author: PRENDERGAST, J.

text:
    HALL v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    1. Criminal Law (§ 1092) — Appeal—Filing Bill of Exceptions.
    Where no bill of exceptions was filed to the action of the court in overruling exception challenging'the competency of jurors showing the testimony heard on the motion, until nearly 20 days after court adjourned, it was too late to be considered on appeal, and it must be presumed that the court’s action was correct and justified by the evidence heard.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 28&t-2861, 2919; Dec. Dig. § 1092.]
    2. Homicide (§ 163) — Evidence — Reputation of Deceased.
    In a trial for the murder of defendant’s wife, evidence of her general reputation for virtue and chastity in the community in which she lived was inadmissible for any purpose.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 310-317; Dec. Dig. § 163.]
    3. Witnesses (§ 374) — Impeachment—Bias.
    While it is always permissible to show the bias and prejudice of any adverse witness, the testimony offered for such purpose must have some probative force, and it is never permissible to impeach a witness on immaterial matters.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1201, 1202; Dec. Dig. § 374.]
    4. Witnesses ,(§ 340) — Impeachment—Character and Conduct of Witness.
    Evidence that a witness associated with lewd women is not admissible for the purpose of impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1116, 1117, 1119, 1121; Dec. Dig. § 340.]
    Appeal from District Court, Gonzales County; M. Kennon, Judge.
    J. R. Hall was convicted of murder in the second degree, and he appeals.
    Affirmed.
    C. K. Walter, of Gonzales, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, J.

Upon an indictment charging appellant with the murder of his wife, a trial resulted in his conviction of murder in the second degree, with a penalty of 20 years confinement in the penitentiary assessed.

It is unnecessary to give any detail statement of the evidence. It was amply sufficient to show that at the time of the alleged murder appellant was about 59 years of age and his wife 35 years of age. The deceased was appellant’s third wife; they married about one year before .the killing. Several months before the killing trouble arose between the parties, and they separated. They afterwards made up, and lived together until some three or four weeks before the killing. They had lived in the country. Some three or four weeks before the killing trouble arose between them, and the deceased was seen to chase appellant out of their house and around an outhouse, and to commit an assault and battery upon him. He made no resistance. On this occasion she was very abusive of him, and used indecent and profane language to him. This resulted in their separation again. He left where they were residing first, going to his son’s, she leaving also, perhaps, the same or the next day, going to the town of Gonzales. She rented a two-roóm house in Gonzales, and lived there alone for the two or three weeks after their separation and until she was murdered. Appellant was very anxious to get his wife to live with him again. He also removed from his son’s to Gonzales, and began to work in the town. He complained to several of his friends of his family trouble, told them of his love for his wife, and his desire to get her to live with him again. He interceded with the county attorney and induced the county attorney late Sunday evening, before she was killed, that night, to see her for him to see if she could not be induced to live with him again. The county attorney called on her just before night Sunday evening and had a talk with her at appellant’s instance along the line desired by him, but she declined to live with appellant again. The county attorney at once so advised appellant, and appellant may have asked the county attorney if there would be any harm in his (appellant’s) going to see his wife and tell her good-bye, and then himself leave the country. He told some other of the witnesses that they both could not live in the same town together, and indicated that he was going to leave there permanently. Soon after the county attorney had this conversation with appellant’s wife and reported the result to appellant, he himself went to see her. Appellant testified in effect that he went to the house where his wife was just before night and just after the county attorney had reported to him; that he knocked at the door and called her, but he had no response from her. 1-Ie thereupon opened the door to the front room and she then came out of the back or shed room into the front room where he was, and asked him, '“What are you doing here?” and some conversation occurred between them; that he sat down on the side of the bed at one end and she on the other end on the same side and that they thus sat and talked for some half hour; that, notwithstanding this was in December, it was quite a warm day and he pulled off both his coat and vest, and hung them on a chair near the bed; that he had pinned on his coat or vest at the time a small picture of himself, and, seeing her noticing it particularly, he took it off and gave it to .her; that he and his wife sat there on the bed some 30 minutes. Among other things he testified: “Then she got up, and just turned around in the floor like, right out sort of to one side and says, ‘You had better leave here right now,’ and was rubbing her hands this way (illustrating), and says, ‘There will be a man here directly that will hill us both.’ I said, ‘If that is the case, I will leave, I wouldn’t have you hurt for nothing on this earth, I love you too well.’ I just reached over and picked up my coat, and out I went, and I didn’t know at the time but what I had the vest too.” Again he testified: “There was no one there except she and I that I know of. I had heard no one walking in the other room, and had heard no one talking. I heard a noise in that other room, it was a noise something like paper rattling, something like that, or maybe a little heavier noise than that, that is all I heard. I had been there something like 20 or 30 minutes, or maybe not but 15 minutes, when I heard that, I don’t know exactly, and I stayed there about 5 or 6 minutes, or maybe 10 minutes after I heard that noise.”

He claims that when she told him to leave, as above shown, he did so, picking up his coat off of the chair and thinking that he had his vest too; that he walked out of the door and after getting off some distance heard his wife say, “Why that’s my husband,” looked back but saw no one, and went on down to the railroad and after passing some Mexicans he got out his knife, cut his throat, stabbed himself several times in the breast with the knife, then jumped in the river to drown himself, but that the water was so cold it like to have frozen him, he came to himself, got hold of a limb, called for help, and some Mexicans came and rescued him. About the middle of the next morning some one saw where blood had run from the house where deceased lived out on the ground. The officers were notified. They then went down to the house where deceased was, and found her sitting on the edge of the bed, dressed, except that one shoe was off, with her head leaning forward, and her shoulder resting against the side of the wall. An axe was found at the foot of the bed and her head crushed, evidently by a lick from the axe which crushed her skull, over her right eye, across her nose, and her left cheek bone. Blood had run profusely over all the bed, the floor, and other places. Appellant’s vest was found on this chair with blood stains on it. It is useless to further describe what was found in the house. The woman was dead and stiff when found.

The woman had rented the house from a man by the name of Stahl. Stahl was an Important witness for the state. Among other things, he testified that he passed this house where the woman was late Sunday evening, and saw her then sitting in the room in her rocking chair, the door partly open; that later he went down in the same locality to get his milch cow; this was just about dusk, or before night; that he then saw appellant come out of this woman’s house and close the door after him, and that appellant started in the direction where soon after he attempted suicide by both cutting himself and throwing himself in the river.

Appellant has but three bills of exceptions, and no questions raised otherwise. By the last of these he complains that two of the jurors were incompetent, and before they were taken upon the jury had expressed themselves against appellant. The court heard evidence on this ground of appellant’s motion by several witnesses, and overruled appellant’s motion. No bill of exception was filed to this action of the. court showing this testimony until nearly 30. days after the court adjourned. Under- the statute ánd the uniform decisions of this court this bill was filed too late to be considered by the court, and we must presume that the action of the court was correct and justified by the evidence heard. Knight v. State, 144 S. W. 967, and cases therein cited; Brewer v. State, 153 S. W. 622, and many other cases unnecessary to cite.

By another bill appellant complains that the court refused to permit him to prove by several witnesses that the general reputation of his wife, the deceased, for virtue and chastity in the community in which she lived was bad. This evidence certainly was not admissible for any purpose.

The other bill shows that while the state’s witness Stahl was on the stand he asked him if it was not a fact that about two or three nights before this killing he was at the deceased woman’s house after dark, trying to gain admission, and that she would not let him in; and, further, if on that occasion he did not state to her that he would be around in the morning and bring her some wine, to which questions Stahl emphatically answered in the negative. He then proposed to prove by his witness Julius Wade that he, Wade, was at the house on this occasion and stayed all night with the woman for immoral purposes, and would have testified that said Stahl did come to said woman’s house two or three nights before her death and tried to gain admission thereto, and that she would not let him in, and that he then stated to her that he would be around the next moaning and bring her some wine. The state objected to this proposed evidence by Wade because by it appellant sought to impeach the state’s witness Stahl upon an immaterial matter. The court sustained the objection and excluded the testimony. The bill shows, as stated above, that Stahl was an important witness for the state, and gave material and pertinent testimony against appellant. He claims that his object and purpose in seeking the introduction of 'this evidence was to contradict and impeach Stahl; also to show the bias of said witness and the probable interest of said Stahl, and that other men than appellant and other than the husband of said woman were accustomed. to and in the habit of visiting her house at night, and that such other persons might have and probably did take the life of the deceased, and not appellant, and to weaken the cogency, if it had any probative force, of the circumstance and fact of appellant’s presence at the house of the deceased on the night of the homicide and for corroborating his testimony.

While it is always permissible for either side to show the bias and prejudice of any witness against him, yet testimony sought for this purposé must have some probative force to so show. It is never permissible to impeach a witness on immaterial matter. See section 1109, p. 722, White’s Ann. O. C. P., for a collation of some of the cases.

Evidence that any witness associated with lewd women is not admissible for the purpose of impeaching the witness. Holsey v. State, 24 Tex. App. 42, 5 S. W. 523; Arnold v. State, 28 Tex. App. 480, 13 S. W. 774; Drye v. State, 55 S. W. 65; Hudson v. State, 41 Tex. Cr. R. 453, 55 S. W. 492, 96 Am. St. Rep. 789; Reed v. State, 42 Tex. Cr. R. 573, 61 S. W. 925; Neill v. State, 49 Tex. Cr. R. 223, 91 S. W. 791. We cannot see how this testimony could have been admissible for any legitimate purpose in this case, or how it could have tended to show whether some other than appellant killed the deceased. In our opinion the court did not commit reversible error as claimed by either of appellant’s bills.

There being no reversible error, the judgment will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    GOODWIN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 4, 1913.)
    1. Criminal Law (§ 42) — Defenses—Agreement iron Immunity.
    The state was not bound by its agreement to dismiss the prosecution against accused if she would testify against her codefendant, where she refused to so testify on the trial of her codefendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 45-48; Dec. Dig. § 42.]
    2. Adultery (§ 14) — Offenses — Allegations — Marriage.
    Pen. .Code-1911, art. 490, defines^ adultery as the living together and carnal intercourse with each other of a man and woman, when either is lawfully married to some other person, and article 492 provides that, when the offense is committed, both parties are guilty, although only one of them may be married. Held, that it was sufficient in a prosecution of the woman to prove that the man was at the time married to another person then living, without proving that accused was then married, so that an allegation that she was could be rejected as surplusage.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 27, 31, 32; Dee. Dig. § 14. For other definitions, see Words and Phrases, vol. 1, pp. 212-214.]
    3. Indictment and Information (§ 125)— Allegations — Distinct Offenses.
    Where a statute provides several ways in which an offense may be committed, and all are defined in the same way, and made punishable in the same manner, they may be charged conjunctively in the same count, not being distinct offenses.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 334r-400; Dec. Dig. § 125.]
    4. Indictment and Information (§ 119)— Matters to be Proved — Surplusage.
    Unnecessary allegations may be rejected as surplusage, and allegations which are not essential to the offense, and may be omitted without affecting the charge, may be disregarded as surplusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    5. Grand Jury (§ 41) — Evidence — Testimony Before Grand Jury.
    The members of the grand jury which indicted accused and her codefendant could testify as to what accused testified before the grand jury.
    [Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §§ 86, 87; Dec. Dig. § 41.]
    6. Criminal Law (§ 1037) — Appeal—Presentation Below.
    Alleged improper, argument by the county attorney will not be considered on appeal in a prosecution ■ for adultery, where accused requested no written charge directing the jury to disregard such argument.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. § 1037.]
    Appeal from Rains County Court; O. H. Rodes, Judge.
    Georgia Goodwin was convicted of adultery, and she appeals.
    Affirmed.
    J. W. Humphrey, of Point, 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 & Ren’r Indexes

   PRENDERGAST, J.

From a conviction of appellant of adultery and a fine of $100 imposed she appeals.

The evidence was sufficient to sustain the conviction, gome time before the prosecution the grand jury indicted appellant and one R. P. Butler jointly for living in adultery. Prior to Butler’s trial, appellant made a trade with the prosecuting officer that, if he would dismiss said case against her, she would testify fully on the trial of Butler. The state thereupon and before Butler’s trial dismissed the case against her. When Butler was tried, “she went back” on her agreement, and refused to testify against him fully. Notwithstanding this, Butler was convicted. The state thereupon instituted this prosecution against her by complaint and information. She contends that the state was bound by its said agreement, and she could not thereafter be prosecuted. She made a motion to this effect, which- the court overruled. In allowing appellant’s bill to the overruling of her motion, the court qualified it by stating: “When Mrs. Goodwin was placed on witness stand in the Butler case, she claimed her privilege and refused to testify to any fact except that she was married to - Goodwin, and she understood he was then living. I overruled this motion because she refused to testify in the Butler case.”

If she had carried out her agreement with the state and testified fully as she agreed on the trial of Butler, then the state would have been bound by said agreement, and could not thereafter have prosecuted her. But certainly the state was not bound by its agreement unless she carried out her agreement with it. As shown above, she refused so to do. This question was raised by appellant several ways. The court committed no error on this point.

The appellant contends, and raised the question in the lower court in different ways, that this conviction cannot stand because the state did not prove that appellant was lawfully married to another person then living. The state did not prove that she was married to another person then living, but did prove that said Butler was married to another person then living. In other words, appellant’s contention is that under the allegations in said complaint the state had to prove that not only Butler was lawfully married to another person then living, but also had to prove that appellant was lawfully married to another person then living in order to sustain the conviction. Our statute making adultery an offense (P. O. art. 490) is: “Adultery is the living together and carnal intercourse with each other * * * of a man and woman when either is lawfully married to some other person.” Article 492, on the same subject, is: “When the offense of adultery has been committed, both parties are guilty, although only one of them may be married.” The information after the necessary formal allegations alleges that appellant on or about November 10, 1910,' in Rains county, “did then and there unlawfully live together and have carnal intercourse with one R. P. Butler, the said R. P. Butler being then and there lawfully married to another person then living (and the said Georgia Goodwin being then and there lawfully married to another person then living), against the peace and dignity of the state.”

Judge White, in section 405, p. 297, in his Annotated C. C. P., collates some of the authorities, and therein lays down therefrom the correct rule as follows: “Where several ways are set forth in the same statute by which an offense may be committed, and all are embraced in the same definition and made punishable in the same manner, they are not distinct offenses, and they may be charged conjunctively in the same count.” See Phillips v. State, 29 Tex. 233; Lancaster v. State, 43 Tex. 519; Berliner v. State, 6 Tex. App. 182; Copping v. State, 7 Tex. App. 61; Day v. State, 14 Tex. App. 26; Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Davis v. State, 23 Tex. App. 637, 5 S. W. 149; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Howell v. State, 29 Tex. App. 592, 16 S. W. 533; Laroe v. State. 30 Tex. App. 374, 17 S. W. 934; Willis v. State, 34 Tex. Cr. R. 148, 29 S. W. 787; Brown v. State, 38 Tex. Cr. R. 597, 44 S. W. 176; Moore v. State, 37 Tex. Cr. R. 552, 40 S. W. 287; State v. Smith, 24 Tex. 285; State v. Edmondson, 43 Tex. 162. See, also, section 383, p. 286, White’s C. C. P. Mr. Bishop, in volume 1, § 434,. of his New Criminal Procedure, says: “Some single offenses are of a nature to be committed by many means, or in one or another of several varying ways. Thereupon a count is not double which charges as many means as the pleader chooses, if not repugnant; and, at the trial, it will be established by proof of its commission by any one of them.” Again, in section 436, he says: “A’ statute often makes punishable the doing of one thing, or another, or another, sometimes thus specifying a considerable number of things. Then by proper and ordinary construction a person who in one transaction does all violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or,’ and it will not be double, and it will be established at the trial by proof of any one of them.” As shown above by our adultery statute on this point, the other requisites being shown, adultery is committed in either one of three ways: First, when the man is lawfully married to some other person; second, when the woman is lawfully married to some other person; and third, when both are married to some other person—that is, the man to another woman and the woman to another man. And, as the statute states, “both parties are guilty, although only one of them may be married.” And, as shown by the authorities above cited, the state - will have made its case when it “be established at the trial by proof of any one of them.”

Again, it is elementary in this state that unnecessary words in an indictment may and should be rejected as surplusage, and that redundant allegations and allegations which are in no manner necessary to a description of an offense, and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment. Mayo v. State, 7 Tex. App. 342; Gordon v. State, 2 Tex. App. 154; Burke v. State, 5 Tex. App. 74; Hampton v. State, 5 Tex. App. 463; Smith v. State, 7 Tex. App. 382; Rivers v. State, 10 Tex. App. 177; Gibson v. State, 17 Tex. App. 574; Holden v. State, 18 Tex. App. 91; Moore v. State, 20 Tex. App. 275; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Waters v. State, 30 Tex. App. 284, 17 S. W. 411; McDaniel v. State, 32 Tex. Cr. R. 16, 21 S. W. 634, 23 S. W. 939; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Lassiter v. State, 35 Tex. Cr. R. 540, 34 S. W. 751; Williams v. State, 35 Tex. Cr. R. 391, 33 S. W. 1080; Webb v. State, 36 Tex. Cr. R. 41, 35 S. W. 380; Mathews v. State, 39 Tex. Cr. R. 553, 47 S. W. 647, 48 S. W. 189; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110.

Mr. Branch, in his Texas Crim. Law, § 905, lays down the same rule in two separate paragraphs as follows: “If not descriptive of that which is legally essential to the validity of the complaint, information, or indictment, unnecessary words or allegations may be rejected as surplusage.” And: “If, eliminating the surplusage, the indictment so avers the constituent elements of the offense as to apprise defendant of the charge against him and enable him to plead the judgment in bar of another prosecution, it is good in substance under our Code, and therefore sufficiently charges the offense” — citing many of the decisions last above cited and others. It has been uniformly held in this state that, where an indictment charges the theft of several articles, it is unnecessary to prove all, but that proof of any one is sufficient. Robinson v. State, 62 Tex. Cr. R. 646, 138 S. W. 704. Many other cases unnecessary to cite. An indictment which alleges the theft of two horses is met by proof of the theft of only one of them. It is unnecessary to prove the theft of both. Alderson v. State, 2 Tex. App. 10; Edwards v. People, 26 Colo. 541, 59 Pac. 56; Edson v. State, 148 Ind. 283, 47 N. E. 625; 1 Whart. Crim. Ev. § 129. Where a party was indicted for pursuing the occupation of selling intoxicating liquors without having obtained a license and paid the occupation tax therefor, it was alleged that the state tax was $300 and the county tax $150. The statute fixed the penalty at a fine of the amount of both the state and county tax. When the case was tried, the state proved only the state tax and failed to prove any county tax. It was held that proof of the state tax only sustained the charge. Miansfield v. State, 17 Tex. App. 468; Monford v. State, 35 Tex. Cr. R. 239, 33 S. W. 351. In Terry v. State, 62 Tex. Cr. R. 73, 136 S. W. 485, where Terry was charged by indictment with unlawfully mingling strychnine with coffee with the intent to kill two persons,- it was held that proof of intent to kill only one was sufficient; that it was unnecessary to prove the intent to kill the two. This was also held in Scott v. State, 46 Tex. Cr. R. 305, 81 S. W. 950. In Nite v. State, 41 Tex. Cr. R. 342, 54 S. W. 763, it was held that, where the indictment charged the murder of two persons, proof of the killing of one was sufficient to sustain the conviction, and that it was not necessary to prove the killing of the two persons. It is needless to cite other authorities along this line. In this case, notwithstanding the allegations of the information were that both Butler and appellant were married to another, it was necessary only to prove that Butler was married to another to sustain the conviction. It was not necessary to prove that both were married to another.

It is clear, also, from the above that the latter allegation in the information, shown in parenthesis in the quotation above, could, and if necessary should, have been treated as surplusage. The information was complete and amply sufficient without that.

Appellant has a wholly insufficient bill of exception wherein she attempts to complain that the court erred in permitting two witnesses who were members of the grand jury which indicted her and Butler to testify on this trial what she testified before the grand jury at that time. Even if we could consider this bill, such testimony by them was clearly admissible. Mackey v. State, 151 S. W. 802, and cases there cited in the rehearing opinion.

By another bill too meager to require the court to consider it (Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and James v. State, 63 Tex. Cr. R. 76, 138 S. W. 612), appellant complains of the argument of the county attorney to the jury.

No written charge was requested by appellant to the jury to disregard this argu.ment. Even if we could consider appellant’s bill, it shows no error. Clayton v. State, 149 S. W. 122, 123.

We have not taken up separately each of appellant’s points assigning error, but we have considered them all, and they are embraced in what we have said above.

There being no error, the judgment will be affirmed.


author: HARPER, J.

text:
    HEIMAN et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    Rehearing Denied June 25, 1913.)
    1. Bail (§ 82) — Criminal Prosecutions— FORFEITURE — ACTIONS.
    The procedure and practice governing a suit on a forfeited bail bond are the same as in civil cases.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 372; Dec. Dig. § 82.)
    2. Bail (§ 94) — Briefs—Filing—Necessity.
    An appeal from a judgment for the state in a suit on a forfeited bail bond will be dismissed, where briefs have not been filed in the trial court and in the Court of Criminal Appeals in compliance with the rules governing civil cases.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 418-423; Dec. Dig. § 94.]
    8. Bail (§ 90) — Criminal Prosecutions — ■ FORFEITURE — DEFENSES—DEATH OF PRINCIPAL.
    Proof in a suit on a forfeited bail bond that one had received a letter from the principal stating that he was sick, but expressing a willingness to come to trial, and that for two years the principal had not been heard from, did not present the issue of his death.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §| 401-406; Dec. Dig. § 90.]
    4. Bail (§ 90) — Criminal Prosecutions — Actions on Forfeited Bail — Evidence.
    In an action on a forfeited bail bond, it is not necessary to introduce in evidence the indictment, but only the judgment nisi and the bond.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 401-406; Dec. Dig. § 90.]
    5. Bail (§ 70) — Criminal Prosecutions — Bonds — Filing.
    A bail bond duly approved, followed by the release of the prisoner, is not vitiated because it is not filed with the clerk until the day of forfeiture.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 287; Dec. Dig. § 70.]
    Appeal from District Court, Galveston County; Robt. G. Street, Acting Judge.
    Action by the State against Roy Heiman and others. From a judgment for plaintiff, defendants appeal.
    Dismissed.
    C. H. Theobold, Co. Atty., and E. A. Wilson and Walter E. Cranford, Asst. Co. Attys. all of Galveston, for appellants. C. E. Dane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

This is a suit on a forfeited bail bond, and was tried in February, 1912.

Motion for new trial was overruled in March and notice of appeal given. For some reason the appeal was abandoned, and on February 13, 1913, about a year after the trial of the ease, petition was filed praying for a writ of error, also a bond for the writ, and citation was issued on February 18,. 1913; the record not being made out and filed in this court until March 27, 1913. No briefs have ever been filed in this case in the trial court and none filed in this court by appellants until the day of submission of the cause on April 23d. Having grave doubts that the case was presented in a way we could not consider it on its merits, we have delayed the matter further to give counsel time to file additional briefs, showing in what way we would be authorized to entertain this appeal, but so far they have not done so.

It has always been the rule in this state that after forfeiture of bail bond or recognizance the procedure and practice is the same as in civil cases. Houston v. State, 13 Tex. App. 558; Holt v. State, 20 Tex. App. 273; Cox v. State, 34 Tex. Cr. R. 94, 29 S. W. 273; Morse v. State, 39 Tex. Cr. R. 572, 47 S. W. 645, 50 S. W. 342.

And it has been frequently held that, unless briefs have been filed in the court below and in the Court of Criminal Appeals in compliance with the rules governing civil cases, such appeals will be dismissed. Lewis v. State, 38 S. W. 206; Sparks v. State, 47 S. W. 976; Jay v. State, 34 Tex. Cr. R. 98, 29 S. W. 472.

Again, it appears by this record that notice of appeal was given at the term at which the ease was tried, statement of facts approved and filed, but for some reason the record was not filed in this court for nearly a year. No effort was made to bring the ease here for review until an execution had been issued and levied on property sufficient, it seems, out of which to make the' judgment ; then appellants file an application for writ of error, but take no further steps to properly present their case to this court. However, if we should consider the questions raised, they present no error. Virtually all the testimony offered tending to show the death of the principal was hearsay, and such matters as were offered to be proven as within the knowledge of the witnesses would hardly raise the issue of his death, and if the court had admitted the fact that Mr. Johnson had received a letter from him stating that he was sick, but expressing a willingness to come to trial, that for two years he had not been heard of would not be evidence of that force and cogency as to present the issue.

It was not necessary to introduce the indictment in evidence. The judgment nisi and bond were introduced, and this has been held all that was necessary. Abbott v. State, 45 Tex. Cr. R. 515, 78 S. W. 510.

The bond shows to have been made, approved, and the prisoner released .on the 1st of June, 1908, and, if the sheriff had held it in his pocket and not filed it with the clerk until the day of forfeiture, this would not vitiate the bond.

Dismissed.


text:
    CREECH v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.
    Rehearing Denied June.4, 1913.)
    1. Criminal Law (§ 198) —Former Jeopardy-Identity of Offenses — Period Covered.
    A plea of former jeopardy in a prosecution for carrying on the business of selling intoxicating liquor, contrary to law, based upon a former conviction for keeping a disorderly house in which the defendant sold liquor without a license, is bad where the time of the offense charged in the second indictment was different, and the evidence was confined to transactions subsequent to the former conviction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 385; Dec. Dig. § 198.]

      2. Criminal Law (§ 195) — Former Jeopardy-Identity op Offenses — “Same Offense.”
    Under Const, art. 1, § 14, providing that no person shall be twice put in jeopardy for the same offense, the “same offense” is not one of the same nature or a similar offense, but the identical offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 382, 383; Dec. Dig. § 195.

    For other definitions, see Words and Phrases, vol. 7, pp. 6323-6325; vol. 8, p. 7794.]
    3. Criminal Law (§ 292) — Plea of Former Jeopardy — Requisites.
    A plea of former jeopardy must allege both matters of record and matters of fact of the former conviction, to wit, indictment, acquittal, or conviction, identity of accused, and identity of offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 668-671; Dec. Dig. § 292.]
    4. Criminal Law (§ 295) — Plea of Former Jeopardy — Burden of Proof.
    To sustain a plea of former jeopardy, the defendant must prove that the acts which constitute the offense for which the former conviction was had are the very acts constituting the offense for which he is now on trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 674-678; Dec. Dig. § 295.]
    5. Witnesses (§ 268) — Cross-Examination —Scope—Facts Inconsistent with Testimony.
    Where a witness who testified that he bought whisky from the defendant stated on cross-examination that he gave some of it to another whom he had known for 15 years, and knew to be of age, the court properly sustained an objection to a question whether he came from the same place as the other one, even though counsel offered to show that the witness had been in the community only nine years, and had known the other only during that time.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec! Dig. § 268.]
    6. Criminal Law (§ 632) — Time of Trial— Discretion of Court.
    Where a case was set for trial over the objection of the defendant on the same day as seventeen other cases, and tried three days later after various dispositions had been made of the other cases, and no motion for continuance was filed by the defendant, there was no abuse of discretion in proceeding with the trial, even though there were a number of days later in the term when it could have been tried, it appearing that special venire cases were originally set for those dates and then continued.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 1447-1449; Dec. Dig,' § 632.] ■
    7. Criminal Law (§ 1092) — Bills of Exceptions — Modification by Court.
    Where the defendant accepts bills of exceptions as modified by the court, he is bound thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    8. Criminal Law (§ 666½) — Adjournment During Trial — Consultation with Defendant.
    Where a trial had been proceeding for several days, and the record showed a course of ■delay by defendant’s counsel from the beginning, it was not reversible error for the court, in view of the number of cases on the docket, to refuse defendant’s counsel time to consult with his client before putting him on the stand, and to fine counsel for delay when he refused to proc.eed with the case as ordered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1576'; Dec. Dig. § 666½.]
    9. Criminal Law (§§ 711, 1154) — Appeal — Abuse of Discretion — Limiting Arguments.
    The limiting of arguments by a court, pressed for time in the trial of cases, to one hour on each side, is within the discretion of the court, and where the bill of exceptions does not show an injury to defendant, is not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, C&it. Dig. §§ 1657, 3059; Dec. Dig. §§ 711, 1154.]
    10. Criminal Law (§ 372) — Evidence — Sales Not Specified in Indictment.
    Where a number of specific sales are alleged in an indictment for carrying on the business of selling liquor contrary to law, evidence of other sales is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834, Dee. Dig. § 372.]
    11. Criminal Law (§ 730) — Trial—Arguments of County Attorney — Matters Not in Issue.
    A statement by the county attorney in his argument in a prosecution for carrying on the business of unlawfully selling intoxicating liquor that the defendant had been violating the liquor laws for seven years, which remark the court instructed the jury not to consider, because it was not based on the evidence, is not such misconduct as to require a reversal.
    [Ed. Note. — For other cases; see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    12. Intoxicating Liquors (§ 141) — Carrying on Business — “Occupation”—“Business.”
    To sustain a conviction for unlawfully carrying on the business of selling intoxicating liquors, it need not be proved that the sale of liquor was the principal business of the defendant, since the terms “occupation” and “business,” as used in the statute, require only that the defendant follow the business of selling intoxicating liquors when an -opportunity presents itself.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 151; Dec. Dig. § 141. For other definitions, see Words and Phrases, vol. 1, pp. 915-926; vol. 8, pp. 7593-7594; vol. 6, pp. 4906-4908; vol. 8, p. 7736.]
    13. Criminal Law (§ 825) — Instructions— Accomplices.
    A charge correctly defining accomplices, and instructing as to the weight of their testimony, but leaving to the jury the question whether. certain witnesses were accomplices, is not erroneous, as not being applied to the evidence, in a case where the evidence does not clearly establish that they are accomplices, and the defendant does not ask for more specific instructions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    14. Criminal Law (§ 507) — Evidence—Accomplices — Purchaser of Intoxicating Liquors.
    A purchaser of intoxicating liquor from one selling it in violation of the law and connected with the transaction in no other way is not an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

      S. N. Creech was convicted of .unlawfully.1 engaging in the business of selling intoxicating liquors, and he appeals. Affirmed.
    W. H. Fears, of Waxahachie, 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

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

   PRENDERGAST, J.

Appellant was convicted for unlawfully engaging in and pursuing the occupation and business of selling intoxicating liquors in Ellis county, Tex., after and while prohibition had been duly put in force in said county, and his penalty fixed at five years in the penitentiary.

The indictment charged the offense to have been committed on or about March 20, 1912, and alleged many sales to various persons, naming them. The indictment follows substantially and fully the form of indictment laid down and approved by this court in Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125, and many cases decided by this court since then.

Appellant pleaded former jeopardy, and raised the question in many ways. The state contested his plea and contention, and denied that there was any former jeopardy. The former indictment and conviction relied upon by appellant was an indictment preferred against him at the February term, 1911, of the district court of said county, wherein it was charged that on or about September 1, 1910, and on each succeeding day from that date up to March 18, 1911, in a certain house in said county he kept, etc., a disorderly house of which he was the owher and lessee and which was controlled by him, in that he did unlawfully sell and keep for sale and was concerned in selling and keeping for sale, and did aid and assist and abet in selling and keeping for sale, spirituous and vinous and malt liquors without first having obtained a license under the law to retail such liquors. That case was tried on July 10, 1911, and he pleaded guilty, and upon his said plea was so adjudged and convicted and his penalty properly fixed. This case, as stated above, shows that he was charged with an entirely separate and distinct; offense at an entirely separate and distinct time. The state in this case confined its testimony in every respect to the period between July 10, 1911, and March 20, 1912, the date which the indictment herein charges this offense to have been committed. And both in controlling the evidence and in the charge the court restricted all the evidence in this case within that period. The testimony of the various witnesses introduced by the state on this trial showed that within the- time from about Décember 1, 1911, to March 1, 1912, appellant made 15 or 20 separate and distinct sales of whisky to one witness, 2 to another, 6 to another, 3 to another, 4 to another, and 4 or 5 to another. It also showed that within this period appellant sent money by various persons and otherwise to a certain saloon in Dallas, Tex., and bought and had sent to him in various ways large quantities of whisky in pint bottles. It seems he never got it in any other' container.

This court has uniformly and in many decisions held that section 14, art. 1, of our Constitution, which provides “no person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction,” as laid down by Harris’ Texas Constitution, subd. 78, p. 130, that the same offense as used in this section, does not mean an offense of the same nature or of similarity, but the identical offense. Muckenfuss v. State, 55 Tex. Cr. R. 229, 116 S. W. 51, 20 L. R. A. (N. S.) 783, 131 Am. St. Rep. 813, 16 Ann. Cas. 768; Bailey v. State, 42 Tex. Cr. R. 289, 59 S. W. 900; Lowe v. State, 4 Tex. App. 34; Campbell v. State, 2 Tex. App. 187; Alexander v. State, 21 Tex. App. 409, 17 S. W. 139, 57 Am. Rep. 617; Kellett v. State, 51 Tex. Cr. R. 641, 103 S. W. 883; Sedgwick v. State, 57 Tex. Cr. R. 422, 123 S. W. 702; Henkel v. State, 27 Tex. App. 512, 11 S. W. 672; Wright v. State, 37 Tex. Cr. R. 629, 40 S. W. 492; Lewis v. State, 24 S. W. 906; Wheelock v. State, 38 S. W. 182; Williams v. State, 13 Tex. App. 286, 46 Am. Rep. 237; Harrington v. State, 31 Tex. Cr. R. 577, 21 S. W. 356; Nichols v. State, 37 Tex. Cr. R. 616, 40 S. W. 502.

This court has also in many cases and uniformly held, as stated by the same author (subdivision 31, p. 123), that the plea of former conviction to be sustained must allege the proceedings which resulted in such former conviction, matter of record and matters of fact, to wit, the former indictment and acquittal or conviction, identity of the person convicted, and the offense of which he was convicted. Williams v. State, 13 Tex. App. 285, 46. Am. Rep. 237; Hefner v. State, 16 Tex. App. 573; Adams v. State, 16 Tex. App. 169; Kain v. State, 16 Tex. App. 282; Grisham v. State, 19 Tex. App. 510.

And also that, to sustain his plea of former jeopardy, the defendant must prove that the acts which constitute the offense for which he was formerly convicted are the very acts which constitute the offense for which he is on trial. Kain v. State, supra; Lowe v. State, 4 Tex. App. 34; Taylor v. State, 4 Tex. App. 29; Boggess v. State, 43 Tex. 347; King v. State, 43 Tex. 351; Wright v. State, 17 Tex. App. 158, as laid down and cited by Mr. Harris in subdivision 29, p. 123. This court, through Judge Hurt, in Fleming v. State, 28 Tex. App. 235, 12 S. W. 605, said: “When the time is carved, as in this case, then, the offense being continuous, whether there be a plea of former conviction or acquittal or not, the proof must be confined to acts done within the time alleged; and if the proof is confined to the time carved, and no part of the time thus carved has been used or utilized by. a former conviction, under an indictment covering the whole or a part of the’time used in this indictment, the plea of former conviction will not avail.” This course was unquestionably pursued in this case as stated above, and the court did not err in any way on this point as claimed by appellant.

Appellant has many bills of exception to the refusal of the court to permit him to ask several state’s witnesses certain questions on cross-examination. It is unnecessary to state these various matters. We give one of these bills as a sample of the whole. It shows that one of the state’s witnesses, Mansell, had testified that he bought whisky from appellant three separate and distinct times. On cross-examination, after going into the matter and each sale particularly,, he testified, and what occurred is as follows: “I drank part of that whisky; did not carry any home; I did not sell any of it. There was two or three of the boys in the crowd with me and going home we drank the whis-ky. I do not remember now just who the boys were with me; one of the Stapps boys in the crowd. He was 21 years old. I know he was because I have known him 15 years. He came to this country after I did. Q. Did he come from the same place you did?” The state objected to the examination as being immaterial. The court sustained the objection. “Mr. Fears: May it please the court, 'we are on cross-examination, and I have an object in view, and I would like to have the court to permit me to ask the question. The Court: The court has ruled on it. Mr. Fears: We except, your honor; I will ask the stenographer to take my exception; he has only been in this country nine years, and he says this, man came here after he did, and he says he has known him 15 years. The Court: You can go on and interrogate the witness any way you want to, but the court has ruled on that question. Witness: I do not remember just who the other boys were. I could not tell you how old they were; they are over 21. I had known them not very long; do not remember just who they were, but I know they have been after me about giving whisky to minors. I never gave a minor a drop of whisky in my life.” By the bill he claims that the witness, if he had been permitted to testify, would have answered that the Stapps boy did not come from the same place he did, and he did not know him until he met him in Ellis county near Ennis, where he was living. No error .is shown by the ruling of the court in this matter, and neither of the other matters complained of by appellant’s said several bills.

By several bills he complains of the action of the court in setting his case for trial and trying it at the time he did, complaining that the court at first set the case at the heel of some' seventeen other cases, and when the time arrived various dispositions were made of the other cases, and he was thereupon rushed into trial without having proper time and opportunity to prepare his case for trial. He made no motion whatever for a continuance. The indictment was returned and filed March 21, 1912. He was at once arrested at his home, Ennis, 15 miles from Waxahachie, and taken by the officer to Waxahachie the same day and placed in jail. The next day he made bond and returned to his home. It is claimed that he was unwell during part of this time. There are other matters stated in the bill. The court in allowing it explained and qualified it as follows: “By examination of statement of facts pp. 48 to 50, as referred to in this bill, the court will see the entire course of action in this matter, and as to that portion of the bill from near top of page 3 to .conclusion of the .bill I desire to qualify and explain it as follows, especially as to that part of the bill in which counsel seeks to leave the impression that this case was forced to trial with undue haste, and that there was ample time to try it if the case had been set over. Mr. Fears had appealed to the court at the time this case was set to reset it for a different date than for Monday, April 1, 1912, and was informed at the time, that the purpose in trying to get as many of the ordinary felony cases to trial during the first week as possible was on account of the great number of special venire cases which had been set for trial for later weeks during the term, and it was only for that reason that so many cases were crowded into the setting for Monday, April 1, 1912, of the first week of the. criminal docket. It is possibly true, as stated in the bill, that during the first six weeks of the criminal docket there were 13 days besides Sundays when there was no ease on trial and the court was idle, but counsel leaving the bill in that shape leaves a wrong impression; that is to say, that it was an arbitrary act of the court in not setting this case over for some later day when Mr. Fears knows that the reason for these idle days referred to in the bill was on account of the necessity of .continuing some murder eases which had been set for trial at subsequent days of the term, the disposition of which cases by continuance neither Mr. Fears or the court could anticipate .at the time this case was set down for 'trial. The bill of exception is approved with this explanation and qualification, and with the fhr-ther statement that the court was seeking to dispatch the business of a heavy docket in the best manner possible, as it appeared to the court, and that there was no disposition on the part of the court to press this case to trial out of its regular order nor in any other way to discommode counsel or defendant, but this case was on the docket, and it was set for trial at the most feasible time that in the judgment of the court it could be disposed of.” The other bill on the same subject, claiming that the appellant’s attorney ' did not have time to consult with him, etc., the court qualified, in approving it, as follows: “There was ample time for consultation if advantage had been taken of it. Court did not convene until 9 o’clock in the morning, adjourning an hour and 30 minutes at noon, and at 6 o’clock in the afternoon. Approved with the foregoing explanation.”

The trial of the case, it seems, was begun April 4th, and was not concluded until some time on April 6, 1912. We have carefully considered these bills on this subject. The appellant, having accepted them as qualified by the court, is bound thereby, as uniformly held by this court. When and the circumstances under which trials of eases in the lower court are had must of necessity be left largely to the discretion of the lower court. In this case we think these bills and neither of them show that the court abused his discretion, and they present no error.

Appellant also complains that the court did not permit him sufficient time to consult his client before putting him on the witness stand, and in fining his attorney in connection therewith. In addition to what is shown above in the qualification and explanation by the court of appellant’s bills on the kindred subjects, the court qualified and explained this bill as follows: “In qualifying and explaining the foregoing bill of exception, I regret that counsel representing defendant has deemed it necessary in his bills of exceptions to make an attack on the conduct of the trial which leaves an impression of unfairness on my part. I desire to say in connection with this bill that if the Court of Criminal Appeals will examine the entire record in this case, together with all the bills of exceptions presented, it will see that counsel for defendant in this case began from its inception a course of delay, or attempted to do so even to the setting of the case in the first instance, which was consistently followed up during the entire trial of the ease and taxed the patience of the court almost to the breaking point. Why this was done counsel knows better than the court; but, at any rate, the conduct of counsel was not such as this trial court can commend in any instance. At the time counsel proposed to put defendant on the witness stand and asked for time for consultation, the court advised counsel at the time that he did not propose to further delay the trial of the case, and that there had been ample time for consultation if it had been- taken advantage of; the defendant in this case lived at Eimis, 15 miles from Waxahachie, and one night during the beginning of the trial of this case, in the early part of the trial, defendant left Waxahachie and went to his home at Ennis, 15 miles distant, not returning until the next morning. It may be possible that this was the night that the court held a night session for the purpose of hearing on defendant’s plea oi former jeopardy, but, if this was so,, the night’s session for that night was only for about an hour, and there was ample time that night for consultation if the defendant had remained in Waxahachie and had taken advantage of the opportunity; after counsel asked permission of the court to consult with defendant, which was denied at that time, Mr. Fears turned to the defendant and commenced to talk to him; after a few minutes the court spoke to Mr. Fears, and told him to proceed with the case. He made no reply to the court; paid no attention whatever to the request of the court for him to proceed; after waiting a few minutes longer the court asked him to proceed with the case; he again paid no attention to the court, made no reply. After waiting-a few minutes longer, the court quietly told the clerk to enter a fine of $5 against Mr. Fears, which the court thought under the-circumstances was amply warranted. With the foregoing explanation and qualification this bill of exception is approved.” This bill shows no reversible error.

Appellant complains that the court limited the argument of the case to one hour to-the side. The court stated, in approving the bill, that the docket was crowded, the court pressed for time, and the time allowed for-argument was sufficient in his judgment. This court has uniformly held that such matters must be left to the discretion of the-lower court, and, unless that discretion has been abused to such an extent as to show material injury to the appellant, no reversible error is shown. The bills on this subject do not show that the court abused his discretion to the injury of appellant.

The state introduced several witnesses who testified to many purchases of whisky from appellant during the months of December, 1911, and January and February, 1912. The appellant made no objections to this testimony when introduced. After all of the evidence had been introduced, however, he made a motion to exclude the testimony of some of these witnesses, because the particular time of said purchases by them was not alleged in the indictment. Many specific sales to persons named and the time thereof were alleged in the indictment, and proven, making a great many more than two specific sales within such time. This court has uniformly and in many decisions held that, even where such sales are not specifically alleged, they can be proven for the purpose of tending to establish that the appellant pursued thé business or occupation of selling intoxicating liquors. It is unnecessary to cite all' the cases-; but see Clay v. State, 144 S. W. 280; Whitehead v. State, 147 S. W. 584; Wilson v. State, 154 S. W. 574.

By another bill appellant complains of this statement made by the county attorney in his argument to the jury: “S. N. Creech has walked up and down the streets of En-nis for seven years looking for men to sell whisky to, and violating the laws.” The oourt not only sustained appellant’s objection to this, but gave his charge to the jury that they were not to consider such statement for any purpose, because there was no evidence to that effect. Notwithstanding that, appellant claims the statement was of such character as requires a reversal by this court. This court in Tweedle v. State, 29 Tex. App. 591, 16 S. W. 545, in discussing improper remarks of the prosecuting attorney, said: ‘‘To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. State, 19 Tex. App. 227; Bass v. State, 16 Tex. App. 62.” Coyle v. State, 31 Tex. Cr. R. 604, 21 S. W. 765; Green v. State, 32 Tex. Cr. R. 298, 22 S. W. 1094; Pierson v. State, 18 Tex. App. 524.

The court charged: “(4) You are further instructed that the terms ‘occupation’ and ‘business,’ as used in this statute, do not mean that the selling of intoxicating liquors must be the principal business or occupation of the party, nor that he should give his whole, or a greater part, of his time to it, but if one follows the business or occupation of selling intoxicating liquors whenever an opportunity presents itself, under the meaning of the statute, it would be his business or occupation.” This charge is in conformity with the many decisions by this court. Pitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040; Clark v. State, 61 Tex. Cr. R. 602, 136 S. W. 260. See, also, Dickson v. State, 146 S. W. 918; Whitehead v. State, 147 S. W. 584; Hernandez v. State, 141 S. W. 268; Atkinson v. State, 149 S. W. 115. The court correctly refused appellant’s requested charge, which was: “Gentlemen of the jury, you are further instructed that by the terms occupation and business as used herein is meant vocation, calling, trade; the business which one principally engages in to procure a living or obtain wealth.” -

On the subject of the testimony of an accomplice the court charged as follows:

“(7) A conviction cannot be had upon the testimony of an accomplice, or any number of accomplices, unless the jury first believes that the testimony of the accomplice or accomplices is true, and that it connects the defendant with the offense charged, and even then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of the accomplices’ testimony, tending to connect the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him; and you are further instructed that one accomplice cannot be corroborated by another. An ‘accomplice’ as the word is here used means any. one connected with the crime charged, either as principal offender, as an accomplice, as an accessory, or otherwise. It includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring either before, at the time of, or after the commission of the offense, and whether or not he was present and participated in the commission of the crime; but in this connection you are instructed that one who merely purchases intoxicating liquor from one unlawfully selling it, and connected with it in no other way than as a purchaser, is not an accomplice.
“(8) Now, if you believe from the evidence that Spence Crenshaw, Crawford House, J. Netta Wade, Tharp Beauchamp, and Gus Brooks, or either of them, are accomplices, as heretofore defined, then you are instructed that you cannot convict the defendant on their testimony, unless you first believe that their testimony is true, and that it connects the defendant with the offense charged against him, and even then you cannot convict the defendant upon their said testimony, unless you further believe there is other testimony in the case corroborative of the accomplices’ testimony tending to connect the defendant with the offense charged; and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him, and if you find that said parties named, or either of them, are accomplices, then you are instructed that neither can corroborate the other, but the corroborative testimony must come from witnesses who are not accomplices.”

These charges are complete, correct, and admirable charges on the subject. They are in conformity with our statutes and with all the decisions on the subject. Appellant complains of them, because, he says, they fail to'apply the law to the evidence in the case. He also claims that the court should have charged the jury that said witnesses were accomplices, instead of submitting that question to the jury. Also he complains of the last sentence in charge 7 above quoted, wherein the court instructs the jury “that one who merely purchases intoxicating liquor from one unlawfully selling it, and connected with it in no other way than as a purchaser, is not an accomplice.” Judge White, in section 998 of his Criminal Procedure, discussing a proper charge with regard to accomplices’ testimony, said: “It is ordinarily sufficient if the charge of the court submit the law upon that subject in the language of the statute. And where this has been done, and the defendant fails to ask more explicit instructions, he cannot complain. Buzando v. State, 31 Tex. Cr. R. 237 [20 S. W. 560] ; Hoyle v. State, 4 Tex. App. 239; Simms v. State, 8 Tex. App. 230; Avery v. State, 10 Tex. App. 199.” Ordinarily, where there is no doubt and the prooí is certain that any witness is an accomplice, the court should so tell the jury. But even where that is ■ the case, as said by Judge White in section 1000 in his Criminal Procedure: “Where a charge on accomplice testimony announces the rule with regard to such testimony, as provided in' approved forms which are well established, it is sufficient, though the jury are not told in so many words, that any particular witness who has testified in the case is an accomplice. McGrew v. State, 31 Tex. Cr. R. 336 [20 S. W. 740]; Lockhart v. State, 29 Tex. App. 35 [13 S. W. 1012]; Hankins v. State, 47 S. W. 992; Martin v. State, 38 Tex. Cr. R. 462 [43 S. W. 352].” So Mr. Branch in his Criminal Law, § 320, p. 183, says: “It is not error to leave it to the jury to say whether a witness is an accomplice, though such fact be apparent. Dill v. State, 28 S. W. 950; Carroll v. State, 62 S. W. 1061; Ransom v. State, 49 S. W. 582; Zollicofter v. State, 16 Tex. App. 317; Hankins v. State, 47 S. W. 993.” It is a well-established rule that, when the court has charged the law applicable to the case in distinct and comprehensive terms, this court will not reverse, because it might have been fuller and more pertinent, when appellant requests no such special charge. As said by this court on this subject in Dozier v. State, 62 Tex. Cr. R. 262, 137 S. W. 681: “Appellant requested no special instruction, and, if this charge was not as full on this question as he desired, it was his duty to request additional instructions. In Sheckles v. State, 9 Tex. App. 326, it is held: ‘When the judge has charged the law applicable to the case in distinct and comprehensive terms, this court will not reverse the case simply because the charge might have been fuller and more pertinent, especially when the defects in those particulars (if any) have not attempted to be corrected by the defendant through additional instructions.’ See, also, Browning v. State, 1 Tex. App. 96; McMahon v. State, 1 Tex. App. 103; Foster v. State, 1 Tex. App. 363; Moore v. State, 15 Tex. App. 1; O’Connell v. State, 18 Tex. 343; Greenwood v. State, 35 Tex. 587; Powell v. State, 44 Tex. 63; Texas & Pac. Ry. Co. v. Gay, 86 Tex. 571 [26 S. W. 599, 25 L. R. A. 52].” Appellant requested no special charge whatever on the subject. It is also well established that, where the evidence does not clearly establish that a witness is an accomplice, the court should not charge that he is an accomplice, but should submit that question to the jury for their finding. In this case the evidence, at most, only tended to show that these witnesses or some of them were accomplices. It by no means clearly established that they were in such a way as that the court could have taken the question from the jury and charged that they or either of them were. This rule is laid down by Judge White in his Criminal Procedure, in section 1000, citing many eases. It is unnecessary for us to. collate the cases on this question, it is too well established to be necessary to do so.

It is also well established by the uniform decisions of this court that a mere purchaser of intoxicating liquor from one selling it, and connected with it in no other way than as purchaser, is not an accomplice, as charged by the paragraph of the court’s charge above quoted. Walker v. State, 72 S. W. 401; Mariner v. State, 47 Tex. Cr. R. 425, 84 S. W. 830; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370; Trinkle v. State, 59 Tex. Cr. R. 257, 127 S. W. 1060; Terry v. State, 46 Tex. Cr. R. 75, 79 S. W. 320; Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661; Ray v. State, 60 Tex. Cr. R. 138, 131 S. W. 542; Trinkle v. State, 60 Tex. Cr. R. 187, 131 S. W. 583.

There being no reversible error pointed out in this case, the judgment will be affirmed.


text:
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.
    On Rehearing, May 28, 1913.
    Rehearing Denied June 25, 1913.)
    1. Criminal Law (§ 262) — Pleading—Failure to Plead — Appeal.
    Code Cr. Proc. 1911, art. 938, provides that in all cases in the Court of Criminal Appeals the court shall presume that the defendant pleaded to the indictment. Held that, where the judgment recited that a plea of not guilty was entered by defendant, and he made no objection that he had not been called on to plead in the trial court until he raised the point on a motion for a new trial after verdict, his failure to plead if he did not do so in fact was waived.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 614, 615; Dec. Dig. § 262.]
    2. Witnesses (§ 246) — Trial—Questioning Witnesses by Court.
    In the trial of a criminal case, it is not error for the court to propound questions to witnesses in order to obtain a clearer idea of the merits.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 852-857; Dec. Dig. § 246; Criminal Law, Cent. Dig. § 1525.)
    3. Criminal Law (§, 960) — Motion eor New Trial — Presence of Accused.,
    Where, on conviction of a misdemeanor, no jail penalty was assessed, it was not material that defendant’s motion for rehearing was heard in his absence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2412-2414; Dec. Dig. § 960.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    C. L. Davis was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    Wm. N. Bonner, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

In this cáse appellant'was 'convicted of unlawfully carrying a pistol, and prosecutes this appeal.

The recognizance entered into as shown hy this' record is wholly insufficient under article 918 of the Code of Criminal Procedure to confer jurisdiction on this court, and the appeal is dismissed.

On Rehearing.

On a former day of this term this case was dismissed because of a defect in the recognizance. Appellant has filed a motion asking for a rehearing and shows that he has entered a good and sufficient recognizance since the order of dismissal was entered. This case was tried before the court without a jury, and appellant has filed a bill of exceptions stating that the defendant was not called upon to enter any plea to the information and alleging that in fact no plea was entered. The court, in approving the bill, states: The defendant was present in person and represented by his attorney, W. N. Bonner, and the said attorney for defendant entered a plea of “not guilty” and proceeded to trial without objection and without calling the attention of the court to the alleged failure of defendant to plead to the information. “I am sure the information was read and that Mr. Bonner, attorney for the defendant, pleaded not guilty.” The defendant has filed the affidavits of himself, his attorney, and two others, stating that they were present, and no plea was entered. The record shows this question was not raised until after verdict and judgment, being first called to the attention of the court in the motion for new trial. The judgment reads: “This day this cause was called for trial and both parties appeared and announced ready for trial, and the defendant, O. B. Davis, pleaded not guilty to the information and waived a trial by jury,” etc. And under such circumstances we think appellant should be held to have waived his right to enter a plea if he did not in fact do so. It is perfectly evident by the record that he was present, a trial had, evidence introduced, at which time he was permitted to cross-examine the state’s witnesses and introduce testimony to show that he was not guilty of the offense. Not only could he not have suffered possible injury, but the record shows that by no possibility could he have been injured, if in fact he did not plead to the information; he was tried as though he had entered such plea. If in fact no plea was entered, we do not think he would be permitted to sit quietly by, knowing such to be a fact, proceed with the trial of the case, introduce his testimony tending to show that he was not guilty of the offense, speculate as to the result, and in ease he should be found guilty assert as a reason why the judgment should be set aside that he in fact entered no plea. The case was tried as though he had enteréd a plea of not guilty, and under such circumstances he would in law be held to have impliedly waived the matter, and, as he was tried by 'the court certainly in holding that he had waived this formality, he suffers no injury. There are some decisions that hold, if the record did not affirmatively show that a plea was entered, the judgment would be reversed, but these decisions were rendered prior to the amendment of article 938, 0. 0. P. in 1897. This article now provides: “In all cases the court shall presume that * * * the defendant * * * pleaded to the indictment.” This court has held that those presumptions will not prevail where the question was made an issue in the trial of the case and properly presented by bill of exception in this court, but this record discloses that this was not made an issue on the trial of the case, but sought first to be raised by motion for new trial after verdict, and this statute was enacted to prevent such questions arising as is sought here to be presented. As before stated, the judgment recites that a plea of “not guilty” was entered by appellant, and we hold it is too late for him to seek to raise this question after verdict, when no exception was reserved during the trial.

As appellant was being tried by the court without a jury, the fact that the court propounded some questions to the witnesses that he might get a clearer idea of the merits of the case presents no error. In a number of cases it has been held not improper for a juryman to aslc a witness questions to enable him to more intelligently determine the issues in the case, and as in this the court was passing on the facts, without a jury, and it was in no sense improper for him to propound questions to the witnesses.

The only other bill complains that appellant was not present when the court acted on his motion for a rehearing. No objection was made until after the court had heard and acted on the motion. No jail penalty having been assessed against the defendant, he had been charged with and convicted of a misdemeanor, and, while he had a right to be present, yet if the motion is acted on when his attorney is present, and no protest made because of his absence until after the motion has been acted on, when it is a misdemeanor conviction and no jail penalty assessed against him, it will not be such error as will necessitate a reversal of the case.

The cause is reinstated and the judgment affirmed.


author: DAVIDSON, P. J.

text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    Bueglaby (§ 45) — Defense.
    In a prosecution for burglary, where the state relied on circumstantial evidence and the presumption arising from accused’s possession of recently stolen property, his bare explanation that he had purchased the property from a peddler is not sufficient to authorize a peremptory instruction for acquittal, but the case should be submitted to the jury.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 110; Dec. Dig. § 45.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    M. Johnson was convicted of burglary, and- he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, P. J.

Appellant was convicted of burglary of a private residence; his punishment being assessed at five years’ confinement in the penitentiary. The state’s ease was one of circumstantial evidence. The house was entered, and among other things taken was a watch of the alleged owner, which was found in possession of appellant shortly afterwards. His theory of the case was he made the purchase of the watch from a jewelry peddler. The jury evidently did not believe his testimony, and as presented in the record they were justified in their conclusion. The issues of the case were appropriately submitted. Appellant relies mainly upon two propositions: First, the evidence is not sufficient; and, second, the court erred in not peremptorily instructing the jury to acquit upon his theory of purchase. We are of opinion neither contention can be justly sustained. The evidence justified the jury in their conclusion, and the court did not err in refusing to peremptorily instruct the jury to return a verdict of not guilty. His theory was submitted to the jury, and they found against him.

Finding no reversible error in the record, the judgment is ordered to be affirmed.


text:
    SIMON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    Criminal Law (§ 1090*) — Questions Reviewable — Statement off Facts — Bill of Exceptions.
    In the absence of a statement of facts or bill of exceptions, questions raised by a motion for new trial cannot be considered on appeal.
    [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, Tarrant County; R. H. Buck, Judge.
    Max Simon was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of burglary under a proper indictment and charge. There is no statement of facts or bill of exception. No question is raised ■by the motion for new trial which we can consider in the absence of a statement of facts and bill of exception.

The judgment is affirmed.


text:
    OAKERY v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    Criminal Law (§ 1090*) — Appeai>—Record ' and Statement of Facts — Necessity.
    Where no bills of exception were reserved td the introduction of testimony, and the charge submitted the offense charged ' in the indictment,' the judgment would be affirmed, in the absence of a statement of facts.
    [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, Titus County; H. F. O’Neal, Judge.
    Melvin Oakery was convicted of assault to murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

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

No statement of facts accompanies the record, and no bills of exception were reserved to the introduction of testimony. The charge of the court submits the offense charged in the indictment, and under such circumstances the judgment will be affirmed.


text:
    RUPARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1913.
    On Motion for Reinstatement, May 7, 1913.
    On Motion for Rehearing, June 25, 1913.)
    1. Criminal Law (§ 1076*) — Appeal—Efeect or Defects in Recognizance.
    An appeal recognizance which is fatally defective confers no jurisdiction on the Court of Criminal Appeals, and the appeal must be dismissed.
    . [Ed. Note. — For other cases, see Criminal Law, Cent.- Dig. §§ 2708-2716, 3201; Dec. Dig. § 1076.*]
    On Motion for Reinstatement.
    2. Criminal Law (§ 1182*) — Appeal — Af-firmance.
    Where a writ of certiorari was granted to perfect the record in a criminal appeal, and to supply lost papers, and defendant had ample opportunity to supply the lost papers, but made no effort to do so, an affirmance of the conviction will be granted on motion of the state, in the absence óf a statement of facts and bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3203-3214; Dec. Dig. § 1182.*]
    On Motion for Rehearing.
    3. Criminal Law (§ 1124*) — Appea:u-Mat-ters Considered — Motion for New Trial.
    Where there is no motion for a new trial in the record, all that the Court of Criminal Appeals can consider is tlae sufficiency of the evidence in the statement of facts and the bill of exceptions allowed by the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    4. ORiminal Law (§ 1090) — Bills os Exception — Substituted Bills — Disallowance by Court.
    Where defendant, under permission to substitute lost papers, seeks to substitute bills of exceptions, the originals of which the trial court finds were not presented to nor approved by him, the Court of Criminal Appeals cannot consider the disallowed bills.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Deb. Dig. § 1090.]
    5. Criminal Law (§ 1169) — Harmless Error-Admission of Evidence — Pacts Otherwise Established.
    In a prosecution for the unlawful sale of intoxicating liquors, error in the admission of evidence as to the place of sale, where the testimony of the defendant and of all the other witnesses showed the same facts, is harmless.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    6. Criminal Law (§ 1090) — Appeal and Error — Matters Considered — Sufficiency of Information.
    A defendant can take advantage of the failure of an information to charge an offense, even though his bill of exceptions on that point is refused by the trial court.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    Appeal from Dallas County Court at Law; W. P. Whitehurst, Judge.
    John Rupard was convicted of selling intoxicating liquor without a license, and he appeals.
    Affirmed.
    Horace Williams, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., and Currie Mc-Cutcheon, Co. Atty., and Clark M. Mullican, Asst. Co. Atty., both of Dallas, for the State.

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

   HARPER, J.

Appellant was convicted of the offense of selling intoxicating liquor without having obtained a license to engage in such business.

The recognizance is fatally defective, and confers no jurisdiction on this court. However, if the recognizance was in such condition as to authorize this court to consider the record, there is no statement of facts accompanying it, and no bills of exception reserving any exception to any of the proceedings had on the trial, and it would necessarily be affirmed; but, as this court has no jurisdiction, it is ordered that the appeal be dismissed.

On Motion for Reinstatement.

On January 8th this ease was dismissed because of defective recognizance. Within the time allowed by law a motion was granted permitting appellant to file an amended recognizance, and a writ of certiorari was granted to perfect the record, no statement of facts accompanying it, appellant alleging that one had been filed and lost. We have permitted the ease to remain on the docket to give appellant time to substitute the lost papers. The county attorney of Dallas county has filed an affidavit stating that since the writ of certiorari was issued he personally went to appellant’s attorney of record, and requested him to substitute the lost papers, which he promised to do; that he has repeatedly stated he would substitute the lost papers. The county attorney further states that he told appellant’s attorney, if he would dictate the substitutes for the lost papers to his (the county attorney’s) stenog-grapher, he would have them prepared and agree with him on the substituted papers: that, although appellant’s attorney has stated he would do so, up to this time he has made no effort to substitute them. This affidavit of the county attorney was made on April 15, 1913. The county clerk files an answer to the writ of certiorari issued by this court, and after stating the papers were lost without fault or negligence on his part states: '“Tour respondent would further show that he has made a diligent search of the files of his office and diligently inquired of his deputies and employes as well as of all persons who would likely know the whereabouts of said statement of facts and bills of exception, and after such search and inquiry the whereabouts of said statement of facts and bills of exception are unknown to your respondent, and that the same are not to be found in the files of the office of the county clerk of Dallas county, Tex., or in his custody, and your respondent' would further show that he has made diligent effort to comply with the order issued by this honorable court requiring him to send up a perfect transcript of the record in said cause, and that, because of the facts and circumstances above stated, he is unable to comply therewith further than to file, as heretofore done, a copy of the indictment and charge of the court given on the trial of said cause. Tour respondent further shows that on receipt of the writ of certiorari issued on the 12th day of February, 1913, he went to the Honorable Currie McCutcheon, county attorney of Dallas county, and with Mr. McCutch-eon visited Mr. Williams and advised him of the writ. Mr. Williams claimed that he had carbon copies and agreed with Mr. McCutch-eon, county attorney, and the respondent that he would substitute same. Afterwards Mr. Williams, the attorney of record for the defendant, claimed that he had lost or misplaced the copies. The county attorney, Mr. McCutcheon, and the respondent agreed to. furnish a stenographer to Mr. Williams to dictate copies, but Mr. Williams failed and refused to avail himself of that offer.”

This answer is sworn to by J. E. Record, county clerk. Thus it is seen that ample opportunity has been given appellant to substitute the lost papers, and he has made no effort to do so, and in the absence of a statement of facts and bills of exception no matter is presented that we can review.

The cause having been reinstated, the judgment will now be affirmed.

On Motion for Rehearing.

This case was first dismissed because of an insufficient recognizance. It was reinstated on motion of appellant, he filing a recognizance in compliance with law. Appellant then prayed for a writ of certiorari to perfect the record, and it was granted. The county clerk answered the writ, that the papers were lost, and the case was then stayed to permit appellant to substitute the papers. After waiting 90 days the case was affirmed, no papers having been substituted in the court below. Appellant filed a motion for a rehearing, and prayed that further time be granted him in which to substitute lost papers, which was done. He has now substituted the statement of facts, and we have carefully read and considered it, and it amply sustains the verdict.

No motion for new trial, if any was made, has been substituted nor offered to be substituted. So all that we can consider is the sufficiency of the testimony and the bill the court has permitted to be substituted.

Appellant sought to substitute three other bills, but the court declined to do so on the ground that no such bills were reserved at the time of the trial, and the testimony of the court stenographer supports the finding of thg court that no such bills were reserved at the time of the trial. The court finding as a fact that no such bills were presented to him, nor approved by him, further entering an order refusing to permit such bills to be filed and substituted, we cannot consider them.

There is one bill, however, that the court does permit to be substituted as to the testimony of Hon. Currie McCuteheon. If this bill showed error, the same facts were testified to by appellant, and all the witnesses show that the sale of the liquor took place in that portion of the city of Dallas outside of what is termed the saloon limits, and such bill would not present reversible error.

The bill as to the information, not being permitted to be substituted, of course, cannot be considered, but, if in fact the information did not charge an offense against the law, it could be taken advantage of in this court However, the information and complaint do charge an offense.

The motion for rehearing is overruled.


text:
    SIMS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    Threats (§ 7) — Anonymous Letter — Evidence.
    Mere proof that accused delivered to pros-ecutrix an anonymous stamped and sealed letter reflecting on her chastity does not support a conviction of the crime of delivering an anonymous letter to a female reflecting on her virtue and chastity, but it must be shown that he knew the contents of the letter, which cannot be presumed from the mere fact that he delivered the letter.
    [Ed. Note. — Eor other cases, see Threats, Cent. Dig. § 12; Dec. Dig. § 7.]
    Appeal from Titus County Court; Sam Porter, Judge.
    C. R. Sims was convicted of crime, and he appeals.
    Reversed and remanded.
    Ward & Ward and T. C. Hutchings, all of Mt. Pleasant, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted under information and complaint charging him with delivering an anonymous letter to a young lady teacher, reflecting upon her virtue and chastity. The letter is set out in the complaint and information and is of that nature to support the charge. However, Miss Stewart testified: “I live in Titus county, Tex., near Montieello; I am a school-teacher; I boarded at Mr. C. R. Sims. That is the defendant C. R. Sims over there [pointing to defendant]. On the 10th day of February, 1913, I went to the schoolhouse as usual to teach school. Some time afterwards Mr. Sims came along and went to the mail box. The sehoolhouse is between his house and the mail box and he always got the mail. I got my mail in his box. As usual he went towards the mail box and came back by the sehoolhouse and knocked on the door. I was expecting a letter from some one that morning and it didn’t come. He handed me a letter; it was stamped and sealed. It was a little damp and I tore the end open and read the letter. That is the letter [identifies letter]. This was in Titus county, Tex.” There is no testimony in the record that this letter is in the handwriting of appellant or that he knew its contents when he delivered it to her.

The above being all the testimony other than the letter, we hardly think this is sufficient to support the verdict under the law. There should have been some evidence introduced tending to show that the letter was in his handwriting or that he knew its contents. If that proof should be made in another trial, the testimony would authorize a conviction. However, as there is no proof that he knew its contents, we are of the opinion the court should have given the following charge requested by appellant: “If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant did deliver to Miss Annie Stewart an anonymous letter as set out in the information, and if you further believe from the evidence beyond a reasonable doubt that said anonymous letter reflects on the integrity, chastity, virtue, good, character, or reputation, then you cannot find the defendant guilty, unless you further find from the evidence beyond a reasonable doubt in this case that at the time he so delivered the ■said letter he knew the contents of the same. And, if you have a reasonable doubt as to whether he knew what was in the letter or not, then you must give him the benefit of such doubt and find him not guilty. You cannot presume that defendant knew what was in the letter, but before you would be warranted in finding him guilty of delivering the same, as charged, you must believe from the evidence that he knew the contents of the same and knew that it reflected on the integrity, chastity, virtue, good character, or reputation of the said Miss Annie Stewart, and if you have a reasonable doubt as to that you must find him not guilty and so say by your verdict.”

The judgment is reversed, and the cause is remanded.