text:
    McLAIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    Intoxicating- Liquors (§ 146) — Criminal Offenses — Sale—Acts Constituting.
    Where accused and two others contributed money to buy a bottle of whisky, and accused with the money so contributed purchased whisky, which he and the others then drank, there was no sale of whisky by accused.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 146.]
    Appeal from Anderson County Court; W. I. Sims, Special Judge.
    Marvin McLain was convicted of violating
    the local option law, and he appeals.
    Reversed and remanded.
    Kay & Seagler, of Palestine, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant prosecutes this appeal from a conviction for violating the local option law. Two grounds are presented: First, the evidence is insufficient; second, the jury discussed appellant’s failure to testify while considering the case. Taylor, the alleged purchaser, testified for the state that in November, 1912, he, defendant, and McDaniel were talking together in Franks-ton, Anderson county. McDaniel remarked that he wished he had some whisky, and asked the 'defendant if he knew where he could get it. Appellant answered he thought he could find some. Witness and McDaniel gave appellant $1.25, the witness putting in 75 cents and McDaniel 50 cents, and he says: “I think the defendant gave 25 cents. I did not see him put up the money, but my .best recollection is that he said he would throw in 25 cents, and that amount was all he had.” He and McDaniel gave defendant the money. He went away, and in about 20 or 30 minutes returned with a quart of whisky, which they drank. On cross-examination he was asked the direct question: “Did you ever buy any whisky from Marvin McLain? A. No; the only time I ever got any whisky from Marvin McLain was some time in November, 1912. We had been drinking whisky on that day, and we were all near Mr. McDaniel’s picture gallery. Mr. McDaniel remarked that he wished he had some whisky and asked the defendant if he knew where he could get some. The defendant answered that he thought he did. Mr. McDaniel said he would go 50 cents, and I said I would go 75 cents; the defendant said he would go a quarter, and said he would try and find some. We handed him our part of the money, and he went off towards the depot and returned with a quart of whisky. Yes; I know the price of whisky in and around Erankston; it costs $1.50 a quart. There had been a lot of negroes charged with bootlegging around there. I did not know whether they pleaded guilty or not.” McDaniel testified the same as did Taylor, almost literally. John Mc-Lain testified he was appellant’s brother, and was in Erankston the day appellant got whis-ky for Taylor and McDaniel. His brother ca'me to him and asked him if he knew where he could get some, whisky. He informed him, and they went to the depot, where witness had seen a negro some time before that hanging around the express office; when they reached the depot the negro was leaving, going north up the railroad track with a bundle or package. They followed, overtook, and bought from him a bottle of whisky; his brother paying $1.50 for it. His brothef then went back up town, etc.

This ds the ease, and we are of opinion appellant’s contention is correct — that the state is not entitled to a conviction. These facts are uncontroverted, and in fact it is all the evidence there is in the record. They do not support a conviction. No witness testified appellant sold any whisky. All the evidence shows that he, Taylor, and McDaniel put up $1.50, and appellant went and bought the whisky with it, and paid $1.50 for it, and they drank it. It is unnecessary to cite authorities.

On the second proposition, discussion of appellant’s failure to testify, we believe the judgment should be reversed; but it is unnecessary to discuss it.

The judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    ARRISMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.
    Rehearing Denied Dec. 10, 1913.)
    Criminal Law (§ 1102) — Statement oe Eacts.
    A purported statement of facts, not filed in the trial court until six months after adjournment, cannot be considered on a criminal appeal, and will be stricken.
    [Ed. Note. — For .other cases, see Criminal Law, Dec. Dig. §1102.]
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Will Arrisman was convicted of robbery, and appeals.
    Affirmed.
    T. E. Hunter, 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

   PRENDERGAST, P. J.

Appellant was convicted of robbery, and his punishment fixed at the lowest prescribed by law. What purports to be a very short statement of facts in the case was not filed in the court below until six months after the adjournment of the court, and, of course, cannot be considered on this appeal, and is struck out on the motion of the Assistant Attorney General. There is nothing attempted to be raised by appellant which we can consider in the absence of a statement of facts.

The judgment will be affirmed.


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

text:
    HILL v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Homicide (§ 309) — Issues — Negligent Homicide.
    Where accused testified that he went to a house where his wife was, without intending to have a difficulty with her, but to induce her to go home with him, and as he was standing in the door some women got hold of his gun, and it was accidently discharged in the scuffle, shooting his wife, the court should have instructed on negligent homicide in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    2. .Criminal Law (§ 518) — Confessions.
    An alleged statement by accused, while he was under arrest and had not been warned, that he shot his wife because she would not go home with him was not admissible for the purpose of impeaching accused or otherwise.
    . [Ed.' Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1157-1162; Dec. Dig. § 518.]
    3. Criminal Law (§ 385) — Admission oe Evidence.
    It is improper practice to permit incompetent and injurious evidence to go before the jury, and after it had been discussed to exclude or withdraw it on the court’s own motion or at the suggestion of the prosecuting officer.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 861, 865-868, 870, 878; Dec. Dig. § 385.]
    4. Homicide (§ 158) — Admission oe Evidence.
    In a prosecution for killing accused’s wife, claimed to have occurred while he was attempting to have her go home with him, evidence as to a quarrel between them earlier in the morning, other than that which was the basis of the homicide, was admissible to show the relation between the parties, and as throwing light on accused’s visit to the house where the homicide occurred.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]

      5. Homicide (§ 8) — What Law Governs.
    Pen. Code 1911, art. 15, provides that, when a penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of the second law shall not be inflicted for an offense committed before it took effect, and that the defendant shall be tried and punished under the law in force when the offense was committed, except that, when the second law ameliorates the punishment, defendant shall be punished thereunder, unless he elects' to be punished under the former law, and article 18 provides that, if an offense be defined by one law, and its definition changed by a subsequent law, the modification shall not take effect as to an offense already committed. Held, that one who committed a homicide in April, before Acts 33d Leg. c. 116, abolishing the degrees of murder, became effective on July 1st, was entitled to be tried and sentenced under the former law, which recognized different degrees of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.]
    Prendergast, P. J., dissenting in part.
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Israel Hill was convicted of murder, and appeals.
    Reversed and remanded.
    Scott & Caven, Hobart Key, and Geo. J. Ryan, all of Marshall, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of murder, and his punishment assessed at death.

He killed his wife. The witnesses differ widely as to the conditions and circumstances that environed the case and the homicide. The state’s case is based upon the theory that appellant and his wife had a quarrel in the morning, in which he may have been the provoking cause; at least the state sought to place blame upon him. He went to work, and she went to a neighbor’s. Without going into details, later during the morning, and before the noon hour, he appeared at the house of the family where his wife had gone. The state’s theory of the immediate facts is, in substance, that he undertook to get his wife to go home; she agreed to go, but told him to go on, and she-would come directly. He then told her if she did not go now she would not go. This was repeated a time or two. Appellant had his gun with him, and is shown to have bought cartridges that morning while at the store, to which place he went to secure bolts to fix a broken plow. It is shown also by the state that the women at the house where appellant went had closed the door against appellant, and he went to a window for the purpose of shooting his wife; that he left there, and went back to the door, and forced it open. One of the women pushed the gun to one side, and again closed the door. He again opened it, with his gun presented, and fired, striking his wife in the upper part of the hip, from which within about 60 hours she died. Appellant’s theory is quite contrary to this. He states that he went by the house where his wife was with no purpose of having any difficulty with her, and denies the language imputed to him by the state’s witnesses. He said he was trying to induce his wife to go home, and had no purpose or intent of hurting her, and made no threats. In fact, his testimony excludes the idea that he intended to kill his wife. As he was standing in the door one or more of the women got hold of his gun, and in the scuffle it was in some way discharged, and the load of shot accidentally struck his wife. He denied being at the house for any sinister or mischievous purpose, while the women make it‘apparent he was there for that purpose, and intentionally killed his wife, or that such would be a fair deduction from the state’s testimony.

Appellant’s contention- is that he was entitled under this state of facts to a charge upon negligent homicide, first, that he had a right to visit the house at this point to see his wife, and, if he did no wrong, and was there for the purpose of asking or pursuading her to go home with him, it would be negligent homicide of the first degree; second, that the issue of negligent homicide was raised in that, if he was doing things that were illegal and unlawful at the residence of these people, it would place him in the wrong legally, and therefore, if the gun went off accidentally, he would be guilty of no higher offense than negligent homicide of the second degree. He asked special charges submitting these issues to the jury, which were promptly refused by the court. We are of opinion that the evidence raised the issue of negligent homicide, and appellant’s contentions are correct, especially with reference to negligent homicide in the second degree. If he was there disturbing the peace at a private residence, at which place he had no right to be for illegal purposes, and his gun was accidentally discharged in the scuffle, and he did not fire it for the. purpose of killing his wife, there would be negligent homicide in the case, and this charge should have been given. v

The court permitted the state to prove, while appellant was under arrest ánd without being warned, he made this statement to the sheriff, that he shot his wife because she would not go home with him. Proper objections were urged, appellant was under arrest and unwarned, and therefore this statement was not admissible. The court admitted it upon the theory that a predicate had been laid for its introduction as impeachment, and therefore the state was entitled to thus impeach appellant. It will be stated further after it had been before the jury for some time the- district attorney stated that after thinking the matter over the authorities held against him, and he asked the court to withdraw it from the jury, which the court did. That this testimony was inadmissible has been settled so long and so clearly by the adjudicated cases it would' seem at this late day unnecessary to even refer to them; but, as there seems to be a tendency to ignore the decisions of this court with reference to this matter, it is deemed advisable to again call attention to it, and cite the authorities, commencing with Morales v. State, 36 Tex. Cr. R. 234, 36 S. W. 435, 846; Johnson v. State, 43 Tex. Cr. R. 478, 66 S. W. 845; Wright v. State, 36 Tex. Cr. R. 433, 37 S. W. 732; Rodriquez v. State, 36 S. W. 439; Bailey v. State, 40 Tex; Cr. R.. 153, 49 S. W. 102; Walton v. State, 41 Tex. Cr. R. 458, 55 S. W. 566; Parker v. State, 57 S. W. 668; Johnson v. State, 43 Tex. Cr. R. 476, 66 S. W. 846. These all refer to and reaffirm the rule laid down in Morales v. State, supra. In Brown v. State, 55 Tex. Cr. R. 583, 118 S. W. 139, it was held that in prosecutions for perjury it was reversible error to permit the state to introduce in evidence verbal confessions of the'defendant made while under arrest to impeach him. See, also, Hankins v. State, 75 S. W. 787. These cases will be found collated in 5 Rose’s Notes, p. 1108. There are other cases decided by the court since the collation of these cases; but these are all sufficient, it would seem, to show that this rule is settled, if the decisions of this court can settle anything. In Clements v. State, 153 S. W. 1137, this court held that it-'was erroneous for the state’s attorney to ask a witness questions with reference to a conspiracy between the accused and other parties, when the officer asking the question knew that he could not prove the conspiracy. This opinion wás by Judge Harper. If it was error under those circumstances, and the writer thinks Judge Harper’s opinion is correct, then it ought to be unnecessary for prosecuting officers, in the face of this long line of decisions settling the law of Texas as they have settled it, to be informed of the fact, and it would be a presumption at least in his favor that he knew the law and decisions of the court upon which he must rely in the prosecution of criminal cases.

We want to call attention again to another phase of this matter that has occurred with unnecessary frequency, that is, that injurious and illegal testimony will be permitted to go before the jury, and, after it has been investigated and discussed until the matter is thoroughly in the minds of the jury, the court will then either of its own volition or at the suggestion of prosecuting officers withdraw it. This practice has been condemned. If such testimony is inadmissible, it would take no reasoning to show that this would be a clear violation of the rules of right, justice, and law.

There was a bill of exceptions reserved to the admission of testimony with reference to a quarrel that occurred between appellant and his wife earlier in the morning than that which is the basis of this homicide. It was seriously objected that this testimony should not be admitted. The writer is inclined to believe it' was admissible. It showed the relations between the parties, and may have tended to throw light on his visit to the house where the homicide occurred. We deem it unnecessary to go into that matter; but, as this record presents those questions, we are of opinion that it was admissible.

This case was tried and the conviction resulted under the late act of the Thirty-Third Legislature, where the degrees of murder were abolished, and a general definition substituted. Acts 33d Leg. c. 116., Appellant generally objected to being tried under the new law; his case having arisen under the old law. The homicide occurred in the early part of April, before the late act went into operation on the 1st of July. The trial occurred after the 1st of July, The court gave a general definition of malice, also of express and implied malice, and then instructed the jury that, if appellant with malice aforethought killed the deceased, he would be guilty, and could be punished, but, if they found the killing was upon express malice, they could only convict him of murder in the first degree. Appellant excepted to all this, and asked a charge submitting murder in the second degree, which is unnecessary to repeat. The contention, without going into details, is that, appellant’s case having arisen under .the old law, he. had the right to be tried under that law, and that the two degrees of murder should have been submitted to the jury, and also, incidentally to that, that the judgment should be reversed, because the jury failed to state the degree of murder for which they convicted appellant. If the first proposition is correct, the second would necessarily be correct. We are of opinion that appellant had the right to be tried under the old .law by reason of the provisions of articles 15 and 18 of the Revised Penal Code.

Article 15 is as follows: ‘When the penalty for an offense is prescribed by one law, and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before' the second shall have taken effect. In every such case the offender shall be tried under the law in force when the offense was committed, and if convicted, punished under that law; except that when by the provisions of the second law the punishment of the offense is ameliorated, the defendant shall be punished under such last enactment, unless he elect to receive the penalty prescribed by the law in force when the offense was committed.” ‘

Article 18 is as follows: “If an offense be defined by one law, and by a subsequent law the definition of the offense is changed, no such change or modification shall take effect as to offenses already committed; but all offenders against the first law shall be tried, and their guilt or innocence determined in accordance with the provisions thereof.”

It may be a question as to whether the punishment of the offense is ameliorated by the terms of the new law. Appellant insisted upon being tried under the old law,' and under the terms of the statute he had a right to be tried under that law, and it might be, so far as this case is concerned, if murder in the second degree had been given as requested by appellant under the old law, the jury would have found him guilty of murder in the second degree, which would unquestionably have been a milder punishment than this, because they could not have inflicted the death penalty for murder in the second degree. Be that as it may, he demanded the right and submitted charges to the effect that he desired to be tried under the old law, under which the offense was committed. This he had a right to demand, and the court should have tried him under that law. This much is said so that upon another trial the court will try the case under the old and not the new law, if demanded by defendant.

For the reasons indicated, the judgment is reversed, and the cause is remanded.

PRENDERGAST, P. J.

I concur in the disposition of this case. I am inclined to believe no charge on negligent homicide should have been given; that submitting accidental killing was all that was required.


author: DAVIDSON, J. HARPER, J.

text:
    KEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.
    Rehearing Denied Dec. 10, 1913.)
    1. Mayhem (§ 1) — Offenses—'“Maim.”
    Under the statute providing that to maim is to willfully and maliciously deprive of an ear, etc., the injury must be done willfully and maliciously, and, if it arises from a sudden attack without premeditated design, the offense is not maiming.
    [Ed. Note. — For other cases, see Mayhem, Cent. Dig. §§ 1-5; Dec. Dig. § 1

    For other definitions, see Words and Phrases, vol. 5, pp. 4275, 4276.]
    2. Mayhem (§ 1) — Maiming—Extent oe Injury.
    Where the statute prohibits an injury to a member, such as an ear, «te., which disfigures the person, the whole member need not be detached to constitute the offense, but a severance of only a small part, which does not disfigure the person and could only be discovered by close examination, is not an offense under the statute.
    [Ed. Note. — For other cases, see Mayhem, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    3. Mayhem (§ 1) — Offenses—“Willful”-— “Malicious.”
    An act is “willful” within the statute providing that to “main” is to willfully and maliciously deprive of a member, etc., if committed with an evil intent, with legal malice, and without reasonable ground for believing the act to be lawful or legal justification, and is “malicious” if committed in a state of mind showing a heart regardless of social duty and fatally bent on mischief; a wrongful act intentionally done without legal justification or excuse.
    [Ed. Note. — For other cases, see Mayhem, Cent. Dig. §§ 1-5; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481, 7835, 7836; vol. 5, p. 4307; vol. 8, p. 7714.)
    4.Mayhem (§ 1) — Offenses—Maiming.
    If a maiming occurred under the immediate influence of sudden passion aroused by adequate cause, such as an assault, the issue of simple assault by accused would not be in the case, though accused only intended to commit a simple assault; Pen. Code 1911, art. 50, providing that if one intending to commit a misdemeanor shall, through mistake, commit a felony he shall receive the lowest punishment for the offense committed.
    [Ed. Note. — For other cases, see Mayhem, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Jesse Key was convicted of maiming, and appeals.
    Affirmed.
    T. F. Hunter, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of maiming, and given two years in the penitentiary.

The evidence is indisputable that appellant bit off a small part of the outer edge or rim of the ear during a fight with the assaulted party, Ashley. Ashley did not testify. The state’s witnesses show that a fight occurred between Ashley and appellant on the sidewalk or street in front of a pool room or billiard hall. The parties- had played pool, and Ashley had raised a disturbance in the pool hall because he had lost the game. Being rather profane, Ashley was ordered out by the keeper of the hall. There is some conflict as to how the parties got out of the-pool hall onto the sidewalk. It seems, however from the evidence that Ashley pulled defendant out. Anyway, after they got upon the street they engaged in a personal altercation. There is evidence that Ashley struck the defendant with a beer bottle and also cut his finger with a knife. These matters are not very important, however, except to show they were engaged in rather an animated personal eneounterl When-they “clinched,” they fell upon the sidewalk, some of the evidence tending to show they had what they call a “dog fall”; but, in any event, appellant obtained the better of the fall and finally got on top of Ashley and was holding him to prevent being cut with a knife. This is his view of the ease, and his testimony is to that effect. He says Ashley was biting his neck, and he concluded he would bite him in the same way Ashley was biting him, so he reached down and thought he was biting upon the neck. Ashley screamed rather vociferously. Some of the parties approached the contestants and touched appellant upon the shoulder and told him to get off, which he did. This is shown by the state’s witnesses, and also by the defendant’s testimony. So it may be stated to be uncontroverted, when appellant got up, or at least when he turned Ashley loose, he spit out of his mouth what he says he discovered to be a part of Ashley’s ear, and what the witnesses show to be a small portion of Ashley’s ear. This is described as being the small portion of the outer rim of it, and. all the witnesses say less than one-third in amount or size of the ear.

Under our statutes, in order to constitute maiming, disfiguring, or the biting of the ear or the member mentioned in the indictment, it must be done willfully and maliciously. If it is not so shown by the evidence, then the offense of maiming is not made out. The statute thus reads: “To maim is to willfully and maliciously cut off or otherwise deprive a person of a hand, finger, toe, foot, leg, nose or ear, put out an eye, or in any way deprive a person of any other member of his body.” Construing this statute, this court in Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901, held that the two elements of willfulness and malice must combine. We are of opinion that, if appellant maliciously and willfully bit the assaulted party’s ear so as to disfigure him, he would come within the definition of the statute. If he did not willfully and maliciously do so, although he may have bit the ear, then the offense is not complete, and the evidence would not sustain the conviction. It is also laid down in 26 Cyc. 1598, that under the statutory rule there must be a premeditated design, and, if the injury arises out of a sudden attack unconnected with any premeditated design against the person, the offense is not complete. Quite a number of authorities are cited in support of this in footnote 26 found in the above authority. This rule is in conformity with our statute and seems to lay down the correct’ rule.

It also seems to be a correct rule that, where the inhibition is directed against an injury which disfigures, it is not necessary that the whole member should be mutilated or detached if the injury only impairs comeliness. The authorities also lay down the proposition that the cutting or biting off a small portion of the member which does not disfigure the person, and could only be discovered by close inspection or examination, when attention is directed to it, will not constitute maiming under the statute. This is the rule laid down in the case of State v. Abram, 10 Ala. 928.

This much is said to meet the questions suggested in the motion for a new trial and urged as error here, to wit, the failure of the court to charge upon • simple assault. The court charged upon maiming and self-defense. The trouble between the parties come up in sort of an accidental way growing out of the alleged injured party’s conduct and becoming angry and provoking the difficulty because he had lost a game or two of pool. The fight was an ordinary sudden one, and the testimony indicates it was brought about by Ashley and not the defendant. His testimony clearly raised the issue that it was not willfully and maliciously done for the purpose of disfiguring or maiming, but it grew out of the fact that Ashley was biting him and was an incident and sudden impulse occurring during the fight while they were on the ground. The court fully charged all the issues favorable to the state, and the jury, believing the state’s side of it, gave the minimum punishment in the penitentiary. If the court had charged upon simple assault, the jury may have been more lenient in their verdict and may have agreed with defendant’s view of it. Unless the testimony of willfulness and maliciousness incident to the alleged maiming or disfiguring excludes other theories and is so convincing that no other conclusion could have been reached, then appellant would be in error, and the court would not be required to charge on simple assault or on any minor grade of the offense. We think this rule is laid down by Chief Justice Roberts in Slattery v. State, 41 Tex. 619, but in order to show no error in this respect the evidence must be sufficiently cogent to overcome any idea except willfulness and malice. The issue was raised that it was not maliciously and willfully done (that is, that it was not done by premeditation and deliberation, etc.), and we are of opinion, therefore, the court should have charged on the issue of simple assault. The statute (article 772, Revised Code of Criminal Procedure), in stating, offenses consisting of degrees, under tile third heading, uses this language: “Maiming, which includes disfiguring, wounding, aggravated assault and battery, and simple assault and battery.” Under this clause of the statute we are of opinion that the court should have submitted the issue of simple assault and battery. All the evidence shows the disfiguring was slight, and if it was done without malice and willfulness, and there being no serious bodily injury or circumstance to make it aggravated assault, then the issue of simple assault would be in the case. We are therefore of the opinion that appellant’s attack upon the court’s charge in this respect should be sustained.

The judgment ought to be reversed, and the cause is remanded.

After I wrote the above my Brethren wrote the affirmance.. I have seen no reason to change my views but do not care to write further. '

HARPER, J.

I agree to all the above opinion, except that portion wherein it is held that the case should be reversed ber cause the court failed to submit the issue of simple assault. I do not think the evidence would raise that issue, taking it as stated by Judge DAVIDSON, He says, “Appellant’s testimony clearly raised the issue that the act of maiming was not willfully and maliciously done, but it grew out of a sudden impulse occurring during the fight;’’ and because of this state of facts the court should have charged on simple assault. The fact that appellant hit off a portion of Ashley’s ear is not questioned; that appellant is the person who thus maimed Ashley is .not denied, nor is the fact that Ashley was maimed questioned; then, if the act was willfully and maliciously done, appellant would be guilty of maiming, as defined in our statute, is conceded in the above opinion. The question is: If the act was not done willfully and maliciously, of what offense would appellant be guilty?

The ‘words “willful” and “malicious” are thus defined under our decisions; “A ‘willful’ act is one committed with an evil intent, with legal malice, without reasonable ground for believing the act to be lawful, and without legal justification. A ‘malicious’ act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischief; a wrongful act intentionally done without legal justification or excuse.” Bowers v. State, 24 Tex. App. 549, 7 S. W. 247, 5 Am. St. Rep. 901. It is thus seen that the words “willful” and “malicious” have the same legal meaning in this character of case as do the words “malice aforethought” in a murder ease. White’s Ann. P. C. § 1225, and cases cited.

Following these cases, if the maiming took place under the immediate influence of sudden passion aroused by an adequate cause, the issue of aggravated assault might be presented by the evidence, and the court submitted that issue in a way not complained of by appellant; but in such case the issue of simple assault could not arise. Our Penal Code provides; “If one intending to commit a misdemeanor and, in the act of preparation for of executing the same, shall, through mistake, commit an offense which in law is a felony, he shall receive the lowest punishment affixed by law to the offense actually committed.” Pen. Code 1911, art. 50.

So in this case, if appellant, by the testimony introduced by him, raised the issue that he intended" only to commit a simple assault, yet the facts showing conclusively and beyond dispute that he committed the act of maiming in attempting to execute the assault, the law says, as recited in article 50 of the Penal Code, he shall be guilty of the offense actually committed, to wit, maiming, providing that he shall receive the lowest punishment for that offense. That is the only amelioration given under our laws, and, as appellant received the lowest penalty affixed by law for maiming, we therefore do not agree that the court erred in refusing to submit the issue of' simple assault, but think he ruled correctly in the premises; and, as this is the only ground upon which Judge DAVIDSON thinks the case should be reversed, we think the case should be affirmed, and it is so ordered.

PRENDERGAST, P. J., concurs in Judge HARPER’S opinion.


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

text:
    Ex parte SINGLETON.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    Habeas Corpus (§ 20) — Nature of Proceeding — Incarceration—Lunatic.
    A lunacy proceeding is civil, and not quasi criminal, and hence a person found to be insane is not entitled to a writ of habeas corpus to determine the constitutionality of the statute under which the proceedings were instituted.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 18; Dec. Dig. § 20.]
    Application by James Singleton for writ of habeas corpus.
    Denied.
    Heidingsfelders and A. R. Railey, all of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

This is an original application to this court to grant a writ of habeas corpus, alleging that the applicant is restrained of his liberty by the sheriff of Harris county on his being found a lunatic under chapter 163, p. 341, of the Acts of the Regular Session of the Thirty-Third Legislature, relating to judicial proceedings in eases of lunacy.’ This act of the Legislature amends articles 150 to 165, inclusive, of the Revised Civil Statutes of the state in probate matters, pertaining to lunacy cases. The object of this writ is to have this court pass upon whether or not the said act is constitutional, wherein it provides that, instead of an alleged lunatic being tried by a jury, he shall be tried by a commission of physicians.

Our Supreme Court, in Legate v. Legate, 87 Tex. 251, 28 S. W. 282, in discussing what is a criminal and what a civil case, so far as the writ of habeas corpus is concerned, said: “If in this proceeding it appears that such person is restrained by reason of his supposed violation of some criminal law or quasi criminal law, as an offense against the person or contempt of court, then the proceeding must be classed as a criminal case, although upon the whole case the court should be of opinion that the act for which such person is detained does not constitute a violation of such law, or that the evidence is totally insufficient to establish the act, or that the supposed law does not exist or is void; but, if such person is not restrained by reason. of some Supposed violation of law, then the próceeding must be classed as a civil case.' .It is the cause of restraint which determines whether the proceeding to remove the restraint be a criminal or civil case.”

In our opinion the applicant in this case is in ho way restrained of his liberty by reason of any supposed' violation of any criminal or quasi criminal law,'but wholly and'solely in a probate civil proceeding. Hence this court has no jurisdiction to issue the writ of habe-as corpus. His remedy is solely, as we see it, in the civil courts. Ex parte Calvin, 40 Tex. Cr. R. 84, 48 S. W. 518; Ex parte Reed, 34 Tex. Cr. R. 9, 28 S. W. 689; Ex parte Berry, 34, Tex. Cr. R. 36, 28 S. W. SOC; Legate v. Legate, 87 Tex. 248, 28 S. W. 281.

We deem it unnecessary to discuss the question.

Entertaining this view of the question, any opinion by us as to the constitutionality of the said act of the Legislature would be obi-ter dictum; still it may not be amiss to say that, in view of the following authorities, which are in point, to wit: Black Hawk v. Springer, 58 Iowa, 417, 10 N. W: 791; Chavannes v. Priestly, 80 Iowa, 316, 45 N. W. 766, 9 L. R. A. 193; State v. Linderholm, 84 Kan. 603, 114 Pac. 857; In re Bresee, 82 Iowa, 573, 48 N. W. 991; Simon v. Craft, 182 U. S. 427, 21 Sup. Ct. 836, 45 L. Ed. 1165; and In re Walker, 57 App. Div. 1, 67 N. Y. Supp. 647 — if we could properly decide the question, we might hold the act constitutional.

The writ is denied, and the application, therefore, is dismissed.

DAVIDSON, J.

I do not express any opin-

ion on the constitutionality of the act. I have not examined the question sufficiently to have formed a definite conclusion. Inasmuch .as it is held this court is without jurisdiction, I have not examined that phase of the law.


author: HARPER, J.

text:
    BRACHER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.
    On Motion for Rehearing, Dec. 10, 1913.)
    1. Criminal Law (§ 1099) — Statement of Facts — Submission to Tkial Judge — 1Time.
    Acts 32d Leg. c. 119, § 7, provides that a statement of facts in a felony case may be filed, at any time before the time for filing the trans-script in the appellate court expires, which, in counties where the term of court exceeds eight weeks, is 90 days after sentence. Held, that where, in such a county, accused was sentenced on February 24th and a statement of facts was not presented to the trial judge until August 30th following, it was too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 949) —New Trial — Amended Motion.
    An amended motion for a new trial could not be filed without leave of court after the denial of the original motion; defendant’s remedy being by an application to the court to set aside the order overruling the original motion and to grant the motion as amended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2344; Dec. Dig. § 949.]
    On Motion for Rehearing.
    3. Criminal Law (§ 1099) — Statement of ■ Facts — Failure to Obtain — Negligence • of Attorney.
    Where accused employed his own attorney to defend him, the negligence of such attorney in failing to present a statement of facts to the judge for approval in time will be imputed to accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    4. Robbery (§ 24) — Alibi—Evidence.
    In a prosecution for robbery, evidence held to justify a conviction, notwithstanding defendant’s evidence of alibi.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.]
    5. Criminal Law (§ 958) — New Trial — Newly Discovered Evidence — Motion — Requisites — Affidavit.
    An application for a new trial for newly discovered evidence must be supported by affidavit.
    [Ed. Note. — For other. cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. § 958.]
    6. Robbery (§ 20) — Indictment—Variance.
    Where an indictment for robbery alleged that C. was robbed of $10, a fact that the proof showed that he was robbed of $14 was not a variance.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 27; Dee. Dig. § 20.]
    7. Robbery (§ 17)— Indictment — Money Stolen — Character.
    In a prosecution for robbery, it is not necessary that the indictment allege the denomination and kind of money stolen from prosecutor.
    [Ed. Note. — For other eases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. § 17.]
    8. Criminal Law (§ 1053) — Appeal—Jury-Necessity of Exception.
    In the absence of an exception reserved to the formation and organization of the jury, an objection that it was composed wholly of “talesmen” is not ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2661, 2665; Dec. Dig. § 1053.]
    Appeal from District Court, Wichita County ; P. A. Martin, Judge.
    J. E. Bracher was convicted of robbery, and he appeals.
    Affirmed.
    T. F. Hunter, of Wichita Falls, 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 and convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary.

There are no bills of exceptions contained in the record. There is a purported statement of facts, but the judge trying the cause certifies that same was not presented to him until August' 30, 1913. This case was tried January 25, 1913, and sentence pronounced on February 24, 1913. The official stenographer’s act provides that time may be extended in which to file statements of facts and bills of exceptions, and further provides that a statement of facts in a felony case may be filed, whether time is granted by the trial judge or not, at any time before the time of filing of the transcript in the appellate court expires.. We have frequently had occasion to call attention to the fact that the time for filing transcripts in the appellate court expires in 90 days from the adjournment of the term of court, or, if the term extends more than 8 weeks, within 90 days from date of sentence. Section 7 of chapter 119, Acts of 32d Legislature; articles 929, 930, 931, and 934 of Code of Criminal Procedure; rule 2 of the Court of Civil Appeals, 142 S. W. x, and rule 1, p. xvii; Constitution, § 25, art. 5.

There is another matter disclosed by this record we would call attention to. The motion for a new trial was filed on January 27 and overruled on February 22, 1913. After said motion for new trial was overruled, appellant, without leave of the court, undertakes to file, two days after the motion for new trial had been overruled, an amended motion for á new trial, which the record does not disclose was ever called to the attention of this court. Under such circumstances, this court would not be authorized to consider the amended motion for new trial. If, after the motion for new trial has been overruled by the trial court, an appellant desires to file an amended motion for new trial, he should file a motion asking the trial court to set aside the order overruling the motion for new trial and grant him a new trial, and the record should disclose by an order duly entered that such action was taken, and that the trial court then ruled on the amended motion.

There being no statement of facts we can consider, no matter is presented we can review.

The judgment is affirmed.

On Motion for Rehearing.

The motion for rehearing, in this case undertakes to lay the blame for failure to secure a statement of facts on appellant’s counsel. Appellant employed his own attorney, and if this attorney was negligent this will be attributed to him. The term of court at which appellant was tried lasted more than eight weeks. The appellant was sentenced February 24, 1913. The statement of facts was not presented to the judge until August 30, 1913. It was through no fault of the prosecuting officers nor the district judge that this delay occurred; consequently; nothing stated in the affidavit of appellant filed would entitle him to have the statement of facts considered.

But if, we did consider it,, the witnesses for the state positively identify appellant as one of those who robbed A. B. Clayton. Mr. Clayton positively swears he is one of the two men. While appellant undertakes to prove an alibi by J. B. Ivie and his daughter, yet everything they say could be true and yet he be the person who robbed Clayton. She says that she left home about 7:15 to go to town, and as she looked back she saw appellant and Arisman (the man who is said to have aided in the robbery) coming along after her. Clayton says he is not positive about the time he met appellant, but it was about 7:15, and that he was robbed at about 7:30. There is no such discrepancy in the time and place of the robbery fixed as to render the testimony irreconcilable, and the court submitted the issue of alibi in the language frequently approved by this court. Hines v. State, 40 Tex. Cr. R. 26, 48 S. W. 171; Caldwell v. State, 28 Tex. App. 566, 14 S. W. 122; Harris v. State, 31 Tex. Cr. R. 416, 20 S. W. 916; Stevens v. State, 42 Tex. Cr. R. 175, 59 S. W. 545.

The alleged newly discovered evidence is supported by the affidavit of no person, and no reason stated why such affidavit is not attached, and this under such circumstances, presents no error. Love v. State, 3 Tex. App. 501; Cotton v. State, 4 Tex. 260; Evans v. State, 6 Tex. App. 513.

If there was any variance in the “proof ánd the allegations contained in the indictment,” no exception was reserved to the introduction of the testimony. But no such variance occurs. The indictment alleges that Mr. Clayton was robbed of $10. Proof that he was robbed of more than $10 — $14—would be no variance.

Neither was it necessary for the indictment to allege denomination and kind of money.

If the jury was composed wholly of “talesmen” as alleged in the motion for a new trial, in the absence of any exception being reserved to the formation and organization of the jury, such fact would present no ground for reversal of the case. So, if we considered the statement of facts and every ground stated in appellant’s amended motion for a new trial, no error would be presented.

Motion for rehearing overruled.


text:
    HARRIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Criminad Law (§ 444) — Evidence—Records and Certified Copies — Production and Authentication.
    In a prosecution for bigamy, a license to defendant to marry the alleged former wife was not admissible unless proven to be ’ the original license issued by the- proper officer, or unless a certified copy of it was filed with the papers at least three days before- the trial and notice of such filing was given to defendant.
    [Ed. Note. — For other- cases, see Criminal Law, Cent. Dig. § 1028; Dec. Dig. § 444.]
    2. Criminal Law (§ 400) — Documentary Evidence — Parol Evidence oe Contents.
    Where a marriage license offered by the state was not admissible in a prosecution- for bigamy, the state could not prove its contents by oral testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    3. Criminal Law (§ 1171) — Trial—Remaeks of Prosecuting- Attorney.
    In a prosecution for bigamy, where the court excluded letters claimed to have been written by defendant to the alleged former wife, who had delivered them to the district attorney, a statement by the district attorney to the jury that if he had been allowed to. introduce them in evidence he would have shown defendant’s guilt was prejudicial.
    [Ed. Note. — For other eases; see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    4. Criminal Law (§ 784) — Teiai>-Insteuc-tions — Circumstantial Evidence.
    In a prosecution for bigamy, where there was no positive identification of defendant as the one who had married the first alleged wife, but the state’s evidence thereon was only circumstantial, it was error to refuse a charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    6.Witnesses (§ 193*) — Competency—Wife’s Letters — Admissibility against Husband.
    In a prosecution for bigamy, where the mother of the first alleged wife can identify the handwriting of defendant and, without the connivance of such wife, saw letters to her from him, she might identify them as his, but she could not so testify as to letters which the wife had received and had sent to the district attorney, who was in possession of them.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 740, 741; Dec. Dig. § 193.]
    6. Criminal Law (§ 400) — Best and Secondary Evidence — Lost Writings.
    In such case she could not testify as to the contents of the letters unless it was further shown that they had been lost or destroyed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    7. Bigamy (§ 8) — Evidence — Birth of Child.
    In a prosecution for bigamy, the fact that a child was born to the first alleged wife was inadmissible, as it would have no tendency to show that defendant was the person who,-under another name, had married her at a certain place.
    [Ed. Note. — For other cases, see Bigamy, Cent. Dig. §§ 41-49; Dec. Dig. § 8.]
    8. Witnesses (§ 268) — Cross-examination-Scope.
    In a prosecution for bigamy, where letters from defendant to the first alleged wife were not introduced, but where her mother was permitted to testify that she had received them, defendant had the right to cross-examine her as to how she knew the letters were written by him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959;. Dec. Dig. § 268.]
    9. Jury (§ 99) — Competency—Bias.
    A juror in a trial'for bigamy, who, before the trial, had said that in such case he would convict the defendant, was incompetent by reason of his fixed and expressed opinion of defendant’s guilt.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 438-443, 445-448; Dec. Dig. § 99.]
    Appeal from District Court, Cherokee County; Lee D. Guinn, Judge.
    Harry M. Harris, alias John M. Harris, was convicted of bigamy, and he appeals.
    Reversed and remanded.
    J. E. Rose, of Palestine, 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 & Rdp’r Indexes

      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 and convicted of bigamy, and his punishment assessed at four years’ confinement in the state' penitentiary.

The testimony of A. M. Duke, a justice of the peace in Cherokee county, shows that appellant, under the name of Harry M. Harris, was married to Miss Venia Chaney at Jacksonville on the 16th day of July, 1912, and this fact is clearly established by the record and is not questioned by the testimony offered in behalf of appellant. To prove that appellant was guilty of the crime of bigamy, the state undertook to prove that appellant had married Miss Alice Ellison, under the name of John M. Harris in San Antonio, prior to his marriage to Miss Chaney in December, 1911.

Anton Adams was called, and he testified he was clerk in the justice court in San Antonio and that Mr. Fisk, was justice of the peace; that the paper shown him by state’s counsel was a marriage license issued by Frank R. Newton, county clerk of Bexar county, dated December 15, 1911, and that it authorized the marriage of John M. Harris to Alice Ellison, and that the marriage ceremony was performed by the justice of the peace, and he (Adams) signed the license as a witness to the marriage. He then testified: “I don’t know this defendant, and if he is the man down there with these license will say that I don’t remember the gentleman. I don’t remember of ever knowing this gentleman. I don’t know whether he is the man to whom those license was issued. I don’t know whether he was in San Antonio that day or not.”

No other testimony was offered to prove that appellant was the man to whom the marriage license was issued and the person who was married to Miss Ellison by Justice Fisk on that day other than some remote circumstances. The court in approving the bill, states that the marriage license was not permitted to be introduced in evidence, but this statement, we think, only aggravates the error here complained of. Certainly if the marriage license was not proven up in a way to render it admissible in evidence, then a-witness would not be permitted to take it and state that it was a marriage license and read or state its contents to the jury, as Mr. Adams was permitted to do in this case. If he had sworn that he knew the signature of the county clerk, who issued the license, and that the signature of the clerk to the license was the genuine signature of the clerk, and that it was the original license issued, a different question would be presented, for then the license would have been admissible in evidence. But there is no evidence that the signature of Frank R. Newton, county clerk, was the genuine signature of Mr. Newton, nor that this was the original license. Mr. Adams was not questioned in regard to these matters, and he positively refuses to identify appellant as the man he saw in possession of the license. County Clerk Newton was not called as a witness.

If the issuance and execution of the license had been proven up properly, then the license would have been admissible in evidence, without filing with the papers or giving any notice; but, if the state expected to use this license and the return thereon to show a legal marriage to Miss Ellison, it ought either have proven it was the original license issued, and its issuance by the proper officer, or, if it could not do that, then a certified copy of the license ought to have been filed with the papers at least three days before the trial and notice given to appellant of its filing.

One of the other of the two things should have been done to render the license admissible in evidence; and neither of these having been done, the state could not prove its contents by a witness sitting before a jury and testifying as to its contents. If the license was not admissible in evidence, then oral proof .of its contents was not admissible. Burton v. State, 51 Tex. Cr. R. 196, 101 S. W. 226, and cases there cited.

Another matter that presents material error is that, while Mrs. Ellen Ellison, the stepmother of Miss Alice, was testifying, she identified two letters as letters written by appellant to his alleged wife, Miss Alice. ' The court excluded them on the ground that they were written by appellant to the person whom the state contended was his bona fide wife, and the establishing of which fact it was necessary for the state to do to secure a conviction, and letters written by a man to his wife are not admissible. The record further discloses that the alleged wife had delivered these letters to the district attorney. After the court had properly excluded these letters, the district attorney in' his address to the jury said: “We offered two letters from Mr. Harris to his wife, Alice Ellison, in evidence, but the court sustained defendant’s objection to their admission, and if we had been allowed to introduce these letters in evidence we would have shown his guilt.” We do not understand upon what rule of law the district attorney thought he had the right to comment on evidence excluded by the court and especially to tell them that such evidence excluded showed appellant’s guilt. This was prejudicial error of the highest character, and such error, if the court had instructed the jury not to consider it (which he did not do), would still present error. Other remarks of the district attorney are complained of, but this ruling is enough to show that he must keep himself within the record. It is further shown by the record that a portion of the jury, at least, after their retirement, discussed the fact that appellant had objected to the introduction of these letters and commented thereon. Jurymen, nor any one else during1 the trial, have any right to consider any evidence excluded by the court nor discuss such excluded evidence. It may be that appellant is guilty of the crime charged, but he has a right to a fair trial upon what the law recognizes as legitimate testimony.

The state relied on the fact that Mrs. Ellison testified that she received information which caused her and Miss Alice to go to Mineóla where appellant met them; that appellant told her he had business calling him to San Antonio, and if she .would allow Miss Alice to go with him that he would telegraph ahead and have license issued at Palestine and have an officer meet them at Palestine and marry them; that under such promise Miss Alice did get on the train with appellant. The state further proved that subsequent to this appellant and Miss Alice registered at the hotel of Mrs. Ford at Mineóla as husband and wife, remaining there several days, conducting themselves as husband and wife, and some other circumstances tending to show that appellant and Miss Alice conducted themselves as husband and wife, and that he treated her as such and so recognized her. These circumstances, together with the testimony of Anton Adams, hereinbefore discussed, was the testimony relied on to show a marriage between appellant and Alice Ellison. When we take into consideration that appellant at the time of his arrest was going under the name of Harry M. Harris, and had married Miss Chaney under that name, and the state relied on the above testimony to show that he was the John M. Harris who married Alice Ellison at San Antonio, and the further fact that Adams could not and would not identify appellant as the person who married Alice Ellison under the name of John M. Harris, it is manifest that the state relied on circumstances to show that the John M. Harris who, in San Antonio, married Alice Ellison was one and the same person as Harry M. Harris who married Miss Chaney. No positive testimony of that fact was offered or introduced in evidence. The circumstances are doubtless strong and cogent, tending to show that fact,; but there is no positive testimony in the record that, appellant, Harry M. Harris, was ever in San Antonio in his life, and no positive testimony that if in San Antonio he was going under, the name of John M. Harris, and under such circumstances the court erred in refusing to give the special charge requested by appellant on circumstantial evidence. There are a number of complaints and exceptions to the testimony of Mrs. Ellen Ellison, and we will treat all of them together.

If Mrs. Ellison is able, on. another trial, to identify the handwriting of appellant, and she saw letters from appellant to his alleged wife, Alice Harris, if she saw them without the connivance of his wife, she should be permitted to so testify. Letters stand in the same category as third persons overhearing conversations .between the husband and wife. The husband nor wife could not testify as to the conversation, but the third person who heard would be permitted to do so. And so if she got possession of the letters without the knowledge, connivance, or acquiescence of either the husband or wife, and she knows the handwriting and can so state, then she could so testify, but as to the contents of the letters she would not be permitted to testify, unless it was further shown that such letters had been lost or destroyed. But under no circumstances should she be permitted to testify that the wife had received letters which the wife had sent to the district attorney, and that that officer was in possession of such letters. What became of the letters would be immaterial unless they were lost or destroyed. Nor, if Mrs. Ellison obtained the letters from her daughter, with the knowledge and consent of the daughter, to enable her to testify in regard to them, should she be permitted to testify in regard to the letters.

Nor can we see how the fact that á baby was born to Mrs. Harris, née Ellison, would be admissible. Such fact would have no tendency to show that appellant was the John M. Harris who married Miss 'Ellison in San Antonio.

The court was in. error again in refusing to permit appellant’s counsel to inter* rogate the witness as to whether or not she knew that the letters were in the handwriting of appellant. It is true that the letters themselves were not introduced in evidence, but the witness was permitted to testify that her daughter had received letters from appellant, and it was permissible to cross-examine her as to how she knew the letters were written by appellant. Neither should she have been permitted to testify: “She sent some of those letters down here to the county attorney and brought, some of them here with her this time. I don’t- know how many she sent down here, only what she told me.” And this error was further aggravated, as hereinbefore shown, by the district attorney offering these letters in evidence and, when the court excluded them, have him tell the, jury that if he had been permitted to introduce those letters they would have shown appellant’s guilt. .

W. P. Brittain was one of the jurymen who tried appellant. On the hearing of the motion for a new trial, W. O. Neely testified : “I remember some tíme during this court, and about the 2d of June, of this case against Harry M. Harris being tried wherein he was charged with bigamy. I remember hearing Mr. Brittain before the trial of that case making some remarks about the case. We were right over here at Mr. Tucker’s store here in town) and Mr. Tucker just made the • remarks that if he was on the jury where a man did like that he would stick him; and Mr. Brittain just said, ‘Yes, I would convict him, too, if I was on that jury myself.’ ” Mr. Tucker testified in substance to the same facts. Mr. Brittain was also called as a witness and testified that he was at Tucker’s store, but stated “he had no recollection of what he did say at that time.” He would not positively deny making the remark. He was not a competent juror, having a fixed and expressed opinion as to appellant’s guilt. Many other matters are complained of in the record,, and some of which present error, but the rulings herein made apply to the rulés of law to such matters in a way they will not occur on another trial, and we deem it unnecessary to reiterate the law in regard to such matters.

Reversed and remanded.


text:
    MILLER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Intoxicating- - Liquors (§ 36)—Violation ojt Local Option—Prosecution—Attacking Election.
    Objection that there was not proper notice of a local option election cannot be made on a prosecution for. pursuing', the occupation, of selling intoxicating liquors in prohibition territory; Rev.' Civ.’St. 1911, art. 5728, providing that if the election is not • contested, as there provided, it shall be conclusively presumed to be valid and binding on ali courts.
    ,[Ed. Note.,—For other- cases, see Intoxicating Liquors, Cent. Dig. §§ 43, 44; Dec. Dig. § 36.]
    2. Intoxicating Liquors (§ 230)—Pursuing ' Business in Prohibition Territory—Evidence.
    The prosecution being for pursuing the occupation of. selling intoxicating liquors in prohibition territory, testimony that defendant at various other times, after selling to witness, solicited him to make purchases is admissible.
    [Ed. Note.—For other cases,, see Intoxicating Liquors,. Cent. Dig. § 290; Dec. Dig. § 230.]
    3. Intoxicating Liquors (§ 230)—Pursu-ing Business in Prohibition Territory-Evidence.
    •Evidence-of whisky and alcohol being frequently shipped and delivered to defendant is admissible, on a prosecution for pursuing the business of selling intoxicating liquors in prohibition territory.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 290; Dec. Dig. § 230.]
    4. Ceimitíal Law (§ 741) — 1Trial—Peremp-tory Construction.
    Where the evidence would sustain a conviction, error cannot be predicated on refusal to peremptorily instruct a verdict of not guilty.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1138,1221, 1705, 1713, 1716, 1717, 1727, 1728; Dec. Dig. § 741.]
    5. Criminal Law (s 1134) — Appeal—Review— Overruling Motion for New Trial.
    The overruling of a motion for new trial, being unnecessary, presents no question for review further than would be presented by tiie motion itself.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2587, 2653, 2986-2998, 3056, 3067-3071; Dec. Dig. § 1134.]
    6. Criminal Law (§ 1038) — Trial—Statement of District Attorney to Jury.
    In the absence of any request for a special charge, error canot be predicated on a statement of the district attorney to the jury, the court, in approving the bill of exceptions, stating that, when objection was made, the district attorney corrected the statement, and the court instructed the jury not to consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    7. Criminal Law (§ 598) — Trial—Withdrawing Announcement of Ready.
    Refusal to allow defendant, after the state had introduced its evidence, to withdraw his announcement of ready for trial, he merely stating he could prove by certain persons certain facts which would tend to impeach a witness for the state, and which would be admissible only for the purpose of impeachment, and showing no diligence to ascertain the facts before making the announcement, is not error.
    [Ed. ■ Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    8. Intoxicating Liquors (§ 239) — Pursuing Occupation in Prohibition Territory-Prosecution — Charge.
    The charge, on a prosecution for pursuing the occupation of selling intoxicating liquors in prohibition territory, does not authorize a conviction for making two sales; it instructing that the jury must believe beyond a reasonable doubt that defendant was pursuing the occupation and made two sales to the person named in the indictment, or they would acquit, and then defining occupation in an unobjectionable way.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    Ed. Miller was convicted, and appeals.
    Affirmed.
    Birmingham & Calvin, of Paris, for appellant. R. T. Lipscomb, Dist. Atty., of Bon-ham, and O. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of pursuing the business and occupation of selling intoxicating liquors in prohibition territory, from which judgment he prosecutes this appeal.

In introducing the orders of the commissioners’ court, the state introduced the one ordering the election which on its face shows that the clerk of the court was ordered to “post or cause to be posted at least 5 notices of this order at different places within Lamar county for at least 12 days prior to the said 26th of June, 1909 (the day of election), as the law directs.” Appellant objected to the order on the ground that “it does not give such notice as the law demands.” This order complies strictly with articles 5717 and 5718 of the Revised Statutes. The objection to the other orders are equally untenable, as the proceedings were in strict compliance with the provisions of chapter 1, tit. 88, of the Revised Statutes. In addition to this, the objection would come too late, as article 5728 provides for a contest of the election within a given period of time, and, if not contested, it shall be conclusively presumed that said election is valid and binding upon all courts.

A. Ware testified that he purchased whisky twice from appellant, giving the date, time, and place. He also testified: “There were several nights I was at the depot after the second transaction, and he generally would ask me if I wanted any more whisky. I could not positively say how many times he asked me, several times though. In fact, every time I saw him he solicited me to make a purchase.” Appellant objected to this latter testimony, but, as appellant was being prosecuted for pursuing the occupation, it was clearly admissible.

The state introduced Mr. J. E. Vaughn, agent of the Wells Fargo Express Company, at Paris, and he testified: “The book shown me is the record of the depot delivery of whisky from March 22, 1912, to April 1,1913, of the Wells Fargo Express Company.” That the book was correctly kept, and that appellant had been to the express office and ha>d business transactions with him as agent of the express company, and he saw him sign the express record. That the books show shipments and delivery of whisky and alcohol to appellant on January 8, 1913, January 11, 1913, January 16, 1913, January 17, 1913, January 25, 1913, January 31, 1913, and other dates up to the time of the return of the indictment in this cause. As appellant was being prosecuted for pursuing the business of selling intoxicating liquor, the court ruled correctly in admitting this testimony.

There are four other bills of excep tion, one of them relates to the refusal of the court to peremptorily instruct a verdict of not guilty on appellant’s motion. As the evidence above recited would sustain a conviction, the court did not err in overruling the motion. Another relates to the action of the court in overruling his motion for a new trial. This was unnecessary and presents no question for review further than would be presented by the motion itself. In the third bill of exception it is stated that “the district attorney stated to the jury that on February 4, 1913, the appellant had shipped to him 48 pints of whisky.” The court, in approving the bill, states that, when objection was made, the district attorney corrected the statement, and the court instructed the jury not to consider the statement. In the absence of any request for a special charge in regard to the matter, this action of the court presents no error.

The only other bill relates to the action of the court in refusing to allow appellant to withdraw his announcement after the state had introduced its evidence. Appellant states he could prove by Tom Smith and Mr. Gossett certain facts which would have a tendency to impeach state’s witness Ware. Appellant shows no diligence to ascertain the facts before announcing ready for trial, and, as the testimony would only be admissible for the purpose of the impeachment of the state’s witness, the bill presents no error.

The criticisms of the court’s charge are without merit. He did not authorize a conviction for making two sales, but instructed the jury that they must believe beyond a reasonable doubt that appellant was pursuing the occupation and made two sales to the person named in the indictment, or they would acquit, and then defined occupation in an unobjectionable way.

Affirmed.


author: PRENDERGAST, J.

text:
    KUYKENDALL v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Indictment and Information (§ 119)— Surplusage.
    The indictment clearly charging an offense under the statute both in getting drunk and being found intoxicated in a public place, unnecessary allegations do not invalidate it but are to be treated as surplusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    2. Criminal Law (§ 1090) — Appeal—Bill of Exceptions.
    Questions as to introduction of evidence, attempted to be raised by motion for new trial, cannot be reviewed on appeal in the absence of bill of exceptions.
    [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 Montague County Court; Levi Walker, Judge.
    Theo. Kuykendall was convicted, and appeals. Affirmed.
    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.

Under a complaint and information appellant was tried before the court, without a jury, and fined $5.

The statute under which this conviction was had is: “Any person who shall get drunk or be found in a state of intoxication, in any public place shall be deemed guilty of a misdemeanor and on conviction before a court of competent jurisdiction shall be fined in a sum of not more than $100 for each and every such offense.”

The complaint and information charge that he, on or about January 12, 1913, in Montague county, “did then and there unlawfully get drunk [by the immoderate use of spirituous, vinous, and malt liquors] in a certain public place, to wit, the Methodist Church house at Gladys, in Montague county, Tex., a place where people were then and there assembled for business, pleasure, and recreation, and was found in said public place in a state of intoxication.” While this complaint and information contain some unnecessary matter, yet it clearly charges an offense under said statute on both grounds, which are made offenses thereby, to wit, that he got drunk in a public place and that he was found in a state of intoxication in a public place. The unnecessary matter can and should be treated as surplusage. Goodwin v. State, 158 S. W. 275, in which a large number of cases are collated and cited. The words in brackets above are surplusage; but, if not, they in no way invalidate the complaint and information.

Appellant has no bill of exception in the record. He attempts to raise some question as to the introduction of some testimony by his motion for new trial, which we cannot review in the absence of a bill, of exception.

By other grounds of a motion for new trial he attacks the judgment of the court because • he claims the evidence was insufficient to support the conviction. While the evidence was conflicting to some extent, the testimony as a whole clearly was sufficient to establish both charges in the complaint and information.

The judgment is affirmed.


text:
    KEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1913.)
    1. Words and Phrases — “Memory. ”
    Standard dictionaries define “memory” as the mental capacity of retaining unconscious traces of conscious impressions and of recalling such traces to consciousness with the attendant perception that 'they have a certain relation to the past, and, in a narrow sense, the term means the power of such retention alone, or reviving in the mind ideas which, after being imprinted thereon, have disappeared or lain dormant.
    [Ed. Note. — For other definitions, see Words and Phrases, vol. 5, p. 4474.]
    2. 'Perjury (§ 32) — Admission of Evidence-Evidence in Ci.vil Suit.
    In a prosecution for perjury in falsely testifying in a personal injury action that accused had never been injured while working for another railroad, parts of the transcript in the civil action, which showed that accused’s counsel therein withdrew from the case upon it appearing that accused had testified falsely, were not admissible in evidence; only accused’s questions and answers in the civil action being admissible.
    [Ed. Note. — -For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    3. Criminal Law (§ 456) — Evidence—Opinion Evidence.
    Nonexperts may testify as to a mental condition if they show an intimate acquaintance and knowledge of the person’s habits and conduct.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1045; Dec. Dig. § 456.]
    4. Criminal Law (§ 772) — Instructions— Defenses.
    The court should present accused’s defenses in an affirmative way.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Andrew F. Key was convicted of perjury, and appeals.
    Reversed and| remanded.
    E. S. MeAlester, of Bonham, and Sam D. Stinson, of Greenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted

and convicted of perjury; his punishment being assessed at two years’ confinement in the state penitentiary.

Appellant had brought suit in the district court of Hunt county, Tex., against the Missouri, Kansas & Texas Railway Company for damages, alleging that he was injured while in the employ of said company. He was duly sworn and testified in said cause in substance as follows: “That he had never been injured in any way from the time he worked for the Katy Railroad at Greenville in 1907, under Jack Corder, up to April 6, 1912; that he had never collected any money from the Gulf, Colorado & Santa Fé, or the Missouri, Kansas & Texas Railroad Company of Texas, or any other railroad for any hurt or injury; that he never had a hernia or rupture before the 6th day of April, 1912; that he had never had any hurting in his left groin or side or been bothered with a knot in his left groin or scrotum prior to April 6, 1912.” This testimony so given by him in the civil suit is the basis for the charge of perjury in this case; in the indictment it being alleged that said testimony was false and was negatived as follows: “Whereas in truth and in fact he (Andrew F. Key) had been injured between the time he worked for' the Katy Railroad at Greenville, Tex., in 1907, under Jack Corder, and April 6, 1912; and he (the said Andrew F. Key) had collected money from the San Antonio & Aransas Pass Railway Company for an injury in February, 1911; and he (the said Andrew F. Key) had a hernia or rupture before April 6, 1912; and he (the said Andrew F. Key) had had a hurting in his left groin or side and had been bothered with a knot in his left groin or scrotum prior to April 6, 1912, and which said statements so made by said Andrew F. Key, as a witness in said case in the manner and form as aforesaid, were deliberately and willfully made and vpere deliberately and willfully false, as he (the said Andrew F. Key) then and there well knew.”

The testimony on this trial would support a finding that appellant did testify as alleged on the trial of the civil suit, and that said statements were false; in fact, the negative allegations being specifically proven by at least two witnesses. However, on this trial, a certified copy of appellant’s testimony in the civil suit was used in the examination of appellant, and what he testified on that trial was proven by appellant and other witnesses, and the questions and answers given by appellant on that trial being thus gotten in the record in this case. However, the transcript of the testimony as a whole was never offered nor introduced in evidence on this trial, and, if it had been offered, it contained matter tha.t was not properly admissible in evidence.

Appellant offered no evidence that he did not testify as stated and offered no evidence tending to show that such testimony was not false, but all witnesses introduced by him were intended to show that he was mentally defective; that he had no memory as to past transactions. His mother testified as to severe injuries received by him in the head in infancy, and other facts having a tendency to show him a man with almost without the faculty of memory. A teacher testified that in his youth appellant came to school in the school where he was teaching for two years; that when he entered school he was in the third grade, and at the end of the two sessions he was still in the third grade, and was in a sense defective in memory.

By standard dictionaries “memory” is thus defined: “The mental capacity of retaining unconscious traces of conscious impressions or states, and of recalling these traces to consciousness with the attendant perception that they have a certain relation to the past; in a narrower sense, the power of such retention alone, the power or act of recalling being termed recollection. * * * The power to revive again in our own minds those ideas which after imprinting have disappeared, or have been as it were laid aside out of sight, is memory.”

As before stated, the defensive theory, and the sole one relied on, was that appellant, on account of accidents received in childhood, was defective in memory to the extent that he could not retain and recall past transactions unless his mind and attention was ¡ directed specifically to the act or occasion, and they contend that the evidence on the civil trial was such as to support this theory. That, while appellant in answer to general questions had denied he had ever received any prior injury or collected damages therefor, yet when by direct questions his mind and attention was directed to the specific injury, railroad, etc., he then admitted he had received the injury and collected the money as damages for the injury received, and the record discloses that appellant was the only witness introduced on the trial in the civil ease, and after his cross-examination, and his attention being thus specifically directed to the matter, on his .admissions, the defendant was permitted to and did obtain a judgment against the plaintiff. This being the issue, did the transcript which was delivered to the jury while they were considering the case contain matter not introduced in evidence, which would have a bearing on that issue? We think so.

Mr. Carpenter was attorney for plaintiff in the civil suit. He was not a witness on this trial; yet in the transcript which was delivered to the jury it showed that Mr. Carpenter withdrew from the case, and that the -following proceedings had taken place on the trial in the civil case: “Plaintiff’s Counsel: If.the court please, this is putting us in a very embarrassing situation. After these questions were propounded to this witness yesterday evening before court adjourned. After court adjourned last night we taken him over to our office (we have two clients a man by the name), and they called and told us this yesterday that they understood he had been ruptured before. And we taken over to the office and asked him, I said, ‘Now, Key, if you have been ruptured, if you had a suit with any company or made any settlement, now is the time for you to say so in this office;’ and I says, ‘Now, if you go back there and recall your statement they will put you in the pen;’ and he said nothing of the kind had ever occurred. I says, ‘Now, ■ you know whether you did, and I judge from the way that Mr. McMahan (defendant’s counsel) has questioned you that he has something from the Santa Fé or some other railroad that you got this injury or hernia before, and we want you to tell us the truth about it.’ And yesterday was thé first time I ever talked to Mm as far as that was concerned; and he has just put up a job on us, that’s all there is to it. Defendant’s Counsel: Now, in justice to opposing counsel, I tMnk that I ought to state that when this suit was instituted, and when this man was making a claim, the claim department got information that he had been injured, or at least claimed to have been injured, down on the San Antonio & Ar-ansas Pass Railroad, and that he settled with them for it some time in the early part of last year. He asked us for a settlement and come to my office and seen me and talked to me about it; and I knew tMs at the time he was there and said notMng to Mm about it. The suit was instituted, and of course we at once taken the matter up through the claim department with the San Antonio & Aransas Pass Railroad, and we got the information that he claimed to have been injured on the 20th or 21st of January, 1911, when he had been at work about 4 or 5 days for the San Antonio & Aransas Pass Railroad. He then went to the hospital at San Antonio. He stayed there a short time and came back home to Leonard. He showed ■who Ms father was and give his initials and give Ms name as Frank A. Key. We got information from the San Antonio & Aransas Pass Railroad and got the voucher and draft that was given with it. The draft is indorsed by him and receipted by Mm and signed Frank A. Key. He wrote one letter to the San Antomo & Aransas Pass Railroad about that claim, and he wrote a letter to Mr. Akers (defendant’s claim agent at Greenville), and they show to be exactly 'the same handwriting. Now, I came in possession of all these facts, but I am sure that counsel for the plaintiff had no notice and had no thought of such a thing, and that it was ‘news’ to them' when I began to ask the questions I did yesterday, and as a matter of fact, when I asked Mm the questions again tMs morning, I had studied about it last Mght and expected he would swear positively that he never collected a dollar from the San Antonio & Aransas Pass Railroad, and that he was not hurt there, but I thought I would put ’it to him again and give Mm every chance to • correct Ms statement, if he would do it. If I had really expected that he would correct it this morning I don’t know whether I would have put the questions to Mm again like I have. Court: Well, what shall we do about it? Plaintiff’s Counsel: We desire to withdraw from the case right now. Defendant’s Counsel: I don’t want the ease to go over without any judgment being entered; bub I thought it was justice to opposing counsel to tell them just what I had this morning. Hal Horton (an attorney in the office of Evans & Carpenter, plaintiff’s counsel): When this matter was called to my attention yesterday I went to Leonard and interviewed two doctors, Ms mother, and his father, and why they each and all told me that so far as they knew, and his wife too, this plaintiff had never been ruptured; and Dr. John Pendergrast told me the same thing; and I came back here tMs morning with, that information myself and cross-questioned the plaintiff at the time. Court (addressing plaintiff who is still on witness-stand): Mr. Key, your attorneys have withdrawn from the case. Now, I will give you an opportumty to employ any attorney that you want to. I have to just let you take -your own course, but you have a right to employ other attorneys to go on with your case. I can’t stop the case. They have a right to have it submitted to the jury in some way.” Defendant’s counsel then examined the witness further as follows: “Q. (Hands witness paper.) That is you signature? A. Tes, sir. Q. That draft is dated February 15, 1911, for $1,000, ain’t it? A. Tes, sir. Q. Now, that is your signature right there on this voucher (shows the witness voucher for $1,000)? A. Tes, sir. Q. And you signed that (Frank A. Key) ? A. Tes, sir. (At this juncture of the case the defendant’s counsel calls Evans & Carpenter, or rather steps aside with them to the back of the courtroom, and exhibits the voucher and draft for $1,000 and other investigation papers. In the meantime Hal Horton, an attorney in the office of Evans & Carpenter, steps over to the witness and has a conference with him, then asks in the presence and hearing of defendant’s counsel that the witness be permitted to take a nonsuit.) Defendant’s Counsel: I don’t think it is proper for him to take a nonsuit in this case and run us to the expense, and we don’t think it would be right. * * * Witness (still oh witness stand):, I am going to take a nonsuit on it. ■Defendant’s Counsel: Now, in the condition this matter has gotten in, matters have developed that we cannot anticipate what the witness would say about it, then we will ask your honor to give us 20 minutes to prepare a pleading in this case before you rule on the question of nonsuit. Now, I will ask that the plaintiff be instructed to stay in the courthouse and when I prepare the pleadings I will want to ask him some other questions. The Court: Mr. Key, you will just remain in the courtroom. The Plaintiff’s Counsel: I don’t think there is anything your— Defendant’s Counsel (after being out about 30 minutes): We ask leave to file first trial amendment. Court: Is your trial amendment affirmative pleading asking for any relief? Defendant’s Counsel: Tes. The Court (after looking at defendant’s pleading just filed): All right, the plaintiff asks for a nonsuit. Do you desire to use him as a witness? Defendant’s Counsel: Tes, I desire to use him on the nonsuit. The Court: Well, the plaintiff takes a nonsuit. There is no case in court. (Defendant’s counsel here reads his trial amendment to the jury.) The Court (addressing the witness who is still on witness stand): Now, you understand the plaintiff has taken a nonsuit. He has no suit against the railroad in court. Now you desire to use him as' a witness. I feel it my duty, as the man is ignorant in regard to the rules of law, that the witness is not compelled to answer anything that will incriminate him, and so far as— Witness (here interrupts the court): Well, I want a nonsuit and I have to go home. Court: Go ahead with the examination of the witness.” Other similar excerpts might be cited.

Outside of the questions propounded to appellant and his answers thereto, none of this matter would have been admissible in evidence had that part of the transcript been offered as evidence, and yet the jury was permitted to take it with them in the privacy of their room, read and consider it, and that it was read and considered is shown by the testimony of Messrs. Green, Murphy, and Davis, heard on the ihotion for a new trial. These men swear that they were on the jury who tried appellant; that the jury had arrived at no verdict until this transcript was called for and delivered to them; that they had two copies of the transcript, and one of the' jurymen asked the questions and another read the answers; and that the entire transcript was perused by them, and then it was that a verdict was reached. It is manifest that the jury received and considered other evidence, than that adduced on the trial, bearing on a material issue in the case, and this will necessitate a reversal.

There are a number of bills of exception in the record, some of which show that witnesses, after testifying to facts showing an intimate acquaintance and knowledge of appellant, were asked their opinion as to his ability to remember matters unless his attention was specifically called to the matter. As illustrative of these bills we will copy the one relating to the testimony of Dr. J. I-I. Thompson. The doctor had testified that he knew defendant, had known him for 20 years, and had been' the family physician of his father during all the time defendant was growing to manhood, and had practiced in defendant’s family since he had left home, and other facts, when the following question was propounded to him: “Now, in the condition that you have stated he (defendant) is, what, in your judgment, would be the condition of his memory, speaking as a physician?” Objection was made, when defendant’s counsel restated the question: “I will ask the doctor from what he had observed, and what he knew of defendant’s mental condition, what effect it would have on his memory?” The objection was that he was not an expert on mental diseases, and an answer would be but an opinion, which objection was sustained. The bill shows the witness would have answered that under defendant’s peculiar condition and under his physical and mental make-up, and from his acts, conduct, and general deportment, and from what he knew of the defendant, and from what he, as a physician, had observed of the defendant in his acts, his conduct and his conversation, that the defendant’s memory necessarily, was bad, and defendant would be slow to recall past incidents, unless his mind had been specially directed to the particular circumstances, time, and occasion.

This was error, as in a number of eases we have held that, when one’s mental state is an issue, those not experts may be permitted to testify where they show intimate acquaintance and dealings with and knowledge of one’s habits and conduct. This question is discussed at length in Jordan v. State, 141 S. W. 786, citing authorities, and the correct rule there stated, and under this case the testimony of Dr. Thompson was admissible as well as that of the witnesses Dooly and Mrs. Key,

There are several complaints of the charge of the court, and especially that the charge as given did not properly submit the defense of defendant in an affirmative way. We feel sure this will not occur on another trial, for when this additional testimony is admitted, which we have herein ruled should have been admitted, the court will appreciate the necessity of presenting in an affirmative way the defense relied on, if the testimony on another trial tends to prove the same defensive theory as relied on in this case.

The judgment is reversed, and the cause is remanded.