author: PRENDERGAST, P. J.

text:
    MEDLOCK v. STATE.
    (No. 4011.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.
    Rehearing Denied April 26, 1916.)
    1. Criminal Law <&wkey;1037(l) — Appeal—Bill op Exceptions — Statement op Judge.
    A bill of exceptions to conduct of the district attorney presents no error; the judge’s statement showing that defendant withdrew his objection.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2645; Dec. Dig. &wkey;1087(l).]
    2. Criminal Law i@=3982 — Plea por Suspended Sentence — Evidence op Reputation.
    By express provision of Laws 1913, c. 7, § 2 (Vernon’s Sayles’ Ann. Civ. St. 1914, § G095d), when accused, by plea, applies for a suspension of sentence, if convicted, testimony is to be admitted, and the question submitted, as to his general reputation, to enable the jury to determine whether to recommend the suspension.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. &wkey;> 982.]
    3. Criminal Law &wkey;>695(6) — Triai^Objec-tions to Evidence as a Whole.
    Where several items of evidence are objected to as a whole, and part of it is admissible, overruling the objection is not error.
    [Ed. Note. — For other casess, see Criminal Law, Cent. Dig. § 1637; Dec. Dig. <&wkey;>695(6).]
    4. Criminal Law <&wkey;695(4) — Trial—General Objection to Evidence.
    Testimony being admissible for some purpose, admitting it over a general objection that it is incompetent and illegal is not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1636; Dec. Dig. &wkey;>695(4).]
    5. Intoxicating Liquors <&wkey;233(l) — Sales in Prohibition Territory — Evidence.
    On a prosecution for sales of liquor in prohibition territory, evidence that those attending defendant’s dance hall made much noise in the middle of the night and were under the influence of liquor is competent.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 293, 294, 296, 297; Dec. Dig. &wkey;233(l).]
    6. Criminal Law <&wkey;>1169(3) — Harmless Error-Admission op Evidence.
    Erroneous admission of evidence of a fact shown by defendant’s own testimony is harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3139; Dec. Dig. &wkey;>1169(3).]
    7. Words and Phrases — “Bootlegger.”
    In prohibition territory a “bootlegger” means a seller of whisky.
    [Ed. Note. — For other definitions, see Words and Phrases, Second Series, Bootlegger.]
    8. Criminal Law <&wkey;448(2) — Evidence — Fact or Conclusion.
    Testimony that one has the reputation of being a bootlegger is not a conclusion, but as to a fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1036; Dec. Dig. <&wkey;448(2).]
    9. Criminal Law <&wkey;1159(4) — Appeal—Credibility op Witnesses.
    The credibility of witnesses is exclusively for the trial court and jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3077; Dec. Dig. <&wkey;1159 (4)-]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Charles Medlock was convicted, and appeals.
    Affirmed.
    F. J. McCord and Martin & Nelson, all of Longview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of unlawfully engaging in and pursuing the occupation or business of selling intoxicating liquor in the prohibition county of Gregg, and his punishment assessed at the lowest authorized by law. The evidence was amply sufficient to sustain the verdict. It is unnecessary to recite it.

Appellant’s purported bill No. 1 shows that on the trial the district attorney presented another indictment against appellant for the same offense, and stated that he was going to dismiss that case, and did dismiss it. At first appellant objected, but, when the district attorney stated he was going to dismiss that case, appellant withdrew his objections. The judge shows this in his statement, and did not therefore allow or approve the bill. Hence that bill passes out, and presents no error.

By proper plea appellant sought to have his sentence suspended, if convicted. He testified, and on his direct examination swore he had never been convicted of a felony in this or any other state, and that he had never been arrested for anything.

On cross-examination by the state he swore he had a dance hall down at his place where he lived in Longview, and that he sold cold drinks on nights when suppers were given there. (He also denied selling such drinks.) He denied that he had dances there, but said others did. “There is generally a big cro.wd around there every night when we have dances.” He denied that these people were always boisterous, and denied seeing any of them drink or knowing any of them were drunk there, and said he did not know of any loud talking, cursing, or swearing there.

On his redirect examination by his attorneys he swore that “this whisky proposition originated in a falling out between me and my wife in a suit for divorce,” that she wanted to claim some of his property he owned before he married her and that she shot at him one time. The state did not recross him on this matter, but on his recross he swore: “I do bear the reputation of selling whisky.”

No objection whatever was made by him to any of his. testimony given on cross or recross examination, and none by the state to what he testified on his direct or redirect examination.

The constable, Butts, testified for the state that appellant had the reputation of selling whisky; that appellant had a dance hall which he ran up to a short time ago, and frequently had dances there and kept people awake all over the neighborhood; “the character of people who generally stay around there are common prostitutes, and they have had several fights down there,” and had heard complaints about cursing and disturbances and shooting and drunkenness there, and his wife had paid some fines. On cross-examination by appellant the witness testified that appellant out there one night broke his wife’s arm, and she shot at him, and the witness put him under bond for that.

Dr. Francis for the state testified that appellant had the reputation of selling whisky, and “he runs a pretty noisy house; there has been considerable cursing and swearing, whooping and holloing along in the middle of the night from his place.”

The county attorney, Taylor, for the state testified that he and appellant lived about a block apart, and he (the witness) knew what kind of place appellant runs down there from its reputation; that there were quite a number of public gatherings around appellant’s dance hall, the crowds have been boisterous there sometimes, and appellant’s reputation was that of a bootlegger, and that he heard he sold whisky to the crowds at the dance hall when he gave those dances, and he understood that is what he gave the dances for, so as to be able to sell whisky; that a good many complaints had been filed about drunk people being around appellant’s place; some kind of disturbance occurred down there every two or three weeks; “for a while back I think he has kept open house down there two nights in the week;” that appellant had been indicted in the county court for selling whisky; he knew of one case, and possibly two others, but he had not been tried; that it was hard to convict for bootlegging; usually somebody had to be hired to catch them; that, where the bootleggers sell whisky, they usually have particular or special parties to sell it to, and it is a hard matter for an outsider to get it.

Other witnesses testified appellant had the reputation of being a bootlegger.

His bill No. 2 after giving the style and number of the case and court merely states that on the trial:

“The district attorney asked witness F. A. Taylor and others, state witnesses, to state whether or not that the defendant was engaged in running a dance hall, and if there was much noise at said dance hall, and that people were seen in' the streets near the dance hall under the influence of whisky, and if the defendant did not have a band to play for said dance, which wouldl keep the neighbors awake _ at night, and that the defendant had the reputation of being a bootlegger. The defendant objected to said questions for the following reasons: First, that it was not competent and legal testimony, and could not be used for any purpose, and would be highly prejudicial to the rights of the defendant in the case; second, that it called for a conclusion of the witnesses that the defendant had the reputation of being a bootlegger, which was highly prejudicial to the rights of the defendant, especially on his plea for a suspended sentence. The court overruled the objections of the defendant and allowed F. A. Taylor and other state witnesses to testify that defendant was engaged in running a dance hall, and there was much noise at times at said dance hall, and that people were seen in the streets near the dance hall under the influence of whisky, and that the defendant had a band to play for said dance which would keep the neighbors awake at night, and that the defendant had the reputation of being a bootlegger, to which action of the court the defendant then and there excepted.”

This is the full bill. The judge qualified it, stating, this testimony was admitted on the issue of suspended sentence.

The judge charged the jury that all testimony as to other indictments and charges against defendant, and his general reputation for selling whisky was admitted only for the purpose to enable them to pass on the question of whether or not they would suspend his sentence, and for no other purpose. No objection was made to this part or any other part of the charge.

The statute on suspended sentence expressly prescribes that when an accused, by proper plea in time, applies for a suspension of sentence, if convicted, “the court shall permit testimony, and submit the question1 [to the jury], as to the,general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence.” Section 2, Act Feb. 11, 1913, p. 8 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6095d). This court has thoroughly considered this statute and construed it in several opinions, and in Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 361, held that, when a defendant pleads for a suspension of his sentence, “he puts his reputation in issue, and any legitimate testimony bearing on that issue becomes admissible, and by filing sucli plea be opens tbe door for testimony bearing on bis reputation.” “And when be files a plea asking a suspension of sentence, this in and of itself puts in issue bis reputation as a peaceable, law-abiding citizen, and any evidence which tends to show that he is not entitled to such reputation is admissible in evidence. The . fact that one has theretofore been convicted of a felony bars him from availing himself of the plea, but the fact that he has not before that time been convicted of a felony does not in and of itself entitle one to a suspension of sentence. It authorizes him to enter the plea, and, if his reputation theretofore is shown to be such that the best interests and welfare of the state will not suffer by suspending the sentence, and is such that hope can be entertained of his reformation by extending this clemency, it may be done. But, if his reputation, the life he has lived, is such there is but little or no hope of reformation without his being compelled to undergo punishment, and that the best interests of society demand his imprisonment, the punishment should not be suspended. This, as we understand it, is the object and purpose of the law, and, when one elects to file this plea asking for clemency, if found guilty, the law puts in issue his past reputation, and evidence of the character of life he has lived in the past is admissible to enable the jury to determine whether or not the clemency should be extended.” And we also expressly held therein that testimony to the effect that the accused had been arrested three or four times on misdemeanor charges not involving moral turpitude, and had been in jail two or three Jdmes, was admissible on this issue. See, also, Martoni v. State, 74 Tex. Cr. R. 91, 167 S. W. 349, and Conatser v. State, 170 S. W. 314, to the same effect, and in both these cases said Williamson Case was cited and approved. In the Martoni Case, on this issue, we held testimony that the defendant therein had been indicted for bootlegging, and that he had a United States internal revenue license to sell liquor, was admissible. And in the Conatser Case we held testimony that the defendant therein ran an assignation house was admissible on said issue.

Now, his bill shows his objections were to certain questions, because: (1) It was not competent and legal testimony, and could not be used for any purpose; and (2) that he had the reputation of a bootlegger called for a conclusion of the witness. It is well established in this state that, where more than one or several items of testimony is objected to as a whole, and a part of which is admissible, and other parts not, it is not reversible error to overrule such objection, and that, where testimony is admissible for some purpose, it is not error to admit it over a general objection that it is incompetent and illegal. Ortiz v. State, 68 Tex. Cr. R. 526, 151 S. W. 1056, and authorities therein cited. In this case appellant’s objections were to all said testimony shown by the bill generally and in a lump. Undoubtedly that part of the testimony, in substance, that at his dance hall run by him there was much noise made by the parties there, cursing and swearing and whooping and “hollering” in the middle of the night, and that the people attending his dances were seen in the streets near his hall under the influence of whisky, was clearly admissible, as tending to prove the case against him. Pike v. State, 40 Tex. Cr. R. 614, 51 S. W. 395; Sasser v. State, 73 Tex. Cr. R. 539, 166 S. W. 1164. See, also, Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169; Myers v. State, 56 Tex. Cr. R. 223, 118 S. W. 1032.

There is another well-established rule, that even the erroneous admission of testimony is not cause for reversal if the same fact is proven by other evidence not objected to. Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169; Tinker v. State, 179 S. W. 573; and a large number of other cases. While appellant was on the stand for himself, and before the state introduced any testimony on his plea for a suspended sentence, he swore that he bore the reputation of selling whisky, which, of course, in prohibition territory means a bootlegger, and is so understood and commonly designated; so that, he himself having so testified, without any objection whatever, the same testimony by others over his objections would present no error, even if inadmissible. Of course, such testimony would not be a conclusion, but a fact, anyway. In no event does his bill present reversible error.

In his brief he severely attacks one of the state’s material witnesses as unworthy of belief, etc. But this was exclusively for the jury and trial judge.

There being no reversible error, the judgment will be affirmed.
      ©omFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    TUDYK v. STATE.
    (No. 4001.)
    (Court of Criminal Appeals of Texas.
    March 29, 1916.
    Rehearing Denied April 26, 1916.)
    1. Assault and Battery <&wkey;92 — Aggravated Assa ulo>-Bvidence.
    In a prosecution for assault to murder, evidence held, insufficient to raise the issue of aggravated assault.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 137-139; Dec. Dig. <&wkey; '92.]
    2. Criminal Law <&wkey; 1038(1) — Appeal — Motion for New Trial — Grounds—Consideration.
    The Court of Criminal Appeals cannot consider the grounds assigned as to the instructions after verdict in the motion for a new trial, unless fundamental error is presented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. &wkey;3l03S(l).]

      3. Criminal Law <§=>1038(1) — Failure to Submit Issue.
    In a prosecution for assault to murder, it was'not fundamental error to fail to submit the issue of aggravated assault, where there was hut little testimony tending to raise the issue.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. <§=>1038(1).]
    Appeal from District Court, Wilson County ; F. G. Chambliss, Judge.
    Felix' Tudyk was convicted of assault to murder, and he appeals.
    Judgment affirmed.
    J. E. Canfield and King & West, all of Floresville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

Appellant went to trial without an attorney. He made no motion- to postpone the case, nor expressed any desire for time to secure an attorney. The court appointed an attorney to file a plea asking for a suspension of sentence, and this was submitted to the jury by the court, but the jury refused to recommend a suspension of the sentence.

After appellant had been convicted the appellant’s relations employed attorneys, and they filed a motion for a new trial. In it they do not contend that any testimony was improperly admitted, or, if a new trial was granted, they could or would be able to adduce any additional testimony in regard to the shooting of John Olenik by appellant. No sworn motion is filed setting forth any additional testimony that could be adduced if a new trial was granted.

The only bill of exceptions in the record is that one of the state’s witnesses was seen drinking whisky during the trial of the case. No exceptions were reserved to the charge of the court, but in the motion for a new trial it is contended the court should have submitted the issue of aggravated assault. Appellant testified that he and a woman named Lucy Ciomperlik started rabbit hunting; that they saw John Olenik and Willie Schmidt in the watermelon patch, and Lucy Ciomperlik told him to shoot and frighten the boys, and he shot to frighten them with no intention of shooting Olenik. This would tend to raise the issue of aggravated ■ assault. However, Lucy Ciomper-lik swears she did not tell appellant to shoot and frighten the boys; that when they came up with the boys she left appellant and went to talk to John Olenik, and while she was talking to Olenik appellant shot him; that there was nothing said at any time about shooting to frighten the boys. John Olenik swears that when Lucy Ciomperlik began talking to him appellant cursed him and called him a “G-d d-n son of a b-h,” saying, “I am going to shoot you,” and fired on him, the shot ranging from his head to his knees. The only other witness present, Willie Schmidt, testifies that when Lucy Ciomp-erlik commenced to talk to Olenik, appellant cursed Olenik and then shot him. All three of them positively refute the idea there was no intent to shoot Olenik; they all swear to a specific intent, and when it is made manifest that the shot scattered from Olenik’s head to his knees, it is apparent that Olenik, Schmidt, and Miss Ciomperlik are supported by the physical facts when they swear that the gun was aimed directly at Olenik, and appellant “did not shoot over him and the shot fall on Olenik,” as appellant testified.

We have carefully reviewed the record, and we cannot say the trial court erred ⅛ not granting a new trial. The writer will say that he is of the opinion had he been trying the case he would have submitted the issue of aggravated assault on the testimony of appellant, as his testimony slightly raises that issue, although all other eyewitnesses dispute him most emphatically on the testimony tending to raise that issue; but the Legislature has provided that if there is no objection to the charge before it is read to the jury, and under this statute we cannot consider grounds assigned after verdict in the motion for a new trial unless fundamental error is presented and we cannot hold that it is fundamental error to fail to submit an issue that, taking the testimony as a whole, there is but little testimony tending to raise such an issue.

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


author: DAVIDSON, J.

text:
    GOMEZ v. STATE.
    (No. 4043.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.)
    1. Criminal Law <§=>1097(4) — Abbeals—Rec-ords — Statement op Facts.
    Contentions on appeal that the conviction was contrary to the law and the evidence, and was not supported .by the evidence, cannot be considered, where the record contained no statement of facts.
    [Ed. Note. — For other cases, see -Criminal Law, Cent. Dig. §§ 2934, 2938, 2939; Dec. Dig. <§=>1097(4).]
    2. Criminal Law <§=>1175 — Verdict.
    Contentions, in the motion for a new trial, that the verdict was written on an indictment, but did not show which defendant was convicted of the charge, presented no reversible error, where a severance had been obtained and appellant alone was on trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3179-3182; Dec. Dig. <§=> 1175.]
    Appeal from District Court, Austin County ; Frank S. Roberts, Judge.
    A. Gomez was convicted of sodomy, and he appeals.
    Affirmed.
    Johnson, Matthaei ■& Thompson, of Bell-ville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of sodomy, his punishment being assessed at five years’ confinement in the penitentiary.

The indictment is attacked as being insufficient. It follows the form laid down by Judge Willson in Willson’s Texas Criminal Forms No. 261, wbicb bas been beld sufficient in its averments to state tbis character of case of sodomy. There were no exceptions to the charge. The motion for new trial is based: First, upon the insufficiency of the indictment; second, that the verdict of the jury is contrary to the law and the evidence; and, third, that the verdict is not supported by the evidence introduced by the state. The first proposition has been met by reference to Judge Willson’s forms. The second and third grounds may be answered by stating that the record is before ús without a statement of facts.

It was also contended in the motion for new trial that the verdict of the jury is written on an indictment, but does not show which defendant was found guilty of the charge of sodomy. Gomez, appellant, alone was on trial, a severance having been obtained. As this record is presented to the court, we find no reversible error.

The judgment will therefore be affirmed.
      <§=»For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    CASE v. STATE.
    (No. 4038.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.)
    Criminal Law <©=>1099(10) — Appeal and Error1 — Review.
    Where the record contained no bills of exception, no statement of facts, and a transcript of the evidence was not signed by the attorneys nor approved by the trial judge, there was no question presented for review on appeal.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2873; Dec. Dig. <©=>1099(10).]
    Appeal from District Court, Rains County ; William Pierson, Judge.
    Babe Case was convicted of rape, and he appeals.'
    Affirmed.
    C. C. McDonald,- Asst. Atty. Gen., for ■ the State.
   HARPER, J.

Appellant was convicted of rape on a girl under 15 years of age, and his punishment assessed at 5 years’ confinement in the state penitentiary.

The record contains no bills of exception and no statement of facts. There is with the record what purports to be a transcript of the evidence, made out by the stenographer in question and answer form, but it is not signed by the attorneys, nor approved by the trial judge. Under such circumstances, there is no question presented in the motion for a new trial we can review.

The judgment is affirmed.


text:
    FOARD v. STATE.
    (No. 4029.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.
    Rehearing Denied May 3, 1916.)
    Criminal Law <©=>1020 — Appeal — County Courts — Jurisdiction.
    Where the fine imposed by the county court on a trial de novo, on appeal from a corporation court, was $100, further appeal will not lie.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2578-2580; Dec. Dig. <©=> 1020.]
    Appeal from Bexar County Court; Nelson Lytle, Judge.
    F. O. V. Foard was convicted, and appeals. Appeal
    dismissed.
    Leonard Brown, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This cause originated and was tried in the corporation court of the city of San Antonio. It was appealed therefrom to the county court, where a trial de novo occurred. The fine assessed was $100 even. This court, therefore, has no jurisdiction of this appeal, and the Assistant Attorney General’s motion to dismiss it is therefore granted. Grigsby v. State, 183 S. W. 143.

The appeal is dismissed.


author: HARPER, J. PRENDERGAST, P. J.

text:
    KELLEY v. STATE.
    (No. 4021.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.
    Dissenting Opinion April 13, 1916.)
    1. Criminal Law <®=980(1) — Evidence—Admissibility.
    In a prosecution for robbery, where accused admitted that he committed the crime charged and offered no evidence to contradict the state of facts, the state might introduce evidence that he committed the robbery, and the mode and method of its accomplishment, to assist the jury in assessing punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2493, 2496; Dec. Dig. <©=> 980(1).]
    2. Criminal Law <©=>351(4) — Evidence—Admissibility.
    In a prosecution for robbery, evidence that the accused had resisted arrest, the extent of resistance, and that he had attempted to escape, was admissible.
    [Ed. Note. — For other cases, see. Criminal Law, Cent. Dig. § 780; Dec. Dig. <©=>351(4).]
    3. Criminal Law <©=>369(1) — Evidence—Res Gestas.
    Where the identity of the accused was not in question, and his intent to commit robbery was proven and admitted, and he had not put his reputation in issue, evidence that he had attempted to rob the witness at another place five miles away and had shot at the witness and his clerk when they attempted to escape, not being a part of the res gestee of the transaction for which the defendant was on trial, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 822; Dec. Dig. <©=>369(1).J

      4. Criminal Law ©=1169(11) — Appeal — Prejudicial Error.
    In a prosecution for robbery, the admission of testimony that the accused had committed another robbery on the same night and had fired on the witness when he attempted to escape was prejudicial error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3137; Dec. Dig. ©= 1169(11).]
    5. Criminal Law ⅞=»380 — Evidence—Former Conviction.
    Where the reputation of the accused was not in issue, evidence that he had been confined in the penitentiary was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. ©=>843, 845; Dee. Dig. ©= ■380.]
    6. Criminal Law ©=719(1)-Trial-Argu-ments oe Counsel.
    In a prosecution for robbery, arguments of the prosecuting attorney, with respect to the ■horrors of a murder with which the defendant was not shown to have had any connection, were improper.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. ©=719(1).]
    7. Criminal Law ©=1171(3) — Trial—Arguments op Counsel.
    In a prosecution for robbery, remarks by the prosecuting attorney not confined to evidence adduced on the trial and legitimate deductions therefrom, and tending to prejudice the jury against the accused, were ground for reversal, though accused had admitted his guilt.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. ©=1171(3).]
    Prendergast, P. J., dissenting.
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Frank Kelley was convicted of robbery, and lie appeals.
    Reversed and remanded.
    Newton P. Morrison, El. J. Gibson, and W. F. Bane, all of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at 99 years’ confinement in the state penitentiary.

When the defendant was called upon to enter a plea to the indictment, he entered a plea of guilty. The indictment charged appellant with robbing J. M. Caywood. The evidence would show that appellant and Dave Weidner entered the office of the Oriental Oil Company and, with pistols drawn, ordered the men present “to put up their hands,” and this order was promptly obeyed. Appellant then went to the cash register and robbed it, while Weidner kept the men covered with a pistol. After accomplishing the robbery, they backed out of the office. J. M. Caywood, on the trial, positively identified appellant as one of the persons who committed the robbery, as did also T. F. Caywood and B. B. Baker. Tod Ground, who was also present, was unable to identify appellant as the person who committed the robbery, but testified to the other facts in consonance with the testimony of the two Caywoods and Baker. When the state undertook by testimony to identify the weapon used by appellant on that occasion, the record shows that appellant admitted that one of the pistols offered in evidence was the pistol he used on that occasion.

Thus it is seen appellant admitted he was the person who robbed Caywood, that he used a firearm in effecting the robbery, and offered no evidence to contradict that state of facts. However, this would not prevent the state from offering and introducing evidence if it saw proper to show that appellant was the person who committed this robbery, and the mode and method of the accomplishment of this robbery, that the jury might determine as to the punishment that should be assessed. Neither do we think there was any error in admitting the testimony that when it was sought to arrest appellant for this identical offense, that appellant resisted arrest, the resistance offered, and that he sought to escape out of the window. There is a contention made that appellant did not know that the men attempting to arrest him were officers. If this was true, there might be merit in appellant’s contention, but we think it manifest that appellant knew they were officers, for when one of the officers finally shot him through the hat as he put his head out of the window as if to escape, “he hollered he would give up, and surrendered.”

However, as appellant made no contention as to his identity as the person who robbed Caywood, made no question that his intent was to rob Caywood by the use of firearms, and did rob him by that mode and means, in fact admitted this to be true by pleading guilty, we think the court erred in admitting the testimony of J. C. McFarland that appellant had also attempted to rob him that same night, at a point five miles distant from the scene of the Caywood robbery, and that when he and the clerk in his drug store attempted to escape, appellant and Weidner, who was with appellant on both occasions, shot at him and his clerk four times. The court, in approving the bill, says:

“That the above testimony was admitted in evidence in this case for the following reasons: The defendant is charged with the use of firearms, in committing the offense of robbery charged in the indictment in this cause; that the defendant within about an hour prior to the time of the robbery charged in this indictment attempted robbery of what is known as McFarland’s drug store situated in East Dallas and some five or six miles distant from the scene of the robbery charged in the indictment in this case. That the court admitted the testimony of the above witness for the reasons: (1) That the jury should have been informed and should have in their possession knowledge of the intent of the defendant at the time the robbery in this indictment was committed; (2) the intent, not only to rob the oil station, but the jury should also have been in possession of what use the defendant intended to make of his pistol in the event the keeper of the oil station refused to obey the defendant’s command to put his hands up. It is true that the defendant and his principal, Dave Weidner, in the offense charged in this indictment, were identified by all the men who were in the oil station at the time same was robbed; yet, said robbery occupied a period of only a few seconds’ time.”

It is thus seen that the court recognized there was no question in the case as to the identity of this defendant, nor of his intent to commit the robbery charged in this indictment, but he admitted the testimony on the theory that the state would have the right to show that the appellant intended to go further than robbery if Caywood had resisted, or sought to escape, and hill or attempt to hill him. Yet in the commission of the offense for which he was on trial, there was no resistance or attempt to escape, and no attempt on appellant’s part to shoot or hill Caywood.

In the robbery of the McFarland store, at another place and time, McFarland did attempt to escape, and was shot at by appellant. In a case now before this court appellant has been tried for firing those shots and given 15 years in the penitentiary for firing those shots. Then why should such testimony be admissible in this case? It could and would only go to the enhancement of the punishment to be assessed in this case, by showing that he attempted to hill a man who sought to escape while he was robbing him. It was a different crime, committed at a different time and place, and not being a part of the res gestse of the transaction for which appellant was on trial, the identity of appellant not being questioned, and his intent to commit robbery and that he did rob Caywood being proven and admitted, no evidence that he was the character of man who would commit murder, if necessary to accomplish the robbery, was admissible, when he had not put his reputation in issue; and no evidence that he had committed other robberies, and in attempting to do so had also attempted to commit murder, was admissible. He may be and probably will be tried for each of these offenses, and when so tried adequate punishment assessed in each case, but as he did not shoot Caywood, nor attempt to do so in robbing him, evidence that he did attempt to rob McFarland, and shoot at him, was inadmissible under the facts in this case, and the court should have sustained the objection when made. Had appellant received the minimum punishment, as he admits his guilt, we might and would hold that the error was harmless, but appellant did not receive the minimum punishment; instead of 5 years, the jury assessed 99 years against him; the evidence accomplishing the purpose for which it was introduced — increase of punishment.

On another trial the state’s counsel will not seek to prove that appellant has heretofore been confined in the penitentiary, unless he should testify or put his reputation in issue. He did neither on this trial.

Again, the prosecuting officer will confine his remarks to the evidence adduced on the trial and legitimate deductions therefrom. He should not argue to the jury the horrors of a woman being choked to death with a handkerchief tied about her neck, in the suburbs of Dallas. Appellant is not shown to have had any connection with that crime. Nor shall he tell the jury, “the city of Dallas requires the execution of this defendant.” The city of Dallas had nothing to do with the punishment to be assessed against this defendant. That was a question to be determined by the jury on the evidence they had, and the desires of no person should be made known to the jury in argument. Several other objectionable remarks were objected to, such as:

“This place is being infested by a band of highwaymen, and that good women are nightly sitting at their homes afraid their husbands will be knocked in the head by some highway robber.” “We do know that men are found in the streets of Dallas knocked in the head and weltering in their 'blood. We do know that our fair women are murdered by highwaymen and that these crimes are being committed by some Rod Kelley.” “Every man who tied a handkerchief around an unsuspecting woman’s neck and choked her to death had a mother,” etc.

Such remarks have no basis in the testimony on this trial. No woman was present when appellant committed the robbery he admitted committing. There was no evidence that he had ever assaulted any woman, choked one to death, or robbed a woman. In the excess of their zeal our prosecuting officers should not go beyond the record.

For the errors pointed out it will be necessary to reverse and remand this case, although appellant entered a plea of guilty, as the errors committed would and probably did contribute to the very high penalty assessed —99 years confinement in the penitentiary.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting).

At first blush, it might seem that it was error for the court to permit the state to introduce evidence of the attempted robbery by appellant and his partner in crime of the persons at the McFarland drug store and his and his partner’s shooting at these persons with intent to kill them, because they attempted and did escape from appellant and his partner at the time of that attempted robbery. It so seemed to me when this question was first presented in this case in oral argument, but upon mature reflection and investigation, I have reached the firm conviction and conclusion that said testimony was admissible, and that the trial judge made the proper ruling, admitting it. I will but briefly state the grounds of my opinion.

Intent of the accused in most crimes, and especially in this, is very material. One object of the law and the Legislature in providing that the death penalty could be inflicted in a robbery case with firearms was to let the state prove, if it could, not only the robbery, but that accompanying the robbery, the robber intended to also inflict death with his firearms in case of resistance or an attempt to escape by the victim. Hence, that it was the intent of the robber to inflict death in this case to accomplish the robbery was very material. It is therefore not only the privilege, but the duty, of the prosecuting officer to make such proof, if he can, so as to enable the jury to inflict the death penalty if the facts and the circumstances of the ease justify it. One of the principal objects of the law in requiring the state to introduce proof upon a plea of guilty is for the very purpose of giving the jury all the facts so that they will thereby be enabled to assess punishment in accordance with the enormity of the crime. It is true, the jury might infer from robbery with firearms that the robber might have intended to inflict death to accomplish his robbery, but the state is not bound to rest alone on such inference, but in addition, may by proof show the actual intent to commit murder in the robbery, and if it can do so by legitimate evidence, it is its duty to do so.

If the state must be restricted to the immediate acts of the robbery, then all the jury would have would be that a robbery was committed with firearms and the circumstances were such as not to indicate with positiveness that the robber intended to kill, if he thought necessary, to accomplish the robbery. Suppose, as an illustration, that the accused and his partner had stated expressly to friends just before the robbery, not only that they were going to rob or attempt to rob, as they did, but that if the parties robbed or any of them attempted any resistance or sought to escape being shot down, they intended to shoot and kill them in such contingency. No one could question that that evidence would be admissible to enable the jury to know to what extent the robbers would go and their intent to kill in order to effect their crime. Of course, the state is not restricted to positive evidence alone, but it can resort, and should, to any facts or circumstances which would show such intent, or tend to do so.

Now take the facts of this case. Appellant and his said partner in crime, on the night of the robbery in this case armed themselves with deadly weapons and started out in the hours of the night with not only robbery as their intent, but murder, if necessary, to effect it. With these intentions they began their raid. They first went to the McFarland drug store, suddenly appeared therein, each with a six-shooter drawn, cocked and presented, demanding that the proprietor and his clerk throw up their hands, which order was promptly complied with. Then appellant made towards the cash drawer. In doing so he and his partner for the moment, in their eagerness to get the cash, ceased to watch their victims. Their victims immediately concluded that they could escape so as to save their lives, not their money, and attempted to do so. As showing unquestionably their intent, the robbers proceeded to shoot each twice at their intended victims, with the intent to murder them, hut not succeeding, they hastily beat their retreat. What did they then do? Did they abandon their intent to rob and to kill in order to accomplish it? By no means, but instead, on their same raid, during the same night, in the same city, they proceeded across the city to another portion of it to carry out their said intents to rob and to murder to accomplish it, and the same two principals in crime, with the same two deadly six-shooters, proceeded to rob, and the facts and circumstances would establish to any reasonable man that their intent in the robbery in this case was to inflict murder if their victims resisted or attempted to escape, because they had just shortly before this shown expressly that such was their intent. In my opinion, the court was correct in admitting the evidence it did for the purpose of showing this intent to murder.

It is true and well established that ordinarily one crime cannot be proven on the trial for another, but it is as equally well established, both in reason and on authority, that when intent is necessary or proper to be shown, it can be shown by evidence, even though that evidence involves the commission of another distinct crime. It would be proper under such circumstances, as the trial judge did in this ease, to limit the introduction of that evidence to the purpose for which it was admitted, to wit, intent.

For these reasons, I am impelled by what I deem to be my duty to dissent from the reversal of this case.
      <@=>For other cases see saiwe topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


text:
    WILLIAMS v. STATE.
    (No. 4034.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.
    Rehearing Denied May 3, 1916.)
    1. Ckiminal Law @=>531(3) — Confession — Caution.
    It is not error to admit, in rebuttal of the evidence given by accused, his confession, where there is both testimony that he was warned as to its being used against him and a statement to that effect in the confession.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1215; Dee. Dig. <®=>531(3).]
    2. Homicide @=>300(9)~Manslaugiitek- — Instructions — Unsupported by Evidence.
    Where there was no basis in the testimony for a special charge that if accused was under apprehension of death or great physical danger when he killed the deceased, he should not be found guilty of an offense greater than manslaughter, and no testimony that would raise the issue of manslaughter, refusal to give the charge held not error.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. § 624; Dec. Dig. @=3300(9).]
    Appeal from District Court, McLennan County; Nat Harris, Special Judge.

      John Williams was convicted of murder, and appeals.
    Affirmed.
    T. Edgar Johnson, of Waco, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

There are but two bills of exception in the record. The first complains of the action of the court in admitting the confession of appellant in evidence. Assistant County Attorney Woods took the statement, and he testified to a state of facts which rendered it admissible. At the beginning of the confession is the following warning:

“I, John Williams, 'being under arrest and charged with the offense of murder and being warned by D. O. Woods, Asst. Co. Atty., that I do not have to make any statement at all in reference to said charge, and that any statement I make may be used in evidence against me on my trial for the offense concerning which my confession is herein made, do freely, voluntarily and without compulsion or persuasion make to the said D. C. Woods the following statement and confession.”

Then follows the confession, in which appellant admits having shot the deceased. Under such circumstances there was no error in admitting the confession in rebuttal of the evidence given by appellant on the trial.

The only other 'bill complains of the action of the court in refusing a special charge reading as follows:

“Gentlemen of the jury, you are instructed that if you believe from-the evidence that the defendant John Williams was'under the apprehension of death or great physical danger when he fired the shot that killed Allison Criner, then you cannot find the defendant guilty of an offense greater than manslaughter.”

There is no basis in the testimony for such charge, and no testimony that would raise the issue of manslaughter. Consequently there was no error in refusing to give such instructions.

The judgment is affirmed.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HALL v. STATE.
    (No. 4031.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.
    Rehearing Denied May 3, 1916.)
    1. Criminal Law <&wkey;59o(l) — 'Trial—Continuance.
    In a homicide case, the action of the trial court in refusing a continuance on the ground of the absence of defendant’s witness who would testify that deceased was in his restaurant drinking and had insulted his wife shortly before the crime, was not error, since witnesses on both sides testified that the deceased had been drinking, and the fact that he had insulted witness’ wife at another time and place, could not have thrown new light on the transaction.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. § 1328; Dec. Dig. <&wkey;>595(l).]
    2. Criminal Law <&wkey;596(l) — Trial—Continuance.
    In a homicide case, the fact that all other eyewitnesses to the crime had appeared and testified, and that the testimony of a desired absent witness for defendant could or would be but cumulative, would be no ground to overrule a first application for continuance to secure his attendance.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1328; Dec. Dig. &wkey;596(l).]
    3. Criminal Law <&wkey;594(3) — Trial—Motion for Continuance.
    The refusal of a continuance to enable the defendant to secure the attendance of an eyewitness, who was a traveling vaudeville actor and whom the defendant and his counsel had been unable to locate from November 13th to December 9th, there being no substantial hope held out to the trial court that by the postponement of the case the witness could be located and his attendance secured, was not error.
    [Ed. Note. — For other- cases, see Criminal Law, Cent. Dig. § 1332; Dec. Dig. &wkey;594(3).]
    4. Affidavits <&wkey;5 — Affidavit Taken by Counsel — Validity.
    A motion for continuance may not be sworn to before one of the defendant’s attorneys, and if objected to on this ground, will be stricken from the record.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. &wkey;5.]
    5. Homicide &wkey;>295(l) — Trial—Instructions -Self-Defense.
    Where the court fully presented self-defense and gave the defendant’s special charge on that issue, an instruction that insulting words or gestures or an assault and battery so slight as to show no intention to inflict pain or injury are not adequate cause to reduce an unlawful killing from the degree of murder to manslaughter, being in the words of Code Cr. Proe. 1911, art. 1131, was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606, 607; Dec. Dig. &wkey;295(l).]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Will Hall was convicted of murder, and he appeals.
    Affirmed.
    Forrester & Stanford, of Waco, for appellant. C. C.’ McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

Appellant’s first contention is that the court erred in overruling his application for a continuance on account of the absence of George Senter and Frank Rucker. As to George Senter, the testimony alleged he would testify to would not have been admissible had he been in attendance on the court. It is not alleged that this witness knew anything about the facts of this case, or any matter leading up to the difficulty, it being alleged only that shortly before deceased was killed in the clubroom, deceased, at another and different place, had been in the restaurant of George Senter, drinking, and had insulted Senter’s wife. It was shown by all the witnesses who testified in the ease, both for the state and defendant, that deceased was drinking that night, and if it had been shown that he had insulted Senter’s wife at a different time and place, it could and would have thrown no light on this transaction.

As to the witness Frank Rucker, the testimony would place him at the scene of the killing, and if diligence was used to secure his attendance perhaps the application should have been granted. The fact that all other eyewitnesses to the transaction appeared and testified for the state and defendant, and his testimony could or would be but cumulative of the testimony of some of these witnesses, would be no ground to overrule the application, it being the first application for a continuance. The killing took place on the 9th of October; the grand jury returned a bill of indictment on October 23d, and appellant on October 27th, had a subpoena issued to McLennan county for this witness. It was returned on November 13th, showing that the witness had left Waco, and the sheriff had been unable to locate him. The c-ase was not called for trial until December 9th. No other or different process was obtained for the witness until the ease was called for trial on December 9th. While in the application for a continuance no reason is stated why no additional process had been asked for after November 13th until the day of the trial, yet attached to the motion for a new trial is the affidavit of appellant’s counsel stating that the reason they got out no additional process was that after diligent inquiry they had been unable to learn the whereabouts of the witness; that all they could learn was that he was a member of a vaudeville company and had left Waco with the company, going to East Texas. It is thus apparent that Rucker is a transient person, going from place to place, and if appellant and his counsel had been unable to locate the witness from November 13th to December 9th, what assurance is there they would be able to locate him by the next term of the court? Appellant’s counsel made the affidavit to the motion for new trial on D cesmber 23d, and they were still unable to locate the witness Ruck-er, and if after 5 or 6 weeks it was impossible to locate the witness, the trial court in acting on the motion must have felt justified in concluding that the prospect of ever locating the witness was but meager, and with no assurance he had been or could be located within any reasonable time, no good or useful purpose would be accomplished by granting a new trial and postponement of the case. If there had been any assurance given that the witness had been or could be located, doubtless the trial court and this court might take a different view of the matter. As said by this court in Smith v. State, 148 S. W. 723:

“While it is always to be regretted that a person on trial for his life or liberty is deprived of the attendance of a witness desired, yet, if from the evidence there does not seem to be a probability that the witness can be secured by a postponement, no good or useful purpose would be subserved in postponing the case, and the state cannot be deprived of the right to try a man because it is impossible to secure the attendance of a witness desired.”

If from November 13th to December 23d, by diligent inquiry, no one could be found who could give information .of the whereabouts of the witness, there could be but little reason assigned to give further time to see if some one could not be found who could locate the witness — a traveling vaudeville actor. As held by this court in Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120:

“In the light of this record, we do not think there is probable reason to believe the attendance of the witness could be secured at another trial of this case.”

So we might say in this case. No assurance is held out that the attendance of Ruck-er can be secured — he has disappeared, leaving behind no clue to locate him if, as contended by appellant, they have been diligent in their inquiry covering some 6 weeks’ time. See, also, Sinclair v. State, 34 Tex. Cr. R. 453, 30 S. W. 1070.

The state also calls our attention to the fact that the motion was sworn to before one of the attorneys of appellant. This is not proper practice, and had the state in the trial court made a motion to strike it from the record on this ground, it should have been sustained, unless appellant had amended it by swearing to it before some officer not representing him in the trial. MCr. R. 169, 131 S. W. 567. However, as the trial court considered the motion, we have passed on it on its merits, and as there was no substantial hope held out to the trial court that by a postponement of the case the witness could be located and his attendance secured, we cannot say the court abused the discretion confided to him by the law’ of this state.

The court fully defined manslaughter as applicable to the facts of this case, in a manner not complained of, but also instructed the jury:

“Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, are not adequate cause to reduce an unlawful killing from the degree of murder to manslaughter.”

Appellant complains of this paragraph of the charge. This paragraph is but a copy of article 1131 of the statute and peculiarly applicable to the testimony in this case. The state’s testimony is, that appellant was standing in the door of the clubroom, and deceased, in passing, brushed up against him and perhaps stepped on his foot, at once asking to be excused. Of course, the testimony of defendant would have deceased cursing him, striking him and making a “hip-pocket play.” The court fully presented self-defense, and gave appellant’s special charge on that issue.

Another' exception to the charge was to that portion of the charge limiting the testimony of A. P. Burkhead. As the court gave appellant’s requested charge on this issue, this eliminated this exception.'

The court gave all the charges requested by appellant, submitted murder, manslaughter, aggravated assault, and self-defense in a manner applicable to the evidence in this case. No exception was reserved to the introduction of any testimony. So the only question in fact presented by the record is the one contending that the case should have been continued on account of the absence of Rucker, and this we have passed on above.

The judgment is affirmed.
      (grroPor other cases see same to'pic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SMITH v. STATE.
    (No. 4032.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.
    Rehearing Denied May 3, 1916.)
    1. Homicide <&wkey;244(l) — Self-Defense—Sufficiency of Evidence.
    In a prosecution for murder, evidence held to show that decedent had made no demonstration, of any character, to do defendant personal harm.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 507; Dec. Dig. &wkey;244(l).]
    2. Homicide <&wkey;300(9) — Insteuction — Self-Defense.
    It is not error to fail or refuse to charge on self-defense, though threats by decedent are in evidence, if there is no evidence that at the time of the killing decedent was doing some act manifesting an intention to execute the threats.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 624; Dec. Dig. <&wkey;>300(9).]
    3. Homicide <&wkey;300(2) — Instruction — Defense OF PEESON OB PROPERTY — STATUTES.
    In a prosecution for homicide, where the evidence has the least tendency to show that the killing was done in defense of person or property, defenses governed by Pen. Code 1895, arts. 675, 677, the court must charge the law governing both defenses, stating them distinctly and not blending them together.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 616; Dec. Dig. &wkey;300(2)J
    4. Homicide &wkey;>269 — Premeditated Killing —Sufficiency of Evidence.
    In a prosecution for murder, evidence held sufficient to raise issue whether defendant killed decedent in the execution of a previously formed intent or plan to take his life, and not in defense of his property.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 563; Dec. Dig. <S&wkey;269.J
    5. Criminal Law &wkey;>770(2) — Trial — Instructions.
    In a prosecution for homicide, the state is entitled to have presented by the charge its theory of the killing, which has some support in evidence, as well as that of defendant.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. &wkey;>770(2).]
    6. Criminal Law <&wkey;814(3) — Trial—Instructions — Abstractness.
    In a prosecution for crime, instructions on an issue not raised by the evidence are properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 1985; Dec. Dig. i&wkey;> 814(3).]
    Appeal from District Court, 'McLennan County ; Richard I. Munroe, Judge.
    A. D. Smith was convicted of manslaughter, and he appeals.
    Affirmed.
    Farmer & Farmer and Taylor & Taylor, all of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with murder, and when tried he was convicted of manslaughter, from which judgment he prosecutes an appeal to this court.

The court- submitted defense of property, but appellant also earnestly insists that the court should have charged on defense of his person, and that he committed error in not so doing. If the issue is raised by the testimony, appellant properly presents' the question by showing that he excepted to the charge because of the failure to so instruct the jury, and he prepared and asked special charges on that issue. The evidence would show that appellant rented a farm from J. B. Burns that was supposed to contain 160 acres of land in cultivation. Appellant, with the consent of the landlord, sublet a portion of the farm to deceased, G. W. Campbell. Over the terms of this rental contract the first trouble arose. Appellant contended that he sublet to Campbell all the land except 60 acres; he retaining that specific number of acres. Campbell contended that he specifically rented 100 aa-es, appellant reserving the remainder. There was not 160 acres of land in cultivation, and appellant was contending for his 60 acres and deceased for his 100 acres. Considerable feeling was manifest, but Mr. Burns visited the farm, and the matter was adjusted. There was a small house near the residence of appellant, and on the land he was cultivating. At one time there was an agreement that deceased was to be permitted to move this house to the land he was cultivating, he having the most land; appellant, Mr. Burns, and deceased agreeing to this. However, after the adjustment of the land troubles, appellant, on the way to town, told Mr. Burns he did not want to let deceased have this small house, and Mr. Burns then told appellant it was all right with him, and to tell the deceased he said not to move the house. Deceased was not made aware of this change of plans until the morning of the homicide. Deceased secured his brother, J. A. Campbell, and E. W. Dalrymple to assist him in moving the house. Dalrymple and J. A. Campbell say when they got to appellant’s Dalrymple got out of the wagon to open the gate, and as he did so appellant came out and said:

“ ‘Campbell, I went down there and investigated that business,’ and says, ‘You had better not come in the yard and move that house.’ He (Campbell) says: TIow is that, Smith?’ ‘Don’t you know that has been our contract and trade all the time?’ And he says: ‘Yes; I know it has, but I talked to Mr. Burns, and Mr. Burns told me to tell you to leave the house alone;’ and Campbell says, ‘Why didn’t you get an order from Mr. Bums and tell him to tell me to leave the house there?’ and he says, ‘You know I wouldn’t believe any such talk as that,’ and Mr. Smith says, ‘Well, I didn’t think I needed it,’ and says, ‘You had better go call in the law to move the house,’ and, ‘Mr. Burns told me to tell you to leave it alone.’ Then Campbell says, ‘All right, Mr. Smith,’ says, T don’t believe that, not a damn word do I believe.’ And Mr. Campbell at that time was sitting on the end of the seat with his feet out on the wheel, and Mr. Campbell just got out and went on around the front of the team, and when he got out Mr. Smith says, ‘Well,’ says, ‘All right,’ and he just wheeled and went back in the house and just jerked the door open, and I saw Mr. Campbell sorter break — sorter' go walking off right fast, and about that time Mr. Smith just ran out with a shotgun, and just as Mr. Campbell looked around, why he shot him with a shotgun, and he just fell over, staggered over yonder-way, and before he could get straight again he shot him again in the back, and he fell over that way and was trying to get behind the wood pile the last shot. He just taken the gun in his left hand and just drawed his pistol this way, and just shot him before he ever hardly got straight.”

It will readily be seen by this testimony that the right to kill in defense of property is not even raised, much less defense of his person, for the witnesses show that deceased was unarmed, made no demonstration, and was nowhere near appellant, nor near the little house. The only other eyewitness to the transaction was appellant, and we must look to his testimony to see if defense of his person is raised by his testimony. On direct examination he testified:

“I saw Mr. Campbell and his brother and Mr. Dalrymple in the wagon coming to move this house, and when they got to the gate about 30 or 40 steps from my house, I saw what they had in his wagon, and what the consequences was, and I slipped a couple of shells in my shotgun, reached up in a little closet and got my pistol, and put it in my pocket, and as Campbell drove up in the yard and stopped by this little house, I spoke to him and told him: ‘Mr. Campbell, you are not going to move that house. I went to Waco last night and consulted with the attorney and talked to Mr. Burns, and he said to tell you that he strictly forbid you a’moving that house; that you would have to go strictly according to law.’ He said, T wouldn’t believe a damn word that you say. I believe you are telling a damn lie.’ As he started out of the wagon, I says, ‘Campbell, don’t you get out of that wagon in my yard.’ I saw that he was getting out anyway. I made for my gun. As I come back out with my gun, Campbell had walked up within 3 or 4 feet of the back of this shed, and there was a plank lying there nailed to two posts, and Campbell was stooping over in the act of taking hold of this plank — he had his right side turned towards me. I said, ‘Campbell!’ and as he wheeled around, why I shot him. The first time I shot him he whirled back the other way, and I let him have the other barrel, and he still didn’t fall, and I reached and jerked my six-shooter and shot him as quick as I could with that, and he fell some 8. or 10 feet from where I shot him the last time in a stumbling falling position. When I fired the shot I was kinder excited and mad too. When Mr. Campbell got out of his wagon I feared an attack on my person. I thought that he had come there for trouble, and I had forbidden him coming in the yard, and when I saw him coming I thought he was coming for trouble. I thought it was necessary for me to shoot Mr. Campbell in defense of my property. I was afraid of him otherwise. I had forbidden him moving the house, and told him that he wasn’t going to move it, and I was afraid to interfere without doing just what I did do.”

This is all his testimony on direct examination. On cross-examination he testified:

“Q. Why did you shoot Mr. Campbell? A. Well, as 1 said a while ago, I had objected to Mm moving the house and didn’t intend for him to move it without a legal right to do so, and I was afraid to interfere with it. He (Campbell) had the material to move the house with. Yes, sir; it was in his wagon. No, sir; he hadn’t put any of those tools out on the ground; I didn’t give him time. No, sir; at the time I shot him he had no tool in his hand, as I saw. Q. Why didn’t you say to him that you didn’t want the house moved? A. I was afraid to give him any chance. Q. Well, he was 30 feet from you? A. I didn’t know but what he was armed. * * * I did not have my gun presented. No; I hadn’t seen any arms, and he had not made any attack on me. He had not put any blocks or rope or anything around the house to move it or prize it up on its pillars. Q. Well, why didn’t you argue the matter with him a little with the shotgun in your hand before you shot him? A. I was afraid to wait any longer. I didn’t know but what he was armed and would get the drop on me. Yes, sir; it was my purpose to kill him after firing the first shot. That is what I shot at him for. Q. Didn’t you think after the firing of the first shot that he was going to leave? * * * Q. Did he turn in the direction to get away? A. I was afraid to quit; afraid to let him get away. I never saw him make any effort to do any shooting after I fired the first shot. I didn’t say anything to him except what I have told the jury; that is, argue with him, or use any other means except what I have stated here to prevent him moving the house. No, sir; I didn’t see any gun in the wagon. I never looked in the wagon. I never went any closer to the wagon, I don’t suppose, than 30 feet, 20 or 30 feet, about the same distance from the wagon that I was from him. Yes, sir; I was mad too. It made me mad when he drove up there and give me the damn lie, and said he wouldn’t believe a damn word I said, and believed I was telling a damn lie. No, sir; he hadn’t threatened me that morning there.”

This testimony, we think, demonstrates that deceased had made no demonstration of any character to do appellant any harm personally. He says he shot him “because he was afraid deceased might do something,” not that he had done anything or had said anything, or made any demonstration that would lead one to believe he was in any danger of death or serious bodily injury. As said by Mr. Branch in his work on Criminal Daw, § 462:

“Not error to fail or refuse to charge on self-defense, although threats of the deceased are in evidence, if there is no evidence that, at the time defendant killed him, deceased was doing any act manifesting an intention to execute the threats” (citing Allen v. State, 17 Tex. App. 637; Penland v. State, 19 Tex. App. 365; Lynch v. State, 24 Tex. App. 364, 6 S. W. 190, 5 Am. St. Rep. 888; Irwin v. State, 43 Tex. 236).

The only evidence of-anything done on that occasion, even from appellant’s standpoint, is that deceased got out of his wagon, and from his acts and conduct led him to believe that deceased was going to move, Or attempt to move, the little house, without the consent and against the will of appellant, and this issue was fully presented by the court In tile charge on the right to defend his property. We agree with- appellant in his contention that where the evidence had the least tendency to bring the case under the provisions of -both articles 675 and 677, Pen. Code 1895, it is incumbent upon the court to charge the law governing both such defenses, and they must be stated distinctly and not be blended together. But in this case there is not a particle of testimony tending to raise any other issue, as shown above, than the defense of property. There is no evidence that appellant personally was ever in real or apparent danger; he only stating that he feared, if he did not kill deceased, he might thereafter do something, not that he was then doing anything to lead him to believe he was in danger of taking his life or suffering serious bodily injury.

The next bill of exceptions complains of the paragraph of the charge submitting the issue of murder. As appellant was acquitted of that offense, there is no necessity of discussing that paragraph of the charge.

The paragraph on manslaughter is not subject to the criticisms contained in the third bill of exceptions. It does not reverse the burden of proof, as contended by appellant. Hendricks v. State, 154 S. W. 1006. And the fact that it “ignores the right of defendant to defend himself against an unlawful attack on his person” is not error, as the evidence raises no such issue.

The only other bill of exceptions in the record complains of the action of the court in giving a special charge, requested by the state, that:

“If the jury found beyond a reasonable doubt, under the evidence, that appellant killed deceased in the execution of a previously formed intent or plan to take his life, and not in defense of his property under the law, such killing would not be justifiable,” etc.

There is evidence raising such an issue, and the state is entitled to have its theory presented as well as that'of defendant. Appellant himself testified to getting his pistol and putting it in his pocket, and loading his gun and setting it in convenient reach when he saw deceased approaching. He is thus shown to have gotten ready to kill on siglit of deceased, and the state’s testimony is that deceased had done nothing more than get out of his wagon and start arou-nd the wagon, telling appellant he did not believe that Mr. Burns said for him not to move the house, when appellant rushed in the house, got his gun, and shot deceased. As Mr. Dal-rymple puts it:

“Mr. Smith came out of the house like a tiger. He just rushed out of the house with a gun and fired. Mr. Campbell looked like he was fixing to leave — he was going away from the house in a pretty fast walk — but Mr. Smith just throwed a load of shot into him. Campbell (deceased) did not have anything in his hands when he got out of the wagon or when appellant shot him. The first shot entered the side, and the last two struck deceased in the back.”

The court gave appellant’s special charge No. 1. Special charges Nos. 2 and 3 relate to defense of his person from an unlawful attack, and of course there was no error in refusing such instructions; the evidence raising no such issue. There is no evidence of any attack or assault of any character in this case. The most the evidence would raise was that deceased, or it might so appear to appellant, was getting ready to attempt to move the house.

The court does charge that appellant was in legal possession of the house. Therefore there was no necessity to give charge No. 4 requested, and, as appellant was found not guilty of murder, special charge No. 5, relating to that, offense, need not be 'discussed.

The judgment is affirmed.
      <&=»B'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    EPPS v. STATE.
    (No. 4037.)
    (Court of Criminal Appeals of Texas.
    April 19, 1916.)
    1. Homicide <&wkey;257(8) — Assault with Intent to Kill — Evidence.
    Evidence that one who identified accused as her assailant was knocked unconscious and fell at the second blow, and her wounds show a number of blows must have been struck after she fell, and she was seriously injured, held to support a finding that there was assault with intent to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 551; Dec. Dig. &wkey;257(8).]
    2. Homicide <&wkey;310(l) — Insteuotions — Assault to Murdeb.
    In a trial for assault to murder, held not error for the trial judge to define murder in the charge, as it made apparent to the jury the elements they must find to exist before they would be authorized to find accused guilty.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 657; Dec. Dig. <§r=>310(l).]
    3. Criminal Law <&wkey;722(3) — Conduct oe Counsel — Comment on Evidence.
    Where defendant, accused of assault, testifying on his own behalf, stated the district attorney had offered to let him off with a $25 fine if he would plead guilty, it is not error for the district attorney, in his argument to the jury, to state he was glad the offer was not accepted, because the evidence showed defendant to be a different negro than he thought he was.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. <®=^722(3).J
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    Hilliard Epps was convicted of assault to murder, and appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and bis punishment assessed at two years’ confinement in the state penitentiary.

The negro woman positively identifies appellant as the person who made the assault on her. The doctor who waited on her states:

“When I got there I found her suffering with some wounds on her head, apparently unconscious. There was one wound on her nose and one above the left eye, both of those extending to the bone, and then there were three wounds on the back of the head, more on the left side; one was about two inches long and the other an inch long, both extending to the skull, and behind the left ear was quite a hole. That seemed to be the worst wound; there was the end of a pistol hammer found in the wound behind the left ear. I suppose it was something like a half of an inch in length, the pistol wound. I took that out and examined it, and it appeared to have been freshly broken off. I dressed the wounds on this woman. I would consider them dangerous or serious in their nature. I stayed at her house that night about an hour or an hour and a half. The woman did not regain consciousness while I was there. I called to see her again the next day, about 9 o’clock in the morning, I suppose, and at that time she was conscious. I continued treating her for something like three weeks, possibly a little over.”

One of the contentions of appellant is that this evidence would not support a verdict that appellant intended to kill, but only an aggravated assault. The evidence of the woman would show that she fell at the second blow, being knocked unconscious, and the wounds on her head would show that a number of blows must have been struck after she fell down, and the evidence will support a finding that there was a specific intent to kill.

Appellant’s defense is that he did not make the assault — that he was at home, sick and in bed. This issue of fact was decided against him. The court submitted both assault to murder and aggravated assault, and instructed the jury, if they found appellant guilty, and had any doubt as to which offense he was guilty, they must give the defendant the benefit of the doubt and acquit him. There was no error in defining murder in the charge, as it made apparent to the jury the elements they must find to exist before they would be authorized to find appellant guilty of assault to murder.

The only other bill in the record complains that the court permitted the district attorney in his argument to state to the jury, “I tell you this is a smart negro, and I am glad he did not take me up on the offer to plead guilty, because he is not the kind of a negro I thought he was,” and erred in refusing tó give his special charge instructing the jury not to consider such remarks. If there had been no evidence on which to base, these remarks, of course, they would present error; but the record before us shows that, when the defendant was testifying in his own behalf, he stated:

“Q. The district attorney asked you if you wouldn’t have killed her if the shells hadn’t fallen out of your gun — would you have hit her? A. No, sir; I wouldn’t have hit her, and I didn’t plead guilty of that crime when the district attorney offered to let me off at $25, the lowest fine, this morning. I would have accepted it, if I had been guilty; but I am not guilty of that crime, and I felt that it would not be right for me to plead guilty to a thing that I was not guilty of.”

It is thus seen the appellant injected into the case evidence that the district attorney had offered to take a plea of guilty of aggravated assault and a fine of $25, and he declined it. Under such circumstances it was permissible for the district attorney to comment on that testimony, and state he was glad it was not accepted, as the evidence showed appellant to be a different negro to what he thought he was.

The judgment is affirmed.
      <@=»For other cases see same topic and KEY-NT7MBER in ail Key-Numbered Digests and Indexes


text:
    JONES v. STATE.
    (No. 4018.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Criminal Law &wkey;>1144(18) — Appeal—New Trial — Presumption.
    Where the judgment overruling defendant’s motion for a new trial on the ground of newly discovered evidence specifically states that the trial judge heard the evidence, but such evidence is not disclosed by the record, the Court of Criminal Appeals must presume that the action of the trial court was correct.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036; Dee. Dig. <&wkey;> 1144(18).]
    2. Criminal Law <&wkey;939(l) — New Trial — Newly Discovered Evidence.
    In a prosecution for manslaughter, where an eyewitness of the killing, other than those called by the state, was in court, and, upon information from the district attorney that such eyewitness would not be called to the stand, defendant and his attorneys elicited the information that his testimony would not be altogether unfavorable to defendant, but, while testimony was still being introduced by defendant, such eyewitness informed him, to avoid being called as witness, that his testimony would not be in his favor, neither defendant nor his attorneys pressing the witness to learn further what his testimony would be, but dropping the matter, defendant was not entitled to a new trial as for newly discovered evidence of such witness.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2318, 2321-2323; Dec. Dig. &wkey;939(l).]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Josh Jones was convicted of manslaughter, and he appeals.
    Judgment affirmed.
    Lacy & Bramlette, of Longview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

On a trial for murder, appellant was convicted of manslaughter. The testimony was amply sufficient to sustain the conviction. Appellant does not question this. It is unnecessary to recite the testimony.

The sole question is: Appellant claims he should have been granted a new trial, because of claimed newly discovered testimony, which he asserted in his motion for a new trial. Evidently the trial judge heard testimony when acting on this ground of his motion. The judgment overruling his motion specifically states that he heard evidence. What that evidence was is in no way disclosed by this record. It has often, and uniformly down to this date, been held that under such circumstances this court does, and must, presume that the action of the court was correct. It is unnecessary to collate the authorities, but see some of them cited in Ethridge v. State, 74 Tex. Cr. R. 638, 169 S. W. 1152.

But if we should take only appellant’s motion, and the facts disclosed thereby, and the affidavits thereto attached, it would show that the court’s action was correct. These show the state introduced some two or more eyewitnesses of the killing of deceased by appellant. It had another eyewitness in attendance, whom it did not introduce. Before appellant closed his testimony, upon inquiry to the district attorney, his attorneys were told that the state would not introduce said other eyewitness. This witness, upon inquiry theretofore of him by appellant or his attorneys, informed them that, if he were a witness for the state, his testimony would not be altogether unfavorable to appellant. When appellant himself approached him again, while the testimony was still being introduced by him, and after he had been informed that the state would not use said witness, he then in substance said to appellant to go on away from him; that his testimony would not be in his favor — this to avoid being used as a witness. All this occurred before appellant concluded the introduction of his testimony. Neither he nor his attorneys pressed the said witness to know further what his testimony would be, and dropped the matter, and did not introduce him as a witness. Under all the authorities, he would not be entitled to a new trial, even if his testimony would have been in appellant’s favor, under a claim that his testimony would be newly discovered. Gray v. State, 65 Tex. Cr. R. 204, 144 S. W. 283, Henson v. State, 74 Tex. Cr. R. 282, 168 S. W. 89, and the authorities cited in these two cases. See also the cases cited in Ver-mon’s O. C. P., under article 837, subd. 6, and Judge White’s collation of authorities under the same article of the statute.

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


text:
    Ex parte COLLINS.
    (No. 4050.)
    (Court of Criminal Appeals of Texas.
    April 26, 1916.)
    1. Courts &wkey;>62 — Teems — Constitutional ANn STATUTORY PROVISIONS.
    Code Cr. Proc. 1911, art. 583, providing that when any person charged with a misdemeanor in the county court shall desire to have his case disposed of upon his plea of guilty without the intervention of a jury, the county judge may hold a special session to dispose of such cause, is void, because in violation of Const, art. 5, § 29, declaring that the county court shall hold at least four terms for civil and criminal business annually, as provided by the Legislature, or by the commissioners’ court of the county, and such other terms as may be fixed by the commissioners' court.
    [Ed. Note. — For other cases, see Courts. Cent. Dig. §§ 207, 210; Dec. Dig. &wkey;62.]
    2. Habeas Corpus <&wkey;>109 — Discharge prom Custody — Holding to Answer Indictment.
    On habeas corpus to obtain relator’s discharge, where it appeared that he was convicted at a term of the county court not authorized by law, he was entitled to a discharge from the custody of the county road superintendent, but would be held by the sheriff under the indictment.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. §§ 97, 98; Dec. Dig. &wkey;ol09.J
    Appeal from Shelby County Court; T. H. Postell, Judge.
    Habeas corpus by Prank Collins. Writ granted discharging petitioner from custody, and the State appeals.
    Reversed, and petitioner ordered delivered to the sheriff of Shelby county.
    Sanders & Sanders, of Center, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Relator was indicted by the grand jury, charged with unlawfully carrying a pistol. He was arrested and entered a plea of guilty, and was fined $100 at a special term of the county court, called by the county judge.

He was placed on the public roads and puf to work, when he sued out a writ of ha-beas corpus asking that he be discharged, on the ground that he had been convicted at a term of court unauthorized by law. The county judge granted the writ, and upon hearing the cause it was proven that the commissioners’ court of Shelby county, by order entered to that effect, had provided for only four terms of the county court annually, to convene on the first Monday in January, April, July, and October, and last only four weeks. That the January term had adjourned when the plea of guilty was .entered on March 14th, and the next regular term would not convene until the first Monday in April.' The county judge, acting under article 583, Code of Criminal Procedure 1911, called a special term and accepted the plea of guilty, and entered the judgment on March 14th. The contention is made that this article of the Code is unconstitutional and void, and therefore it gave the county judge no authority to call a special term of the county court. We do not care to enter into a discussion of the question again. In the case of Ex parte Cole, 51 Tex. Cr. R. 166, 101 S. W. 249, relator’s contention was sustained, and that provision of the Code declared unconstitutional. Our Supreme Court has also held that, under the Constitution, the Legislature cannot empower the county judge to call special terms of the county court for civil and criminal business. Ex parte Reeves, 100 Tex. 617, 103 S. W. 478. Tims it is seen that both courts oí final resort in this state have heretofore held the act under which the county judge acted in calling a special term of his court unconstitutional. By reading section 29 of article 5 of the Constitution, it seems that if more than four terms of county court for civil or criminal business is held, it must be done under authority of the commissioners’ court of the various counties.

However, while relator is entitled to be discharged from the custody of the county road superintendent, as the judgment under which he is held by that officer is void, yet he is not entitled to be discharged from custody he has been arrested under a valid indictment, and the county road superintendent will deliver him to the sheriff of Shelby county, to be held by him under and by virtue of the warrant of arrest issued on the indictment.

Relator is therefore relieved of confinement on the judgment, but will be held by the sheriff under the indictment.

The judgment is reversed, and relator ordered delivered to the sheriff of Shelby county, Texas.
      «S^jEor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BLACKBURN v. STATE.
    (No. 3987.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.
    Rehearing Denied May 10, 1916.)
    1. INTOXICATING- LIQUORS <&wkey;146(3)~OFFENS-ES — AGENCY.
    Where accused asked the witness whether he desired whisky, and, being answered in the affirmative, informed the witness that he would charge him a quarter a quart more than it cost in another town, and being given the money shortly returned, saying that he had procured the whisky from a third person, accused was not the agent of the witness, for, had he been an agent, he would not have been entitled to make the profit, and, it appearing that he bought the whisky at one price and resold it at another, the sale took place in the county where it was made.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 100; Dec. Dig. <&wkey;> 146(3).]
    2. Intoxicating Liquors <&wkey; 147(1) — Oitens-es — Sales.
    A sale of intoxicating liquor occurs at the place of delivery, where the seller actually parts with the property.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 162; Dec. Dig. <&wkey;
    3. Intoxicating Liquors <&wkey;236(8) — Oeeens-es — Pursuing Business oe Selling.
    An indictment, charging accused with the offense of pursuing the business of selling intoxicating liquors in prohibition territory, averred two sales to one witness and sales to another. The proof established one sale to the witness and a sale to such other. Hold, that while proof of two sales was essential to conviction, the requirements of the law were met by proof of two separate sales, notwithstanding the averment of two sales to the witness.
    [Ed. Note. — Por other cases, see Intoxicating Liquors, Cent. Dig. § 310; Dec. Dig. <&wkey; 236(8).]
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    E. E. Blackburn was convicted of pursuing the business of selling intoxicating liquor in prohibition territory and he appeals.
    Affirmed.
    Flack & Plack, of San Saba, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of pursuing the business of selling intoxicating liquor in prohibition territory, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant’s chief contention is that the court erred in refusing to submit the issue of whether or not appellant was the agent of Luke Taylor in securing the whisky he delivered to Luke Taylor, and for which Luke Taylor paid him. He bases this contention on the testimony of Luke Taylor, who testified:

“I know Mr. Blackburn, the defendant. Just before the Menard term of court last spring, as I was going to or coming from breakfast, he met me near the wagon yard and asked me if I wanted some whisky, and I told him that 1 did. He told me it cost him a dollar in Llano, and that I would have to pay him a dollar and a quarter for it. I told him I would take two quarts, and gave him $2.50, when he says, T haven’t got any whisky here myself, but there is a fellow in the yard that has got some— maybe I can get it for you.’ He told me to go to his room and wait. I did so, and he came and brought me the two quarts; he said he had seen the fellow and got it.”

We do not think this -raises the question that appellant, by the course of dealing, became the agent of Luke Taylor in procuring the whisky. He approached Luke Taylor and asked him if he wanted some whisky, and when Luke Taylor said he did, appellant told him it would cost him $1 in Llano, and be would have to charge Luke Taylor $1.25 for it in San Saba. It was immaterial with Luke Taylor whether appellant got the whisky in a wagon yard at San Saba, or went to Llano and got it. He had been told by appellant that he would have to pay $1 for it, and was going to and did charge him (Luke Taylor) $1.25 per bottle — appellant having a .profit in the transaction — thus evidencing by his statements that he was going to buy it at one price, wherever he secured it, and sell it to Luke Taylor at another price. In the case of Bogle v. State, 42 Tex. Cr. R. 389, 55 S. W. 830, this court held:

“The beer was ordered from Dallas. The facts show that the real price was $8, and the 50 cents was freight. So, to sum up, the evidence, without contradictions shows that the beer was delivered to the purchaser at Green-ville, in Hunt county, over the line of railroad, the freight being added to the real price. As we understand the rule in this state, this constituted a sale in Hunt county.”

Place of sale is to be determined by actual delivery and parting of the seller with, the property in the liquor. Whenever this occurs, the sale is made. Weldon v. State, 36 Tex. Cr. R. 34, 35 S. W. 176; Sinclair v. State, 45 Tex. Cr. R. 487, 77 S. W. 621; Bruce v. State, 36 Tex. Cr. R. 53, 35 S. W. 383.

The testimony does not. make him the agent of Luke Taylor. AVhat he says is, th'e liquor will cost me (appellant) $1, and it will cost you $1.25. If he was getting it as the agent of Luke Taylor, when the liquor was purchased, it would become, the property of Luke Taylor, and appellant would have no right to make an additional charge for the whisky. The whole conversation shows that appellant was purchasing the liquor at one price for himself, and would sell it to Luke Taylor at another price. The evidence shows a sale by appellant, and does not suggest that he was merely acting as agent of Luke Taylor in the transaction. Therefore the court did not err in submitting that issue.

The fact that the indictment alleged two sales to Luke Taylor, and the proof only showed one sale to him, does not vitiate the conviction. The indictment also alleged a sale to G. S. Riggs, and the proof, authorizing a finding that he made these sales, one to Luke Taylor and one to G. S. Riggs, would meet the requirements of the law in requiring that two sales be proven before a conviction for pursuing the occupation can be sustained. The incidents connected with the sales and the manner of the sales would support a finding that appellant was pursuing the business, and the judgment is affirmed.
      «gssFor other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    GRAND FRATERNITY v. MULKEY.
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 2, 1910.)

    1. Evidence &wkey;>197 — Identification of Documents — Admissibility.
    Where the original petition bearing the signatures of attorneys is not in evidence, the attorneys’ signatures thereto cannot be considered as evidence that they are the same persons who wrote a letter notifying the defendant of the death of the plaintiff’s intestate.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 681, 681⅜>; Dee. Dig. &wkey;197.]
    2. Appeal and Error <&wkey;832(l) — Disposition of Cause — Rehearing—Grounds.
    Although the court was in error in finding that the evidence showed without controversy that the defendant insurer received and retained the dues of the insured, it was no ground for rehearing where the insurer’s local collector testified that he received the dues in time and that the same were forwarded to the home office, and plaintiff introduced a receipt for the dues duly signed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3215-3218, 3220, 3223-3225; Dec. Dig. &wkey;832(l).]
    On motion for rebearing.
    Motion overruled., and judgment affirmed.
    For former opinion, see 130 S. W. 242.
   DUNKLIN, J.

Appellant calls attention to the fact that the original petition was not introduced in evidence, and therefore the signature of Parker & Buck thereto cannot be considered as any evidence that those persons are the same attorneys who wrote the letter set out in our original opinion notifying defendant of the death of W. D. Mulkey. We concur in this contention, but adhere to the conclusion noted that proof of death of the insured was waived by defendant by reason of other facts found by us, and in support of our conclusion the following additional authorities are cited: Merchants’ Ins. Co. v. Nowlin, 56 S. W. 198; Bast Texas Fire Ins. Co. v. Brown, 82 Tex. 637, 18 S. W. 713; Mutual Ins. Co. v. Mattingly, 77 Tex. 164, 13 S. W. 1016; Continental Fire Ins. Co. v. Whitaker, 112 Tenn. 151, 79 S. W. 119, 64 L. R. A. 451, 105 Am. St. Rep. 916; 19 Cyc. 867.

We were in error in our finding that the evidence showed without controversy that appellant received and elected to retain the dues for April as well as for May and June. But, while the evidence introduced by defendant tended to show that the dues for the month of April were never paid during that month and were never received by defendant at its home office, yet its local collector, Ridinger, testified that he received the dues on April 30th, and that the same were forwarded to defendant at its home office in Philadelphia, and plaintiff also introduced in evidence a receipt for the April dues, dated April 30th, and duly signed by the collector. This evidence certainly sustains the finding by the jury that the dues for the month of April were duly received by defendant.

The motion for rehearing is overruled.

Affirmed. Writ of error refused.
      <&wkey;For other oases see same topto and KEY-NUMBER in all Key-Numbered Digests and Indexes