text:
    CLEVELAND v. STATE.
    (No. 4779.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1917.
    Rehearing Denied Jan. 23, 1918.)
    Criminal Law <&wkey;814(17) — Instructions — Circumstantial Evidence.
    An instruction on circumstantial evidence is not required on a prosecution for theft from the person, complaining witness testifying that when he met defendant he had money in his pocket, that he felt her hand go into his pocket, that he then examined his pocket and the money was gone, and that when he undertook to hold her, she ran, and handed something to another who then ran; this being equivalent to direct testimony of the taking.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Bessie Cleveland was convicted, and appeals.
    Affirmed.
    Faulk & Monroe, of Austin, for appellant. E. B. I-Iondricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of theft from the person, and assessed the lowest punishment.

The sole question in the case is whether or not the court should have given a charge on circumstantial evidence. The testimony of the complaining witness, Willie Carter, was amply sufficient to show that on the date alleged in the indictment he had in his pocket about $70 in money, and met appellant at night on one of the streets in Austin and there made arrangements to have sexual intercourse with her; that they went to a certain locality, and about the time he began action, he swore:

“We got ready, I got on her, and felt her hand go in my pocket — I had actually started to have intercourse with her, and felt her hand going in my pocket, in this left-hand pocket (indicating). That was the pocket in which the money was. Then I jumped up and grabbed my pocket at the outside, and saw the roll of money was gone — it made a big bulk — and I wasn’t satisfied, so I ran my hand in my pocket and saw my money was gone. I said, ‘You have robbed me.’ ”

She denied his accusations. His testimony then shows that she then tried to run, and he took hold of her and undertook to hold her. In the struggle she got loose from him at one time and ran to a negro man, who, it seems, was her companion when appellant first met her on said occasion, handed something to him, and he ran. He caught her again, and she, struggling to get loose, cut Mm several times with a knife. He at last drew the attention of others, got an officer and had her arrested. His testimony further ivas to the effect that on this occasion she got some $70 of his money.

It is so well settled that it needs no citation to the cases that, when' the main fact in theft, which is the taking, is proven wholly by circumstantial evidence, it is necessary to charge the law applicable to circumstantial evidence. It is equally well settled that when the taking is proven by direct evidence no such charge is required.

It is just as well settled, as stated by Judge White in section 813, subd. 3, in his Ann. Code Cr. Proc., that:

“Where the criminative facts established are in such close juxtaposition to the main fact as to make them almost equivalent to direct testimony, the court is not required to charge on circumstantial evidence.”

Pie cites several cases directly in point so holding.

Mr. Branch, in his Crim. Law, § 203, p. 107, states the rule thus:

“If the facts proven are in such close juxtaposition to the factum probandum (in theft, the taking; in burglary, the breaking; in murder, the fatal stroke, etc.) as to be equivalent to direct testimony, a charge on circumstantial evidence is not required.”

He cites several decisions of this court in point so holding. It is needless to collate the authorities, but see Egbert v. State, 76 Tex. Cr. R. 666, 176 S. W. 560, and cases there collated; Forward v. State, 73 Tex. Cr. R. 56-1, 166 S. W. 725, and cases there collated.

We think the testimony in this case is clearly within the law as stated by Judge White and Mr. Branch, and the court committed no error in refusing to charge on circumstantial evidence.

The judgment is affirmed.
      <gzs>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    CAGLE v. STATE.
    (No. 4711.)
    (Court of Criminal Appeals of Texas.
    Dec. 5, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Gaming <&wkey;98(2) — Betting — Evidence —Sufficiency.
    Evidence held to show that defendant violated Acts 30th Leg. c. 49, by betting or wagering money at a game with cards at a private residence commonly resorted to for the purpose of gaming.
    2. Gaming <&wkey;97(l) — Evidence—Admissibility.
    A deputy sheriff could testify in prosecution for unlawful gaming that he had watched “a bunch going up” toward defendant’s residence.'
    3. Gaming <&wkey;97(l) — Evidence—Admissibility.
    In prosecution for unlawful gaming, a deputy sheriff could testify that he heard money rattling in the room and heard an argument as if defendant and another had fallen out over the game.
    4. Gaming <&wkey;97(l) — Evidence—Admissibility.
    In prosecution for unlawful gaming in a private residence, it was not error to admit testimony as to why defendant put quilts over the windows in his residence.
    5. Witnesses <&wkey;389 — Impeachment.
    In prosecution for unlawful gaming in a private residence, where defendant had testified that he had denied telling the officers he had played but one game, an officer could state that defendant told him that only one game had been played.
    6. Criminal Law <&wkey;699 — Trial—Argument of Attorneys — Discretion of Court.
    The manner of argument by attorneys in criminal prosecution is a matter within the discretion of the court.
    7. Criminal Law <&wkey;1091(8) — Appeal — Scope of Review.
    Bill of exceptions complaining that county attorney in opening argument said he would rely on testimony of certain named witnesses without discussing the testimony or the law, and after defendant’s attorney concluded his argument the county attorney made an original argument discussing all the facts and the law, but not showing what the concluding argument of the county attorney was, shows no error.
    8. Criminal Law &wkey;>722(3) — Argument of Counsel.
    In prosecution for unlawful gaming in a private residence argument of counsel as to defendant, “He comes here with a grown boy; he sometimes lets play his hand and asks an honest jury to turn him loose,” was not improper.
    9. Criminal Law <&wkey;722(3) — Argument of Counsel.
    In prosecution for unlawful gaming in a private residence argument of counsel as to defendant, “He comes here and asks you to shield him behind a clause of the statute known as a place commonly resorted to,” was not improper.
    Appeal from Cottle County Court; W: O. Jones, Judge.
    Dr. Cagle was convicted of unlawful gaming, and he appeals.
    Affirmed.
    C. C. Renfro and J. M. Hawkins, both of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of unlawfully gaming and assessed the lowest punishment.

By the act of 1907 (page 108 et seq.) the Legislature revised the offenses of unlawfully gaming to a considerable extent. Of this act it was well said by this court through Judge Ramsey in Singleton v. State, 53 Tex. Cr. R. 627, 111 S. W. 736:

“This act manifests incontestably the quickened conscience of the state that it is a moral as it should be a legal wrong, for one person to acquire the money or property of another without rendering some service or . paying some equivalent for it; that the practice of gambling is demoralizing, inimical to society and destructive to the morals of our youth as well as men of maturer years.”

One section of said act is now article 557 in our P. 0. It enacts:

“If any person * * * shall bet or wager upon anything in any place where people resort for the purpose of betting or wagering, he shall be fined not less than ten dollars nor more than fifty dollars: Provided, no person shall be in-dieted under this article for playing said games with * * * cards at a private residence occupied by a family, unless same is commonly resorted to for the purpose of gaming.”

The prosecution and conviction herein was under said article. The information alleged that appellant on or about June 14, 1917, did then and there unlawfully bet and wager at a game played with cards, said game then and there being played at a private residence occupied by a family, said residence being commonly resorted to for the purpose of gaming. All the evidence shows that the gaming was at the residence of appellant, where he resided with his family.

The testimony of Mr. Gombest, the sheriff, and his deputy, Mr. Bebout, showed that they caught appellant gambling with cards with several others on or about June 14th in one game, and some two or three weeks prior thereto in another game; that the room they caught them gambling in was a little room, with nothing in it except a lap robe, a quilt or two, and a bucket of water; that all the gaming was at night; that on this night, June 14th, they saw persons going to appellant’s house at night, and after they got therein went to where they could see them, and saw that they were gambling, betting money in a game. Mr. Gombest said he thought they played in the house two or three other times; that he watched a bunch go up there, and in fact went up there. On cross-examination he swore:

“Yes; I know of other games being played; don’t remember when it was; it was possibly a month ago.”

He further swore that the quilts were hung over the windows. 1-Ie and Mr. Bebout swore that they actually caught them gambling in this house twice within a month.

Mr. Huff; one of the parties who was caught in the game on the night of the 14th, swore that he played that game on or about that date, and:

“I don’t know how many times I played cards at this residence, once or twice, though. * * * I believe I played once or twice before tbe time Mr. Combest caught us.”

He further swore that every time he went up to Dr. Cagle’s house and gambled that he did so upon the invitation of Dr. Cagle. He swore:

“Yes; every time I have gone up there to play I have been asked to come by Dr. Cagle. There was a bunch of us in a game up there a while back, five of us, but I don’t remember whether I played a game up there before Christmas or not. I have played so many games I can’t keep up with them all. I remember being in one game before this one, but don’t remember when it was. Sure we bet money on the games.”

Appellant himself testified, admitting they gambled on the night of June 14th, when the sheriff and his deputy caught him with some four or five other men. 1-Ie said, in substance, that every time they played a game at his house it was upon his invitation to them for that purpose. He admitted that they had thus gambled twice in his house, stating of the first game:

“I guess it has been two months back, about two months ago.”

And he admitted he put the quilts over the •windows because he did not want the neighbors to know that they were playing.

It has several times been held by this court and the Supreme Court when it had criminal jurisdiction that proof of only one game would not be sufficient to show that a place had been commonly resorted to for gaming. Purvis v. State, 62 Tex. Cr. R. 304, 137 S. W. 701, Ann. Cas. 19130, 536, and cases cited. But it has never been held that, where it was proven that two games had been played within a short period of time, it would not be sufficient to show that the place was commonly resorted to for gaming. It might be that, if two games only were shown to have been played, that might not be sufficient to show that the place was commonly resorted to for that purpose. But the proof in this case goes further than that. It shows positively that Dr. Cagle’s house was resorted to twice within a reasonably short space of time for gambling, and, in addition, the proof tends strongly to show, and from which the jury could well infer, that it was commonly resorted to for gaming;" that not only these two games, but others also, were played there within a reasonably short space of time. The equipment of the room, or the lack of equipment, and the lack of household furnishings therein, would be one circumstance against him. The testimony of Mr. 1-Iuff would also justify the jury to believe that not only the two games in which their parties were caught were played, but that many others about the same time had been played in said residence. So' that upon the whole the evidence would justify the jury to believe that appellant’s residence and that room of it in which the game was played, was commonly resorted to for gaming, and justify the conviction.

The court did not err in permitting Mr. Combest to testify that he “had watched a bunch going up that way,” objected to by appellant. The bill presenting this question is very meager, but this one sentence of testimony referring to the witness watching persons going up to Mr. Cagle’s house was admissible. The evidence tended to show that they went there for the purpose of gaming. Neither did the court err in permitting said witness to testify that he and Mr. Bebout heard money rattling and the voice of Dr. Cagle and Elmo Barron, and that the conversation they heard was, it seemed like Paul Huff and Dr. (Cagle) fell out over a game some way, and it seemed like from what he understood it was over a bet on the game, and seemed like they were disputing over it, and that he heard Dr. Cagle tell Huff he was a liar; that it was his pot. All this testimony was admissible as showing that the persons were engaged in gambling at the time the sheriff and his deputy caught them, even if the bill is full enough to authorize its consideration. Neither did the court err in permitting the state to ask appellant, on his cross-examination, how long he had known Hard on, and his answer that he had only met him that day. This bill is also too meager to require consideration, but, if it could be, no error in asking and in answering the question was committed.

Neither did the court err in permitting the county attorney to ask appellant what purpose he had in hanging the quilts over the windows, and his answer that he did not want his neighbors to know that he played on his wife’s account. Neither did the court err in permitting Mr. Combest to testify on behalf of the state in rebuttal that appellant first told him they had only played one game at his house. The bill is too meager to show any error; but it reasonably shows that this testimony was admitted because appellant, in his testimony, denied that he told the sheriff he had played but one game in his house. It was admissible for impeachment, but, whether for impeachment or not, it, being a statement by appellant, was admissible as an admission. Even at that it would he in his favor and not against him.

Appellant has another bill complaining that the county attorney, in his opening argument, said he would rely upon the testimony of certain witnesses, naming them, without discussing said testimony or the law, except by narrating the facts of the state’s side applicable thereto, and then after appel-. lant’s attorney had concluded his argument, the county attorney made an original argument discussing all the facts and the law. This is the whole of this bill, except his objections. The manner of argument by the attorneys is a matter within the discretion of the court. This bill shows no reversible error. It does not show what the concluding argument of the county attorney was.

Appellant has two other bills to the argument of the county attorney. In one he complains that the county attorney said:

“He comes here with a grown boy; he sometimes lets play his hand and asks an honest jury to turn him loose.”

In another he complains that the county attorney said:

“He comes here and asks you to shield him behind a clause of the statute known as a place commonly resorted to.”

No charge was asked that either of these expressions should be disregarded by the jury. However, both of them were proper comments by the county attorney and were based on the evidence or inferences therefrom.

The judgment is affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


text:
    HAMILTON v. STATE.
    (No. 4659.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.
    On Motion for Rehearing, Jan. 23, 1918.)
    1. Larceny &wkey;>55 — Weight and Sueeiciency oe Evidence.
    On a trial for the theft of an automobile, evidence held sufficient to establish defendant’s guilt.
    2. Larceny <&wkey;45 — Evidence—Admissibility —Identity oe Property.
    On a trial for theft of an automobile, testimony as to the number of an automobile bought by the witness the morning following the theft, and which was the number of the stolen machine, was admissible to show the identity of the car.
    3. Criminal Law i&wkey;534(l) — Evidence — Identity oe Property — Corroboration oe Ooneession.
    Testimony of the owner of a stolen car that he had surgical instruments and papers in the car at the time it was stolen, and that he found some of them along the road where the automobile was driven and recovered others from parties who had found them along such road, was admissible as tending to show the identity of the stolen machine, and also to corroborate defendant’s confession, as to the route he and others went in the stolen machine.
    4. Larceny <&wkey;45 — Evidence — Admissibility — Identity oe Property.
    Testimony of another witness that he found some of such papers along such route which were identified, claimed, and delivered to the owner of the car was admissible.
    5. Criminal Law <&wkey;814(19) — Instructions— CONEORMITY TO EVIDENCE — PARTIES TO ÜE-EENSES.
    Defendant’s confession, showing that he and others decided to steal a car in order to sell it, that they went out looking for a caí-, and found one at a certain place, that B. went to the car, cranked it, and drove off, that defendant got in the car in the middle of the block, and the other two parties on the corner, that they drove to another city, and B. went to a garage to see if he could sell the car, the others waiting a few blocks away, that B. came back and said, ho had sold it, and went to the car, took it, and went back to the garage, the other parties going within a short distance of the car and seeing that B. got it all right, and then returning to where they had been- waiting, justified an instruction on the subject of principals, as it showed that some or all of the parties were principals with defendant in the theft of the machine.
    On Motion for Rehearing.
    6. Criminal Law &wkey;>814(ll) — Instructions— Conformity to Evidence — Parties to Oe-EENSES.
    On a trial for theft of an automobile, the testimony of defendant, his wife, and his mother that they were together continuously at his mother’s before, at the time and after the time the automobile was stolen, justified the court in charging on alibi.
    7. Criminal Law &wkey;1043(3), 1090(14) — Appeal — Objections—Bill oe Exceptions.
    Under Yernon’s Ann. Code Cr. Proc. 1916, art. 743, providing that all objections to the charge and on account of the refusal or modification of special charges shall be made at the time of the trial, an objection that an instruction on the law of principals was in conflict with a charge on alibi was not available on appeal, where the only objection made to the charge was that no charge at all on principals should be given, because there was no testimony that defendant was acting together with certain other persons or any one else, and no bill of exceptions was taken to the court’s failure to comply with the objection; such conflict not being fundamental error.
    Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.
    C. E. Hamilton was convicted of tbeft, and be appeals.
    Affirmed.
    Simpson & Estes, of Et. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of theft of an automobile of more than the value of $50, and his punishment assessed at three years in the penitentiary.

The uncontradicted testimony shows that in the early part of the night of February 5, 1917, Dr. Cloud’s automobile was stolen from in front of his residence at a certain locality in Ft. Worth, and at the time it was stolen that he had therein certain instruments which he used as a veterinary surgeon and also certain papers; that his said automobile was that night driven to Dallas, and very early the next morning was sold to a certain garage company in Dallas. The automobile was traced down and later recovered. A few days after the theft appellant and others were arrested accused of the theft of it. Soon after his arrest appellant, strictly in conformity with the statute regulating confessions, made and signed a written confession in which he stated where he lived in Et. Worth; that he knew Gordon Brock, Joe Cox, and Otis Runyon; that on Friday evening about 6 o’clock he and Cox went to the home of Brock; they talked a while and then went uptown to a certain pool hall and played pool a while therein, when Runyon came in. The confession proceeds as follows:

“Brock told us. that he knew where he could sell a car. We decided to go out and steal one. We went out on the South Side, but did not get a chance to get one. We came back to town on a Summit avenue car. AYe got oft of this car at about the 1,100 block on West Seventh street. We walked over to West Fifth street and across several other streets looking for a car, but didn’t find one. When we got to Lamar street, we came south. We found a Ford five-passenger car on Lamar between Seventh and Tenth. Gordon Brock went to this car and cranked it and got in it and drove it off. I got in it in the middle of the block. The other two boys, Runyon and Oox, got in the car on the cornel. We drove the car to North Ft. Worth. We had a blow-out and fixed it and drove out the Keller road to where a road turns off to Birdville. We drove to Birdville, and then to Grapevine, and from Grapevine to Dallas. About 8 o’clock the next morning we started out to sell the car. Brock went to a garage to see if he could sell the car. I waited about six blocks up the street. Runyon and Gox waited about three blocks from the garage. Brock came back and said that he had the car sold. He then went to where we had left the ear, which was several blocks away from us. We walked to within about one block, and saw that Brock got’the car all right, and when he came on back toward the garage we came back to where we had been waiting. Brock went to the garage. I have not seen him any more since that time until this morning. When Brock did not come back I walked by the garage, but did not see him or the other boys, so I thought that I had been beat out of my part of the proceeds of the sale. I then came back 'and caught an interurban car and came back to Ft. Worth. I did not know that they had been arrested. I did not know who owned this car.”

The state also proved that on said' road on the route appellant stated in his confession he and the others took said car from Ft. Worth to Dallas some of the surgical instruments and papers of Dr. Cloud were found and fully identified by Dr. Cloud as those that were in the automobile at the time it was stolen. The evidence was ample and clearly sufficient to establish appellant’s guilt.

Appellant has a very meager bill of exceptions objecting to the testimony of Mr. Morelock wherein he stated the number of said automobile which he had bought in Dallas on the morning of February 6th. This was the number of Dr. Cloud’s machine. This testimony was admissible as tending to show the identity of the ear.

He has another like meager bill objecting to the testimony of Dr. Cloud to the effect that at the time his car was stolen he had said surgical instruments and papers therein which he in a day or two afterward recovered, some of them from parties who had found them along the road where said automobile had been driven from Ft. Worth to Dallas, and himself found some of them along the same road. This testimony was clearly admissible as tending to show the identity of the stolen machine, and also to corroborate the appellant in his written confession of the route he and the others went in said machine from Ft. Worth to Dallas.

Testimony of Mr. Bewley that he found some of those papers along said route which were identified, claimed, and delivered to Dr. Cloud was admissible.

The confession of appellant which was introduced by the state showing that some or all of said persons who appellant confessed were with him at the time said automobile was stolen, and also with him in Dallas when the machine was sold early the next morning, was clearly sufficient, together with the other circumstances, to show that some or all of them were principals with him in the theft of said machine. The court therefore did not err in telling the jury who were principals, as defined by the statute, and submitting that issue. So that appellant’s objection to the court submitting any charge at all on the subject of principals is without any merit. He claimed that the evidence did not raise any such issue. As stated, the evidence did raise such an issue so as to make it proper for the court to submit it to the jury.

Appellant claimed that he did not make said confession voluntarily and willingly, but in substance that he was forced to do so, and that he did so because the assistant county attorney and other officers promised him immunity if he would make the confession. The great preponderance of the testimony by several witnesses on this issue was clearly against him. The court, however, told the jury that, if said confession was not voluntarily and willingly made, to wholly disregard it, and not consider it for any purpose.

Appellant and his wife and mother testified to" what would have been sufficient to have established an alibi for him if believed by the jury. The court properly submitted that issue to the jury, and the jury found against him on ample evidence to sustain the conviction.

The record herein is clearly without any reversible error.

The judgment is affirmed.

On Motion for Rehearing.

Appellant’s sole ground for rehearing is that there was a direct conflict between the charge of the court on the subject of principals and that of alibi.

In the original opinion we gave the .testimony which clearly showed that appellant, with three or four other persons, entered into an agreement to steal an automobile and sell it and divide the proceeds; that they went on a hunt for one on the streets of Ft. Worth under that agreement, and found the automobile of Dr. Cloud and stole it; took it to Dallas and sold it, to divide the proceeds. By his confession, copied in the original opinion, appellant showed that, when the four persons who had entered into the agreement stole the car from in front of Dr. Cloud’s, two of them stopped on a corner of the block, he himself went down about the center of the block, and another went to the car, cranked it, and drove it along where he was and he got in it, and continued to where the other two were, and they got in it, and then they took it to Dallas. As a matter of fact, all of them, or at least appellant, was in such proximity to the one who actually cranked the car and started it along so as to be actually present at, and participating in, tbe taking.

Tiie court’s charge on principals was as follows:

•‘(2) All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the true, criterion for determining who are principals is: Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of a common design and intent of all, whether in point of fact all were actually bodily present upon the ground when the offense was actually committed or not.”

It is seen this is a mere general definition of who is a principal. In submitting the case to the jury for a finding the court told the jury in the third division that, if they believed beyond a reasonable doubt that appellant, acting by himself or together with the other three parties or either of them on or about the date alleged, unlawfully and fraudulently took from the possession of the said Cloud the automobile, etc., to find him guilty.

Then in another paragraph he correctly told the jury what was an alibi, and instructed them that, if the evidence raised a reasonable doubt in their minds as to the presence of appellant at the time and place of the commission of the offense, to acquit him. The evidence raising the issue of alibi, as stated in the original opinion, was the testimony of himself, his wife and mother, wherein they testified they were together continuously at his mother’s before, at the time and after the- time said automobile was stolen. It was proper, therefore, for the court to charge on both the subjects, that is, on principals and on alibi. It might be contended under these issues so raised that that part of the charge on principals stating “whether in point of fact all were actually bodily present upon the ground when the offense was actually committed or not” was harmless, and not in conflict with the alibi charge, but, if so, the jury were not misled by any such conflict. But whether that is true or not it is unnecessary to decide, because appellant did not at the time make any such objection to the charge of the court, and did not in the objections he did make call the court’s attention to this matter or this claimed conflict as the statute expressly requires shall be done.

The record shows that the court prepared and gave to appellant’s attorneys in ample time his charge, so that, if there were any mistakes in it, they could point them out to the court by proper exceptions. The only objection they made to the charge was that no charge at all on principals should be given, claiming that the court should not have submitted the issue as he did in the third division of it, because he claimed there was no testimony “showing that the defendant was acting together with Joe Oox, Arthur Brown, Brock, or any one else.” It will thus be seen that what appellant objected to was not to any supposed conflict between the definition of who were principals and the charge on alibi, but what he was objecting to was that there was no testimony at all that authorized a charge on the subject of principals.

Besides this, appellant took no bill whatever to, the court’s not complying, if he did not, with his objection. This was necessary. All he did was to merely make this objection. It is not shown what changes, if any, the court made in its charge, hut apparently by not taking a bill appellant acquiesced in the court’s charge.

Before the amendment of article 743 (old 723) C. C. P., by the act of April 5, 1913 (Acts 33d Leg. c. 138), it required an accused to either make an objection to the court’s charge when erroneous by a proper bill of exception or in motion for new trial. Under that article before it was amended this court had uniformly held, and in a great many cases, that unless a bill of exception was taken to the court’s charge during the trial or by motion for new trial, however erroneous the charge might be, this court could not consider it. In Johnson v. State, 42 Tex. Or. S. 88, 58 S. W. 60, 51 L. R. A. 272, this court, in discussing the said article, held:

“However erroneous the charge of the court may be, appellant having reserved no exception in the court below, either by bill or motion for new trial, they are without remedy at law.”

And again:

“Appellant by neither bill of exceptions nor motion for new trial having complained of the court’s charge, we cannot review any supposed error in the charge, however erroneous it may be; that article 743 (723), Code of Criminal Procedure, gives appellant a perfect, complete, and adequate remedy for the assertion of his rights; and if, through ignorance, neglect, or any other cause, he fails to avail himself of this remedy, we cannot review the matter, and appellant is without remedy.”

This has been held by this court continuously and in a great many decisions since the Johnson Case. See note 23, p. 510, 2 Vernon’s Crim. Stats., where a large number of these cases are collated.

The only difference between the said old article 723 and the amendment of it in 1913 is that the amendment requires an accused to make these exceptions and preserve them by a bill before the charge is read to the jury, and, unless this is done, this court has uniformly held that it cannot consider any objection to the charge made after the trial. Some of these cases so holding are collated in note 64, p. 526, 2 Vernon’s Crim. Stats. This is the holding of this court down to now. Holder v. State, 194 S. W. 165; Grider v. State, 198 S. W. 579. So that, as appellant did not point out to the court below his specific objection and call the court’s attention thereto, which he now makes as to the claimed conflict between said charges, he cannot avail himself now of any such objection. He waived it. Such conflict is not fundamental error.

The motion is overruled.
      ©rsoFor.other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J. PRENDERGAST, J.

text:
    MILES v. STATE.
    (No. 4696.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Criminal Law <&wkey;1092(8) — Appeal—Bills of Exception — Time of Filing.
    Bills of exception preserving facts relating to testimony heard on the motion for new trial, not being filed as they must during the term, must be disregarded.
    2. Criminal Law t&wkey;l099(ll) — Appeal — Statement of Facts — Signing.
    A statement of facts, though in form an agreed statement, but not signed by the prosecuting attorney, bearing a certificate, signed by the judge: “The above examined, found correct, approved, and order filed ás a statement of facts” — is sufficient.
    3. Homicide <&wkey;307(3) — Murder—Sufficiency of Evidence.
    Evidence in a homicide case held insufficient for submission of the issue of murder.
    Prendergast, J., dissenting.
    Appeal from District 'Court, McLennan County; Richard I. Munroe, Judge.
    Wesley Miles was' convicted, and appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for murder and his punishment assessed at 20 years’ confinement in the penitentiary.

The indictment appears regular. There are two bills of exception complaining of misconduct of the jury. The Assistant Attorney General insists that these bills cannot he considered by the court for the reason that they were not filed during the term at which the ease was tried. It appears the term ended on the 2d day of June, 1917, and that the bills were filed on July 26, 1917. That bills of exception preserving facts relating to testimony heard on the motion for new trial must be filed during the term has been frequently held by this court. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, and cases listed in Vernon’s C. C. P. p. 833, note 5. This established rule renders it imperative that bills mentioned under the circumstances be disregarded.

The Assistant Attorney General also objects to the consideration of the statement of facts, and moves to strike it out on the ground that it does not purport to be a correct statement of facts, nor one prepared by the court ujpon the disagreement of the parties. In form it is an agreed statement, but is signed by the attorneys for the appellant only. Attached to it is the following certificate:

“The above examined, found correct, approved, and ordered filed as a statement of facts in this cause, this the -30th day of July, A. D. 1917” — signed by the presiding judge.

Before the signature of appellant’s attorneys is the usual written agreement that the statement of facts contains a correct statement of all the evidence. The case of Serop v. State, 69 Tex. Cr. R. 399, 154 S. W. 557, is one in which a statement of facts similar in all respects to the one in question was held sufficient. The presiding judge having been given by statute the authority and charged with the duty of making up a statement of facts on disagreement of the parties, his signature and certificate attached to the instrument filed as a statement of facts would be presumed to have been made under authority of the statute. In the ease mentioned several decisions of this court are cited supporting it. We therefore are of the opinion that we are under obligation to consider the statement of facts.

The court charged the jury on murder, self-defense, manslaughter, aggravated and simple assault. Appellant insists that the issue of murder should not have been submitted because not raised by the evidence. This contention is made both in exceptions to the charge at the time and in the motion for a new trial.

Both the deceased and the appellant were negroes. The homicide took place in a saloon at West, McLennan county, Tex. Deceased was struck by appellant one time with a pocketknife penetrating the jugular vein, and after receiving the wound deceased went out of the saloon and walked on the street about 200 yards, and died about an hour later. There were six or seven eyewitnesses. The deceased was somewhat under the influence of intoxicating liquor, but not drunk. Appellant and several other negroes were in the barroom handling a puzzle to determine which should pay for the drinks. Appellant had the puzzle in his hands. While he and the others were thus engaged, the deceased, who was not a member of the party, came into the saloon and began a conversation, and the difficulty resulting in the homicide followed in a very short time.

One of the eyewitnesses who was introduced by the state said:

“Wesley Miles and five or six other negroes wore standing in the saloon near the negro bar. I was standing back of the bar, and defendant and his associates were working out a puzzle to see who would buy the drinks. Wesley Miles had the puzzle and was working on it when Earnes Pliggens walked into the saloon. Deceased stopped about 10 feet from where the defendant and the others were standing, • and ad-dressed himself at me, asking me to lend him a mandolin. I told him I had none. He said, ‘You are a damned liar, you have.’ I told him that I had a guitar but did not have a mandolin. I-Ie was drinking some, but did not seem to be drunk. He then turned and walked down to where the defendant and his associates were standing, and said, ‘What are you damned niggers doing down here?’ He walked up to defendant who said, ‘Yon don’t know me.’ Deceased remarked, ‘No; you don’t know me either.’ Wesley Miles then walked from where he was standing up to the front end of the negro bar, and leaned up against the bar with his elbows on it. Deceased walked towards him making the remark, T am going to have to kill some of these God damned West niggers before night.’ At the time of this remark deceased put his hand in his pocket and walked towards Miles. Deceased was in a rowdy and rough mood. Loveless Williams then walked up to them and remarked, ‘You niggers cut this out,’ and caught hold of Miles’ wrist while Miles was still standing against the bar. Williams dropped Miles’ hand and he struck a backhand lick which struck deceased on the neck. Deceased immediately turned and went out the front door. Defendant turned to us and remarked that he might come back again and walked through the back door, a distance of about 20 feet. Deceased was dodging around Loveless Williams and appeared to be trying to get to the defendant. Deceased appeared to be mad and excited. The knife was a small pocketknife, with a blade about two and one-half or three inches long, and had only one handle.”

Another state’s witness, Loveless Williams, said that he was with deceased at another saloon shortly before the homicide, and followed him, and as witness was entering the back door of the 'place where the difficulty took place he noticed the parties in an argument hut did not hear what was said. Appellant was standing with his back to the bar with his elbows resting on it. The deceased was about two steps in front of him facing him. Miles had a pocketknife with the blade in his right hand.

“I remarked to them, ‘You niggers cut out this fussing;’ and then caught hold of the wrist of the defendant in which hand he held the knife. The defendant made no resistance or effort to release his arm or get to the deceased. From all appearances I thought the difficulty was over. I turned his wrist loose and his arm dropped to his side, and kind of grinned and deceased looked out the front door. Almost immediately the defendant raised his arm parallel with his shoulder and struck the deceased with a backhanded lick in the right side of the neck. I never saw deceased make any movement towards Miles. Without moving from his position the defendant made the statement, ‘Let him go; I got the son-of-a-bitch;’ and he looked at his knife Which was about two and one-half or three inches long.”

Another witness describes the position of the parties substantially as above, and said:

“About this time Loveless Williams walked between defendant and deceased and caught hold of defendant’s hand and remarked, ‘Don’t you-boys have any trouble.’ Defendant then dropped his hand and had his knife up his sleeve and turned his back to the bar and defendant raised his arm parallel to his shoulder and struck deceased a backhanded blow in the right side of the neck with a pocketknife which he had in his hand. Defendant said, T got the son-of-a-bitch;’ and I looked at the knife and it had blood on it. I do not know whether or not the deceased had a knife. I did not see him with a knife, and I did not see the defendant open his knife. He did not move from his position at the bar to attack deceased.”

Another eyewitness introduced by the defendant! describes the occurrence substantially as that related by the first witness for the state up to the time the conversation began. We quote from his testimony as follows :

“Deceased walked up and remarked, ‘What are you damned niggers doing back here?’ Defendant answered, ‘You don’t know me.’ Deceased replied, ‘You don’t know me either.’ He then ran his hand down in his pocket and defendant ran his hand in his pocket. Prior thereto deceased said, T bet I have to kill some of these little West niggers before night.’ Williams walked between them and caught defendant’s hand and said, ‘Don’t you boys have any trouble in here.’ Defendant was standing up with his elbows on the bar. He didn’t say anything but let his hand drop to his side, and immediately thereafter raised his hand and struck a backhanded blow in the right of the deceased’s neck with the pocketknife he had in his hand.”

An officer testified for. the state that he went to the scene of the difficulty; found appellant, who made no resistance to arrest. He searched the clothing of the deceased by patting on the pockets with his hands and did not find any weapon or knife. Quite a crowd had congregated and if he had any weapon it could have been moved without the witness’ knowledge. Deceased wore two pairs of trousers, and he states he did not place his hands in the pockets of the under trousers.

Another witness for the defendant testified that she was present when deceased was brought into the restaurant where he died, and that the next morning she found his trousers covered with blood where they had been thrown in a barrel, and found in the pocket thereof a knife.

Appellant testified that he was 25 shears of age, and was a farm laborer; that he was in the saloon with several friends, and was standing close to the bar in the back of the saloon working a puzzle, and deceased walked into the saloon and stopped and had a conversation with Frank Totten about 30 feet of him. The nature of the conversation appellant did not know. The deceased then walked to appellant and the party with him and remarked, “What are you niggers doing back here?” and tried to take the puzzle from appellant’s hand, and appellant remarked, “You do not know me.” Deceased then remarked, “No; you don’t know me either.” Appellant said:

“I then walked up there to the front of the negro bar near the ice box and leaned up against the bar with my elbows on the bar. I then opened my knife and stood there with my back to the bar. I made no effort to advance toward the 'deceased. I opened my knife because I thought that he was looking for trouble and appeared to be very angry. I did not open my knife with any idea of hurting him unless it was necessary to defend myself. I did not curse the deceased or give him any cause to attack me. About the time I got my knife out he thrust his hand down in his pocket and remarked as he started toward me, T am going to kill some of the God damned West niggers before night.’ Loveless Williams stepped between us and pushed him back and then caught hold of my arm, the one in which I held my knife. I did not offer any resistance and when Loveless Williams said, ‘You niggers don’t have any trouble in here boys,’ I thought the deceased had cooled down. I let my hand fall limply to my side and Loveless Williams turned loose my hand. The deceased immediately came back towards me. He advanced close enough for me to strike him without moving out of my tracks. He appeared to be very mad and excited and I thought my knife would stop him. I raised my arm parallel with my shoulder and struck a backhanded stab at him. I did not think that I was cutting him and I thought by doing this I could stop him from advancing on me. I was scared and excited and he kept advancing on me. I did not aim at his jugular vein. I did not have any intention of killing him. I thought he was about to draw his knife. I could see the handle of his knife as he was trying to get it out of his pocket. When I cut him he left. He did not say or do anything to indicate that he was very badly hurt. I did not attempt to follow him, but remarked to my friends that I thought he would come back. When he made the remark that he was going to kill some West nigger before night I thought he meant me, and when he put his hand in his pocket and looked angrily at me, gritting his teeth, I thought he was about to execute his threats. He was a much larger man than I and had the reputation of being a bad negro. The knife that I used was a small size pocketknife with a blade two or three inches long and had a broken handle. They were crowding around me in the bar and I had my back to the bar and I could not retreat or move from my position. I would have run if it had been possible to do so without increasing the danger to which I was exposed. If I killed the deceased I did not intend to do so, and whatever I did,-I did it because I thought the deceased was about to execute his deadly throat against my life and that the danger was imminent. I acted as I did because I could not protect myself in any other way. I went out of the saloon because I thought he might come back. I had had no previous trouble with deceased.”

We believe the trial court should have granted appellant a new trial. Viewing the matter from the standpoint of appellant, deceased had the reputation of a bad negro; he was under the influence of liquor. In the language of the state’s witness, deceased was in a rowdy and rough mood. By the undisputed evidence it is shown he accosted appellant, and when appellant sought to avoid him by changing his position and going to the other end of the bar, he was followed by the deceased with the remark, “I am going to kill some .of the God damned West niggers before night.” He put his hand in his pocket and walked toward appellant at the time he made this remark. There were seven eyewitnesses, according to the testimony of the state’s witness Williams. Appellant testified at the time he struck deceased he (appellant) was back up against the counter and deceased was attacking him; that after Williams had undertaken to separate them deceased came back at him, and was so close to him that he struck him without moving from his position. The fact that appellant did not pursue him and struck a backhanded blow without moving his position is corroborated by several of the witnesses and not contradicted by any of them. The fact that deceased was attacking or making a demonstration to attack appellant at the time the lick was struck is not denied by any of the seven eyewitnesses. Some of them say they did not see the deceased make any demonstration, but none of them contradict appellant’s testimony that he did. Appellant struck with one blow, and with a weapon which is not a deadly weapon per se, and being such was not one from which the intent to kill would be presumed. See article 1149, Vernon’s P. O. Appellant denied such intent. There was no antecedent grudge or threats on the part of appellant. The homicide was in a sudden quarrel, under circumstances sufficient to show adequate cause and produce a state of mind such as to reduce the homicide to manslaughter. If there is evidence raising the grade of homicide above the degree of manslaughter, it consists in the remark attributed to appellant after thé blow was struck and the conclusion of one of the state’s witnesses that appellant’s knife was up his sleeve when his arm fell down. The evidence of the state’s witnesses is conflicting in regard to these circumstances, and neither of them is inconsistent with manslaughter or self-defense.

The judgment of the lower court is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting). I think the evidence was sufficient to establish murder. Manslaughter was properly submitted, as well as aggravated and simple assault and self-defense. A fair and impartial jury of 12 men and the judge who heard all the evidence found him guilty of murder. Their verdict should stand. I cannot consent to a reversal.
      @3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, • J.

text:
    LONG v. STATE.
    (No. 4713.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.
    Rehearing Denied Jan. 23, 1918.)
    1. Appeal and Error <&wkey;690(6) — Appeal-Bill oe Exceptions.
    Bill of exceptions is not sufficient for review of admission of testimony over objection that the question called for a conclusion, and that witness was not shown qualified, neither the question nor the evidence as to qualification being shown.
    2. Criminal Law &wkey;>452(2) — Opinion as to Sanity — Qualification of Witness.
    Witnesses who had known defendant intimately for years may give their opinion that when they arrested' him, immediately after the offense, he was not insane.
    3. Criminal Law &wkey;1091(3) — Appeal—Bill of Exceptions.
    Bill of exceptions to admission of testimony on cross-examination is insufficient, not disclosing that it was not proper cross-examination from what witness had testified on direct, or that it injured defendant.
    4. Criminal Law <&wkey;726 — Trial—Remarks of State’s Attorney.
    The remarks of the state’s attorney, wherein he defied defendant to produce the record, being in reply to, and caused by, the remarks of defendant’s attorney in argument, wherein going outside the record he said that a witness for defendant had not been convicted, are not ground of complaint.
    6. Ceiminal Law <&wkey;385 — Evidence.
    It is not ground of objection to admission of testimony that witness had previously testified differently; but this is mere matter for comment before the jury.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.
    Raymond Long was convicted of burglary and appeals.
    Affirmed.
    McLean, Scott & McLean, of Ft. Worth, and Hart & Patterson and A. L. Love, all of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, • J.

Appellant was convicted of burglary, and assessed the lowest punishment. The undisputed testimony undoubtedly showed that he burglarized a drug store at the time and place alleged in the indictment. It is unnecessary to state the testimony on this point. His defense was that he was insane at the time he committed the burglary, or, as otherwise stated, that at the time he was laboring under such defects of reason from disease of the mind produced by the recent use of morphine, cocaine, bromidia, or some other drug or narcotic that he did not know the nature and quality of the act he was doing, or if he did know, he did not know he was doing wrong. The court correctly submitted this issue to the jury for a finding in a charge which is in no way complained of, and he told the jury that if his mental condition was such as described to acquit him. He was alleged to have committed the burglary on October 2, 1916. He was caught in the house at the time and arrested and imprisoned. The grand jury indicted him on October 11th. He must at once have been arrested if he was not in custody when indicted. This case was not tried until May 21, 1917. He sued out no process for any witnesses until May 11th, which was returned by the sheriff on May 20th, showing that the two witnesses May Tyson and Raymond Ramsey were not found. The evidence shows that diligent search was made for these witnesses, but they could not be found and were absent out of the county, and maybe out of the state; and there was no showing that they could ever be had. No reason whatever is stated why process for these two witnesses was not issued long before' it was. Doubtless if it had been they could have been subpoenaed and required to attend. Therefore the court did not err in overruling his motion for a continuance on the ground of the absence of these two witnesses.

Mr. Anderson, the owner of the drug store burglarized, testified. The bill avers:

“The said witness in answer to questions, propounded him by counsel for the state testified that in his opinion as a pharmacist, and from his observation of habitual users of narcotics, the defendant, at the time he was arrested in witness’ store, was not under the influence of any character of narcotic to the extent that he did not know right from wrong.”

His sole objections were because “said question called for a conclusion, and that the witness had not been shown to be qualified to answer it.” What questions were asked the witness are neither shown by the bill nor otherwise. Neither does the bill in any way show what testimony the witness gave which qualified him or failed to qualify him to testify as he did. His objections were mere objections, and not approved by the court as facts.

By another bill it is shown as follows:

“While the witnesses Bob Thompson and John Chapman were on the witness stand they each testified, in answer to questions propounded to each of them by counsel for the state, that in their opinion the defendant was not insane at the time he was arrested in this case”; that this was admitted over his objection “because the witnesses had neither shown themselves to be qualified to testify regarding this condition of the defendant’s mind,” and other objections.

The court qualified the bill by stating:

“That each of said witnesses testified that [he] had known defendant intimately for 12 oils years, and further that each had come in contact frequently and arrested and handled persons insane, and also those under the influence of narcotics, and, guided by such facts, they testified that in their opinion defendant, at the time they' arrested him immediately after the commission of the offense, was not insane, and that he then knew right from wrong.”

It will thus be seen that appellant’s objection was a mere objection, not approved as a fact by the judge. This testimony, under the circumstances, was admissible. Jordon v. State, 64 Tex. Cr. R. 187, 141 S. W. 786; Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; Kirby v. State, 6S Tex. Cr. R. 73, 150 S. W. 455; Brice v. State, 72 Tex. Cr. R. 221, 162 S. W. 874.

As to the action of the court in permitting all of said witnesses to testify as they did, and what is shown by these bills, what was said by Judge Morrow in the recent case of Holder v. State, 194 S. W. 164, is applicable, and is here quoted:

“On the question of the complaint that the witness did not show himself qualified to give the testimony, the rule is that a witness must nave some special practical knowledge of the subject in order to enable the court to determine his competency, and the determination of this question is largely in the discretion of the trial court. Wharton’s Crim. Ev. §§ 408, 409, and cases cited in notes. 1 Wigmore on Ev. § 561, in treating the subject, says: ‘In most jurisdictions it is repeatedly declared that the decision upon the exceptional qualification of witnesses should be left to the determination of the trial court’ — with the conclusion that it is only in cases where this judicial discretion has been abused that the trial court’s decision will be disturbed. In Bratt v. State, 38 Tex. Cr. R. 123, 41 S. W. 622, the rule as approved by this court is stated as follows: ‘As a general proposition, the qualification of a witness to testify as an expert is a question for the trial court, whose decision is not generally reviewable on appeal.’ The question was discussed by this court in the case of Dane v. State, 36 Tex. Cr. R. 84, 35 S. W. 661, where the court says: ‘It is hard to lay down any rule as to who may or may not be qualified to testify as an expert. * * * But it would appear that, where a person shows himáelf totally disqualified as an expert to give an opinion upon a matter, his testimony should be excluded.’ In view of these authorities, we cannot say the court committed error in permitting the witness to give the testimony complained of.”

And he further stated in the same case, in passing on the sufficiency of the bill when such objections were made as in this instance:

“This court * * * must test the question by the conditions and facts stated in the court’s explanation to the bill, and tested by these, under the authorities cited above, holding that the court’s ruling upon the qualification of an expert witness will only be reviewed when it appears that his discretion- has been abused, we must hold that the bill shows no error.”

Appellant has another bill wherein he claims that, while the witness, Dr. Fyke, was on the stand testifying in his behalf, he was asked by the state’s counsel on cross-examination “how many times he (witness) had been charged in the courts of this county with unlawfully and fraudulently prescribing narcotics,” to which question and the answer, to the effect that he had -been so charged about 10 times, he objected on the ground that there was better evidence of it than the questions asked, the documents themselves charging the offense, and that the same were not offenses involving moral turpitude, and that if there was such a case he had been duly acquitted. This is the substance in full of the bill. It will be seen that the bill is wholly insufficient to show any reversible error. It in no way discloses what the testimony of the witness was so that it could be told that by asking the question and requiring an answer any injury whatever occurred to appellant, nor that the question asked and the answer given were not proper cross-examination of him from what he had testified on direct examination.

In another bill it is shown that appellant’s attorney in arguing before the jury went out of the record to say that Dr. Fyke had not been convicted, and the state’s attorney thereupon defied appellant to produce the court docket. The bill shows that the county attorney’s remarks were in reply to, and caused by, appellant’s attorney’s discussion on the subject. Where this is the case, this court has uniformly held that appellant has no just ground of complaint. 1 Branch’s Ann. P. C. § 363, citing a large number of cases in point.

The only other bill is of some of the testimony of the state’s witness, Dr. J. H. McLean. It is unnecessary, we think to state this bill fully. It seems the ground of appellant’s objection to the testimony of this witness was that the witness had previously testified differently, as he claimed, from the testimony he now objected to. This would be no ground of objection to the. testimony of the witness, but would be a matter of comment before the jury as to the difference, if there was any, in the witness’ testimony

The judgment is affirmed.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 200 S.W. — 11 ‘ .


text:
    ROBINSON v. STATE.
    (No. 4695.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.
    On Motion for Rehearing Jan. 16, 1918.)
    1. Burglary <&wkey;20 — Indictment—Sufficiency — “Private Residence.”
    Indictment alleging that accused unlawfully and by forcé, threats, an-d fraud and at night burglariously and fraudulently broke and entered the private residence of one named, was not defective under Pen. Code 1911, art. 1305, defining burglary of residence at night, and article 1314, defining a private residence as a building or room actually used as a dwelling place, in failing to allege that the private residence was a building or room.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Scries, Private Residence.]
    2. Burglary <&wkey;19 — Indictment — Sufficiency.
    An indictment charging that accused broke and entered a residence with the intent to take, steal, and carry away was not defective as charging the intent to steal after the entry, and failing to charge a previously formed intent.
    3. Indictment and Information &wkey;>110(18) —Indictment—Sufficiency.
    An indictment for burglary was not defective by using the word “steal” in place of the statutory word “theft.”
    4. Burglary <&wkey;19 — Indictment — Sufficiency.
    An indictment for burglary was not defective in failing to, describe the property of value, so that its value could be judicially known by the court or estimated in any manner.
    5. Burglary ¿=23 — Indictment — Sufficiency.
    An indictment for burglary was not defective as failing to charge that the property was in the possession of the owner of the residence which accused was charged with breaking and entering.
    6. Indictment and Information <§=125(19) —Sufficiency.
    An indictment for burglary, charging that accused unlawfully and by force, threats, and fraud and at night burglariously and fraudulently broke and entered a residence, was not duplicitous as charging both burglary of residence at night and another breaking and entering of a house.
    7. Criminal Law <&wkey; 1120(4) — Appeal—Record— Sufficiency.
    Bill of exceptions to admission of accused’s written statement is insufficient if it fails to disclose what the statement was.
    8. Criminal Law <&wkey;531(3) — Evidence—Confessions — Admissibility.
    No error appears in admission of written confession on its face filling legal requirements when the assistant county attorney before whom it was made testified that proper legal warning was given, and that no promise or threat was made, and that the confession was freely and voluntarily made,_ especially where the court submitted to the jury the question whether the confession was freely and voluntarily made.

      9. Criminal Law <&wkey;U20(4) — Appeal—Scope of Review — Preservation of Exceptions.
    Bill of exceptions to state’s offer to prove custom of prosecuting witness as to closing his door each night is insufficient to show error, where it fails to show what his testimony was.
    10. Criminal Law <&wkey;720(2) — Appeai^Scope of Review.
    Bill of exceptions to statement of prosecuting attorney that evidence showed certain facts, when in fact such facts were covered by counsel’s agreement as to what absent witnesses would testify to, does not show error, where the court submitted to the jury what the agreement was.
    11. Criminal Law <&wkey;1091(9) — Appeal—Bill of Exceptions.
    Bill of exceptions to instruction that if defendant did not voluntarily make a confession, it could not be considered, or if the jury had a reasonable doubt whether he made it voluntarily, it could not be considered as qualified by the court, “that no exception was made to this charge at the time, and no special charge was asked, and the charge is all right anyhow,” shows no error.
    12. Criminal Law <&wkey;1120(4) — Appeal—Bill of Exceptions.
    Bill of exceptions to testimony that private residence was a house and a room in a house shows no error, where it does not contain the evidence the witness gave on the subject.
    13. Burglary <&wkey;41(l) — Breaking — Evidence-Sufficiency.
    Evidence held to sustain conviction of burglary of a private residence at night.
    On Motion for Rehearing.
    14. Burglary <&wkey;28(l)— Indictment — Variance.
    Where indictment for burglary of residence at night could in no case have sustained conviction for any other burglary whatever, and the evidence showed only a burglary of a private residence at night, there was no variance.
    15. Burglary <&wkey;28(5) — Indictment and Proof — Variance—“House. ’ ’
    Where indictment alleged burglary of private residence at night, proof was admissible to show that such private residence was a building or a room, in view of Pen. Code 1911, art. 1309, defining a house as any building of whatever material.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, House.]
    16. Criminal Law <&wkey;1133 — Appeal—Preservation of Exceptions.
    One convicted of burglary c-ould not for the first time on motion for rehearing contend that the agreed evidence of two state’s witnesses who were absent was inadmissible on the ground that ho was deprived of being confronted by the witnesses, where he had made no objection on the trial, took no bill of exceptions, and did not mention such contention in his motion for new trial.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    James Robinson was convicted of burglary of a private residence at night, and he appeals.
    Affirmed. On motion for rehearing. Overruled.
    James E. Yeager, of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the" State.
   PRENDERGAST, J.

Appellant was convicted of the burglary of a private residence ■ at night, and his punishment assessed at the lowest prescribed by law.

The statute describes this offense as constituted “by entering a private residence by force * * * at night, * * * with the intent * * * of committing a felony, or the crime of theft” (article 1305, P. C.), and article 1314, to this effect:

“The term ‘private residence’ * * * shall bo construed to mean any building or room occupied and actually used, at the time of the offense, by any person or persons as a place of residence.”

The indictment was in two counts. The first, under the articles just stated, and the other for burglary of a house in daytime. The qourt submitted the first, and did not submit the second at all. This practice of indicting in different counts when the transaction is the same for nighttime burglary of a private residence and daytime burglary of a house has been many times commended and held proper by this court. Jackson v. State, 71 S. W. 280; Martinez v. State, 51 Tex. Cr. R. 584, 103 S. W. 930; Johnson v. State, 52 Tex. Cr. R. 203, 107 S. W. 52; Hawthorn v. State, 62 Tex. Cr. R. 114, 136 S. W. 776; Fox v. State, 62 Tex. Cr. R. 430, 138 S. W. 413.

The count of the indictment submitted, in addition to other necessary requisites of any indictment, alleged that on or about February 24, 1917:

“One James Robinson did unlawfully, by force, threats, and fraud, and at night, burglai-i-ously and fraudulently break and enter a private residence then and there occupied and used by Will Holston as a place of private residence, without the consent of the said Will Holston, then and there with the intent on the part of the said James Robinson fraudulently to take, steal, and carry away from, and out of, said private residence corporeal personal property then and there in said private residence being and belonging to the said Will Holston, from the possession of the said Will Holston and without his consent, with intent to deprive the said Will Holston, the owner of said corporeal personal property, of the value thereof, and with intent to appropriate to the use'and benefit of the said James Robinson.”

Appellant made no motion to quash the indictment, but after the trial he did make a motion in arrest of judgment claiming the indictment was fatally defective on these grounds: (1) It failed to allege that the private residence was a building or room. (2) It charged the intent to steal after defendant entered the private residence, and did not allege that he had formed the intent to steal or commit the crime of theft before entering the'house. (3) It failed to charge defendant with intent to commit the crime of theft, but used the word “steal,” when the statutory word is “theft.” (4) It failed to charge defendant with intent to commit theft in that it did not describe any property of value, or so that its value could be judicially known by the court or estimated in any manner. (5) It failed to charge that the alleged property was in the possession of Holston. (6) It was duplicitous in that it charged a nighttime burglary and a daytime burglary in the same count in that it charged defendant with breaking into a house, if a private residence is a house, with the intent to commit theft in addition to the crime of burglarizing a private residence. We see no necessity of discussing these various objections to the indictment. We have copied it above, and a comparison thereof with the statute shows that the indictment was sufficient against any and all of his objections.

By appellant’s first bill of exceptions he objected to the introduction of what he alleges was a written statement signed by appellant, on the ground that the state had failed to show that it was made freely and voluntarily after having first been cautioned that it might be used against him, and explaining the nature of the offense he was charged with, he being at the time in jail and in custody of an officer. The bill in no way discloses what the testimony -was on the subject, nor did it disclose what the statement or confession was. On that ground alone the bill is insufficient.

The court before approving the bill qualified it as follows:

“The evidence showed that defendant was not in jail but in the county attorney’s office at the time he made a statement and confession which was introduced in evidence. The assistant county attorney before whom the confession was made testified that the proper legal warning had been given defendant before he made his confession, and that no promise or threat was made to induce defendant to confess, and that his statement about the charge against him was freely and voluntarily made; but in view of the defendant’s testimony the court submitted to the jury the question of whether or not the confession was freely and voluntarily made. The written confession on its face filled the requirements of the law.”

This bill shows no error.

His next bill alleges that the state offered to prove by Holston his custom and habit as to shutting the door before retiring each night, and that he objected on the ground that it was not legitimate testimony. I-Ie says the court overruled the objection and permitted the witness to testify; but the bill in no way shows what the testimony of the witness was. This bill of itself is insufficient to show any error. But the court before approving it qualified it thus:

“Said witness had testified that be thought the door was closed; on crossi-examination he recalled that probably on one occasion be had left the door open, and the state then ask him if it was.his practice to close the door at night. If there was any relaxation of the rule in this instance it could not have been harmful to the defendant, for in his confession he admits that he ‘pushed the backdoor open and got the flour and meal’ out of the house he was charged with entering.”

I-Iis next bill alleges that during the argument of the state’s attorney he said, “The evidence shows that defendant was sitting on the front steps of Will Green, and saw Will Holston when he brought the groceries home;” that he promptly objected, claiming that the evidence did not show that fact; that the county attorney then said, “Well, it was agreed to before the trial began.” He again objected, and the court overruled both objections, to which he excepted. The court before approving' that bill qualified it thus:

“The county attorney and defendant’s attorney had some agreement as to what two absent witnesses for the state would testify to if present. During the closing argument of the state defendant’s attorney interrupted him with an objection that the evidence did not show that a statement made by the county attorney about the testimony of the absent witness was in the record. The county attorney replied that, ‘Well, we agreed that they would so testify if they were present.’ I do not remember just what the details of the agreement were; but I do know that in order to accommodate defendant’s attorney the state agreed to go to trial if he would admit what two witnesses upon whom subpoenas had not been served would testify if present; the county attorney contending that the agreement was that Will Green and Slattie Green, two negroes, would, if present, testify that 'the defendant, who was and is also a negro, was at their home at the time that Will Hol-ston, who lived next door to said Greens, came home in the afternoon, bringing with him some groceries; that the defendant saw said Will Holston when he came home, and that the defendant remained at their home till some time after midnight, when he got up and told them he was going home. The defendant said part of the statement was agreed upon, but that it was not agreed that defendant saw said Will Hol-ston when he came to his home. The agreement being oral, the court could not say just what was agreed upon, but left the matter to the jury.”

As thus qualified, it shows no error.

The whole of the next bill, after the style and number of the cause, is:

“Be it remembered that upon the trial hereof the court instructed the jury as follows: ‘If you believe from the evidence defendant did not voluntarily make the written statement which has been introduced in evidence against him, you wifi, not consider the same as evidence against Mm, or if you have a reasonable doubt thereof you will not consider the same,’ ” which is signed by appellant’s attorney.

The court qualified this by stating:

“That no exception was made to this charge at the time, and no special charge was asked, and the charge is all right anyhow.”

This bill ■ shows no error.

His last bill, after the style and number, is:

“Be it remembered that upon the trial hereof the state offered to prove by Will Holston and others that the alleged private residence was a house and a room in á house, and defendant objected on the grounds that the indictment did not allege that it was a house or a room in a house, the court overruled the objections, and defendant then and there duly excepted to the' court’s ruling, and here now presents this his bill of exceptions,' and prays that it be allowed and ordered filed as a part of the record in this cause,” which was signed by his attorney.

This bill does not show what evidence Hol-ston gave on the subject, and it presents no error.

The only other question appellant presents, necessary to state, is his claim that the testimony failed to show that the door to the alleged residence was closed at the time he entered and stole Holston’s property. We will give the testimony in full on this subject.

On cross-examination by appellant of the state’s witness Holston he testified:

“No, sir; X am not in the habit of leaving that door open. I did not leave that door open on purpose; it might have been left open occasionally. Occasionally I left the door open; yes, six'. I could not swear that the door was shut the night before when I went to bed. I usxxally shut it. It was open that morning. I usually shut it. It was open the next morning when I got up. I could not say whether it was shut or not.”

On redirect examination he testified:

“I am not in the habit of leaving the kitchen door open. I usually shut my door when I go home. I do not recall any other time during the last six months that I left that door open. Just like anybody else, I don't lock my doors; once in a while I just close them. I do not really know, but I think I closed the door that night. Of course after I was asleep I do not know. It was open the next morning. I say, I thought I closed it. I couldn’t say that I did, but then I thought I closed it. I think I closed it, because I usually close it every time I go to bed.”

On examination by the court he testified:

“That door has no catch on it. You just shut it. It hasn’t got no latch on it at all. We have a string inside there. We have a screen door there. We put a string on it and tie it sometimes when we want to shut the screen door. That screen door has no fastening at all; no more than a regular outfit which just shuts and a knob. The catch on the door has been broke. I do not know whether it was latched or not, but the catch has been broke on it. It was out of order once or twice. The door stays shut when I shut it because it is kinder tight. It shuts tight. We shut it sometimes with a string, but it shuts tight. I just pull the string through the crack and shut it, and that is what holds it most of the time.”

In said confession or statement, which was clearly proved up, as stated by the court, and which was unquestionably in terms prescribed by the statute, appellant said:

.“I was gambling with Will Holston Saturday night at a vacant house next to his house on South Fifteenth street. We were dealing monte. Galbert Wilson, John Wilson, Sam, and Quince had been there playing monte, and a lot more whose names I don’t know. Will Holston sold me a sack of flour and a sack of meal for $1.90. I gave him the money and won it back from him. He said when I got ready to go home I could go to his house; that he would leave the back door open, and I could get the flour and meal. He left the game before I did. I went by his house. I saw him in bed asleep. I pushed the back door open and got the flour and meal where he said it was. I went out, closed the door, and went home. It was a little after 12.”

The state reintroduced said witness Hol-ston, who swore positively that he did not play monte with the persons or any of them named by appellant, and that he never played any kind of game with appellant; that he (witness) did not win any money from him (appellant), and that appellant did not win any money from him (witness), and he did not sell Mm the sack of flour and meal for $1.90; that nothing like that ever occurred between him and appellant.

Appellant himself testified that he gambled at the time with the parties stated in his confession, and in fact reiterated on this point what he had stated in his confession. He stated that Holston had left the door open just like he said he would, and that he went in and got the stuff where he had it all fixed up. And further:

“The door was already open when I went in there. I just went in and got the stuff and came on out, and left the door just like it was, open. If I said in the confession that I pushed the door open, it was not true; the door was already open.”

On cross-examination he swore:

“The reason that confession says I pushed the door open there, that is when he [Mr. Woods] asked me did I push the door open. I might have told him — he was talking to me so fast— yes, sir; I signed the statement. He told me to sign it. I thought I had to do what he said do. I read the statement. He did not read it over to me. I did not notice it good when I signed #t. I did not notice that ‘pushed’ in there. It is true that I went in the house. That charge is true. It is true that I got the meal and the flour and the baking powder. I got it out of this house where Will Holston lives. I got it in the nighttime between 1 and 12 o’clock.”

Mr. Woods, assistant county attorney, who took the confession, and. Mr. Jenkins, who was present and with Woods witnessed it, both swore in effect that the confession was explained and read to appellant, and that he himself read it before he signed it, and that appellant at the time stated what was contained in said statement or confession.

The testimony shows that the evening before the alleged burglary that night, Holston bought some flour, meal, peas, and a can of baking powder; that he took them to, and placed them in, Ms residence; that the next morning all these articles were gone, and he told an officer about it, who succeeded in recovering for Mm all the articles, except a part of the peas; that he got back only a part of them. Appellant denied getting the peas.

The court, in Ms charge, required the jury to believe beyond a reasonable doubt all the essentials to said offense before they could convict appellant. , In addition he told the jury that if the said Holston sold the flour, meal, and baking powder to appellant, and told him he would leave the door, open, and he could call, enter, and get the goods, and that in direct pursuance of such permission he did enter said house and get said provisions to acquit Mm, or if they had a reasonable doubt thereof to acquit him. Again he specially charged the jury thdt:

“If you believe from the evidence that the door to said Will Holston’s residence was open, and the defendant entered said residence and stole said groceries, or if you have a reasonable doubt thereof, you will acquit him.”

He also charged the burden of proof was upon the state, the presumption of innocence, and the reasonable doubt.

On the whole, we think that the evidence on this point was sufficient to sustain the conviction.

The judgment wiR therefore be affirmed.

On Motion for Rehearing.

Appellant presents for rehearing some of the same questions discussed and decided against him in the original opinion. Nothing new is presented thereby; it is unnecessary to again discuss them.

However, he contends that the court misunderstood his contention about the insufficiency of the indictment. He states that he did not contend that more than one count should not b.e contained in the indictment. It was not intended in the original opinion to so state his contention. In the original opinion the grounds on which he claimed the indictment was bad were accurately stated. What he contends now is that the count under which he was convicted of the burglary of a private residence at night contained all the ingredients to constitute ordi^ nary burglary; that is, burglary not of a private residence. His contention may be further stated from his motion as follows:

“That if a private residence is a house within the meaning of the statute, then if, under the evidence, this house should not have been Will Holston’s private residence, but had been shown to be Will Holston’s other kind of a house, and defendant convicted therefor, then this one count would have contained two indictments in one count. * * * The court only instructed as to burglarizing a private residence at night, but the question is: Suppose the evidence had shown that it was not a private residence, could a conviction have still been had for burglary at night, or for burglarizing a house by breaking in the daytime? Appellant contends that such conviction could havé been had if the evidence had been such as to sustain it.”

The count under which appellant was convicted, which was quoted in the original opinion, avers the burglary of a private residence at night solely. It does not charge the burglary of any other house other than a private residence at night. Under it he could not have been convicted for any other burglary whatever.

In Curtis v. State, 76 Tex. Cr. R. 661, 176 S. W. 569, it was shown that appellant therein had been previously indicted and placed on trial under an indictment charging him with an ordinary burglary by force, etc., without alleging it was burglary of a private residence in the nighttime, whereas the one under which the conviction therein against him was obtained charged him with the burglary of a private residence at night. This court, through Judge Davidson, in that case held:

“Upon the first trial, after proceeding with the trial before the jury, in the introduction of evidence, it is to be supposed from the pleadings it was discovered that the house was a private residence; the burglary being committed at night. Appellant could not, therefore, be convicted under a charge of ordinary burglary. Burglary of a private residence at night is a distinct and different offense, made so by the statute expressly. In other words, under an indictment charging ordinary burglary a party cannot be convicted for the burglary of a private residence at night; nor can he be convicted, if the charge is for burglarizing a private residence, for the ordinary burglary.”

This has been the holding of this court uniformly, and in many cases.

In 2 Branch’s Ann. P. O. p. 1290, he lays down these correct propositions of law applicable heroin: (1) If the count on which defendant was convicted is for ordinary burglary, and the proof shows a burglary of a private residence at night, the variance is fatal; the two offenses being separate and distinct — citing Fonville v. State, 62 S. W. 576; Martinus v. State, 47 Tex. Cr. R. 528, 84 S. W. 831, 122 Am. St. Rep. 709; Mays v. State, 50 Tex. Cr. R. 391, 97 S. W. 703; Rodgers v. State, 59 Tex. Cr. R. 146, 127 S. W. 834. (2) Where the proof shows a burglary of a private residence at night, a conviction for ordinary burglary will he set aside; the two offenses being separate and distinct — citing Jones v. State, 47 Tex. Cr. R. 128, 80 S. W. 530, 122 Am. St. Rep. 680, and Martinus v. State, 47 Tex. Cr. R. 528, 84 S. W. 831, 122 Am. St. Rep. 709.

The 'uncontradicted evidence herein shows that the house burglarized was the private residence of Holston, and that the burglary was committed in the nighttime. So that, there is no merit at all in appellant’s contention.

Our statute prescribing the offense of •burglary of a private residence at night does not use the word “house” in designating the private residence, but uses alone “private residence.” The indictment in this instance followed the statute in averring the burglary of a private residence. However, article 1309, P. C., defines what is meant by a house as “any building or structure erected for public or private use, * * * and of whatever material it may be constructed.” In Favro v. State, 39 Tex. Cr. R. 453, 46 S. W. 932, 73 Am. St. Rep. 950, this court, in another opinion by Judge Davids on, held that a humble structure built of odd planks and boxes and covered with a wagon sheet, and used by the occupant as his residence, was a house within the meaning of the burglary statute, among other things holding therein:

“Such a structure is as much under the protection of the burglary statute as would be a structure entirely made of wood or stone, brick or granite. The law‘does not mention the character of structure or the material of which it shall be made. It protects the humble tenant in his tent as well as his more fortunate neighbor in his palace.”

There is, therefore, no merit in appellant’s further contention, in substance, that because the indictment alleged that appellant burglarized the private residence of Holston at night, proof was not admissible that such private residence was a building or a room. The uncontradicted evidence showed that the private residence of Holston, which appellant burglarized at night, was an ordinary house in which there was a room or more than one room.

For the first time in this court, after even the cause had been submitted on appellant’s motion for rehearing, he contends that the agreed evidence of the two state’s witnesses, who were absent, was inadmissible on the ground that he was deprived of being confronted by the witnesses by the agreement made between his and the state’s attorney as to what their testimony would be, and contends that the attorneys could not waive the sanctity of their testimony under oath. The record shows that the testimony of these two witnesses was agreed to by the attorneys in open court when appellant was present and heard it, and that it was stated to the jury as the testimony of these-two witnesses. Appellant did not then or at any other time during the trial make any objection whatever to the admission of this agreed testimony of these witnesses. He took no bill thereto; he did not make that a ground of the motion for a new trial, and, as stated, for the first time at this late date makes said objection. This presents no ground for a rehearing or a reversal. Eoff v. State, 75 Tex. Cr. R. 245, 170 S. W. 707; State v. Levy, 262 Mo. 181, 170 S. W. 1114. This court has also so held’ in other cases.

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

      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    LANCASTER v. STATE.
    (No. 4752.)
    (Court of Criminal Appeals of Texas.
    Jan. 16, 1918.)
    1. Criminal Law <&wkey;S69(15) — Admissibility of Evidence — Other Offenses — Identification.
    In a prosecution for robbery from the person, evidence regarding another similar robbery on the same night held inadmissible for purpose of identification of accused.
    2. Criminad Law <&wkey;700 — Argument of Counsel.
    In a criminal prosecution, the prosecuting attorney’s challenge to accused’s counsel to submit the case without argument disapproved.
    Prendergast, J., dissenting.
    Appeal from District Court, Milam County; John Watson, Judge.
    J. F. Lancaster was convicted of robbery; and appeals.
    Reversed and remanded.
    J. H. Evetts, of Temple, and Chambers & Wallace, all of Cameron, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of robbery; his punishment being assessed at six years’ confinement in the penitentiary.

The state’s case, in brief, is that appellant and another party, in the town of Cameron, Milam county, committed robbery upon the person of Dave Watson. It was at night near the Santa Fé depot. The two parties who the witnesses testify committed the robbery 'upon them were identified by such facts and circumstances and descriptions as the two parties could give, they all being strangers to each other. From one of the parties was taken some money and a pocketknife described in a particular way. Later on, and during the same night, the appellant and his companion were arrested, and on the person of appellant was found a knife which was identified by one of the parties who claimed to have been robbed near the Santa Fé depot. It is unnecessary to go into a detailed statement of these two witnesses. They gave as accurate description as perhaps they could have done under the circumstances of the two parties they claimed to have held them up. Later during the same evening, between the time of the alleged robbery at the Santa Fé depot and their arrest, two other parties were introduced as witnesses, claiming also to have been held up by two men and robbed. This was something like a half hour after the first alleged robbery. This evidence was introduced over the objection of appellant, as being an independent offense and in no way connected with the first alleged robbery. Various objections were urged aud overruled, and after the testimony had been introduced appellant again urged by a written charge that the testimony be withdrawn from the jury. It is unnecessary to take up these different grounds of objection and reasons assigned. The court seems to have admitted it upon the theory of identity. We are of opinion that the evidence was not introducible upon such theory under the facts of the case. The two robberies were in no way connected with each other, and the fact the second robbery occurred did not serve to identify these parties as the parties who committed the first robbery. There was no fact or circumstance which undertook to connect the two transactions, except the fact that they occurred on the same night, and that there was evidence showing some similarity in the appearance of the two robbers in both cases. This did not servo to identify appellant as being the robber in the first instance. This matter has been the subject of quite a number of decisions, and it is not the purpose here to review the authorities or discuss the malter at length. See Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9; Herndon v. State, 50 Tex. Cr. R. 556, 99 S. W. 558; Barnett v. State, 50 Tex. Cr. R. 541, 99 S. W. 556; Saldiver v. State, 55 Tex. Cr. R. 178, 115 S. W. 584, 16 Ann. Cas. 669.

There is a bill of exceptions reserved to some remarks of the prosecuting officer. Without discussing the matter,- we believe this will not occur upon another trial. There was no necessity for these statements. They were, in substance, that the district attorney did not see any use in arguing cases on such facts to the jury, and that there had been some conversation between himself and counsel for appellant looking to the submission of the case without argument, and he now challenged defendant’s counsel to submit the case to the jury without argument. Such matters should not occur. The Constitution and law guarantees the defendant may be heard by himself or counsel, or both. This right is guaranteed him unimpaired by any criticisms or remarks of the character indulged. He may exercise the right to argue or not to argue. With this the state has no concern. It is a matter purely within the discretion of appellant and his counsel, or both. This may have had some effect upon the jury, and was not warranted. We trust this character of argument will not be again indulged.

The judgment is reversed, and the cause remanded.

PRENDERGAST, .T.

(dissenting). The witnesses herein who were robbed could but meagerly identify appellant and his companion. They, however, took a knife from one of them. The other party, whom they robbed just a very short time afterwards, could and did positively identify them. Just after the second robbery they were arrested, and this knife found on them. Therefore clearly the second robbery was admissible to identify them. The case should be affirmed.

I dissent.
      <g=?>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes