text:
    HUMPHREY v. STATE.
    (Court of Criminal Appeals of Texas.
    April 1, 1914.)
    1. Homicide (§ 109) — Self-Defense — Gbounds.
    Where accused went to where decedent was, and killed him simply because he was on accused’s premises and would not leave, as demanded by accused, self-defense was not in the case.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 138, 139; Dec. Dig. § 109.]
    2. Homicide (§ 300) — Self-Defense — Evidence— INSTRUCTIONS.
    Where accused and decedent had had trouble, and decedent had been ordered not to come on the premises of accused, but decedent went on accused's premises, and accused went to him and demanded that he leave, and decedent then cursed accused, who defended against the attack of decedent, armed with a gun, an instruction that if accused provoked the difficulty, he could not avail himself of self-defense, unless he abandoned the difficulty, was erroneous as improperly limiting accused’s right of self-defense.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    John Humphrey was convicted of murder in the second degree, and he appeals.
    Reversed and remanded.
    Beard & Davidson, of Marshall, Eutch & Tipps and R. T. Brown, all of Henderson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of murder in the second degree; his punishment being assessed at seven years in the penitentiary.

The facts are voluminous, but it is deemed unnecessary to make an extended statement of the evidence. It is disclosed by the testimony that deceased, Lewis Finley, lived near to and south of appellant, on an adjoining tract of land. Appellant owned a tract of land which he used as his home. Some years before this trouble the father of the deceased, and during his lifetime, purchased from Ma'j. Wathan of Dallas a tract of land adjoining the home of appellant. He failed to pay for this land, and when he died, his son, the deceased, purchased the land from Wathan and .held it for some time, but, fail-. ing to pay for it, Wathan took the land back, and subsequently sold it to appellant. Appellant stated to Wathan at the time he would not make the purchase as long as deceased was trying to pay for it, and was informed by Wathan that he had taken the land from deceased, and he had nothing more to do with it, thereupon appellant purchased the land from Wathan by paying some cash, executing his notes for the unpaid balance, and In this way became the owner of the land. This seemed to outrage the deceased very much, and he made threats, which were communicated to appellant. Shortly prior to the killing appellant took up some hogs of deceased, which were running on his premises. Deceased came, took them from appellant’s pen, and was quite insulting to appellant at the time. He asked what was the charge on taking up and keeping his hogs, and was informed by appellant that he made no charge, and only asked that he keep his hogs up or off his premises, and for himself, deceased, not to come on his place any more. On the morning of the homicide deceased hitched his team to his wagon and came to apd drove through a gate on appellant’s premises, and was going through appellant’s field. In the wagon of the deceased was his wife and mother-in-law. Appellant approached and told him to go back, and not to come on his premises. This deceased declined. Deceased had another wagon with him, driven by a boy, who immediately turned and drove back. The immediate facts are somewhat in dispute. Appellant’s theory was he acted purely upon self-defense against the attack, or threatened attack, of the deceased with a gun. The facts are not in dispute that deceased had a gun in his wagon, and that the' gun was fired. The state’s case was that appellant, after stopping the team of the deceased, left them and started on towards the back of the wagon, and, after reaching the rear end of the wagon, made an assault before the deceased reached for his gun. Appellant came out of the trouble uninjured, and deceased was killed. Appellant’s evidence is to the effect he left the head of the team and was standing near the rear of the wagon when deceased got his gun. As to who fired first is an issue by the facts. This may be a sufficient statement to bring in review the only question thought necessary to discuss.

The court gave a charge upon murder in both degrees, manslaughter and self-defense. The appellant asked a special charge, which was qualified by the court. The charge asked and given was as follows: “You are instructed that if you believe from the evidence in this case that John Humphrey, the defendant, was lawfully in possession of the land inside of the fence and field through which Lewis Finley, the deceased, was driving, or attempting to drive, his wagon, for the purpose of removing ribbon cane from the land beyond this field, and if you further believe from.the evidence that the said Lewis Finley was on said land without authority from the said John Humphrey, then you are instructed that under the law the said John Humphrey had the legal right to arm himself with a gun, go and meet Lewis Finley, accost him, and demand that he leave the field, and you are further instructed that the said John Humphrey had the legal right to use all lawful means to protect his possession of said land and repel a trespass upon it by the said Lewis Finley. So if you should believe from the evidence in this case that the defendant, John Humphrey, met and accosted the said Lewis Finley for the purpose of getting the said Lewis Finley to go out of said field, and while so doing the said Lewis Finley resisted him and refused to go, and did any act toward, or used any word to the said John Humphrey, then the said John Humphrey would have, the legal right to use such force as was'necessary to eject the said Lewis Finley from said field, and if the said Lewis Finley did any hostile act toward the said John Humphrey, viewing it from the standpoint of the said John Humphrey, which made it reasonably appear to the said John Humphrey that his life was in danger, or that he was in danger of serious bodily injury, then, in that event, he would have the legal right to shoot and kill the said Lewis Finley, and if you so believe from the evidence, the defendant, John Humphrey, would be guilty of no offense under the laws of this state, and you will return a verdict of not guilty.” This was given by the court with this additional charge in this connection: “Gentlemen of the jury, in connection with the special charge which has just been submitted to you, asked by the defendant, I give you the following and additional instructions in connection therewith: That if you find from the testimony that the defendant, having in mind tlie specific and definite intention and purpose to kill tlie deceased, at all hazards, by his acts, words, or conduct provoked the difficulty or produced the occasion which resulted in the homicide, then the defendant could not avail himself of the law of self-defense, unless you find that he abandoned the difficulty, and in whicfi event his right of self-defense would return.” The remainder of this charge was a limitation upon the testimony of certain witnesses as to the particular purpose for which it was introduced. It is unnecessary to notice that. We are of the opinion that this qualification or additional charge given by the court, qualifying that asked by the defendant, was wrong. Of course, if appellant went to where Finley was and killed him simply because he was on his premises and would not go off, as demanded by appellant, self-defense would not be an issue in the case. But this charge was given by the court as a limitation on self-defense from appellant’s standpoint that deceased raised the difficulty and provoked the occasion and brought it about. We believe this was error. There had been trouble between the parties, and the deceased had been ordered to refrain from coming on the premises of the appellant. On this occasion he was going through appellant’s field in direct disobedience of the express wish and injunction of appellant, and had no right on appellant’s premises. Appellant went to him, under all the evidence, and demanded that he leave. The deceased cursed appellant at the time, from his standpoint, and did not from the standpoint of the state. Appellant went to the head of the team and stopped it, and it was then that appellant’s testimony shows deceased cursed him. Appellant had the right to go to him armed, and demand that he leave his premises -and get off. He had no right in appellant’s field, and appellant was within his rights, legal and otherwise, up to this point. If there was a provocation that brought about the difficulty, it was on the part of the deceased. He went, not only unbidden, upon the premises of appellant, but in direct contravention of his express will and order, and appellant had the right to demand his departure. Appellant was not provoking the difficulty by going to the deceased and demanding of him to leave his premises. If appellant provoked the difficulty, there is no question in the case, if that issue was in the case, that he ever abandoned it; the state’s testimony does not so show. We are of the opinion, under this condition of the record, that the restrictions placed upon appellant’s right of self-defense in the charge given by the court was wrong. Appellant had the right to have his self-defense given without this, and, if there was any raising of the difficulty or provocation for it, or bringing it about or producing the occasion, it was by the deceased going upon the premises of appellant under the circumstances detailed by the 'witnesses. This qualification of defendant’s charge should not have been given, and we are of the opinion it was of such an erroneous nature as requires a reversal of the judgment.

The judgment is reversed, and the cause remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    WADDLE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 18, 1914.
    Rehearing Denied April 15, 1914.)
    1. Perjury (§ 33) — Sufficiency of Evidence.
    In a prosecution for perjury in giving false testimony against prosecuting witness upon an examining trial, evidence held, to support a verdict of guilty.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 117-124; Dec. Dig. § 33.]
    2. Witnesses (§ 345) — Credibility — Impeachment.
    A conviction 11 years ago was too remote to be shown to impeach a witness’ credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    3. Perjury (§' 9) — Jurisdiction of Court Administering Oath.
    An indictment for perjury will lie for giving false testimony upon an examining trial, though the complaint upon which the trial was had was defective, and should have been quashed on motion.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 27-35; Dec. Dig. § 9.] '
    4. Perjury (§ 32) — Admissibility of Evidence-Complaint and Warrant.
    In a prosecution for perjury for giving false testimony against prosecutor upon an examining trial, the complaint was admissible, as a matter of inducement, and the warrant of arrest, with the return thereon, to show" that the examining court had jurisdiction over the prosecutor.
    [Ed. Note. — For other cases, see Perjury, Cent. Dig. §§ 108-116; Dec. Dig. § 32.]
    5. Criminal Law (§ 829) — Trial—Instructions Already Given.
    Special charges fully covered by the main charge in a perjury prosecution were properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    6. Criminal Law (§ 149) — Limitations — Commencement of Period.
    Limitation as to the charge of perjury runs from the date accused is alleged to have given the alleged false testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 273-275; Dec. Dig. § 149.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    J. T. Waddle was convicted of perjury, and he appeals.
    Affirmed.
    Smith & Palmer, of Comanche, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

This is the second appeal in this case; the first opinion on the former appeal being reported in 153 S. W. 882.

It appears from the record that J. T. Waddle, appellant, appeared before J. T. Washington, justice of tlie peace of precinct No. 4 in Comanche county, and swore out a complaint charging that J. C. Hale, in December, 1908, did dispose of certain pérsonal property on which the said J. T. Waddle had a valid and subsisting mortgage. The cause was set down for a hearing, and on this trial it is alleged that Waddle appeared, was sworn as a witness, and testified that Hale, at the time he swore out the complaint, was indebted to him in the sum of $650 as evidenced by a certain note, and that the payment of said note was secured by a mortgage ; that, after the filing of said complaint, and before the examining trial, the said J. C. Hale had paid to appellant the said sum of $650 in payment of said note; whereas, in truth and in fact the said Hale did not, at the time of making the complaint, owe Waddle the said sum of $650, nor any part thereof; that, while the said Hale had executed such note, secured by a mortgage, they were wholly without consideration, having been given to protect the said Hale’s crop from his creditors; that the only sum due by said Hale to Waddle was a note for the sum of $80, which was not secured by any mortgage, and there was no debt secured by any mortgage due by Hale to> Waddle, and no valid mortgage had been given by said Hale to appellant, and said Hale had not in fact disposed of any mortgaged property, and in truth and in fact the said Hale had not, between the time the complaint was filed and the time the examining trial was had, paid the said Waddle the said $650. The testimony given by appellant on the examining trial that “J. O. Hale owed him one note for $650 was false and untrue, and all that part of said testimony of said Waddle that Hale had paid the $650 note was false and “untrue,” which said statements were deliberately and willfully made, and were deliberately and willfully false, as appellant then well knew, etc.

Appellant filed a motion to quash the indictment on several grounds, none of which we think are well taken; but the indictment in plain and succinct terms notified appellant that he was charged with the crime of perjury in falsely swearing at the examining trial that Hale was indebted to him in the sum of $650, which was secured by valid mortgage, when in fact Hale owed him no note for such amount, and he held no valid mortgage to secure the payment of that sum or any other sum; that Hale had paid him the note since the filing of the complaint against him; that, when appellant so testified, he knew such statements were false and untrue. The evidence would justify a finding that in the fall of 1908 Hale gave appellant a note for $650 and a mortgage to secure the payment of same, which said note- and mortgage were without consideration, and given solely to prevent Hale’s creditors from levying on his property; that thereafter, during the fall of 1909, Hale borrowed $80 from appellant, but gave no mortgage to secure said sum, and, not paying same promptly when due, appellant filed the complaint against him to force the payment of the unsecured note; that Hale paid the $80 note, when, to justify himself in filing the complaint, appellant testified on the examining trial of Hale that Hale had paid him both the $80 note and the $650 note, when in truth the $650 note was without consideration, and nothing had been paid thereon.

In the next bill appellant complains that he was not permitted to prove that Hale, a witness for the state, in 1892, was convicted of a felony and sent to the penitentiary. This trial was held in May, 1913, 21 years after said conviction was had, and the court did not err in holding said conviction too remote to affect the credibility of the witness. Spiller v. State, 61 Tex. Or. R. 555, 135 S. W. 549, and eases there cited. •

The fact that the complaint upon which the examining trial was had, on a motion to quash, should have been quashed is immaterial. No such motion was made, and an examining trial was had thereon in a court of competent jurisdiction, at which appellant appeared and testified under oath, and under such circumstances an indictment for perjury would lie upon such testimony, if false. Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Kelley v. State, 51 Tex. Or. R. 509, 103 S. W. 189; Cordway v. State, 25 Tex. App. 416, 8 S. W. 670. The complaint was admissible as a matter of inducement and the warrant of arrest, with the return thereon, to show that the examining court had jurisdiction over the person of Hale. Wilson v. State, 27 Tex. App. 47, 10 S. W. 749, 11 Am. St. Rep. 180; Anderson v. State, 24 Tex. App. 715, 7 S. W. 40. Therefore the court properly admitted the testimony, and correctly refused the special charge requested by appellant that, if the complaint against Hale was not a valid complaint, they would acquit appellant.

A “credible witness” was defined by the court in language frequently approved by this court, and it was therefore unnecessary to give the special charge requested defining these words. Every special charge requested by appellant, in so far as it was the law of the case, and applicable to the testimony, was fully covered by the court’s' charge as given to the jury. On the issues the court instructed the jury: “Now, if you believe from the evidence beyond a reasonable doubt that on or about the date alleged in the indictment, and in Comanche county, Tex., and in that certain criminal judicial proceeding mentioned in the indictment, and in the justice court of precinct No. 4 of Oomanche county, Tex., and before J. T. Washington, justice of the peace, who was then and there sitting and holding his court as alleged in the indictment, and that on the trial of the case of the State of Texas v. J. C. Hale in said court on a charge of unlawfully disposing of mortgaged property, that the defendant, J. T. Waddle, appeared as a witness in said case, and that he was then and there sworn as a witness by J. T. Washington, the justice of the peace, and that thereafter he did then and there, and with reference to the $650 note for which he claimed to have a mortgage, if he made said claim, state and testify, as a witness before and to the court, ‘that J. O. Hale owed him one note for $650 and another note for $80 at the time he [J. T. Waddle] made complaint,’ meaning the complaint upon which said prosecution against J. C. Hale for unlawfully disposing of mortgaged property was based, and that, after said Hale was arrested, and before the examining trial in question, Hale had paid him [meaning Waddle] the said $650 note and the $80 note, and interest amounting to $18.50, making in all $748.50, that Hale had paid him, and if you further believe from the evidence beyond a reasonable doubt that the said J. C. Hale did not in fact owe the said J. T. Waddle the $650 note in question at the time it was alleged in the complaint in said justice court that he had disposed of mortgaged property, and that in truth and in fact neither the $650 note in question nor the mortgage in question were valid, subsisting, and unsatisfied claims and obligations of the said J. O. Hale to the said J. T. Waddle at the time of the alleged unlawful disposition of mortgaged property by J. C. Hale, but that in truth and in fact said note and mortgage did not represent a valid and subsisting indebtedness and lien of Hale to Waddle at said time, but that prior thereto said note and mortgage had been executed by J. C. Hale to J. T. Waddle merely to protect Hale’s crop from his creditors, and that said note and mortgage was without consideration, and that the same was not in fact the debt of J. O. Hale, and that he had not in fact unlawfully disposed of mortgaged property as alleged in the complaint in question in the justice court in question, and that in truth and in fact the said J. C. Hale did not pay the said J. T. Waddle the sum of $748.50, including the $650 noté in question, between the date he was arrested and the date of the examining trial on the charge in the justice court in question, but only paid him the sum of $98.50, same being the amount he owed Waddle on the $80 note in question, and that said $80 note was not secured by a mortgage, and if you further believe from the evidence beyond a reasonable doubt that all that testimony of J. T. Waddle to and before the justice of the peace in question that ‘J. O. Hale owed him one note for $650,’ if he gave such testimony, and that all that part of his testimony that ‘J. O. Hale had paid him the $650 note,’ if he gave such testimony, was willfully and deliberately false, and that the falsity thereof has been established by two credible witnesses, or by one credible witness strongly corroborated by other evidence, then, in the event you so find, you will find the defendant guilty of perjury as charged in the indictment, and assess his punishment at confinement in the penitentiary for not less than two nor more than ten years.”

This presented the issues fairly as made by the testimony.

No question of limitation would arise in the ease, as limitation as to the charge of perjury would not begin to run until the date appellant is alleged to have given the alleged false testimony, and not at the date of the disposition of the alleged mortgaged property, if it had been mortgaged.

There is no question raised by the testimony that, if Hale did not give the mortgage to secure the $650 note, he may have given it to secure a $110 note. The testimony would show that appellant testified as to the $650 note at the examining trial, and the perjury is based on this testimony.

The evidence will support the verdict, and the judgment is affirmed.


author: PRENDERGAST, P. J.

text:
    SEWALL v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    Rehearing Denied April 15, 1914.)
    Homicide (§ 253) — Murder—Evidence.
    Evidence held to sustain a conviction of murder in the first degree.
    [Ed. Note. — For other cases, see Homicide, Cent.,Dig. §§ 523-532; Dec. Dig. § 253.]
    Appeal from District Court, Walker County ; S. W. Dean, Judge.
    Earnest Sewall was convicted of murder, and he appeals.
    Affirmed.
    J. Y. Lea and R. H. Holland, both of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

The grand jury of San Jacinto county on November 1, 1911, returned an indictment against appellant for the murder of Charlie Davidson, alleged to have been committed on October 29, 1911, in said county. Soon thereafter the appellant was tried in the district court of said county, convicted, and the death penalty assessed against him. An appeal was taken from that trial to this court, and that judgment was reversed, and the cause remanded. It is reported in 148 S. W. 569. When the case again reached the district court of San Ja-cinto county, the court changed the venue to Trinity county, and still later, when the case was reached in Trinity county, the venue was again changed from that to Walker county, in which latter county this trial occurred at the March term, 1913, resulting in the conviction again of appellant of murder in the first degree, with the life penalty in the penitentiary assessed.

In this latter trial everything that was held by- this court as error in the first trial was fully met d.nd cured. No complaint that was then- made is now made as to the conduct of the trial. In this trial the court, in a full, apt, and complete charge, charged on murder in the first and second degrees, negligent homicide ih both degrees, and accidental homicide. Appellant, neither in the lower court, .nor in this, complains of the charge of the court in any particular whatever. The only complaint in this trial, in both the lower and this court, by appellant, is that the evidence is insufficient to sustain the conviction, and, within that, that the accomplices’ testimony is not sufficiently corroborated.

The report of the case on the first appeal sufficiently states the issues between the state and appellant. They were, on the part of the state, premeditated, deliberate murder which was of the first degree; that of appellant was negligent and accidental homicide. As stated above, all these issues were clearly, fully, and aptly submitted by the court in a charge to which there is no objection, and the jury found in favor of the state, and against appellant’s contention.

We have carefully considered the whole record, the evidence, and appellant’s brief, and, after mature 'consideration, have reached the conclusion that the evidence was amply sufficient to sustain the conviction and that the accomplices’ testimony was amply corroborated. The appellant was tried by a fair and. impartial jury, before a fair, learned, and impartial judge, and away from and in another county from that in which the killing occurred, some 18 months after the killing. The lower court and jury heard all the testimony, saw the witnesses, heard them testify, observed their manner of testifying, the able presentation and representation of appellant in his case by learned and able counsel, and, under the circumstances, this court cannot, and should not, disturb the verdict of the jury.

What this court said in Kearse v. State, 151 S. W. 82S, is especially applicable in this case: “There is hardly any contested ease that comes to this court but what there are contradictions in the testimony, and frequently a principal witness may contradict himself in material matters. In such cases, when it is contended that the evidence is insufficient to sustain the verdict, this court cannot legally take the place of the jury, and determine whether or not it will believe any witness or witnesses, and from all of the testimony, as put down on paper and sent to this court, it would have found a different verdict from that of the jury, and, if so, reverse the case on that account. The only question this court can determine is whether there is sufficient evidence, if believed by the jury, to sustain the conviction. This court passes upon that question as a question of law, which is all it can legally do under such circumstances. Our law expressly provides that the jury in all cases are the exclusive judges of the facts proved and of the weight to be given to the testimony. This' court, therefore, cannot take that question from the jury without usurping authority that was never given or intended to be given to it. The jury in a felony case is made up of 12 fair, disinterested, impartial, unpreju-. diced, unbiased, and competent jurors selected from different portions of the county, each one of whom hears all the witnesses, looks tliem in the face when testifying, observes their manner and the method of their examination by the respective attorneys, then hears the argument of the attorneys for each side, one side undertaking to break down the testimony of the witnesses, and calling attention to every contradiction in the testimony of such witness and the contradiction by others of him, the other explaining such matters, and seeking to sustain such witness, then hear and take with them in their retirement the charge of the court. Then the 12 men discuss and consider in private between themselves all such matters, and, after weighing it all and all the arguments against it and in support of it, come to the iconclusion, as to the testimony of a certain witness, or witnesses, although contradicted, and although there are contradictions in the testimony of such witness, that it is true and they believe it. The jury is made up of men of different ages, from young to comparatively old men, and they pursue different occupations and businesses. With all these surroundings, they are much more competent to arrive at the truth than are the judges of this court, who must look solely to the testimony as written down on paper. It cannot portray the manner, the looks, and the deportment of the witness, nor the manner of his examination and cross-examination by the attorneys. Besides this, the presiding judge hears and sees and observes all that the jury does in the trial of the case, and he then sustains the verdict of the jury. Therefore, when the evidence, taken in its favorable light, sustains the verdict, this court cannot legally set it aside.” Cain v. State, 153 S. W. 147.

It is unnecessary to detail the evidence, or to discuss it. We will merely state what our conclusions on some of the salient features of it, from the state’s standpoint, are.

From the appellant’s standpoint, it would have justified the jury to have found in his favor.

The deceased was a young white man; the appellant, a young negro man. Deceased lived in the town of Shepherd, in San Jacinto county, and owned, or was interested in, a farm some miles therefrom, in the direction and perhaps near where appellant lived. On the night he was killed, he was going from Shepherd to his said farm in company with appellant and some six or eight other negro men. The appellant and these negro men were in the town of Shepherd during the latter part of the day preceding, the killing, and most, or all of them, except perhaps, appellant, were heavily drinking, both at Shepherd and on the way to .thfeir homes that night. Some time in the latter part of the evening at Shepherd, or in the night, it is not certain which, the appellant’s horse got loose from him, and evidently was making his way towards appellant’s home. After appellant discovered that his horse had gone, without the knowledge and consent of deceased, he took deceased’s horse and rode him, hunting for his own. He did not find his own. After being away some two hours on deceased’s horse, he returned to the town of Shepherd. Deceased discovered that his horse had been taken, and, when appellant returned him, the evidence justified the jury to believe that he somewhat severely reprimanded him, • and this incensed appellant. There were two roads leading out of Shepherd towards where all these parties were going that night. The roads came together again in about three quarters, or one mile from Shepherd. All these parties left Shepherd about the same time. The company divided; one part of it, the larger number, taking one of these roads, and the appellant and deceased and some others taking the other; the object and purpose of this being that both companies should look for, and perhaps find, appellant’s horse. In leaving Shepherd, appellant rode behind his brother-in-law, Robert Eastland. Before the two companies got together again where the roads came together, the other company found appellant’s horse. It seems that crowd first reached the point where the two roads met, and appellant, coming up very soon after-wards, got his horse and got on him. The appellant carried with him from his home that day his 41 caliber six-shooter. After reaching Shepherd, fearing he might be detected by some officer with a six-shooter, he slipped it from a slicker on his saddle, and hid it under some building, which building is designated as the justice courtroom, where it stayed from that time till just before he left Shepherd that night. Just before leaving, he bought from one of the merchants five cartridges to fit his pistol, and had one of his friends to get for him his said pistol where he had hidden it and carry it for him, which was done. On the road, after they left Shepherd that night going towards their homes, and when appellant was riding behind his said brother-in-law, appellant told his brother-in-law, “if that God damn Charlie Davidson fooled with him, he was going to kill him.” On the road from Shepherd, before they reached said point where the two roads came together again, deceased fired off his six-shooter. There were only two pistols in the crowd — that of deceased and that of appellant. As soon as all the parties reached where said roads again came together, and appellant had gotten his horse, he called for his six-shooter from the friend whom he had get it and bring it for him, and it was delivered to him. He then at once loaded it with the five shells he had bought at the town. Some of the negroes lit a candle at the junction of said two roads where all the parties stopped and lingered for awhile. Two of the negroes began gambling by the light of this candle. The others, including deceased and appellant, stopped at this point, and the deceased there ejected from his pistol the empty shells which he had shortly prior thereto fired off and was reloading his pistol. He was on the ground. Appellant, according to the testimony of the state, after reloading his pistol, immediately and deliberately and willfully, while the deceased’s back was to him, shot at the deceased several times; one ball striking him in the back a few inches to the left of the backbone, penetrating the shoulder blade and one of the ribs, and went through the heart, but not through the sack surrounding the heart, which instantly killed the deceased. Three of the negroes who first stopped with the others at the junction of said roads had gone on towards their home, and were not present when the killing occurred. As soon as this shooting occurred and deceased fell, one of the negroes went to him and attempted to raise him up, but found that he was killed. He at once gave directions to one of the parties to ride back to the town rapidly, procure a doctor and the partner and half-brother of the deceased, and tell them that the deceased’s horse had thrown him and broke his neck, or that he was very seriously hurt. To another one he gave directions to go after the three negroes who had gone on ahead and bring them back. Both messengers at once departed on their missions and went rapidly to execute their orders. According to the theory of the state, immediately after these messengers left, those present, including appellant, concluded that it was best to remove the body from where it was killed, where all these parties had stopped, and where this gambling had occurred, some distance away further down the road, and that thereupon they picked up and carried the body, by actual measurement, 139 steps from where the killing occurred. Shortly after-wards the messenger who went to town to get deceased’s friends and half-brother returned with the half-brother, and, upon approaching the place where the killing occurred and where the body was when he left, saw that it had been removed therefrom, and proceeded to the point with the deceased’s half-brother, to where the body had been carried.

The negroes other than the state’s witnesses, all claimed that they did not know at that time or until the next day that the deceased had been shot, but claimed that bis horse had stumbled and thrown him, and had broken his neck. The body of the deceased was not examined that night or the next day with any care. Strange to say, practically no blood issued from tbe wound, and it was not discovered by tbe deceased’s friends and family tbat be bad been shot until be was carried to Livingston and undressed for burial tbe next day.

We tbink tbe physical facts demonstrate tbat appellant’s theory and claim that tbe killing occurred accidentally or negligently was untrue, and tbat tbe physical facts practically demonstrate tbat tbe killing occurred as claimed by tbe state. Tbe accomplices who testified were corroborated amply and sufficiently by circumstantial evidence and tbe physical facts, and by some direct and positive testimony. We think tbe physical facts demonstrate tbat tbe shooting of deceased could not have occurred, and did not occur, as claimed and testified to by appellant.

As stated above, we merely give an outline of tbe state’s testimony and what tbe jury were authorized to believe and did believe therefrom.

Under tbe law and tbe evidence, as we see and understand it, we have no alternative, but must affirm tbe judgment, which is ordered.


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

text:
    HEARNE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.
    On Motion for Rehearing, April 8, 1914.)
    1. Cmminal Law (§ 1170%) — Appeal — Harmless -Error — Rulings on Evidence.
    On a trial for keeping a disorderly house, the admission of a question asked a witness as to whether he knew that a certain person lived with accused was not error, where he answered that he did not know.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    2. Criminal Law (§ 368) — Evidence—Res Gestas.
    Where, on a trial for keeping a house of assignation, two men testified that they met two girls on the street and arranged to meet them at accused’s house for sexual intercourse, the girls suggesting accused’s house, and telling them to see accused, engage rooms, and tell her they were for “Mary” and “Ethel,” that they went direct to accused’s house, delivered such message, and engaged rooms, and were joined in a few minutes by the girls, their testimony as to the conversation on the street and the testimony of a police officer as to seeing the men and women together on the street and watching them was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. § 368.]
    3. Criminal Law (§ 1169) — Error— Cure by Instructions.
    On a trial for keeping a house of assignation, where the court erroneously, under a misapprehension, admitted evidence as to accused’s arrest for running a gambling house, but, upon discovering its mistake, excluded the evidence, and told the jury it was admitted under a misapprehension and Should not be considered, there was no reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    4. Criminal Law (§ 1093) — Bill of Exceptions — Sufficiency.
    A bill of exceptions in a criminal case complaining of a remark of the prosecuting attorney in his argument was insufficient, where it did not disclose under what circumstances the remark was made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    5. Criminal Law (§ 1171) — Argument of Prosecuting Attorney.
    On a trial for keeping a disorderly house, a remark of the prosecuting attorney directing the attention of the jury to the diamonds worn by accused and asking if they knew that every glitter therefrom denoted a lost soul was not reversible error, where accused testified, it did not appear that she did- not wear diamonds, and it was not shown how this could injuriously affect her in the trial of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.] '
    On Motion for Rehearing.
    6. Criminal Law (§ 507) — Evidence—Corroboration of Accomplices’ Testimony.
    On a trial for keeping a bouse of assignation, two witnesses who arranged to, and did, meet two girls at accused’s house ostensibly for the purpose of having sexual intercourse, one of whom was a policeman, and claimed that his sole purpose was to obtain evidence, and neither of whom were in any way, directly or indirectly, aiding or abetting accused in keeping the house for any purpose, were not accomplices.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    7. Criminal Law (§ 1172) — Appeal—Errors Favorable to Appellant.
    Where witnesses for the state were not accomplices, accused could not complain of the court’s charge that one of them was. an accomplice, and of the submission of the question whether the other was an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    8. Criminal Law (§ 1159) — Appeal—Review —Questions of Fact.
    On appeal from a judgment of conviction, the court, in passing upon the sufficiency of the evidence, will consider only the inculpatory evidence, to ascertain whether, as a matter of law, it is sufficient, though the testimony for accused, if true, justifies an acquittal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dee. Dig. § 1159.]
    9. Disorderly House (§ 5) — Persons Liable — “Keeper.”
    A woman in charge and control of a house on the night when parties met there for the purpose of having sexual intercourse, who had lived there continuously for more than six months, and who admitted to witnesses that she was the keeper of the house, was the “keeper” thereof, within the statute.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 5, 9-13; Dec. Dig. § 5. For other definitions, see Words and Phrases, vol. 4, pp. 3923-3926.]
    10. Disorderly House (§ 17) — Sufficiency of Evidence.
    On a trial for keeping a disorderly house, evidence held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 26-29; Dec. Dig. § 17.]
    Davidson, J., dissenting.

      Appeal from Harris County Court, at Law; C. C. Wren, Judge.
    Leona Hearne was convicted of keeping a disorderly Louse, and she appeals.
    Affirmed.
    Heidingsfelders and Van Velzer & Lewis, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted for unlawfully keeping a disorderly house — an assignation house — and her punishment assessed as prescribed by law.

It is unnecessary to detail the evidence. We have carefully considered it, and it is sufficient to show her guilt clearly, fully, completely, and satisfactorily. In appellant’s first bill of exception she complains that the state was permitted to ask Barden: “Do you know whether a fellow named Charlie Armington lived with defendant?” To which he answered: “I don’t know.” This clearly shows no error. Sweeney v. State, 146 S. W. 886, and cases therein cited.

By other bills appellant objected to the witnesses MePhael and Spradley testifying, in effect, the arrangement they made with two girls — Mary and Ethel — and what was said between them at the time in arranging to go to appellant’s house and procure rooms for the purpose of sexual intercourse. The record shows that these girls had the reputation of meeting men at assignation houses for sexual intercourse, and that Spradley that night first met them on the streets of Houston near appellant’s house; that MePhael came up, and he introduced him to them; that they then made arrangements with these two girls to meet them at Mrs. Hearne’s for said purpose, the girls themselves suggesting Mrs. Hearne’s as the place for the purpose, telling the men to go and see Mrs. Hearne, engage the rooms, and tell Mrs. Hearne that it was for Mary and Éthel. The parties then separated, the men going direct to Mrs. Hearne’s house, seeing her, telling her the message the girls had sent her, and she thereupon rented to them two rooms for said purpose, and the girls in a few minutes thereafter came there, and appellant took them to one of these rooms, all for the purpose of carrying out the object of the men and girls to then and there have sexual intercourse. Clearly all this testimony was admissible. So was the testimony of Bass that he saw these two men at the tíme they were making this arrangement with these girls, and watched them, and subsequently, on the same night, went to Mrs. Hearne’s house and caught these two men and these two girls in said house on that occasion.

Under a misapprehension, the court, over appellant’s objection, permitted Grayson to testify that in February, 1913, he went to appellant’s said house, and pulled the house, and arrested her for running a gambling house, finding seven or eight men therein at the time, some hiding in various ways. As soon as the court discovered his mistake in admitting this testimony, he excluded it, and told the jury that he had admitted it under a misapprehension, and that they were not to consider said testimony for any purpose. While the court should not have admitted this testimony, as soon as he discovered his mistake, he corrected it, and, as the matter is presented, it shows no reversible error.

The only other question is raised by appellant’s fifth bill. It, like each of appellant’s other bills, is too meager and wholly insufficient to require consideration. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112. This bill complains of this language of the assistant district attorney in his opening argument: “Gentlemen of the jury, look at the defendant. Look at the large diamonds in her ears, and other diamonds she wears. Don’t you know that every glitter from them denotes a lost soul?” The bill in no way discloses under what circumstances or surroundings this remark of the attorney was made. If we could look to the record to complete the bill, or to make it intelligible, even if that could be done,, it would show that appellant herself testified on the stand. Without doubt the jury did look at her and observed her whole conduct, demeanor, and dress, and could not possibly have avoided seeing her large diamonds which she wore, if she wore any. The bill in no way discloses that she did not wear diamonds on this occasion. The district attorney’s question, “Don’t you know that every glitter from them denotes a lost soul?” was a mere flight of oratory or poetic question. The bill in no way discloses how this did or could injuriously affect appellant in the trial of this cause. This court is frequently called upon to pass upon complaints of prosecuting attorneys’ arguments, and occasionally reverses cases because thereof. Each case must largely stand upon its own bottom. The rules with reference thereto are well established, and have many times been clearly enunciated by this court. This court, through Judge Willson, in Pierson v. State, 18 Tex. App. 564, said: “It has become quite common to except to the remarks of counsel for the state in their addresses to the jury. We find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. While argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The state has rights in this respect as well as defendants. And in view of the frequency of exceptions of this character, we will take occasion here to say that, before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us:

(1) That the remarks were improper; and

(2) that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect tlie defendant’s rights.” The Pierson Case, supra, has many times been cited and approved by this court. In House v. State, 19 Tex. App. 239, wherein a much- worse statement was complained of, by the district attorney, Presiding Judge White said: “We construe tjie remark to be not so much evidence of a desire to make use of foreign matter to the injury and prejudice of defendant as an impassioned expression, highly exaggerated it may be, but springing inadvertently from the heat of debate. If all such remarks were held reversible error, but few convictions would stand the test where the case had been hotly contested by able and zealous counsel in the courts below.” Again, in Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544, this court, in discussing the argument of the district attorney in that case, through Judge Davidson, said: “Concede that this argument was improper, it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper,' but they must be of such a nature as would be clearly -calculated to prejudice the rights of the defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. State, 19 Tex. App. 227; Bass v. State, 16 Tex. App. 62.” See, also, McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Young v. State, 19 Tex. App. 536; Frizzell v. State, 30 Tex. App. 42, 16 S. W. 751 ; Rahm v. State, 30 Tex. App. 310, 17 S. W. 416, 28 Am. St. Rep. 911; Tipton v. State, 30 Tex. App. 530, 17 S. W. 1097; Lewis v. State, 29 Tex. App. 201, 15 S. W. 642, 25 Am. St. Rep. 720; Walker v. State, 28 Tex. App. 503, 13 S. W. 860; Love v. State, 35 Tex. Cr. R. 29, 29 S. W. 790. We cite only some of the older cases. A great many cases to the same effect could be cited down to this very date, but we deem it unnecessary. In our opinion this bill does not show reversible error.

The judgment is affirmed.

DAVIDSON, J., dissents.

On Motion for Rehearing.

PRENDERGAST, P. J.

Appellant has filed a motion for rehearing and, as a part thereof, a 17-page typewritten brief and argument. In addition to this, she has filed another 28-page typewritten argument and brief. She earnestly and vigorously contends that the evidence in this case is wholly insufficient to sustain the verdict. This is the only question we will discuss. We did not discuss this in the original opinion, deeming it wholly unnecessary.

Preliminary to stating the evidence, and in connection with the discussion thereof, we will first discuss and determine whether the witnesses Spradley and McPhael were accomplices. The court in his charge stated that Spradley was, and submitted to the jury whether or not McPhael was, and required, in a proper charge, Spradley’s testimony to be corroborated, and, if the jury believed that McPhael was, that his testimony should also be corroborated, before they could convict appellant on the testimony of either or both of them. The court gave a correct charge on the subject, if it had been called for, and it is in no way attacked by- appellant.

The uncontradicted testimony shows that Spradley was a member of the police department of Houston on the date this offense is alleged to have been committed and for some time prior thereto, and that his work in said department was to look up rooming houses and make search for keepers of bawdy and assignation houses in the city, and that, in the discharge of his duty, he made an engagement with the two girls, Ethel and Mary, for him and McPhael to meet these girls at appellant’s house that night for the purpose of sexual intercourse with them, and that he did meet them there ostensibly for that purpose. On cross-examination, at appellant’s instance, he testified: “It is a fact that my sole purpose in going up to said house was in order to get evidence against this house, so that I could testify against Mrs. Hearne.” That he paid $4 for the room rent for himself, Spradley and the two girls that night, and that the city — the chief of police — paid him back later the $4. The evidence in no way would show, or tend to show, that McPhael was an accomplice in any way to the crime charged against Mrs. Hearne. I-Ie knew nothing about Mrs. Plearne’s place or house, was a stranger to the two girls, and introduced to them by Spradley immediately after which they made arrangements with the two girls to go to Mrs. Hearne’s, and he did meet them there, and himself prepared to have sexual intercourse with one of them. Neither of these witnesses are shown in any way to have been interested, directly or indirectly, with Mrs. Hearne in connection with the house she was running, other or further than the mere fact that they went there to meet these two girls, the girls themselves suggesting this place to them, to have sexual intercourse. Bear in mind the offense with which Mrs. Hearne was charged! It was that she unlawfully kept, and was concerned in keeping, a disorderly house — an assignation house.

What we said in Minter v. State, 159 S. W. 300, is exactly applicable here. We quote it: “The question of who is an accomplice and what it takes to make an accomplice is not always kept clear by our decisions. The cases are frequently indiscriminately cited on this subject. In speaking of accomplices and in treating of it in this case; we do it in its broadest sense; that is, to include principals, accomplices as such, and accessories. There are two rules on this subject, as clear and distinct as can be. One is: An accomplice is a person who knowingly, voluntarily, and with common intent with tbe principal offender, unites in tbe commission of tbe crime. Tbe other is tersely stated by this court in Bush v. State, 151 S. W. 556, in substance: Where an officer or other party understands or is led to believe that a violation of the law is in contemplation, and takes steps to detect that crime, or get evidence by which the guilty party may be punished, he would not be an accomplice. In such case he is not an original party to the bringing about the crime, and is not guilty of originating or initiating it. In that character of ease his connection with it is after the inception of the crime, and after it has been determined upon, and he only then gets into it as a detective, or for the purpose of arresting the party and bringing him to punishment.

“In the case of Allison v. State, 14 Tex. App. 126, this court, through Presiding Judge White, said: ‘From the evidencé before us, it does not appear that the witness Massey was an accomplice. He had been informed by defendant of his (defendant’s) intention to steal Justice’s horse, and he immediately told Justice’s sons, and Justice himself subsequently, of defendant’s intention. It is true that Justice and Massey then arranged that Justice should have his horse at a certain place, doubtless with a view that they might capture defendant in the very act of committing the theft, and it is inferable that there was a further understanding between the parties that Massey was to accompany the defendant to the place and at the time when the theft was to be committed, ostensibly as his confederate, but, in fact, that he might aid in his arrest after the crime was consummated. Had this agreement been carried' out, and the horse stolen at the time, place, and under these circumstances mentioned, Massey, in law, would not have been an accomplice in the theft. Pigg v. State, 43 Tex. 108; Johnson v. State, 3 Tex. App. 590. But this agreement was not carried out, and the horse was stolen on another occasion and in a different place. Instead of being an accomplice, it appears to us from the evidence that Massey acted throughout the part of a law-abiding citizen, who, knowing that a crime was about to be committed, did, or was willing to do, all in his power to prevent it or bring its perpetrator to punishment. There was no occasion for the court to charge the law with regard to accomplice testimony in this ease.’
“In Chitister v. State, 33 Tex. Or. R. 638, 28 S. W. 683, Presiding Judge Davidson, in discussing whether or not a witness in that case was an accomplice, for the court said: 'That he (the witness) induced .appellant to give him property to secure his departure from the state in order to be rid of his testimony did not, of itself, constitute the witness Orowely an accessory. In. order to render the witness an accessory, he must have concealed the accused or given him some aid so that he may have evaded an arrest or trial or the execution of his sentence. Penal Code, art. 88. This was not done. The witness did accept the property, and also agreed to leave the state. He, however, did not leave the state, and it is shown that he sought the bribe as a means of securing testimony for the purpose of convicting appellant for the theft of the animal set out in the indictment. He was active in the prosecution of the case, and testified in behalf of the state on the trial. This evidence did not require a charge upon the law applicable to accomplice testimony, and the court did not err in failing to so charge.’
“In Wharton’s Crim. Ev. vol. 1, in section 440 (10th Ed.), he says: ‘An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender, unites in the commission of the crime. * * * There are certain relations recognized by the law, in which the voluntary cooperation of a person with the accused does not render such person an accomplice. Thus those who co-operate with a view to aid justice by detecting a crime, such as accepting money with which to purchase intoxicating liquors to obtain evidence of a violation of the law, for the purpose of prosecuting the seller for an unlawful sale, is not an accomplice; nor is an informer technically an accomplice; nor a detective who joins a criminal organization for the purpose of exposing it, even though, to aid such exposure, he unites in and apparently approves its counsels; nor the agent who purchases a libelous publication for the purpose of giving evidence against the publisher; nor a disguised emissary who, by purporting to be a friend of the parties suspected, seeks to draw from them inculpatory information.’
“In 4 Enc. of Ev. p. 630, the law on this subject is thus stated: ‘The fact that a detective in securing evidence of a crime is the instrument or means through which the law is violated does not make him an accomplice within the rule requiring the testimony of accomplices to be corroborated. Thus one who purchases liquor sold in violation of law for the purpose of securing the conviction of the offender is not an accomplice, nor is one who receives a counterfeit, or stolen goods, or buys a lottery ticket, or participates in a gambling game for the same purpose. So, also, one who pretends to be an accomplice, and apparently assists in the preparations for a crime with the purpose and intention of frustrating the design of the guilty parties and securing their punishment is not an accomplice whose testimony requires corroboration, even though he actually takes an apparent part in the commission of the offense.’
“In the recent work of Mr. Underhill (2d Ed.) on Orim. Ev., in section 69, he says: ‘A person who, as a detective, associates with criminals or communicates with or aids them solely for the purpose of discovering commission of crime, and procuring the punishment of the criminals, is not an accomplice.’
“In 12 Cyc. p. 447, the rule is thus-laid down: ‘One who, as a detective, associates with criminals solely for the purpose of discovering and making known their crimes and who acts throughout with this purpose, and without any criminal intent, is not an accomplice, and it is immaterial that he encourages or aids in the commission of the crime.’ ” Holmes v. State, 156 S. W. 1172; Ausbrook v. State, 156 S. W. 1177.

The evidence in no possible way suggests or intimates that Spradley or McPhael, either or both of them, were in any way, directly-or indirectly, aiding or abetting Mrs. Hearne in the keeping of this house for assignation purposes or any other purpose. The whole of what either of them did was, at the suggestion of these girls, to take advantage of the fact that Mrs. Hearne was keeping and running such a house, and that they went there, at the most, to meet these girls for illicit intercourse. In no way thereby did they become participants in the keeping of said house by Mrs. Hearne.

The court should not have charged that Spradley was an accomplice, nor submitted whether or not McPhael was, for neither of them were. However, this was to appellant’s advantage, and not her disadvantage, and she cannot complain thereof. So that we treat the evidence of each of these witnesses as the testimony of any other, and the court below should have done so. Even if they were accomplices, they were amply corroborated.

Brushing the question of these witnesses and neither of them being accomplices aside, or even considering them as accomplices, we then proceed to show what the testimony was. We do not give the appellant’s testimony, because, in testing whether or not the evidence is sufficient, we look only to the inculpatory evidence to ascertain, as a matter of law, whether that is sufficient or not. It may be that the testimony of an accused may be- sufficient to justify an acquittal. This court has nothing to do with that.. That is a question for the jury, and the jury, having passed on it and believed the inculpatory testimony, this court can only pass upon whether it was sufficient to justify their verdict.

Some of the witnesses expressly testified that Mrs. Hearne told them she was the keeper of that house. She was, in fact, there that night and had charge of it. By her own testimony she had lived there continuously for more than six months at this time. In Stokeley v. State, 37 Tex. Cr. R. 638, 40 S. W. 971, Judge Hurt, for this court, held that, where a man permitted one woman, for less than a half of a night, to occupy his residence and have intercourse with men, he was guilty of keeping a disorderly house. This court, in Flynn v. State, 35 Tex. Cr. R. 220, 32 S. W. 1041, Stone v. State, 47 Tex. Cr. R. 575, 85 S. W. 808, and Willis v. State, 34 Tex. Cr. R. 149, 29 S. W. 787, in effect, expressly held that, where one person owns the property, and another has possession, charge, or control of the same, the latter is, under the statute, the owner, so far as being the keeper, etc., is concerned. There can be no question from this testimony and the law that Mrs. Hearne was the keeper, in contemplation of the statute and the law, of this house at the time.

Did she keep it as an assignation house? Mr. Barden, the owner of the house, testified that, at the time this offense is charged, the part kept by Mrs. Hearne was reputed to be an assignation or whore house. Mr. Mills, the owner of property in the immediate neighborhood of this house, testified that its general reputation was that it was used as aii assignation house, and had been known as such for more than a year before the date of this offense. Mr. Bass, a police officer, whose duty it was to locate assignation houses and do such like work, and who watched these parties and saw that they went to Mrs. Hearne’s house that night, and after-wards participated in their arrest, testified that the two said girls, Ethel and Mary, had bad reputations for visiting houses of assignation. Mr. Sisk, who was also a special police officer, testified that on and prior to August 30th, the date said offense is charged, he knew the general reputation of said place, and that it was that of an assignation house; that he watched the place for awhile, and saw a young woman and a man stop on the corner; the man went across up to this house, came back, got the young woman, and that both together went up there; that, after remaining awhile, they came down. Mr. Poole, another police officer, whose duty was looking after such houses, testified that he had heard the house talked about as being an assignation or whore house, and from that talk said house was an assignation house; that he had watched that place, and had seen different persons go into and come out of it; that sometimes he had seen as high as four or five doing this covering a period of an hour’s time only; that sometimes a man would go, and sometimes a woman would go alone, and then sometimes they would go up there in couples, men and women. On cross-examination, he said that he had known the reputation of the house for several months,, five or six, before this offense was charged, and that he knew the reputation of said house was that of an assignation house, and had known it for these five or six months.

' Without naming the witnesses, because we deem it unnecessary, the testimony of the state then clearly and distinctly shows that Spradley met and was introduced to -these two girls, Ethel and Mary, by another girl on this night on the streets of Houston; that he stopped and was talking to them; while talking to them, McPhael was passing, and he called him and introduced him to these girls; that the two men then made arrangements with these two girls to meet them somewhere that night and have sexual intercourse with them. Upon inquiring from the girls as to where they should go, the two girls suggested that they go to Mrs. Hearne’s. The men didn’t seem to know where this was. The girls said they would go with them and point out the house to them. The girls told these two men to see Mrs. Hearne, tell her that Mary and Ethel sent them there, and to engage rooms, and that they would themselves soon come. Spradley and McPhael proceeded to see Mrs. Hearne. They found her sitting on the stairway, delivered their message from Ethel and Mary, and Mrs. Hearne invited them up, and they went up. She took them to two rooms; she supplied towels for them; she told them to go in one room and undress, and that, when the girls came, she would take them in the other room, and they would undress, and that one of the men could go in the room where the girls undressed, and one of the girls go in the room where the men then were. This was all carried out under her suggestion and instructions. There was a door between the two rooms. Before the girls arrived, however, they telephoned to Mrs. Hearne, told her that they were afraid to come up to her house to the two men, that they thought' officers were watching them; but Mrs. Hearne insisted upon their coming anyhow. They thereupon proceeded to meander around from block to block and street to street, seeking to elude the officers, or have the officers abandon watching them. Mrs. Hearne told them to come up the back way, and gave them directions about how to get up that way. The back way to her premises was a circuitous or elusive way, and led through an alley or part of an alley, and probably through an old vacant house. Anyway, it was not in view from the street, and access to her house that way seemed an ideal one for persons of that character to reach it and depart from it and not be detected. When the girls came, she took them to their room. They immediately proceeded to undress. As soon as they did, one of the girls went into McPhael’s room and -lay down on the bed ready for business. McPhael proceeded to undress, and himself was almost ready for business. Spradley went to the other room to the other girl. She had undressed, and had sat down on the bed undressed. Spradley was more leisurely in undressing. He thought the officers had been watching, and was anticipating a raid by the officers, and was delaying undressing on that account. Spradley paid Mrs. Hearne $4 for the use of the two rooms for business. Each of the girls demanded of the men $5 apiece. Each promised to pay when they got ready for business. Bass, the officer, had seen Spradley and McPhael with these girls, and saw their maneuvers, marching around the town when the girls were showing Mrs. Hearne’s house to them. He saw the parties separate, and the men go, he presumed, to Mrs. Hearne’s. He then continued watching the girls. They marched around first one block or street and then another, and when they thought they had given Bass the slip, they proceeded to carry out their engagement with these men, and slipped up the back way to Mrs. Hearne’s. When the parties were in the attitude above described, the two women undressed and ready for business, McPhael about so, and Spradley delaying, Mrs. Hearne had again gone partly down the back stairway, doubtless either watching for the officers or for other customers. Bass, in the meantime, had communicated to headquarters, and the chief of police detailed three other officers to raid this house and arrest these parties. They proceeded to do so, and, when they got in sight of Mrs. Iiearne, approaching the stairway where she was, she hastily retreated upstairs, locked the door, and alarmed these men and these girls, directing the girls to dress as quickly as possible, and to come in the room with her and her daughter, and be visitors when the officers-came in. She told the men to dress as quickly as possible and go in another room where another man was, and to be there playing cards and appear as room renters. Her instructions were carried out by both the girls and the men. The officers were ringing the bell, knocking, seeking admittance. She cut off the bell so it wouldn’t ring, and, after giving ample time for the men and girls to carry out her instructions, and the girls to be in her room as guests and the men to be in the other room as roomers playing cards, she graciously then, and not until then, opened the door and let the officers in. They proceeded to arrest all the occupants, men and women, and carried them to police headquarters.

After carefully again -reviewing the evidence, we repeat what we said in the original opinion: “The evidence is sufficient to show appellant’s guilt clearly, fully, completely, and satisfactorily.”

The motion for rehearing is overruled.

DAVIDSON, J.

(dissenting).

When the decision herein was originally handed down, I noted the fact that I could not agree to the affirmance. Motion for rehearing was overruled in an opinion by Judge PRENDER-GAST.

The information charges appellant, in the first count, with keeping and being concerned in keeping a bawdyhouse, and as a house kept for the purpose of prostitution, and as a house where prostitutes were permitted to resort and reside for the purpose of plying their vocation. The.second count charges appellant did unlawfully keep, and was concerned in keeping, a disorderly house; the said house then and there being a house, room, and place where men and women met by mutual appointment, and by appointment made by another; for the purpose of sexual intercourse. The court in his charge submitted the case to the jury, on the theory that, if they should believe that men and women met by mutual appointment, and by appointment made by another, at said house for the purpose of sexual intercourse, they would find appellant guilty. He further charged that, under the first count, the jury could not convict, and withdrew that from their consideration. So the second count, or the one which charges appellant with keeping a place where men and women met by mutual appointment, or by appointment made by another, for the purpose of sexual intercourse, was the count submitted.

I might, perhaps, take the statement made by the opinions, original and on rehearing, as sufficient, but, in addition to what was said, I desire to add this: One of the parties who says he met the girls at appellant’s residence was named McPhael. He says: “Mr. Spradley made the arrangements with Mrs. Hearne, at which time I was present. At the time Spradley and I went up to this place, Mrs. Hearne was sitting in the door at the bottom of the stairway,' and Spradley said: “Mary and Ethel said we could get rooms; we are looking for rooms.” So she told us to come on upstairs. So we went on upstairs, and in a few minutes she came up and showed us the rooms we could take, and in a few minutes later, say 16 or 15, the girls came up; if I remember just right, they came up from the back way. I paid Mrs. Hearne $2 for the room, and I suppose Spradley paid her the same amount. We were up there with the girls before the officers came, hardly a half hour. The officers who came were Mr. Bass, Mr. Poole, Dr. Hudson, and Mr.' Gel-ney. For a few minutes there we were all in the same room. Mrs. Hearne was in there, too; she came and collected the room rent.” This witness testified he was a deputy United States marshal at the time, and later became a policeman in the city of Houston. I-Ie says: “I met those girls and went up to that place, No. 807% San Jacinto street, at the instance and request of Mr. Spradley; he asked me to go. I knew that Mr. Spradley was a police officer, and I at that time was a deputy United States marshal. I thought said house that I and Mr. Spradley and the girls were visiting was an assignation house. When Mr. Spradley and I went up to this house, I thought the girls were taking us up there. I wasn’t roped in to going up there, but X did not make any suggestion about going up there. Mr. Spradley suggested going out and having a good time.” Spradley testified he was a member of the police department of Houston, and “was working in the humane department, and in connection with rooming houses and places like that.” He said he went to the place in question and asked for Mrs. Hearne, and had a conversation at the door with her. “McPhael was with me. We walked up there, and we spoke to her, and we asked her if we could get a room, and she asked us who was with us, and I told her these girls’ names, Mary and Ethel.” This witness says he was an officer of the law, but did not arrest Mrs. Hearne. Pie says he may have known she was violating the law, but he would not arrest her until he got a warrant. This witness testified further that he met these girls on Main street, and McPhael came to where he was talking with them, and they made arrangements there with the girls to go out that night; during the conversation, it was suggested that Mrs. Hearne’s would be a place to go; that he went from the place of the conversation to make arrangements with Mrs. Hearne for'a meeting with the girls, and paid her $4. McPhael testified that he paid his part of it himself with $2. In addition to what is said in the two opinions of my Brethren, I think this will be sufficient.

The statute provides that an assignation house is a house, room, or place where men and women meet by mutual appointment, or by appointment made by another, for the purpose of sexual intercourse, whether at such place vinous, spirituous, or malt liquors are kept for sale or are used or not. Another provision of the act of 1907, p. 246, is that: “It shall be unlawful for any person to invite, solicit, procure, allure or use any means for the purpose of alluring or procuring any female to visit and be at any particular house, room or place for the purpose of meeting and having unlawful sexual intercourse with any male person, or to take part, or in any way participate in any immoral conduct with men or women, or to use at such place any intoxicating liquors, or to give to any person the name and address, or either, or photograph of any female for the purpose of enabling the person to whom such name, address or photograph of such female is given and furnished to meet and have unlawful sexual intercourse, or to bring about or procure such- unlawful sexual intercourse with such female by any other person. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than fifty nor more than two hundred dollars, and in addition thereto shall be confined in the county jail not less than one nor more than six months.” So it will be observed that these two officers, Spradley and McPhael, made arrangements with these two girls, if their testimony be true, to go with them to a rendezvous, and they say it was agreed that Mrs. Hearne’s place would be a fitting establishment. Spradley says that lie met the' girls, introduced McPhael, and made arrangements for himself and Mc-Phael to meet these two girls, to which arrangement McPhael readily agreed, and they were going out “to have a good time.” They testified they went and secured two rooms at Mrs. Hearne’s house. They further testified they were in the rooms with these girls when the officers came, and that the door was locked a sufficient length of time for them to dress and get themselves together, and get in another room altogether, and they were in there when the officers came up. So the officers who came up did not see them in a private room. Mrs. Hearne denies that there was anything indicating an assignation. The girls were not used as witnesses. The record does show they were arrested, but discharged by the order of the chief of police, and were not prosecuted. Under the statute just quoted, it would hardly be questionable, if Spradley and McPhael had been prosecuted under the article read and convicted, that this court would have affirmed the judgment, if their testimony is true. They induced Mrs. Hearne, by the payment of money, to let them have two rooms, as they testified, and, so far as this record is concerned, this is the only assignation, if this be one, that had occurred in that house. The officers testified that they had watched the house, but this is the first time they had any facts; at least it is the first time any arrest occurred. On one or two occasions there is some evidence that a man and woman had been seen to go to and go away from this place. There is evidence that she was keeping a boarding or rooming house, and the officers never thought sufficiently of this matter even to undertake to arrest anybody. So, if this be an assignation house, it is made so by the fact that Spradley and Mc-Phael and these two girls met at this house on this occasion. If that be sufficient evidence to make this an assignation house, and both Spradley and McPhael testified they did not have intercourse with the girls, but simply went there, then that meeting was brought about by Spradley and McPhael renting the rooms of that house and inducing appellant to constitute it an assignation house. There could not have been an assignation at that place without their contrivance and at their instigation, as shown by their evidence, and at their request, and was not, and there is no evidence in the record to show otherwise. Then, if this was an assignation house, it was made so under this record by this one evening’s performance brought about by Spradley and McPhael inviting these two girls to go there and their subsequent meeting at that point and inducing appellant to let them have the rooms for that purpose. Those girls were there by the procurement and mutual agreement with Spradley and McPhael under the testimony of those two men. They invited these girls there. Spradley induced McPhael to go with him. He solicited the girls to go with him and McPhael; and the assignation, if one was made in fact, was made at their instigation, and Mrs. Hearne was induced to rent two rooms to them. If this does not make them accomplices, then it would be difficult to understand what character of testimony it would take to make accomplices. They induced Mrs. Hearne to assign them to two rooms, and the evidence shows this is the only instance in which the thing ever occurred there, and by that means it was made an assignation house, if it was one at all, and these are all the facts that show there was ever any assignation in the house. Then Spradley was guilty, under article 359a, Acts of 1907, p. 216, of inviting and soliciting and -procuring these girls to go there; one of them to go with himself and the other with McPhael. McPhael agreed and went. They were both guilty, under article 359a, of violating the law in inducing these girls to go there, and inviting them there for the purpose of prostitution. They had induced Mrs. Hearne to assign them these rooms.

In the case of Dever v. State, 37 Tex. Cr. R. 397, 30 S. W. 1071, Judge Hurt lays down the rule that where a party persuades and invites others to enter into the commission of an offense, without even intending really to be a participant, or with the intent to secure their arrest, punishment, and the probable reward, he is guilty as a principal, if the offense be completed; for, when a person does a prohibited act, with the intent the law forbids, it will not avail him that he also intended ultimate good. If, by his acts and conduct, he encouraged, advised, or persuaded others to commit the crime, he would himself be guilty, regardless of whether he intended to consummate the crime or not. In that case Judge Hurt distinguished the rule laid down in Woodworth v. State, 20 Tex. App. 375, and the rule announced in the De-ver’s Case. The distinction is readily perceivable, and the margin wide between them. Where an officer, understanding that a crime is to be consummated, or is in course of being brought about and carried out, and he falls in line as a detective, he would not be a principal or an accessory, or a guilty participant, because the crime has already been put into operation in part or in whole; but, where he is in the inception of the crime, and helps to bring that crime about, and assists in it in order that he may arrest, as he says, the parties, he is a guilty participant, and his official character is no protection against the act. That rule is thoroughly settled. No officer has a right to violate the law on the theory that he claims he is doing it for ultimate good. An officer is to suppress crime, and not organize crime in order that he may punish somebody.

We had occasion to go over this matter again in Bush v. State, 151 S. W. 554. This language was used: “Wherever a party deliberately or intentionally originates or succeeds in bringing about a violation of tbe law, be becomes a particeps criminis of that violation, and therefore, when used as a witness, must be corroborated. There is a line of cases which holds that, where an officer or other parties understand or are led to believe that a violation of the law is in contemplation, and take steps to detect that crime, or get evidence by which the guilty parties may be punished, he would not be an accomplice, but in such cases he is not an original party to the bringing about the crime, and is not guilty of originating or initiating it. In that character of case his connection with it is after the inception of the crime, and after it has been determined upon, and he only-then gets into it as a detective or for the purpose of arresting the party and bringing him to punishment. There is another line of cases which holds that, where the party originates the crime or is instrumental in its initiation and brings it about, he then becomes a parti-ceps criminis, and, when testifying as a witness in the case, is an accomplice. The leading cases in this state are Dever v. State, 37 Tex. Or. R. 396, 30 S. W. 1071; Steele v. State, 19 Tex. App. 425. The opinion in the Dever Case was by Judge Hurt, and draws the distinction above mentioned between parties who were playing the role of detective for the arrest and punishment of parties, and those who originate the crime or assist in originating it in the first instance.” The propositions here announced in the Bush and the Dever Cases have been recognized as correct. If these authorities are correct, then, under the facts detailed by these two witnesses, Spradley and McPhael, they are accomplices. This crime could not have been brought about and was not brought about, nor even instigated, except at the hands of and by Spradley and McPhael. By their act this was made an assignation house at the time, if it was such at all, and how it could have been made such without their concurrence this record does not indicate. The trial judge recognized the fact that Spradley was an accomplice, and so charged the jury. He recognized that McPhael was an accomplice, but submitted the fact to the jury. McPhael was equally an accomplice, under the law, with Spradley. He was associated with Sprad-ley from the beginning to the end of it. It is true that Spradley first solicited one of the girls to go with McPhael, and then called McPhael and he assented to it. From that time on McPhael was heart and soul, under his testimony, co-operating. He paid his money for a room. If Spradley and Mc-Phael are accomplices, then the evidence in this case is not sufficient. They are not corroborated as to their purpose of being at the house. They are corroborated as to the fact that they were there in a room with the other parties at the time the officers came, but there is nothing to indicate that anything was being done that was wrong. Mrs. Hearne was not arrested at the time, and the girls, who were subsequently arrested, were discharged. Mrs. Hearne denies practically there was anything indicative of an assignation ; that she was not carrying on an assignation house; that she had rooms there for lodgers and parties who wanted to rent rooms; that she was trying to make a living to support her invalid son, and his wife and child, and was raising her 15 or 16 year old daughter, who was there in the house with her. So this case could not be affirmed on the facts if Spradley and McPhael are accomplices, for want of necessary corroboration showing that Mrs. Hearne was keeping an assignation house, and, inasmuch as this is the only instance shown in the history of the house of any assignation meeting, it was necessary to make this case clear enough and strong enough to authorize a conviction. This was not done, so far as the corroboration of McPhael and Spradley is concerned. Take their testimony out of the case and there is not sufficient evidence to indicate that there was any assignation at the time, or that this was an assignation house.

There is another question in the case that I think my Brethren erroneously decide. The bill is quoted as follows: “Upon the trial of the above styled and numbered cause the district attorney, making his opening argument to the jury, stated as follows: ‘Gentlemen of the jury, look, at the defendant; look at the large diamonds in her ears, and other diamonds she wears. Don’t you know that every glitter from them denotes a. lost soul?’ To which statement counsel for the defendant then and there in open court objected, and submitted a written request to the court requesting the court to instruct the jury not to consider the statement above made by the district attorney. The court refused said request, and, in refusing said request, stated to counsel for defendant, in the presence of the jury, that the state had a right to make that kind of comment, and that the jury has a right to consider the jewelry, wearing apparel, and general appearance of all the witnesses in the case. To which action of the court in not instructing the jury to disregard the statement objected to of the district attorney, and also to the statement of the court in telling the jury that they had a right to consider the jewelry, wearing apparel, and appearances of all the witnesses, defendant then and there objected, and tenders this, his bill of exception,” etc. This bill is signed without qualification. My Brethren, passing upon this matter, say: “It, like each of appellant’s other bills, is too meager and wholly insufficient to require consideration. James v. State, 63 Tex. Or. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Or. R. 312, 140 S. W. 1112. This bill complains of this language of the assistant district attorney in his opening argument.” Then the opinion says: “The bill in no way discloses under what circumstances or surroundings this remark of the attorney was made. If we look to the record to complete the bill, or to make it intelligible, even if that could be done, it would show that appellant herself testified on the stand. Without doubt the jury did look at her and observed her whole conduct, demeanor, and dress, and could not possibly have avoided seeing her large diamonds which she wore, if she wore any. The bill in no way discloses that she did not wear diamonds on this occasion. The district attorney’s question, ‘Don’t you know that every glitter from them denotes a lost soul?’ was a mere flight of oratory or poetic question.” It may have been a flight of oratory or poetic question, but, as Judge PRENDERGAST says, if we look to the statement of facts, we would absolutely fail to find any word or indication in it anywhere that appellant wore any diamonds or owned any diamonds. This was a flighty statement of the district attorney, which should not have been indulged, and it passed far out into the fields of poesy, but the district attorney ought not to be permitted to go out in his fugitive exploitations into poetic fields and state things that were not in evidence. I should hardly imagine the district attorney would have offered to impeach appellant’s testimony by proving the fact that she may have worn diamond earrings or jewelry of any sort. Before a district attorney or a prosecuting officer is permitted to comment on matters of this sort, there ought to be some fact in the record that would justify it. In fact, the flight of oratory out into poetic fields must have been finely drawn when the district attorney could see the glitter of lost souls reflected in the diamonds, and if these were images thrown back from their glitter, it must have been at the time and place of the reflection, to wit, the trial. The reflection of the images of lost souls were those who were then in such position as to be shown in the reflection. However this may be, and however much the prosecuting officer was inclined to indulge in fugitive flights of poetry, it was not legitimate as a means of bringing about a criminal conviction and on facts that were not before the jury. He would not have been so permitted to testify, and there was no evidence before the jury of the matters that he discussed in this poetic flight. I cannot agree that this sort of argument should be permitted. If a defendant cannot be convicted upon the testimony and the presumption of innocence overcome by facts, it ought not to be done by illegitimate argument, even if it has to clip the wings of poetic and fugitive flights of oratory. Appellant is entitled to a fair trial on the facts, and the argument should be confined to the facts. Convictions should be based on proved facts, and not on absence of evidence. In the opinion of Judge PREN-DERGAST the argument of the district attorney only is alluded to. The remark of the court justifying the remarks of the district attorney is not mentioned. I am of the opinion that the remark of the trial judge should not have been indulged. He was but emphasizing the wrong committed by the district attorney, and, as one of our opinions says, the jury is somewhat prone to look upon the “trial judge as the Lord’s anointed.”

For the above reasons, I respectfully dissent.