text:
    LOVE v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Homicide (§ 295) — Manslaughter—Adequate Cause — Instructions.
    Defendant having stabbed and killed deceased within half an hour after a difficulty in which defendant had been severely beaten by deceased, the court, in applying the law of manslaughter to the facts, charged that if the jury believed beyond a reasonable doubt that defendant with knife or instrument reasonably calculated to produce death, in a sudden transport of passion aroused by adequate cause, with intent to kill, did unlawfully cut and kill deceased, then the jury should find defendant guilty of manslaughter, etc. Held, too restrictive in failing to instruct that if the jury found deceased inflicted pain or bloodshed on defendant in the prior attack, that would be sufficient cause to arouse sudden passion required by the statute.
    ' [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    2. Homicide (§ 295) — Manslaughter—Adequate Cause — Instructions.
    Whenever in a prosecution for homicide statutory adequate cause or causes are alleged as an excuse for the killing, it is the court’s duty to appropriately instruct with reference to each of such causes; and, if there be independent or a combination of independent causes, not specifically set forth in the statute, those should be combined and charged on separately from the statutory adequate cause.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295]
    3. Homicide (§ 295) — Manslaughter—Cooling Time.
    Where decedent beat and bruised defendant about the face, causing him pain and bloodshed, within from 10 to 30 minutes prior to the killing, and defendant was very much excited during the time, and suffering from the beating when he stabbed deceased, the evidence presented the question of cooling time, and it was error for the court to omit to charge on that subject as a part of the charge on manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent..Dig. §§ 606-609; Dec. Dig. § 295.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Taylor Love was convicted of second degree murder, and he appeals.
    Reversed and remanded.
    E. B. Pickett, Jr., of Liberty, 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, P. J.

Appellant was convicted of murder in the second degree, his punishment being assessed at 18 years’ confinement in the penitentiary.

The complaints of appellant are directed against the court’s charge on manslaughter. Briefly stated, so far as the disposition of the case is concerned, the facts show on Christmas day some negroes were congregated at a race course and engaged in horse racing. The deceased, Lewis, had trouble with two brothers of the defendant, Buck and Pete Love, and gave them both a whipping. About the time he finished these performances he said something to the defendant about giving him his money. It may be gathered from the facts the deceased thought that defendant was holding stakes in which he (deceased) was interested, and there is some evidence perhaps tending to show that appellant may have held stakes. Any way deceased thought so. Defendant left the grounds and went to the residence of Barney Wright, about 300 yards away. After a short interval of time, 20 or 30 minutes, deceased followed appellant to Wright’s and told him that he (appellant) had gotten his (deceased’s) money, which the appellant denied. This brought on a war of words, which finally ended in a personal difficulty, in which deceased severely punished appellant, causing him both pain and bloodshed. It is unnecessary to go into a detailed statement of the difficulty. There seems to have been no question, so far as these matters are concerned. Deceased had appellant down while beating him, and was pulled off, .parties separated them, and after some 10 to 20 minutes, witnesses varying as to the time, the parties got together again, and appellant, during the latter altercation, stabbed the deceased, from which he died. The record of the testimony is very voluminous, covering 105 pages. It is deemed unnecessary to go into a statement of these matters further than as it pertains to the criticism of the court’s charge. The court, with reference to manslaughter, instructed the jury: “By the expression ‘under the immediate influence of sudden passion’ is meant: That the provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. The act must be directly caused by the passion arising out of the provocation. The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering it incapable of cool reflection. By the expression ‘adequate cause’ is meant such as would commonly produce a degree of anger, rage, resentment, or terror, in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. The following are deemed adequate causes: An assault and battery, causing pain or bloodshed, is adequate cause, and any condition or circumstance which is capable of creating and does create sudden passion, such as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection, whether accompanied by bodily pain or not, is deemed adequate cause. And where there are several causes to arouse passion, although no one of them alone would constitute adequate cause, it is for you to determine whether or not all such causes combined might be sufficient to do so.”

Then follows another section of the charge, which informs the jury that adequate cause must exist at the time to produce the state of min'd above referred to, and the state of mind must actually exist. Applying the law to the case, the court thus charged the ;jury: “Now, if you believe from the evidence beyond a reasonable doubt that the defendant, with a knife, a deadly weapon, or instrument reasonably calculated and likely to produce death by the mode and manner of its use, in a sudden transport of passion aroused by adequate cause, as the same has been hereinbefore explained, with intent to kill did unlawfully cut and thereby kill said Teal Lewis, then you will find him guilty of manslaughter and assess his punishment,” etc. It is contended this charge is too restrictive, and that while the court does tell the jury that an assault and battery causing pain or bloodshed is adequate cause, yet, applying the law to the case, the court does not instruct the jury that if they find the deceased inflicted pain or bloodshed, this would be sufficient cause to arouse sudden passion requisite under the statute. We are of opinion this contention of appellant is correct. The court should have instructed the jury, applying the law, that if deceased had inflicted pain or bloodshed upon appellant, and this produced sudden passion called for by the statute, then they should only find appellant guilty of manslaughter.

The proposition is thus laid down by Mr. Branch in his excellent work on Criminal Law: “If a cause made adequate by statute is in evidence, charge must not only tell jury that same is adequate cause, but must apply the law to the facts, and tell them; for example, that if blow was struck, and that it caused pain or bloodshed, and that it aroused defendant to such a degree of anger, rage, sudden resentment or terror as rendered his mind incapable of cool reflection at the time of the homicide, he should not be found guilty of anything higher than manslaughter.” Section 512, Branch’s Crim. Law; Attaway v. State, 41 Tex. Cr. R. 399, 55 S. W. 45; Ware v. State, 49 Tex. Cr. R. 416, 92 S. W. 1093; Horn v. State, 50 Tex. Cr. R. 409, 97 S. W. 822; Gillespie v. State, 53 Tex. Cr. R. 167, 109 S. W. 158; Brown v. State, 54 Tex. Cr. R. 126, 112 S. W. 80; Brookins v. State, 158 S. W. 521, this day decided. These are sufficient authorities to sustain the proposition, and they seem to be without dissent or contradiction.

Wherever the statute enumerates the cause, or causes, as in this case, pain or bloodshed, the court must appropriately instruct the jury with reference to each; and, if there be independent cause, or combination of independent causes, not set forth specifically in the statute, these should be combined separately from the statutory adequate cause, and the jury appropriately instructed. They may or may not find that the cause is adequate, while in the other they must find it so, because the statute makes it so. The authorities in regard to these propositions are found collated in section 512 of Mr. Branch’s work on Criminal Law.

There is another criticism of the charge on manslaughter, which is well taken. The evidence shows, and without contradiction, both by the state and the defendant, that there was a separation between the parties after the first difficulty. The witnesses vary as to the time of separation. It was from 19 to 30 minutes. Defendant seemed to have been very much excited during the time, and was suffering from the beating he received; one of his eyes was badly hurt and pained him, and he was beaten and bruised about the face, and was bleeding. In the second difficulty appellant cut the deceased with a knife, which was shown to have had a blade about two inches long. From this wound deceased died. This raised, the question of cooling time. Appellant may. have been the aggressor in the latter difficulty, but whether he was or not, the adequate cause existed which produced the passion, and his mind was excited, and in this condition he cut the deceased, -which cut brought about his death. Under all the authorities this suggested a charge on cooling time.

Referring to Mr. Branch’s Criminal Law, we find he thus states the rule: “If there is' evidence, of a previous difficulty between the parties a short time prior to the fatal difficulty, and adequate cause could be predicated on the first, the court should charge on adequate cause based on the previous difficulty in connection with cooling time.” Thomas v. State, 42 Tex. Cr. R. 387, 56 S. W. 70; Hayman v. State, 47 Tex. Cr. R. 266, 83 S. W. 204; Dixon v. State, 51 Tex. Cr. R. 555, 103 S. W. 399; Huddleston v. State, 54 Tex. Cr. R. 96, 112 S. W. 64, 130 Am. St. Rep. 875; Watson v. State, 50 Tex. Cr. R. 173, 95 S. W. 115; Mundine v. State, 37 Tex. Cr. R. 5, 38 S. W. 619; Castro v. State, 40 S. W. 985; Cooper v. State, 49 Tex. Cr. R. 30, 89 S. W. 1068; Ross v. State, 53 Tex. Cr. R. 279, 109 S. W. 194; Brownlee v. State, 48 Tex. Cr. R. 410, 87 S. W. 1153; Cooper v. State, 48 Tex. Cr. R. 36, 86 S. W. 1059; Wadlington v. State, 19 Tex. App. 266; Murray v. State, 35 S. W. 990. Again he states the rule: “If there is evidence of adequate cause arising at the time of the homicide, and also evidence of adequate cause arising from a previous difficulty, and difficulty was not continuous, and only a short time intervened, the court should charge on both phases of adequate cause, cooling time in connection with the first.” Authorities already cited.are in point. Where it is an issue whether the difficulty was continuous, some evidence supporting the theory that it was, while other evidence supporting the theory that it was not, but broken by intervening time, then it is the duty of the court to charge on cooling time.

Viewing the entire record in the light of the facts and the law, we are of opinion that, the court’s charge was incorrect, and that upon another trial the views herein set forth should govern the court in the application of the law to the facts.

Because of the errors discussed, the judgment is reversed, and the cause is remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    POPE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    On Motion for Rehearing, June 25, 1913.)
    1. Criminal Law (§ 825) — Instructions— Requests.
    In a prosecution for embezzlement, where the court used the word “consignee” in its instructions, it was not necessary to define it, in the absence of a request.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005; Dec. Dig. § 825.]
    2. Embezzlement (§ 48) — Instructions — Character of Possession of Property.
    In a prosecution for embezzlement of a diamond, where the defense was that it was sold .to the defendant on credit and not consigned to him for sale, an instruction that if the jury had a reasonable doubt, or believed that the prosecuting witness agreed to sell goods on credit to the defendant, and that this diamond was sold under the agreement, they must acquit, presented affirmatively the defendant’s theory of the case.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §•§ 72-75; Dec. Dig. § 48.]
    On Rehearing.
    3. Embezzlement (§, 8) — Ownership of Property — Conditional Sales — Effect of Assignment of Contract.
    Where a jeweler, with whom a diamond had been placed for sale by a jobber, made a conditional sale of it, and indorsed the contract of sale to the jobber, the latter became the legal owner of the contract and entitled to-the diamond when it was returned by the purchaser to the jeweler.
    [Ed. Note. — For other eases, see Embezzlement, Cent. Dig. § 6; Dec. Dig. § 8.]
    4. Embezzlement (§ 44) — Evidence—Sufficiency — Ownership of Goods.
    In a prosecution for the embezzlement of a diamond, evidence held sufficient to warrant a finding that it was not sold to the jeweler on credit, but that it was intrusted to him for sale.
    [Ed. Note. — For other eases, see Embezzlement, Cent. Dig. §| 67-70; Dee. Dig. § 44.]
    5. Criminal Law (§ 350*) — Evidence — Admissibility — AGREEMENT NOT TO PROSECUTE.
    In a prosecution for embezzlement, where the defendant is allowed a broad range in cross-examining the witnesses for the prosecution to show their, interest and bias as affecting their credibility, evidence that they had compounded a crime by agreeing not to prosecute if their losses were made good is inadmissible.
    . [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. §-350.]
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    J. E. Pope was convicted of embezzlement, and he appeals.
    Affirmed.
    Puckett & Williams; of Dallas, and F. J. McCord, of Longview, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was convicted of embezzlement, and his punishment assessed at two years’ confinement in the penitentiary. Appellant at one time was a member of the Wendell-Pope Jewelry Company, which firm was indebted to Shuttles Bros. & Lewis of Dallas, Tex. The Wendell-Pope Company failed, and bankruptcy proceedings were had. A conversation took place between appellant and a member of the Shuttles firm on their way to attend a creditors’ meeting, and at this time it was agreed that Mr. Pope would continue in business in Dallas, doing business in his wife’s (M. E. Pope’s) name. The terms of this agreement is one of the main questions at issue in this ease. Appellant contends they were to extend him a line of credit. Shuttles Bros. & Lewis contend they were to let him have goods on consignment; the title remaining in them. It would appear that appellant secured a $10,000 stock of goods from Shuttles and engaged in business.

W. W. Guy worked for appellant, and he testified: “In the month of May this year I was employed by Mr. Pope as stenographer. I have been, with them from January 12th to the 11th of May. Up until the time he went away; yes, sir. I did not know where he was going when he left. I did not know that he was going to discontinue business. The last month that I worked for him my duties were collecting. Prior to that time I worked at the bench and on watch repairing. He told me that Shuttles Bros. & Lewis owned the goods in his place, and besides he would send me down there for them and send me down to have them checked up. He sent me down there once a month. He told me to check up on the 27th of each month. He did not send me every time; he and the bookkeeper went part of the time. When he would sell goods there in that establishment the notes would be turned over to Shuttles Bros. & Lewis. Part of the time he would turn them oyer the same day that the sale was made. The rule about the office was that the goods were sold on the installment plan and that the notes were turned over to Shuttles Bros. & Lewis to have them approved. He told me that the notes had to be approved before the sale was completed. Mr. Pope .told me that.”

While the issue was sharply contested as to whether the goods were sold to appellant on a credit, or were placed with, him on consignment, the court fairly submitted that issue to the jury, and they found against appellant’s contention, .and we cannot say they were not justified in so doing, and in our opinion the evidence will sustain the verdict. The contention that appellant’s wife, M. E. Pope, was the consignee, if the goods were placed on consignment, cannot be sustained. The trade was with appellant, and it was understood by him and Shuttles Bros. & Lewis that the name of the wife of appellant would be used to Keep creditors from interfering, and the goods were delivered to him, not to Mrs. Pope.

It appears from the testimony that on Saturday, May 11th, appellant’s stock was checked by a representative of the Shuttles firm, and at that time he was asked in regard to a certain diamond of the value of about $500. The state’s evidence would show that he then stated he had placed it with a certain man for sale, and agreed to bring it in Monday. Instead of doing so he left for St. Louis, where he was arrested, having this diamond with . him. Appellant desired to introduce testimony that the Shuttles firm agreed not to prosecute him if he would pay them a certain amount of money, which they claimed was owing them. This all occurred subsequent to the arrest of appellant, and would not throw any light on whether the goods were sold to appellant or he had them on consignment. The offense, if one had been committed, could not be compromised by the Shuttles firm. Appellant was being prosecuted, charged with the embezzlement of one specific diamond, and evidence Of a matter taking place subsequent would not be admissible, unless it would tend to throw light on whether or not this diamond had been sold to appellant, on credit or it had been delivered to him as the agent of the Shuttles, Therefore the court did not err in excluding the evidence of offers of compromise after the embezzlement had taken place and prosecution commenced.

It appears that the Shuttles firm had taken possession of about $10,000 worth of goods on May 11th, and appellant had agreed to deliver the diamond, which he is being prosecuted for embezzling, on Monday, May 13th. This he did not do. The sole question in this case is whether this particular diamond was held by appellant as agent-of the Shuttles firm, or had been purchased by him; and none of the testimony offered, and which was. excluded by the court, would tend to prove or disprove that fact.

In the absence of requested instructions, it was not incumbent on the court to give a definition of the word “consignee.” It has a well-understood meaning.

The court instructed the jury: “Four things are essentially requisite to constitute the offense of embezzlement: (1) The defendant’s agency whereby he was charged with the duty of receiving the property; (2) the receipt of the property; (3) its receipt by virtue of his agency; (4) the fraudulent conversion or misapplication of the property by him. If either of these requisites is wanting in a prosecution for embezzlement, then the prosecution has failed to establish that crime, and the defendant; would be entitled to an acquittal. * * * If you have a reasonable doubt or if you believe that the property described in the indictment came into the possession of defendant as a sale on credit, then you will acquit the defendant. If you believe or have a reasonable doubt that Prescott, for Shuttles Bros. & Lewis, agreed to sell goods on. credit to defendant in consideration of his agreeing to pay the debt formerly owed Shuttles Bros. & Lewis by Wendell-Pope Jewelry Co., and that the property described in this indictment was sold to defendant under this agreement, you will acquit the defendant.” This presented affirmatively defendant’s theory of the case, and the charge as a whole was a fair presentation of the law applicable to the evidence.

It may be said that the issues of fact were sharply contested, but the evidence offered in behalf of the state would show a plain case of embezzlement, and the jury finds this evidence to be true.

No error is pointed out in the record, and the judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in this case in which he strenuously insists that we erred in two conclusions reached. He does not insist that we erred in any proposition of law stated, but seems to admit that if the facts justified the conclusions reached, then the law was properly applied.

His first insistence is that the particular diamond for which he is being prosecuted for embezzling did not come into his hands under the M. E. Pope agreement, but came into his hands while he was doing business at Longview under the firm name of Wendell Jewelry, or Wendell-Pope Jewelry Company. As it is a question of fact that appellant insists we are wrong in, there is •but one way to arrive at a correct conclusion, -and that is go to the evidence adduced on the trial. We will refer to the testimony relating to this particular diamond and see whether or not the evidence offered in behalf of the state would authorize the jury to find that he held the goods as agent for Shuttles Bros. & Lewis, instead of buying them outright, as claimed by him. There is no contest in the case as to the fact that Shuttles Bros. & Lewis were originally the owners of the diamond, and that they had never been paid for it, but appellant insists that the diamond was purchased on a credit, and that the debt was discharged by bankruptcy proceedings. If Mr. Prescott, the treasurer of the corporation, is to be given any credence, he testified that in May, 1911, the diamond was’ placed with appellant for sale; in August he sold it to Mr. Mabry of Hunt county for $650, $100 in cash and contract for $550; it was a conditional sale, the title not passing to Mabry until the purchase price was fully paid. Under our law this was a mortgage. When appellant made this trade with Mabry, he transferred by in-dorsement the contract of Mabry to Shuttles Bros. & Lewis, and they were the legal owners and holders thereof at the time of the bankruptcy proceedings of appellant and his father-in-law. It is true that this bankruptcy proceeding, although the claim was not listed, would release appellant as indorser on the Mabry contract, but it would in no sense make appellant the owner of the diamond, Mabry then had the diamond, and Shuttles Bros. & Lewis the conditional sale or mortgage contract. Subsequent to this time Ma-bry decided he could not pay for the diamond, and appellant so reported to Shuttles Bros. & Lewis, and they canceled and surrendered the conditional sale or mortgage contract in consideration of Mabry surrendering the diamond. At this time appellant had no interest in the diamond nor in the mortgage, and the diamond by this transaction became the property of Shuttles Bros. & Lewis, under the well-known rules of law, and the bankruptcy proceedings became an immaterial matter in deciding whether or not the diamond was in fact embezzled by appellant. If he was the agent, as the facts clearly show, of Shuttles Bros. & Lewis in securing the return of the diamond in consideration of the cancellation of the mortgage contract, the fact that Mabry delivered the diamond to him would not make him the owner, and if, when he reported the transaction to Shuttles Bros. & Lewis, they left the diamond with him, as to whether or not he was guilty of embezzlement would depend wholly on the transaction that took place at this time. If they then resold the diamond at an agreed price to appellant, he would not be guilty of embezzlement, but there is no contention that this is true; all the evidence shows that the diamond was left in his possession on the terms and conditions of thé M. E. Pope contract; this, they say, was a consignment contract, and the title to the goods always remained in them. He says they sold M. E. Pope goods on a credit. The evidence clearly shows he received from them some $12,000 worth of jewelry, either on consignment or by purchase on credit. This was the issue to be tried, and was fairly submitted to the jury for their determination, as shown in the original opinion, and in a way not complained of in this motion. A. S. Prescott and R. H. Shuttles testify that the goods were not sold to appellant, but were placed with him on consignment; the evidence clearly shows that they frequently checked his stock, and required an accounting for the goods not in stock; two of appellant’s clerks, T. H. Andrews and W. W. Guy, testify that appellant admitted to them the goods were the property of Shuttles Bros. & Lewis, Guy’s testimony being copied in the original opinion. It is further in evidence that when a check given by appellant to Shuttles Bros. & Lewis was turned down by the bank on May 11th, their business relations were severed, and all the goods of Shuttles Bros. & Lewis on hand were delivered by appellant to them without, question, except this diamond; that in checking the goods the diamond which appellant is being prosecuted for was missing. Messrs. Prescott and Shuttles testify that appellant then asserted no claim to the diamond, but said he had delivered the diamond to M. M. Cherry to sell to his father-in-law, Mr. Morgan. Mr. Cherry says this is untrue. They further testify that appellant agreed to secure the diamond and return it to them on Monday morning. Instead of doing so, he left the state on Sunday night, and was arrested in St Louis on Wednesday; he then having the diamond in his possession. I-Ie was brought back to Texas by a detective, Joe Austin. He admits that when brought to Dallas he concealed the diamond before getting off the train and being placed in jail. From that day until the day of the trial the diamond disappeared from view; but, while testifying, he says he has always known where the diamond was, and on the trial secured and displayed it, but would not surrender it. These facts would support the finding of the jury that he was but the agent of Shuttles Bros. & Lewis in handling this diamond, and by his acts and conduct was guilty of embezzling it. Of course the testimony of defendant would support a finding that there was a sale on credit to him, but the jury did not accept his theory of the case, but found the facts to be as testified to by the state’s witnesses.

The attorney, Hon. Felix J. McCord, whc files this motion for a rehearing was not an attorney on the trial of the case, and perhaps he is, for that reason, excusable for the broad, incorrect statement of the evidence in the motion for a rehearing. He must have relied on some person’s statement to him, for certainly the record in this case on- file in this court would not authorize nor justify such a statement of facts as he contends for in the motion filed. Even if we should view the facts from the testimony introduced by appellant alone, the facts, as stated in the motion, would have no foundation nor justification in the record. But of course, in passing on the sufficiency of the testimony to sustain a verdict, we do not and would not be warranted in law to consider the testimony of the appellant alone, • but we must look to the whole record; and, if the testimony as a whole, will sustain the verdict we have no legal right to disturb it.

The only other ground in appellant’s motion is that he should have been permitted to introduce testimony tending to show that after his arrest and incarceration in jail charged with this offense, Mr. Prescott and Mr. Shuttles made tentative propositions that if their losses were made good, they would not push this prosecution. The court, in the cross-examination of Prescott and Shuttles, allowed the broadest range; it was shown they employed Mr. Allen to prosecute the case, the amount of their loss, their feeling towards appellant,, and all facts that would tend to show their interest, bias, etc., for the purpose of affecting their credit as witnesses. But if they had gone so far as to compound a crime, under article 422, P. C., and thus render themselves liable to a criminal prosecution, this would be no excuse nor justification of the crime of embezzlement if appellant had theretofore committed that offense. Nor would such fact throw any light on the original transaction between appellant and Shuttles Bros. & Lewis. -It was this fact on trial: Was appellant in charge of the diamond ás agent in law of Shuttles Bros. & Lewis, were the goods delivered to him on consignment, the title remaining in. Shuttles Bros. & Lewis, or did he purchase the diamond from them on credit? As before stated, if they had agreed not to prosecute if all their losses were made good, and that fact proven, this would not render appellant less guilty, nor aid the jury in determining whether or not the diamond was or was not originally sold to him.

On account of the incorrect statement of the testimony in the motion for rehearing, we have deemed it necessary to state the evidence rather at length, and in doing so we are more fully convinced the original opinion was correct.

The motion for rehearing is overuled.


author: DAVIDSON, P. j.

text:
    NAGLE v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Cbiminal Law (§ 1159) — Appeal and Error —Review—Findings..
    A finding by the trial court, sitting without a jury,' made upon conflicting evidence, is conclusive on appeal, and accused cannot have it set aside, upon the theory that where the testimony is false the conviction should be reversed, merely because he denied the testimony of the prosecuting witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    Appeal from Burleson County Court; R. J. Alexander, Judge.
    Hans Nagle was convicted of carrying a pistol in violation of law, and he appeals.
    Affirmed.
    Jesse Garrett, of Caldwell, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. j.

Appellant was convicted of carrying a pistol in violation of the statute. The issue is one of fact, there being no legal question raised..

It is a conceded fact that appellant was a mail carrier;. that going along the road a man named Broaddus, who had a negro in the wagon ' with . him, ran into appellant’s horse and caused him to; jump. This seems, to be practically the .only thing about which the witnesses fully agree. Broaddus and the negro both testified when this happened appellant jerked his pistol and presented it at Broaddus, or rather upon both the negro and Broaddus. Appellant denied having the pistol, and introduced evidence to the effect that he did not own a pistol. He introduced one witness at whose house he lived. This witness testified that he (witness) owned a 88 caliber pistol, which hung in the room occupied by appellant. The state’s witnesses show the pistol presented by appellant on the occasion in question was a 38 caliber pistol. There is quite a lot of testimony going into details and side matters; but the issue is fairly presented by appellant that he did not have a pistol, and by the state that he did. The case was submitted to the court without a jury, and he found against appellant’s contention and testimony. Under this condition of- the record we would not be justified in reversing the judgment.

Appellant cites us to the case of Threadgill v. Wells, 148 S. W. 342, to the effect that where the testimony is false the judgment should be reversed. The writer very fully indorses that authority and that contention, and if it was shown that the testimony of Broaddus and the negro was false the writer would unquestionably agree to a reversal of the case; but-the trouble with appellant’s contention is two witnesses swear to the exhibition of the pistol by appellant, and appellant denies it. The court decided that the state’s testimony was true, and this court would not be justi-. fied in holding that the trial court was incorrect. He saw the witnesses and heard them-testify. In order to maintain the proposition asserted by appellant, the testimony for the state must be shown to be false, and the question of doubt between the parties was settled by the court adversely to him.

The judgment, therefore, will be affirmed.


author: DAVIDSON, P. J.

text:
    SNEAD v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Homicide (§ 295*) —Manslaughter — Evidence — Instructions.
    Where accused proved that decedent pulled out his knife and threatened to kill him, and advanced toward him and cursed him, and that accused then picked up a pistol and snapped it, thinking it would not shoot, but would merely frighten decedent, an instruction on manslaughter, that the drawing of a knife by decedent on accused, or advancing on him with a knife was adequate cause, was erroneous for omitting all the facts bearing on the conduct of decedent;, and where accused was convicted of murder in the second degree, and sentenced to 20 years in the penitentiary, the error necessitates a new trial, since a complete instruction might result in a conviction of manslaughter and an assessment of the minimum ' punishment, or the infliction of a- smaller punishment for murder in the second degree.
    [Ed. Nóte. — For other cases, see Homicide, Cent. Dig. §§ 60S-609; Dec. Dig. § 295.*]

      Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Eobert Snead was convicted of murder in the second degree, and be appeals.
    Reversed and remanded.
    W. A. Johnson, of Woodville, and A. S. Baskett, of Dallas, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder in the second degree; the jury assessing his penalty at 20 years’ confinement in the penitentiary.

The evidence introduced by the state will show murder in the second degree. That introduced by the defendant raised clearly the issue of manslaughter and self-defense. Appellant was the day manager of a pool hall and billiard room. The deceased went into this billiard room on the occasion of the trouble and paid five cents for the privilege of practicing on one of the tables. Under the rules of the house, by paying the five cents the party would be entitled to practice on the table 15 minutes. Deceased had exceeded the 15-minute limit by some time when appellant reminded him of it and started to take the balls from the table, when deceased shot a ball violently against his hand, which he claimed produced pain. Deceased then started towards the door, going down one side of the room and appellant in the same direction on the opposite side of the room. Appellant went to the cigar ease, and put up the chalk. When the deceased reached the door, or near the door, he turned and came to where appellant was standing behind the cigar ease, cursed him, pulled out his knife, and told appellant he was going to kill him, and started towards him. Appellant then got the pistol, walked out from behind the cigar case, and cocked and fired it. He thought it would not shoot, but got it to bluff the deceased; that he tried it before, and it would not work. He testifies that he was scared, and that he did not think the pistol would shoot; that he got the pistol to defend himself by bluffing deceased, and that it accidentally shot and killed him. There is other testimony besides appellant’s to the effect that deceased cursed him and told him to go to hell, and also that the pistol had not been in working condition since it had been in the house. Appellant introduced other witnesses who knew the pistol, and they testified they did not think it would shoot, and some of them expressed surprise when it did fire.

There are several causes for manslaughter. The court charged the jury, among other things, with reference to one phase of manslaughter, as follows: “The drawing of a knife by the deceased on the defendant, or advancing on the defendant with an open knife.” This charge is given as an adequate cause. This is not a statutory cause. This charge is criticized, because it culled some of the facts without stating them all; the contention being that, where the court culls the facts and states them 'as adequate cause, all of the facts bearing on or illustrating that particular phase of the case should be given. We have stated enough of the facts to show deceased not only drew his knife on defendant, but threatened to kill him with it, and cursed him. Under the authority of Wheeler v. State, 54 Tex. Cr. R. 51, 111 S. W.1022, and Gant v. State, 55 Tex. Cr. R. 291, 116 S. W. 801, this charge was error.

The conviction was for 20 years, and, had appellant been convicted of manslaughter and the minimum punishment assessed, this charge might not have been hurtful; but the punishment was very heavy, and it might have been very beneficial to defendant to state the law as it really is as applicable to the evidence. It might have induced the jury to find him guilty of a lower offense, or to give him smaller punishment of murder in second degree.

The judgment is reversed, and the cause is remanded.


text:
    STEPHENS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Criminal Daw (§§ 1092, 1099) — Appeal-Statement of Pacts — Bills of Exception —Time of Piling.
    A statement of facts and bills of exception, filed more than 20 days after the adjournment of the term of court cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2803, 2829,2834r-2861, 2919; Dec. Dig. §§ 1092, 1099.]
    Appeal from Throckmorton County Court; T. J. Wright, Judge.
    A. Stephens was convicted of crime, and he appeals.
    Affirmed.
    C. E. Dane, 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, P. J.

Appellant was convicted for unlawfully catching fish in prohibited waters in the inclosure of another with the owner’s consent, it being alleged that the inclosure contained less than 2,000 acres.

The record contains a statement of facts and bills of exception, but they were filed more than 20 days after the adjournment of court, and therefore under the statute cannot be considered. Court adjourned on October 18th. The evidence and bills of exception were filed on November 11th. . In the absence of the statement of facts and bills of exception there is nothing in the motion for new trial that requires revision. We think the complaint and information are not subject to criticism, and are properly drawn under article 1255 of the Revised Penal Code of 1911.

As the record is presented to us, the judgment will have to be affirmed.


text:
    STEPHENS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Criminal Law (§§ 1092, 1099) — Appeal-Statement of Pacts — Bills oe Exception —Time to Pile.
    A statement of facts and bills of exception filed more than 20 days after adjournment of the term of court cannot be considered on appeal.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2S66-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    Appeal from Throckmorton County Court; T. J. Wright, Judge.
    A. Stephens was convicted of crime, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted under article 1255 of the Revised Penal Code of 1911, for catching fish in another’s inclosure consisting of less than 2,000 acres, and without the consent of the owner.

The court adjourned on October 18th. The statement of facts and hills of exception were filed on November 11th, and therefore cannot be considered, having been filed more than 20 days after adjournment of the term. Without the statement of facts and bills of exception before us, there is nothing in the record requiring revision.

The judgment is affirmed.


text:
    BORLAND v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Criminal Law (§ 1097*) — Appeal — Questions Review able — Sufficiency of Evidence — Statement op Facts.
    In the absence of a statement of facts in the record, the question of the sufficiency of the testimony, raised in the motion for new trial, cannot be considered on appeal. .
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926. 2934 2938, 2939, 2941, 2942, 2947; Dee. Dig. 1 1097.*]
    Appeal from District Court, Potter County; James N. Browning, Judge.
    P. L. Borland was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    O. E. Lane, Asst Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted and convicted of violating the prohibition law, and his punishment assessed at one year’s confinement in the state penitentiary.

The only grounds in the motion complain of the insufficiency of the testimony. No statement of facts accompanies the record. Consequently we cannot pass on th.ose grounds of the motion.

The judgment is affirmed.


author: PRENDERGAST, J.

text:
    BORLAND v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    Appeal from- District Court, Potter County; James N. Browning, Judge.
    P. L. Borland was convicted of violating the prohibition liquor law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Prom a conviction for violating the prohibition liquor law, appellant has appealed.

There is no statement of facts, nor bill of exception. In the absence of these, the motion for new trial presents no question we can review.

The judgment is affirmed.


text:
    LOVE v. STATE.
    (Court of Criminal Appeals of Texas.
    June 25, 1913.)
    1. Criminal Law (§ 636*) — Conduct op Tri‘al — Presence op Accused — Misdemeanors.
    In a prosecution for a misdemeanor, where the defendant’s counsel stated, when the case was called for trial, that the defendant was too sick to appear and objected to proceeding with the trial in his absence, the court could not try the case in the defendant’s absence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. § 636.*]
    2. Criminal Law (§ 796*) — Instructions— Punishment.
    In a misdemeanor case, it is improper for the court to charge the jury that the county attorney has waived a jail sentence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1928-1934; Dec. Dig. § 796.*]
    Appeal from Orange County Court; O. R. Sholars, Judge.
    Earnest Love was convicted of unlawfully carrying a pistol, and he appeals.
    Reversed and remanded:
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted for unlawfully carrying a pistol, and fined $100.

The judgment of the court and appellant’s bill of exceptions show that when the case was called for trial the county attorney announced ready for the state, and that the appellant, being sick, failed to appear in person; .that the court thereupon called upon appellant’s counsel to announce and plead for him; that his counsel stated they would not appear for him in his absence" and would not plead for him, and protested and objected to the trial proceeding in the absence of the appellant; that thereupon the court had the plea of not guilty entered for the appellant, and proceeded with the trial wholly in the absence of the appellant.

Unquestionably the appellant had the right to be personally present when his case was called and tried. The law requires this. C. C. P. art. 646. The court had no power or authority to try him in his absence over his attorneys’ protest and objection for him. If he was sick, and absent on that account, his case should not have been forced to trial. If the court was satisfied that the appellant was feigning sickness, or was not in fact sick, so as to prevent his appearance, he .should have forfeited his bond, issued another writ for his arrest, and had him brought into court, and then proceeded with the trial. We cannot sanction the practice and action of the court in this instance.

We are not discussing whether or not, if the' appellant had waived his presence in a misdemeanor case, under such circumstances the court might proceed to trial. That question is not presented herein.

The court in his charge expressly told the jury that the county attorney waived the jail penalty in this case. While it might be entirely proper for the county attorney to urge a higher penalty than the minimum, or urge the jury to inflict a jail penalty as well as a fine, and while it might not be improper for the county attorney, on the other hand, to insist upon a fine only, and not upon a jail sentence, we think it not proper for the court to so tell the jury in his charge. This might not present reversible error in this or any other case, but it is better for the court to say nothing of the kind in his charge to the jury.

There is nothing else raised in the case necessary or proper for us to pass upon on this appeal.

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


text:
    BROWN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Criminal Law (§ 530) — Evidence—Crim-inating Statements by Accused.
    A defendant cannot be examined while on the witness stand as to statements of a criminat-ing nature made by him while under arrest, and testimony of third persons as to such statements is also inadmissible, where the confession was not reduced to writing after accused has been warned.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 530.]
    2. Ceiminal Law (§ 1169) — Appeal—Evidence.
    Where the ower court improperly allowed accused to be examined as to criminating statements made while under arrest, and further allowed independent testimony of confessions not reduced to writing, it is reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    3. Forgery (§ 34) — Offenses—Defenses.
    In a prosecution for passing a known forged instrument, where accused was charged with passing the instrument upon one person, proof that he passed it upon a third person is insufficient to warrant a conviction.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. § 34.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Sam E. Brown alias R. L. Jones was convicted of forgery, and he appeals.
    Reversed and remanded.
    Brooks & Brooks, of Anson, and T. S. Whiteley and C. P. Chastain, both of Hamlin, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was charged by indictment with forgery.

The second count charges him with passing a forged instrument to O. C. Brown. In a general way, it appears from the evidence that appellant had been working for W. L. and E. B. Harrison during the spring of 1912, and had been paid by them checks on different occasions; that during the year 1912 appellant was in the town of Hamlin, Jones county, and went into the store of D. J. Payne in which O. C. Brown was the clerk. Appellant told Brown that he wanted to purchase a suit case and collar. Brown showed appellant a suit ease and collar, and appellant told him he would take the articles, whereupon Brown took the suit ease and collar to the cashier’s stand, which was located in the rear of the building, and set it down in front of the cashier’s stand. It is further shown that at this time appellant presented the check in question to O. C. Brown in payment of the goods; that the check; was drawn in favor of R. L. Jones for the sum of $23.50, and indorsed on the back by R. L. Jones, and signed by Harrison Bros. Brown, who was clerk for Payne, testified he made out a ticket for the goods, which amounted to $4, and handed the ticket to the cashier of the Payne Mercantile Company. 1-Ie cashed the check, taking out $4, handing appellant the remaining $19.50. After this transaction appellant left the store, and was next seen at Sweetwater, where he was arrested by Johnson, the city marshal. During the trial appellant took the stand in his own behalf, admitted buying the goods from Brown, and giving him the cheek, and the other facts attending the purchase of the goods. He also testified two or three days before the cheek was cashed that he was at the home of W. L. and E. B. Harrison; that he occupied a room with one of the Harrison boys, and saw a piece of paper on the floor in the room, picked it up, examined it, and found that it was a check. This was the check he gave subsequently to Brown. Appellant also testified the check was 'given for $23.50 to R. L. Jones signed by Harrison Bros., and indorsed on the back by R. L. Jones. He denied forging the check, or putting anything in the body or on the back of it. It is also shown two checks in the record were photographed, which were admitted by the two Harrisons to be genuine, and apparently bearing the same signature as the alleged forged check. ■ The cashier of the First National Bank of Anson, after examining the two checks admitted to be genuine, and the alleged forged check, testified that in his opinion the same person signed all three checks. This is substantially the testimony, or a sufficient amount of it to dispose of the case.

Appellant testified in his own behalf. On cross-examination the district attorney was permitted to ask questions and elicit answers as follows: “Q. Where did you tell Mr. Johnson where you got the' check, as to how you came by it? A. I didn’t tell Mr. Johnson that I know pf how I came by it. Q. Well, did you tell him that you found it? A. No, sir; I did not. Q. Did you tell him where Harrison Bros, lived? A. No, I don’t remember that I did; no, sir. Q. Didn’t you tell Mr. Johnson there that you wanted to go to Harrison to see if you could fix this thing? A. I don’t remember it. Q. ■Didn’t you want to call up Harrison Bros, to .see what you could do about fixing this check then and there? A. I don’t remember what I did ask him now. Q. Well, will you say yes or no to it? A. I will say no. Q. Will you say no,, that you did not offer to, that you did not try to get Mr. Johnson to let you call up Harrison Bros, to straighten up this matter with them? A. I might have wanted to. I did want to pay it. Q. What did you want to do about it? A. I wanted to settle it off. Q. What did you, tell Mr. Milsap about where you got this check? A. I did •not tell him where I got the check. Q. Did you tell O. O. Brown that you found it? A. No, sir; I didn’t. Q. What did you tell O. 0. Brown about fixing or squaring the matter with Harrison Bros.?” Defendant objected to all these questions and answers, because it was an attempt upon the part of the state to get a confession before the jury that would not be a legal confession; and it is further recited as a fact that at the time these statements were made defendant was under arrest and in charge of an officer. These matters were not in writing, and this was urged as an objection. Defendant was not warned, and this was urged as an objection, and further that it was a pretense to lay a predicate to impeach defendant by illegal testimony and because said testimony was irrelevant, immaterial, and inadmissible for any purpose and highly prejudicial to the rights of defendant. These objections were all overruled and the testimony admitted, and the bill is signed without qualification.

Another bill recites that, after defendant had testified and denied making the statements to the deputy sheriff, the state was permitted to call him, and over objections the following matters occurred: “Q. Just tell what he. said about the check. A. He did make this explanation; he wanted to see Harrison Bros. He wanted to straighten it up and he wanted to know if I would carry him by to see Harrison Bros, by the ranch as I came on bringing him to jail. Q. Did you see Harrison Bros.? A. No, sir; I did not. Q. Did he say anything about finding the check? A. No, sir; he didn’t. He just talked continually. I could hardly tell all about paying the check, and he wanted to straighten it up and he wanted to see Harrison Bros., and he wanted to pay this difference, and he wanted to turn in the money, and go and get the suit case, and then go and see Harrison Bros. That he thought he could straighten it up with them, and he also said on the way down there that he was R. L. Jones; that is, from Hamlin down to the ranch. Mr. Bigby asked him the direct question, who R. L. Jones was, and he said that was himself. Q. When was it that he told you that his name was Sam E. Brown? A. I believe that was directly after we got on the train.” It is also recited that defendant was under arrest when all these matters occurred, and the statements were not in writing, nor sworn to by defendant, that he was not warned, that it was an attempt to impeach and discredit defendant by illegal testimony, and because irrelevant, immaterial, and prejudicial, etc.

Another bill recites that defendant testified in his own behalf, and denied making certain statements to Johnson, the city marshal. The state was permitted to call this witness, and the district attorney to ask him, over objections, the following questions: “Q. What did he say about it [when arrested at Sweetwater]? A. I arrested him and I told him what he was charged with; that he was charged with forgery at Hamlin, and he went on and made a statement to me that he was sick, and that was the only way he had to get to Mexico to his mother, or some of his folks, and he wanted me to give him a chance. He said, if he could get hold of Harrison Bros., that he had some folks there with Harrison Bros., and that he could get his folks to make it all right with them, and he could get home to his mother. Q. Did he say anything about finding the check? A. No, sir; he did not say anything about finding the check. I told him he was charged with forgery, and that he was identified as the man, and that I was going to hold him for' the Jones county officials. He said he was the man all right. Q. What did he say about 'being R. L. Jones? A. He did not tell me or make any mention óf R. L. Jones. He told me that his name was Sam Brown, and, in fact, I did not know that R. L. Jones’ name was on the check, or anything of the kind. I just told him he was wanted on forgery count, was all, you know.” All the objections heretofore mentioned in the other bills were' urged.

The witness Brown was also recalled after defendant had testified, and was permitted to testify to the same matters and under the same circumstances as mentioned in the previous bills. There is some difference^ between the testimony of Brown and the other witnesses. Perhaps it is well enough to mention what Brown testified. With reference to Brown the following matters occurred: “Q. What did the defendant tell you about the cheek on the way from Sweetwater to Hamlin? A. Well, we was talking about the check. I do not remember his exact words, but he said something about he believed he could straighten it up with Harrison Bros., and that he wanted to go home and see his mother. That was the reason why he. did it, and that he believed he could straighten it up with Harrison Bros, with Mr. Harrison, if he could talk with him, talk it over with him, and he asked Mr. Milsap if he would carry him up there to see Mr. Harrison, and Mr. Milsap told him yes.” The same objections occurred as to the previous bill's.

These bills make it appear that while appellant was on the witness stand on cross-examination these matters' were inquired into by the district attorney, which were crim-inative in their nature or expected to be, and after denying them these witnesses were put on to prove what he did say to them. This testimony was inadmissible from the defendant, and the testimony of the other witnesses was also inadmissible. Appellant was under arrest, and any statement that he made could not be used against him as original testimony, because the statute, requires that, after being warned and the usual precaution taken, his statement must be reduced to writing. This was not done, and these bills of exception so show it. Since the Morales Case in 36 Tex. Or. K, 234, 36 S. W. 435, 846, the rule has been in Texas that where a defendant is under arrest he cannot be examined while on the witness stand about statements of a criminative nature made by him while under 4arrest. That decision was rendered prior to the time the statute was enacted requiring his confession to be reduced to writing. Now no evidence can be used against a defendant while he is under arrest unless reduced to writing. So we have the double reason: First, that he was under arrest; and, second, his statement was not reduced to writing after being warned. It was not legitimate testimony and erroneous for the court to permit the district attorney to inquire into these statements made while he was under arrest, and it was erroneous to permit these witnesses to testify to statements defendant made to them by him while under arrest

That these matters were prejudicial and of a serious nature is not to be doubted under the facts of this case. Why rulings of this sort will be had and cases sent before this court with rulings of this sort fatal to them in the face of all the decisions this court does not understand. However, if trial courts will permit and continue and persist in running over the law of the land, both statutory and opinions, this court will be compelled to reverse the judgments.

The court charged with reference to the second count that if the check was passed upon Brown, etc., that the defendant would be guilty. Appellant objected to this charge, and asked the following: “You are charged that in order to warrant a conviction of the defendant under the second count, etc., you must believe from the evidence beyond a reasonable doubt, first, that the check alleged to have been passed by defendant was forged ; second, that defendant knowingly passed as true said cheek on 0< C. Brown, the prosecuting witness herein, and in this connection you are charged that it is not sufficient to warrant a conviction of defendant that he knowingly passed as true said alleged forged cheek on a Mr. Dowd, cashier for the Payne Mercantile Company of Hamlin, Tex.” Under Huntly v. State, 34 S. W. 923, and Riley v. State, 44 S. W. 498, we believe that under the facts of this case the requested charge should have been given. Those eases seem to be directly in point. Upon another trial, if the case should be developed as is manifested by this record, we suggest that the trial court give the charge requested, or one in substance the same. The charge should be applied to the facts. If Brown received the cheek, this would be sufficient. But, if Dowd received it from appellant, then the charge should conform to such facts.

The judgment is reversed, and the cause is remanded.


text:
    Ex parte HOWELL.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Municipal Corporations (§ 625)—Police Power—Scaven&ers.
    A municipal ordinance, prohibiting any person save the city scavenger from removing night soil and other refuse, is not unreasonable or oppressive, being a proper exercise of a municipality’s police power.
    [Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1378, 1379; Dec. Dig. § 625.]
    2. Municipal Corporations (§ 607)—Char-ter Powers op Municipality. *
    Where the charter of a municipality contained an act of the Legislature, provided that the government should be lodged in the city council and the officers of the city, that the city council shall elect a chief engineer, a poundkeeper, chief of fire department, street commissioner, city physician, and one or more city scavengers, that the city shall have power to abate all nuisances affecting the public health, and to do all acts which might be necessary for the suppression of disease, and, that the city council should have power to pass ordinances and prescribe the duties of all officers and persons appointed by them, the city council had power to appoint a city scavenger.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1341: Dec. Dig. 607.]
    Appeal from Johnson County Court; J. B. Haynes, Judge.
    Application by W. T. Howell for a writ of habeas corpus to obtain his release from imprisonment for the violation of a municipal ordinance. From a judgment remanding him to custody, relator appeals.
    Affirmed.
    R. S. Phillips and J. M. Moore, both of Cleburne, for appellant. W. B. Harrell, City Atty., of Cleburne, and C. E. Dane, Asst Atty. Gen., for the State.

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

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

   HARPER, J.

Relator was arrested, charged with a violation of the ordinance of the city of Cleburne. When tried, he was convicted and his punishment assessed at a fine of $10. He sued out a writ of habeas corpus before the county judge, contending that the ordinance under which he was convicted was invalid. Upon a hearing he was remanded to the custody of the officers by the county judge, from which action he prosecutes this appeal.

The city attorney has filed an able brief, which we adopt as the opinion of the court: “On the 28th day of September, 19-10, the city of Cleburne, a municipal corporation, acting under a special charter granted by the Legislature of the state of Texas, passed an ordinance known as the ‘Scavenger Ordinance,’ which ordinance creates the office of city scavenger for the city, and prescribes his duties, and the charge that shall be made for the same, which ordinance provides that the city scavenger shall be appointed by the city council, and shall hold his office for the period of one year, and which ordinance further provides that the scavenger work within the city of Cleburne shall be done exclusively by the city scavenger of said city, and that it shall be unlawful for any person or corporation to do said work, and that any person or corporation violating the provisions of the said ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not less than $1 nor more than $10, which ordinance is fully set out in the statement of facts in this case. The city council of the city of Cleburne advertised for bids for this office of city scavenger for the year 1913 and the year 1914, which was to begin at the fiscal year of said city in April, 1913, and extend until April, 1914, and until the successors should be appointed and qualified. The bids of O. C. Warenskjold (Vanshaw), and W. T. Howell, the relator, among others, were submitted to the city council on the 21st day of March, 1913, and the bid of O. C. Warenskjold, being the lowest, was accepted by the city council on the 21st day of March, 1913, to take effect on the .1st day of April, 1913, and to continue one year. W. T.-Howell, the relator, made a bid for this same office, which was rejected. O. C. Warenskjold was then appointed city scavenger' of said city, and qualified by making his contract and filing a bond, which was on the 4th day of April, 1913, approved by C. W. Breech, mayor. O. C. Warenskjold was duly appointed city scavenger for said city — had accepted said place, and qualified, and was acting as said officer of the city of Cleburne from and after the 1st day of April, 1913. W. T. Howell was convicted in the corporation court of the city of Cleburne for violating the city scavenger ordinance of said city, and being charged with the offense and convicted of cleaning privies and closets other than his own after April 1, 1913. The appellant, or relator, W. T. Howell, filed his motion for a new trial, which was overruled, and made application to the county court of Johnson county for a writ of habeas corpus, which application was by the county court of Johnson county, Tex., on the 24th day of April, 1913, heard and refused, and the relator was remanded to the custody of the city marshal. The relator excepted to the action and judgment of the court, and gave notice of appeal to this court.”

In the brief and argument of the relator he sets up two grounds why the writ of habeas corpus should have been granted, and why he should be discharged from the custody of the city marshal of the city of Cle-burne ; the first being because the ordinance is unreasonable and oppressive, and the second being that the ordinance is void because of no provision in the charter of the city of Cleburne which would -authorize or justify such a drastic ordinance. In reply to these we will consider them in the order in which they have been presented to this court:

First, that the ordinance itself is unreasonable and oppressive in that it prohibits any other person save the city scavenger from cleaning and removing the soil from the privies. The city of Cleburne, in answer to this proposition of relator, is of the opinion expressed by Judge Brooks in 53 Tex. Cr. R. 245, 109 S. W. 194, in the case of Lee Anderson v. State, from Tarrant county, which was a case somewhat similar to this one, and Judge Brooks, in refusing the application for a writ of habeas corpus and remanding the relator, says: “We hold that-the above ordinance (referring to the ordinance of the city of Ft. Worth) is reasonable, and that relator has no ground for complaint. The authorities are too numerous on this question to be cited.”

We réfer the court on the question of the reasonableness of this ordinance to the case of Iler v. Ross, reported in 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 895, and 97 Am. St. Rep. 676. This case is a very full discussion of an ordinance similar to this, upholding the same, and holding that it is a reasonable exercise of the police power. There is a very lengthy discussion of this ordinance, or one similar to this, in 1 Ann. Cas. 442; also in the case of the State v. Wm. E. Robb, 100 Me. 180, 60 Atl. 874, 4 Ann. Cas. 275; and then the case of Smiley v. MacDonald, 42 Neb. 5, 60 N. W. 855, 27 L. R. A. 540, 47 Am. St. Rep. 684; People v. Gordon, 81 Mich. 306, 45 N. W. 658, 21 Am. St. Rep. 525; Calif. Red. Co. v. San Francisco Red. Co., 199 U. S. 306, 26 Sup. Ct. 100, 50 L. Ed. 204, which affirms the case in 126 Fed. 29, 61 C. C. A. 91; the case of State v. Orr, 68 Conn. 101, 35 Atl. 770, 34 L. R. A. 279; Crand Rapids v. De Vries, 123 Mich. 570, 82 N. W. 269; Ex parte Vandine, 6 Pick. (Mass.) 187, 17 Am. Dec. 351; State v. Holcomb, 68 Iowa, 107, 26 N. W. 33, 56 Am. Rep. 853; Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394.

The relator- in his argument says that it is conceded that there is a sharp conflict in the authorities as to the power of municipal corporations in the exercise of police powers to pass ordinances such as the one assailed, but we think the great weight of authority is against his contention, and especially the decisions of our own courts.

And the second ground is the one on which the relator assails the ordinance, because there is no provision in the charter of the city of Cleburne which would authorize or justify such a drastic ordinance, but on the contrary, the charter of said city expressly provides ways, etc., by which the same end will be arrived at.

Under this ground on which the relator assails the ordinance, he cites several provisions of the city charter, and the case of Ex parte Savage, 63 Tex. Cr. R. 285, 141 S. W. 244, which was a bill-posting case; and, there being no charter provision in the city charter of the city of Paris for the office of bill posting, the court held in that case that the ordinance creating the office of bill poster for the city of Paris, and prescribing his duties, was beyond the powers of the city council of the city of Paris. I will refer this court to the following provisions of the city charter of the city of Cle-burne, which clearly give the city council of this city power and authority to create the office of city scavenger, and prescribe his duties: The first provision (section 4 of the charter) provides:

“That the municipal government and management of the affairs of the city of Cleburne shall be, and the same are hereby lodged in the city council, the officers of said city, the board of school trustees, and corporation court, with functions and powers set out herein.”

Section 26. Under the title of officers: “The city council shall elect to serve during the pleasure of the city council for a term not to exceed one year, the following officers and employSs, to wit: A city engineer, a poundkeeper, a chief of fire department, a street commissioner, a city physician, who shall be the health officer and sanitary inspector, one or more city scavengers, all paid firemen.”

Section 112. Among the miscellaneous powers of the city of Cleburne: “To abate all nuisances which may injure, or affect the public health or comfort in any manner they may deem expedient.”

Section 113: “To do all acts and make all regulations which may be necessary or expedient for the promotion of health, or the suppression of disease.”

Section 129: “The city council shall have the power to pass, publish, amend or repeal all ordinances, rules, and police regulations not contrary to the Constitution of this state for the good government, peace and order of the city, and the trade and commerce thereof, that may be necessary or proper to carry into effect the powers vested by this title in the corporation, the city government, or in any department or officer thereof; to enforce the observance of all rules, ordinances, and police regulations, and punish violators thereof by fines,” etc.

Section 261: “The city council shall have power to prescribe the duties of all officers and persons appointed by them, or elect to any office or place whatever,” etc.

These provisions will be found in the acts of the Legislature of 1910, granting a charter to the city of Cleburne.

We are of the opinion that the county judge did not err in remanding relator, and that the '•ordinance in question was a valid exercise of the police power conferred on the city council by the Legislature of this state; that it is not an unreasonable regulation, but a propér one for the preservation of the health of the city.

The judgment is affirmed.


text:
    RODRIQUEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Witnesses (§ 240) — Examination—Leading Questions.
    In a prosecution for homicide, questions as to what deceased and accused were talking about at the time of the killing, and as to whether deceased attempted to strike his wife and was prevented by accused, are not leading.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240. ]
    2. Criminal Law (§ 1091) — Bill of Exceptions — Contents—Sufficiency.
    A bill of exceptions to the admission of testimony and to leading questions must contain sufficient matter to show that the testimony was improper and that the alleged leading questions did not fall within any of the exceptions.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    3. Criminal Daw (§ 1171) — Appeal—Haemless Error.
    Where the evidence showed accused to be guilty of murder but he was only convicted, of manslaughter, the lowest penalty being imposed, statements by the prosecutor that he had done his duty, but that, if the juries did not do theirs, officers of the law were powerless to prevent crime, will be considered harmless where the court instructed the jury to disregard them and the prosecutor apologized saying that he desired to withdraw his remark.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    4. Homicide (§ 300) — Trial — Instructions.
    In a prosecution for homicide, where the only evidence of self-defense was that deceased chased accused with a knife and that when accused fell down deceased jumped upon him, whereupon in the struggle accused killed deceased, a charge on apparent danger is properly refused; the evidence showing only actual danger.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Caldwell County; Erank S. Roberts, Judge.
    Antonio Rodriquez was convicted of manslaughter, and he appeals.
    Affirmed.
    O. Ellis, Jr., and T. B. Monroe, both of Lockhart, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, J.

Upon an indictment for the murder of his brother-in-law, Se-novia Ramarez, upon a trial appellant was convicted of manslaughter, and the lowest penalty (two years in the penitentiary) assessed.

Appellant has several bills of exception to the introduction of the testimony of the state’s witness, Jesus Torres. Without any statement of the case in the .bills, he objected to these questions by the district attorney and answers: “Now, I want to know what Senovia’s wife said, and to whom she was talking when she said that?” 1-Ie answered: “She was talking to Senovia, and told him it was none of his business.” The attorney then asked: “What was Se-novia and Antonio talking about when Se-novia’s wife said to Senovia that it was none of his business?” He answered: “They were talking about a woman. She told the man that it was none of his business and not to butt in.” To further inquiries this witness stated they were talking about a woman, but he did not know whether it was Senovia’s woman or Antonio’s woman. Appellant’s objection to this was that the evidence is immaterial and irrelevant and not pertinent to any issue in the case and was hearsay and did not occur at such a time and place as to make it a part of the res gestae.

By another bill, without any explanation of the status of the case, it is shown that, after proving by said witness that Senovia hit his wife with his fist in Antonio’s presence, the district attorney asked the witness: “Did Senovia strike his wife, did he endeavor to strike her, and was prevented by Antonio?” He answered: “Senovia didn’t hit the woman; Antonio spoke up and said not to hit her.” His Objections to this was that the question was leading and suggested the answer desired, which answer was calculated to injure him. This is in substance the whole of the bill.

By 'another bill it is shown that after this same witness had testified that appellant and the deceased had been fighting with their mouths in the yard for about 15 minutes, and that deceased struck the appellant with a stick of wood and ran, with appellant running after him, the district attorney asked him: “What did Antonio do before he started to run, or after he started to run?” He answered: “When he hit Antonio, Senovia ran and Antonio pulled out a dirk knife and ran after him.” This was objected to because leading and suggested the answer. This is in substance the whole of this bill.

Neither of these bills show any error. We think none of the questions were leading, but, if so, the bill shows no error on that account. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. If we could look to the record and statement of facts to supply the clear deficiency of the bills, we would find that all this evidence objected to was material and relevant and was not hearsay and was a part of the res gestse of the fight because thereof and the killing.

By another bill appellant complains of this language used by the district attorney in making his closing argument to the jury: “I have done my duty in this case, but if the juries of Caldwell county do not do their duty the officers of the law are powerless to enforce the law and prevent crime. Do you know, gentlemen, that there are more homicides committed in Caldwell county than in any other county in this judicial district?” The circumstances under which this language was used by the district attorney and the surroundings of the case are in no way disclosed by this bill. It does disclose that when he objected to these remarks the court sustained his objections and that the court instructed the district attorney not to pursue such line of argument further. Whereupon the district attorney desisted. The court, in allowing the bill, qualified it by stating: “At the time when the district attorney made said remarks, the court instructed the jury that they should not consider the same, whereupon the district attorney apologized to court and jury for getting out of the record and stated that he desired to withdraw his remarks.” Even if these brief remarks by the district attorney were improper, they were not only withdrawn by him but he apologized to the court and jury for using them, and the court instructed the jury not to consider them. The appellant got the lowest penalty for manslaughter. He did not request, in writing, any charge to the jury. No injury whatever is shown to him by this. Clayton v. State, 149 S. W. 119, and cases there cited.

Appellant has some complaints to the charge of the court on manslaughter in effect that, in defining manslaughter and submitting it to the jury for a finding, he excepted his defense of self-defense to actual danger and not apparent danger. And to the court’s charge in submitting his self-defense that it was limited to actual and not apparent danger. In allowing appellant’s bill of exception on this subject, the court qualified and explained them, in substance, by stating the theory of the defense was self-defense, based upon actual danger. The defendant testified deceased chased him some distance with a knife and when he (defendant) fell down deceased jumped on top of him; the defendant eaught'the raised hand of deceased with one hand and that he then stabbed deceased in the back with his knife in the other hand, while he was lying on the ground with deceased on top of him. The whole evidence does not in any way raise apparent danger, but immediate, actual, and pressing danger, and only that, from appellant’s own testimony, which was all the evidence that raised it. We have carefully considered all of appellant’s complaints to the charge of the court, and none of them are well taken.

We have carefully read the record and evidence in this case. The evidence would have justified murder in either the first or the second degree. We cannot understand from this record how appellant escaped with a verdict for so light an offense and the lowest penalty.

There being no error, the judgment will be affirmed.


text:
    QUALLS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.)
    1. Indictment and Information (§ 79) — Sufficiency — Mistake -in Spelling.
    An indictment for abandonment after seduction and marriage, in which the word “woman” is spelled “worn,” is not fatally defective where it is alleged in other places that she was a female.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 209-214; Dec. Dig. § 79.]
    2. Indictment and Infoemation (§ 109) — Statutory Offenses — Abandonment of Wife.
    Where a statute prescribes different ways by which the offense of abandonment after seduction and marriage can be committed, an indictment should not be quashed on the ground that it charges the offense to have been committed in only one of those ways.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 286-288; Dec. Dig. § 109.]
    3. Indictment and Infoemation (§ 175) — Issues, Proof, and "Variance — Venue.
    Where an indictment alleged only an abandonment of the wife by the husband and not the commission of the offense in other ways denounced by the statute, the state must prove that the abandonment occurred in the county of the prosecution, even though other "acts which would constitute the offense, had they been alleged, were committed within the county, and the statute gave the jurisdiction of an offense committed partly within and partly without the state to the court of any county where the defendant might be found.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 544-547; Dec. Dig. § 175.] _
    4. Criminal Law (§ 772) — Instructions— Venue.
    In a prosecution for abandonment after seduction and marriage, where the defendant contended that he did not abandon his wife but that she abandoned him in another state, and she testified that she was informed while in another state that her husband had abandoned her and that she then stated she was coming back to send Mm to the penitentiary, the court should give a charge, on request by the defendant, as to the place of the abandonment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.]
    5. Criminal Law (§ 361) — Evidence — Explanation.
    In a prosecution for abandonment after seduction and marriage, where defendant’s uncle had testified that the wife told him she wa.s going back to send the defendant to the penitentiary, it was proper for the state to show that the statement was occasioned by the uncle’s telling her that her husband was not coming back.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 802, 803; Dec. Dig. § 361.]
    6. Criminal Law (§ 417) — Evidence—Declarations.
    It was not proper to show that the uncle had told the wife that she was too good for the defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    7. Witnesses (§ 318) — Corroboration.
    Where the defendant claimed that he did not intend not to live with his wife until after his father informed him that she had stated she was going to send him to the penitentiary, it was proper for the father to testify that he so informed his son.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1084-1086; Dec. Dig. § 318.]
    8. Witnesses (§ 61) — Competency — Wife of Accused — Prosecution for AbandqnMENT.
    A wife can testify against her husband in a prosecution against him for abandonment after seduction and marriage, since the statute expressly authorizes such testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 163, 174-176; Dec. Dig. § 61.]
    9. Criminal Law (§ 402)— Secondary Evidence — Proof as to Possession of Primary Evidence.
    Where a wife testifies, in a prosecution for abandonment, that a letter was stolen from her, it should be shown that the letter is either in her husband’s possession or beyond the jurisdiction of the court, and then she may testify as to its contents.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §,§ 887, 888; Dec. Dig. § 402.]
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Tom Qualls was convicted of abandonment after seduction and marriage, and he appeals.
    Reversed and remanded.
    S. P. Sadler, of Gatesville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

Appellant was prosecuted and convicted of ‘abandonment after seduction and marriage. Appellant filed a motion to quash the indictment on three grounds; the first being that the law is unconstitutional. We discussed this question so thoroughly in the case of Thacker v. State, 62 Tex. Cr. R. 294, 136 S. W. 1095, we do not deem it necessary to discuss the question again and hold that the court did not err in overruling the motion to quash on that ground.

The second ground is that in the indictment, where it was intended to use the word “woman,” only the letters “worn” appear. Appellant cites us to the case of Jones v. State, 25 Tex. App. 621, 8 S. W. 801, 8 Am. St. Rep. 449, in which the indictment was quashed because the word “appropriate” was misspelled, but did not refer us to the later case of Francis v. State, 44 Tex. Cr. R. 246, 70 S. W. 751, where the same word was again misspelled, and the court held this did not vitiate the indictment. He also cites us to the case of Wells v. State, 50 Tex. Cr. R, 499, 98 S. W. 851, in which the word “fraudulently” was misspelled by placing the letter “a” before “r” in “fraud,” but he failed to cite us to the case of State v. Earp, 41 Tex. 487, where the letter “u” was entirely omitted in spelling “fraud,” and yet the indictment held good. We could take up the case cited by appellant and cite cases almost similar where similar words misspelled have been held not to vitiate the indictment, if by reading the entire instrument its meaning was made clear, plain, and unmistakable, and the misspelled word in no sense rendered the meaning obscure nor the meaning changed. In the recent case of Bailey v. State, 63 Tex. Cr. R. 584, 141 S. W. 224, this question was discussed at length and authorities cited announcing the true and correct rule under our Code of Criminal Procedure. In the indictment in this ease, by a half dozen different allegations, it is alleged that she was a female, and the misspelling of the word “woman” in one place would not render the indictment fatally defective.

The third and last ground in the motion contends that, in addition to alleging that defendant unlawfully abandoned his wife, it should also have been charged that “he refused to live with her; that he was so cruel to her as to compel her to leave him; that he was guilty of such outrages and cruelties towards her as to make their living together insupportable, thereby causing her or forcing her to leave him and live apart from each other.” The statute by using these different methods was but stating the different ways the offense could be committed. Of course the pleader by using the conjunction “and” could have charged the offense to have been committed in all the ways enounced by the statute, or he could have selected either of the methods named, and in this case did select the first method, alleging that appellant had abandoned his wife, and the court did not err in overruling the motion to quash the indictment.

However, in selecting that method and alleging that the offense was committed by appellant abandoning her, he would not be permitted to secure a conviction if the offense was committed in either of the other ways enounced by the statute but not included in the indictment. In this case if the pleader in drawing the indictment had alleged that he committed the offense by “refusing to live with the woman he had seduced and married,” there could be no question that the district court of Coryell county had jurisdiction of the offense; but, as the indictment only alleged the offense to have been committed by app'ellant abandoning her, then the place where he did in fact abandon her would have jurisdiction of the offense. The pleader having elected to charge only this mode and method of committing the offense, then it must be proven as alleged, and the abandonment must be shown to have taken place in Coryell county. The state in its brief virtually admits that the evidence raises the issue as to whether appellant committed the act of abandonment in Oklahoma or in Coryell county and seeks to sustain the indictment under those provisions of the Code which give jurisdiction of an offense when .committed partly in this state and partly without the state in any county where the offender may be found, and this contention would be sound had the state in its indictment alleged that the offense was committed by appellant refusing to live with his wife, or that he. was guilty of such cruelties and outrages towards her as to make their living together insupportable, etc. But it did not elect to charge the offense to have been committed in either of these ways and rested its case solely on the allegation that he had abandoned her.

Appellant’s contention is that he never at any time abandoned his wife but that she abandoned him; that he did not make up his mind to not live with her until his father told him she had said she was coming to Coryell county for the purpose of sending him to the penitentiary; and that he then decided to not live with her longer. The state’s case is that Mrs. Qualls was informed in Oklahoma that her husband had abandoned her, and that was the reason and occasion for her making the remark that she was coming back to Coryell county and send him to the penitentiary, and supports this theory by other testimony in addition to that' of the wife. Under such circumstances, the place of abandonment was a serious issue in the case and at the request of appellant should have been submitted to the jury under the allegations contained in this indictment. The court’s refusal to give the special charge is emphasized in the charge as given by instructing the jury to convict appellant if he did refuse to live with her; there being no such allegation in the indictment in this case. It is always error to authorize a conviction for an offense in a way and manner not charged in the indictment. It may be and is true in this instance that, if the indictment had alleged that the offense was committed in that method and manner, a conviction would be sustained; but, the indictment not containing such allegations, this part of the charge of the court should not have been given, and the issue as to whether or not the abandonment took place in Coryell county should have been submitted to the jury.

Appellant has many bills of exception in the transcript, but we do not deem it necessary to discuss all of them in view of the reversal of the case but only such as present error.

Appellant took the depositions of his uncle, B. L. Qualls, who resides in Oklahoma, and this witness testified that appellant had always treated his wife well, and that when appellant’s wife left Oklahoma she said “she was coming to Texas and send appellant to the penitentiary.” Appellant proving that fact, then it was permissible for the state to prove the occasion for the reason why the remark was made, and that was that he (the witness, B. L. Qualls)-had told Mrs. Tom Qualls (appellant’s wife) that appellant was not coming back to Oklahoma; that he would give her $250 if she would leave appellant and let him get a divorce, and if she •did not do so appellant would leave her any way at the end of two years; but it was not permissible to interrogate this witness .as to whether he (witness) had told her (Mrs. Tom Qualls) that she was too good for Tom (appellant). This may have been the opinion of the witness B. L. Qualls, but it was not admissible as against appellant, and, when the witness denied making the statement “that she was too good for Tom,” it was not permissible to prove by the witness Johnson that he heard B. L. Qualls did say so.

When appellant had testified that he was informed by his father that his wife had quit him and had said she was coming back to Coryell county to send him to the penitentiary, it was error to refuse to permit the father to testify that he had so told his son. Each was contending that the other had done the quitting, and, while the state’s testimony would authorize the jury to find that appellant was wholly in the wrong, yet such legitimate testimony as he desired to offer in support of his theory of the case should have been admitted.

The abandonment statute specifically authorizes the wife who has been abandoned to testify, and the court did not err in permitting her to do so.

As to the contents of the letter which Mrs. Qualls testifies was stolen from her, if it is true that this letter is either in appellant’s possession or beyond the jurisdiction of the court, this fact should be shown, and, if it is shown on another trial, then there will be no error in permitting her to testify as to its contents.

As the case will be reversed and remanded, we would suggest that the district attorney secure another indictment and by use of the conjunction “and” charge the offense to háve been committed in all the ways denounced by the statute, and then there could be no question about the jurisdiction of the district court of Coryell county. Of course, in submitting the offense to the jury, the court should submit the case only as to the modes and methods of committing the offense the evidence will sustain.

While there are a number of other grounds assigned, we think the ruling on the above questions will sufficiently indicate to the court what testimony should be excluded that was admitted on this trial.

The judgment is reversed, and the cause is remanded.