text:
    JONES v. STATE.
    (No. 3343.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1914.)
    Larceny (§ 55*) — Prosecution—Evidence— Sufficiency.
    In a prosecution for cattle theft, evidence held to support a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164,165, 167-169; Dee. Dig. § 55.*]
    Appeal from District Court, Cherokee County; L. D'. Guinn, Judge.

      Ben Jones was convicted of cattle theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

There were only two questions presented in the motion for new trial, and the only bill of exceptions reserved was to the action of the court overruling said motion. No exception was taken to the charge. There are two theories presented by the testimony: That for the state was to the effect that defendant either by himself, or in conjunction with his father, committed the theft. That for the defendant is that the witness Bud Henry committed the theft. Henry testified, for the state, that appellant employed him to assist him in taking the animal from appellant’s house to Dialville, where the animal was sold. Upon reaching that point Henry proposed to sell the animal to Mr. Spivey. Spivey offered to purchase, provided Henry would let the value of the animal go on an indebtedness due from Henry to Spivey. This Henry declined; said he wanted the money with which, among other things, to purchase fertilizer. Appellant was with Henry at the time and heard this conversation. They left the store, but later returned. Appellant then offered to sell the animal to Spivey. 'Spivey offered to give $9.50, instead of $10 asked. Appellant agreed to take this. Spivey sold the animal to another gentleman in the town for $10, took the check in his own name, collected the $10, and paid appellant $9.50, reserving 50 cents. Appellant and Henry then left town. Appellant says he gave Henry the $9.50, out of which Henry paid him $1 for his assistance. Appellant’s testimony is to the effect that Henry had the animal, and came by his house with it and employed him, paying him $1 to assist him (Henry) ■ in carrying the animal to Dialville, where the sale occurred, and that when he received the $9.50 he turned it over to Henry, who paid him $1 for his services. Henry also testified that appellant employed him, and that, when he went to appellant’s house with a view of assisting him in carrying the animal to Dial-ville, it was in the lot of appellant’s father; that they carried it to Dialville, where it was sold. There is evidence rather tending to show that appellant knew the animal before it was carried to Dialville. It is unnecessary to go into further details.

The issue was squarely presented of appellant’s connection with the taking, as well as the disposition, of the animal. Appellant’s contention is that Henry stole the animal and he assisted him in driving it to Dialville. This, of course, would not make appellant guilty of theft, unless he was connected with the original taking. He denies taking the animal, and swore that Henry did. The testimony is circumstantial showing his connection with the original taking inasmuch as Henry does not connect him directly with the original taking, but only with the possession at the time Henry became connected with it. Of course, some one may have taken it beforehand and turned it over to appellant, if Henry’s testimony is correct as to finding appellant in possession. The court submitted these matters to the jury to the satisfaction, we suppose, of appellant, as there were no exceptions reserved to the charge. Among other things, the court instructed the jury they could not convict appellant, unless he was connected with the original taking as a principal. He also instructed the jury as to the relation of Henry to the transaction as that of an accomplice. While the evidence as to the taking is circumstantial, yet, in view of all the facts, we are of opinion that the verdict is warranted by the facts.

The sufficiency of the evidence being the only question presented, we are of opinion that we would not be justified in reversing the judgment for this reason; therefore it is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    BEACH v. STATE.
    (No. 3194.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1914.
    Concurring Opinion, Dec. 19, 1914.)
    Elections (§ 328) — Criminal Prosecution— SUFFICIENCY OE INDICTMENT.
    An indictment, charging that defendant, while acting as a precinct judge of an election, unlawfully made a false canvass of the votes cast in that precinct, in that he announced that a certain number of votes were cast for the several candidates for mayor, whereas in fact a different number of votes had been cast for each of them, if by “canvassing” was meant that defendant as one of the judges falsely called the ballots for tabulation, was insufficient, because not alleging the names of the voters so falsely called, and, if that could not be done, then that their names were unknown.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 355, 357-363; Dec. Dig. § 328.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    S. D. Beach was convicted of making a false canvass of votes, and he appeals.
    Reversed,'and cause dismissed.
    Jno. C. Scott and G. R. Scott, Boone & Pope, all of Corpus Christi, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

The indictment charges . that an election was held in the city of Corpus Christi, at voting precinct No. 2, for the purpose of electing a mayor and four commissioners of the city of‘Corpus Christi, and that appellant was a judge of the election, and while acting as such he unlawfully and willfully made a false canvass of the votes cast at the .election in said precinct No. 2, in this: “That the said S. D. Beach did as one of the counting judges at said election, read and. announce 213 votes as being cast in said voting precinct No. 2 for Clark Pease for tbe office of mayor of tbe said city of Corpus Cbristi, 26 votes as being cast for II. R. Sutherland for tbe office of mayor of tbe said city of Corpus Christi, 17 votes as being cast for W. G. Blake for tbe office of mayor of tbe said city of Corpus Cbristi, whereas in truth and in fact there were cast at said election in said voting precinct No. 2 120 votes for said Clark Pease for tbe office of mayor,” etc., 112 votes for Sutherland, and 22 votes for Blake for tbe office of may- or, which canvass it is alleged was falsely made by appellant. Tbe indictment is attacked for various reasons. Tbe writer is of tbe opinion that it is not sufficient to charge tbe offense. If by “canvassing” it is meant that appellant, as one of tbe judges, falsely called tbe ballots for tabulation, then tbe indictment should have alleged the names of tbe voters so falsely called, and if that could not be done, then that tbe names were unknown. Whether tbe ballot box could be opened or not for tbe ascertainment of tbe truth or falsity of tbe allegation against appellant, all voters whose names were not erroneously called were entitled to protection under tbe Constitution and laws of this state from having the secrecy of their votes uncovered. Tbe Constitution protects by secrecy the ballot of all voters, and the Legislature, as well, protects tbe voters from having their ballots announced as found in tbe ballot boxes except in cases of contested elections. This was not a contested election, but a criminal prosecution. There is another reason why the names should be alleged; that is, that the defendant is entitled to be notified as to the basis of the allegations that he had falsely called names, in order that he might meet this on his trial. The indictment states nothing except conclusions, and notifies the defendant of nothing except that he had called over a certain number of names in favor of the different candidates, whereas in truth and in fact he had miscalled them so as to make the actual and truthful result different from that returned. It is hardly thought necessary to cite authorities on these questions. There are other questions suggested why the indictment is not sufficient, but in view of what is said we do not care to go further into those matters.

The state was permitted to introduce in evidence and open the ballot box containing the names of the voters at the election mentioned in the indictment. Various and sundry objections were urged to the introduction of this testimony. At this late date, in view of all the authorities, the Constitution and the statute, we are of opinion the court was clearly wrong, and the objections should have been sustained. Article 6, § 4, of the Constitution provides that voting shall be “by ballot.” That, of course, means a secret ballot. The same section and article of the Constitution provides that the Legislature may or shall enact suitable legislation to guard the purity of the ballot box. This is not only within the power of the Legislature, but it seems to be mandatory that it should be done. In accordance with these provisions of the Constitution the Legislature has enacted certain legislation with reference to the matter; among other things, that it is required that these boxes containing the votes shall be returned to the county clerk, who shall keep them 12 months, at the end of which time he “shall burn” the ballots. The Penal Code provides a heavy punishment against the clerk if he fails to destroy and burn these ballots at the end of the 12 months. There are other provisions of a kindred nature which we think unnecessary here to quote. The statute further provides the ballot box shall remain in the Keeping of the clerk for a term of 12 months, to be opened only within that time, and then only in case of contested .elections. This was not a contest, and the 12 months had long since elapsed at the time of the trial since the election was held. It is inferable from the record that there had been a contest over the offices prior to the time of this indictment. Of course, that litigation could only have occurred within the 12 months. There is evidence set out in a bill of exceptions disclosing that the ballots had not been destroyed, but on the contrary had been passed from hand to hand until finally the box containing the ballots was locked in the death cell in the jail and the key turned over to the district clerk, and it was from this receptacle the ballot box was brought and opened on appellant’s trial. It seems to be the well-settled rule under the decisions that when the 12 months have elapsed, the ballots cannot be used; they are legally destroyed, whether in fact they were actually destroyed or not. The rule is thus stated in 15 Gyc. 428:

“After the date when the statute requires that ballots shall be destroyed they have no legal existence, and are not admissible in evidence, no steps having been taken to have a lawful recount.”

This question was passed upon in State v. Bate, 70 Wis. 409, 36 N. W. 17. That applies in cases where the ballots were permitted legally to be used, as in election contests. But whether the ballot box had been opened or not, and whether the criminal prosecution occurred within 12 months, would make no difference, so far as this case is concerned, because the statute has limited the opening of the ballot box to contested elections, and the authorities hold that these ballot boxes cannot be opened or the ballots used as evi ■ dence in criminal cases. See State v. Taylor. 220 Mo. 618, 119 S. W. 373; Ex parte Arnold, 128 Mo. 256, 30 S. W. 768, 1036, 33 L. R. A. 386, 49 Am. St. Rep. 557. In the Tayl O’Case, supra, there are quite a number or decisions collated. This question seems to llave been decided in State v. Francis, 88 Mo. 557. Tbe Legislature by express authority of the Constitution is required to pass such regulations as may be deemed proper to guard the purity of the ballot box, and such incidental matters as that body may think necessary, right and proper. They have exercised their authority to the extent of authorizing ballot boxes to be opened within 12 months in contested election cases, but have not seen proper to go further. Their reasons for not making further provisions are unnecessary to discuss. That they have not done so settles the question, and in enacting legislation with reference to opening ballot boxes they imposed two conditions which are binding upon this court: First, ballot boxes cannot be opened except in election contest cases; and, second, this can only be done within 12 months; and to this may be added the third, that these ballots are required under criminal penalty to be burned at the end of 12 months, and if the clerk does not do so, he is subject to the punishment imposed in the Penal Code. In Ex parte Brown, 97 Cal. 83, 31 Pac. 840, these questions were discussed at length by the' Supreme Court of that state. The court was met with the question and suggestion that the public was as much interested in preserving the integrity of the ballots and the ballot boxes and in detecting and punishing fraud as they were in contested elections. The proposition seems to carry the idea that, while the Legislature had limited the matter as indicated in the statute, yet on account of the general public welfare and interest, the courts should go further and enlarge the rule by permitting the ballot boxes to be gone into in criminal prosecutions. -Quoting from that opinion we find this language:

“We are asked by counsel bow tbe declared intention of tbe Legislature to punish frauds by election officers can be reconciled with an intention to prevent the use of the best means of proving such frauds. It might as well be asked how the plain injunction of the statute that the ballots must be destroyed at the end of one year can be reconciled with the law which authorizes a prosecution to be commenced at any time within three years. Both these questions may be answered in the same way. The different provisions are in neither case absolutely inconsistent, and if it is true that the preservation of the ballots as the law directs is an obstacle to the enforcement of the newly provided penalties for frauds of election officers, this result flows from the fact that the Legislature, in this instance, as in so many others, has failed in revising the old law to co-ordinate its different parts so as to bring them into perfect harmony with its new policy. This failure of provision, however, if indeed there was such failure, cannot be remedied by the courts, but must be left to the Legislature itself for amendment. If it is thought necessary to make the ballots available as evidence in criminal proceedings, the Legislature can do so under such limitations and restrictions as may be deemed •essential to their integrity. The courts cannot open them for inspection without destroying all safeguards, except such as each particular judge-■who may order them into court shall see proper to apply, nor without impairing in all cases, and possibly destroying in many, their value as evidence for the only purpose for which the law has directed their preservation.”

From tbe Francis Case, supra, this quotation is made:

“But it is asked, Has the Constitution deprived the state of Missouri of the right to inspect the ballots, when she seeks to expel an intruder from office? Shall she not be permitted to have the ballots opened, when necessary to convict illegal voters? The Constitution names one class of cases in which they may be inspected, and, unless the supposed eases belong to that class, the state has no more right than an individual suitor to an inspection of the ballots. She is as much bound by the Constitution as any citizen, and if she has chosen, by her organic law, to tie her hands in this matter, it is not in our power to release her from restrictions she has imposed upon herself.”

These cases deal not only with the proposition that the Legislature limits the use of the ballot only to election contests and within 12 months, but is augmented further by the proposition of secrecy enjoined by the Constitution through “the ballot,” and it is only when the Legislature expressly authorizes the uncovering of this secrecy for such purpose as that body may deem proper that that secrecy can be removed. The voter has a right to have his vote protected against inspection, unless in guarding the purity of the ballot box the Legislature may provide means or methods for necessary occasions to uncover such secrecy. In the Arnold Case, supra, the Missouri court, as did the California court in Ex parte Brown, among other reasons, places it upon the same principle which prevents disclosures of confidential and privileged communications. The court said:

“There are, doubtless, many instances in which the evidence of a husband would convict the wife, or the wife’s would settle the guilt of her husband, and yet the law, in its wisdom, seals his or her mouth. Likewise the testimony of an attorney, priest, or physician may establish beyond all doubt the guilt of the client, penitent, or patient in a given case, and yet it is excluded. These exceptions are based upon the peace of society, but in the estimation of the people of Missouri good government itself is dependent upon absolute inviolability of the ballot, except in a ‘contested election,’ and then only under such safeguards as would insure both the secrecy of the ballot and absolute verification of the election as held by the people. These two considerations governed the convention in framing, and the people in adopting, the Constitution.”

In one of tbe cases the grand jury sought to use the testimony by opening up the ballots. This the court held could not be done, and that such testimony could not be used in criminal cases. In fact, following the legislative authority, the court holds that the ballot box can only be opened and used in contested election eases and cannot be used in criminal cases. The Legislature has not so provided. We are not without ample authority holding the same views in Texas, for in the case of Clary v. Hurst, 104 Tex. 423, 138 S. W. 566, the Supreme Court of this state announces the same rule in an able and exhaustive opinion delivered by Justice Ramsey. That opinion is in line with the anthorities, upholds the Constitution, and adheres to the statute. It is there held that the statute limits and restricts the opening of the ballot box and use of the ballots to contested election cases, and that this must occur within 12 months. The objection, therefore, urged by appellant to the introduction of the ballot box and the ballots before the jury, should have been sustained.

There are other interesting questions in the case, but they are somewhat corollary to the main proposition, and we deem it unnecessary to discuss them. But we will call attention to the fact that the judges and other officers who assisted appellant in holding the election were used as witnesses and testified to conversations they had among, themselves in z-egard to the manner of appellant calling the names of the ballots for the benefit of the tabulating clerks of the election; but they said nothing to him about it, nor did the assistant counting judges say anything, so far as we understand this record, but they testified that appellant may have heard what they had to say about it. If the other counting judges, whose business it was to see a proper count made, permitted ■ appellant to do so, believing he was doing wrong, and then sign, as all the officers did, the returns showing that appellant had miscounted, they would evidently be in the attitude of accomplices, for all those who signed the tally sheets, returns, etc., showing incorrect and fraudulent count of the vote, signed the same as being correct. The law charged them with the duty of seeing that the count was correct, vote correctly recorded, and correct returns made. On the trial they testified in effect what was fraudulent counting. We call attention to this in case of another trial.

For the errors discussed, the judgment is reversed, and the cause is dismissed.

HARPER, J.

I concur in the reversal of the case on account of defect in the indictment; but, the ballot box having been opened in a contest of the election, if the ballots inspected in this contest of the election show the court that a crime had been committed, the trial court could order the ballots preserved as evidence, and under such circumstances, the ballot box having been opened under the provisions of the statute, the ballots were properly admitted, and I will write my views in full later on.

PRENDERGAST, P: J.

I concur in the opinion as to the insufficiency of the indictment, but express no opinion on any other question.

IIARPER, J.

In this case. -I wish only to state my nonconcurrence in that part of the opinion which holds that the ballots were improperly admitted in evidence. By the record it is disclosed that there was a contest filed over the office of mayor, and the ballot boxes opened in the trial of that case. This the statute specifically authorizes to be done. The statute (article 3028) only provides for the burning of the ballots after 12 months, in ease no contest is instituted. In this case we know a contest was instituted; therefore the clerk would not be authorized to destroy the ballots during the pendency of that contest. And if in the trial of the contested election case the ballot boxes were opened, and by the ballots it was made manifest to the trial judge that a crime had been committed by some one, we think it his duty, as he apparently did in this instance, to have the evidence preserved to be used in a prosecution of whoever may have had a guilty participancy in the wrongful calling of the ballots and certifying to an improper return. The evidence (the ballots) having come into his possession in a legal way, the ballot box having been opened in the trial of the contested election case, the veil of the seoreoy of the dallot having already been legally torn aside, it was not improper to use the ballots in the trial of this case. We agree that if no contest had been instituted and the ballot box opened on the trial of that cause, the judge would have no authority to have had them opened in this trial. But no such question is before us, but a case where the ballot box had been opened under the specific authority and direction of the law; and, it having been done legally, it was legitimate and proper to make use of them in the trial of this case.


author: PRENDERGAST, P. J.

text:
    SHAMBLIN v. STATE.
    (No. 3312.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1914.)
    1. Homicide (§ 234) — Circumstantial Evidence — SUFFICIENCY.
    In a prosecution for murder, evidence held sufficient to sustain a verdict finding that accused was the one who did the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 482-493; Dec. Dig. § 234.]
    2. Ckiminal Law (§ 1159) — Review—Sufficiency of Evidence.
    In reviewing the sufficiency of the evidence to sustain the verdict in a criminal case, it is not necessary to consider evidence which might tend to weaken the state’s evidence or the conclusions from it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Doc. Dig. § 1159.]
    3. Criminal Law (§ 656) — Reception of Evidence-Questions by Court to Witness.
    Where, in a prosecution for killing deceased by shooting through a window, the shot striking deceased in the back while sitting at the table near the window, it was sought to introduce by the wife his ros gestee statement that it was accused who shot him, questions asked by the court, in the presence of the jury, to determine the admissibility of the evidence as to whether room was lighted, the position of accused, and the time of the statement, were not leading, or calculated to impress the jury that the court thought deceased saw the assailant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.]
    4. Ckiminal Law (§ 364) — Evidence—Res Gestae.
    In a prosecution for murder committed by shooting at deceased through a window, while he was sitting in a lighted room near the window, his statement that accused was the assailant, made within two minutes after being shot, was admissible as res gestee, where there was evidence that he had his face toward the window immediately after he was shot, and deceased’s statement to a witness, a very few minutes after the shooting, that accused did it, in answer to a question from witness, is also admissible as res gestae.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 805, 808-810, 813, 816-818; Dec. Dig. § 364.]
    Appeal from District Court, Limestone County; H. B. Daviss, Judge.
    W. A. (Andy) Shamblin was convicted of murder, and he appeals.
    Judgment reformed as to sentence and affirmed;
    A. B. Rennolds, of Mexia, and Wm. Kennedy and W. T. Jackson, both of Groesbeck, for appellant. C. E. Lane, Asst. Atty. Gen., Callieutt & Johnson, of Corsicana, and M. tierring, of Groesbeck, for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assessed at 10 years in the penitentiary.

Appellant earnestly contends that the evidence is insufficient to sustain the conviction. This presents the most serious question. The statement of facts embraces 124 typewritten pages. 'Of course, we could not undertake to give in detail all the evidence shown by this statement. In passing on this question we will give succinctly the substance of facts which the evidence was sufficient to establish, not undertaking, except in special instances, to give the specific tes.timony of any witness.

The deceased, Ben Wells, was about 57 years old. He had lived in the immediate neighborhood, and on the place where he was killed, together, some 50 years. He had been married three times. When killed, he was living with his third wife. He had two daughters by a former wife. One of them, Lily, had married appellant some three years before the killing. Another, Alice, an unmarried young lady 17 or 18 years of age, was living with him, as well as .his then wife and some of their small children. Deceased was assassinated on Sunday night, December 28, 1913, about or just before 7 o’clock, while he was sitting in his home, at his fireside, with his family. The fatal shot was fired by the assassin through a glass window near which deceased was sitting, with his back quartering from it. The assassin was shown to have stood on tiptoe very near to the window, and the gun must have been almost against it, for the wadding from the cartridge and some of the glass from the window pane, with the shot, entered the back of deceased just to the left of the backbone, tearing away the left side of the backbone and almost severing it. Instantly upon the shot being fired, deceased put his head against the window facing of the window through which the shot was fired. Deceased sat close to the window. A lamp was in the room where the light from it shone through said window. The position of deceased at the time he was shot and instantly thereafter was such that the jury and lower court could conclude that he could have seen, and did see, the assassin through the window. Immediately after the gun was fired the assassin fled in the- dark of the night. ’ Deceased’s wife immediately sprang to him. I-Ie said, “Oh mamma!” repeating it several times. She then ran to the door and screamed three times. Then went back to him, and some one in the room said to telephone for a doctor. She rang the phone and called Jim Wells over it, deceased’s brother, told him some one had shot deceased, and to phone for a doctor to come quick. She then went to her husband, who then said, “Andy Shamblin done this.” Jim Wells at once called the doctor over the phone, and he himself at once went to deceased. He lived near him. It was only about two minutes from the time the shot was fired until deceased said to his wife, “Andy Shamblin done this.” It could have been but a very few minutes after the shot was fired before Jim Wells reached his brother. Jim Wells asked him, “Ben, who did this?” He said, “Andy Shamblin.” Jim Wells asked him, “Can’t you be mistaken?” and he said, “No; it was Andy Shamblin.” Deceased died from the effects of the shot a few hours thereafter, “Andy” Shamblin is appellant.

Some year or two before the killing appellant had bought from deceased a small piece of land, only some half mile from deceased. Appellant got mad at deceased about the execution and acknowledgment of the deed to him. Appellant lived on this, place purchased from deceased only a short time. During this time deceased, from what, he saw and heard, came to the conclusion that the appellant was unduly infatuated with and that an undue intimacy existed between appellant and his said young daughter, Alice. Deceased thereupon became incensed tab wards appellant because thereof. For about a year or more before the killing deceased did what he could to prevent Alice and appellant from associating together or being together. He forbade appellant on that account coming to his home. He also forbade Alice going to appellant’s home, and tried to enforce his directions in these particulars. Something like a year, or perhaps less, before the killing, appellant and deceased talked over this matter and there was then somewhat of a reconciliation between them. This did not last long, for appellant, in bis cross-examination of Jim Wells, established that, while there was a kind of a reconciliation between them, the deceased thereafter became more convinced of the improper relations between appellant and Alice than he had been before; Jim Wells stating that deceased said “that after Andy promised to do it no more it only grew worse”; that deceased also talked to his daughter Alice about it several times, and he saw that he couldn’t stop it, and “it only grew worse, and then he forbade Andy coming to his house.” Alice also testified that her father had accused her of this and that she told appellant . thereof. It was also shown that deceased’s wife talked to appellant, and told him the young people over the country were talking about it — the relationship between him and Alice, and that the deceased didn’t want anybody talking about his daughter; that she also talked to Alice about the relationship and talk over the neighborhood between Alice and appellant; that when she talked to Alice about it and was telling her what it would lead to, she said Alice got mad, “and said it was none of mine and her papa’s business what she did.” It was also unquestionably shown that the deceased concluded, because he could not break up what he claimed was the relationship between Alice and appellant, to sell the little farm where he lived, and in the community in which he had lived for the last 50 years and buy a place in Franklin county 200 miles distant to move to, so as to keep Alice and appellant apart, and break up the relationship between them; that the very next morning after -he was killed the night before he was going to move and had made all his arrangements for that purpose, and take Alice with him. Appellant knew all this. From time to time, for a year or more before the killing, appellant is shown to have made declarations showing his hostility to and some threats against deceased particularly about deceased’s suspicions and claimed relationship between him and Alice. Just a week or two before the killing deceased sent word to appellant’s wife Uily, by his brother, Jim Wells, that he wanted her to come to see him and spend the day before he removed; that Jim Wells saw appellant at his (Jim Wells’) store and told appellant the word deceased had requested him to communicate to Lily, and asked appellant if he would not tell lily, so as to save him (Jim Wells) the trip himself to deliver the message ; that in that conversation at that time appellant tried to tell him of the trouble between him and deceased and said to Jim Wells, “The more I see of him [deceased] or think of him the more I hate him.” There is no question but that the testimony in this case' was amply sufficient to show that appellant had the motive to kill deceased, and that no other had such motive.

The evidence further shows that for some time prior to the Sunday of the night on which deceased was killed there had been considerable rain, and that the country was muddy and wet. It also showed that it rained that Sunday morning; , that the rain ceased about or before noon that day, and that it had not rained from that time on for some time, and not until after the tracking and other evidence to which we will now call attention. Very soon after the shooting officers who lived several miles away were phoned about it, and as soon as they could went to the scene. They reached deceased before he died. The night of the killing was a very dark night. No attempt was made that night to track the assassin, but early the next morning the officers and others did attempt to track him. They found where he had stood very close to the window on his tiptoes when he fired the shot; that in leaving his foot slipped at that place, but did not at that immediate place make a track that could be measured and identified. He immediately stepped upon Bermuda grass, and, while his tracks made no such impression on the grass that they could be identified and measured, yet he could be tracked thereby to the yard fence over which he went; that search was made around the whole yard, and no other track could be found leaving it, except this one from the window. As soon as he got over the yard ffence he crossed a place-where his tracks could be seen, identified, and measured. We will not undertake to-give the details of the evidence establishing this tracking and the identity of the tracks. It is sufficient to show that it established that these tracks were identified, measured, and showed that they were made after the rain ceased on Sunday, between that time and the Monday morning following. It is clear that the party making the tracks went a zigzag route, so as to avoid going to or any nearer to the houses of the neighbors than, was possible. It was a thickly settled neighborhood. In other words, that he took such a circuitous and zigzag route as would avoid going to every house where he had to pass, and that he went across grass patches and places of that kind as much as possible, so as to avoid -making distinct tracks, when he could. That these tracks, however, were traced in this zigzag route from the house of deceased to appellant’s, or to within 20 steps of appellant’s house, there can be no question. When they got within this distance of appellant’s house they went across another grass plat, where no distinct tracks were made which could be identified. These tracks were measured by the officers. All the testimony shows that a part of the time the tracks showed that the party was running; the other times, walking. The route taken, the objects encountered and then avoided, would lead inevitably to the conclusion that they were made at night, and that they must have been made on that Sunday night. It is true that a part of the tracking, from deceased’s to appellant’s, only was found the next morning. The officers nor others did not attempt to trace the tracks from deceased’s entirely to appellant’s at first. Some of the tracks were not discovered till Tuesday morning, and they were not traced all the way until Thursday morning. The testimony also showed that these same tracks were traced from about half way from appellant’s to deceased’s house, going from the direction of appellant’s to deceased’s and they were traced practically clear up to deceased’s house. The distance on an air line between appellant’s and deceased’s was shown by actual measurement to be 1.8 miles. The distance traveled in said zigzag manner from deceased’s to appellant’s was shown by actual measurement to have been 2.59 miles. The witnesses in testifying on the trial, had before them a map drawn to scale showing these distances, and the route taken by these tracks for the distance found, going from towards appellant’s to deceased’s house, and the complete route from deceased’s house back to appellant’s, and this was all explained and illustrated by the several witnesses, in testifying on the trial, very much better than can be shown in any statement of facts. Appellant at no time after the killing went to the home of the deceased. The next morning when the officers went to his home they told him that they knew he was kinfolks of deceased, and thought he could tell them something about the killing. They found him and his father together in his lot. When the officers said this to him, his father said, “Yes, I knew what you were up to when I saw you coming,” and “I told the children last night that I knew somebody would lay it on Andy.” One of the officers then asked appellant where he was at the time of the shooting, and he said he was out at the lot getting ready to. go, and his wife heard it over the telephone. The officers asked him why he didn’t go to deceased’s, and he said he didn’t know; that he was at the lot getting ready to go, and decided it was best not to go. He said his wife heard it over the telephone while he was getting ready to go. He didn’t then tell the officers how he had heard of the killing. The officers thereupon told appellant that they wanted his gun and ammunition. He went into the house, got his double-barrel shotgun and several cartridges, and brought them to the officers. The officer testified that one barrel of the gun had been recently fired. The officers took charge of the gun and of the cartridges. Some of them were produced, identified, and introduced in evidence on the trial. One of them was unloaded on the examining trial of the case, and found to be loaded with Lomo buckshot. Nearly halfway between deceased’s and appellant’s house, on the route the officers found these tracks, going from deceased’s, they also found an empty shotgun shell, which was shown not to have been wet or rained upon. It corresponded exactly with the other shells they got from appellant. The doctor and the officer probed the wound! of the deceased immediately after he died, and found not only the wadding and a part of the glass of the window in the wound, but also found Lomo buckshot therein, which corresponded exactly with the shot taken out of one of the cartridges delivered by appellant to the officers. On the morning they arrested appellant they found in his house a pair of his shoes which had fresh mud all • over them. They were identified unquestionably as his shoes, and were introduced in evidence on the trial. The measurements of the tracks found by the officers and others corresponded with these shoes of appellant. Said tracks were unquestionably shown to have been made by some one who was pigeon-toed. The testimony showed that appellant was pigeon-toed, and that no other person in that country was known to be pigeon-toed.

As stated, we have not attempted to give all the testimony nor detail it except in some instances. Appellant’s defense was alibi. The court properly submitted this to the jury, and the jury found against him. We have not stated the evidence in various particulars which might tend in some measure to weaken the state’s evidence or the conclusions from it which we have given above. This, as we understand, is not necessary when the insufficiency of the evidence is attacked as not sustaining the verdict. All these matters were for the jury. They passed upon all of them, ahd the question this court determines is whether from the evidence the jury were justified in finding the verdict they did. The fact that the jury might have been justified in believing appellant’s contentions and acquitting him, when the jury had all the evidence before them, cannot militate against the verdict, when the evidence was sufficient to sustain it. In our opinion, the evidence was sufficient to justify the jury to believe that appellant and no other killed the deceased, and excluded any reasonable hypothesis that any other killed him. In other words, it met the requisites of circumstantial evidence which was aptly charged by the court. Therefore we cannot disturb the verdict of the jury.

. Appellant made no complaint of the charge of the court. He has only four bills of exceptions. These are about the same subject-matter and can be stated together, which we do. In one it is shown that while Mrs. Wells, deceased’s widow, was on the stand, she was about to relate the statement made by her husband within about two minutes from the time he was shot, which statement' was “Andy Shamblin done this,” to which appellant objected. The trial judge thereupon, for the purpose of satisfying himself whether or not the statement was res gestse, asked, the witness, in the presence and hearing of the jury, these questions:

“Q. Was there a light in the house? A. Yes, sir; there waé a light setting on the dresser, between him and the wall. Q. Was Mr. Wells setting with his back to the window? A. Yes, sir; kinder sideways. Q. Do you know which way-his face was turned when he was shot? A. Yes, sir; toward the east. Q. What direction would that be from the window? Was it from the window, or quartering from the window? A. It was quartering from it; when he was shot his head went against the window facing. Q. What direction was the window from whei'e he was shot? A. North. Q. He dropped his head back? A. Yes, sir. Q. Could you say whether he turned to one side or the other? A. No, sir; I don’t think he did. Q. How long after the shot was fired before he made the statement you started to relate? A. Just about two minutes, he said Andy Sham-blin done -this, and I ran to the telephone and then back to him, and he fainted.”

The court thereupon overruled appellant’s objections, and permitted the witness to so testify. Appellant’s objections were—

“that said question was leading, and said action of the court was calculated to and did lead the jury to believe that the court thought that the deceased saw the person who shot him, and was very prejudicial and injurious to his rights.”

The court in allowing- this bill qualified it by stating, among other things, as follows;

“(1) As shown by the bill itself, this'questioning of Mrs. Wells was done by me for the purpose of determining the character of testimony ; that is, whether it was res gestse or not. (2) From this examination, as well as from all the other evidence relating to the same matter, it is, was and is manifest that the statement of deceased was res gestse evidence, and was admissible as such. It is equally manifest that said statement of. deceased was the statement of a fact within the knowledge of deceased, which was res gestse of the transaction. It cannot be disputed that» the evidence disclosed that at the time of the shooting deceased was sitting with his back quartering toward the window north, with his face quartering east, with his left eye toward direction from which shot came, that when he was shot he fell with his head against the window facing from which the shot that killed him came. ' Why might he not have seen who shot him? Who can dispute that he did see? The court had a right to know all this, to determine -the admissibility of the testimony, and the jury had a right to know it, to enable them to judge of the weight of the' testimony.”

In our opinion, the questions were not leading, and the court, under the circumstances did not err in asking them; nor could the jury be misled by the court’s action, as claimed by appellant.

The next bill is to the said evidence of Mrs. Wells that the deceased made the statement to her as shown, “Andy Shamblin done this.” His objection to this was that it was deceased’s supposition, conclusion, and opinion with reference to who shot him, was hearsay, and not binding on him.

The next bill is to said testimony of this witness because, in effect, it did not come within the doctrine of a dying statement. It is sufficient as to this to say that it was not offered nor admitted as such. It was offered and admitted as res gestse.

The next bill shows that while the state’s witness J. E. Wells was on the stand he testified: “I asked Ben (deceased) who did this, and he said Andy Shamblin;” and "I then asked him, ‘Oan’t you be mistaken?- and he said, ‘No; it was Andy Shamblin.’ ”

In approving these three last bills, the court explained and qualified them as follows:

“(1) The testimony referred to in this bill was admissible as res gestse of the transaction. As I view it, in the light of all the other testimony relating to the particular matter, it was the statement of a fact which was within the knowledge of deceased. (2) Any careful perusal of the statement of facts will convince any candid seeker for the truth of the transaction that deceased might have seen and known who shot him. It is manifest that he could have, and I think he did see, by the light which shone out of the window through which he was shot, or by the flash of the gun in the involuntary and lightening like glance, which he could and must have cast in the direction from which shot came,' who shot him.. His face was quartering from, facing east, the window was north of him, the light shone out that window, the shot came from outside through the window, deceased fell toward with his face on window facing, and his left eye toward this window. See testimony of Mrs. Wells, the wife of deceased, and the only other eyewitness to shooting. (3) When Jim Wells was on the witness stand testifying, he narrated the statement that deceased told him, very shortly after he got to him, that defendant Shamblin had shot him. Defendant’s counsel neither objected to this testimony nor moved to exclude it. Defendant’s counsel vigorously cross-examined Jim Wells, endeavoring to prove a slightly different verbiage to the statement .made by deceased. And as a feature of their defense, defendant’s counsel introduced as their witnesses and offered the testimony of Miss Lily (Alice) Wells (daughter of deceased), Tom Flemming, and others, and proved slightly different statements made to them by deceased from those statements made by deceased to Mrs. Wells and to Jim Wells, but all to the same effect, to wit, that defendant shot him, all of which will be seen by perusal of statements of facts. (4) Certainly defendant cannot blow hot and cold upon the same testimony; that is, cannot be justified in complaining at one version, and yet permitted to rely upon and urge another. If there was error in admitting Mrs. Wells’ testimony as to this res gestse evidence —which I do not concede — then such error was rendered harmless by defendant’s counsel voluntarily offering another version of the same testimony.”

Appellant accepted each of these bills with the said explanation and qualification, and is bound thereby.

In discussing the admission of res gestse, this court, through Presiding Judge White, said: “It is indispensable, to a correct understanding of every transaction, that every act attending it, verbal as well as physical, by whomsoever it may be committed, be placed before the court for its enlightenment. This rule as to res gestse overrides all other rules known to the law governing the admissibility of testimony.” Cook v. State, 22 Tex. App. 526, 3 S. W. 749. Even the declarations of the wife, if res gestae, are admissible against her husband when on trial, even though she does not- testify at all in the case. Cook v. State, supra; Robbins v. State, 166 S. W. 529. See, also, Wilson v. State, 49 Tex. Cr. R. 58, 99 S. W. 312; Kenney v. State, 79 S. W. 817, 65 L. R. A. 316. Declarations made by a person who is incompetent to testify are admissible as res gestee. Section 343, Branch’s Orim. Law, and cases cited by him. “The fact that the statement is wholly or partially the opinion or conclusion of the declarant does not of necessity render it inadmissible if it is a part of the res gestae. Especially if the statement, though on its face might be a conclusion, is made as a statement of fact.” 11 Ency. Ev. p. 318. “It is not necessary that the declaration be a statement of fact to be admissible; a mere exclamation may constitute part of the res geste, * * * although it does not directly state a fact.” 11 Ency. Ev. p. 320. In this connection, see, also, 3 Wig. on Ev. § 1751, and 1 Wig. on Ev. §§ 656-658. The rules as to what are res geste statements, and when admissible, are so stated, and the many cases of this court, establishing and sustaining them, by Mr. Branch in section 339 of his Criminal Law, that a mere reference thereto is sufficient. This court in the last few years and up to the present time has so frequently discussed and stated these rules, citing the authorities,' that we regard it as entirely unnecessary to again state and discuss them. We merely cite a few of them. Rainer v. State, 148 S. W. 735; Ward v. State, 159 S. W. 272; Renn v. State, 64 Tex. Cr. R. 63, 143 S. W. 168; Girtman v. State, 164 S. W. 1010, and the authorities cited in those decisions.

In our opinion, the evidence objected to was res geste, and admitted in compliance with all the rules on the subject established by the authorities.

Sentence of the court in this case was for a specific 10 years, as found by the verdict of the jury. The judgment will here be reformed in accordance with the recent statute, and so reformed will be affirmed.


text:
    BASKINS v. STATE.
    (No. 3324.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.)
    1. Criminal Law (§ 205) — Criminal Prosecution — Commencement — Complaint — Warrant of Arrest.
    Though Const, art. 1, § 10, and Code Cr. Proc. 1911, arts. 4, 447, provide that no person shall be tried and convicted of a felony except on the indictment of the grand jury, an indictment is not necessary to the commencement of a criminal prosecution which may be initiated by the filing of a complaint with a justice of the peace charging accused with the commission of a felony, the issuance of a warrant of arrest thereon, and the arrest of accused thereunder by a proper officer.
    [Ed. Note. — For other cases, see Criminal Law, Cent: Dig. §§ 410, 412 % ; Dec. Dig. § 205.]
    2. Husband and Wleje (§ 302) — Abandonment — Seduction — “Commencement of Prosecution.”
    The filing of a complaint for seduction before a justice of the peace, the issuance of a warrant, and accused’s arrest thereunder, constituted the commencement of a prosecution against him for seduction within Pen. Code 1911, art. 1450, declaring that if, after the commencement of a prosecution for seduction, defendant shall marry the complainant, and thereafter abandon her, etc., he shall be guilty of a felony.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1100; Dec. Dig. § 302.

    For other definitions, see Words and Phrases, First and Second Series, Commencement of Prosecution.]
    3. Seduction (§ 36) — Defenses — Offer of Marriage.
    Offer of marriage, in order to constitute a defense to seduction, must be made before accused pleads to the indictment for seduction.
    .[Ed. Note. — For other cases, see Seduction, Cent. Dig. § 62; Dec. Dig. § 36.]
    4. Indictment and Information (§ 119)— Surplusage.
    Where an indictment for wife abandonment after marriage in order to escape prosecution for seduction alleged that a complaint had been filed in a justice court of M. county, the further words, “precinct No.-of” are surplusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    5. Criminal Law (§ 400) — Best Evidence-Records.
    In a prosecution for wife abandonment after marriage to escape prosecution for seduction, the complaint .and warrant, or properly certified copies thereof, on which accused was arrested for the seduction constituted the best evidence of the institution of such a prosecution, prior to the marriage, and, such documents not having been shown to have been lost or destroyed, it was error to permit oral proof thereof by the district attorney who drew the complaint and the justice of the peace who filed the same and issued the warrant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    6. Criminal Law (§ 400) — Best Evidence-Parol Proof.
    Accused having abandoned his wife, whom he married to stop prosecution for seduction, the state could prove by parol that a complaint for seduction was prepared by the district attorney, furnished to the wife’s father, delivered to a justice pf the peace, and that he issued a warrant thereon under which accused was arrested, as bearing on the pendency of the prosecution for seduction at the time of the marriage, and this regardless of the fact that the justice did not put his file mark on the complaint or docket the case, and decline to have anything further to do with it, and made the warrant returnable before another justice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    7. Husband and Wife (§ 313) — Abandonment — Evidence.
    In a prosecution for abandonment of a wife and marriage to avoid prosecution for seduction, evidence of the justice before whom the seduction prosecution was instituted that he was justice of precinct No. 7 in M. county, Tex., was admissible.
    [Ed. Note. — For other cases, see Husband' and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]

      8. Husband and Wide (§ 313) — Abandonment — 1Treatment of Wide — Evidence.
    Where a wife was married to avoid a husband’s prosecution for seduction and taken to the home of his parents, evidence as to the treatment she received from her husband’s mother and other members of the family in his absence, of which he was informed, and that this was such as to force her to leave, was admissible in a prosecution against him for abandonment to show that she did not leave him voluntarily.
    [Ed. Note. — For other ca?es, see Husband and Wife, Cent. Dig. § 1110; Dec. Dig. § 313.]
    9. Husband and Wide (§ 314) — Abandonment — Defenses — Acts Justifying Divorce.
    Where, in a prosecution for a wife abandonment after marriage to avoid prosecution for seduction, accused defended on the ground that the wife had been guilty of acts which would entitle him to a divorce, the court properly submitted such matters in general terms for finding, and refused to select certain facts showing or tending to show acts or outrages or cruelties, or abandonment or not, and tell the jury that they would or would not be'sufficient to authorize a conviction or require acquittal, since such charge would be on the weight of the evidence.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1111; Dec. Dig. § 314.]
    10. Husband and Wife (§ 304) — “Abandonment” — Acts Constituting.
    Temporary absence of the husband from his wife, with her consent, while at work, without an intention to abandon her, does not constitute an abandonment, but proof that he refused to furnish her a home, except with his parents and their family, and that they so abused her, with his knowledge, as to force her to leave, was suf-ficent to constitute abandonment.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1102; Dec. Dig. § 304.

    For other definitions, see Words and Phrases, First and "Second Series, Abandonment.]
    Appeal from District Court, Coryell County ; J. H. Arnold, Judge.
    Bob Baskins was convicted of wife abandonment after seduction, and be appeals.
    Reversed and remanded.
    Blears & Watkins, of Gatesville, and Williams & Williams, of Waco, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, P. J.

Appellant was convicted of the offense of abandonment after seduction and marriage, under article 1450, P. C., which is:

“If any person, by promise of marriage, shall seduce an unmarried female under the age of twenty-five years, and shall have carnal knowledge of such female, and if, after prosecution has begun, the parties marry each other, at any time before the defendant pleads to the indictment before a court of competent jurisdiction, and if the defendant within two years after said marriage, without the fault of his said wife, such fault amounting to acts committed by her after said marriage as would entitle him to a divorce under the laws of this state, shall abandon her ■or refuse to live with her, or shall be so cruel to her as to compel her to leave him, or shall be guilty of such outrages or cruelties'towards her as to make their living together insupportable, thereby leaving her or forcing her to- leave him and live apart from each other, shall be guilty ■of the offense of abandonment after seduction and marriage; and any person convicted of said offense shall be confined in the penitentiary for a term not less than two nor more than ten years; and said marriage shall be no bar to the qualifications of said female to testify against the defendant; and the female so seduced and subsequently married and abandoned, as herein provided, shall be a competent witness against said defendant.”

, The gist of this offense, after the seduction and marriage is shown, is that if without the woman’s fault such as would entitle him to a divorce: (1) He shall abandon her; (2) or refuse to live with her; (3) or shall be so cruel to her as to compel her to leave him; (4) or shall be guilty of such outrages or cruelty towards her as to make their living together insupportable,' thereby leaving her;. (5) or, under the same circumstances, forcing her to leave him, under these latter two, and live apart from eath other — then he has committed this offense.

The indictment herein was filed in the lower court on July 22, 1914. After the necessary formal allegations of the organization of the grand jury, etc., it alleged that appellant, on or about May 31, 1913, in Mc-Dennan county, Tex., did unlawfully seduce Lois Bird, an unmarried woman under 25 years of age, and did then obtain carnal knowledge of her by means and in virtue of a promise of marriage to her, and that thereafter on or about September 29, 1913—

“a complaint was duly filed in the justice court of precinct No.-of McLennan county, Tex., charging him, the said Bob Baskins, in due form of law, with the offense of seducing her, the said Lois Bird, as aforesaid, and that thereafter, to wit, and after said prosecution was begun as aforesaid, and while he, the said Bob Baskins, was under legal arrest following the filing of said complaint, and before a proper grand jury of McLennan county, Tex., had been duly and legally organized and impaneled following said complaint, and before such grand jury could-have acted upon the matters and things set forth in said complaint, and before such prpper and legal grand jury could have returned an indictment charging him, the said Bob Baskins, with the offense of seducing her, the said Lois Bird, as aforesaid, and on the 30th day of September 1913, and before he, the said Bob Baskins, had pleaded to said indictment before a court of competent jurisdiction, he, the said Bob Baskins, did then and there make a proposal of marriage to her, the said Lois Bird, and the said Bob Bas-kins and the said Lois Bird did then and there marry each other; and that thereafter, to wit, on or about the 15th day of January, 1914, and without fault on the part of his said wife, the said Lois Bird Baskins, such fault amounting to acts committed by her, the said Lois Bird Baskins, after said marriage as would entitle him, the said Bob Baskins, to a divorce under the laws of the state of Texas, and in the county of Coryell and state of Texas, he, the said Bob Baskins, did then and there unlawfully abandon her, the said Lois Bird Baskins, and did then and there unlawfully refuse to live with hex-, the said Lois Bird Baskins, and did then and there and thereafter live apaiff from her, the said Lois Bii-d Baskins; and that the said Bob Baskins, after said marriage, was guilty of such outrages and cruelties towards her, the said Lois Bird Baskins, as to make their living together insupportable, thereby leaving her and forcing her to leave him, and causing them to live apart from each othei\”

From this indictment it will be seen that it based this prosecution on four of the five grounds enumerated in the statute, to wit: That without her fault (1) he abandoned her;

(2)he refused to live with her; (4) he was guilty of such outrages and cruelties towards her as to make their living together insupportable, thereby leaving her; and (5) he thereby forced her to leave him, causing them to live apart from each other.

Appellant made a motion to quash the indictment on five grounds: (1) That the filing of the complaint and issuing the warrant of arrest alleged is insufficient to amount to the beginning of the prosecution for seduction ; (2) that a prosecution for a felony cannot begin, or is not begun, until an indictment has been preferred by a proper grand jury; (3) it fails to allege that an indictment had been preferred by a grand jury charging him with seduction before he married Lois Bird; (4) it fails to designate the particular court in which such prosecution was pending against him for the alleged seduction; (5) that the attempt to charge him with outrages and cruelties towards Lois Bird is vague and indefinite, and fails to set out the alleged acts of outrages or cruelty relied upon, and is insufficient to put him upon notice of what of said acts he is called upon to meet.

These first three grounds present substantially the same question. It is true that our Constitution (article 1, § 10) and statute (C. O. P. arts. 4, 447), in effect, expressly provide that no person shall be finally tried and convicted of a felony, except upon indictment of a grand jury; yet neither nor all of these provisions undertake to say and do not say, that the filing of a complaint with a justice of the peace charging an accused with the commission of a felony and the issuance thereon of a warrant of arrest, and his arrest thereunder by the proper officer is not the beginning of a prosecution. On the contrary, we think our statutes do provide that the filing of such complaint and issuance of a warrant thereunder and arrest of an accused is a beginning of the prosecution. Article 26, P. C. is:

“A ‘criminal action,’ as used in this Code, means the whole, or any part, of the procedure which the law provides for bringing offenders to justice; and the terms ‘prosecution,’ ‘criminal prosecution,’ ‘accusation,’ and ‘criminal accusation,’ are used in the same sense.”

Article 41, C. C. P., tells who are magistrates, and, after enumerating the judges of the superior courts, says that the justices of the peace, mayor, or recorder of an incorporated city or town is a magistrate. The next article says it is the duty of such magistrate, among other things, “to cause the arrest of offenders, by the use of lawful means, in order that they may be brought to punishment.” It is made the duty of the peace officers (article 44, C. C. P.) to give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe that there has been a violation of the penal laws, and to arrest offenders even without warrant, where authorized, in order that they may be taken before the proper magistrate or court and be brought to punishment. It is made the duty of the district and county attorneys, within their respective spheres, to receive complaints of the commission of crime before indictment and to prosecute such matters before magistrates. It is also made the duty of the magistrate —justice of the peace — to take such complaints and issue his warrant for the arrest of the party; and when such an accused is brought before him, it is his duty to examine into the truth of the accusation, to hear the testimony, reduce it to writing, and admit the party to bail binding him over to appear before the grand jury, or in certain events, discharge him from custody, if not shown to have committed an offense. Title 5, c. 3, O. C. P.

So that we think it clear that the making and filing of a complaint before a justice of the peace charging an accused with a felony, the issuance of a warrant thereon by the magistrate, placing it in the hands of a peace officer, and the arrest of an accused thereunder, is the beginning of a prosecution under our law and under said article 1450, P. O. The fact that the statute prescribes that the marriage of the parties before “the defendant pleads to the indictment” must be considered with reference to what the law was aforetime. Until within recent years (article 969, White’s P. 0. 1895), the statute permitted an accused to escape a merited conviction for seduction “if the parties marry each other at any time before the conviction of the defendant, or if the defendant in good faith offer to marry the female so seduced, no prosecution shall take place, or, if begun, it shall be dismissed.” Under that article and the construction thereof by this court, an accused could experiment with the state and the seduced woman up to the very time when the verdict of the jury was brought in and received by the court.

Article 1450, to avoid such an outrage upon the law and the seduced woman, now requires that, in order for the marriage of the parties to obliterate the offense of seduction, the accused must marry the woman before he even pleads to the indictment. He cannot wait until after the trial has all occurred and been concluded except the verdict of the jury.

The fact that the indictment alleged that the complaint had been filed “in the justice court of (precinct No. -of) Mc-Lennan county, Tex.,” omitting the number of the precinct, does not vitiate the indictment. The words “precinct No. - of,” embraced in the parentheses above, could and should be regarded as surplusage. Goodwin v. State, 158 S. W. 275, and cases there collated. The indictment as to the other features follows and uses the language of the stát-ute substantially, if not literally, and is sufficient.

In the prosecution for tins offense, and under the indictment herein, it was necessary for the state to prove that a prosecution for seduction of this girl by appellant had been begun by a complaint so charging, and that a warrant directing his arrest therefor was issued. The complaint itself and the warrant, or properly certified copies thereof, should be introduced to show this. The originals or certified copies were, of course, the best evidence of their contents. The state, it seems, on the trial had neither the originals nor such certified copy thereof. It undertook to prove them up, and, in effect, their contents, by Mr. McLellan, the district attorney, and the justice of the peace to whom the complaint was delivered and who issued the warrant. Appellant properly objected to this, and preserved his bills of exceptions thereto. The bills show that Mr. Bird, Lois’ father, had Mr. McLellan to prepare a complaint against the accused; that he took it to Mr. Cosgrove, the justice of the peace, in McLennan county, Tex., where the offense of seduction was alleged to have been committed, and delivered it to the justice of the peace, who acted upon it by issuing a warrant for the arrest of the accused, and turned both the complaint and warrant over to the constable, with directions to return and file them before a justice of the peace at Waco, the county seat of McLennan county. Neither of these documents are shown to have been lost or destroyed. The court permitted Mr. Mc-Lellan, over defendant’s objections, to testify that he wrote up the complaint “in due form of law charging this young man (appellant) with seducing the girl in McLennan county,” etc. In our opinion this was error which must result in the reversal of the judgment. Section S35, Branch’s Crim. Law, and cases there cited. This did not merely prove the existence of such written documents, but went further, as was necessary, and proved the substance of the contents so as to show they, in fact, charged him with seducing said girl, etc.

As qualified by the court, appellant’s bill as to the testimony of Mr. Cosgrove, the justice of the peace, presents no error. The state could prove, not the contents of the complaint or warrant, but the fact that a complaint was prepared by the district attorney, furnished to Mr. Bird, and delivered to Mr. Cosgrove, and that thereon he issued a warrant, and thereunder appellant was ai> rested, by oral testimony, on the theory that it had been, or would be, shown by the introduction of the original complaint and warrant, or properly certified copies thereof, that they charged him with seducing said girl, etc. The fact, if it be such, that the justice of the peace did not put his file mark on the complaint and did not docket the case on his docket, and refused or declined to have anything further to do with the case, could make no difference. If necessary, the justice of the peace could have been forced to have put his file mark on the complaint, docket the case, and have an examining trial of the accused. Neither did the fact, if it be such, that the warrant was returnable before a justice of the peace at Waco make any difference. All these matters, if the complaint and warrant, or certified copies of them had been produced and introduced, or, if lost or destroyed, their contents proven, would show a prosecution against appellant, and, if for the offense of seduction of said girl and his actual arrest thereunder, that this resulted in his marrying the girl to avoid conviction for seducing her.

Neither did the court err in permitting the justice of the peace to testify that the precinct of which he was justice was No. 7 of McLennan county Tex. Neither did the court err in admitting the testimony of appellant’s wife as to the treatment of her by his mother and other members of his family in his absence; the record and the qualification of his bills on this subject showing that all these facts were communicated to him by his wife, they tending to show such treatment of her as would 'amount to cruel treatment and require him to act thereon and to, if necessary, remove from his parents’ home and live with her elsewhere, and as tending to show that she was forced to leave him because thereof and did not leave him voluntarily.

The charge of the court on the subject that appellant’s wife was an accomplice as to the alleged seduction and requiring her testimony on that subject to be corroborated was substantially in accordance with the statute and the many decisions of this court.

Appellant contends that the evidence was insufficient to authorize the court to submit these questions to the jury -whether or not: (I) He had abandoned his wife; (2) or refused to live with her; (3) or that he was guilty of such cruelty or outrages towards her as to make théir living together insupportable, thereby forcing her to leave him and causing' them to live apart, etc. As the case is to be reversed, it is the practice of this court not to discuss the testimony, and we will not do .so in this case, but, in our opinion, the evidence was sufficient to authorize and require the court to submit these several issues to the jury for a finding. They were the only issues submitted which were alleged as a basis for conviction in the indictment. We will discuss these matters to some extent in discussing appellant’s refused charges and his objections to the court’s charge.

Appellant contends the evidence showed no seduction of the girl, but an agreement between her and appellant to the extent only that he would marry her if their sexual indulgence resulted in her becoming pregnant. His testimony was to that effect so as to raise the question, but hers would show that he seduced her as denounced by the statute. She was amply corroborated by other facts and circumstances. The court, in an apt charge, to which there is no exception, correctly submitted this issue.

Appellant has further objections to the court’s charge to this effect: (1) It fails succinctly to define the divorce law in respect to what would constitute abandonment and outrages or cruel treatment; (2) it does not instruct the jury what outrages and cruel treatment are necessary to meet the requirements of the statute that their living together is insuppoi-table; (3) it did not affirmatively instruct the jury that appellant had the right to select their place of abode, and, if she declined to live there or left there, he could not be guilty of abandoning her. In connection with this last objection he requested, but the court refused to give, this special charge:

“The husband has the right to designate and fix the place of residence of the husband and wife, and, if he has done so, and the wife voluntarily leaves the same, and fails to return, the husband cannot be guilty of abandonment, so in this case, if you find that the defendant made arrangements for him and his wife to live with his father, and that such arrangements were consistent and in keeping with the husband at the time, and that the prosecutrix in this case voluntarily left said premises and failed to return thereto, and that she had a home there in the event she desired to return, then the husband could not be guilty of abandoning her, and that she did not have the right to require him to follow her up and live or visit at such place as she or her family might designate or think best.”

No special charge was asked to cover the other objections or claimed omissions of the court’s charge.

The court’s charge, after properly submitting for a finding all other requisites of the offense, on the matters covered .by the objections above, instructed and required the jury to find beyond a reasonable doubt:

“That he, the said Bob Baskins, did then and there unlawfully abandon her, the said Lois Bird Baskins, or that he did then and there unlawfully refuse to live with her, the said Lois Bird Baskins, or that he, the said defendant, was then and there guilty of such outrages and cruelties towards her, the said Lois Bird Baskins, as to make their living together insupportable thereby forcing her to leave him and causing them to live apart from each other, then, in the event you so find, you will convict the defendant of the offense of abandonment after seduction and marriage, and assess his punishment,” etc.

Our divorce statute (B. S. § 4631) authorizes a divorce in favor of the husband, when his “wife is guilty Of excesses, cruel treat-. ment or outrages toward” him, “if such ill treatment is of such a nature as to render ■ their living together insupportable, or where she shall have voluntarily left his bed and board for * * * three years with the intention of abandonment.”

The statute does not specify what acts are “cruel treatment or outrages,” further than to say they must be “such a nature: as to ren-: der their living together insupportable.” Nor does it define abandonment. The civil courts have not undertaken to define these matters particularly. In some cases they have held that certain acts are not such cruelties and outrages which entitle to divorce, and others are, and that those same acts under some circumstances would amount to cruelties, etc., and under other circumstances they would not. In other words, the effect of the civil decisions, largely, if not wholly, is to submit such matters to a jury for their finding, in general terms, and control them by the circumstances of each case as it arises. No decision of this court, so far as we can find, has undertaken to define such terms. O'ur statute says (article 10, P. C.): •

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

And article 58, C. O. P., says:

“All words and phrases used in this Code are to be taken and understood in their usual acceptation in common language, except where their meaning is particularly defined by law.”

It occurs to us it would be improper for the trial court to pick out certain facts showing, or tending to show, acts of outrages or cruelties, or abandonment or not. and tell the jury they would or would not be sufficient to authorize conviction or require acquittal; for such a charge would be on the weight of the evidence. Instead, the court should, as he did in this case, submit such matters in general terms for a finding.

We will try to illustrate these points by some of our other statutes and decisions thereunder.

Article 46, P. C., provides that, when a person does an act which would otherwise be criminal, laboring under a mistake of fact, he is guilty of no offense. The next article says that such mistake of fact must be such that the person so acting would have been excusable had his conjecture as to the fact been correct; “and it must also be such mistake as does not arise from a want of proper care on the part of the person com. mitting the offense.” The trial judge, in Watson v. State, 13 Tex. App. 81, undertook to tell the jury what was and what was not proper care, under said articles. But this court, after quoting said two articles, said:

“We think the learned judge should have given in charge to the jury, substantially, the above articles, leaving the jury to determine from the evidence in the case whether or not, under all the facts and circumstances of that particular case, the mistake of the defendant, if he was mistaken, arose from a want of proper care on his part. The question a? toi proper care, we think, depends upon the facts in each particular case. No general rule can be prescribed in relation to it. What would be proper care in one case might be gross negligence in another. What would be proper care when-considered with reference to one individual might not be when applied to another.”

To the same effect is the decision in Hailes v. State, 15 Tex. App. 93.

Our statute (P. O. art. 1114), in defining “negligent homicide,” says:

“If any person in the performance of a lawful act shall, by negligence and carelessness, cause the death of another, he is guilty of negligent homicide of the first degree.”

Article 1117 says:

“The want of proper care and caution distinguishes this offense from excusable homicide. The degree of care and caution is such as a man of ordinary prudence would use under like circumstances.”

Under these articles, in Morris v. State, 35 Tex. Cr. R. 315, 33 S. W. 539, complaint was made that the trial judge failed to give his special charge, in effect, telling the jury what was and. what was not negligence. This court said:

“There was no error on the part of the court in failing to further define ‘negligence’ than as given in the main charge. The charge of the court is in the following language: ‘The degree of care and caution required to avoid danger is such as a man of ordinary prudence would have used under like circumstances.’ This was in accordance with the language of the statute on the subject, and is in consonance with the ordinary definition of negligence.”

If any person, under our law, by his negligence causes injury to another, he is liable in damages therefor. This is statutory where such negligence results in death. R. S. arts. 4694, 4695. In our state, when suits for damages first began to be brought because of such negligence, it was a question whether the trial courts could charge, as a matter of law, what was, and what was not, negligence, or whether it had to be left to the jury for them to determine, as a fact, what was, and what was not, negligence. In T. & P. Ry. Co. v. Murphy, 46 Tex. 356, 26 Am. Rep. 272, these questions first came before our Supreme Court, wherein Chief Justice Roberts, for that court, elaborately and in his masterful way discussed and decided them. In that case he stated:

“The [trial] court determined, as a matter of law, that the fact of starting the train instantly, upon giving the signal of departure, was an act of negligence or misconduct on the part of defendant, and that the act of attempting to get on a train moving rapidly was negligence on the part of plaintiff; but, if the train was moving slowly, it would not be an act of negligence on the paid: of plaintiff.”

He then states that it is only when the statute expressly tells what is, and what is not, negligence, as a matter of law, that the court can so tell the jury; that, when the statute is silent, then the jury must say what is and what is not negligence, saying:

“We are of opinion that the charge of the court is erroneous, in instructing the jury as if such laws did exist as applicable to this case, and in thereby relieving the jury from finding, the fact of negligence, both as to plaintiff and as to defendant, in the matters mentioned, relating to each one respectively. It has long been the settled policy of the laws of this state to keep separate and distinct, and to define accurately, the respective functions of the judge and of the jury in the trial of cases, both civil and criminal. As early as 1853 the Legislature, in pursuance of this policy, enacted a law, that is still in force, which indicates a radical departure from the mode of proceeding in trials, as practiced in the courts of England and of many, if not most, of the American states wherein the common law prevails. It is as follows: The judge ‘shall not in any case, civil or criminal, charge o.r comment on the weight of evidence. He shall so frame his charge as to submit questions of fact solely to the decision of the jury, deciding on and instruct them as to the law arising on the facts, distinctly separating the questions of law from questions of fact. He shall not charge or instruct the jury in any case, unless the charge shall have been by him first reduced to writing and signed, and every charge shall be given in the precise words in which it shall have been written.’ Paschal’s Dig. art. 1464. This is mandatory and peremptory. It leaves no discretion to the judge as to whether or not he shall ‘charge or comment on the weight of evidence,’ or as to whether or not he shall ‘submit questions of fact solely to the jury.’ It is a positive direction to a judge as to what he shall do in the trial of a case in his court, however different may be the mode of trying cases in the courts of other countries, of which he may be informed by law-writers or by precedents. This is our system of procedure. The judge is forbidden by law either to aid a jury, or to infringe upon their province in weighing the evidence or in deciding upon the facts, in every case submitted to them. It presupposes that the jury is as competent to find the facts as the judge is to declare the law. This admits of no exception, so far as his duty, enjoined by law, is concerned, whether the facts are plainly established by the evidence for one side or the other, or are complicated or doubtful.”

This has been the settled law of our state ever since that decision.

However, as this case is to be tried again, we think it would be proper for the court in his charge, in substance, to tell the jury that the temporary absence of appellant from his wife, with her consent, while at work, if he had no intention to abandon her, was not such an abandonment of her that that alone would authorize his conviction on that feature of the case. Also, as the evidence in appellant’s behalf would tend to show she abandoned him without cause, we suggest the court, in a proper charge should tell the jury, if she did so, he would not be guilty; yet, if his treatment of her and that of his mother, which was brought to his attention, was such, under all the circumstances, as to amount to such cruelty, etc., as to render their living together there insupportable, and he thereby forced her to leave him, then it would be his abandoning her and not she him. The special charge of appellant copied above is not the law applicable to this case, and should not be given.

It is true our Supreme Court has held that, under certain circumstances, the husband can designate, in connection with the use and occupancy thereof by himself and wife, what property is the homestead, and what not; yet what they said and held in the cases cited by appellant (Holliman v. Smith, 39 Tex. 362; Womble v. Womble [Civ. App.] 152 S. W. 473, and McGowan v. McGowan [Civ. App.] 50 S. W. 399) is not tlie law applicable herein.

Appellant in this case sought to take advantage of the “baby act,” and claimed, because he was only 18 or 19 years old, he had to live with his parents, and the right to, in effect, require his wife to live there also, notwithstanding his mother and other members of his parents’ family treated her in such a way as to make it unendurable for her to live there, and he made no effort or attempt to shield or protect her from such treatment. In fact, it is a reasonable inference from his conduct and treatment of her and failure and refusal to protect her and to provide for her, in connection with his mother’s treatment of her, was part of his scheme to drive her away from him, and thereby abandon her, and leave her, and by such cruelties and outrages make their living together insupportable, thereby leaving her, and forcing her to leave him, under the very terms of the statute.

We are told in Holy Writ (Gen. ii, 23, 24) that:

Man’s wife is bone of his bone and flesh of his flesh. “Therefore shall a man leave his father and his mother, and shall cleave unto his wife; and they shall be one flesh.”

Our Savior himself, referring to Genesis, above, said:

“From the beginning of the creation God made them male and female. For this cause shall a man leave his father and mother, and cleave to his wife; and they twain shall be one flesh: so then they are no more twain, but one flesh.” Mark x, 6 to 8.

Appellant did not plead the “baby act” when he wooed and won this young lady for his bride; nor did he, when he, by his wiles and professions of love for and devotion to her, induced her to yield her person to him under a solemn promise and engagement to marry her; nor did he, when indulging his lustful passion, impregnating her, and causing her in due time to give birth to an innocent babe. It is too late'now for him to attempt to shield himself by the “baby act.” He had no right to designate his father and mother’s home as his, and, under the circumstances shown in this record, to compel her to live there with him.

For the error above pointed out the judgment will be reversed, and the cause remanded.