text:
    Ex parte McCLOSKEY.
    (No. 4773.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.
    On Motion for Rehearing, Jan. 16, 1918.)
    1. Champerty and Maintenance <&wkey;3 — ‘ ‘Barratry’ Offenses — Nature.
    Barratry was an offense at common law, and, even though Rev. St. art. 5686, allows the assignment of an unliquidated claim for damages for personal injury or other choses in action, the state has the right to denounce, as the offense of barratry, the solicitation of employment to collect such claims.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Barra-try.]
    2. Constitutional Law <&wkey;70(3) — _Sepabation of Powers — Province of Legislature.
    The policy of statutes is no concern of the court so long as they do not violate the Constitution.
    3. Champerty and Maintenance <&wkey;3 — Constitutional Law c&wkey;>295 — Due Process of Law — Deprivation of Property — “Barra-try.”
    Acts 35th Leg. c. 133, amending Pen. Code, art. 421, to further define barratry, declares that, if any person shall seek to obtain employment in any claim or to collect the same by means of personal solicitation of such employment, he shall be deemed - guilty of barratry. Thus the original article, which applied only to attorneys at law, was extended to others who might, without being members of the bar, enter into the business of soliciting claims for collection, etc. Const, art. 1, § 3, declares that no man or set of men is entitled to exclusive separate privileges. Section 19 of the same article declares that no citizen of the state shall be deprived of property, privileges, or immunities except by due course of law. Held, that the statute as it applied to all persons alike gave no special privilege to any one, nor did it, on the theory that the disposition of unliquidated claims was legal, deprive any person of property, privilege, or immunity by making it an offense to solicit claims for collection.
    4. Constitutional Law &wkey;>208(6) — Class Legislation — Propriety.
    Such statute was not in violation of Const. TJ. S. Amend. 14, § 1, as class legislation; the act making no classes but applying to every person who might violate its provisions.
    On Motion for Rehearing.
    5. Champerty and Maintenance <&wkey;3 — Bar-ratry — Statutes—Validity.
    No member of a state has the unrestricted right to use his property to the detriment of others, and for that reason Acts 35th Leg. c. 133, amending Pen. Code, § 421, so as to further define barratry and make it an offense to solicit . claims for collection, etc., is valid though to an extent interfering with the rights of citizens in that matter.
    Original application by Prank McCloskey for writ of habeas corpus directed to the Sheriff of Bexar County.
    Writ denied, and relator remanded.
    Ward & Bickett, of San Antonio, for appellant. B. D. Tarlton, Jr., of Beeville, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This habeas corpus proceeding was instituted to test the validity of our barratry statute. Relator contends it is void and unconstitutional on these grounds, briefly stated:

(1) Because, so far as it relates to persons who are not attorneys, its provisions are so indefinitely framed, and are of such doubtful construction, as to be inoperative under article 6, P. O.

(2) Because, as claims for personal injuries, and all other choses in action, are property, and assignable, the right to solicit their purchase, and to seek employment to either collect or purchase them, is a lawful business, and all persons have a right to engage therein, and therefore said law is void because in violation of sections 3 and 19, art. 1, of our Constitution.

(3) Because it is in conflict with section 1 of the Fourteenth Amendment to the United States Constitution, in that it is class legislation, permitting the adjustment of all personal property except claims and debts, and denies to him the equal protection of the law.

The statute so attacked is the Act of March 29, 1917, p. 336, the caption of which as corrected by the act approved March 29, 1917, p. 497, is:

“An act to amend article 421 of the Penal Code of the State of Texas, to further define ‘bar-ratry’ so as to include the fomenting of litigation for profit and by persons in addition to attorneys at law by soliciting employment or advancing money or other thing of value to claimants or to the parties to litigations in order to procure employment, or who practice law without license.
“Be it enacted by the Legislature of the State of Texas:
“Section 1. That article 421 of the Penal Code be, and is hereby amended so as to hereafter read as follows: Article 421(a). If any person shall willfully instigate, maintain, excite, prosecute or encourage the bringing of any suit or suits at law or equity in any court of this state in which such person has no interest, for his own profit or with the intent to distress or harass the defendant therein, (b) or shall willfully bring or prosecute any false suit or suits at law or equity, of his own, for his own profit or with the intent to distress or harass the defendant therein, (c) or shall willfully instigate, maintain, excite, prosecute or encourage the bringing or presentation of any claim in which such person has no interest, for his own profit or with the intent to distress or harass the person against whom such claim is brought or prosecuted, (d) or shall seek to obtain employment in any claim, to prosecute, defend, present or collect the same by means of personal solicitation of such employment, or by procuring another to solicit for him employment in such claim, (e) or who shall, by himself or another, seek or obtain such employment by giving, directly or indirectly, to the person from whom the employment is sought money or other thing of value, (f) or who shall, directly or indirectly, pay the debts or liabilities of-the person from whom such employment is sought, (g) or who shall loan or promise to give,-loan or otherwise grant money or other valuable thing to the person from whom such employment is sought before such employment, whether the same be done directly by him or -through another, (h) or if any attorney at law shall seek or obtain employment in any suit or case at law, or in equity, to prosecute or defend the same by means of personal ■ solicitation of such employment, or by procuring another to solicit for him employment in such cases, (i) or who shall, by himself or another, seek to obtain such employment by giving directly or indirectly to the person from whom employment is sought money or other thing of value, (j) or who shall directly or indirectly pay the debts or liabilities of the person from whom such employment is sought, (k) or who shall loan or promise to give, loan or otherwise grant money or other valuable thing to the person from whom such employment is sought, before such employment, in order to induce such employment, whether the same shall be done directly by him or through another, shall be deemed guilty of barratry, and shall upon conviction be punished by fine in any sum not to exceed five hundred ($500.00) dollars, and may in addition thereto be imprisoned in the county jail not exceeding three months; provided, that the penalties hereinbefore prescribed shall apply not only to attorneys at law, but to any other persons «who may be guilty of any of the things set forth in the foregoing provisions of this act. The term attorney shall include counsel at law; and any attorney at law violating any of the provisions of this law shall in addition to the penalty hereinabove provided, forfeit his right to practice law in this state, and shall be subject to have his license revoked and be disbarred in the manner provided by law for dishonorable conduct or malpractice, whether he has been convicted for violating this law or not.
“Sec. 2. The evils sought to be remedied by this act being such as to prevent amicable and just settlements of claims and disputes between parties and interfere with the due administration of justice in the courts, an emergency and an imperative public necessity exists that requires that the constitutional rule requiring bills to be read on three several days be suspended, and that this act shall take effect from and after its passage, and it is so enacted.”

We have subdivided said act by letters a, b, c, and so on, so that what is made an offense may be more readily seen, in the discussion. These subdivisions are not so designated in the act itself.

The complaint and information herein was in two counts. The first avers that on September 23, 1917:

“One Gus Rote and one B. Richardson were traveling and riding in Bexar county, Tex., upon a public road in said county, in two different automobiles, which were going in opposite directions ; that through the carelessness and negligence of the said Gus Rote, the said two automobiles then and there collided; that by reason of the said collision of said two automobiles, the said B. Richardson received divers and sundry serious injuries, whereby and on account thereof, the said B. Richardson had a claim and cause of action for damages against the said Gus Rote, by reason thereof; that thereafter, to-wit, on the 25th day of September, A. D. 1917, Frank P. McOloskey, who was not then and there an attorney at law, having learned of the collision of said two automobiles, as aforesaid, and of the injuries received thereby, by the said B. Richardson, and of the existence of the claim and cause of action arising thereby in favor of the said B. Richardson against the said Gus Rote, for damages on account of the personal injuries aforesaid, received by him, the said B. Richardson, as aforesaid, the said Prank P. McOloskey, in the county of Bexar and state of Texas, on the 25th day of September, A. D. 1917, did see the said B. Richardson and did then and there seek to obtain employment from the said B. Richardson in said claim aforesaid, against the said Gus Rote, to prosecute and to present and collect the same by means of personal solicitation of such employment from and by the said B. Richardson aforesaid, contrary to the statute in such case made and provided and against the peace and dignity of the state.”

The second avers:

“That heretofore, to wit, Jack W. Neal and Jack C. Neal were doing business in the city of San Antonio, Bexar county, state of Texas, as copartners, under the firm name of Jack W. Neal & Son; that, among other things, the said Jack W. Neal and son were engaged in the business of painting vehicles and buggies; that on June 23, A. I>. 1917, one Edward Dwyer did employ the said Jack W. Neal & Son to paint a buggy owned by him, the said Edward Dwyer, whereby the said Edward Dwyer became justly indebted therefor, to the said Jack W. Neal & Son, in the sum of $10.50; that the said Edward Dwyer had never paid said sum of money to the said Jack W. Neal & Son, but still owes the said sum therefor to them; that n'rank P. McOloskey, who was not then and there an attorney at law, having learned of said transaction, and having learned that the said Edward Dwyer was so indebted as above stated to the said Jack W. Neal & Son, in the sum of $10.50, as aforesaid, he, the said Prank P. McOloskey, did, in the county of Bexar and state of Texas, on the 25th day of September, A. D. 1917, go and see the said Jack W. Neal & Son in relation to their said claim against the said Edward Dwyer, and did .then and there seek to obtain employment from said Jack W. Neal & Son in the said claim aforesaid, to prosecute, present, and collect the same by means of personal solicitation of such employment from the said Jack W. Neal & Son, as aforesaid; and that in pursuance of said personal solicitation of such employment, by the said Prank P. McOloskey, the said Jack W. Neal & Son did then and there deliver said claim aforesaid, against the said Edward Dwyer, to him, the said Prank P. Mc-Gloskey, with full power and authority to prosecute, present, and collect the same, they agreeing to pay him, the said Prank P. McOloskey, a percentage of said claim aforesaid, in the event he should succeed in collecting the same from the said Edward Dwyer, as aforesaid”— concluding as the previous count.

Relator was arrested and held under a proper warrant duly issued upon said information. He seeks release therefrom on the grounds above stated.

Barratry was an offense at common law, and is so made by statutes of many, if not' all, the states. As mentioned by the state in its brief, barrators are described by 4 Blackstone, p. 125, as:

“These pests of civil society, that are perpetually endeavoring to disturb the repose of their neighbors, and officiously interfering in other men’s quarrels.”

That portion of said statute under which the information was drawn is to this .effect:

“If any person * * * shall seek to obtain employment in any claim, to prosecute, * * * present or collect the same by means of personal solicitation of such employment, * * *[lie] shall be deemed guilty of barratry,” fined, etc.

This statute is clear and certain to the effect that it makes it an offense for any one by personal solicitation to seek to be employed by another to prosecute or collect any claim such other may have.

That one may have the right to sell his un-liquidated claim for damages "for a personal injury to himself, or that he has the right to assign any chose in action or other claim he may have against another, does not prevent the Legislature from making it unlawful for an outsider — a barrator — to do just what it did make it unlawful to do by said act of 1917. As for that matter, the common law, in effect, forbade the sale of any chose in action. Our statute changed the common law in that respect (article 5686, R. S.) and made them assignable. Prior to 1895 a claim of damages for personal injury was not assignable. McCloskey v. San Antonio Trac. Co., 192 S. W. 1119. The Legislature would have the power to again make all such claims unassignable, and these older laws would not control the effect of this amendment, but it would control and modify them.

It seems reasonably certain that the alleged acts of relator himself were the direct cause of the Legislature amending said article 421 of the Penal Code, by said act of 1917. Before said amendment, said act read:

“If any person shall willfully instigate, maintain, excite, prosecute or encourage the bringing of any suit * * ⅜ at law or equity in any court of this state in which such person has no interest, with the intent to distress or harass the defendant therein, or shall willfully bring or prosecute any false suit or suits at law or equity, of his own, with the intent to distress or harass the defendant therein, or, if any attorney at law shall seek or obtain employment in any suit or case at law, or in equity, to prosecute or defend the same by means of personal solicitation of such employment, or by procuring another to solicit for him employment in such cause, or who shall, by himself or another, seek or obtain such employment by giving to the person from whom the employment is sought money or other thing of value, or who shall, directly or indirectly, pay the debts or liabilities of the person from whom such employment is sought, or who shall loan or promise to give, loan or otherwise grant money or other valuable thing to the person from whom such employment, is sought, before such employment, in order to induce such employment, whether the same shall he done directly by him or through another, shall he deemed guilty of barratry, and shall, upon conviction, be punished by fine in any sum not to exceed five hundred dollars, and may in addition thereto be imprisoned in the county jail not exceeding three months. The term attorney at law shall include counselor at law; and any attorney at law violating any of the provisions of this law, shall, in addition to the penalty hereinbefore provided, forfeit his right to practice law in this state, and shall be subject to have his license revoked and be disbarred in the manner provided by law for dishonorable conduct or malpractice, whether he has been convicted for violating this law or not”

Shortly prior to February, 1917, the San Antonio Traction Company brought a suit for injunction against relator, setting up in detail a terrific state of facts which he had committed, which are stated by the San Antonio Court of Civil Appeals in the opinion (192 S. W. 1117), and of which the opinion says:

“The evidence introduced at the hearing is fairly summarized by the trial judge in his terse, lucid, and able opinion, as follows: ‘The testimony offered by the plaintiff tends strongly to establish the material allegations in the plaintiff’s petition. It appears that about 60 per cent, of all the claims presented against the plaintiff are presented by the defendant. A large number of witnesses testified that they had received slight injuries, or been on cars which were derailed in which they received practically no injuries; that they were not acquainted with the defendant or his agents, and that almost immediately after such accidents the defendant or his agents approached them and solicited his employment by the claimants, urging them to present claims against the plaintiff for large damages, and that, if they would give him the claims to handle, he could obtain large sums of money for them, and urging them to exaggerate their injuries, to remain in bed as long as they could endure it, and when they went out insisted upon their using crutches when not necessary, and by various means trying to induce them to assist him in obtaining large sums of money from the plaintiffs, in many instances paying them a considerable sum of' money in advance for the purpose of securing contracts of employment from them, and in some instances calling in a doctor to advise the claimants that they were seriously and permanently injured, when in truth and in fact they were only slightly injured, or not injured at all; that a great number of suits for hundreds of thousands of dollars were filed by attorneys employed by the defendant on claims presented by the defendant, and that the defendant is still continuing said business, one claim having been presented during the hearing of this application, and that he proposes to so continue the same. Although the defendant and his principal agent and assistant were present in court during the hearing of this application and heard the testimony of these witnesses, in which they were charged with the things hereinabove stated, they did not take the stand to deny or refute the testimony of these witnesses.’ ”

The district court enjoined him, from which he appealed. The Court of Civil Appeals, in an opinion rendered February 7, 1917, held that said article 421, as it then was, restricted the offense of barratry to attorneys at law, saying:

“It is clear that only an attorney at law is forbidden to solicit employment in any suit himself or by an agent. Why the Legislature left it lawful for a layman to do with impunity those things which it made unlawful to be done by an attorney at law, we are not called upon to explain. It may be the Legislature did not anticipate that a layman would develop a large and lucrative business of speculation and peculation, as Judge Gould expressed it in the brief in the Bentinck Case [38 Tex. 458], dealing with the accidents of transportation companies. We find that there is not in force in this state any common-law nor statutory law that makes it unlawful for a person, who is not a licensed attorney, to solicit employment as agent to adjust claims, nor to solicit claimants to present claims or sue upon them.”

Thereupon the Legislature passed said amendment to cover this very omission, enacting “if any person,” etc., and further enacting therein:

“That the penalties hereinbefore prescribed shall apply not only to attorneys at law, but to any other persons who may be guilty of any of the things set forth in the foregoing provisions of this act.” .

The caption also makes it clear that all others, as well as attorneys, were embraced.

Surely such conduct by relator, or any other, was such as would not only authorize, but require, the Legislature to make it an offense, and thereby seek to prevent in future such iniquitous conduct. But the policy of the Legislature is no concern of the courts, Just so it does not, by its legislation, violate the Constitution.

There is nothing in said act contravening sections 3 or 19, art. 1, of our Constitution. The act, so far as relator is concerned, applies to all persons alike, and gives no special privilege to any one, and denies none to him except which it denies to all others.. Nor does said act deprive him, or any other, of life, liberty, property, privilege, or immunity, except by due course of the law of the land. The act itself is due course of law.

Neither is there anything in the act smacking - of class legislation. The reverse of this is true. It applies to every person who violates its provisions. It makes no class. But, even if it did, the Legislature had the right, and in many instances it is its duty, to make classes in the enactment and enforcement of laws. See authorities in note 10, p. 61, Harris’ Texas Constitution.

Relator, by his able attorneys, has briefed this case from his standpoint in a clear and forcible manner, and cited authorities claiming they sustain his contentions. ■ It, and the authorities cited by him, have had due and full consideration.

Because it is the opinion of this court that •said act is valid and not unconstitutional, it is ordered that relator be remanded to the custody of the sheriff of Bexar county.

Relator remanded to custody.

On Motion for Rehearing.

In his motion for rehearing the relator again urges, in a forcible brief and argument, ' substantially the same contentions made by him in the original submission of this cause. As contended by the state in its brief and argument, in reply to the relator’s, there is no substantial difference from his original insistence. It would seem needless, then, to further discuss any of them. However, it is thought best to cite and quote from some of the, many decisions, especially from tne United States Supreme Court, directly in point, establishing the law clearly against relator’s contentions.

The statute which he attacks and the complaint and information against him thereunder were quoted in the original opinion; also, the grounds of his attack were stated therein. It is unnecessary to repeat any of these. The authorities, and quotations therefrom, which will now be given, are so clearly applicable it will be unnecessary to enter into any specific application of them in this opinion.

The .United States Supreme Court, in Crowley v. Christensen, 1ST U. S. 89, 11 Sup. Ct. 15, 34 L. Ed. 623, laid down the correct doctrine applicable herein, as follows:

“It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex, and condition. But the possession and enjoyment of all rights are subject to such rea? sonable conditions as may be deemed by the governing authox-ity of the country essential to the safety, health, peace, good ordei-, and morals of the community. Even liberty itself, the greatest of all rights, is not uni-estrieted • license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law. The right to acquire, enjoy, and dispose of property is declared in the Constitutions of several states to be one of the inalienable rights of man. But this declaration is not held to preclude the Legislature of any state from passing laws respecting the acquisition, enjoyment, and disposition of property. What contracts respecting its acquisition and disposition shall be valid and what void or voidable; when they shall be in writing and when they may be made orally; and by what instruments it may be conveyed or mortgaged — are subjects of constant legislation. And as to the enjoyment of property, the rule is general that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property. _ Sic utere tuo ut aíienum non laedas, is a maxim of universal application.
“For the pursuit of any lawful trade or business, the law iinposes similar conditions. Regulations respecting them are almost infinite, varying with the nature of the business.”

That great court, in Purity Extract & T. Co. v. Lynch, 226 U. S. 201, 33 Sup. Ct. 46, 57 L. Ed. 187, again laid down the unquestionable doctrine applicable herein, as follows:

“It is also well established that, when a state exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable, relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction, separately considered, is innocuous, it may not be included in a prohibition the scope of which is regarded as essential in the legislative judgment to accomplish a purpose within the admitted power of the government. Booth v. Illinois, 184 U. S. 425, 46 L. Ed. 623, 22 Sup. Ct. 425; Otis v. Parker, 187 U. S. 606, 47 L. Ed. 323, 23 Sup. Ct. 168; Ah Sin v. Wittman, 198 U. S. 500,504,49 L. Ed. 1142,1144, 25 Sup. Ct. 756; New York ex rel. Silz v. Hesterberg, 211U. S. 31, 53 L. Ed. 75, 29 Sup. Ct. 10; Murphy v. California, 225 U. S. 623, 56 L. Ed. 1229 [41 L. R. A. (N. S.) 153], 32 Sup. Ct. 697. With the wisdom of the exercise of that judgment the court has no conc.ern; and, unless it clearly appears that the enactment has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the Legislature — a notion foreign to our constitutional system.
“Thus, in Booth v. Illinois, 184 U. S. 425, 429, 430, 46 L. Ed. 623, 22 Sup. Ct. 425, 426, the defendant was convicted under a statute of that state which made it a criminal offense to give an option to buy grain at a future time. It was contended that the statute, as interpreted by the state court, was ‘not directed against gambling contracts relating to the selling or buying of grain or other commodities, but against mere options to sell or buy at a future time without any settlement between the parties upon the basis of differences, and therefore involving no element of gambling.’ The argument was that it directly forbade the citizen ‘from pursuing a calling which, in itself, involves no element of immorality.’ This court, in sustaining the judgment of conviction, said: ‘If, looking at all the circumstance» that attend, or which may ordinarily attend, the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law.’ It must be assumed, it was added, that ‘the Legislature was of opinion that an effectual mode to suppress gambling grain contracts was to declare illegal all options to sell or buy at a future time;’ and the court could not say that the means employed were not appropriate to the end which it was competent for the state to accomplish. Id. pp. 429. 430.
“The same principle was applied in Otis v. Parker, 187 U. S. 606, 609, 610, 47 L. Ed. 323, 23 Sup. Ct. 168, which dealt with the provision of the Constitution of California that all contracts for the sale of shares of the capital stock of any corporation, on margin, or to be delivered at a future day, should be void, and that any money paid on such contracts might he recovered. The objection urged against the provision in its literal sense was that the prohibition of all sales on margin bore no reasonable relation to the evil sought to be cured; but the court upheld the law, being unwilling to declare that the deep-seated conviction on the part of the people concerned as to what was required to effect the purpose could be regarded as wholly without foundation. Id. pp. 609, 610.

“A strong illustration of the extent of the power of the state is found in New York ex rel. Silz v. Hesterberg, 211 U. S. 31, 53 L. Ed. 75, 29 Sup. Ct. 10. The state of New York, by its forest, fish, and game law, prohibited the possession of certain game during the close season. The statute covered game coming from without the state. It appeared that ,Silz was charged with the possession of plover and grouse which • had been lawfully taken abroad during the open season and had been lawfully brought into the state; that these game birds were varieties different from those known as plover and grouse in the state of New York; that, although of the same families, in form, size, color, and markings, they could readily be distinguished from the latter; and that they were wholesome and valuable articles of food. This court affirmed the conviction, saying: * * * ‘It is insisted that a method of inspection can be established which will distinguish the imported game from that of the domestic variety, and prevent confusion in its handling and selling. That such game can be distinguished from domestic game has been disclosed in the record in this case, and'’ it may be that such inspection laws would be all that would be required for the protection of domestic game. But, subject to constitutional limitations, the Legislature of the state is authorized to pass measures for the protection of the people of the state in the exercise of the police power, and is itself the judge of the necessity or. expediency of the means adopted.’ It was pointed out that the prohibition in question had been found to be expedient in several states, ‘owing to the possibility that dealers in game may sell birds of the domestic kind under the claim that they were taken in another state or country.’ ”

In Patsone v. Pennsylvania, 232 U. S. 138, 34 Sup. Ct 281, 58 L. Ed. 543, the same doctrine as above announced was again reiterated and emphasized. In that case an act of the Legislature of Pennsylvania was under consideration which made it an offense for any resident foreign born person to own or be possessed of a shotgun or rifle in that state, and also forfeited such weapon. The object of the. Legislature of that state in enacting that law was to protect wild game in that state. The United States Supreme Court sustained the validity of that law. It is unnecessary to quote the opinion.

In 6 Ruling Case Law, 193, based on the-decisions of the United States Supreme Court and of many of the states of the United States, the principles applicable herein are clearly laid down. Some. of these will be here quoted. Section 192 is:

“All property within the jurisdiction of a state, however unqualified may be the title of the owner, is held on the implied condition or obligation that it shall not be injurious to the equal right of others to the use and benefit of their own property. In other words, all property is held subject to the general police power of the state so to regulate and control its use-in a proper case as to secure the general safety, the public welfare, and the peace, good order and morals of the community. Accordingly it is a fundamental principle of the constitutional system of the United States that rights of property, like all other social and conventional rights, are subject to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in it by the Constitution, may think necessary and expedient. And to these ends the Legislature under its police power may pass laws regulating the acquisition, enjoyment and disposition of property, even though in some respects these may operate as a 'restraint on individual freedom or the use of property. The subordination of property rights to the just exercise of the police power has been said to be as complete as is the subjection of these rights to the proper exercise of the taxing power, and it is held that this implied condition is quite irrespective of the source or character-of the title. This principle is in effect an application of the maxim which underlies the police power, Sic utere tuo ut alienum non kedas.”

Again in section 211, p. 217, it is laid down:

“It cannot be questioned that the state, under its police power, has the right to regulate any and all kinds' of business, to protect the public health, morals and welfare, subject to the restrictions of reasonable classification. If a vocation or the mode of exercising it inflicts injury to the rights of others, or is inconsistent with the public welfare, it may be regulated and restrained by the state, by the exercise of its police power, and this power is not confined to the regulation of these classes of business which are essentially illegal, for it extends likewise to lawful callings. In this connection it has been declared that the right of regulation is an exception to the general rule that every person has a right to pursue any lawful calling. ⅜ * * jt js not necessary that it always affect injuriously the public at large. On the contrary, it may be regulated if it affects injuriously those engaged in it, or those brought in. direct contact with it, even though its pursuit may benefit generally the people of the-state at large.”

Again in section 214, p. 221, it is said:

“Since all rights are held subject to the police-power of the state, when necessary the Legislature may prohibit absolutely the maintenance of any particular business if the public safety or the public morals require its discontinuance; and the hand of the Legislature cannot be-stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. A calling may not be immoral in itself, and yet the tendency of what is generally or ordinarily or often done in pursuing that calling may be towards that which is admittedly immoral or pernicious. If, looking at all the circumstances that attend, or which may ordinarily attend, the pursuit of a particular calling, the state thinks that certain admitted evils cannot be successfully reached unless that calling be actually prohibited, the courts cannot interfere, unless, looking through mere forms and at the substance of the matter, they can say that the statute enacted professedly to protect the public morals has no real or substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law.”

See, also, Claunch v. State, 199 S. W. 483, Johnson v. Elliott (Civ. App.) 168 S. W. 968.

In the original opinion, in the case from the Court of Civil Appeals at San Antonio, cited and quoted from, it is clearly shown that the business followed by relator, and doubtless by others who have followed the same business, was most pernicious and vicious; that it had a tendency to, if it did not actually produce, fraud and fabrication of a most injurious character. There can be no doubt under the authorities and reason that the Legislature had the right to enact the law attacked by the relator herein, and that it is valid and constitutional.

Particular stress and a great many authorities are cited by relator in his motion and brief herein, contending, in effect, that where it was stated in the original opinion that the common law, in effect, forbade the sale of any chose in action, and that our statute (article 5686, R. S.) changed the common law so as to make them assignable, it is not correct; relator claiming and citing many authorities to the effect that either at common law as in later years declared, and particularly in equity, all choses in action were assignable. Perhaps the said statement in the court’s opinion may have been too broad, but whether the statement therein was correct, or relator’s contention is correct, did not and could not materially affect the conclusion reached in the original opinion. So that it is unnecessary now to further state or discuss that question. It might be conceded for the sake of the argument that relator’s contention is correct and the statement by the court was incorrect. The same result from the authorities would be reached.

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


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    TIMMINS v. STATE.
    (No. 4502.)
    (Court of Criminal Appeals of Texas.
    June 29, 1917.
    Rehearing Denied Jan. 16, 1918.)
    x. Perjury <&wkey;19(2) — Indictment — Sheet-GIENC Y.
    An indictment for perjury committed be-rore a grand jury investigating a charge of illegal liquor selling, alleging a prior election in which liquor selling was prohibited in the county, was not bad for omitting specifically to allege that liquor selling was unlawful at the date of the investigation.
    2. Perjury t&wkey;19(2) — Indictment — Suiti- ■ CIENCY.
    An indictment for perjury committed before a grand jury investigating a charge of illegal liquor selling in a certain county was not defective in failing to show that the testimony or inquiry was confined to transactions taking place in that county.
    3. Perjury <&wkey;34(3) — Evidence— Corroboration.
    Falsity of accused’s testimony before grand jury held established by two credible witnesses or one credible witness strongly corroborated as required by Vernon’s Ann. Code Or. Proc. 1916, art. 806.
    4. Criminal Law <&wkey;742(l) — Perjury <&wkey; 34(4) — Evidence—Corroboration.
    In prosecution for perjury committed before grand jury investigating charge of illegal liquor selling, where there was no proof of agreement making the person against whom the charge was made immune from punishment in consideration of testimony against accused, but merely evidence from which such an understanding could be inferred such a person was a competent witness, within Vernon’s Ann. Code Or. Proc. 1916, art. 806, requiring two credible witnesses, or one credible witness strongly corroborated; and his credibility was for the jury.

      5. Witnesses <&wkey;373 — Impeaching—Predicate.
    In prosecution for perjury, evidence impeaching state’s witness by showing agreement relative to immunity from prosecution on another charge in consideration of testimony against accused was inadmissible where no predicate had been laid by inquiry of such witness with reference to such agreement.
    6. Criminal Law <&wkey;417(3, 4) — Impeaching —Hearsay.
    In prosecution for perjury, refusal to permit accused to ask certain grand jurors on cross-examination if the district attorney had not informed them that, if they would rescind action against one charged with another offense, he would go in and testify against ac-. cused, was not error ; the excluded evidence not purporting to be statements by the witness sought to be impeached, but hearsay information obtained by the grand jurors from the district attorney.
    7. Criminal Law <&wkey;829(17) — Instructions —Intoxication.
    In perjury trial, refusal of special charge to acquit if finding that accused because of intoxication was unable to remember the facts with reference' to transactions testified to by him before the grand jury, on which testimony the prosecution was based, was not error, where the court elsewhere charged that a false statement made through inadvertence or under agitation or by mistake was not perjury, and directed acquittal if finding accused was so intoxicated he did not remember the transaction.
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    W. A. Timmins was convicted of perjury, and appeals.
    Affirmed.
    J. L. Cearley and E. T. Brooks, both of An-son, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a conviction for perjury. and sentence of two years’ confinement in the penitentiary.

It was shown that the sale of intoxicating liquors was prohibited in Jones county by virtue of an election duly held and result published in June, 1914. That appellant was a witness before a duly organized grand jury of the Thirty-Ninth judicial district of Texas, sitting in Jones county.

The state’s witness, Estes, claimed to have seen appellant in company with Louis Haley about the time the evening train came in, and that shortly afterward he saw each of them in possession of a bottle of whisky; that W. O. Reese, a news butcher, got off the train when it arrived, and shortly afterwards was arrested with several pints of whisky in his grip.

Louis Haley testified that on the occasion in question he and appellant went to the depot, waited until the train came in, and shortly thereafter, at appellant’s suggestion, walked a short distance on the railroad and came up with Reese. He said: “I did not know Reese at that time, but understood that was him. I have seen him, and know him when I see him.” He claimed that he bought from Reese a pint of whisky and gave him a dollar for it, and that appellant at the same time got a quart; that he saw the whisky handed to appellant, and saw something-changed, though he could not swear it was money, but that appellant said this whisky cost him $1.50 a quart, and witness claimed they went to appellant’s place of business and drank whisky out of each of the bottles. On cross-examination he said that it was dark, and that he could tell only that the man from whom the whisky was gotten was a white man, and that he saw him hand appellant something in a bottle.

It was shown that the grand jury was investigating a charge against W. C. Reese for unlawfully selling whisky in Jones county, and that appellant, a witness duly sworn before the grand jury in session, testified that about the time alleged in the indictment, November 1, 1916, he did not buy any whisky from W. O. Reese, and did not see Haley do so; that he had never bought any whisky from Reese, and never saw Haley do so. This testimony seems to have been verbal, and also reduced to writing. His testimony in substance was proved by two of the grand jurors, and W. O. Reese testified that about November 1, 1916, he saw appellant and Haley at the depot, and that he let Haley have a pint of whisky and Timmins have a pint or quart; that Haley paid him a dollar for the pint, arid that Timmins paid him a dollar and*owed him a dollar; that he sold this defendant several times, these transae--tions taking place in Stamford, in Jones county. He testified that he was arrested the same night, and had in his possession seven or nine pints of whisky. He was uncertain as to the exact daté of the transaction, but said it was in the fall of 1916, along about November 1st. He was not acquainted with Haley at the time, but he had let'him have the whisky, and learned since who he was. There was evidence that appellant was drunk about the time that Reese was arrested. His wife testified she thought the occurrence took place about the 16th of October, and that when appellant was intoxicated he could not remember things that transpired.

Appellant insists that the indictment is fatally defective,, and that the evidence is insufficient to support the conviction. As to the indictment there are several criticisms. Two of them only present questions worthy of note. One of these grows out of the fact that the indictment charged that the election in which the sale of intoxicating liquors was prohibited in Jones county took place on the 6th of June, 1914, and that there was an absence of specific allegation that the sale of intoxicating liquors was unlawful in Jones county at the time of the investigation before the grand jury in January, 1917. The-effect of this is to assert that the indictment was bad because it fails to negative the fact that the prohibition of the sale of intoxicating liquors had been repealed by a subsequent election.

We do not regard this position tenable.. For decisions on the subject see Branch’s. Ann. P. 0. p. 697, § 1233; also Vernon’s P.. O. art. 597, pp. 311 and 312; Williams v. State, 37 Tex. Cr. R. 241, 39 S. W. 664; Wade v. State, 53 Tex. Cr. R. 184, 109 S. W. 191; Green v. State, 62 Tex. Cr. R. 346, 137 S. W. 126; Mayo v. State, 62 Tex. Cr. R. 110, 136 S. W. 790; Jones v. State, 70 Tex. Cr. R. 343, 156 S. W. 1191; Johnson v. State, 70. Tex. Cr. R. 582, 157 -S. W. 1196; Nobles v. State, 71 Tex. Cr. R. 121, 158 S. W. 1133.

The indictment contains also the following-allegations:

“Whereupon it then and there became and was a material inquiry before said grand jury and necessary for the due administration of the-criminal law of said state, and for the ends of public justice, whether in said county and state one W. 0. Reese did make a sale of intoxicating liquor to the said W. A. Timmins on or about November 1, 1916, in Jones county, Tex., and within the last two years preceding the-said date first above mentioned, to wit, January 4, 1917, and whether a sale of intoxicating liquors was then and there made to one Louis. Haley in the presence of the said W. A. Tim-mins by the said W. O. Reese on or about November 1, 1916, and within the last two years, next preceding the said date first above mentioned, to wit, January 4, 1917. And the said W. A. Timmins did on or about the day and date first above named, to wit, January 4, 1917, in said county and state, before and to. said grand jury, under the sanction of said oath, administered to him as aforesaid, deliberately and willfully state and testify that he,, the said W. A. Timmins, did not buy any whis-ky op or about November 1, 1916, and within the last two years next preceding the said date,, to wit, January 4, 1917, from W. O. Reese; which said statement and testimony was then and there material to the issue and to the in-quix-y aforesaid, and which said statement and. testimony was then and there deliberately and willfully made, and was deliberately and willfully false, as he, the said W. A. Timmins, then and there well knew; whereas, in truth and in fact, the said W. A. Timmins, on or-about the 1st day of November, 1916, and with-in two years next preceding the date above mentioned, to wit, January 4, 1917, did purchase whisky and intoxicating liquors from the said W. O. Reese in said Jones county, Tex., and the said W. A. Timmins did on or about the day and date first above named, to wit, January 4, 1917, in said county and state, before and to said grand .jury, under the sanction of said oath administered to him as aforesaid, deliberately and willfully state and testify that he, the said W. A. Timmins, was not present and did not see the said Louis Haley buy any whisky from the said W. O. Reese on or about November 1, 1916, and within the last two years next preceding the date above mentioned, to wit, January 4, 1917, which said statement and testimony was then and there material to the issue and to the inquiry aforesaid, and which said statement and testimony was then and there deliberately and willfully made, and was deliberately and willfully false, as he, the said W. A. Timmins, then and there well knew, whereas, in truth and in fact, the said W. A. Timmins did see and was then and there present when the said W. O. Reese did sell intoxicating liquors and whisky to one Louis Haley, on or about November 1, 1916, and within two years next preceding January 4, 1917,. against the peace and dignity of the state.”

The other assignment to be noted is that which grows out of the contention that the allegation that appellant did deliberately and willfully state and testify that the said W. A. Timmins did not buy any whisky on or about November 1, 1916, and within the last two years next preceding said date, to wit, January 4, 1917, from W. C. Reese, and denied he was present or had any knowledge of the sale of intoxicating liquors by Reese to Haley, the appellant’s contention in substance being that this inquiry was not by its terms confined to transactions taking place in Jones county. This direct question was before this court in McDonough v. State, 47 Tex. Cr. R. 227, 84 S. W. 594, 122 Am. St. Rep. 084, and decided against appellant’s contention. The case mentioned was followed 'in Scott’s Case, 72 Tex. Cr. R. 26, 160 S. W. 961, in a well-considered opinion by Judge Davidson. The appellant insists that the conviction ought not to stand because the quantum of evidence requisite under article S06, Vernon’s O. O. P., was not produced on the trial. The specific contention of appellant is that the rule requiring the falsity of his testimony before the grand jury to be established by two credible witnesses or one credible witness strongly corroborated by other evidence was not complied with. The evidence of the witness Haley and that of Reese was, in our judgment, sufiicient to show that appellant bought whisky from Reese, and that he saw Haley do so. In addition to their direct evidence, there are circumstances detailed by other witnesses, among them the witness Estes, whose testimony is' stated in part above, and who gave additional testimony from which it appears that he was engaged in an effort to discover sales of whisky, and that appellant and Haley came to a house while the witness Estes was sitting under the edge of it; that this occurred shortly after the time that the train came in on which from other testimony it is indicated that Reese came in and brought the whisky. He says they came up and sat down on the steps, pulled out a bottle, and were drinking, talking about the whisky; said they were glad to get it; just about give out. They struck a match and looked at the brand, and Haley opened his pint, and they drank out of it. They each had a bottle. We find testimony that appellant was drinking on the evening in question, but appellant’s ’ contention involves the proposition that Reese was not a credible witness, and that the circumstances are not sufficient to corroborate Haley. The facts upon which appellant tries to show that Reese was not a credible witness is the fact that he had been charged with the sale of whisky and the suggestion that he had been tendered immunity from prosecution in consideration of his giving testimony against the appellant. There was no proof of an agreement making Reese immune from punishment, though there is evidence from which the inference could be drawn, that there was such an understanding. The witness Reese was a competent witness, and his credibility was for the jury. Anderson v. State, 56 Tex. Cr. R. 360, 120 S. W. 462; Branch’s Ann. P. O. p. 478, § 847, and cases cited. Some exceptions appear to the refusal of the court to permit the defendant to ask members of the grand jury on cross-examination if the district attorney had not informed them that, if they would rescind their action against Reese, he would go in and testify against appellant. Any agreement reached on the subject would have been proper to use to impeach Reese, but a predicate for so doing was necessary, and the bills in question fail to show any predicate was laid by inquiry of Reese with reference to his-agreement with the district attorney, and, further, the evidence excluded does not purport to be statements by Reese, but hearsay information obtained by members of the grand jury from the district attorney. They do not show any error.

A special charge was requested instructing acquittal if the jury found that appellant by reason of intoxication- was unable to remember the facts with reference to the transactions testified to by him before the grand jury. The charge of the court appears to have sufficiently' guarded appellant’s theory in this respect. In the second ■paragraph he told the jury that a false statement made through inadvertence or under agitation or by mistake was not perjury. In the fourth and fifth paragraphs, in defining the terms “deliberately” and “wiljfully,” and in the twelfth paragraph, the jury was told to acquit if they found the appellant was so intoxicated that he did not remember- the transaction. Such other special charges as were -requested were embodied ■ in the main charges.

Failing to find any reversible error in tbe record, tbe judgment of tbe lower court is affirmed.
      <§a»3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    BALLEW v. STATE.
    (No. 4736.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Ceiminal Daw <&wkey;1134(2) — Appeal and Error — Evidence Considered.
    Under Code Or. Proc. 1911, arts. 916, 929, relating to transcript on appeal, tbe Court of Criminal Appeals in reviewing refusal of a new trial for newly discovered evidence cannot consider testimony in another trial occurring in another county after the term at which appellant was convicted.
    2. Criminal Daw <&wkey;1156(l) — Appeal—New Trial.
    Granting a new trial in a criminal case rests largely in . the trial court’s discretion, and his action will not be reversed except for an abuse of such discretion.
    3. Criminal Daw <&wkey;942(l) —-New Trial — Newly Discovered Evidence.
    A new trial in a criminal case will not be granted for newly discovered impeaching evidence.
    4. Criminal Daw <&wkey;942(2) — New Trial— Newly Discovered Impeaching Evidence.
    Refusing a new trial after conviction for robbery with a firearm held not an abuse of discretion, where the newly discovered evidence would merely have impeached the prosecuting witness’ testimony through inconsistent statements alleged to have been made by him.
    Appeal from District Court, Waller County; J. D. Harvey, Judge.
    Jack Ballew was convicted of robbery with a firearm, and appeals.
    Affirmed.
    Heidingsfelders, of Houston, and Warren W. Moore, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tbe 'State.
   PRENDERGAST, J.

Appellant was convicted of tbe robbery of W. G. Kennedy with a firearm, and bis punishment assessed at 35 years in tlje penitentiary.

There is no necessity of reciting tbe testi-, mony. However, by tbe testimony of said Kennedy, which was corroborated by tbe circumstances and tbe testimony of other -witnesses, a most aggravated case of robbery with firearms was established. This testimony showed that Prank Walchek, a brother-in-law of appellant, was a principal with him in committing the offense. He also was indicted as such principal, and some months after appellant’s conviction was tried the second time in Grimes county and a jury acquitted him. Appellant, through his able attorney, when this case was submitted, frankly admitted, in substance, that his only assignment of error was in the court’s refusing him a new trial on the ground of newly discovered evidence. This claimed newly discovered evidence was on two points:

Pirst. He produced before this court and asked permission to file, and for this court to consider, the proceedings against said Walchek wherein it showed that he had also been indicted as a principal in said robbery in Waller county and acquitted in Grimes county. The facts with reference to this matter are that the alleged robbery was committed in Waller county. Appellant and his brother-in-law Walchek were both indicted in that county as principals in the robbery. When the case came on for trial in Waller county at the April term, 1917, on motion, a severance was had -and appellant was first placed on trial and convicted as stated. During that term, and it seems after appellant’s conviction, the venue for the trial against Walchek was changed from that county to Grimes county. The term of court at which appellant was convicted adjourned on May 4, 1917. This case was duly appealed to this court from the Waller' county district court at said April term. Walchek was tried in Grimes county on June 21st, and acquitted. Appellant now urges this court to consider the proceedings and acquittal of Walchek in Grimes county and reverse this case so that he can have the benefit of Walchek’s testimony on another trial, which will contradict the testimony of said Kennedy.

As stated, all these proceedings in the Grimes county district court and the acquittal of Walchek occurred long after the trial of appellant in Waller county and many weeks after the court in Waller county had adjourned for the term at which appellant was convicted. A mere recital of these facts makes it clear and certain that this court is without ^power or authority to reverse this case on this ground. This court is an appellate court, not a trial court. It can hear no evidence on any such issue as is tendered by appellant herein. The decision of any case in this court must be made from the records brought up in the transcript on the trial in the court below. The statute and all the decisions thereunder are to this effect, articles 929, 916, O. C. P., and the decisions noted thereunder in 2 Vernon’s Grim. Stats. So that this court cannot permit the filing of the said proceedings in the Walchek Case in Grimes county, nor consider them for any purpose.

Second. The other claimed newly discovered evidence was that of A. McNeil and John Zwerenmann, shown by. their affidavits attached to appellant’s motion for new trial. The affidavit of McNeil is to the effect that he had been acquainted with said Kennedy close ⅜ 9 months; that on Saturday, April 21st, in the presence of said Zwerenmann, he had a conversation with said Kennedy in Houston, and that Kennedy told him that on the occasion when he had taken appellant and Walchek from Houston to Hempstead in his automobile that soon after he started from Houston with them he began drinking, and on the way they gambled, and that he (Kennedy) lost what money he had, and his car, and a pistol; that losing all this stuff made him sore; that he was pretty drunk, and that while he had lost the pistol in gambling he had not given that up, and that he had it and drew it on the men; that they took it away from him and heat him with it, and also took the car- and left with it; and that after he had this conversation with appellant, the three men, he, Zwerenmann, and Kennedy, had a drink, and they separated; that this conversation occurred between them between 8:30 and 9 o’clock at night; that they had seen him between 2 and 2:30 o’clock before that on the same date, and that he began a conversation with them, but at that time some parties wanted his car, and he left and said that he would see them again. lie also stated in this affidavit that he had known said Kennedy to drink whisky and beer before that, and stated in whose respective saloons he had so seen Mm drink.

Zwerenmann’s affidavit was to the effect that he happened to be with said McNeil on Saturday, April 21st, after the noon hour at a certain point in Houston, and heard a conversation between him and Kennedy; that McNeil said something to Kennedy about some man getting 35 years for robbing him, and he started to tell McNeil about being drunk and shooting craps with them, and about that time two men came up and engaged his car, and he told them, “Well, I will see you later,” and then left; that he was also with McNeil that night about 8:30 when they again met said Kennedy at a certain point in Houston and the matter was again broached, and in that conversation Kennedy told them about being drunk on the road to Hempstead on the day he claimed he was robbed, and having shot craps with the men on the road, and that they won all his money, also his pistol, also his car; that all three of them were drinking, and that he got sore, and that he either pulled his gun or was going to pull it when the men took! it away from him and beat him over the head with it and left there with everything ho had; that after they had finished this conversation the three went to Rice Bar and had a couple of drinks; that he had known Kennedy close on about a year, and had seen him drinking at several saloons in Houston, which he named.

The state contested appellant’s motion on this ground of claimed newly discovered evidence. Kennedy made an affidavit that he did not meet said McNeil and Zwerenmann in Houston at the time they claimed, or at any other time or place, and made no such statements to them as alleged in their affidavits. Testimony of various witnesses on the trial, as well as that of Kennedy, showed that he had not drunk any whisky on the day he was robbed, and was not under the influence of whisky at all, and many other facts and circumstances which tended to show that said Kennedy did not gamble with appellant and Walchek at all on this occasion. The trial judge heard all of this, and the said affidavits of said McNeil and Zwer-enmann and Kennedy, and was clearly authorized to believe that the affidavits of McNeil and Zwerenmann were untrue.

The question of newly discovered evidence has been the subject of decision in. a great many cases in this court. The statute (article 837, subd. 6, O. O. P.), and the decisions thereunder noted in 2 Vernon’s Grim. Stats., White’s Ann. G. G. P. § 1149, and 1 Branch’s Ann. P. C. p. 124 et seq. lay down the rules applicable to this subject. One of the rules by all of these authorities .is to the effect "that the application for a new trial on the ground of newly discovered evidence “is closely scrutinized, and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal, unless it be apparent that the trial court abused its discretion to the prejudice of appellant.” Another of these rules is that such newly discovered evidence; will not require a new trial if it “is simply for the purpose of impeaching a former witness.” The cases collated by Vernon, Judge White, and Mr. Branch establish these rules without any question. They are applicable herein. The claimed testimony of McNeil and Zwerenmann could be used simply and solely for the impeachment of said Kennedy, and, as stated, the trial judge heard all this testimony on the main trial and said affidavits. It does not show that the court abused the discretion in overruling appellant’s motion on that ground. In fact, taking the whole of the evidence on this subject, it shows that the court’s action in overruling his motion for new trial was correct.

The judgment is affirmed.

        <§zz>1?ot other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte JONES.
    (No. 4841.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Extbadition <&wkey;32 — Complaint — Sufficiency.
    An affidavit that defendant was a fugitive from justice from Arizona, where he obtained money under false pretenses in violation of the Penal Code of such state, and that he had fled from such state, where he committed such offense, and is now in the state of Texas, and asking that a warrant be issued, was sufficient to support a warrant to hold for extradition under Code Or. Proc. 1911, art. 1091, relating to extradition.
    2. Extbadition <&wkey;34 — Authentication of D ocuments — Sufficiency.
    Where a Governor in his application for a requisition of a fugitive enumerates all documents attached thereto, and says, “which I certify to be authentic and duly authenticated according to the laws of this state,” there is sufficient authentication of the complaint, affidavits and warrant, made in Arizona, included in the enumerated documents.

      3. EXTRADITION &wkey;>39 — BURDEN OE PRO01'.
    Where an application for extradition states that defendant stood charged with a crime in a certain county in Arizona, and the Governor of Texas in his warrant states that it had been made known to him by the Governor of Arizona that defendant stood charged with crime in such state, the burden is on defendant in habeas corpus proceedings to show that he had not been in Arizona.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Habeas corpus proceedings by J. W. Jones for discharge from confinement. From a judgment remanding him to the custody of the sheriff, he appeals.
    Affirmed.
    Hudspeth & Harper, of El Paso, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant appealed from the judgment of the court below remanding him to the custody of the sheriff to be by him delivered to the officer designated to receive him by the Governor of Arizona. The facts are:

That on November 20, 1917, R. E. Bryant signed and swore to the following affidavit before J. M. Deaver, a justice of the peace of precinct No. 1, El Paso county, Tex., to wit:

“I, R. E. Bryant, do solemnly swear that J. W. Jones, alias F. H. Richmond, is a fugitive from justice from the state of Arizona; that the said J. W. Jones, alias If. H. Richmond, on or about the 1st day of November, A. D. 1917, in the said state of Arizona, did of his malice aforethought obtain money under false pretenses, and that the said act so committed by the said J. W. Jones, alias F. IX. Richmond, was then and is now a violation of the penai law of said state of Arizona; and that the said J. W. Jones, alias F. H. Richmond, has fled from said state of Arizona where he committed said offense to this state of Texas, and is now to be found in this El Paso county, Tex. Wherefore I ask that a warrant for his arrest issue forthwith and that he be dealt with as the law in such case provides.”

■ Upon this affidavit said justice issued a warrant for the arrest of appellant, and un'der it he was duly arrested and held. On November 22d he made an application to Judge Howe, judge of one of the district courts of El Paso county, for a writ of ha-beas corpus, claiming that he was illegally restrained of his liberty by virtue of said affidavit and warrant thereunder. In his application he alleged that the Governor of Texas had not theretofore issued any extradition warrant for him. He therein prayed that he be brought before said district judge and discharged from his confinement under said, affidavit and writ, averring therein, “but if not entitled to that relief, and the court should be of the opinion that a reasonable time should be allowed the officers of the state of Arizona to see if they can obtain from the Governor of Texas an extradition warrant,” that he, in the meantime, be permitted to give bond in a reasonable sum. The record nowhere shows that the district judge fixed or allowed him bond as he prayed for, nor does the record in any way show that he gave any such bond. But whether this was done or not, he was produced by the proper officer who had him in charge, when the district judge heard the case under said writ of habeas corpus on November 28th. In the meantime a proper application was made by the Governor of Arizona to the Governor of Texas for the extradition of appellant from Texas to Arizona. Said application for extradition was headed, “State of Arizona, Executive Department,” and is as follows:

“The Governor of the State of Arizona to His Excellency the Governor of the State of Texas:
“Whereas, It appears from the annexed Application District Attorney; Certified Copy Criminal Complaint; Certified Copy Warrant of Arrest; Affidavit of Complaining Witness; Certificate of Clerk of Court, which I certify to be authentic and duly authenticated according to the laws of this .State, that J. W. Jones and Victor Clark stand charged with the crime of obtaining money under false pretenses, a felony under the laws of this state, committed in the county of Maricopa, this state; and it having been represented and satisfactorily shown to me that they now are fugitives from justice and have taken refuge in the state of Texas.”

Then it properly requests, pursuant to the Constitution and laws of the United States, that appellant be apprehended and delivered to Harry De Winton as agent, who was authorized to receive and convey him to the state of Arizona to be dealt with according to law. To this application was attached a full application by the county attorney of said county of Arizona to the Governor of Arizona for a requisition for appellant, and therein he gives a full statement of the charge against appellant, charging him with obtaining money under false pretenses, a felony, and which he alleges was committed by appellant in said county in Arizona. Also was attached an affidavit of G. P. Nevitt, made before Chas. D. Wheeler, a justice of the peace of East Phoenix precinct, in said county in Arizona, on November 20, 1917, which fully charges the commission by appellant of said offense in said county and state of Arizona. The affidavit is full and complete. And the copy annexed to the Governor’s application for extradition is duly certified by said justice of the peace as a true copy of the said affidavit, and also is attached thereto a like duly certified copy of the warrant issued by said justice of the peace on said affidavit for the arrest of appellant. And also attached thereto is the certificate of the clerk of the superior court of said county of Arizona, which is certified to be a court of record, certifying that said Wheeler w.as the officer he purported to be, and that bis genuine signature was properly subscribed to said affidavit and warrant; ; that he was such officer as shown, duly elected, qualified, and acting as such, and was duly authorized to make, sign, issue, and file said papers, and certify to their correctness and authenticity, and that all the papers and certificates issued by said Wheeler were genuine and were made in accordance with the laws of Arizona. Also attached to the said application of the Governor was a due appointment by him of said De Winton as the agent of Arizona to receive aiopellant and convey him to- Arizona to be dealt with according to law.

All these papers were presented to the Governor of Texas, and upon examination and consideration thereof he issued a warrant addressed to all the proper officers of the state, stating that it had been made known to him by the Governor of Arizona that appellant stood charged by proper criminal complaint before the proper authorities with the said crime committed in said state, and that appellant had taken refuge in the state of Texas, and further stating therein, “and whereas, said demand is accompanied by copy of said criminal complaint, warrant of arrest, etc., duly certified as authentic by the Governor of said state” of Arizona. He thereupon commanded. in said writ all said officers to arrest said appellant and deliver him when arrested to the said agent of Arizona in order that he may be taken back to Arizona and there dealt with for said crime. All these papers from Arizona and the Governor thereof and the warrant issued by the Governor of Texas thereupon are in due form, and in just such form as has all the time been held sufficient by this court.

The original writ by the Governor of Texas and exact copies of all the other papers from Arizona which had been presented to and acted upon by the Governor of Texas were introduced in evidence before said district judge on said habeas corpus hearing. The appellant in his' application for a writ of habeas corpus, and to be discharged thereunder, did not allege that he was not in said county of Arizona when said crime, if any, was committed, nor does the whole record anywhere show that he so claimed. The record shows that he offered no testimony from any source showing or tending to show that he was not in said county in Arizona when said crime was committed. ‘ >

Appellant contends that the affidavit of said Bryant was wholly insufficient, and charged no offense, and was a nullity. The said affidavit was in strict compliance with the statute of this state (article 1091, O. 0. P.), and with the forms laid down for such complaint in Willson’s Eorms (4th Ed.) No. 1125. This affidavit or complaint did not purport to be a charge against appellant for any crime. It was merely a complaint which our law provides may be filed against a fugitive so as to obtain legally a warrant for his arrest, and hold him in custody thereunder awaiting a proper extradition of him. Hence this contention is without merit.

His next contention is that the certificate of the Governor of Arizona did not properly authenticate the complaint or affidavit made by said Nevitt before said justice of the peace, and the warrant for his arrest thereunder. We have copied above the authentication of these documents by the Governor of Arizona in his application to the Governor of Texas for a requisition for appellant. We think it clear therefrom that the Governor does properly authenticate said documents. ’ He enumerates all attached to his application, and says, “which I certify to be authentic and duly authenticated according to the laws of this state.” No other reasonable . construction could be put upon his language than that he is authenticating, and certifying thereto, the correctness of said documents. The authorities uniformly hold that these documents must be properly .authenticated. It is unnecessary to cite them because we regard it as clear and certain that the Governor of Arizona did properly authenticate said documents.

Appellant’s only other contention is, in substance, that a person is not a fugitive from justice, and cannot legally be given up to the demanding state by the state from whom demanded, unless he has been in the demanding state, and this must be shown before an extradition warrant can issue.

It is well established in this state, as held by this court in Ex parte McDaniel, 76 Tex. Cr. R. 188, 173 S. W. 1019 (Ann. Oas. 1917B, 335), as follows:

“While it is held that the courts may go behind the Governor’s warrant, yet it has always been held that the warrant issued by the Governor makes a prima facie case on habeas corpus, and the burden is on the defendant to show that the warrant was not legally issued. White v. State, 39 Texas Crim. Rep. 497 [46 S. W. 639]; Hibler v. State, 43 Texas, 197; Ex parte Stanley, 25 Texas Orim. App. 372 [8 S. W. 645, 8 Am. St. Rep. 440]).”

And as also held hy this court in Ex parte Faihtinger, 72 Tex. Cr. R. 633, 163 S. W. 442:

“The statement in the requisition of the Governor of Oklahoma that relator is a fugitivé from justice, and the recitation in the proclamation of the Governor of this state that he is a fugitive, makes a prima facie case that relator is a fugitive from justice.”

In discussing this question the Supreme Court of the United States, in Pettibone v. Nichols, 203 U. S. 204, 27 Sup. Ct. 114 (51 L. Ed. 148, 7 Ann. Cas. 1047), held:

“Upon the Governor of Colorado rested the responsibility of determining, in some proper mode, what the fact was. But he was not obliged to demand proof of such fact by evidence apart from the requisition papers. As those papers showed that the accused was regularly charged by indictment with the crime of murder committed in Idaho, and was a fugitive from its justice, the Governor of Colorado was entitled to accept such papers, coming as they did, from the Governor of another state, as prima facie sufficient for a warrant of arrest. His failure to require independent proof of the fact that petitioner was a fugitive from justice cannot be regarded as an infringement of any right of the petitioner under the Constitution or laws of the United States. Ex parte Reggel, 114 U. S. 642, 652, 29 L. Ed. 250, 253, 254, 5 Sup. Ct. Rep. 1148. In Munsey y. Clough, 196 U. S. 364, 872, 49 L. Ed. 515, 516, 25 Sup. Ct. Rep. 282, this court said that the issuing of a warrant of arrest by the Governor of the surrendering state, ‘with or without a recital therein that the person demanded is a fugitive from justice, must be regarded as sufficient to justify the removal, until the presumption in favor of the legality and regularity of the warrant is overthrown by contrary proof in a legal proceeding to review the action of the Governor. Roberts v. Reilly. 116 U. S. 80, 95, 29 U. Ed. 544, 549, 6 Sup. Ct. Rep. 291; Hyatt v. Corkran, 188 U. S. 691, 47 L. Ed. 657, 23 Sup. Ct. Rep. 456.’See, also, In re Keller [D. C] 36 Fed. 681, 686.”

In 19 Cye. 94, on this subject, it is said: •

“The executive who issues a warrant for the arrest of a fugitive must have passed upon two questions: (1) * * * (2) Is he a fugitive from justice from the demanding state? * * * Whether he is a fugitive from justice is a question of fact upon which the opinion of the Governor expressed in the warrant itself is prima facie evidence, which, however, may be rebutted under a writ of habeas corpus by admissions or other conclusive evidence.”

A large number of eases from the federal courts and from different states are cited in .support of the text. In note. 79, p. 95, it is said:

“Burden of showing he is not a fugitive rests on the prisoner when a proper warrant has issued. State v. Justus, 84 Minn. 237, 87 N. W. 770, 55 L. R. A. 325; State v. Clough, 71 N. H. 594, 53 Atl. 1086, 67 L. R. A. 946; Katyuga v. Cosgrove, 67 N. J. Law, 213, 50 Atl. 679. Evidence must be conclusive, which is introduced by the prisoner to refute the prima facie case made by executive. Hayes v. Palmer, 21 App. Cas. (D. C.) 450.”

The warrant by the Governor of Texas was not only for appellant’s arrest, but also required he be turned over to the said extradition agent of Arizona, and stated that it had been made known to him by the Governor of Arizona that appellant stood charged by criminal complaint before the proper authorities with said crime “committed in said state, and that the said defendant had taken refuge in the state of Texas,” and he thereupon issued his warrant in compliance with the request of the Governor of Arizona. Also the Govern- or of Arizona in his application to the Governor of Texas for the extradiction of appellant specifically stated therein that appellant stood charged with the said crime under the laws of said state, “committed in the county of Maricopa, this state,” and that it had been represented and satisfactorily shown to him that he was a fugitive from justice, and had taken refuge in the state of Texas.

Upon these authorities and many - others which could be cited, it seems well established that the burden of proof was upon the appellant to show that he had not been in Arizona and was not upon the state to show that he had been. It would therefore be wholly immaterial that the court might have improperly admitted the testimony of some witness to the effect that he had heard appellant say, in substance, that he' had been in or was from said county in Arizona.

The judgment of the lower court on this habeas corpus hearing was therefore correct in ordering that appellant be remanded to the custody of the proper officer of El Paso county, Tex., to be by him delivered to the officer designated to receive him by the Governor of Arizona, and the judgment so ordering is affirmed, and is hereby ordered carried out.

Judgment affirmed.

      £^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <&wkey;Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes