author: HARPER, J. DAVIDSON, J.

text:
    STAPLES v. STATE.
    (No. 3418.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.
    Rehearing Denied March 31, 1915.
    Dissenting Opinion April 28, 1915.)
    1. Criminal Law @=>168 — Former Jeopardy —What Constitutes.
    A conviction of fornication, rendered in the absence of the county judge, furnishes no basis for a plea of former jeopardy against a prosecution for seduction, arising out of the same acts; it not appearing that the court was in session, or that any one authorized received accused’s plea of guilty.
    [Ed. Note.- — Eor other cases, see Criminal Law, Cent. Dig. §§ 290-303; Dee. Dig. @= 108.]
    2.Criminal Law @=200 — Prosecution — Former Jeopardy.
    The offense of “seduction” under promise of marriage being based on the first act whereby a virgin is led astray, a conviction of fornication for subscauent acts of intercourse with the prosecutrix is no bar to a prosecution for seduction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. @= 200.
    For other definitions, see Words and Phrases, First and Second Series, Seduction.]
    3.Criminal Law @=1092 — Exceptions, Bill of — Necessity.
    A purported bill of exceptions, bearing neither the signature of the trial judge nor any verification, will not preserve for review alleged errors in the charge of the court.
    [Ed. Note. — For- other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2801, 2919; Dec. Dig. @=1092.]
    4. Criminal Law @=1090 — Appeal—Reservation op Errors.
    Where there was no bill of exceptions showing the reservation at trial of exceptions to the charge, an exception to the overruling of a motion for new trial, which set up errors in the charge, will not preserve the matter for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2053, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. @=1090'.]
    5. Criminal Law @=829 — Trial—Instructions.
    The refusal of special charges is not error, where they are covered by those given.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. @=829.]
    Davidson, J., dissenting.
    Appeal from District Court, Smith County; Barney Briggs, Judge.
    Bernice Staples was convicted of seduction, and he appeals.
    Affirmed.
    Simpson, Lassoter & Gentry and J. S. Mcllwaine, all of Tyler, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

At the September term, 1914, the grand jury of Smith county returned an indictment against appellant, alleging that:

“On or about the 15th day of February, A. D. 1913, in Smith county, Tex., appellant did then and there unlawfully seduce Tempie Roberson, an unmarried woman under the age of 25 years, and did then and there obtain carnal knowledge of the said Tempie Roberson by means and in virtue .of a promise of marriage to her, previously made by him.”

When the case was called for trial appellant, in addition to his plea of not guilty, filed a plea of former conviction. It appears that, at the term of court preceding the one at which appellant was indicted, the prosecuting witness, Tempie Roberson, and her mother and father, Victoria and, W. T. Roberson, attended court to appear before the grand jury, lint they were not permitted to go before the grand jury. Only Mrs. Roberson was called in, and she was immediately excused without being permitted to give any testimony. After the girl and her mother and father had remained all day, waiting to be called before the grand jury, Mr. Roberson says the foreman told them, “You are excused for all time”; that none of them were permitted to go before the grand jury and give any testimony. Horace V. Davis, assistant county attorney of Smith county, testified:

“I was a little bit vexed and did not like it very much because it seemed the grand jury would not have the witnesses before them; that mas a sort of logrolUng grand jury.”

After that grand jury adjourned Mr. Davis took the affidavit of E. A. Tarbutton, in which it was charged that:

“On or about the 1st day of March, 1913, in the county of Smith and state of Texas, Bernice Staples, an unmarried man, did unlawfully have habitual carnal intercourse with Tempie Roberson, an unmarried woman, without their living together, from said date above written, since and up to on or about the 1st day of July, 1913.”

On this complaint Mr. Davis filed an information on the 18th day of March, 1914. There is nothing in the record to show that appellant was ever arrested on this complaint and information, hut Mr. Davis testified that appellant’s counsel requested him not to send the officers after appellant, but to let him know when the complaint was filed, and he would have appellant come down, and he thought appellant would settle it. Three days later, the record discloses, a plea of guilty was entered, and a fine of $50 assessed against appellant, he later sending a check to his attorney who paid the fine and costs. It is on this conviction for fornication appellant relies to sustain his plea of former conviction, and a bar to a prosecution for seduction.

Mr. Davis testified he was not present when the plea of guilty was entered or paid. The county judge, J. F. Odom, who, after testifying that he was county judge of Smith county at the time, says:

“I was not in town at the time this plea of the defendant of guilty to the charge of fornication was entered. I made no promise whatever in connection with that plea of guilty to fornication. Nothing was said to me about any immunity in connection with it from further investigation of it; X never heard anything about that before. I never heard of that before.”

The record is silent as to who accepted his plea of guilty and assessed this fine against appellant, but it is made clear by the record that no one authorized by law to accept a plea of guilty to this alíense and assess the punishment did do so. The county judge, the only officer known to our law, who was authorized to accept a plea of guilty and assess the punishment, swears most positively he did not do so. The defendant was not arrested, did not appear in court, and this entry and judgment is entered by some one (the record does not disclose who) who was not authorized in law to assess punishment in this character of case, and under such circumstances we do not think a plea of former jeopardy is sustained. In Ex parte Thompson, 57 Tex. Cr. R. 438, 123 S. W. 612, it was held that a conviction at a term of court not authorized by law is invalid, and must be treated as a nullity; that the judgment is void. It follows that, as the plea of guilty was entered at a time when the court was not in session, at a time when the judge •of the court was absent, and the punishment fixed by a person (not disclosed) unauthorized by law to assess the punishment, the judgment entered is void and could not be a basis for the plea of former conviction, and the court did not err in so. holding. It has always been held that a plea of guilty could not be received or entered when the court was not in session, and the Legislature, that pleas of guilty might be accepted at other times than a regular term of the court, by .act of the Twenty-Second Legislature, approved April 21, 1801, authorized county •courts to hold special terms to receive pleas -of guilty. But in this instance the court was not in session, either in regular or special ■term; the judge was not even in the court-Ihouse, much less in tne courtroom, and he •did not accept the plea of guilty nor assess ■the punishment. Ex parte Jones, 46 Tex. Cr. R,. 433, 80 S. W. 995.

But in, case the court had been in ses-sion either in regular or special term, the county judge present, and the plea of guilty regularly entered by his attorney, would the conviction for fornication bar a prosecution for seduction under the facts in this case? The indictment alleges that the offense of se■duetion was committed on or about the 15th day of February, 1913. Miss Tempie Roberson testified that the first act of intercourse took place on or about the 15th day of February, somewhere along in February. She testified that after this first act of intercourse, the acts of intercourse continued along all during the year up until about the last of July; that he had intercourse with her every two or three days (on every suitable occasion) until defendant went to his mother’s, which occurred about the 1st of August. Seduction is constituted by one single act of intercourse under a promise of marriage, and it must be based upon the first act of intercourse. No matter how many acts may be testified to, if the injured female was not a virgin when the first act occurred with the person charged with the offense, under our decisions no conviction could he had, nor could the prosecution be based upon any other than the first act. If when the first act occurred the prosecution should not be begun until three years thereafter, the offense of seduction would be barred, even though he had continued to have intercourse with the girl during all the time, even up to the day of the filing of the indictment. Simons v. State, 56 Tex. Cr. R. 339, 120 S. W. 208. The offense of seduction was a completed offense when the first act of intercourse took place if the female was induced to submit her person to appellant under a promise of marriage, brought about by protestations of love and affection and his conduct.

The information charging fornication alleges the offense to have been committed by appellant by having habitual carnal intercourse with Tempie Roberson. One act of intercourse would not authorize a conviction under such an information — the state was required to show that it was a habit of appellant to have intercourse with the female whenever suitable opportunity was afforded. As said in Hilton v. State, 41 Tex. Cr. R. 193, 53 S. W. 113, an occasional act is not sufficient to show “habitual” intercourse, much less one act. Under the testimony of Miss Roberson there could be no doubt of appellant committing the offense of seduction, and, under the testimony of both Miss Roberson and appellant, that he thereafter committed the offense of fornication. There is in this record no dispute about the question of habitual carnal intercourse, for both appellant and Miss Roberson so testify. The only dispute is as to whether or not the first act was obtained under and by virtue of an engagement to marry — Miss Roberson affirms it was so obtained — this appellant denies. And as the evidence offered in behalf of the state would show that appellant first committed the offense of seduction by having an act of intercourse induced 'and brought about under a promise to marry the girl, and the testimony of both the state and defendant would show that thereafter the offense of fornication was committed by appellant by having habitual carnal knowledge of the girl, we are at a loss to understand how it can be seriously contended that he could not be prosecuted and convicted of both offenses. It is not a carving of an offense out of one transaction. According to both the witnesses for the state and for the defendant, even according to the defendant himself, there must have been some 25 or 30 or more transactions between them. It was a matter of almost daily occurrence while the appellant was boarding at the home of the father of the prosecuting witness. We entirely agree with the contention that, if there is but one transaction, the state can cut or carve but once, and having been prosecuted and convicted of the offense carved out of the transaction, there can be no further prosecution for the transaction out of which the offense was cut or carved. But we do not understand how any one can contend that the evidence in this case shows but one transaction. The transactions were almost numberless. If A. goes to the house of B. and steals therefrom at the same time two watches, one belonging to B. and one to C., one conviction for theft of the watch of B. would bar a prosecution for the theft of the watch of O. But if A. on one trip steals the watch of B., and then makes a second trip and steals'the watch of O., he can be prosecuted and convicted for the theft of both watches, and a conviction for theft of the watch of B. would not bar a prosecution for the theft of the watch of 0., although stolen from the same house and from the same place in the house, there being two transactions, the thefts having occurred at different times. So in this case the acts of intercourse, having extended from February to August, occurring every two or three days at different times and places, cannot be said to constitute but one transaction, and that a prosecution for seduction, which was a completed offense when the first act of intercourse took place, would bar a prosecution for fornication based on the subsequent acts, nor will a conviction for fornication under such state of facts bar a prosecution for seduction. If there was but one act of intercourse, and a prosecution for fornication thereunder, alleging a living together, and a conviction had, we could readily see' how it could be contended it would bar a prosecution for seduction based on the same act of intercourse. In that sort of case it might well be contended that the state had carved an offense out of the single transaction, and should not be allowed to carve again. But under the evidence in this case we have no such case. The information for fornication alleged habitual carnal intercourse, and the proof of one act of intercourse alone, whether under promise of marriage or not, would not authorize nor sustain a conviction under such an information, while under the charge of seduction proof of one act under a promise of marriage will justify and sustain a conviction. Under the evidence offered in behalf of the state appellant committed both offenses at separate and distinct times, and the court did not err in withdrawing the plea from the consideration of the jury. This question is discussed at length by the Supreme Court in Thomas v. State, 40 Tex. 36, and by this court in Lewis v. State, 1 Tex. App. 323; Whitford v. State, 24 Tex. App. 489, 6 S. W. 537, 5 Am. St. Rep. 896; Nichols v. State, 37 Tex. Cr. R. 616, 40 S. W. 502; Burns v. State, 36 Tex. Cr. R. 606, 38 S. W. 204; Taylor v. State, 41 Tex. Cr. R. 570, 55 S. W. 961; Ford v. State, 56 S. W. 918; Harris v. State, 50 Tex. Cr. R. 411, 97 S. W. 704; Parks v. State, 57 Tex. Cr. R. 569, 123 S. W. 1109.

We do not think this question is raised in the record in a way to authorize us to review it, as there is no bill of exceptions in the record. It is true there is a paper in the record, in which it is alleged that certain objections were made to the charge of the court, but this paper is verified in no way, and does not bear the signature of the trial judge, nor is there any verification that it was ever submitted to the trial judge. In the case of Ross v. State, 170 S. W. 306, this court held:

“There is what is termed in this record ‘defendant’s exceptions to the charge of the court.’ This is not verified in any way. The trial judge’s name is not appended thereto, nor is it in any manner approved in- a way so as to make it properly a record paper. It is true that the file marks of the clerk appear thereon and show this paper was filed May 16, 1914, the same date the court’s charge was filed; but this does not evidence the fact that it was presented to the trial judge before his charge was read to the jury, or that it was ever presented to the trial judge. The radical changes made by the Thirty-Third Legislature (chapter 59) in regard to these matters has been frequently before our civil courts, and in each and every instance, so far as we have been able to ascertain, the holding has been that the fact that the objections were made before the charge was read to the jury must be evidenced by a bill of exceptions approved by the trial judge. Eldridge v. Citizens’ Ry. Co. (Civ. App.) 169 S. W. 375; Heath v. Huffhines (Civ. App.) 168 S. W. 974; Gulf, T. & W. Ry. Co. v. Culver (Civ. Ápp.) 168 S. W. 514; Ford Motor Co. v. Freeman et al. (Civ. App.) 168 S. W. 82; St. Louis Southwestern Ry. Co. v. Wadsack (Civ. App.) 166 S. W. 42; Saunders v. Thut (Civ. App.) 165 S. W. 553; Johnson v. Hoover & Lyons (Civ. App.) 165 S. W. 900; Quanah A. & P. Ry. Co. v. Halloway (Civ. App.) 165 S. W. 546. Other cases from our civil courts construing these amenda-tory acts could be cited, but as the cases above quoted discuss the matter fully from every viewpoint, we deem it unnecessary to cite others. It appears that not only must objection in writing be made to the charge before it is read to the jury, but if the court overrules the objections a bill of exceptions must be reserved to the action of the court and be incorporated in the record.”

Appellant, to obviate the force of this objection, contends that as the order overruling the motion for a new trial shows that he excepted to the action of the court in overruling his motion for a new trial, that this exception should be sufficient to cause us to review each ground alleged in the motion for a new trial, although the record contains no bill of exceptions to the evidence introduced, to the charge as given, or the refusal of the court to give any special instruction requested. An exception recorded in the order overruling the motion for a new trial only yerifies the fact that the motion was presented to the court and overruled by him, and that appellant excepted to that action of the court, but does not verify any ground alleged in the motion, and that the appellant on the trial of the case excepted to any ruling or order of the court. Marshall v. State, 5 Tex. App. 273; McDaniel v. State, 5 Tex. App. 475; Yanez v. State, 6 Tex. App. 429, 32 Am. Rep. 591.

However, we have gone entirely through the record. The court gave six of the special charges requested by appellant; and, if there were any omissions in the main charge as given, the special charges requested and given certainly cover such omissions, and present affirmatively the defenses relied on by appellant.

The judgment is affirmed.

DAVIDSON, J. I dissent, and will write if rehearing is not granted.

DAVIDSON, J.

(dissenting). I have been unable to agree with my Brethren in the disposition of this- case. There are several questions of considerable importance that ought to cause á reversal. I shall only mention, however, two, the act of the court in withdrawing the plea of jeopardy, and the sufficiency of the evidence.

When the case was called for trial appellant interposed the plea of jeopardy. There was no demurrer to the plea. Evidence was introduced in support of it, and it went before the jury. The court, however, in his charge withdrew it from the consideration of the jury. I do not understand upon what theory this was done. It may be that the court thought the record did not justify the plea. In this connection it was shown, without controversy, that the witnesses were in attendance upon the grand jury to testify in regard to the illicit intercourse between appellant and prosecutrix, Tempie Roberson. Dr. Bell, one of the witnesses whose testimony was of importance, was carried before the grand jury, as was the mother of prose-cutrix. She says, however, that after being sworn she was dismissed without testifying. The remaining witnesses were not before the grand jury, but were in attendance upon that body. The grand jury excused the witnesses and failed or refused to present an indictment against appellant. The indictment upon which this prosecution was based was found by a subsequent grand jury, that is, at a subsequent term of the district court. After the grand jury failed or refused to indict appellant for seduction, or for any other offense, the county attorney’s office filed a complaint and information, charging him with fornication, in the county court. Appellant pleaded guilty and paid his fine and costs. The matter with reference to the action of the grand jury as to what should be done with appellant under the circumstances seems to have been rather thoroughly discussed between the assistant county attorney and one of appellant’s counsel, after the grand jury failed to indict. Subsequently the prosecution for fornication and the judgment thereon followed. The state, as well as the defendant, introduced the complaint, information and judgment of the county court in the fornication case on appellant’s trial in this case.

In regard to the plea of jeopardy, it was shown conclusively by the judgment, as follows:

“March 21, 1914. This day this cause was called for trial, and both parties appeared and announced ready for trial, and the defendant, Bernice Staples, after being duly admonished of the consequences thereof by the court, pleaded ‘guilty’ to the charge herein, and waived a trial by jury and submitted his cause to the court. Wherefore it is considered by the court that the defendant is guilty as charged, and his punishment is assessed at $50 fine. It is therefore considered, ordered, and adjudged by the court, that the state of Texas do have and recover of the defendant, Bernice Staples, the said fine of $50 and all costs of this prosecution; and, the defendant being present in court, is placed in custody of the sheriff, who will commit him forthwith to the jail of said county until said fine and costs are paid. And execution may issue against the property of the said defendant for the .amount of said fine and COStSi”

It was shown also by the testimony of the assistant county attorney, one of appellant’s counsel, and appellant himself, that he pleaded guilty to fornication in the county court after the whole matter was discussed between his counsel and state’s counsel, all three of them testifying that he pleaded guilty, and the judgment of the court states that he pleaded guilty after being admonished by the court as to the consequences of his plea, and that he was then in court, and remanded to the custody of the sheriff until his fine and costs were paid. It is also shown conclusively, and not questioned, that he paid the fine and costs. After the argument the court withdrew the entire plea of prior conviction and all the evidence in support of it from the consideration of the jury. Under this record it is my opinion that the plea of jeopardy was well taken and should have been sustained, and the court was in error in withdrawing it from the jury. There is no question of the fact that the fornication ease was based upon the same facts as those introduced in the trial of this case for seduction.

It is well established under the doctrine of carving that where the state prosecutes and secures a conviction, this would bár any prosecution either on the same facts or the facts growing out of the general transaction. Eor collation of authorities see Mr. Branch’s work on Criminal Law, § 399. The doctrine there laid down is thus tersely and correctly stated by Mr. Branch:

“He [state’s counsel] may carve as large an offense out of a single transaction as he can, but he must cut only once.” Grisham v. State, 19 Tex. App. 513; Paschal v. State, 49 Tex. Cr. R. 111, 90 S. W. 878; Moore v. State, 33 Tex. Cr. R. 166, 25 S. W. 1120; Shubert v. State, 21 Tex. App. 551, 2 S. W. 883; Herera v. State, 35 Tex. Cr. R. 607, 34, S. W. 943; De Leon v. State, 55 Tex. Cr. R. 41, 114 S. W. 828; Quitzow v. State, 1 Tex. App. 53, 28 Am. Rep. 396; Taylor v. State, 50 Tex. Cr. R. 288, 98 S. W. 839. To the same effect is Wilson v. State, 45 Tex. 81, 23 Am. Rep. 602; Hudson v. State, 9 Tex. App. 151, 35 Am. Rep. 732; Simco v. State, 9 Tex. App. 216; Adams v. State, 16 Tex. App. 162; Willis v. State, 24 Tex. App. 588, 6 S. W. 857.

These are certainly enough decisions from this court to support the enunciated doctrine.

The decisions also draw a distinction between former acquittal and former conviction. This has been noticeably so by the decisions in Texas since Simco v. State, 9 Tex. App. 349. These are also collated by Mr. Branch in his work on Criminal Law. It is also stated by Mr. Branch, and correctly, that former conviction, unlike former acquittal, to be a bar, only requires that the transaction or the facts constituting it, be the same as applied to the doctrine of carving. It has also been held that if the court had jurisdiction and defendant submitted to the judgment and paid his fine and costs, such conviction will sustain a plea of former conviction, though the pleading was defective. Davis v. State, 37 Tex. Cr. R. 359, 38 S. W. 616, 39 S. W. 937. It is unnecessary to cite further authorities on that proposition. Under these authorities, and under the Constitution as well as the statute, where the state sees proper to prosecute and obtain a conviction for fornication, and both transactions are based on the same transaction, and the state secures a punishment, the plea of jeopardy is well taken. So the state having obtained a conviction for fornication on the same state of facts upon which it relied for conviction for seduction, and it growing out of the same illicit relation and the same transaction, it is debarred from further prosecution on those facts for any other ojíense. I do not care to follow that question further.

In regard to the'second proposition, that is, the want of sufficient evidence, I confine myself to rather a brief statement of the case. The prosecutrix testified to an engagement between herself and appellant, and, further, that he importuned her to have intercourse with him from that viewpoint. She says at first she refused, but subsequently yielded. She says in this connection:

“The last conversation I told about, -at the time when I gave up to him, was upon an occasion when -we had been up to his father’s house and was coming on back. He was begging me, like he usually was whenever we were out that way, so I told him if we did, I rather be in a house somewhere, and we had to pass by his brother’s house, and they were gone, and we agreed to go in there, in his brother’s house. * * * We both agreed to go in the house. I told him that if I did act that way, I had rather be in a house, and we decided that we would go in his brother’s house. We did go in there, and he had something to do with me in there; well, he tried, but then he couldn’t. He did not succeed in ‘doing it.’ We did not stay in there long; about 10 or 15 minutes, I reckon. * * * At the time I did this I was willing to have intercourse with him. I had given up to him that night. * * * After this time, we had intercourse; that is to say, we tried. We tried for a month and a half or maybe two months before we succeeded. After this we discussed the question of marriage;' we always wei’e speaking something about it. I told him that I was a virtuous girl, and never had done anything of that kind, and I asked him would he know, and he said he would, if I had never had no dealings with no other man, he said he would know, and it would not make any difference with me if I was a virtuous girl; and after the first time I asked him didn’t he believe then what I told him, and he said that he did. After this time that we went to the house of his brother, we went several places and met at different places to have intercourse again.”

She states, however, it was a month and a half or two months before he succeeded in having intercourse with her. She says:

“These acts of intercourse continued along on during the year up until along the last of July or the first of August, somewhere along there. I let him have intercourse with me a time or two after he backed out from marrying me; then I found out that I was in the family way, and told him that I was going to quit.”

She further testifies that she and appellant went to see Dr. Holland about the matter, and he told them there was not anything wrong with her, and gave her some medicine; that it would do the work. She says that it was on the 4th day of February when she learned definitely that she was pregnant. That was in Dr. Bell’s office. She had been carried by her mother to see Dr. Bell who, upon examination of her, ascertained the fact that she was pregnant, and he so informed her. This seems to have been the 4th of February. When Dr. Bell made that announcement she most strenuously denied her pregnancy, and said it was not true; that she had not had intercourse with anybody. Prosecutrix’s mother was in the room at the time this occurred, and Dr. Bell informed her that her daughter was pregnant. The girl still insisted that it was not true. Dr. Bell asked her mother to step out of the room a moment; that he thought he could make prosecutrix admit it; After further examination of the girl, and after discussing the matter with her, she admitted she was pregnant, and that she would be confined on the 10th of February, six days from the time Dr. Bell was talking with her. He informed her that was not true, that it would be in the neighborhood of two months before she would give birth to a child. The facts show she gave birth to a child on the 18th of March. Dr. Bell testified, further, that she had been having intercourse with men recently before his examination of her, going into detail of the reasons why he knew that was true. She had ta her testimony before the jury stated that the intercourse ceased between them last of July or first of August previous to Dr, Bell’s examination, admitting, however, she had on one or two occasions subsequently tg breaking off the marital agreement between them had intercourse with appellant. It is also in evidence that she was engaged to marry Charley Cross, and she requested Mrs. Smith to make her a wedding dress for that purpose, and she admits in her testimony that she was engaged to him at one time and loved him, and states in her testimony on the trial before the jury that she still loved Charley Cross. Gross was a brother-in-law of Mrs. Smith. Mrs. Smith did not want Cross to mary her, and declined to make the wedding dress. Her language in reference to Charley Cross is thus stated in the record:

“I told him I loved him. I did love him, and I still love him. I still love Charley Cross. He has been married; he is a widower now. He has never married yet. I told Bernice Staples I loved him.”

There is quite a lot of testimony also in the record with reference to a damage suit against appellant growing out of this matter, and there seems to have been an impression on the part of prosecutrix and her father that it was necessary to obtain a conviction for the seduction before they could get damages in a civil suit, and especially this seems to have weighed heavily upon the mind of the father. He talked a great deal about the damage suit. He told of instances where parties had obtained damages under similar circumstances, and went to see a lawyer for the purpose of bringing the damage suit. It seems to indicate in the mind of the father of prosecutrix as well as prosecutrix that a conviction was necessary in the seduction case in order to obtain a judgment in the civil proceedings. ' Recurring to her testimony with reference to the various attempts to have intercourse with her before he succeeded, she stated that before he did succeed that he tried it often, perhaps every two or three days. There is other testimony going to show that other men took liberties with her, such as kissing her and putting their arms around her and matters of that sort, and there is some testimony to the effect that she wanted to get married, and one witness testified he had been going with her; that when he discovered that she wanted to get married, he would not go with her any more; that he did not want to marry, and so informed her.

• The testimony is rather voluminous and minute in detail, but I deem it unnecessary to go any further in reference to the evidence, I feel more than justified in the conclusion that the facts stated do not justify a conviction for seduction. To say the least of it, it is rather a remarkable statement that to prove her chastity she would herself propose to her lover such a test of chastity and offer her body as a test of that chastity. It would occur to the average mind that a chaste girl would scarcely volunteer to offer to a man her body to test her virginity or chastity when he was questioning that chastity. Evidently the Charley Cross matter or something had come up between them, as she said it often did, and about which appellant would become violent in his jealous anger, and to the extent that he suspected rather intimate relations between them. From her statement he did not demand or ask of her to prove her chastity, but she herself suggested that if he would know whether she was chaste or not she would submit her body as a test. When this offer came he stated he would know, and she says then she insisted .upon going in the house of appellant’s brother, who was absent from home, and there make a test of the matter. She testifies thát he did not succeed, nor did he succeed for a month and a half or two months, but they were continually testing the matter, under her statement, before the act of intercourse was consummated. The proposition came from her — not appellant. As she states it, the conclusion seems to be irresistible that he would not marry her because he suspected her virtue, and that she had been intimate with other men. If her testimony does not carry that conclusion, then it would be difficult to understand what she did mean by her statement. Under this view of it she proposed to submit her body to him as a test of the chastity in order to obtain from him the coveted marriage. This was a condition precedent to the marriage as testified by her. The extent of his satisfaction, as expressed in her testimony, seems to have been of very short duration, and rather of an illusory nature, for she says it continued every two or three days, or at least at frequent intervals for a month and a half or two months, until the final act of intercourse was consummated. She was willing all the time and on all occasions to permit him to have intercourse with her or try to do it. All this was predicated upon the belief on the part of appellant that she was not chaste, and on her part as a condition precedent to the marriage. Her testimony not only fails to prove chastity, but, as I understand it, it proves the contrary. It is a peculiar statement to make, or an admission from the prosecutrix, that she was willing to prostitute her body to an unholy intercourse to prove the fact that she was a chaste woman. It occurs to me that such a statement would be abhorrent to a truly virtuous woman. Of course under the statute defining seduction, there could be no seduction if she was unchaste, or if it was upon a conditional promise of marriage, and in no event could there be a seduction until the intercourse had been obtained. It is the act of intercourse under the agreement of marriage of a chaste woman, led away from the path of virtue by the accused, that constitutes this offense. Conditional promises cannot form a basis of seduction. An unchaste woman cannot be seduced.

I have written what I have written without undertaking to follow or reply to the opinion of the majority affirming the judg-nient¡ I have gone to the record for the tíonditions as I see'them applicable to the case. Without touching other questions in the ease, I am convinced that this judgment ought to be reversed on the two questions above mentioned.
      @=Eor other oases see same topic and KEY-NUMBEIt in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    HEAD v. STATE.
    (No. 3505.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Weapons <&wkey;7 — Carrying.
    One carrying a pistol to deliver to the purchaser does not violate the pistol law by using the pistol when engaging in a difficulty with another party.
    [Ed. Note. — Eor other cases, see Weapons, Cent. Dig. § 6; Dec. Dig. &wkey;>7.]
    2. Criminal Daw <&wkey;763, 764, 807 — Trial-Instructions Invading Peovinoe or Jury.
    An argumentative charge on the weight of the. evidence is erroneous.
    [Ed. Note. — Eor other cases, see Criminal Daw, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770, 1805, 1959, 1960; Dec. Dig. &wkey;763, 764, 807.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    J. E. Head was convicted of violating the pistol law and appeals.
    Reversed and remanded.
    Harris & Britton, of Quitman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The undisputed facts show that appellant had on his person and exhibited a pistol. For this he was charged with violating the pistol law.

The record discloses that appellant had married the daughter of the alleged assaulted party, Chadwick, and that Chadwick, acting as agent of another party, had sued appellant for his (appellant’s) home. There seems to have been no friction between the parties with reference to the matter until the morning appellant was seen with the pistol. The assaulted party and his brother-in-law went to town, as did appellant. Neither seems to have known the other was going, and they met accidentally on the street. Appellant and his father-in-law, at request of appellant, stepped to one side near the rear end of a store, and engaged in a conversation with reference to the litigation. Chadwick claims appellant was in the wrong in what occurred, and that he used harsh language. Appellant’s side of the case is that Chadwick used vigorous and insulting language and drew his knife on him, at which time he exhibited his pistol. Appellant’s theory of the case is that, so far as the difficulty between him and his father-in-law was concerned, he acted purely in self-defense. I-Ie is supported in this by the testimony of other witnesses. Be that as it may, appellant’s reason for having the pistol may be briefly stated thus: He had made a trade with a merchant there in the town to pay for a yearling, owned by the merchant, with the pistol; the merchant having agreed to take the pistol in exchange for the yearling, or as part pay. That he had on this occasion gone to town and carried the pistol, and was en route to the merchant’s store, going down the street or sidewalk, when he met his father-in-law or came in touch with him, which led to the conversation and trouble already mentioned. He is supported in this by the merchant, who testified to the same facts as did appellant with reference to taking the animal for the pistol. This is the case in a nutshell.

If'appellant carried the pistol to deliver it to the man to whom he had traded it he did not violate the law, and the fact that he engaged in a difficulty with his father-in-law, in which the pistol was used, would not change that statement. He may have been in the wrong, or not, in reference to using the pistol in a difficulty with his father-in-law, but if he had a right to carry the pistol legally to deliver to the purchaser, then the mere fact that he engaged in a difficulty with another party would not make him liable for violating the pistol law.

With reference to this matter the court instructed the jury as follows:

“You are further instructed that, if you believe beyond a reasonable doubt that the defendant had on his person a pistol as charged, but if you further believe from the evidence that the defendant had sold or agreed to sell said pistol to Martin Pruitt, and that- at time he was seen with the same, he was proceeding on his way to deliver same to the said Pruitt along a route not the most direct, but the route a person would usually or ordinarily travel in going from the home of defendant to Pruitt’s place of business in the town of Hawkins, you will acquit the defendant, and this though you may believe from the evidence that defendant while thus proceeding on his way to Pruitt’s became involved in a difficulty with one Chadwick, and that in said difficulty defendant used said pistol as a weapon of offense or defense. The right or wrong of the defendant’s said acts in said difficulty will not be considered by you as determining the guilt or innocence of defendant in this case, except in so far as they may show, or tend to show, if they do, the purpose of defendant in having said pistol; and if upon the whole of the evidence, not considering the right or wrong of defendant’s acts in said difficulty, you have a reasonable doubt of defendant’s guilt, you will acquit him.
“You are charged that, while the defendant would have the right to carry said pistol from his home to the place of business of Pruitt, if he had sold same or agreed to sell same to said Pruitt, it would be his duty, while he so carried it to proceed on his way to the said Pruitt within a reasonable time after he left his home and along a route a person would usually or ordinarily travel in going to said Pruitt’s from his home, and he would not have the right to turn aside or deflect from the route he was so traveling in going from his home to Pruitt’s place of business and voluntarily engage in a quarrel or fight with another person; and this although you may believe from the evidence that the defendant was lawfully carrying said pistol up to such time.”

All sorts of objections were raised to the court’s charge. Appellant sought numerous instructions to correct what lie believed to be tbe errors of tbe above charges; among others, be asked tbe court to instruct tbe jury that be bad a right to carry tbe pistol on. bis person for tbe purpose of delivering it to Pruitt if he bad traded or leased it to him, and for this reason he bad a right to carry and deliver it, winding up that charge with this quotation:

“Now, therefore, if you believe from tbe evidence that on the time and occasion testified about, the defendant, J. E. Head, carried on or about his person a pistol for the purpose of delivering or turning the same over to Marvin Pruitt, to whom he had sold, traded, or leased said pistol, or if you have a reasonable doubt on this point, it will be your duty to acquit.”

Again, after stating that tbe law authorizes a person to deliver tbe pistol be has sold, this quotation is made from a requested instruction:

“Now, therefore, if you believe from the evidence in this case that prior to the time and occasion testified about, the defendant (J. E. Head) had traded, sold, or leased a pistol to the witness Marvin Pruitt, and if you further find that the defendant (J. E. Head) carried said pistol from his home to the town of Hawkins, at the time and occasion in question, for the purpose of delivering or turning the same over to the said Marvin Pruitt, or for the purpose of consummating a deal which you may find they had been negotiating as to said pistol, or if you have a reasonable doubt upon this point, then it will be your duty to acquit the defendant.”

He also asked a special instruction to tbe jury that they should not consider tbe fact that defendant fired tbe pistol on the time and occasion in question as evidence of tbe fact that be unlawfully carried it. These instructions were repeated in different ways. He also asked this instruction:

“You are instructed that, if you find that the defendant, on the occasion in question, had traded, sold, or leased said pistol to Marvin Pruitt, and that the defendant was carrying said pistol for the purpose of delivering same to said Pruitt, and you further find that he (the defendant) went to back end of Thorn & Page’s store, that would not, in law, be such deviation from the most direct course as would render the defendant guilty or unlawfully carrying said pistol.”

We are of tbe opinion that tbe court’s charge was on tbe weight of the. evidence; and that appellant’s special charges more correctly state tbe law. Tbe undisputed facts show that when tbe parties met on tbe street, that appellant and Chadwick, bis father-in-law, went to tbe rear end of tbe store mentioned and engaged in a conversation about tbe lawsuit. Their version of that conversation^ as to what occurred is widely variant. That was a deflection from tbe route be was traveling, tbe distance being from the street to tbe rear end of tbe store, but at tbe time be met bis father-in-law be was going directly to Pruitt’s store. Tbe court’s charge seems to be on tbe weight of tbe evidence, and more of an argument than a charge on the law. Of course, if appellant was carrying tbe pistol to deliver to Pruitt, that short diversion or deflection from his line, under the circumstances stated, in our opinion, does not constitute a violation of the law. Of course, if he was not carrying tbe pistol to Pruitt, it would be a violation of the law whether he went with his father-in-law to the rear end of the store or not. Tbe evidence not only does not show that he was seeking his father-in-law, as we understand tbe facts, but he did not know be would be in town, and that the meeting was purely accidental. In tbe writer’s opinion tbe evidence does not show a violation of tbe. law. It is not one of those cases that is brought within tbe authorities that show a violation of the law where the party turned aside from his main line of travel or the route or line of travel. Upon another trial, however, from any viewpoint, tbe charge of tbe court should not be on the weight of tbe evidence and argumentative on tbe facts, but directed to the law of the case.

The judgment is reversed and the cause remanded.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    GUYTON v. STATE.
    (No. 3517.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.)
    Criminal Law <&wkey;991 — -Punishment—Indeterminate Sentence Law.
    A sentence of imprisonment must not be for a specified term, but must follow the indeterminate sentence law (Acts 33d Leg. c. 132).
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2518, 2525, 2528; Dec. Dig. &wkey; 991.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Ed. Guyton was convicted of burglary, and he appeals.
    Reformed and affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for burglary; the jury assessing four years’ confinement as the punishment.

There is neither a statement of facts nor a bill of exceptions in the record. There is no question raised which can be reviewed in the absence of these. However, the sentence is for four years straight. It should have followed our indeterminate sentence law (Acts 33d Leg. c. 132).

It is therefore necessary to reform the judgment herein, which is ordered, and, as reformed, will be affirmed.


author: HARPER, J.

text:
    SMITH v. STATE.
    (No. 3522.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.)
    Criminal Law <&wkey;938 — New Trial — Grounds —Newly Discovered Evidence.
    The testimony of a witness that accused was with her the night a burglary was committed was not such newly discovered testimony as entitled accused to a new trial, as accused was as well aware of this fact, if true, as the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2806-2315, 2317; Dec. Dig. ©=938.]
    Appeal from Criminal District Court, Harris County; C. W. Robinstín, Judge.
    Lloyd Smith and others were convicted of burglary, and the defendant named appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the 'State.
   HARPER, J.

Appellant, Ed Shearer, and Earl Williams were jointly indicted, charged with burglary. They were jointly tried, all convicted, and each given eight years in the penitentiary, from which judgment appellant, Lloyd Smith, alone prosecutes an appeal.

The record is before us without any statement of facts or any bill of exception; consequently the only question we can review is whether or not the court erred in refusing a new trial on account of alleged newly discovered testimony. Attached to the motion for a new trial are the affidavits of Nellie Snell and Gertrude Heard. Nellie Snell’s affidavit presents no facts of which appellant- must not have been aware as well before as subsequent to the trial, while the affidavit of Gertrude Heard states “that appellant and I remained in his room the balance of the night” after 9 o’clock. If that is true, appellant was as well aware of that fact as was the woman, and in no sense could it be said to be newly discovered testimony.

The judgment is affirmed.
      ig^pPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SIMONDS v. STATE.
    (No. 3493.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Criminal Law ©=593 — Review—Continuance.
    A motion for continuance on the ground that defendant’s principal attorney was unable to attend court, that he was most familiar with the witnesses, facts, etc., and that his presence was indispensable, was addressed to the court’s sound discretion; and, where defendant had two attorneys in attendance, there was no abuse of discretion in denying the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1320; Dec. Dig. ©=593.]
    2. Criminal Law ©=132 — Review — Time for Application.
    Under Code Cr. Proc. 1911, art. 617, providing that an application for a change of venue may be presented at any time before either party announces ready for trial, defendant, who had not announced ready for trial, and whose motion for a continuance on the ground of the absence of his principal counsel, who was most familiar with the facts, witnesses, etc., had been overruled, was not thereby deprived of the right to thereafter file his application for a change of venue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 249; Dec. Dig. ©=132.]
    3. Criminal Law ©=134 — Venue — Verificoation of Affidavit.
    An application for change of venue, drawn in accordance with the Code provisions, and to which no controverting affidavit was filed, on objection that it was sworn to before one of defendant’s attorneys, should have been permitted to be sworn to before the clerk.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 243, 251, 252; Dec. Dig. ©= 134.]
    4. Criminal Law ©=137 — Right — Change op Venue.
    On such application, defendant was entitled to a change of venue as a matter of right.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 253; Dec. Dig. ©=137.]
    5. Larceny ©=45 — Evidence — Identity op Property.
    In a prosecution for the theft of goats, where the owner had testified as to brand of the goats he had lost, and as to the brand of those found evidence as to the condition of the brand and to facts tending to show that the original brand had been run over and the marks changed was admissible.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 111; Dec. Dig. ©=45.]
    6. Criminal Law ©=404, 651 — Evidence — View op Goats.
    In such prosecution, a view of the goats by the jury was not permissible, nor could they be introduced in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457, 1516-1519; Dec. Dig. ©==>404, 651.]
    7.Criminal Law ©=475 — Opinion Evidence — Beand.
    In such prosecution, a witness,' who had been engaged in stock business for many years, who had before seen brands that had been burned, might testify that he had examined the brands on the goats in question as to the condition in which he found the brands, and that an old brand had the appearance of being burned over, and that the brand appeared to be fresh.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1063; Dee. Dig. ©=475.]
    8. Witnesses ©=48 — Competency — Person under Suspended Sentence.
    One adjudged guilty of theft at a prior term, of the court, whose sentence had been suspended, was a competent witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dec. Dig. ©=48J
    9. Witnesses ©=345 — Credibility—Indictment.
    In a prosecution for theft of goats, where defendant took the stand for himself, it was permissible to show that there was another indictment for felony pending against him, as affecting his credit as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. ©=345.]
    10. Criminal Law ©=8S4 — Verdict — Suspension or Sentence.
    The only prerequisite to the right of the jury to suspend a sentence is that they must first find that defendant had not theretofore been convicted of a felony, and while evidence of his prior reputation is admissible on that issue, it is not a prerequisite to a right to suspend a sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec; Dig. ©= 884.]
    11. Larceny ©=51 — Evidence—Possession.
    In a prosecution for theft of goats, defendant’s possession of the pasture where it was claimed they were found was admissible as bearing on Ms possession of them.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 122; Dec. Dig. <&=o51.]
    Appeal from District Court, Edwards County ; R. H. Burney, Judge.
    Clarence Simonds was convicted of theft, and he appeals.
    Reversed and remanded.
    J. E. Friestman, of Rock Springs, George M. Thurmond, of Del Rio, and Martin & Martin, of Fredericksburg, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of 74 head of goats, and his punishment assessed at two years’ confinement in the penitentiary, and from which judgment he prosecutes this appeal.

It is made to appear from the record that when the case was called for trial the state announced ready, when appellant filed a motion, asking for continuance of the cause on the ground that his principal attorney, Hon. Will A. Morriss, was unable to attend court, setting forth that Mr. Morriss was more familiar with the facts in issue and with the witnesses and parties, and specially alleging that by “reason of the conditions and the influences brought to bear against the defendant the presence of said Morriss becomes indispensable.” The sentence in quotation is copied by reason of the facts hereinafter recited. This motion was one addressed to the equitable power, and presented no strictly legal ground for a continuance, as appellant had two attorneys who were in attendance. And it being addressed to the sound discretion of the court, we would not feel authorized to hold that the court abused his discretion in overruling the motion for a continuance.

In the next bill it is shown that when the court overruled the application for a continuance, he ordered the clerk to call the jury in the box, when appellant stated to the court he was not ready to make an announcement in the case, but desired to present an application for a change of venue, which the court ordered the clerk to file. The application for the change of venue presented both statutory grounds, and further alleged that there were only about SO qualified jurors in the county; that, subtracting from this number the grand jurors, officers in the county, and witnesses in the case, there would be left not over 35 jurors not thus disqualified, and that 12 men out of that number could not be selected who would be unbiased, fair, and impartial. He further alleged that men had been employed to bring about a state of feeling adverse to appellant and create a sentiment and belief that he was guilty of the crime charged. This application was signed by appellant and supported by the affidavits of J. W. Smith and J. M. York. No controverting affidavit was filed by the state, but a motion was filed, asking the court to strike out the plea on two grounds: First, that it was filed too late, the state having announced ready for trial, and the defendant having filed a motion for a continuance; second, on the ground that the application for a change of venue was sworn to before one of counsel for appellant, who was a notary public. As soon as this demurrer or motion was filed, appellant asked leave of the court to amend the application for a change of venue by having it sworn to before the clerk of the court. This the court declined to permit him to do, and sustained the motion of the district attorney to strike the application for a change of venue from the record, and refused to hear evidence as to the truth or falsity of the allegations. In this we think the court erred. Article 617 of the Code of Criminal Procedure provides that an application may be presented at any time before either party announces ready for trial. Appellant not only had not announced ready for trial, but was contending that, before being compelled to announce, he had a right to present and have heard this application for a change of venue. It may be contended that it should have been presented before a motion for continuance was filed, but in the application for a continuance it is made to appear that he desired his principal attorney, Hon. Will A. Morriss, present before presenting the application for a change of venue, for in the application for a continuance he says:

“That by reason of the conditions and the influences brought to bear against this defendant in this case, the presence of said Morriss is indispensable.”

We do not think an effort to have the case postponed until he could get the attorney employed by him to conduct the examination of the witnesses on the hearing of application for a change of venue would or should deprive him of the right, when that application is overruled, to then file his application for a change of venue. It is drawn in accordance with the provisions of the Code, no controverting affidavit was filed, and when objection was made that it was sworn to before one of his attorneys, he asked leave and permission to have it sworn to before the clerk. This permission should have been granted; and, if no controverting affidavit was filed, he was entitled to have the venue changed as a matter of right. If a controverting affidavit had then been filed, he had a right to have heard the evidence on the motion. Ordinarily all one can ask a juror is whether or not he entertains any bias or prejudice against the defendant, but as the court had refused appellant permission to adduce testimony on his application for a change of venue, when he was questioning the jurors, he asked Mr. Bishop, among others, if he was well acquainted with the citizenship of the county, and when the juror answered that he was, appellant asked the juror if there was not in the county a general prejudice against him. The court, in approving the bill, states:

“That no limitation was placed on counsel in asking as to any prejudice of any juror, but only stopped an inquiry as to conditions generally over the county with reference to prejudice against the defendant.”

It is thus seen that every avenue was closed as to defendant showing that a condition existed which would authorize a change of venue, and this court is not enabled to x>ass ■on that question, but we can and do hold that the application for a change of venue was filed at a time authorized by law, and when appellant asked permission to amend it by having it sworn to before the clerk, permission should have been granted, and the evidence heard or the change of venue granted.

It is made to appear that Leo Kelly was permitted to testify that:

“The sheriff and the other member’s of the posse caught the goats, looked at their brands, and found some brands, showing where a new brand had been run over an old brand, and the marks showing there had been a change on-marks; that the sheriff and his party found brands on the left jaw of the goats to be rather fresh in appearance and the marks not so very old.”

The court did not err in permitting' the witness to so testify. Kelly had testified that the goats he had lost were branded ^; that the goats found by him and the sheriff were branded g, and then it was permissible for him to describe the condition of the brand, etc., and to the facts that would tend to show that the brand was originally and had been changed to g by running over the brand and running a line at the top to make a Z out of an L. The same may be said of the testimony of S. S. Henry, L. A. 'Clark, and T. M. Kelly. Of course, if, as contended by appellant, they were permitted to testify to what each other said on that occasion and to refer to the goats as stolen property, etc., this should not have been permitted, but the court, in approving the bill, states that they were permitted only to state what each saw and what was in fact found on examination of the goats.

The court did not err in refusing to have the goats brought into court. ' A view of the goats by the' jury is not permissible, neither can they be introduced in evidence. If the goats are in possession of the prosecution, the appellant will be permitted to 'view them on proper application, we feel sure, and then he and those who go with him can testify as to the brand, etc.

S. S. Henry testified to facts that showed he was an experienced stockman, having been engaged in that business for some 14 years or more, and having before this seen brands that had been burned. It was permissible for him to tell that he had examined the brands on the goats in question, as to the condition he found the brands, and the further fact that an old brand was on the goats, and that it had the appearance of having been burned over, and parts of the brand appeared to be fresh.

While it is shown that D. O. Haynes had been adjudged guilty of theft at a prior term of the court, yet the judgment in that case also shows that the sentence was suspended, and no sentence or final judgment had ever been pronounced against him. Under such circumstances he was a competent witness, and the court did not err in so holding.

The appellant having taken the stand as a witness in his own behalf, it was permissible to show that there was another indictment pending against him, charging him with a felony, as affecting his credit as a witness, but if the charge had been excepted to on the ground that such testimony was not so limited, it should have been sustained. We say this in view of another trial.

Another thing which is complained of in this court, but not called to the attention of the trial court, which we will mention in view of another trial. The court, in his charge, in instructing the jury in regard to suspending the sentence in case they found appellant guilty, instructed them they could not do so unless they found “that he had never before been guilty of a felony, and had also theretofore home a good reputation as a law-abiding citizen.” This is not the law, and the jury’s right to suspend the sentence should not have been so limited. Evidence of the prior reputation is admissible where one seeks a suspension of sentence to aid the jury in passing on that issue, but the only prerequisite to the right of the jury to suspend the sentence if they desire so to do is that they must first find ■ he had not theretofore been convicted of a felony, and the court in his charge should not require that they also find that his prior reputation had been that of a law-abiding citizen. The court could and should have probably limited the effect of this testimony to the issue of whether or not the jury would suspend the sentence in a proper charge, and told them under the facts in this case it was only admitted on that issue. We have said this much in view of another triál of the case.

This disposes of all the bills of exception in the record, but the ground most strenuously insisted on by appellant is that the evidence will not support the verdict. As the case will be reversed on other grounds, we will not discuss that feature of the case, but only suggest that if appellant was in possession of the Wallace pasture, where it is claimed the goats were found, this fact should be shown on another ‘ trial, or some evidence adduced that the goats were or had been in his possession.

The judgment is reversed, and the cause remanded.
      ©=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


text:
    Ex parte McCALLAN.
    (No. 3536.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.)
    Habeas Corpus <S=>46 — Jurisdiction—Disposition of Case on Appeal.
    The county court should not entertain jurisdiction of writ' of habeas corpus raising only questions passed on by the Court of Criminal Appeals on appeal by petitioner from judgment of conviction.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 36; Dec. Dig. <S^»46J
    Appeal from Gregg County Court; J. H-. McHaney, Judge.
    Application for writ of habeas corpus by Oscar McCallan. From a judgment denying relief, petitioner appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Relator was convicted of a misdemeanor in the county court of Gregg county. He appealed the case to this court, and it was affirmed. McCallen v. State, 174 S. W. 611. Every question raised on this application for habeas corpus was passed on in the opinion by this court on the former appeal, and we do not deem it necessary to do so again, but merely refer to that opinion. We cannot understand why the county court entertained jurisdiction of the writ when the questions raised, and all the questions raised, were passed on in the former opinion.

The judgment is affirmed.


text:
    WILSON v. STATE.
    (No. 3504.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.
    Rehearing Denied May 5, 1915.)
    1. Criminal Law <@^>598 — Prosecution foe Misdemeanor — Continuance—Diligence.
    By statute requiring that in misdemeanor cases attachment shall be applied for to compel the attendance of witnesses who do not live in the county where the prosecution is pending, where defendant, convicted of a misdemeanor, had asked for no writ of attachment for a witness who was resident in another county, but had merely secured the issuance of a subpoena, the overruling of Ms application for a continuance was proper; the required diligence to procure the attendance of the witness not having been shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dee. Dig. <@^>598. ]
    2. Criminal Law <@^>1120 — Appeal and Error — Bill of Exceptions — Sufficiency.
    On appeal from a conviction, where the bill of exceptions to the admission of testimony over objection failed to set out such testimony, but contained a statement by the court below that such testimony at defendant’s request was withdrawn from the jury, who were instructed not to consider it, the bill presented no error; it being impossible to determine whether or not the testimony was such that its withdrawal would not cure error in admitting it unless it was set out in the bill.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. <g=>1120.]
    3.Criminal Law <S=>721 — Failure of Accused to Testify — Comment by County Attorney.
    Where, in a prosecution for misdemeanor, the county attorney’s statement in argument that no witness had impeached the prosecuting witness, and that his testimony was uncontra-dicted by any witness or circumstance in this case, was not improper as being a direct or an indirect allusion to the failure of the defendant to testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. <®=^721J
    Appeal from Williamson County Court; Richard Critz, Judge.
    Calla Wilson was convicted of a misdemeanor, and he appeals.
    Affirmed.
    J. B. Robinson and W. K. MaKemson, both of Georgetown, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at 60 days’ imprisonment in the county jail.

In the first bill of exceptions it is contended that the court erred in overruling his application for a continuance. The record shows that the witness whose attendance was desired lived in Burnet county. Appellant asked for no writ of attachment for the witness, but only secured the issuance of a subpoena. This is a misdemeanor, and the Code of Criminal Procedure requires that in misdemeanor cases attachment shall be applied for for witnesses who do not live in the county where the prosecution is pending. It was formerly the rule in this state that in all cases where the witness resided in another county a writ of attachment must be applied for and writ issue for such witness to show diligence. The rule was changed in felony eases by the Twenty-Ehfth Legislature by an act passed at its called session; such act providing for the issuance of subpoenas “to enforce the attendance of witnesses in criminal eases upon district court, grand juries and magistrates sitting as examining courts in counties other than the counties of their residence.” By the terms of this act it is made to apply alone to felony eases (where the state pays the witness’' fees), leaving the provisions of the law requiring the issuance of attachments in misdemeanor cases in county and justice courts, in force. Appellant not having applied for nor requested the issuance of an attachment, and the witness desired not being required to attend upon service of a subpoena, the diligence required by law is not shown in this case, and the court did not err in overruling the application for a continuance. In ad-, dition to this, the facts stated it is expected to be proven by this witness are too general. Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Huebner v. State, 3 Tex. App. 458; Thomas v. State, 17 Tex. App. 437; Martin v. State, 32 Tex. Cr. R. 441, 24 S. W. 512; McCulloch v. State, 35 Tex. Cr. R. 268, 33 S. W. 230.

In the next bill it is shown that the testimony of Kye Singleton was objected to, but the testimony given on the trial is not set out in the bill. In approving the bill, the court states the testimony objected to on request of appellant was withdrawn from the jury, and the jury instructed not to consider it. The bill presents no error, as, without the testimony being set out in the bill, it is impossible for us to determine whether or not it was of such a nature that its withdrawal would not cure the error in admitting it.

The only other bill in the record alleges that the “county attorney in his argument before the jury stated that defendant had not gone on the witness stand in his own behalf.” If the county attorney had so stated, of course it would be error, but in approving the bill the court says that, while appellant did make such an objection, the objection was addressed to the remarks of the county attorney when he said:

“Gentlemen, how will you avoid convicting this defendant? No witness has appeared to impeach him [the prosecuting witness], and -what he told I had to. corkscrew out of him. 1-Ie did not want to tell it, and you gentlemen could very -well see that, but he stands before you unimpeached, and his testimony uncontradicted by any witness or circumstance in this case.”

This was neither a direct nor indirect allusion to the failure of defendant to testify.

The judgment is affirmed.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BANKSTON v. STATE.
    (No. 3521.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.)
    1. Criminal Law <§^338 — Evidence—Admissibility.
    Where the witnesses for the state, on a trial for homicide, were some distance from the shooting, and accused contended that they could not see the difficulty between him and deceased, testimony that from the point where such witnesses placed themselves they were in plain view of the point where the difficulty occurred was properly admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855 ; Dec. Dig. <S=»338.]
    2. Homicide @^>190 — Evidence—Threats by Deceased Against Accused.
    Where, on a trial for homicide, there was a dispute as to- which party was the aggressor, and it appeared that the difficulty between accused and deceased grow out of the possession of a tract of land on which deceased had been living, the testimony of a witness who purchased such land from deceased’s father and mother and placed accused in control thereof, that deceased, on being asked about his reported threats not to leave the place, denied making such threats, and charged accused with spreading such report, and said he would fix him, and that subsequently the witness told accused that when he went to the land he had better carry some one with him, because deceased was mad, was improperly excluded, though the witness did not tell accused of deceased’s threat to fix him, as uncommuni-cated threats by deceased against accused are admissible where there is a dispute as to who began the difficulty or who was most likely to do so.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. <®=»190.]
    3. Homicide <©=>300 — Instruction^—Self-Defense — Apparent Danger.
    Where though, on a trial for homicide, there was evidence of a positive threat by deceased which had been communicated to accused prior to the difficulty, all of the evidence of accused and his witnesses showed that accused was in actual danger from deceased, and raised no issue of apparent danger, the court properly submitted only the issue o.f actual danger in charging on self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. ®=^300.]
    4. I-Iomicide @=x>290 — Instructions — Presumptions — Use oe Weapons.
    Under Pen. Code 1911, art. 1106, providing that when a homicide takes place to prevent murder, maiming, etc., if the weapons or means used by the party attempting or committing such murder, maiming, etc., are such as would have been calculated to produce that result it is to be presumed that the person so using them designed to inflict the injury, it is error for the court to fail to charge this presumption where deceased actually attacks accused, or where accused’s testimony would show an actual attack.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 595; Dec. Dig. <gc=>290.]
    Appeal from District Court, Wharton County: J. W. Conger, Special Judge.
    Porter Bankston was convicted of murder, and he appeals.
    Reversed and remanded.
    H. A. Cline, of Wharton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and his punishment assessed at 20 years’ confinement in the state penitentiary.

The theories of the state and appellant directly conflict. The state’s case, as made by its witnesses, is that deceased, Tom Roberts, went to the home of appellant to see him on some business; that deceased was unarmed, and after an altercation appellant shot at deceased; that deceased turned and fled, when appellant pursued him, continuing to shoot, finally killing him in the public road. A pistol was found by the body of the deceased, but the state’s theory of the case is that appellant placed it there, further contending that appellant had gone to the home of deceased, secured his Winchester rifle, and, knowing that deceased was unarmed, took the occasion he did to kill him. The state’s testimony amply supports the verdict, and we will take occasion here to say that, as the state’s witnesses were some distance from the shooting, and appellant’s contention was that they could not see the difficulty, there was no error in admitting testimony that from the point where the state’s witnesses placed themselves they were in plain view of the point where the difficulty occurred.

However, appellant contends that deceased came to his home that evening, and as soon as lie got there opened fire on him with a pistol; that he fled, and deceased pursued him, continuing to shoot; that he ran around the bam, jumped a fence, fled' into the house, got a Winchester rifle (which he says was his own), and returned to the door, and as he got to the door deceased again shot at Jiim, when he also fired, killing deceased.

With the issues thus drawn as to who began the difficulty, appellant called G. H. Chandler as a witness, whom he says would have testified:

“I was talking to Tom and telling Mm I heard he was not going to get ofl! of the place that he had sold me. I had paid for this place, and had given him permission to stay on there a few days provided it was agreeable to him and Porter, and his mamma was to send him money to go to Oklahoma. I had paid the money then, and had charge of the deeds, and had heard that he said he was not going to leave, and nobody could get him off there, and that it was his place, and he was not going to sell it, and he said it was not so, and asked who it was said that, and I would not tell it, as I did not want to, and he said there was nobody keeping up this hurrah except Porter Bankston, and he said, ‘T will fix him,’ and I never did tell him who told me. After that I saw Porter Bankston before the killing, and told him he had better go fix the fence before the cows would get in and eat up the crop, and to carry some one with him, because Tom was mad. I did not tell him Tom had made any threats, because I did not want to create any hard feelings between him and Tom.”

The bill of exceptions is approved without qualification, and we cannot understand why this testimony was excluded. As said by Mr. Branch in his work on Criminal Law (section 481), the rule in this state is that uncommunieated threats made by deceased against defendant are admissible where it is an issue who began the difficulty, or who was most likely to have done so. See, also, Pape v. State, 54 Tex. Cr. R. 463, 113 S. W. 759; Pitts v. State, 29 Tex. App. 380, 16 S. W. 189; Stewart v. State, 36 Tex. Cr. R. 130, 35 S. W. 985; Trotter v. State, 37 Tex. Cr. R. 468, 36 S. W. 278; Huddleston v. State, 54 Tex. Cr. R. 98, 112 S. W. 64, 130 Am. St. Rep. 875. While Mr. Chandler says that he did not tell appellant about deceased saying, “I will fix him,” yet he says he did tell appellant that deceased was angry, and to carry some one with him when he went to fix the fence on the place deceased was staying. The record shows that the killing took place at the home of the appellant; that ill will existed between deceased and appellant; that it grew out of possession of a tract of land. It appears that Mr. Chandler had purchased a tract of land on which deceased was living from the father and mother of deceased, and had placed appellant in control of it. On the day of the homicide, with appellant’s knowledge and consent, his brother, Lawrence Bankston, had moved into the house theretofore occupied by deceased, without the knowledge or consent of deceased. When deceased returned home in the evening he found this out, and at once went to the home of appellant, and the fatal encounter took place. Now the issue to be tried by the jury is whether or not, as soon as deceased got there he opened fire on appellant, or if appellant, -without just provocation, knowing that he had placed his brother, Lawrence, in the house occupied by deceased, began hostilities as soon as deceased arrived on the ground to inquire about the matter. The state’s case is that appellant did begin to shoot at once, and, deceased fleeing, he pursued and killed him. The appellant’s defense is that deceased, as soon as he got there, began to shoot at him, and he fled, finally getting in the house, where he got his gun, and that he shot in defense of himself; deceased never ceasing to shoot at him until he (deceased) fell. Any and all testimony which would probably throw light on which one began the difficulty should have been admitted.

One of the witnesses testifies to a positive threat made by deceased, and that he, before the difficulty, communicated the threat to the appellant. Appellant, at the time the charge was submitted to him for inspection, objected to it on the ground that the charge only submitted the issue of self-defense from actual danger, and did not instruct the law of self-defense in a case where the threats of deceased to do him bodily harm had been communicated to him prior to the difficulty. As the evidence of appellant and all his witnesses show actual danger, if any danger, and the evidence does not raise the issue of apparent danger, viewed in the light of previous threats, the court committed no error. Barnes v. State, 39 Tex. Cr. R. 184, 45 S. W. 495; Chalke v. State, 35 Tex. Cr. R. 129, 32 S. W. 534.

The only other question presented by the record we think it necessary to discuss is: Appellant objected to the charge of the court because it failed to instruct the jury the provisions of article 1106, Penal Code. The rule seems to be that it is error for the court to fail to charge the presumption from the weapon used by deceased when he actually attacks the defendant, or the defendant’s testimony would show an actual attack. Clark v. State, 56 Tex. Cr. R. 294, 120 S. W. 179; Scott v. State, 46 Tex. Cr. R. 313, 81 S. W. 950; Smith v. State, 57 Tex. Cr. R. 455, 123 S. W. 698. In the latter ease the defendant testified that deceased was shooting at him, and it was held to be error to fail to charge that the law presumed in such case that the deceased intended to kill, if he did shoot at defendant.

The other bills present no error, but on account of the errors above recited the judgment is reversed, and the cause remanded.
      ®=s>Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes