not have continued the case. The court overruled the motion, and put appellant upon trial for robbery. This was error which ought to have reversed this judgment. For collation of authorities see Branch’s Crim. Law, § 742. The court says, in substance, the reason he did this was that he heard Cass testify in his trial, and he would not have testified as appellant insisted he would testify. Cass testified on the trial that he did not participate in the robbery. That much at least is shown by the court by appending Cass’ testimony to tbe bill. The theory of the state was that appellant and several others, among whom was Oass, participated in the robbery, and it was done in pursuance of a conspiracy and acting together. \ If Oass had testified that he did not participate in the -robbery and was not present and bad nothing to do with it, then that part of the state’s case, if Oass was telling the truth, would necessarily fail. This would have within itself been important testimony to the defendant, but it is asserted by appellant that he would testify favorably to defendant; that he (defendant) did not participate in it I am not stating the details, but the substance. Mr. Branch lays this rule down tersely and correctly:

“If request for severance, properly made, is overruled, the statement of facts will not be looked to in passing upon the question as to whether the court erred. King v. State, 35 Tex. Cr. R. 472 [34 S. W. 282]; Anderson v. State, 56 Tex. Cr. R. 367 [120 S. W. 462].”

He also says:

“The defendant is entitled to a severance as an absolute right, when statute is complied with” — citing King v. State, supra; Dodson v. State, 32 Tex. Cr. R. 529, 24 S. W. 899; Willey v. State, 22 Tex. App. 413, 3 S. W. 570; Shaw v. State, 39 Tex. Cr. R. 174, 45 S. W. 597.

The record further shows that Oass was acquitted, but on a subsequent trial, and, in fact, it seems from tbe record all tbe defendants were acquitted except appellant. Because the trial court comes to the conclusion that the witness may not swear as the defendant thinks he will, or to facts which, in the judgment of the court, would not be sufficient to meet the state’s case, does not authorize him to refuse the severance and force the defendant upon his trial in the face of a request. The jury is the body that tries the defendant on the facts. The court is not authorized, to take away these mooted issues from the jury and decide them himself, and sustain his action in refusing the severance. He may not believe the witness; he may not believe the cogency of the testimony ; yet if the facts are material, and the jury does believe them, then it is error to refuse the _ severance, or, having granted the severance, then to change it without the consent of the defendant as to the order of trial. Looking at this' case from either standpoint, that set out by the court (to wit, that Gass testified he did not participate in the robbery), or from the standpoint of the defendant (that Cass would testify that he, defendant, did not participate in the robbery), either view of the testimony would be beneficial to the defendant. Where the state relies upon a conspiracy or agreement to do a thing between certain parties, and one of those parties testified this was not true, and he did not participate in it, and had nothing to do with it, it is a direct and serious attack upon the state’s theory of conspiracy. Of course, if Cass would testify, which is asserted by appellant in his bill of exceptions, that appellant did not participate in the robbery and had no connection with it, it would be of the utmost importance. So, whether we look at it from the standpoint of the court’s statement or the standpoint of the defendant, this evidence was material. Any fact or circumstance which disproves or tends to disprove the state’s theory, or attacks it from any material standpoint, is essentially a material fact; and it is- also shown that the other defendants were acquitted. If all the defendants were acquitted, except the defendant, and the state’s case was conspiracy, and this evidence was introduced to show that- those witnesses may have been very important to the defendant, because, if none of them engaged in the conspiracy for which the state contended, then the state’s whole case was attacked, and from a most serious standpoint.

There is another question. When defendant’s case was called for trial, and the court overruled his motion to postpone to await the verdict in the Cass case, it seems there were 5 jurors of the regular panel who were not sitting in the Cass ease. The court of his own motion excused these jurors from attendance on this case and over the objection of the defendant. He says he did so because the jurors had heard the testimony in the Cass case. That was his statement. It seems, however, there was other testimony to the effect that they were not in the courthouse; therefore did not hear it. If they had heard the testimony, this may or may not have disqualified them. If from hearing the evidence in the Cass case they had made up their minds, or had reached the conclusion that appellant was guilty, then they could have been challenged for cause by the defendant. If they had reached the conclusion that he was not guilty, then they would be subject to challenge by the state. What their conclusion about it is, if they had any, is not shown. The court simply excused them peremptorily of his own motion from attendance on the court, or rather as jurors in the case, over the objection of defendant. I do not understand that the court had this authority. They were regular jurors, and, if the defendant had shown they were disqualified in any way, then the court could have acted upon it; but the court not only did this under the circumstances, but he immediately ordered the sheriff to bring in 22 jurors from whom to select a jury to try the defendant. What conclusion these 5 jurors excused by the court of his own volition, or on his own motion, had reached, is not shown, if they had any. It may have been favorable to the defendant, inasmuch as the jurors in the previous eases had acquitted the other defendants. The judge assigns as the reason for excusing them from sitting on the case that they had heard the testimony in the other case, but this seems to be a controverted fact; and it may be said, under the authority of Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 149, that this qualification of the judge ought not to be considered. This was an independent fact which, if he desired to testify about it, he should have taken the witness stand. It is not one of those matters that he is authorized to insert in his qualification .to the bill. I do not care to amplify these matters further.

Without going into the other questions suggested for reversal, I have thought it expedient' that I should at least say this much in protest of the affirmance of this judgment.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes