author: DAVIDSON, P. J.

text:
    HUDDLESTON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    1. Homicide (§ 135)— Indictment — 'Means or Instrument.
    Where the instrument used is not known to the grand jury or cannot be known by reasonable diligence, it is incumbent upon it to allege, in addition to the fact that it was a sharp or blunt instrument, that the further description was unknown, so that a count charging the killing of deceased by stabbing him “with some sharp instrument” was insufficient.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 215-223; Dec. Dig. § 135.]
    2. Homicide (§ 290) — 1Trial—Instructions— Elements of Offense.
    Where a count of an indictment for manslaughter did not sufficiently charge the offense in respect to the instrument used, it was error to authorize the jury to convict on that count.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 595; Dec..Dig. § 290.]
    3. Homicide (§ 142) — Manslaughter—Sufficiency oe Evidence.
    Under a count for killing by stabbing with some sharp instrument, evidence failing to show that defendant, if he inflicted the wound, had any knife or sharp instrument, and showing only that he was engaged in the free for all fight during which the wound was inflicted, was insufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. § 142.] '
    4. Criminal Law (§ 784) — Triai>—Instruction on Circumstantial Evidence.
    Where it appeared in a prosecution for murder that there had been no difficulty be-, tween defendant and deceased, that deceased approached a crowd, and that defendant in a general fight struck twice at deceased, but it was not shown who the others in the fight were or what kind of an instrument made the wound, or how the fighting came about, a failure to submit a charge on circumstantial evidence was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    5. Homicide (§ 286) — Instruments—Means by which Committed.
    Where the instrument or means causing death was a matter of conjecture, where the depth of the wound inflicted near the heart of deceased was not shown, though a small pocket knife might have inflicted it, where there was no previous trouble between defendant and deceased, where the blow, if struck by defendant, was during a general fight, the court should have submitted Pen. Code 1911, art 1147, providing that the instrument or means by which a homicide was committed should be considered in fixing the intent of the defendant, and that, if it was not likely to produce death, it should not be presumed that death was intended, unless such intention appeared from the manner in- which it was used.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 586-591; Dec. Dig. § 286.]
    6. Homicide (§ 307) — Triai>-Instructions— Aggravated Assault.
    Where the instrument or means causing death was a matter of conjecture, where the depth of the wound near the heart was not shown but might have been caused by a small pocket knife, where there was no previous trouble between defendant and deceased, and the wound, if inflicted by defendant, was during a general fight, a charge on aggravated assault should have been given,
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 638-641; Dec. Dig. § 307.]
    7. Criminal Law ■(§ 857) — Trial—Misconduct of Jury.
    Where several of the jury, after retirement, discussed and talked about the defendant’s failure to take the stand in his own behalf, contrary to the charge of the court,, such misconduct was reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. f 857.]
    Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    George Huddleston was convicted of manslaughter, and he appeals.
    Reversed and remanded.

      McMurray & Gettys, of Decatur, for appellant. W. C. Shults, Co. Atty., and R. F. Spencer, Jr., Asst. Co. Atty., both of Decatur, and 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 & Itep’r Indexes

   DAVIDSON, P. J.

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

The indictment contains two counts; the first charging that appellant killed the deceased, Ben Motley, by stabbing him with a knife, and the second by stabbing him “with some sharp instrument.” The second count of the indictment is attacked .as being insufficient; that the simple allegation stabbing him with some sharp instrument is .not a sufficient designation of the instrument with which the stabbing occurred. We are of the opinion this contention is correct. Where the instrument used is not known to the grand jury or cannot be obtained by reasonable diligence, then it is incumbent upon the grand jury to allege, in addition to the fact that it was a sharp instrument or blunt instrument, etc., a further description is unknown to the grand jury. We would suggest that, if it is thought necessary to prosecute this case further, another indictment be preferred charging the offense in conformity with the decisions and the well-understood jurisprudence. The above has been the rule in Texas, and many cases have been decided by this court involving this principle since the case of Jorasco v. State, 6 Tex. App. 238, as well as other cases involving this direct question. See Drye v. State, 14 Tex. App. 185; Jackson v. State, 34 Tex. Cr. R. 39, 28 S. W. 815.

It is also urged that the court erred in' authorizing the jury to convict on the second count in the indictment. Taking up this matter as presented not only as above alleged but as here presented, connected with the charge, we would say that the court did err in submitting this, inasmuch as the indictment did not sufficiently charge the offense, and in response to another question growing out of this phase of the case would say that the conviction cannot be sustained predicated upon this count. The evidence fails to show that defendant, if he was the party who inflicted the wound, had a knife; in fact, no witness testified that he had a knife or any sharp instrument. The two witnesses relied upon by the state to connect the defendant with the transaction testified they did not see him have anything in his hand, and there were others engaged in the “free for all fight” that was going on at the time deceased received the wound from which he died. It would seem satisfactorily apparent that the jury did not convict under the first count, because no witness testified to the fact that appellant had a knife, even if he was the party who inflicted the injury; and, if the jury concluded that he was the party who did the injury, they could only do so from the fact that he was engaged in the trouble in which the injury was inflicted.

This brings us to another proposition urged by appellant, to wit, the court not only failed to charge on circumstantial evidence but refused to give a requested instruction submitting this theory of the law. We are of the opinion that, under the authoritiés, this proposition is correct. The evidence shows on the night of the trouble a social function and dance was being carried on at the home of the deceased. Appellant was a comparative stranger to deceased and his wife, and there had been no difficulty or unpleasant words or occurrences happening between appellant and the deceased prior to the tragedy. Deceased had had some trouble with another party, but appellant was in no way involved in that trouble. Appellant had danced one set with the wife of the deceased and had gone out of doors with one or two friends. Directly the deceased came out in company with a friend and walked out in front of the house through a gate, which was to the east of the house, and 10 or 12 steps into the public road. Off a short distance several parties were engaged in an angry altercation, and some of the witnesses say they were fighting. Nearby there was another crowd, but beyond those engaged in the mSISe. The state’s witnesses put appellant with the crowd that was fighting; others put him with the other crowd. The deceased, hearing the altercation, became somewhat indignant from the fact it was going on at or near his residence, and remarked to the friend who was with him he would go down and stop it or make them leave, or some similar expression, further stating he would not permit such things to go on at his house or near his home. He went to where the crowd was, and the state’s witnesses say the mélée continued, and it appeared to one of the witnesses that all of the crowd which deceased approached jumped on and began fighting him. The state’s testimony, without going into detail, is to the effect that appellant was with this crowd and struck two licks at the deceased, as the witnesses term it, striking at him “overhanded.” It seems to have occurred this way: That while they were fighting one of the witnesses pulled off the man whom the other witness says was appellant; that before pulling him off he had struck one overhanded lick. -Appellant or the man who was pulled off remarked, “Do not hold me, turn me loose,” which the witness did, and appellant, struck another overhanded lick. Directly deceased emerged from the crowd and either sat down or fell down and shortly after-wards died. None of the crowd actually engaged in this fight testified in the case, as we understand this record. Nothing was said, except as above detailed. Who these people were, outside of the evidence above mentioned tending to show appellant was in the crowd, is not shown, by the facts.

Appellant offered testimony to the effect that he was with the other crowd, not engaged in the trouble at all, and was about that time engaged with his friends in hitching up a buggy and immediately left. The two witnesses who testified for the state swear they saw nothing in the hands of appellant. He went home that night and was arrested the following day. Two doctors were called in immediately. One of them testified that he saw the wound but did not examine the body or the wound, just glanced at it; he describes the wound as being below the ribs. The other doctor says he did not examine the wound; he located it, and said it was at the apex of the heart. He says he did not examine the wound and did not know whether it went straight in or upward or downward, nor the depth of the wound. Deceased lived but a short time. He made no statement as to the difficulty. The only remark he is shown to have made immediately after being wounded was, “Oh Dordy!” or a similar expression. The jury perhaps may have been justified in believing from the evidence of the two state’s witnesses that appellant did strike the deceased, in.asmuch as he was “striking overhanded” at him. There were others engaged in the mélée. The deceased had had some trouble with another party shortly prior to this difficulty. He had had no words or altercation or unpleasantness of any sort with appellant. If they were all engaged in a difficulty and fighting the deceased, as these two witnesses would indicate, then it is a matter of conjecture as to who used the instrument that produced the wound. ' How the difficulty came up between the parties is left entirely to conjecture. They were engaged in trouble when the deceased approached them with the expressed determination to make them leave. What he said or what brought about the trouble between himself and the crowd is not shown further than has been stated. It is therefore but an inference that appellant struck the deceased, and still further a presumption based upon that inference or presumption that he had a knife, and still another presumption that he used the knife or sharp instrument or whatever he had. This is from the state’s case. The defendant’s testimony excludes any connection with the trouble. The other parties engaged in the trouble had equal facilities with the appellant, if he was engaged in it, to do the cutting or inflict the injury. We think, therefore, under all the circumstances, a charge on circumstantial evidence should have been given, and the court erred in not giving the requested instruction.

Again it is urged that error was committed in not submitting article 1147 of the Revised Penal Code, which reads as follows: “The instrument or means by which a homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless' from the manner in which it was used such intention evidently appears.” The instrument or the means used in this case is a matter of inference and conjecture. The depth of the wound is not shown. A small pocket knife could have inflicted the wound and brought about the killing, if, as one of the physicians said, it was near the apex of the heart. The intention of the party here is not made evident that he intended to MU, and the main basis of a presumption looking to that end is the fact that the party was stabbed near the heart. This would not necessarily show a deadly weapon or an evident intent to kill, under the circumstances of this case. There was no previous trouble between them. There is nothing to indicate, outside of the blow struck and injury inflicted, that there was any purpose to kill, and in a general fight, where several are engaged in it, fighting promiscuously or striking at random, it may have been just ■ as probable a sudden stroke not definitely aimed for the purpose of killing. There is a long line of cases which require a charge under this statute to be given. There are too many conjectures and inferences in this case as to the weapon and the purposes and object of the parties to lead to the conclusion that the intent to Mil was evident. The contention, therefore, that aggravated assault should have been submitted is sound.

Another proposition is submitted for reversal, which we think is well taken. This grows out of the misconduct of the jury in their retirement in considering the case. During their retirement they discussed and talked about why the defendant did not take the stand and testify in his own behalf. It is deemed unnecessary to go into a detailed statement of this matter. On two or three occasions during the discussion of the case some juror would bring it up and talk about it, and the foreman would then read the charge of the court to them in which they were instructed not to discuss it. After reading it the first time, it came up again, and he again read the charge and warned them. Without discussing this farther, as it may not occur upon another trial, we are of opinion under the cases and proper construction of the statute the jury passed the legal limit in discussing appellant’s failure to testify.

Again, one of the counsel in his discussion to the jury came dangerously near the line on the same proposition; that is, allusion to the failure of the defendant to testify. Upon another trial this should be avoided. It is unnecessary to discuss that matter, hdwever, here as it ought not to and doubtless will not occur upon another trial.

For the errors indicated, the judgment is reversed' and the cause is remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    DAVIS v. STATE
    (Court of Criminal Appeals of Texas.
    April 30, 1913.)
    1. Forgery (§ 29) — Indictment — Allegations— Creating Pecuniary Obligation.
    Where the instrument, claimed to have been forged, as set out in the indictment, was an ordinary check on a bank, which imported a pecuniary obligation on its face, it was not necessary for the indictment to allege that the instrument would have created a pecuniary obligation if valid.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. § 29.]
    2. Forgery (§ 29) — Indictment — Allegations.
    An indictment charging the forgery of a check need not allege that “S. F. Hackney and son,” the payee, was a firm.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. § 29.]
    3. Forgery (§ 29) — Allegations of Indictment-Name of Person Defrauded.
    An indictment for forgery need not allege the name of the person to be defrauded.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. § 29.]
    4. Forgery (§ 29} — Allegations of Indictment.
    An indictment alleging the forging of a check payable to the order of a firm named, “$15.00 Fiftheen no/Dollars For Goods,” was not defective for not alleging what was meant by the word “no,” or the words “For Goods”; their meaning being well known in the commercial world.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dee. Dig. § 29.]
    5. Forgery (§ 29) — Allegations of Indictment-Incorporation of Bank.
    It was not necessary that the indictment, charging the forgery of a cheek on a bank, allege whether the bank was incorporated or unincorporated ; it not being the injured party.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. § 29.]
    6. Forgery (§ 39) — Admission of Evidence.
    In a prosecution for forging a check, complete and valid on its face, the cheek was admissible in evidence.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 109, 110; Dec. Dig. § 39.]
    7. Criminal Law ■(§§ 419, 420) — Hearsay.
    Evidence that another told witness that he had given authority to sign a certain name to a check claimed to have been forged was not admissible in a prosecution for forgery, being hearsay.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    8. Criminal Law (§ 1172) — Harmless Error-Instructions.
    An instruction, in a prosecution for forgery, that if accused actually believed he had authority to -sign to a check the name which he signed thereto, the jury should acquit, cannot be complained of for not being based upon the hypothesis that accused “reasonably” believed, etc.
    [Ed. Nóte, — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    Leonard Davis was eonvictéd of forgery, and appeals.
    Affirmed.
    J. C. Randel, of Anson, 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

   HARPER, J.

Appellant was convicted in the district court of Jones county under an indictment charging him with forgery, and his punishment was assessed at confinement in the penitentiary for the term of two years.

The first contention is that the court erred in overruling appellant’s motion to quash the indictment. The motion to quash the indictment states the following reasons: (1) That the indictment does not charge that the instrument forged would have created, diminished, discharged, or defeated any pecuniary obligation; (2) 'because the indictment does not allege that “S. F. Hackney and son,” was a firm; (3) because the indictment does not allege and show that W. H. Travis, the purported maker, or the said S. F. Hackney & Son, or, either, could have been injured ; (4) because said indictment does not contain allegations as to what was meant by the words “no Dollars” following the word “Fiftheen”; (5) because the indictment does not contain allegations as to what is meant by “For Goods”; (6) because the indictment does not contain innuendo averments to the effect that “The First Bank of Swenson” was a corporation, association, or banking concern, nor where located.

The indictment under which appellant was convicted reads as follows:

“And the grand jurors aforesaid upon their oaths in said court do further present that Leonard Davis, on or about the 10th day of August, A. D. 1912, and anterior to the presentment of this indictment, in the county of Jones and state of Texas, without lawful authority and with intent to injure and defraud, did willfully and fraudulently make a false instrument in writing, purporting to be the act of another, to wit, the act of W. H. Travis, the said W. H. Travis being a fictitious person, which said false instrument is to the tenor following:
“ ‘Swenson, Texas, 8/10 1912. No.-
“ ‘The First Bank of Swenson (unincorporated)
“ ‘Pay to the order of S. F. Hackney and son $15.00
Fiftheen no/ Dollars
For Goods
“ ‘W. H. Travis.’
“By the figures ‘8/10’ in the line at the top of said cheek after the words ‘Swenson, Texas,’ was intended and meant to be and stand for ‘August tenth.’ By the word ‘Fif-theen’ after the dollar mark and figures was intended and meant to be the word ‘Fifteen.’ Against the peace and dignity of the state.”

As to the first ground upon which this motion to quash is based, we think the instrument" on its face imports a pecuniary obligation, and therefore it was not necessary to allege that the instrument, if genuine, would have created, increased, diminished, or discharged or defeated any pecuniary obligation. See Horton v. State, 32 Tex. 79; Labbaite v. State, 6 Tex. App. 257; Morris v. State, 17 Tex. App. 660; Dooley v. State, 21 Tex. App. 549, 2 S. W. 884. It is drawn in the form that virtually all checks on banks are now given.

It was not necessary to allege that “S. F. Hackney and son” was a firm. It has been so decided in a number of cases by this court.

As to ,the third ground, to wit, that the indictment was bad because it did not allege that Hackney & Son, or Travis, or either, could have been injured, it is not tenable. It is not necessary to allege the name of the person to be defrauded. Labbaite v. State, 6 Tex. App. 257; Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248; English v. State, 30 Tex. App. 470, 18 S. W. 94.

As to the fourth ground, that it should have, by explanatory averments, alleged what was meant by “no/” just before the word “Dollars” in the check, we think the entire commercial world knows that it meant “no cents,” and the check as written was an ordinary commercial instrument, and called for fifteen dollars—no more and no less. The words “For Goods” after the amount simply evidences that the check had been given for goods purchased. Forcy v. State, 60 Tex. Cr. R. 206, 131 S. W. 585, 32 L. R. A. (N. S.) 327.

As to the remaining ground in the motion, it was not necessary to allege that the bank in question v;as incorporated or unincorporated ; the hank not being the injured party. See Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1127; Webb v. State, 39 Tex. Cr. R. 534, 47 S. W. 356; Lucas v. State, 39 Tex. Cr. R. 48, 44 S. W. 825; Usher v. State, 47 Tex. Cr. R. 97, 81 S. W. 309; Carter v. State, 55 Tex. Cr. R. 46, 114 S. W. 839; Brown v. State, 60 Tex. Cr. R: 505, 132 S. W. 790.

The check being such an instrument as, if valid, would have created a legal obligation, and being properly described in the indictment, the court did not' err in admitting it in evidence.

The only other bill complains of the action of the court in not permitting defendant to prove by his witness Davis that one Cxoom told witness (Davis) that he had given defendant authority to sign the name of W. H. Travis to the check. This testimony was inadmissible because it was hearsay. If it was desired to make this proof, Croona should have been summoned. What he told a third party would not be admissible.

The only other complaint is that the court erred in his charge to the jury wherein he instructed them that, if the defendant actually believed he had authority to sign to the cheek the name of W. H. Travis, to acquit, whereas the charge should have been that if he reasonably believed he had authority to sign the name to the check, he should be acquitted. There is no merit in this ground. The charge presented the theory of defendant affirmatively in a way he has no grounds for complaint. See article 540, White’s Penal Code; Hatch v. State, 6 Tex. App. 384; Burge v. State, 32 Tex. Cr. R. 359, 23 S. W. 692; Sweet v. State, 28 Tex. App. 223, 12 S. W. 590; Williams v. State, 24 Tex. App. 342, 6 S. W. 531; McCay v. State, 32 Tex. Cr. R. 233, 22 S. W. 974.

Bills of exception Nos. 3, 4, and 5, referred to in the motion for new trial, are not contained in the record before us.

The judgment is affirmed.


author: HARPER,' J.

text:
    WASHINGTON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.)
    Criminal Law (§ 1090*)—APPEAL—RECORD-SUFFICIENCY.
    On appeal in a criminal case, where the record contains neither a bill of exceptions nor a statement of facts, the motion for a new trial presents nothing that can be reviewed.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. §. 1090.*]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Emmett Washington was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER,' J.

Appellant was prosecuted and convicted of burglary, and his punishment assessed at two years’ confinement in the penitentiary.

As there is no bill of exceptions nor statement of facts in the record, there is nothing presented in the motion for new trial that we can review.

The judgment is affirmed.


text:
    HOLMES v. STATE.
    (Court of Criminal Appeals of Texas.
    April 23, 1913.)
    1. Criminal Daw (§ 59)—Parties to Offenses—“Accomplice.”
    An “accomplice” is a person who knowingly, voluntarily, actively, and with' criminal intent unites with the principal offender in the commission of a crime, but mere knowledge that a crime is to be committed or co-operation with a view to detect crime do not make one an accomplice ; and hence an employe who was approached by accused, and who agreed to let accused know when his employer received a car of feed and to leave the warehouse door open, and who was instructed by his employer to inform accused of the car’s arrival, leading to the arrest of accused and to a charge of burglary, was not .an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.

    For other definitions, see Words and Phrases, yol. 1, pp. 75-79; vol. 8, p. 7561.]
    2. Criminal Law (§ 814) — Instructions— Conformity to Evidence.
    Where there was no testimony suggesting that certain parties were accomplices, the court did not err in refusing to submit that issue to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    3. Criminal Law (§ 507%) — 'Testimony of Accomplice — Admissibility — Explanation.
    Where accused, in an attempt to show that a witness was an accomplice, asked him if he had not been discharged by his employer on account of his connection with the burglary, the witness, after answering “No,” and after defendant proved that he did not work for several days thereafter, was properly permitted to explain that the reason he did not work was because his employer let him off for a few days for fear that, when defendant learned of his conduct, there might be trouble.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1097, 1264; Dec. Dig. § 507%.]
    4. Criminal Law (§ 629) — Trial—Indorsement of Witnesses — Waiver of Irregularities.
    Where defendant filed no motion to be furnished the names of witnesses not indorsed on his copy of the indictment, but waited until the case was called for trial, he thereby waived his right to object that the names had not been furnished him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1420-1429, 1432-1436; Dec. Dig. § 629.]
    5. Criminal Law (§ 649) — Trial—Disclosure of Names of Private Prosecutors.
    Where it appeared that private prosecutors employed an assistant in the prosecution, and the court informed defehdant that he could ask each member of the jury, if he had contributed to the prosecution, there was no error in refusing to defer the selection of a jury until defendant had been furnished with the names of all persons contributing to the prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1512-1515; Dec. Dig. § 649.]
    6. Burglary (§ 33) — Prosecution — Evidence-Ownership.
    In a prosecution for burglary of a huilding alleged to be the property of one H., who was shown to be the general manager of a coal company and in control of all its property, evidence that he was the general manager was admissible.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 86, 89; Dec. Dig. § 33.]
    7. Burglary (§ 46) — Prosecution—Instructions.
    Where an indictment alleged that the warehouse burglarized was the property of one H., whom all the testimony showed to he the manager of a coal company owning the warehouse, the fact that a negro who fed stock therefrom carried a key, and that another employe also carried - a key, would not raise the issue that they were the owners of the property so as to require an instruction thereon.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.]
    8. Burglary (§ 31) — Prosecution — Evidence— Consent to Entry.
    In a prosecution for burglary, evidence of the general manager of the company whose building was entered, and of emplo.vés who had keys thereto, that defendant did not have their consent to enter, was admissible.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 83, 86, 88; Dec. Dig. § 31.]
    9. Witnesses (§ 360) — Impeachment—Intoxication of Witnesses — Rebutting Evidence.
    Where defendant, to lessen the force of testimony from witnesses for the state, proved that on the night of the burglary they had and drank intoxicating liquor, the state was properly permitted to prove that they did not become intoxicated.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1165, 1166; Dec. Dig. § 360.]
    10. Criminal Law (§ 850) — Trial—Custody of Jury.
    The fact that a deputy sheriff was a witness in a case did not disqualify him from performing his official duty in guarding the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2033, 2034, 2038; Dec. Dig. § 850.]
    11. Witnesses ■(§ 414) — Impeachment—Corroboration.
    Where defendant, to affect the credibility of a witness who was an admitted accomplice, proved by cross-examination of the witness that he had been promised immunity from punishment in the case, there was no error in permitting the witness to state that he had made the same statement to the county attorney the day after the alleged burglary before he had been promised immunity as he had made on the stand, since an accomplice can be sustained by such proof the same as any other witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    12. Criminal Law (§ 510%) — Evidence-Corroboration of Accomplice.
    Where an accomplice testified as to the road traveled, the kind of vehicle and horses driven, etc., and said that defendant had offered him a pistol, testimony of the officer who arrested him that he had a pistol was admissible as corroborative of the testimony of the accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1127-1136; Dec. Dig. §' 510%.]
    13. Criminal Law (§ 510%) — Evidence-Corroboration of Accomplice — Corroboration by Another Accomplice.
    An accomplice cannot be corroborated by declarations made by him, nor by testimony of another accomplice.
    [Ed. Note. — For- other cases, see Criminal Law, Cent. Dig. §§ 1127-1136; Dec. Dig. § 510%.]
    14. Criminal Law (§ 780) — Trial-tIssues.
    In a prosecution for burglary, the mere fact that a stock feeder employed by the owner of the warehouse carried a key to the warehouse would not raise the issue of his authority to permit another to go to it in the dead of night to carry away feed, so as to require a charge thereon.
    [Ed. Note. — Eor other cases, see Criminal Law. Cent. Dig. §§ 1859-1863; Dec. Dig. § 780.]
    15. Criminal Law (§ 829) — Trial—Requested Instructions — Given Instructions.
    The refusal of special charges is not error, where fully covered by the court’s main charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    16. Criminal Law- (§ 922) — Appeai^Motion eor New Trial.
    Error in the charge given can be taken advantage of in the motion for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2210-2218; Dec. Dig. § 922.]
    17. Criminal Law (§ 1090) — Appeal—Necessity oe Bill oe Exceptions.
    Where there is no bill of exceptions showing that the prosecuting attorney used the remarks alleged in the special charge, the question is not so presented as to be reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig.- §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. «.1090.]
    18. Criminal Law (§ 726) — Trial—Remarks oe Prosecuting Oeeicer.
    A bill of exceptions to remarks of a prosecuting attorney, qualified by the judge’s statement, “Refused because in answer to argument of defendant’s counsel,” presents no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1681; Dec. Dig. § 726.]
    19. Criminal Law (§ 938) — New Trial— Newly Discovered Evidence.
    Where alleged newly discovered evidence would only be admissible as tending to impeach a witness, and would not be of that force as would probably produce a different result, the denial of the motion for new- trial was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Kit Holmes was convicted of burglary, and be appeals.
    Affirmed.
    W. N. Jones, of Mineóla, and M. D. Car-lock, of Winnsbóro, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.

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

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

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

   HARPER, J.

Appellant was indicted charged with burglary. When tried, he was-convicted, and his punishment assessed at three years’ confinement in the penitentiary.

In this record there are some 35 bills of exception; and, while we may not treat of each of them at length, yet we have read them, and acted on such as we thought necessary to a proper disposition of the case.

It appears that appellant was running a livery stable in the town of Alba. The Consumers’ Lignite Company was operating a mine near that town, and had a commissary, warehouse, etc. In the warehouse they kept feed for their teams, buying it in car load lots. According to the state’s evidence, appellant approached Jeems Russell, a negro, employed by the coal company, to do its feeding, and asked him in regard to where the company kept its supply of feed, and, learning, he requested the negro when a fresh ear load was received to let him know, and requested him to leave the door open. This the negro agreed to do, and went at once and reported the conversation to the manager of the coal company, Mr. Hodges, and an employé, Mr. Shoemaker. Messrs. Hodges and Shoemaker told the negro to report to appellant when the car was received, and let them know what he said. Jeems Russell did as they instructed him, and when the car of feed was- received, and he was approached by appellant, he informed him that the car load of feed had been received, when appellant again instructed him to leave the door unlocked, that he would come down that night. The negro reported this conversation to his employers, who then reported the matter to the officers. Appellant insists that this state of facts makes Messrs. Hodges and Shoemaker and the negro, Jeems Russell, all accomplices to the crime, if a crime was committed, and asked a number of charges presenting this theory of the case, all of which the court refused. Mr. Wharton in his work on Criminal Evidence, § 440, says: “An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime. The co-operation must be real — not apparent. The co-operation must be active. Mere knowledge that a crime is to be committed is not generally sufficient to make the party an accomplice. * * * But there are certain relations recognized by 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; 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 a disguised emissary who by purporting to be a friend of the parties suspected seeks to draw from them the inculpatory information.” In 12 . Cyc. p. 1191, it is said, to render one guilty as an accomplice,' he must have participated in or instigated the crime; he must have had the requisite criminal intent. In 1 American and English Ency. of Law, p. 390, the rule is said to be: “The test in general to determine whether a witness is an accomplice is the inquiry: Could the witness himself have been indicted for the offense either as principal, accomplice, or as accessory? If he could not be so indicted, he is not an accomplice. * * * Criminal intent is a necessary ingredient of crime, and is essential to render one an accomplice. It follows that, where this element is absent, one is not an accomplice, and as an illustration states that a person feigning to be a confederate in order to discover and bring a criminal to justice is not an accomplice in crime with them.” In all these works many authorities are cited, including a number of opinions rendered by this court. Recently this court said in the case of Bush v. State, 151 S. W. 556: “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 takes 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.” This has always been the rule in this court.

It has been contended that the opinion of this court in the case of Dever v. State, 37 Tex. Cr. R. 396, 30 S. W. 1071, announces a somewhat different rule, but a reading of that case will convince one otherwise. In that case the person held to be an accomplice, it is true, reported the matter to the officers, and kept them advised, and had no intention of personally engaging in the robbery, but it was further shown that, when he reported the matter to the officers, he and they conferred and decided on the plans, etc., which was reported to the Devers, not solely for the purpose of detecting a criminal, but also for the purpose of obtaining a reward offered by the railroad for the detection of train robbers, which reward they agreed to divide equally among themselves. And the testimony in the case would lead one to conclude that the witness induced the Devers to agree to the commission of the offense in order to obtain the reward, and not for the purpose of detecting a crime already fully decided on by the Devers.'

In this case no one sought to induce appellant to commit the burglary. The design was formed by him alone, and he approached the negro, Jeems Russell, to get him to inform him as to amount of feed on hand, and when a large lot would be received, and to induce the negro to leave the door open that the theft might the more easily be accomplished. The negro did not originate the design; did no act in furtherance of the commission of the offense; did not leave the door open as requested and was not requested to, nor did he do any other act in aid of its commission. The negro by his whole acts and conduct shows he had no criminal intent; no idea of participating in the crime even remotely, but when approached by appellant promptly reported the matter to his employer — the person whose commissary appellant by his remarks shows he contemplated visiting for the purpose of stealing therefrom. The negro reported the matter to his employer, so that, if appellant did so, he might be detected. Those in control of the commissary told the negro, if approached again by appellant, to let him know when the feed arrived, and report to them what he said. This the negro did, and the detection of appellant was accomplished by this means. However, the court submitted to the jury the determination of the question of whether or not the negro, Jeems Russell, was an accomplice in an appropriate cliarge, and certainly this is all that should have been done. .The evidence certainly does not as a matter of law make him an accomplice, but, on the contrary, seems to prove beyond a reasonable doubt that he was not an accomplice to the crime.

As to the witnesses Hodges and Shoemaker, there is no testimony suggesting that they were accomplices, and the court did not err in refusing to submit that issue to the jury. As to the witness, Jeems Russell, appellant, on the trial, sought assiduously to adduce testimony raising the issue that he might be an accomplice, and asked the negro if he had not been discharged by the Hodges on account of his connection with this attempted theft. The negro answered, “No,” when appellant proved that he did not work for several days thereafter, when the court permitted the witness to state that the reason why he did not work was because Mr. Hodges had let him off for a few days for fear that when appellant learned of his, the negro’s, conduct, there might be trouble, and allowed him full pay for all the time. As appellant was seeking to use the circumstance that he was let off a few days and went elsewhere to raise the issue that the negro was an accomplice, the court did not err in permitting the witness to explain the matter.

When the indictment was/ returned, the appellant was served with a certified copy of it, except the copy served on him did not contain the names of the witnesses. He filed no motion asking that he be furnished the names, but waited until the case was called for trial, then moved to postpone the case because of this omission. This question has been decided adversely to appellant’s contention in a number of cases. Walker v. State, 19 Tex. App. 176; Jacobs v. State, 35 Tex. Cr. R. 410, 34 S. W. 110.

It appears that Mr. Beavers had been employed to assist in the prosecution, and appellant filed a motion to require him to disclose who had employed him. Mr. Beavers, at the request of the court, stated the names of the men who employed him, but also stated that he understood that funds had been raised by subscription, a number of citizens living in the community where the crime had been committed, whose names he did not know, contributing to the 'fund. Appellant objected to selecting a Jury until be bad been furnished with the names of all persons contributing to the fund. This the court declined to accede to, but informed appellant he could ash each member of the Jury if they had contributed any sum to the prosecution. In this the court did not err. Appellant does not attempt to show that any person contributing served on the Jury, nor that he suffered any injury by the ruling of the court. Appellant’s complaint that the court erred in not sustaining his challenge for cause as to the Juryman McCollum presents no error. The bill shows that he was a competent Juryman under section 13 of article 692. In addition to this, the bill shows that the Juryman did not serve in the trial of the case, and does not show that any objectionable Juror was forced on him.

The indictment alleged that the house burglarized was the property of Mr. I-Iodges. All the testimony shows that he was the general manager of the coal company and had control of all its property, and the fact that the negro who fed the stock carried a key, and another employé also carried a key, would not raise the issue that they were the owners of the property, and the court did not err in admitting testimony that Hodges was general manager, and in refusing the instructions requested on this issue.

Neither was there any error in permitting the state to prove by those two who had keys, as well as by the general manager, that appellant did not have their consent to enter the house.

Appellant, to break the force of the testimony of the witnesses for the state, proved that on the night of the burglary they had intoxicating liquor, and drank some of it, when the state was permitted to ask if any of them became intoxicated. In this there was no error. Appellant’s object and purpose evidently was to show that they were not in a condition to correctly see and know the occurrence as they had detailed it, and if that was his object, after he had injected the issue, it was permissible for the state to prove that' they did not become intoxicated.

It appears that one of the deputy sheriffs was a witness in the case, and appellant objected to him guarding the Jury. If every officer who should be summoned as a witness in a case should thereby be disqualified from performing his official duty, it might occur there would be no officer to wait on the court. In this case it is not attempted to show any improper conduct on the part of the officer. The court in approving the bill shows that no other deputy was in attendance on court, and the bill presents no error.

Jake Eowler is an admitted accomplice, and the court so instructed the Jury. In the cross-examination of the witness the defendant proved by him that he had been promised immunity from punishment not only in this case, but in other cases pending against him. This was done to affect his credit as a witness, and cause the Jury to give less weight to his testimony. Under such circumstances, there was no error in permitting the witness to state he had made the same statement to the county attorney the day after the alleged burglary before he had been promised immunity from punishment. Wharton’s Crim. Law, § 492. In Anderson v. State, 34 Tex. Cr. R. 546, 31 S. W. 673, 53 Am. St. Rep. 722, in rendering the opinion, Judge Hurt says: “An accomplice can be sustained by such proof Just as any other witness.”

The other exceptions to this witness’ testimony are to say the least hypercritical. This witness, while testifying as to the acts and conduct of the defendant on the night of the burglary, told the road they traveled, the kind of vehicle they were driving, the kind of horses, etc., and told of appellant offering him a pistol. The officers who arrested the appellant that night corroborated this witness as to the road appellant was traveling when arrested, the kind of vehicle, and color of horses, also stated that when arrested appellant had on a pistol. Appellant objected to the officer being permitted to testify that he had on a pistol. This was admissible along with other circumstances as corroborative of the testimony of the accomplice. The court’s charge on who are principals in the commission of an offense is in language frequently approved by this court, and correctly applied the law to the evidence, and is not subject to the criticism that it is “a charge on conspiracy to commit burglary.” (Branch’s Grim. Law, § 682.

The complaint that the court should have charged the Jury that one accomplice cannot corroborate another is met by the charge of the court when he instructed the jury: “You are charged that an accomplice cannot be corroborated by declarations made by him nor by testimony of another accomplice; so if you find that Russell was an accomplice, or if you have a reasonable doubt as to whether he .was, then you are charged that Fowler’s testimony cannot be corroborated by Russell’s testimony, nor Russell’s testimony cannot be corroborated by Fowler’s testimony.”

In his charge the court instructed the jury that if appellant had the permission of Jeems Russell to take the oats, and he believed Russell had authority to give such permission, or the jury had a reasonable doubt about these matters, to acquit. This was more favorable to defendant, if anything, than he was entitled to, for the evidence hardly raises the issue that he thought Russell had any such authority. The fact that Russell was employed to feed the stock, and carried the key, would not indicate to anyone that he had authority to give another permission to go to the commissary in the dead hour of night and carry away oats.

The court correctly defined entry in his main charge, and it was not necessary to give the special charges asked in regard to this matter.

Special charges Nos. 3, 5, 6, 7, 8, 9, 10, 11, 12, and 15 are not the law of this case, and should not have been given, and all the other special charges requested were fully covered by the court’s main charge. The practice' of waiting until the court Has read his charge to the jury, and then just as the jury is retiring to present to the court a handful of special charges, is not to be commended.

Of course, if there is an error in the charge as given, it can be taken advantage of in the motion for new trial, but to in this way seek to have added emphasis given to a special charge by having a júry called back to hear it read is hardly proper.

There is no bill of exceptions showing that the prosecuting officer used the remarks alleged in special charge No. 16, consequently the question is not presented in a way that we can review the matter.

However, as qualified by the court, “Refused because in answer to argument of defendant’s counsel,” if the matter had been verified by a bill of exceptions, it would not present error.

That ground in the motion alleging newly discovered testimony presents no error. The testimony of the witnesses named as alleged would only be admissible as tending to impeach the witness Fowler, and would not be of that force as would probably produce a different result.

The evidence in this case amply supports the verdict. An opening of the door and entry was shown beyond any reasonable doubt. The intent in opening the door is made manifest by the entire record, and even if it should be said that Russell was an accomplice, as well as Fowler, the finding of the “canceled cheeks” signed by appellant, and returned to him, as testified to by the banker, near the door of the house which was broken into, would in and of itself be a sufficient corroboration of the witness Fowler that appellant was the person who opened the door and participated in the crime. However, there are many other facts and circumstances in evidence which corroborate the witness, and show that appellant is guilty of the offense.

The judgment is affirmed.


author: PRENDBRGAST, J.

text:
    AUSBROOK v. STATE.
    (Court of Criminal Appeals of Texas.
    March 19, 1913.
    On the Merits, April 30, 1913.)
    1. Criminal Law (§ 1131) — Appeai>-Dis-missal — Insufficient Recognizance — Reinstatement.
    Where an appeal from a conviction of a misdemeanor was dismissed because of an insufficient recognizance, and appellant immediately furnished as a part of the record a proper recognizance, his motion to set aside the dismissal and reinstate the case would be granted and the case decided on its merits.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2971-2979, 2985; Dec. Dig. § 1131.]
    2. Jury (§ 116) — Qualification—Motion to Discharge. i
    Where accused was charged with illegally selling intoxicating liquors, it was not error to deny his motion to discharge the regular jury of the week on the ground that it had already tried and convicted two other defendants for the same character of offense and on the testimony of two witnesses who would be the only witnesses against accused, it appearing that the other defendants had been convicted of running entirely different places, and there being no showing that either of the jurors who sat in the trial of accused were a part of the jury that tried either of the other cases.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 542, 543; Dec. Dig. ¿ 116.]
    3. Criminal Law (§ 507) — -Accomplice—Officers — Detection of Crime.
    Where an officer or other person believes a violation of law is contemplated or has occurred, and takes steps to detect the crime or get evidence by which the guilty party may be punished, such person, when testifying as a witness, is not an accomplice.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    4. Intoxicating Liquors (§ 239) — Retail Malt Dealer.
    _ Where, in a prosecution for selling intoxicating liquor as a retail malt dealer in a prohibited district, there was evidence of more than two sales about the same time that accused was charged with a commission of the offense, an instruction that, in order to convict, the jury muát believe beyond a reasonable doubt that accused had made the two specific sales alleged in the complaint and information, and that one sale would not constitute a, retail malt dealer, was proper and sufficient.
    [Ed. Note. — For other cases, see Intoxicating láquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    Appeal from Dallas County Court, at Law; W. F. Whitehurst, Judge.
    A. C. Ausbrook was convict,ed of a misdemeanor, and he appeals.
    Affirmed on rehearing.
    Walker & Williams, of Dallas, 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

   PRENDBRGAST, J.

Appellant was convicted of a misdemeanor.

The state has made a motion to dismiss the appeal because of an insufficient recognizance. The motion is well taken.

The cause is dismissed.

On the Merits.

By proper complaint and information appellant was charged with the offense of selling intoxicating liquors capable of producing intoxication in quantities less than a gallon without taking out a license as a retail malt dealer in the city of Dallas which was not prohibition territory, but where such sales were prohibited in nonprohibition territory. His penalty was fixed at a fine of $250 and one day in jail.

At a former day of this term this case was dismissed for an insufficient recognizance. Since then appellant has entered into and furnished as a part of the record of this case a proper recognizance. His motion therefore to set aside the dismissal and reinstate the case is granted, and the case is decided on its merits.

The count in the complaint and information which charged this offense and which alone was submitted by the court to the jury, and under which he was convicted, follows the law and forms that have been approved by this court and was correct. The statute under which this prosecution was had provides: No person shall sell directly or indirectly malt liquor capable of producing intoxication in quantities of one gallon or less, without taking out a license as a retail malt dealer. And prescribes as a penalty, a fine of not less than $250 and no more than $500, and imprisonment in the county jail not exceeding 90 days. P. O. art. 612. Our statute further prescribes that-said law shall not be contraed to be in conflict with any local option law “now or hereafter” in force in this state. The city of Dallas, where this offense was charged to have been committed, was what is denominated by the law and popularly as non-prohibition territory. Said city, however, has prescribed certain limits thereof in which saloons or retail liquor dealers may sell by complying with the law and procuring a license, and such sales are prohibited in the other portions of said city. In other words, saloon limits are prescribed and retail liquor dealers can sell only within such prescribed district and every one is prohibited by this law from selling outside of such district or portion of the city. The sales which are alleged and proven in this case were made in such prohibited district in the city of Dallas.

The appellant made a motion to discharge the regular jury of the week at the time on the grounds that .this jury had already tried two other defendants and convicted them on the same character of offense and on the testimony of two certain witnesses who would be the only witnesses against appellant in this case. The court properly overruled this motion qualifying appellant’s bill presenting it by stating: “There was an additional witness Jim Peck in this case. The defendant Jess Howell and Jacob Bush [the parties against whom two verdicts of .guilty had already been rendered] were convicted of running entirely different places. They did not have anything to do with_ each other and were in different parts of the city of Dallas, Tex.” Besides, neither the bill nor the record shows that either of the jurors who tried the defendants in other cases mentioned were on the jury that tried this case. The court gave a full, correct, and apt charge, submitting for a finding every question that was properly raised by the law and the evidence in this ease. He gave no charge on the subject of accomplices’ testimony. The appellant requested a special charge on this subject, submitting the question of whether two of the state’s witnesses were accomplices, and, if so, a conviction could not be had upon their testimony without corroboration, etc. This 'question is not raised by appellant’s complaints in such a way that this court is required to review this question in a misdemeanor case. Byrd v. State, 151 S. W. 1071, and authorities there cited; Giles v. State, 148 S. W. 320; Golden v. State, 146 S. W. 946, 947; Perkins v. State, 144 S. W. 244, 245; Ward v. State, 151 S. W. 1076, 1077. Even if we could consider the appellant’s complaint on this point, the evidence called for no charge on that subject. We have had occasion in several cases recently decided to investigate this question thoroughly, and to decide when the evidence raised the question as to whether or not the witness, or witnesses were accomplices. It is unnecessary to again herein discuss this question and cite the authorities. The cases we have decided fully discuss the point. Holmes v. State, 156 S. W. 1172, decided April 1913, Minter v. State, 158 S. W. -, decided April 16, 1913, neither of which cases nave been officially reported, and Bush v. State, 151 S. W. 554. The principle held and announced in the cases cited above, and many other eases of this court, is to this effect: Where an officer or other party understands, or is led to believe, that the violation of the law is in contemplation, or has occurred, and takes steps to detect that crime or get evidence by which the guilty party may be punished, such witness would not be an accomplice. He is not an original party to bringing about the crime, and is not guilty of originating or initiating it. In such case such witness’ connection with it is after the inception of the crime and after it has been determined upon, and he then only gets into it as a detective or for the purpose of arresting and bringing the guilty party to punishment. The evidence in this case shows that these witnesses were not accomplices, but were embraced within the principle above announced.

Appellant’s only other charge was clearly upon the weight of the evidence of certain witnesses and should not have been given.

The court by his charge, not only required the jury to believe beyond a reasonable doubt that the appellant had made the two specific sales alleged in the complaint and information, but specifically told them that one sale would not constitute a retail malt dealer. The evidence not only shows these two sales but others, all along about the same time that he is charged with the commission of this offense. This charge in this character of a misdemeanor case was sufficient and correct. Mansfield v. State, 17 Tex. App. 472, and the cases of Giles, Golden, Perkins, and Ward, above cited. Appellant reguested no special charge on this subject.

None of appellant’s complaints to the charge of the court present any reversible error. The judgment will be affirmed.

       Rehearing pending.


text:
    CLIFTON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.)
    1. Criminal Law (§ 1090)—Appeal—Record —Sufficiency.
    The denial of a motion for a new trial because of the admission of alleged erroneous evidence could not be reviewed, where the record contained no bills of exception verifying such matters, and there was nothing in the record to show that evidence was admitted, other than as stated in the motion.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§ 1122)—Appeal—Record —Burden op Showing Error.
    It was not shown that the court erred in giving a charge which tended to emphasize another portion of the charge, where it did not appear how this could have injured accused, and it was not in fact urged that it did injure him, especially where the evidence was not in the record, and did not accompany the record.
    [Ed. Note.'—Eor other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    3. Criminal Law (§ 1121)—Appeal—Record —Sufficiency.
    The sufficiency* of the evidence to prove accused’s guilt beyond a reasonable doubt could not be reviewed, where the evidence was not in the record, and did not accompany the record.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2938, 2939; Dec. Dig. § 1121.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Harold Clifton, alias Howard Carrier, was convicted of theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, P. J.

Appellant was convicted of theft of money, alleged to be $500; his punishment being assessed at two years’ confinement in the penitentiary.

The first ground of the motion for new trial is to the effect that the court erred in admitting in evidence a copy of the testimony of Eva Gilmore, given at the examining trial, for the reason that same is and was an unsigned copy of said testimony, and in so doing the defendant was deprived of his right, under the Constitution and laws of this state, to be confronted with the witnesses against him on the trial of his cause; and, second, the court erred in admitting in evidence the testimony of the witness Eva Gilmore touching a civil contract between defendant and herself, the same being based upon a civil contract in writing, and which evidence tended to prejudice the jury against him. Suffice it to say, the record does not contain bills of exception verifying these matters, and there is nothing in the record to show evidence was admitted, other than as stated as grounds of the motion. Of course, under these circumstances those two grounds of the motion cannot be considered.

The third ground is: The “court erred in the second paragraph of its general charge, on page 5, for the reason that the same tends to emphasize the first paragraph of said charge on page 2.” This ground is very general, to say the least of it There is nothing pointed out that would tend to show any error, or even if one charge emphasized the other, how it could have injured appellant,' and in fact it is not urged that it did injure him. And it may be further stated in this connection the evidence is not in the record; nor does it accompany the record.

The remaining ground is that the state failed to ■ prove beyond • a reasonable doubt that defendant committed the theft charged. This cannot be reviewed, in the absence of the testimony. ‘ •

The judgment is affirmed.


text:
    WHITMIRE v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Forgery (§ 29*)—Sufficiency of Indictment-Explanation or Innuendo.
    An indictment without extrinsic or innuendo averments, charging defendant with passing the following instrument: “Mr. Bartay please let Jim Whitmire have the plows if he dont pay you I will Yours Respectfully Mr. Sam. Pier”—was insufficient to charge the offense of passing a forged instrument.
    [Ed. Note.—For other cases, see Forgery, Cent. Dig. §§ 77-81; Dec. Dig. § 29.*]
    2. Forgery (§ 44*) —Prosecution — Sufficiency of Evidence.
    . Evidence, in a. prosecution for passing a forged instrument, held: not sufficient to sustain a conviction.
    [Ed. Note.—For other cases, see Forgery, Cent. Dig. §§ 117-121; Dec. Dig. § 44.*]
    Appeal from District Court, Austin County; Frank S. Roberts, Judge.
    Jim Whitmire was convicted of forgery, and he appeals.
    Reversed and remanded.
    . Duncan & Duncan and C. G. Krueger, all of Bellville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

There are several very interesting questions presented for revision by this record, which but for the insufficiency of the facts to support the conviction would require consideration and discussion. Inasmuch, however, as the evidence does not support the conviction, we deem it unnecessary to discuss those legal questions.

In a general way, however, we would say that the indictment we would regard as not being sufficient to charge the offense of passing a forged instrument. Without extrinsic or innuendo averments, appellant is charged with passing the following instrument:

“Mr. Bartay please let Jim Whitmire have the plows if he dont pay you I will
“Yours respectfully Mr. Sam Pier.”

There are no averments explanatory of this instrument, or what it meant. We think, under the cases of Womble v. State, 39 Tex. Cr. R. 24, 44 S. W. 827, and Crawford v. State, 40 Tex. Cr. R. 344, 50 S. W. 378, this is not sufficient. , It is not the purpose of the writer here to discuss this matter, further than to say, if it should be thought necessary to prosecute this case further, that an indictment should be presented with sufficient explanatory and innuendo averments. This indictment would not be sufficient in a civil case upon which to ask the court to enter judgment in favor of the plaintiff.

The evidence is insufficient. Without going into a repetition or detail of the evidence, in substance, it discloses that Bartay was a blacksmith, and did work of that character. Appellant was working for Mr. Pier as a renter. Mr. Pier had informed appellant that he could use certain plows, provided he (appellant) should have them sharpened or repaired at his (appellant’s) expense, and requested or suggested to appellant that he carry them to Mr. Bartay to do the work, and told him that Mr. Bartay was a new blacksmith just setting up in business in that neighborhood. Appellant proceeded to Bartay’s with these plows. Mr. Pier told appellant to inform Mr. Bartay that if he (appellant) did not pay for the work on the plows that he (Pier) would do so. In other words, he told appellant to inform Mr. Bartay that he (Pier) would be responsible for' whatever debt was incurred, in repairing the plows, in ease appellant did not pay it. Mr. Pier so testifies, and so does defendant. Bartay says when appellant came to him with the plows that he was informed by appellant such was the condition, but he objected to that; said it was not good or legal, or something to that effect; and he then says appellant presented the written, document declared on in the indictment. Appellant denied absolutely that he ever saw the written document, or had anything to do with it. Pier testifies he did not believe appellant ever signed or wrote it. It is unnecessary to go into further details. There was some evidence attacking Bartay’s testimony, but the substance of the case is about as stated. Under this evidence appellant was not guilty of forgery. There was no intent to defraud anybody. Mr. Pier had authorized him to inform Bartay of his responsibility to pay, in case appellant did not pay. The written document did not affect or change the responsibility of Mr. Pier; he so recognized it and paid the amount claimed by Bartay. McCay v. State, 32 Tex. Cr. R. 233, 22 S. W. 974; Knowles v. State, 74 S. W. 767. The above is a brief summary of the facts.

The judgment is reversed, and the cause is remanded.


text:
    CASTENARA v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.)
    1. Criminal Law (§ 1166%) — Continuance —Absence of Attorney.
    Where the attorney for accused, absent when the case was called, appeared before any witness was examined, and the only absent witness appeared before the trial was completed and testified, and accused was not injured by the absence of the attorney, accused could not complain that he was forced to trial during the absence of his attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    2. Witnesses (§ 48) — Competency — Conviction of Felony.
    One jointly indicted with accused and first tried and convicted of the felony charged is not a competent witness for accused.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dec. Dig. § 48.]
    3. Criminal Law (§ 424) — Evidence — Admissibility.
    Where one jointly indicted with accused was first tried and convicted of the felony charged, statements made by him to third persons -about the crime were inadmissible in behalf of accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.]
    4. Criminal Law (§ 346) — Evidence—Admissibility.
    A witness, who testified to seeing accused and a third person together at a named place, could, to .fix the time, state that he saw them the night before he learned of the crime charged.
    [Ed. Note. — For other cases, see Criminal. Law, Cent. Dig. § 786; Dec. Dig. § 346.]
    5. Criminal Law (§ 1097) — Appeal —Review — Statement of Facts.
    In the absence of a statement of facts, the insufficiency of the- evidence to sustain the conviction cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    Appeal from District Court, Victoria County; C. F. Garsner, Special Judge.
    Carlos Castenara was convicted of burglary, and lie appeals.
    Affirmed.
    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

   HARPER, J.

Appellant, with one W. B. Barton, was jointly indicted, charged with burglary. A severance was had, and when tried appellant was adjudged guilty, and his punishment assessed at eight years’ confinement in the state penitentiary.

In bill of exceptions No. 1 appellant complains that he was forced to trial during the absence of his attorney. From the bill it appears that the case had been postponed on several occasions at the request of his attorney. When the case was finally set for a day certain, and his attorney notified, and while his attorney was not present when an announcement was made, yet the only absent witness appeared before the trial was completed, and testified in the case; and it further appears that his attorney did put in his appearance before any witness was examined, and as explained in the bill no injury could have or did result to appellant, and the bill presents no error.

Bill No. 2 complains of the action of the court in refusing to permit defendant to prove by his witness Ben Quesada the habits of the Mexican people about men and women all sleeping in the same room. As qualified by the court this could not, under the circumstances of this ease, have been a material inquiry.

By another bill it is made to appear that appellant’s codefendant, W. B. Barton, had been first tried and convicted. Under such circumstances he would not be a competent witness for defendant, and as he in law was not permitted to testify, what he stated to others about the alleged burglary would not be admissible. His evidence could not be gotten before the jury in this indirect way.

In the only other bill in the record complaint is made that the witness Amado Anganor was permitted to testify that he heard of the alleged burglary one morning, and that the night before he had seen appellant and his codefendant together at 11:30 o’clock at a named place. As fixing the time when he had seen appellant and Barton together at the named place, it was permissible for the witness to state it was the night before he learned of the burglary.

In the motion for a new trial there is no complaint of the charge of the court, and the only ground states that the evidence is insufficient to sustain the conviction. In the absence of a statement of facts, we cannot pass on this question.

The judgment is affirmed.


author: DAVIDSON, C. J.

text:
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 7, 1913.)
    1. Criminal Law (§ 594) — Continuance-Absence of Witnesses.
    The court did not err, on the day of a criminal trial, in refusing accused time to inform her attorney, who had just been employed, to get a witness, who would have testified that she and accused were together shortly before the alleged commission of the offense, but whose attendance accused had made no effort to secure, since if this testimony was true accused knew as much about it as the witness, and did not need to employ a lawyer before securing the witness’' attendance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 132i, 1322, 1332; Dec. Dig. § 594.]
    2. Criminal Law (§ 945) — New Trial — Newly Discovered . Evidence.
    A new trial for theft from the person would not be granted for newly discovered evidence' consisting of the testimony of a witness that she and accused left a moving picture show together on the evening of the crime, where it appeared that they had separated before the occurrence of the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2324-2327, 2336; Dec. Dig. § 945.]
    3. Larceny (§ 55) — Evidence—Sufficiency.
    Evidence, on a trial for theft from the person, that the prosecuting witness felt something brush against his person, and upon feeling ascertained that his pocketbook had been taken, that accused ran away, and was chased by the prosecuting witness and arrested by officers, who were called, and that upon the following morning the pocketbook was found in a private inclosure near the point where accused was arrested, was sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. § 55.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Cora Johnson was convicted of theft from the person, and she appeals.
    Affirmed.
    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, C. J.

Appellant was convicted of theft from the person; her punishment being assessed at two years’ confinement in the penitentiary.

There are no bills of exception in the record. Three grounds are set up in the motion for new trial: First, the evidence is not sufficient to justify the conviction; second, the court erred in refusing the defendant time, on day of trial, to inform her attorney, who had just been employed, to get a witness that was material to her defense; and third, since the trial of this cause she has discovered new testimony, which she was unable to secure before, for the reason shq had no attorney to locate the witness whose affidavit is hereto attached and made a part of the motion. Attached to this motion is the affidavit of appellant, to the 'effect that the evidence of Lillie Hill could not be obtained, as she did not know where she lived, and had no attorney to search for or locate her. She states that the testimony of such witness is material. This is the entire affidavit. Lillie Hill filed an affidavit, in which she states that on the night that Cora Johnson was arrested “I and Cora left the moving picture show on Commerce street and came down Travis until we got to Main avenue, and I left Cora. She went north on Main avenue, and I went south towards Houston street, and I did not see lier any more. And the next morning I heard that she had been arrested, .charged with vagrancy. This was on the night of the 27th of October, 1912.” This is her entire affidavit. All of the facts that Eillie Hill set out in her affidavit were known to appellant before the trial, and there was no effort made to secure her attendance at the trial. It is not necessary for her to employ a lawyer in order that she might ascertain what Lillie Hill states. If Lillie Hill is swearing the truth, appellant knew as much about it as did Lillie 1-Iill, and it was not necessary for her to have an attorney to inform her of a fact that she already knew. Viewed in the light of the record, there is nothing in that part of the motion. None of these matters were excepted to at the time of trial, and are only brought forward in the motion for new trial.

The alleged newly discovered evidence is not such as comes within any rule laid down by the statute or our criminal jurisprudence. It is not such evidence as could have possibly affected her trial. Taking Lillie Hill’s testimony as true, she separated from appellant before the occurrence of the alleged offense, to wit, the taking from the person of Irwin M. Smith his pocketbook and money.

We are of the opinion that the evidence is sufficient to justify this conviction. In brief and substantially the statement of facts discloses that Smith, the alleged owner of the property taken, was walking along the street near where there seems to have been a crowd; at least it was during some sort of a carnival or exhibition in San Antonio that brought about quite a gathering of people, and the band was just emerging from the street car as Smith passed that immediate section. He felt something brush against his person, and felt and ascertained that his pocketbook had been taken from his hip pocket, containing $61 and some cents. Appellant ran away and was chased by Smith, and finally officers were called, and she was arrested and carried to the police headquarters. She did not have the pocketbook when examined at police headquarters, but early the next morning before day,--at the point where she was arrested, search was made for the pocketbook,, and it was found where she had thrown it into a private inclosure. The evidence, though circumstantial, is convincing of the fact that appellant got the pocketbook, and when the officers ran upon and arrested her she discarded it by throwing it over into nearby premises. The evidence meets fairly and cogently the rule of circumstantial evidence, and excludes every other reasonable hypothesis, except the fact that she obtained Smith’s pocketbook and placed it where it was found. The evidence is also sufficiently convincing to show that no one else got it except appellant, and in fact the evidence would exclude the idea that any one else except appellant conveyed the pocketbook to the point where it was found. She denied taking the pocketbook from the person of Smith. The jury was authorized to believe that she did, and the facts are sufficient to support their finding.

The judgment is affirmed.


text:
    LYNCH v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.)
    1. Larceny (§ 62) — Consent—Evidence.
    Where there is positive, affirmative testimony to be had as to want of consent to the theft from the person, that fact cannot be shown by circumstantial evidence; but it can be so shown where there is no positive evidence available.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 153, 162; Dec. Dig. § 62.]
    2. Criminal Law (§ 1129) — Appeal — Assignment — Waiver—Instruction.
    An assignment of error in not giving requested instructions Nos. 1, 2, 3, etc., is not sufficient to authorize their consideration on appeal.
    [Ed. Note. — For other cases, see Criminal-Law, Cent. Dig. §§ 2954-2964; Dec. Dig. § 1129.]
    Appeal from Collin County Court; H. L. Davis, Judge.
    Scott Lynch was convicted of theft, and he appeals.
    Affirmed.
    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, P. J.

This is a companion case to No. 2,388, Wilson v. State, 156 S. W. 204, recently affirmed by this court. There is only one bill of exceptions presented that can be considered. All the other bills are not signed or approved by the trial judge. The bill signed by the trial judge recites that after argument had closed, and before the charge had been given the jury, appellant presented a motion to dismiss the case, because the evidence would not show that any cotton was lost, and because the offense, if any, was committed in Dallas county, and the court overruled the motion. Thereupon defendant presented another motion to dismiss, because the state had not proved by any testimony that any cotton was taken from the possession of Jim Lewis, the prosecuting witness; that if any cotton was taken from the possession of Jim Lewis, the alleged owner, that the evidence did not show it was taken without his consent. Then follows this language: “Said motion is in. words and figures as follows,” but the motion is not included in the bill of exceptions; but, perhaps, that would be immaterial, as it is in the record. Again, the bill' recites that in support of the motion to dismiss appellant offered the entire testimony of Jim Lewis, the alleged owner, taken at a former term of the court in the trial of John Wilson, a companion case, which, had already been read in evidence, and which is in the record. This bill recites, “The said testimony of Jim Lewis is as follows;” but the testimony is not incorporated in the bill of exceptions. Under the rules prescribed by the Supreme Court, it seems this would not be sufficient; that where a bill of exceptions calls for the insertion of an instrument it must be inserted in the bill. However, the evidence of Lewis will be looked to anyway. The bill further recites: “Thereupon the court suggested that the state had proved want of consent by the defendant, and counsel for the defendant suggested to the court that it would not be competent to prove this by the defendant, because the state has to prove the corpus delicti, and the defendant is not required to take the stand until the state has proven the corpus delicti. Thereupon the court stated that, the defendant having testified that Lewis did not give his consent for him to take the cotton, the jury can look to any evidence in the case, whether offered by the state or the defendant, in determining any issue; and the court thereupon announced that he would overrule the motion. Thereupon counsel for the defendant announced that he desired to embrace in his bill of exceptions the entire testimony of Jim Lewis, and the court stated that he would permit this.” “The bill is allowed with the qualification that this bill was approved on May 2, 1912. - The court adjourned on the 13th of April, 1912.”

Taking this bill as a whole, it does not present any error. Lewis, the alleged owner, did not testify in terms that he did not give consent. The facts show that he was prosecuting the case, and had taken many steps to investigate the theft, and found his cotton and identified it, etc. He was not present at the term, being at Mineral Wells sick; therefore it was agreed to use his testimony given in the trial of John Wilson. Where positive, affirmative testimony can be shown in regard to want of consent, this may be done, and it cannot be shown by circumstantial evidence. Where positive evidence on want of consent cannot be obtained, then circumstantial evidence may be used; but in this case, however, we are of opinion those matters amount to no practical value, because defendant testified positively upon the witness stand that he did not have the consent of Lewis to take his cotton. He denied also having taken the cotton. We think the evidence is sufficient to comply with the most rigid rule in regard to this matter, and shows that appellant, if he took the cotton, did not take it with the consent of Lewis. He affirmatively shows this fact, and all the circumstances and the evidence shows satisfactorily that he did not have such consent. This, in view of the fact that Lewis so testified, we think, makes out sufficient evidence on this proposition. The other bills are not considered, because not approved by the court.

Appellant asked some special instructions, which were refused. In the motion for new trial he says the court erred in not giving his requested instructions Nos. 1, 2, 3, including the entire number. This is the only way that matter is presented. This is not sufficient to authorize consideration, but in any event we are of opinion that the court sufficiently charged the law applicable to the facts. The charges requested by appellant presented the matters already charged upon in different forms. There is no error, we think, anyway in refusing the requested instructions. The evidence in the Wilson Case, companion to this ease, was held sufficient to authorize the conviction, and a review of the testimony in this case is sufficient, we think, to show that the jury was justified in reaching the conclusion they did that appellant was guilty of the theft of cotton, as alleged in the information.

Finding no reversible error in the record, the judgment is affirmed.


text:
    JACKSON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 30, 1913.
    On Motion for Rehearing, May 28, 1913.)
    1. Criminal Law (§ 1097) — !Necessity or Statement of Facts — Instructions.
    Assignments of error as to charges on the issue of aggravated assault and the insufficiency of the evidence to support the conviction cannot be considered, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal' Law, Cent. Dig. §§ 2862, 2864,. 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    On Motion for Rehearing.
    2. Criminal Law (§ 1077) — Transcript of Evidence — Inability to Pay — Duty of Court to Order.
    Act 32d Leg. p. 268, § 14, providing that in all cases where the court is required to and does appoint an attorney to represent the defendant in criminal action the official reporter shall be required to furnish the attorney for said defendant, if convicted, and where an appeal is prosecuted, with a transcript of his notes, as provided in section 5, for which service the state of Texas shall pay, etc., when construed with section 8, does not authorize the furnishing of a transcript of the evidence to an accused who was represented by employed counsel.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2718, 2719; Dec. Dig. § 1077.]'
    3. Criminal Law (§ 1186) — Transcript of Evidence — Furnishing on Inability to Pay.
    Where, on accused’s affidavit of inability to pay, the court rightfully refused a free transcript, because he was represented by employed counsel, and there was no attempt to make up a statement of facts from memory of the evidence, and no attempt to show why a statement of facts was not made up by counsel, nor any showing that they were unable to do so, it cannot be held that accused was deprived of a statement of facts through no fault on his part.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. § 1186.]
    Appeal from District Court, Jasper County; W. B. Powell, Judge.
    Charley Jackson was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Blake & Williams and J. J. Lee, all of Jasper, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   DAVIDSON, P. J.

Appellant was convicted of assault with intent to murder; his punishment being assessed at three years’ confinement in the penitentiary.

The contentions of appellant in the motion for new trial, as well as his assignments of error, are all based upon the failure of the court to charge the issue of aggravated assault, and the insufficiency of the evidence to support the conviction. These .matters cannot be considered, in the absence of the statement of facts. Appellant has filed a brief, in which it is contended the evidence suggested the issues he assigns as error, and refers to the evidence in support of his contention. In the absence of the evidence, this court is not in position to review the questions presented.

The judgment therefore will be affirmed.

On Motion for Rehearing.

At a former day of the term the judgment herein was affirmed; the statement of facts nbt being included in the record. Appellant files a motion for rehearing, claiming he was deprived of a statement of facts, and therefore the judgment should be reversed. Court, adjourned on the 4th of January. oOn the 1st of March an order was granted, extending the time of filing statement 30 days. The affidavit was made by appellant of his inability to pay for the statement of facts, requesting an order of the court compelling the stenographer to file a transcript of the evidence with the clerk. This was refused, because the court says appellant had employed counsel, and they should look after that matter. Of course, counsel are not required to pay stenographers’ costs out of their fee. The court held that this state of facts did not require him to enter an order requiring the stenographer to make out a statement of facts under the pauper’s affidavit.

We are of opinion the court was not in error. Section 5 of the act of the -Thirty-Second Legislature, page 264, provides that when an appeal from a judgment is perfected the official shorthand reporter shall transcribe the testimony and other proceedings recorded by him in the case in the form of questions and answers, certifying that such transcript is true and correct, and file same in the office of the clerk of the court within such reasonable time as may be fixed by written order of the court. This transcript shall be made in duplicate, for which the stenographer shall be paid the sum of 15 cents per 100' words for the original copy, and no charge for the duplicate, the fees to be, paid by the party ordering same on delivery, and the amount paid shall be taxed as costs. Section 14 of the same act provides in felony cases the stenographer shall keep an accurate record of the proceedings of the trial as provided for in civil cases, and should an appeal be prosecuted in any judgment of conviction, whenever the state and defendant cannot agree as to the testimony of any witness, then in such event so much of the transcript of the official shorthand reporter’s report with reference to.the disputed fact or facts shall be inserted in the statement of facts as may be necessary to show what the witness testified in regard to the matter, and shall constitute a part of the statement of facts, and same shall apply also to the preparation of bills of exception, etc., provided that in all cases where the court is required to and does appoint an attorney to répresent the defendant in criminal action that the official shorthand reporter shall be required to furnish the attorney for said defendant, if convicted, and where an appeal is prosecuted, with a transcript of his notes, as provided in section 5 of this act, for which said service he shall be paid by the state of Texas, upon certificate of the district judge, one-half of the rate provided for in civil cases. It would seem, under the proviso above mentioned, that .the Legislature provided that when an attorney has been appointed to represent the accused in a criminal case the court is required to order the stenographer to furnish a statement of facts. Appellant was represented by employed counsel. We are of the opinion this showing is not sufficient under the previous rulings of this court construing this part of the statute when looked to in the light of section 8 of the act. Bazzanno v. State, 62 Tex. Cr. R. 47, 136 S. W. 257; Peddy v. State, 63 Tex. Cr. R. 483, 140 S. W. 229. There was no attempt, on the part of appellant, to make up a statement of facts from their memory of the evidence. In fact, there was no attempt to have a statement of facts, except the request of counsel to compel the stenographer to write out one. There ,is no attempt to show why a statement of facts was not made up by counsel; nor is there any showing that they were unable to do so. We are of opinion we would not be justified in holding that under the showing the appellant was deprived of a statement of facts through no fault on his part. Before a reversal can be demanded for this reason, there should be some showing of the inability of appellant to secure a statement of facts otherwise than by simply a request of the court to compel the stenographer to file such statement. So far as the showing made is concerned, appellant may have been able to have had the evidence in the record.

The motion for rehearing is therefore overruled.