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    SHARP v. STATE.
    (No. 4348.)
    (Court of Criminal Appeals of Texas.
    March 14, 1917.
    On Motion for Rehearing, May 2, 1917.)
    1. Criminal Law <&wkey;556 — Confessions — Effect.
    Where the state puts in a confession, some of which is exculpatory, the state is bound by the confession, unless it disproves the exculpatory testimony.
    2. Criminal Law &wkey;>535(l) — Sufficiency of Evidence — Uncorroborated Confession.
    An uncorroborated confession of guilt without proof of the corpus delicti will not warrant a conviction.
    3. Criminal Law <&wkey;538(3) — Uncorroborated Confession — Murder—Sufficiency of Evidence.
    Defendant’s uncorroborated confession, obtained by district attorney after three interviews, stating that after getting off from a train at night he was chased by an officer after being ordered to stop, and that he fired one shot at the officer, which proved fatal, and continued his flight, held insufficient to justify conviction for murder carrying with it the death penalty, since the defendant was not shown to have been doing any illegal act and the state was bound by his confession, which precluded the death penalty.
    On Motion for Rehearing.
    4. Criminal Law &wkey;>530 — Confessions—Officers as Subscribing Witnesses.
    Officers are inhibited from becoming subscribing witnesses to confessions only when the accused signs it by making his mark.
    5. Criminal Law <&wkey;736(2) — Voluntary Nature of Confession — Question for Jury.
    Where a confession was written and signed by defendant in the presence of the district attorney only and was later attested by other officers after the confession had been re-read to defendant, the question of its voluntary character was for the jury.
    6. Homicide <&wkey;7 — Responsibility of Defendant.
    In a prosecution for murder, the defendant is held responsible for what he does, his purpose for doing it, and the intent and motive moving him to do the act.
    7. Criminal Law c&wkey;ll33 — Appeal and Error-Rehearing Matters Not Contained in Record.
    Upon appeal from a criminal prosecution, the court will pass upon the record as it is presented, and will mot consider matters stated in motion for rehearing not contained in record.
    Prendergast, J., dissenting.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Houston Sharp was convicted of murder, and appeals. Reversed and remanded.
    Motion for rehearing overruled, and former opinion sustained.
    Leslie Spoonts and Harry C. Gerlach, both of Houston, for appellant. John I-I. Crooker, Grim. Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, and E. B. Hendricks, Asst; Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was given the death penalty under a charge of murder for the killing of John Cain, a police oliicer of the city of Houston.

The state’s case may be substantially stated as follows: Cain was a policeman on duty in his allotted beat on the night of the homicide. About 3:30, or a few minutes later, in the early morning, a policeman was heard to exclaim, “Stop! I am an officer;” and almost immediately a shot was fired. One or two policemen, hearing the exclamation and shot, went to the scene, and found deceased, one of them testified, “shot ■ through and through.” He was shot in the front, the ball emerging from the bach. His statement at the time was that he was shot by a negro whom he described as being yellow and wearing a mustache. The district attorney introduced a confession taken by himself from the defendant while a prisoner under burglary convictions in the penitentiary at Huntsville. It seems the district attorney went to Huntsville in company with two or three of the constabulary or policemen of Houston, and talked with the defendant twice, leaving him with the statement that if he wanted to talk with him later he could send for him. Some time later he did send for him, as testified by the district attorney, and made a statement to him in writing. Pie says the statement was voluntarily made after due caution. There was no one present at the time except he and the defendant. Shortly after this statement was made he and appellant went to another part of the penitentiary building, and the parties whom he had taken with him from Houston and three others witnessed the statement. Two of them were police officers, and under the statute would not be recognized as attesting witnesses. Neither would the policemen from Houston be so recognized. Mr. Teague stated- he was warden of the penitentiary and witnessed it, and Mr. Binford, it seems, would hardly be classed in the category of peace officers. They testified they would not sign as attesting witnesses until it had been read over to the defendant, who had previously signed it only in the presence of the district attorney. It was then read in their presence to defendant and attested by them. It does not show when read in their presence it was explained to defendant, but they say it was read to him in their presence. In that statement appellant is made to use the following language, as directly pertinent to the issues: .

“About August 1, 1911, I caught a freight train to Conroe and stayed up there a couple of days at a negro friend of mine named Collins. A preacher named Johnson saw me there during that time. I carried a grip from Houston with me, and bought another one at a road camp, where I stopped for a day. When I left camp I went up in the town of Conroe and stayed around there until train time, and then caught the train for Houston. I had the two grips with me, and I had a pistol in my pocket. I saw the negro porter on the train, whom I knew, but I. do not remember his name. When the train was into Houston in the Fifth ward, I got my grips and when the train stopped for the Ea Porte tracks just before they got to Buffalo bayou I got off and started back toward Nance street. I was going along the track when I saw a police officer, and I stopped in the shadow of a building until I thought he was gone, and then I started- on again, and when I got a little farther I saw the officer coming toward the track along Nance street so that I would have just about met him. I was carrying both grips in my left hand, as my right hand is crippled, and was at that- time, so I switched the two grips quickly to my right hand and pulled my pistol with my left out of my left hip pocket, and began running as fast as I could north right in the center of the tracks. The officer called to me twice to stop, and I saw that he had liis gun in his hand, so as I ran I turned and fired at him once. My gun was a double-action gun, but I cocked it before I fired. I saw him fall to the ground just after I fired, and I knew I had hit him, as I heard him say something about being shot, but I do not remember his exact words. I did not stop, but kept running as hard as I could.”

This is just an excerpt from, the confession, and is quoted simply because it bears directly upon the tragedy at the time it occurred. Appellant took the stand, and said with reference to the confession that the first two times they asked Mm to make a confession or tell about it he denied knowing anything about it. He denied having anything to do with the killing, or his presence at the time and place, and the reason that he finally, on the third conversation, made the confession was because the district attorney had informed him of his official capacity, and that he had power to do with him pretty much as he pleased, and that if he would make the confession he would see that it would go easy with him, which he understood meant he was only to be sent to the penitentiary, and as he was already in the penitentiary for 58 years on cumulative sentences for burglary, it would not amount to any serious matter. In other words, he testified that his confession was false, and that he made it under the promises of the district attorney, excluding the idea that he would be hanged, which the district attorney and some of the officers said would occur if he did not make the confession. Without quoting at any length, tins is the sum and substance of his testimony on that particular line.

This confession seems to have been thought necessary for the state; otherwise this trip to Huntsville by these officers and the means of securing the confession would not have been pursued. The police officer had not identified the defendant except by a description to the effect that he was a yellow negro with a mustache, and, as the writer recollects the record, this is not undertaken to be verified by any evidence other than the statement of the policemen, and all this occurred about 3:30 or 3:40 o’clock in the morning. The state introduced another witness, who testified, substantially, that he saw a party get off the train at the crossing of the La Porte road with a couple of grips in his hand and start up the railway walking. One or more of the train officers or crew testified that a negro got on at Conroe with a couple of grips and got off at the La Porte road crossing. So the substantially and; concrete result of the state’s testimony was intended to show that appellant had been to Montgomery county two or three days and had returned to Houston, where he lived and had married. The proof shows he lived in Houston Heights. He got off the train at the point designated, and started waiting hack up the track with the grips in his hand when the police officer hailed him, and he ran, pursued by the policeman with a pistol in his hand, and defendant, after running a while, turned and fired one shot and continued running.

It is the settled law of Texas that where the state puts in a confession, some of which is exculpatory, the state is bound by the confession, unless it disproves the exculpatory testimony. In Menefee v. State, 67 Tex. Cr. R. 201, 149 S. W. 138, and Winkler v. State, 58 Tex. Cr. R. 564, 126 S. W. 1134, the rule is announced that where the state introduces a confession, it is bound by such confession until disproved. Again, it was announced that the whole of the confessions introduced by the state must be taken together, and the state is bound thereby, unless the confessions are shown to be untrue by the evidence, and the confession must be considered as evidence in connection with the other facts of the case. Pratt v. State, 59 Tex. Cr. R. 635, 129 S. W. 364. Again it was held in Bailey v. State, 65 Tex. Cr. R. 1, 144 S. W. 996, that where the state introduces a confession, it is bound by all the statements therein except such as are proven untrue, but only by such statements as introduced.

It is further held that a confession should be received with great caution, and a jury should hesitate to convict upon it in the absence of some corroboration, and in cases of murder, without proof of the corpus delicti, a confession of guilt, uncorroborated by other evidence, is not sufficient to warrant a conviction. This proposition was laid down in Jones v. State, 13 Tex. 168, 62 Am. Dec. 550, and has been followed since.

So it seems, taking the testimony as introduced by the state with reference to the statements of the deceased as to how the killing occurred, and the statements in the confession as claimed to be made by appellant, we have a traveler getting off the train at night, coming from a distant county, with his grips in hand, walking along the street railway, hailed by an officer, ordered to stop, about 3:30 or 3:40 o’clock in the morning, and a chasing of appellant by the officer, ordering him to stop with a pistol in hand, and a sudden turning by appellant and firing one shot, which proved fatal, and his flight continued. The state undertook to show as untrue the statements in the confession that deceased had his pistol in his hand through the testimony of one or two witnesses that when they reached him shortly after the shooting, while he had two pistols, one was in the hip pocket and the other in the waistband of his pants. This does not necessarily indicate he did not have one of his pistols in his hand. He may have returned it after being shot, for he lived until late the following evening after being shot in the early morning. The state nowhere undertakes to disprove the fact, but reiterates that appellant came in on the train and was going quietly along from where he alighted up the railway track with his grips in his hand. There is no reason shown by the state why the defendant should have been stopped by the officer. He had a right to travel on the train and a right to get off of it and go to his point of destination without let or hindrance, provided he was not doing some illegal act, and this without interference with his free locomotion by any one, officer or citizen.

We are met by the argument for the state that defendant had a pistol. The facts demonstrate that he did, and used it with deadly effect, but he was a traveler, under the state’s testimony, and therefore had a right to carry the pistol; but, in addition, there is nothing to indicate that the officer was trying to arrest him for having a pistol, or even that the officer was aware of the fact that he had a pistol until after he ordered him to stop. He just ordered the defendant to stop. Defendant did not see proper to do so and ran. The officer chased him. There is something also said in the brief for the state to the effect that the officer had a right to arrest him because he was an escaped convict. This is hardly a contention, but there is a reference to it. The record does not sustain that statement. He had been in the penitentiary nine years, but had gotten out in 1910. This homicide occurred in 1911. He had subsequent to 1910 married, and lived in Houston. 1-Ie followed various avocations, which was detailed in the testimony, in and around the city of Houston. Hater, however, the defendant had been convicted of various burglaries subsequent to this transaction, and had been sent to the penitentiary for 58 years; and had escaped in 1913, but was recaptured. Under the state’s case as made, taking the confession and the statements and all the testimony presented under the record and under the authorities cited, this case does not present one which would justify or authorize the death penalty. The parties seemed not to have known each other or to have ever met. The officer did not' know the negro, but seemed to think it was his duty to stop him for some unassigned reason. The defendant did not see proper to be held up or stopped. It was 3:30 or 3:40 o’clock in the morning. Defendant was walking along the railway track with his grips in hand, which he had the right to do, and. was ordered to stop. This does not evidence that character of case which justifies the death penalty. The state put in exculpatory testimony, evidence which precluded the death penalty or murder in the first degree, and failed to show the statements false. The defendant denied the whole contention as being true, and introduced evi-deuce to prove an alibi that he was not present and knew nothing of the transaction until he read it the next day in the paper; that he did not shoot at or kill the deceased, and was not engaged in the tragedy. Outside of his confession the evidence was not sufficient to connect him with the killing, and in placing in evidence this confession with reference to the killing or to show his presence at the time and place of the killing, they put in. facts and circumstances which are in harmony with the statement of the officer as made to other officers immediately after the shooting as to being chased as he left the train.

The judgment is reversed, and the cause remanded.

PREMDERGAST, J., dissents.

On Motion for Rehearing.

The state’s motion for rehearing criticizes the opinion reversing the judgment. If the opinion is to be understood, as the state’s motion indicates, as holding that peace officers cannot become attesting witnesses to a confession, it does not correctly state the statute. It is only when the accused signs a confession by making his mark that such officers are inhibited from becoming subscribing witnesses to the confession. The matter discussed in that connection was, however, not that particular question, but it was the environments of the confession. In fact, that phase of the opinion was directed at the question of voluntariness of the confession, and not whether officers were available as subscribing witnesses. Those officers did sign the confession, and an inspection of the opinion, we think, will show that the matter was mentioned as bearing on the situation of appellant at time of confession. The original opinion, we think, sufficiently shows this, but to remove any doubts as contended by the state, it is here announced that it is only when the accused signs a confession by making his mark that peace officers are inhibited from becoming attesting witnesses. The details of the testimony of the district attorney might be given in full in regard to the confession, and his reasons for going from Houston to Huntsville, accompanied by a police officer of Houston, to secure the confession, but it is not necessary. The details of the circumstances attending his trip and subsequent matters after arriving at Huntsville in this connection would perhaps be of no particular benefit in this opinion. This was sufficiently mentioned in the original opinion. It is shown by the district attorney in his testimony that the signature of the defendant was obtained in connection with his third interview with him, and in a room in the penitentiary with no one present except himself and the accused, and that defendant signed it in the room only in the presence of the district attorney; that the defendant and district attorney then went with defendant to another room in the penitentiary and had these officers brought in, or at least they came, and were asked to sign as subscribing witnesses. This they declined until the confession had been read to the defendant and he had signed it in their presence. This was done, and they then became subscribing witnesses. Those matters were mentioned in the original opinion, and are now referred to simply on the question between defendant and the state as to whether that confession was brought about by such inducement as claimed by him and as also affecting the matter of its being voluntary. One of these officers was sheriff of Burleson county, one a deputy sheriff of Grimes county, and one a police detective who accompanied the district attorney to Huntsville.

The trial court recognized all this, and gave the jury a charge as to whether it was voluntary or not, which fact was to be decided by them. It was an issue whether such confession was voluntary or not. This confession must have been offered, or was evidently offered, by the state to connect the defendant with the killing. The state thought that this confession was of value, else the efforts made to secure it would not have been put forth. While it may have served to connect the defendant with the homicide, it contained exculpatory statements which, if true, exonerated or at least mitigated any punishment that might be attached to the act of homicide if found guilty. The state was seeking a conviction for murder, and obtained it with the death penalty. The statements made by the defendant exculpated him of such heinous offense. The facts do not show that it is a death penalty case. Where the state introduces exculpatory or mitigating statements of the accused, it is bound by them unless such statements can be shown to be false, and this is true whether the statements are exculpatory or mitigating. Pratt v. State, 50 Tex. Cr. R. 227, 96 S. W. 8; Combs v. State, 52 Tex. Cr. R. 617, 108 S. W. 649. We deem it unnecessary to go into the details of the facts in this connection further than as given in the original opinion. These statements obtained in the confession by the state and introduced by the prosecution are exculpatory within the authorities cited. '

In the presentation of the motion for rehearing both on the face of the motion and in the oral argument by the state the prosecution seemed to lose sight of the fact that the case must be viewed from the standpoint of the defendant. The state seemed to be under the impression, apparently at least as it now presents the case, that it should be viewed from the standpoint of the deceased. This is not correct. The defendant is held responsible for what he does and his purpose for doing it and the intent and motive moving him to do the act.

There are some things stated in the motion for rehearing that are not found in the record, but it was contended in the argument by the state’s counsel that all these things were known to the jury. As to this this court would have no concern. We pass upon the record as it is presented to us. These matters were not in evidence, and are not set up in the record. We cannot consider such things. „

Reviewing the case again in the light of the state’s motion and its oral argument, we see no reason to change our conclusion as to want of sufficient evidence to justify the verdict rendered in this case.

The motion for rehearing is overruled.

PRENDERGAST, J., dissents.

PRENDERGAST, J.

(dissenting).

The testimony by wholly disinterested witnesses so overwhelmingly and conclusively demonstrates that appellant and no other foully murdered the deceased in cold blood, in the dead hours of the night, I cannot give my consent to a reversal of this judgment of conviction. The majority opinions herein I think show a clear .misconception of the testimony and of the law applicable thereto.

The sole question is, Was the testimony sufficient to show that appellant murdered the deceased, John Cain, with express malice? The jury, composed of 12 honest, fair, and impartial men, of different ages, walks, and avocations in life, upon their oaths say it was, and they so found. An impartial, eminent, and wholly disinterested district judge, who presided at the trial, on his official oath also so held. This judge and these jurors heard the witnesses when they testified, and saw their manner, and they could tell who testified the truth and who testified falsely. The judges of this court saw and heard none of this, and cannot tell who told the truth nor who swore falsely. Besides, our statutes expressly prescribe (article 734, O. C. P.):

“The jury are the exclusive judges of the facts in every criminal cause,” and (article 786) “the jury, in all cases, are the exclusive judges of the facts proved, and of the weight to be given to the testimony.”

It has always heretofore, been held by this court, in obedience to these statutes, as held by Presiding Judge Davidson in Newton v. State, 5S Tex. Cr. R. 319, 125 S. W. 909:

“The jury are the exclusive judges of the facts proved as well as the credibility of the witnesses and weight to be given the testimony.”

This is such a well-known maxim of outlaw, it would be a useless consumption of time and space to collate the cases so holding. There is no case to the contrary.

Who was John Cain, the murdered man? The uncontroverted testimony shows he was a policeman in the city of Houston in the faithful discharge of his humble duties at the time he was shot down, foully murdered, in the silent watches of the night, at 3:30 a. m., on the night of August 4, 1911,, “His primary duties were to arrest violators, of the law, to detect and prevent crime, to enforce the law, to preserve the peace, and. to protect life and property” — I quote from an article in a recent issue of a leading journal. Who was the man who thus shot down and foully murdered John Cain? The testimony herein, without a shadow of doubt,, clearly and unequivocally demonstrates that the appellant, Houston Sharp, and no other, was the guilty murderer. Who was, and is,. Houston 'Sharp, the appellant? Let the record answer.. He swore:

“I am sentenced to 58 years in the penitentiary now on 16 burglary cases. * * * ” (S. E. p.. 28.) “I have been convicted in several counties on ■ pleas of guilty to 28 cases of burglary and theft and given a total of 58 years in the penitentiary for same. I was indicted in several other cases, for like offenses, and they were dismissed on account of my pleading guilty as stated above. I had been in the pen for about 9 years before-this and got out in 1910, and that is when I. moved to Houston. I was at the hospital farm in 1913 when I escaped from there in 1913. I was not there then for the 58 years — for the other part of the term I had not served before-after I had escaped.” (S. F. p. 29.)

As I understand his testimony, he escaped, from the penitentiary in 1910 while serving his sentence for the 9 years before he was-convicted in any of the burglary cases, and, was an escaped convict when he killed John - Cain, deceased, for he swore:

“I was at the hospital farm (a penitentiary branch) in 1913 when I escaped from there in 1913. I was not then there for the 58 years, (but) for the other part of the term [of 9 years], I had not served before, after I had- escaped.”

He further swore that when attempted to-be arrested by Officers Haddicks and Duck-worth, while an escaped convict, he resisted, arrest, and swore:

“I walks right out behind him with the gun in my hand, and so when Ml-. Haddicks turns around, Mr. Duckworth said, ‘what 'are you going to do?’ I said, ‘Nothing, but I ain’t going to jail,’ and Mr. Haddicks turns around and starts out with his gun, I had the gun in my hand. I said: ‘Stop, Mr. Haddicks, I don’t want you to shoot me or me you.’ I made him drop his gun, or at least he handed me the gun, and I taken it and pulled the magazine out and handed him his gun back, and I went on off.” (S. F. pp. 28, 29.)

He further swore that a little later, wlien-Mr. Jeter, another peace officer tried to arrest him, while he was still an escaped convict, he shot at him in resisting arrest. (®. F. p. 29.) So that out of his own mouth he-showed he was an escaped convict, serving a nine-year sentence when he killed John Cain, and when he testified that he was a convict in the penitentiary serving out sentences of convictions in 28 or 16 burglary and theft cases, and had committed others, and that it was his settled policy to resist arrest whenever and by whomsoever attempted. There can be no question but that he regarded every officer of the law his personal and mortal enemy, and acted on this on every occasion when he got the opportunity. A I confirmed and persistent burglar will doubtless always shoot an officer when caught, or attempted to be arrested

The original opinion herein seems to try to make it a point against the state that the district attorney, Judge Crooker, went from Houston to the Huntsville penitentiary to get a confession from appellant. The record shows this was not the case. He went there and took several disinterested witnesses with him for the purpose, and with the intention, to see if appellant could be indenti-fied by them as the murderer of John Cain. The confession was made by appellant after he had unquestionably been identified. Appellant by his own testimony showed that Judge Crooker, with several witnesses with him, arrived at Huntsville just as the convicts were to go to work; that he (appellant) and four other convicts together were taken before these witnesses to see if they could identify him. I quote the words from his own mouth:

“I was carried out there for the purpose of being identified, whether I was the man; two of these colored people brought up there; supposed to identify me; * * * so they came out to look at me; they never came out to look at the others. They knew I had a crippled hand because they had been informed I'had a crippled hand, and the first thing they did was to look for the crippled hand; but it was not this woman Belle but another woman, I don’t know why they did not have her there at that time; now after they identified me.” (S. E. pp. 21, 22.)

Then he says it was after this identification of him he made the confession.

Every witness who testified about the confession, as well as every other 'witness who testified against appellant, was a wholly disinterested witness. Not one of them was kin to deceased. Not one of them was shown to be in any way prejudiced against appellant or in favor of the state, and neither in any way is intimated to have had any motive whatever to testify other than the truth, the whole truth, and nothing but the truth, and X have no doubt, and I cannot see how any other who would read the record could have any doubt, but that each and every one of these witnesses swore the truth, and unquestionably that appellant did not.

Now as to the confession. The district attorney, Judge Crooker, swore positively that appellant made to Mm the confession in evidence after he had given him (appellant), fully and accurately the warning required by the statute, and that he then and there signed it. He signed it twice; the first time in the presence of some of the witnesess, and when another was called to witness it, he required that appellant should again sign it in his presence before he would witness it. Appellant did so, and he then signed his name as a witness.

Judge Crooker swore:

“The confession was dictated by Mm [appellant], and what he stated put down by me, written by me in his presence, at his dictation, and then read to him in the presence of the parties [witnesses] named.” (S. E. p. 13.)

He further swore:

“There was no suggestion of force, threats, or persuasion used to make him make that statement ; X know there was none used. It was freely and voluntarily made without a suggestion of coercion or anything else.” (S. E. p. 14.)

Again he swore:

“It was read to him twice; in fact in going over it with him it was read to him more than that. As I wrote it, I would read him what I had written, and then get him to go ahead, and then later at the end I read all of it, and again, in the presence, of these gentlemen, it was read again; the defendant dictated it. I wrote it substantially as near as I could just exactly what he said.” (S. E. p. 16.)

Appellant swore that said confession was not.read over to him by Judge Crooker or any one before he signed it; that he made it because Judge Crooker had agreed and promised him certain immunities; also that it had' been changed after he signed it and forged in several particulars. 1-Ie also swore that he did not shoot the deceased, John Cain.

After appellant had so sworn Judge Crook-er was again introduced and swore:

“I heard the defendant’s testimony about this confession. There has absolutely been no change in that statement whatever since he gave it. This is the identical statement that was read over to him and signed by him and witnessed by .him. There was mot a suggestion of any kind, or promise made to him.”. (S. F. p. 35.)

In addition to this, I will give the testimony of the five persons who signed as witnesses to this confession.

D. E. Teague swore:

“I am the warden of the state penitentiary, formerly was sheriff of ■ Washington county, was that 24 years; am still connected with the penitentiary. I only know Sharp since I was at the penitentiary; I was at the penitentiary at time Judge Crooker took a statement from the defendant, and I witnessed that statement; it was read over to him in my presence. • I heard it read to him. That is the statement which you hand me ; that is my signature on it. The statement was read over to him in my presence and I signed it.” (S. F. p. 31.)

J. R. Jordan swore:

“I am in charge of the criminal records at Huntsville. I know the defendant and Judge Crooker, and was present at the time Judge Crooker came there and took a statement from the defendant in regard to the killing of the policeman, John Cain. I witnessed that statement. That is my signature. I was present when the statement was read over to him. Mr. Teague had witnessed it, and he had already signed it, and I asked that he sign it in my presence, so' that I could witness the signature after it was read to him. The statement you hand me is the one Mr. Crooker read there.” (S. E. p. 33.)

Mr. Jordan also swore that he had been county clerk of Cook county for 8 years before his employment at the penitentiary.

E. A. Ellis swore:

“I live in Burleson county; am sheriff of that county. This is my first term; have been a peace officer 14 years. I know the defendant; was at the penitentiary when Judge Crooker was there, and took a statement from him. I witnessed the signature of Houston Sharp. I heard the statement read to the defendant and saw him sign it. He said it was true. This is the identical statement that you hand me.” (S. E. p. 34.)

T. H. Lacey swore:

“I am a deputy sheriff of Grimes county; have been a peace officer about 11 years; was sheriff of that county for some time. We knew the defendant there as Porter Wise; was present at Huntsville when Judge Crooker, took a statement from him. 1 heard the statement read in evidence here. I witnessed the statement. _ I heard the statement read to him, and saw him sign it. He said that it was true.” (S. F. p. 34.)

T. A. Binford swore:

“I am a detective in the police department of the city of Houston, and have been for about 8 years; know Houston Sharp. I was at Huntsville when he made that statement. I witnessed it. I heard it read to him. This is my signature. This is the same statement that was read over to him. He said that it was a true statement.” (S. F. p. 35.)

Appellant himself swore:

“I spent my early childhood in Jasper county and went to school there, and later at Prairie View, which is an institution of higher learning; stayed there 3 years. I taught school for a while.” (S. F. p. 29.)

The trial judge in the charge told the jury that the statute provides that:

“The confession of a defendant may be used in evidence against him if it appear that the same was freely made without compulsion or persuasion.”

And, further:

“If you find from the evidence introduced on the trial of this case that this defendant was compelled or persuaded to make this confession by the criminal district attorney, you will not consider the said confession in arriving at your verdict.”

From all this testimony can any human being for one moment doubt that appellant made and signed that confession literally, word for word, as it was plainly written? Surely not.

I now copy the whole confession, as follows:

“I, Houston Sharp, being first duly warned by John H. 'Grooker, the person to whom this statement is made: First, that I do not have to make any statement at all; and, second, that any statement I make may be used against me on the final trial of the case concerning which this statement is made — make the following voluntary statement: My name is Houston Sharp, and I am 40 years old. I went right to Houston and married and lived in the Heights and worked for the Consumers’ Oil-Tnill for some time. When I left the oilmill in the spring of 1911 I went in partners with Ed. Lee, running a blacksmith shop on Clark street until about June 1911, when I quit there and went to hauling wood in the Heights for myself. About August 1, 1911, I caught a freight train to Conroe and stayed up there a couple of days at a negro friend of mine named Collins’ house. A preacher named Johnson saw me there during that time. I carried a grip from Houston with me, and bought another one at a road camp where I stopped for a day. When I left the camp I went up in the town of Conroe and stayed around there until train time, and then caught the train for Houston. I had the two grips with me, and I had a pistol in my pocket. I saw the negro porter on the train whom I knew, but I do not remember his name. When the train was into Houston in the Fifth ward, I got my grips, and when the train stopped for the La Porte tracks, just before they got to Buffalo bayou, I got off and started back toward Nance street. I was going along the track when I saw a police officer, and I stopped in the shadow of a building until I thought he was gone, and then I started on again, and when I got a little farther I saw the officer coming toward the track along- Nance street, so that I would have just about met him. I was carrying both grips in my left hand as my right hand is crippled, and was at that time, so I switched the two grips quickly to my right hand and pulled my pistol with my left out of my left hip pocket and began -running as fast as I 'could north right in the center of the tracks. The officer called to me twice to stop, and I saw that he had his gun in his hand, so as I ran I turned and fired at him once. My gun was a double-action gun, but I cocked it before I fired. I saw him fall to the ground just after I fired, and I knew I had hit him, as I heard him say something about being shot, but I do not remember his exact words. I did not stop, but kept running as hard as I could. I saw a negro man and a negro woman coming from the same direction the officer had, that is, along Nance street, but I would not remember them. I remember there was an electric light there, and suppose they could have seen me, as I was up on the center of the railroad and they were down on the ground. I dodged around there in that neighborhood and crossed the bayou over into Second ward, and then went to a woman’s house named Black Belle. I had seen her before, and knew where her place was. She is the same negro woman who came up to the Caldwell jail and looked at me. I stayed in a room there that night, and paid for it. While I was there I laid my pistol on a table, and it had not been changed since I shot the officer. I took the two grips the next morning and went to my home in the Heights. No one saw me at home with the grips or pistol except my wife, and she has died since then, but I did not tell her anything about this. I continued to live in Houston Heights till about March, 1912, when I left and, went to Louisiana. I first learned that I had killed the officer on the following evening from the newspaper. I never said anything about this matter to any one until about November, 1915, when I was in the Grimes county jail, and I met two negroes there, Ike Phelps and Cleveland Craft, one of whom I had known before, and I got to talking to them, and told them about killing this officer.
“[Signed] Houston Sharp.
“Houston Sharp.
“[Signed] D. E. Teague.
“J. It. Jordan.
“E. A. Ellis.
“T. H. Lacy.
“T. A. Binford.”
(S. F. pp. 16, 17, 18.)

But ouside of, and in addition to said confession, the state, without any sort of doubt, proved that appellant, and no other, murdered John Cain, deceased, at the time and place he was killed, as I will now show.

Ike Gailey, the porter on the train from Conroe, in Montgomery county, to Houston and beyond,' testified that appellant got on that train at Conroe with a suit case and hand grip, and rode on that train from Con-roe to the railroad crossing in Houston; that when the International & Great Northern train stopped and whistled for that crossing, he had to get out, go to that crossing and flag the train so as to let it pass over; that while he was out discharging this duty appellant got off of that International & Great Northern train. (S. F. pp. 7, 8.)

IV. P. McKee, who on the night of August 3, 1911, .was an employé or watchman at the Industrial Rice Mills on the track right near the crossing of the International & Great Northern testified that the International & Great Northern train in stopping for that crossing stopped right by the side of the mill of which he was the watchman; that on this particular night when the train stopped he looked out- at it, could see it plainly, and he saw a colored man, who could have been no other than the appellant, get off of that train with a suit ease and hand grip. He described him in such a way as to unquestionably identify that person as the appellant. 1-Ie swore that after he got off this train he went back north, up the International & Great Northern track, and after passing where he, the witness, was, in a very short time he heard a shot fired up there, and the shot was fired where Officer John Cain was shot, about four blocks distant.

James Rabie, employed at the time by the International Press, right at the crossing of said railroad tracks, testified that he knew deceased, John Cain; that shortly before the arrival of said International & Great Northern train he saw John Cain ring into headquarters and make his report. He then talked with him there some minutes; that he then heard the International & Great Northern train arrive in Houston, and just after it had passed on over said crossing, he swore:

“After hearing the passenger train pass, I heard talking on the railroad track out there. I recognized Mr. Cain’s voice. He says, T am an officer, stop!” The reply was, ‘Stop hell.’ And then gun fire. The man that fired the gun ran up the track north, and Mr. Cain hol-loed ‘Help!’ I went to him. in less than two minutes. When I got to him, he was laying right fiat on his back. He wanted me to notify the.station and have Wright’s ambulance called immediately. I asked him: ‘John, are you shot? What is th" matter?’ He says: ‘I am shot.’ I says: ‘Where at.’ He opened his coat. There was a little rod spot right there. Then I went and notified the station and called the ambulance, and then I ran back, and he was still complaining, halloaing, and talking. Then I asked him who shot him. He said: ‘A negro, yellow negro.’ ” (S. F. pp. 3, 4.)

Norflette Hill, a city detective in Houston, and was a mounted policeman at the time, swore that as soon as Mr. Rabie phoned that John Cain was shot he and his partner went right over there on horseback and found Mr. Cain where he had been shot. He said that when he got to him, he saw he was shot through and through in the breast near the center of his body; that at this time John Cain made a statement to him. On direct examination he swore:

“He said a negro shot him. He described the negro. He said it was a yellow negro with a mustache, carrying a telescope or suit case and a little hand bag.” (S. F. p. 2.)

He further swore that the said shot killed John Cain, and that he died the following evening about 2 or 3 o’clock. On cross-examination he swore:

“I said Mr. Cain made a statement to me. I asked him who shot him,-and he told me that it was a yellow negro with a long mustache, carrying a hand telescope or suit case or good big satchel and a little hand bag. And he told me-that he followed him down the track and hol-loaed to him a time or two to stop; that he was an officer. He told me that he had hol-loaed to him several times to stop. I don’t know whether he said two, three, or four times;, and when he got up pretty close in about 8 feet of this man, the man was carrying the suit, case and the little grip * * * in his right hand and when he got up within about 8 feet of him, the negro said, ‘Stop hell,’ and shot him. Just wheeled and shot him, and he fell right there. He was carrying the suit case and a satchel in his right hand. That he was a yellow negro with a long mustache and had the-appearance of a preacher when he first looked, at him.” (S. F. p. 3.)

On redirect examination he testified:

“I saw Mr. Cain’s pistol there. He had on-two. One of them was stuck in the waist of' his pants, and the other was in his hip pocket. They were on his person. Neither one of his. pistols were discharged. No empty chambers in any of them.” (S. F. p. 3.)

Belle Jenkins (Black Belle), a negro woman who lived in Houston, swore that on the night or early morning in which John Cain was shot appellant, whom she knew, came to her house and wanted a room; that when-he came in he handed her his gun pistol;, that when he gave it to her—

“it was right hot, one bullet was gone out of it. I smelled powder; it was hot; felt warm 1 mean. * * * I could smell the burned powder.” (S-. F. p. 8.)

She further swore that appellant stayed' at her house the remainder of the night; that next morning two officers came down to her house hunting for a man -by the name of “Holliding,” whom they were after to arrest; that appellant was there at the time; that these officers found Holliding and arrested him. While they were doing this-appellant hurriedly left her house, jumped over the fence on the side, and escaped. She also swore that she went to the Caldwell county jail to identify appellant as the person who was at her house on said occasion,, and did so.

George Peyton, gne of the policemen who> went to said negro woman Belle Jenkins’ house on the morning of August 4, 1911, to-arrest Holliding swore:

“I saw the defendant there at that time; he-ran out and jumped over the back fence.” (S. F. p. 21.)

Roy Smith and his wife Jennie each swore-that about the 7th or 8th of July, 1913, appellant was at their home and had dinner with them that day, stayed there several hours, and each swore that he then told them “that he was in trouble at Houston; that he had killed a policeman there in 1911.” (S. F. pp. 11, 12.)

The state proved by another witness that. John Cain, deceased, was the only policeman, that was killed in Houston in 1911.

It is true appellant testified that he was-at home with his wife on the night of August 3, 1911, when John Cain was killed. He fixed this particular date by the fact that: lie claimed that Us wife that night gave birth to a girl baby. To bach up Ms testimony as to this alibi he introduced a negro woman midwife, Phyllis Ourtis, who testified that she recalled waiting on appellant’s wife “on or about August 11th,” and that she waited on her when she gave birth to said child. On cross-examination she swore:

“I cannot remember what day of the month it was; the only way I would know is by the way I made my reports.” (S. F. p. 19.)

On cross-examination of appellant himself of his claimed alibi he was confronted by the said written report of the negro woman midwife, and swore:

“This Harris county birth register No. 1980, that you now show me, shows the baby was born July 24, 1911, and that the certificate was filed in the county clerk’s office July 26th.” (S. F. p. 80.)

The court in his charge plainly told the jury, correctly, what was an alibi, and charged the jury:

“Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offence was committed at the time of the commission thereof, you will find him ‘not guilty.’ ”

Of course, no honest jury in the face of the testimony shown by this' record could for one moment have thought of acquitting him on Us claimed false alibi. It was without any doubt proven to be false. He, and he alone, was the murderer of John Cain.

No question whatever was raised in the court below or in this court by appellant in any way that the confession of appellant raised any issue in Us behalf which could in any way exonerate Mm for the foul murder of John Chin. That question is for the first and only time mentioned by the opinion reversing this judgment. Even if it could be claimed at that late date that such an issue was raised, without the slightest doubt the state disproved it overwhelmingly by disinterested testimony. There can be no doubt from the testimony that the deceased, John Cain, saw appellant pull Us pistol before Cain ever told him he was an officer and to stop, repeating this. The statute (P. C. art. 479) expressly requires any peace officer to arrest any person without warrant whom he sees carrying a pistol, and makes it an offense for any officer who shall fail or refuse to arrest such person, either on his own knowledge or information from some credible person, to be punished by a fine not exceeding $500. Appellant in carrying his I>istol was not a traveler, as has been held many times by this court down to this date. He was merely going from Conroe, the county seat of Montgomery county, to Houston in Harris county, an adjoining county. Even if he could be held to have been a traveler, it was John Cain's duty to arrest him when he saw him with a pistol. There was no duty, either express or implied, on John Cain, before arresting him, to judicially or otherwise investigate to determine whether he was a traveler. That -question would be investigated when he was taken before the proper officer for that purpose. No doubt appellant was returning from one of his many burglarious raids, with Us suit case filled with stolen goods, and he did not intend to even be stopped on that account, much less arrested.

Comment on, or a résumé, of, this testimony is wholly unnecessary. Having carefully read it time and again, I am convinced beyond a reasonable doubt, or any other doubt, of appellant’s guilt of the malicious murder of John Cain. Twelve fair and impartial jurors, in obedience to the oath they had taken, and who heard all this testimony and saw the witnesses testify, found that he was thus guilty; and the trial judge also so held. They, and not the judges of this court, by our Constitution and statute law are made the exclusive judges of these matters. Their verdict and judgment should stand. I cannot get my consent to turn this murderer loose from his most righteous conviction, after a perfectly fair and impartial trial.

I respectfully but earnestly protest and dissent.
      i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    HUGHES v. STATE.
    (No. 4548.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    1. Criminal Law <&wkey;658 — Conduct of Trial Judge.
    In prosecution for murder, it was error for the court, on conclusion of testimony of defendant’s witness, to call the deputy sheriff, who then took the witness to jail.
    2. Criminal Law >@=3865(1) — Conduct of Judge — Statements to Jury.
    It was error for the court, when the jury reported that it stood 11 to 1, but could not agree, to say: “Gentlemen, it seems that you are practically agreed. I will have to send you out again. I would not bo authorized under the law to discharge you just yet.”
    Prendergast, J., dissenting.
    Appeal from District 'Court, Wichita County; Wm. N. Bonner, Judge.
    Harvey Hughes was convicted of murder, and he appeals.
    Reversed and remanded.
    Martin & Oneal, of Wichita Falls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 12 years’ and 6 months’ confinement in the penitentiary.

There were two theories by the facts: The state’s contention is that the deceased was in the negro apartment of a saloon, taking a drink, and appellant came in and suddenly stabbed him in the heart and killed Mm. There had been differences between them, and deceased had made threats to take the life of appellant. Appellant’s theory of the case was that deceased was standing at the bar with an opened knife in his hand, and when he entered the room deceased undertook to cut him; that he ran out of the door, followed by deceased until they ran for some distance, when he turned upon deceased with his knife and inflicted one blow which killed him. The details of the testimony are unnecessary so far as the disposition of the appeal is concerned.

After appellant’s witness Wilson had testified to appellant’s theory of the case, and at the termination of his examination and cross-examination, the court beckoned to the deputy sheriff, and after a short whispered conversation the deputy sheriff took the witness from the presence and in front of the jury and carried him to jail. The jail was immediately behind and in a few feet of where the jury was sitting. While the bill is quite lengthy, repeating the testimony by questions and answers in order to develop fully the matters, this is the substance of the bill, but we will state a little more of this bill of exceptions: The witness testified at length, controverting the state’s theory that appellant killed deceased by stabbing him in front of the bar in the saloon. The witness was a bartender, and testified that he waited on deceased and three others, serving each with a glassi of beer; that he went into what he called the “stockroom” adjoining the saloon, for supplies for the bar, and just as he entered this room he heard a noise as if of the breaking of glass, looked up, and saw the deceased running out of the door with his knife in his hand. The effect of his testimony was that he was chasing appellant,' appellant having just passed out of the door, and such is the theory of the defense as shown by his testimony. He also stated, when deceased came in the bar prior to appellant, he had an opened knife in his hand and was standing at the bar, and just as he (witness) went out appellant came in, and deceased followed him out of the saloon, appellant being in front and deceased following and running. This was very important testimony to the defendant, and materially contradicted the state’s case. While the court did not directly comment upon the testimony of this witness, yet what he did was equally as effective as if he had said to the jury:

“This witness committed perjury, swore falsely. Mr. Sheriff take him to jail.”

He said nothing in front of the jury about the witness, but immediately upon cessation of the witness’ testimony had the deputy sheriff to arrest and put him in jail. This was error, and of such a nature it requires a reversal of the judgment. See articles 735, 7S7, C. C. P. Bearing upon this question we cite the following cases: Kirk v. State, 35 Tex. Cr. R. 224, 32 S. W. 1045; Lawson v. State, 32 S. W. 895; Zysman v. State, 42 Tex. Cr. R. 432, 60 S. W. 669; Drake v. State, 65 Tex. Cr. R. 282, 143 S. W. 1160; Scott v. State, 72 Tex. Cr. R, 26, 160 S. W. 960; Caruth v. State, 177 S. W. 973; McMahan v. State, 61 Tex. Cr. R. 489, 135 S. W. 558; Simmons v. State, 55 Tex. Cr. R. 441, 117 S. W. 141; Moore v. State, 33 Tex. Cr. R. 306, 26 S. W. 403.

Exemplifying the above, attention is called to the affidavits of two of the jurors, Yan Horn and Hayworth. Van Horn stated in his affidavit attached to the motion for new trial: That when the jury retired to consider their verdict on the first ballot on the question of guilt the jury voted 8 to 4. This was on the night of the 13th of February that they began their deliberations on the case, and a verdict was not reached that night; and the next day, while they were considering the case, several of the jurors began discussing and arguing with afiiant that the negro witness Wilson was locked up in jail by the court for lying while he was testifying as a witness for defendant. Several of the jurors then said that the court had the witness Wilson locked up in jail because he was sitting there lying to the jury. The other jurors argued with the affiant before he agreed to vote the defendant guilty. He further states he did not know at the time Wilson had been ordered arrested and locked up by the court until the other jurors had so informed him while they were deliberating on the ease. On the 14th of February, when the jury came into court and reported that the jury could not agree, the jury stood 11 to 1 for conviction. That at this time affiant had not agreed to convict the defendant unless it be for manslaughter, and all the other jurors refused to come lower than murder.

Hayworth stated that he was a juror in the case, and that the jury when they retired stood 8 for guilty and 4 for not guilty, and he was one of the jurors who voted not guilty at first, tie says the jury retired to consider their verdict about 6:30 o’clock in the evening of the 13th, and the next day one of the jurors told affiant that the sheriff had lock'ed up the witness Wilson. “He said to me, that negro was lying; didn’t you see the sheriff take him and lock him up?”

There was no contest with reference to this matter in the motion for new trial, and the court passed upon the motion as presented with these affidavits attached as exhibits. It is unnecessary to discuss this. Viewed in the light of what has been said and what these jurors have stated in these affidavits, uncontradicted, and uncontested, will show the result of the action of the court in having defendant’s witness Wilson locked up in jail.

Bill No. 3 recites that the jury, after retiring at 6:30 p. m. February 13, 1917, came into court February 14th at 1:30 p. m., and reported they had not reached a verdict and did not think it possible for them to do so, and requested they be discharged. The court asked how they stood, and was informed 11 to 1. He asked if they were divided on the question of guilt. Thei foreman replied they had all agreed upon the question of guilt. Whereupon the court said to the jury:

“Gentlemen, I congratulate you upon the progress you have made; it is rather a long ease, and it is but natural that it should take some time. I cannot now discharge you. You may retire to your room.”

Exception was reserved to this for various and sundry reasons.

The other bill No. 4 recites that, after the jury had retired at 6:30 p. m. February 13, 1917, to consider their verdict, and had reported to the court at 1:30 p. m. February 14th that they were unable to reach a verdict, and had been by the court ordered to further deliberate upon the cause, the jury again reported to the court at 1.1 o’clock a. m. February 15th, after they had been deliberating for 40 hours, that they were unable to reach a verdict, and asked that they be discharged for the reason they did not believe that they could reach a verdict, whereupon the court again asked the jury how they stood, and the foreman replied that they stood 11 to 1. The court then said to the jury:

“Gentlemen, it seems that you are practically agreed. I will have to send you out again. I would not be authorized under the law to discharge you just yet.”

The court then sent the jury back to their room for further consideration. To this action of the court, and especially to the language used “Gentlemen, you are practically agreed. I will have to send you out again”— appellant excepted for the reason it was highly improper and prejudicial to his rights, etc. This is a matter that ought not to have occurred. This character of conduct by the court is not justified by our law. It is deemed unnecessary to discuss it. It is clearly erroneous and prejudicial.

For the errors indicated this judgment will be reversed, and the cause remanded.

PRENDERGAST, J., dissents.
      (g=sFor other oases see same tooic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    LAGOW v. STATE.
    (No. 4515.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    1. Ceiminal Law <&wkey;304(9) — Witnesses <&wkey; 351 — Judicial Knowledge — Impeachment by Evidence oe Other Oeeenses.
    Since the court cannot judicially know that local option is in force in any county, an election being prerequisite to enforcement of the statute, it is error, in the absence of evidence that local option is in force in a certain county to permit one accused of another offense to be asked whether he has pot within two years been convicted of violating the local option law in such county.
    2. Criminal Law <&wkey;719(l) — Argument of Counsel.
    In the absence of evidence on the proposition, it is error for the district attorney in opening argument to say, “You know the defendant is guilty, because the officers have been ‘chous-ing’ him for the last five or six years for violating the local option laws.”
    Prendergast, J., dissenting.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    S. F. Lagow was convicted of an offense, and he appeals.
    Reversed and remanded.
    Y. W. Holmes and W. W. Kirk, both of Plainview, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted under a charge that he conveyed a file to Joe Crockett, who was confined in the jail under a charge of felony and for the purpose and with the intent of aiding Joe Crockett to escape from the jail.

A bill of exceptions'recites that:

“While appellant was on the witness stand, and after testifying in his own behalf, he was asked on cross-examination by state’s counsel, .in the absence of any testimony that local option was in effect in- Hale county, Tex., at the time inquired about, whether or not he had been indicted in the last two years in Hale county for violating the local option laws.’-'

Various and sundry exceptions were reserved to this, among others that there was no evidence to the effect that local option was in effect. This was offered presumably for the purpose of impeaching appellant. This bill is qualified by the judge in the following language:

“The violation of the local option law being a felony in Hale county, the question was permitted as affecting the credibility of the defendant while a witness on the stand, and in the court’s charge said testimony was so limited.”

If the judge desired to testify in the case, he should have been sworn as any other witness in regard to matters of this character. The court cannot judicially know that local option was in effect. This has been so often decided it would seem unnecessary to refer to the authorities. If as a matter of fact the felony statute with reference to local option was in effect in that county, it should have been shown as required by law. That law cannot be put into operation except by special election held for that purpose. The courts do not judicially know that such election h'as been held. It must be proved as required by law. The court’s qualification under the authorities cannot be considered. Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 149; Graham v. State, 72 Tex. Cr. R. 9, 160 S. W. 714. If local option was in effect in the county, it could not be used as a matter of impeachment if under the misdemean- or statute, but in no event could the judge take judicial knowledge of the fact that it was in effect either as a misdemeanor or a felony. As this matter is presented, appellant could not be impeached in the manner that the hill indicates.

Another bill recites that the district attorney in his opening argument stated to the jury:

“You know the defendant is guilty, 'because the officers have been ‘chousing’ him for the last five or six years for violating the local option laws.”

Various objections were urged to this matter.

“The court instructed the jury not to consider any statement made by the district attorney concerning the defendant’s being ‘choused’ for violating the local option laws.”

This is the bill of exceptions as copied in the record. The previous bill recited there was no testimony offered on the trial as to the local option law being in effect in that county. This is a case of circumstantial evidence, weak 'and inconclusive in its nature. It is on close lines if not more than doubtful that the evidence is sufficient. The matters complained of in the two bills mentioned may have had the effect of turning the scale against appellant in the minds of the jury. Counsel will not be permitted to state facts in his argument that are not in evidence, and especially if it has a tendency to damage the defendant before the jury.

Eor the reasons indicated, the judgment will be reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting).

I cannot imagine how any one who would read the testimony in this case could even suggest that the evidence of appellant’s guilt was “weak and inconclusive in its nature, and on close lines if not more than doubtful if it is sufficient,” as is stated in the majority opinion. The appellant made no such contention in his motions for a new trial nor otherwise.

The state’s testimony by wholly disinterested witnesses showed that there were some three persons confined in jail, and one or more of them had been so confined for many months, and they all wanted to escape. In some way they had secured a key and some files and were working on the key with these files so that they could make the key fit the lock and thereby escape, when appellant was arrested and placed in jail with them. The files they had were too large to file the key in such a way as to make it fit the lock. This was made known to appellant by them when he was placed in jail. He told them he had a new file just the right size. He was kept in jail just one day and night. As soon as he got out he procured the file he had told them of, and succeeded in getting it to these parties in jail by throwing it at a window so that they could and did reach and get it, therewith to file the key they were working on, make it fit the lock, and thereby open the jail door and escape. In some way the officers learned all this, and by searching the jail found and identified this file appellant had conveyed to them before they succeeded in escaping. There can be no sort of doubt but that the evidence was clearly sufficient to sustain his conviction, and, as stated, he did not contend it was not.

The bill to his being required to answer that he had been indicted for illegally selling intoxicating liquor in Hale county within two years is not correctly stated in the majority opinion. I will copy the whole of it, merely omitting the heading, which gives the number and style of the cause and the term of court. It is:

“Be it remembered that on the trial of the above entitled and numbered cause, while the defendant, S. F. Lagow, was on the witness stand, and after testifying as a witness in his own behalf, he was asked on cross-examination by state’s counsel, in the absence of any testimony that local option was in effect in Halo county, Tex., at the time inquired about, whether or not he had been indicted in the last two years in Hale county for violating the local option laws, to which question, when asked, and the answer sought to be elicited, the defendant objected and excepted, because, even if a felony in Hale county, a violation of the local option law is not of that grade of felony as involves moral turpitude, and is inadmissible as touching the credibility of the witness, the weight to be given his testimony, or to impeach him, which objection the court overruled, and permitted the defendant to answer that he had. To which action of the court in overruling the above objection and exception the defendant then and there is open court excepted, and now tenders his bill of exceptions No. 2, and asks that same be examined, approved, and ordered filed. Y. W. Holmes and W. W. Kirk, Attorneys for Defendant.
“Examined, approved, and ordered filed this, the 16th day of April, 1917, with the following qualifications: The violation of the local option law being a felony in Hale county, the question was permitted as affecting the credibility of the defendant while as a witness on the stand and in the court’s charge said testimony was so limited. R. G. Joiner, Judge Presiding.”

It is seen from this that the sole “various and sundry exceptions” stated in the majority opinion were “because, even if a felony in Hale county, a violation of the local option law is not that grade of felony as involves moral turpitude.” It has always heretofore in a very great number of cases been held by this court that the defendant, or any other witness, can be impeached by showing he has theretofore been indicted for any felony, whether that felony involved moral turpitude or not, and that such defendant or witness can also be thus impeached by proving he had been legally prosecuted for any misdemeanor involving moral turpitude. 1 Branch in Br. Ann. P. O. p. 101 collates only a few of the great number of the cases. There is no case to the contrary.

The judge’s qualification was accepted by appellant without any objection in any way either in this or the lower court. In fact, his bill in effect concedes the selling of liquor was a felony. His sole objection was that it “was not that grade of felony which involved moral turpitude.” So that the cases •of Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 149, and Graham v. State, 72 Tex. Cr. R. 9, 160 S. W. 714, have no application whatever.

The other bill to the remarks of the district attorney is too trivial to even merit mention, much less be made a ground for reversal. I quote it:

“Be it remembered that, on the trial of the above entitled and numbered cause, -while making his opening argument to the jury, the district attorney made the following statement: ‘You know the defendant is guilty, because the officers have been “chousing” him for the last five or six years for violating the local option laws.’ To which statement, when made, counsel for defendant immediately objected and excepted, because said statement was unsupported by the evidence and was highly prejudicial to the defendant; whereupon the court instructed the jury not to consider any statement made by the district attorney concerning the defendant being ‘choused’ for violating the local option laws. To which statement made by the district attorney the defendant then and there excepted in open court, and now tenders his bill of exception No. 3, and asks that same be examined, approved, and ordered filed as part of the record in this case. Y. W. Holmes and W. W. Kirk, Attorneys for Defendant.
“Examined, approved, and ordered filed this, the 14th day of April, 1917. R. G. Joiner, Judge Presiding.”

Appellant was assessed the lowest punishment for the crime he had, as the evidence shows, without any doubt, purposely, intentionally, and deliberately committed. Bass v. State, 16 Tex. App. 69; Pierson v. State, 18 Tex. App. 524; Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544; House v. State, 19 Tex. App. 227; Mooney v. State, 76 Tex. Cr. R. 539, 176 S. W. 57. There is no need to collate the cases. They are innumerable. I am confident no case can be found in the books that will sustain the majority opinion herein on this point.

This case should have been affirmed. I dissent to its reversal.
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author: CONNER, (3. J.

text:
    MASTERS v. HUNT et al.
    (No. 8707.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 30, 1917.)
    1. Bbokebs &wkey;8(3), 86(1) — Contbact and Performance Thereof — Evidence—Sufficiency.
    Evidence held to sustain a jury finding that there was an agreement between plaintiff and defendant that in consideration of plaintiff’s surrender of defendant’s note defendant would sell a tract of land belonging to plaintiff, and that defendant performed such contract.
    2. Beokebs <&wkey;53 — Compensation—Procuring Cause oe Sale.
    It is not necessary that a real estate broker shall have personally conducted the negotiations or should have been present when the sale of the land was completed; but, if he gave the original impulse to the transaction by bringing the land to the attention of the purchaser, he was the procuring, moving cause of the sale in a substantial sense and entitled to his commission.
    3. Beokebs <&wkey;55(l) —Compensation —Procuring Cause oe Sale.
    If the success of a transaction for the sale of land is directly attributable to the broker originally employed, his right to commissions cannot be defeated by the mere fact that the negotiations were conducted, or the transaction finally consummated, through the medium of another broker, although the terms of the first negotiations may have been varied and commissions paid to such other broker.
    4. Beokebs <&wkey;53 — Compensation—Knowledge oe Ownee.
    Where the owner of land,- after employing defendant to sell it, sold it through the medium of another broker, it was immaterial to defendant’s right to recover for his services that the owner did not have knowledge that the purchaser had been induced to buy through defendant’s efforts.
    5. Beokebs <&wkey;86(4) — Compensation — Evidence— Sufficiency.
    Evidence held not to support a claim that defendant was not entitled to his commission on the ground that he had failed to procure a purchaser who was able and willing to purchase on the terms authorized.
    Appeal from Denton County Court; Ered M. Battorff, Judge.
    Action by G. C. Masters against J. H. Hunt and others.
    Judgment for defendants, and plaintiff appeals. Affirmed.
    Joe S. Gambill, of Denton, for appellant. A. Q. Mustain, of Aubrey, and iSullivan & Hill and Luther Hoffman, all of Denton, for appellees.
   CONNER, (3. J.

Appellant, Masters, sued to recover a balance of $75 alleged to be due upon a promissory note executed by the ap-pellee J. H. Hunt, and to foreclose a chattel mortgage lien upon personal property in which the appellee First Guaranty State Bank of Aubrey, Tex., was alleged to claim an interest, and which property was of the alleged value of $500. Hunt defended on the ground that the alleged balance had been liquidated under the terms of a contract made between plaintiff, Masters, and the said Hunt for the sale of certain lands owned by Masters. A jury trial resulted in a verdict and judgment for the defendants, and the plaintiff has appealed.

The assignments of error only call in question the sufficiency of the evidence to sustain the verdict and judgment. It is insisted that the court should have given a peremptory instruction in appellant’s favor, or, if not, that the verdict is unsupported, “in that the preponderance of the evidence shows that the defendant Hunt is not entitled to recovery, because the preponderance of the evidence shows that the Barton-Yancy Realty Company, and not the defendant Hunt, effected the sale of plaintiff’s land.”

The substance of the evidence relating to the controverted issues of fact and upon which the contentions noted are based is as follows: Hunt testified that Masters proposed that, if he (Hunt) would sell a tract of land for Masters owned by the latter near Club Lake in Denton county, as compensation therefore lie would surrender the note as fully discharged and paid. Hunt testified that he accepted this proposition and immediately set about trying to sell the place. This testimony was substantially corroborated by the testimony of Nola Wilson and her husband, and Ruby Hunt, who testified that they were present at the time of the agreement referred to. J. H. Hunt further testified that on the night of the same day he began his efforts to sell the Masters place, and saw a Mr. W. H. Peden, told Peden about the Masters place, the terms upon which it could be bought, the number of acres in it, etc., and suggested that he had a man in mind, Tom Booe, to whom Peden could sell the place at a profit if he (Peden) would take in on the trade with Booe certain property the latter wanted to trade. There was evidence to the further effect that Peden later conferred with Booe, and yet later went to the Barton-Yancy Realty Company with whom the 'Masters place had been listed, and proposed a trade for the Masters place. The proposed trade was later effected by Peden giving to Masters a $4,500 note owned by him, together with a further note executed by Peden. Peden later sold the placei to Booe, as originally suggested by Hunt. Hunt did not show the land to Peden, nor did he participate in the formal negotiations ending in Peden’s purchase. Both Masters and a member of the Barton-Yancy Realty Company testified that they did not know of Hunt’s participation in the transaction. Peden testified, however, that Hunt was the “first man who ever mentioned to me that Masters had a place for sale or trade. I did not know anything about the place until Hunt told me about it. He was the first man to put me in touch with the Masters place,” and otherwise corroborated Hunt as to what occurred between them. Booe testified that he purchased the Masters farm from Peden; that “Mr. Hunt talked with me about buying the place long before X saw Peden”; that “Mr. Peden soon after I had talked with Hunt called me over the telephone and told me about the place, and I went down and looked at it.”

The court submitted the issue of the alleged agreement between Hunt and Masters to the jury and, among other things, after defining the terms “moving, procuring and efficient cause of the sale,” further instructed the jury to the effect that, unless they found that Masters had entered into the agreement as alleged and that “Hunt was the moving, procuring, and efficient cause of the sale of the farm,” to find for the plaintiff.

We are of the opinion that the evidence not only required the submission of the issue to the juryj but also that it is sufficient to support the jury’s finding in appellee Hunt’s favor. It was not necessary, as the court charged the jury, without objection, that the agent Hunt should have personally conducted the negotiations or should have been present when the sale was completed. The original impulse was evidently given by Hunt. Peden, immediately after the conversations detailed by Hunt, pursued the matter until he finally completed the purchase, and later sold to Booe, a purchaser also furnished by Hunt. Hunt therefore was the procuring, moving cause of the sale by Masters in a very substantial sense. In 4 R. O. L. par. 46, p. 304, it is said, among other things, that:

“The duty of a broker employed to sell is usually performed when through one means or another he has brought his employer and a customer acceptable to the latter into negotiations with one another and his service in doing so may be said to be the procuring cause -of the resulting deal between them.”

The declaration of the author is supported by the citation of numerous authorities.

One of appellant’s contentions is to the effect that appellee Hunt is not entitled to recover inasmuch as the sale under consideration was finally consummated through the Barton-Yancy Realty Company, to whom the evidence shows appellant -paid commissions. But in relation to this subject the writer just quoted (paragraph 57, p. 319), among other things, further says:

“In the absence of an express contract to the contrary, a broker can lay no claim to commissions upon a transaction negotiated without his aid through the efforts of another; but, where his services as well as those of another broker has contributed conjointly to the successful termination of the negotiations in question a different problem arises, the solution of which depends upon whose efforts were the primary, proximate, and procuring cause of the deal negotiated. If the success of the transaction is directly attributable to the broker originally employed, his right to his commissions cannot be defeated by the mere fact that the negotiations were conducted, or the transaction finally consummated, through the medium of another broker, even though the terms of the first negotiations may have been varied.”

The quotation just made furnishes, we think, a sufficient answer to the contention last noted. Nor is it material that appellant should have had knowledge of appellee Hunt’s agency in the actual sale. As illustrating this, we quote from the headnote in the case of McDonald v. Oabiness, 98 S. W. 943, later affirmed by our Supreme Court in 100 Tex. 615, 102 S. W. 721. The headnote reads:

“Where an owner of standing timber, after employing plaintiff to sell the same, sold it himself to a purchaser procured by plaintiff, it was immaterial to plaintiff’s right to recover for his services that the owner was not guilty of fraud in relation to such sale, or that he should have had previous knowledge that the purchaser had been induced to buy through plaintiff’s efforts.”

A further suggestion in argument is to the effect that the terms of the alleged contract did not embody authority to make an exchange, and that it has not been made to appear that the sale or exchange to Peden was upon tlie terms upon which Hunt was authorized to negotiate the sale or exchange; hut we find no substantial foundation in the evidence for these contentions. Hunt in his testimony relating to the contract seems to use the terms “sale” and “exchange” interchangeably, and all of the parties testifying referred to the exchange made between Masters and Peden as a “sale.” Appellant Masters testified, but he did not develop any particular terms of sale or of an exchange which Hunt departed from, or which were variant from the terms upon which the trade was finally consummated with Peden, and, while appellee Hunt testified that Masters gave him the terms upon which he was willing to sell, no specific terms were mentioned, nor did appellant, on cross-examination, seek to develop any specific terms, and we cannot think that the evidence considered as a whole furnishes any substantial foundation for a claim that appellee was not entitled to his commission on the ground that he had failed to procure a purchaser both able and willing to purchase on the terms authorized.

We conclude that all assignments of error must be overruled, and the judgment affirmed.
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