text:
    COLEMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.)
    1. Husband and Wipe (§ 314) — Abandonment op Wipe — Seduction Bepobe Mae-biage — Unchaste Chaeactee — Instructions.
    Where, in a prosecution for abandonment of wife, married by defendant after he seduced her, there was evidence that she had not been chaste before accused had known her, and, while she testified that the first act of intercourse with defendant was in September, he testified that he had been intimate with her many times as far back as the prior June, it was error to refuse to charge that to convict accused the jury must find beyond a reasonable doubt, considering the charge on accomplice’s testimony, that he promised .to marry her, and that she submitted to his embraces while she was chaste, and relying on his unconditional promise to marry her, and even though the jury might believe that defendant had carnal intercourse with her, and he promised to marry her, yet, if at the time of the intercourse she was actuated by lust or any such consideration, or if the promise of marriage by defendant was conditional on prosecutrix’s becoming pregnant from such intercourse, or if the jury had a reasonable doubt that she may have been actuated by any such motive, and that the promise of marriage may have been so conditioned, to find defendant not guilty.
    TEd. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1111; Dec. Dig. § 314.]
    2. Seduction (§ 32) — Unchaste Female.
    An unchaste female cannot be subject of seduction.
    [Ed. Note. — For other cases, see Seduction, Cent. Dig. §§ 54½⅛5½ ; Dec. Dig. § 32.]
    3. Husband and Wipe (§ 314) — Abandonment.
    Where, in a prosecution of a husband for abandoning his wife, whom he had seduced before man'iage, there was evidence that she was unchaste, and that he had been intimate with her many times before the occasion on which she claimed she submitted to his embraces under promise of marriage, the court erred in refusing to charge that if there was no promise of marriage after the first act of intercourse, then prosecutrix would not be chaste, and the jury should acquit.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1111; Dec. Dig. § 314.]
    4. Witnesses (§ 379) — Evidence.
    Where, in a prosecution of a husband for abandoning his wife, whom it was alleged he had seduced before marriage, defendant denied that she left her home prior to her marriage on account of her pregnant condition, it was error to exclude evidence of a witness who carried her part of the distance on that trip that in talking to him prosecutrix stated she was leaving home on account of unpleasantness of her home and home surroundings, and that she could not remain with her father’s family under such conditions.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]

      5. Husband and Wife (§ 814) — Abandonment of Wife — Seduction Bebobe Marriage.
    In a prosecution of a husband for abandoning bis wife, whom it was alleged he had seduced before marriage, evidence that she left home at night before she was married, so that her people would not find out that she was pregnant, and showing the details of her trip that night, where she was found shortly after-wards, and returned by her father, who compelled the defendant to marry her, was inadmissible.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 1111; Dec. Dig. § 314.]
    Appeal from District Court, Bowie County; P. A. Turner, Judge.
    Baseom Coleman was convicted of abandoning the woman he married after seducing her, and he appeals.
    Reversed and remanded.
    J. S. Crumpton, of New Boston, and N. L. Dalby, of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

       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 under the statute denouncing punishment for abandoning the woman he married after her alleged seduction.

There are two theories in the case, and the evidence is as sharply in conflict as witnesses could well make it. The girl, Hattie Burton, testified appellant had been paying attention to her- for some time, and they became engaged. On Sunday in September she, appellant, Wolfe, her uncle, and Miss Blocker went in a wagon some 10 or 12 miles to Red river bottom for the purpose, it is stated, of gathering pecans. This at least is Wolfe’s testimony, and some of the evidence tends to corroborate him. Wolfe says they got some pecans. Upon reaching their destination, or at least a certain point in the bottom, appellant and Miss Burton got out of the wagon and went one direction, leaving Wolfe and Miss Blocker. After being gone a while defendant and prosecutrix returned to the wagon. Finding that Wolfe and Miss Blocker were not there, they retraced their steps, each time going somewhere between a quarter and a half mile from the wagon. On the second trip Miss Burton testified she had intercourse with defendant; that he told her they were going to get married; in other words, her testimony was to the effect that at the time they had intercourse he promised to marry her. After this occurrence they returned to the wagon, and, finding that Wolfe and Miss Blocker had not returned, they climbed into the wagon, and sat upon the spring seat, where, in the course of a half hour, Wolfe and Miss Blocker returning found them chatting pleasantly, and in a fine humor. They returned home and that night went to church. It seems from the testimony that the question of marriage was not thereafter discussed between them, but that intercourse occurred quite often; in fact, so often that both appellant and prosecutrix testified they had no idea of the number of times. This continued for more than a year. She became pregnant. She states she informed appellant of her condition, and he denied she was in such condition. This went on for some time, under her testimony, and until she became finally convinced of her pregnancy, whereupon she wrote a letter to defendant. This letter is as follows: “Mr. Baseom Coleman, My Dear Sweetheart: I thought I would write a few lines. How are you by now, fine I hope. I wish I could see you; sure hated to leave you Sunday. I had something to tell you. Well, Baseom, there’s something wrong, you know what I mean. Now, there is something got to be done, for I will die before I will stand my folks much longer, and I hope you will help me out in my trouble. Write and tell me what you will do. I wish I could see you, although I can’t. As ever, Hattie.” This letter was put in evidence, and was written after she finally determined that she was pregnant. Appellant’s side of the case admits intercourse, but denies emphatically there was any promise of marriage, and he further denies that the question of marriage was ever discussed between them; that she engaged in the intercourse willingly, and for her own gratification. It is unnecessary to go into a detailed statement of his testimony. This issue was sharply drawn; she testifying to a promise of marriage, and he denying it. They concur in their testimony that the intercourse kept up for considerably over a year, nearly a year and a half- — as often as opportunity presented itself. This letter was introduced before the jury by the state. Something like a week before appellant’s arrest under a charge of seduction filed by prosecutrix, the prosecutrix left home at night without the knowledge of the family and went into the state of Oklahoma, where she engaged her services as nurse in a family. She says she did this to get away from home and hide her shame. On the night she left home, after going some distance, she spent the night at a stranger’s; the next morning she went to Oklahoma. One of the witnesses, driving in a vehicle, carried her to her point of destination, and engaged her in conversation. In this conversation she stated to witness that she left home on account of family troubles; she could not get along with lady members of the family, and for that reason she was leaving home. She also denied in the conversation that she and appellant were going to be married. The witness thought she was running away to meet appellant at some point to marry him on account of some objection on the part of the family to their marriage. This however, she denied. Some of this testimony was excluded by the court on objection of the state, which forms one of the questions for discussion. Her father finally discovered her whereabouts, and brought her home. He then had her file complaint against appellant charging him with seduction, upon which appellant was arrested. Without going into a detailed statement of the evidence, which covers a considerable part of the statement of facts, the evidence went to show that appellant was directly or indirectly forced to marry her after the charge of seduction was filed. That part of the testimony is deemed unnecessary to discuss. The evidence further shows that shortly after the arrest appellant did marry the girl under protest. This occurred at the residence of the girl’s father. Appellant left that night, and, so far as the evidence goes to show, did not stay with her after the marriage. It seems after the marriage appellant went to visit relatives for some days across the Texas line in Arkansas. Something like 10 days after the marriage appellant was arrested under a charge of abandonment of his wife. This may be a sufficient statement of the case.

1. There was an application for continuance. Without discussing this, as it may not occur upon another trial, we are of opinion that as the matter is presented in the record the continuance ought to have been granted, but, as stated, it is unnecessary to discuss the reasons for this conclusion. The evidence may be obtained upon another trial.

2. Many criticisms have been leveled at the charge of the court and refusal to give special instructions. The court, applying the law to the case, charged as follows: “Our statute provides that if any person, by promise to marry, shall seduce an unmarried female under the age of 25 years, and shall have carnal knowledge of such female, you are instructed that seduction as used in the statute means to lead an unmarried female under 25 years of age away from the path of virtue, to entice or persuade her by means of a promise of marriage to surrender her chastity, and have carnal intercourse with the man making the promise. The promise of marriage by* the man, and the yielding of her virtue in consideration of that promise, constitutes the gist of the offense. The offense is not complete until the female has been seduced; that is, corrupted, deceived, drawn aside from the path of virtue which she was pursuing. I charge you, then, that if you believe from the evidence, beyond a reasonable doubt, that the defendant on or about the 10th day of September, A. D. 1912, as alleged, in the county of Bowie and state of Texas, did have carnal knowledge of Hat-tie_. Burton, and that she, the said Hattie Burton, was then and there an unmarried female under the age of 25 years, and that he had such carnal knowledge of the said Hattie Burton, in the manner and by the means stated in the foregoing definition of seduction, and you further believe from the evidence beyond a reasonable doubt that the defendant Bascom Coleman, after prosecution had been begun against the said Bascom Coleman for said offense of seduction, and before said Bascom Coleman had pleaded to an indictment for said offense in a court of competent jurisdiction, he, the said Bascom Coleman, and her, the said Hattie Burton, were lawfully married, on or about the 24th day of November, 1912, and thereafter, and before the expiration of two years therefrom, and without fault upon the part of the said Hattie Coleman, who had been Hattie Burton, he, the said Bascom Coleman, did in Bowie county, state of Texas, on or about the 24th day of November, 1912, unlawfully abandon the said Hattie Coleman, you will find the defendant guilty,” etc. Then follows a general charge on accomplices, and the further charge applying this phase of the law that the jury could not convict appellant upon her testimony alone, unless the jury should find her testimony is true, and that it connects the defendant with the offense charged, and then the jury could not convict the defendant upon said testimony, unless they should further believe that there is other testimony corroborative of the accomplice testimony tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense charged. Many criticisms are indulged against this charge, and, as before stated, the refusal of the court to give instructions requested. One of appellant’s requested instructions applies the law more pertinently and in much better shape than did that given by the court on the question of accomplice testimony. The court’s charge was very general. "While it might not be sufficient to reverse upon this question, still on another trial the court should apply more fully the law applicable to the case.

3. Another charge was requested and refused, which is as follows: “You are instructed that, before you can convict the defendant Bascom Coleman, you must find from the evidence beyond a reasonable doubt, taking into consideration the charge on accomplice’s testimony hereinbefore given you, that the defendant, Bascom Coleman, promised to marry the witness, Hattie Coleman, and that the witness, Hattie Coleman, submitted to the embraces of the defendant and had carnal intercourse with the defendant while she was chaste, and while-she was relying solely and wholly upon an unconditional promise on the part of defendant to marry her, and even though you may believe that defendant had carnal intercourse with said Hattie Coleman, and even though you may also believe that defendant promised to marry said Hattie Coleman, if at the time of such intercourse, if any, between defendant and said Hattie Coleman, was actuated either in whole or in part by lust or passion, or any such consideration or motive, or if any such promise of marriage by defendant was conditional upon tlie said Hattie Coleman becoming pregnant from such intercourse, or any other condition, or if you have a reasonable doubt that the said Hattie Coleman may have been actuated by any such motive as aforesaid, or that such promise to marry may have been so conditioned, in any such event, you will find the defendant not guilty.” We are of opinion, under the evidence, this charge ought to have been given. There is evidence which has not been heretofore stated to the effect that she was not a chaste woman before appellant had anything to do with her. The testimony was of a positive nature, reflecting upon her chastity. The witnesses testified that they had hugged and hissed her, and matters of that sort before defendant had anything to do with her. They, however, state they had not had sexual intercourse with her. The prosecutrix testified that the first act of intercourse was in the Red river bottom on Sunday in September, above mentioned, and under promise of marriage. Appellant’s testimony is to the effect that he had had intercourse with her long prior to that time, and that at no time had he promised to marry her. She seems to have placed the first promise to marry at the time of the intercourse in September. Appellant testifies he had had intercourse with her as far back as in June prior to that time. This was in 1911. The other witnesses testifying to having hugged and kissed her say it occurred in the winter of 1910, and early part of 1911, and before defendant became in any way connected with her. Under the definition of seduction, it is necessary that the woman be chaste. If she is not, she is not subject to seduction. Under the testimony of both, they might have been guilty of fornication; but if defendant’s testimony is true, or the testimony of the other witnesses testifying in this respect is true, there is a question of chastity and purity. This charge, or a similar one ought to have been given. She stated to appellant she had been intimate with two or three other men.

4. Another charge was asked to the effect that, if there was no promise of marriage subsequent to the first act of intercourse, then she would not be chaste, and the jury should acquit. It is not undertaken here to state the language of the charge, but that was the substance. This was refused. Under defendant’s testimony this was squarely an issue in the case.

5. Charges were asked also to the effect that- if the girl submitted herself to defendant for any other reason than on account of promise of marriage, to gratify her lust or matters of that sort, defendant was entitled to an acquittal. This charge was requested by appellant and refused by the court. This was error. It is deemed unnecessary to cite the authorities here. They are numerous, coming down as late as 141 S. W. Rep.

6. There was a bill of exceptions reserved to the action of the court excluding testimony offered by the defendant in rebuttal of the testimony introduced by the state, to the effect that prosecutrix left home on account of her pregnant condition. This was her statement, and this testimony they proposed to contradict by the witness who carried her into the state of Oklahoma. Tailr-ing to him, she placed her leaving home on different grounds entirely, to wit, on account of unpleasantness of her home and home surroundings, that she could not remain with her father’s family under such conditions. The state having introduced her statements, defendant had the right to introduce statements made by her contradictory of these statements. This would hardly need citation of authorities at this late day. It is statutory in this state.

7. It is also urged as error that the court permitted the prosecutrix to give her reasons why she left home at night, which were as follows: “She thought she could leave home, and her folks would not find out what was the matter with her; that she felt she had been disgraced; that she walked a part, of the way; that she walked to within about three miles of the river, and Leonard Holloway carried her the balance of the way to Hayworth, Okl.; that she left home at night about dark; that she left home by herself and walked until about 8:30 o’clock at night; that she walked about five miles that night and stayed at a stranger’s house; that in the morning she got on a wagon and went on toward the river; that she got on this man’s wagon, and rode about a mile, and then got off and walked past where Leonard Holloway lived about a quarter of a mile, and he came and got her and carried her to Hayworth, Okl.; that the next morning she went on to Idabel, Oklahoma, and got a position in a family to work; that she left that place because her father came after her and found her Friday evening.” There were a number of objections urged to this testimony which we deem unnecessary to mention. The court signs this bill by qualifying it with the following explanation: “The statement of facts will show that defendant left Texas and went to Arkansas; after defendant left the state I permitted the state to prove what became of the alleged injured party as set forth in the bill of exception. With this explanation I approve and order said bill be filed.” The bill is signed by the judge. This testimony was not admissible. See Bailey v. State, 30 S. W. 669, a case directly in point. We deem it unnecessary to discuss this matter. This testimony ought not to have gone before the jury. It could not have affected the defendant in any way except injuriously by parading the condition of the girl and her reasons for leaving home. The judge’s qualification that he permitted this testimony because defendant had gone on a visit to Arkansas affords no legal reason for his ruling.

For the errors indicated, the judgment is reversed, and the cause is 1 remanded.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    FOX v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.
    On Motion for Rehearing, June 25, 1913.)
    1. Criminal Law (§ 595) — Continuance-Absent Witness.
    An application for a continuance to procure an absent witness was properly refused, where the expected testimony would have been immaterial.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1311, 1323 — 1327; Dec. Dig. § 595.]
    2. Homicide (§ 181) — Admission oe Evidence — Manslaughter.
    Where, in a prosecution for homicide, accused sought to reduce the killing to manslaughter on the ground of provocation by remarks affecting the chastity of his wife, the state could show that the general reputation of accused’s wife for chastity was bad in her community.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. § 181.]
    3. Homicide (§ 49) — Manslaughter—Adequate Cause oe Passion.
    To make remarks imputing unchastity to a female relative adequate cause to reduce a killing to manslaughter, they must have produced anger in accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 73; Dec. Dig. § 49.]
    4. Witnesses (§ 330) — Cross-Examination —Impeachment.
    Where witnesses had testified that they knew accused’s reputation for truth to be good, the state could show, on cross-examination, that such witnesses had heard that accused had testified in a trial that he had been on a certain train and witnessed a certain accident, and that three men who were on the train swore that accused was not there.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.]
    5. Witnesses (§ 240) — Leading Questions.
    The state should not, as a rule, be permitted to ask leading questions.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.]
    6. Witnesses (§ 268) — Cross-Examination.
    A witness, who had testified in a homicide case that a person, who stood near a church where it was claimed powder marks were found, could not fire a gun so as to hit a post in which bullets were found, was asked on cross-examination whether it was infrequent for the course of some stray bullet to take an angle that was unaccounted for, and answered that usually several stray shots go a considerable distance from the main body of the shot, and get a further distance, the further out the line they go. Held, that the question was proper cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    7. Homicide (§ 112) — Sele-Deeense.
    If accused was informed that decedent had said that he had pulled another out of accused’s wife’s bed, the fact that he then armed himself and went to search for decedent, with the intention of demanding an explanation or retraction, would not deprive accused of his right of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 145-150; Dec. Dig. '§ 112.]
    8. Criminal Law (§ 829) — Instructions— Requests — Sele-Deeense.
    Where the court fully instructed on self-defense, and charged that, viewing _ the circumstances from accused’s viewpoint, if it reasonably appeared to him that he was in danger of losing his life, or suffering serious bodily injury when he did the killing, he should be acquitted, it was not necessary to give a requested charge that the fact that, upon hearing of remarks by decedent, charging that accused’s wife was unchaste, he armed himself and went in search of decedent, with the intention of demanding an explanation or retraction of such remarks, would not deprive him of his right of self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2911; Dec. Dig. § 829.]
    9. Criminal Law (§ 823) — Instructions— Sele-Deeen.se.
    The court instructed that a reasonable apprehension of death or serious bodily harm would excuse one in using all necessary means to protect his life or person,' and it was not necessary that there be actual danger, provided he acted upon a reasonable apprehension of danger, so that if at the time of killing decedent the latter by his conduct caused accused to have a reasonable expectation or fear of death or serious bodily harm, and accused, killed decedent acting under such reasonable expectation or fear of death or injury, the'jury should acquit, and further charged that it was not necessary that there should be any real danger, but only that accused have a reasonable expectation or fear of death or serious bodily injury, and as to whether he had reasonable grounds to fear that he was in danger of death or serious bodily injury, or of believing . that decedent was about to execute a threat involving, as a probable result, the infliction of 'serious harm, the particular circumstances must be looked to, and if decedent had threatened to kill accused, or to do him serious bodily harm, and manifested an intention to execute such threats, and accused had reason to believe that he was about to do so, they should acquit. Held, that the instructions were not erroneous as limiting the right to defend in case of actual attack, or in case of a fear or expectation of death alone, and not of serious bodily harm.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    10. Criminal Law (§ 778) — Instructions— Presumptions.
    Where accused testified in a homicide ease that decedent got his pistol from his pocket and dropped it, the court properly charged on the presumption arising from the use of a deadly weapon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854^-1857, 1960, 1967; Dec. Dig. § 778.]
    Appeal from District Court, McLennan County; C. M. Smithdeal, Judge.
    Jim Fox was convicted of manslaughter, and appeals.
    Affirmed.
    C. F. Greenwood, of Dallas, and Morrow & Morrow, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant, under an indictment charging Mm with murder, was convicted of manslaughter, and his punishment assessed at five years’ confinement in the state penitentiary.

Appellant complains of the action of the court in overruling his application for a continuance on account of the absence of Mrs. N. B. Sturdevant, by whom he stated he expected to prove that on the night Mr. Glasgow was killed she was unwell, and called Dr. Menafee between 12:30 • and 1 o’clock that night, and he was at home. If the killing had taken place at or near that hour, under the allegations, this evidence might be material, considering the arguments made in the case, but as it is shown that the homicide took place between 3 and 3:30 o’clock in the morning, the testimony of Mrs. Sturdevant would not tend to show Dr. Menafee’s whereabouts at the latter hour; and, as his residence was but a short distance from the homicide, and he could easily, if he had desired to do so, have left his home as late as 2:30 o’clock and arrived at the scene of the homicide before it took place, there was no error in overruling the application for continuance. Nor in refusing the special charges requested in regard to this matter. It was perfectly legitimate for the state’s attorneys to argue, under the evidence in this case, that in their opinion the deceased was waylaid, and more than one person participated in the killing, and the testimony of Mrs. Sturdevant as to the whereabouts of Dr. Menafee, two hours prior to the homicide, would not and could not have been material on that issue. Piad the absent witness proposed to testify that she knew his whereabouts from 3 to 3:30 o'clock, it might be material; but, as she does not pretend to know his whereabouts after 1 o’clock, the evidence would be wholly immaterial.

The second bill of exception, as approved by the court, presents no error, as the court states the allegations of the bill are wholly incorrect.

The state offered testimony going to show that the general reputation of the wife of accused for virtue and chastity in the community where she lived was bad. This evidence was objected to on the ground “because such testimony was not in harmony with the statute on the subject, and therefore illegal and improper.” The statute referred to, we gather, is the one that reduces an unlawful homicide to the grade of manslaughter when the killing occurs on account of imputing a want of chastity towards a female relative. Appellant testified that he had that night been informed that deceased had been reporting to others that “he had pulled Ted Robinson out of the bed with defendant’s wife,” and on this and similar remarks he sought to reduce the offense to manslaughter, if he was not justified in slaying deceased. This would be adequate cause, but in addition to adequate cause it must be shown that anger, or rage, was occasioned by such a remark; and it was held by this court in Redman v. State, 52 Tex. Cr. R. 596, 108 S. W. 368: “It is unnecessary to cite authorities to support the proposition that the character of a female may be proved as a circumstance to throw light upon whether the appellant believed the language slanderous. Certainly it could not be seriously contended that, if Kittie Caruth had given birth to a child, being an unmarried female, deceased had stated this fact to a party, who informed appellant, her first cousin, and appellant knew the fact to be true, and he had sought out deceased and killed him, these facts alone would not reduce the killing below murder. We are not here discussing the question as to the lack of belief on the part of appellant of the truth of the statement, but to our mind it is absurd to say that one can claim that he killed a party for insult concerning a female relative, when said party knows the language used about said female is true. It is not slander or insult to a female relative, in contemplation of the statute that authorizes the reduction of the homicide to manslaughter, where the appellant knows the statement upon which he acts to be true.” We are not passing on the question of whether or not appellant’s wife was a virtuous woman, but if her general reputation in the community where she lived was that of an unchaste woman, the fact that some one had stated that she was not chaste would not be likely to cause that passion which would reduce the offense to manslaughter, and the evidence was admissible to aid the jury in passing on whether the remark did cause anger, or rage, to such an extent as to render appellant’s mind incapable of cool reflection.

Witnesses testified that they knew appellant, and knew his reputation for truth and veracity to be good. On cross-examination they stated they had never heard his reputation in this respect questioned, and for this reason judged it to be good, when the state was permitted to show that these witnesses had heard that appellant had testified in a trial that he was on a certain train and witnessed a certain accident; that three men who were on the train swore that appellant was not on this train. This was a legitimate cross-examination; the witness having stated he had never heard his veracity questioned.

T. H. Jackson was a witness for defendant, and on cross-examination some leading questions were asked the witness on matters not elicited by defendant, when state’s counsel sought to develop by the witness evidence in support of the state’s ease. The state should not have been permitted to ask leading questions in this instance; but, as the evidence adduced was admissible and. was not of a very material character, it is not such an error as would call for a reversal of the case. The defense had Mr. Jackson to testify that a person who ■ stood near the church, where it was claimed powder marks were found, could not fire a gun, and hit a post in which bullets were found imbedded. On cross-examination he testified: “Q. It is not infrequent, is it, Mr. Jackson, in shooting a shotgun for the course of some stray bullet, so to speak, to take an angle or course that is unaccounted for? A. I think not. My experience has always been that there are usually several stray shots that go a considerable distance from the main body of the shot. Q. And get a further distance, the further out the line they go? A. Yes, sir.” This was legitimate cross-examination, and the court did not err in admitting the testimony.

The defendant, while testifying, had stated that he, at Mrs. Dean’s request, had signed a bond for her son, and secured the signatures of two other persons; that he had presented it to deceased, who was then deputy sheriff, for approval, and that deceased had refused to approve it, at the time using abusive epithets in regard to appellant, and introduced this testimony to show the ill will of deceased toward appellant. On cross-examination the state was permitted to show by the witness that the persons whose signatures appeared on the bond owned no property subject to execution, and that this occurred prior to appellant receiving the money he did receive from a railroad on account of a damage suit. If appellant sought to show the ill will of deceased towards him by reason of the fact that deceased refused to approve this bond, it seems to us permissible for the state to show that those who signed the bond had no property subject to execution, and present their theory that this was, perhaps, the reason deceased refused to approve the bond.

The evidence would show, and defendant testified, that he was informed on the night of the fatal encounter that deceased had said he (deceased) had pulled Ted Robinson out of defendant’s wife’s bed; that he then went and bought shells, got his gun, and went in search of deceased. He further testified that he was hunting for him to demand an explanation of the remark; if, when he approached deceased, he had given an explanation, he would not have killed him; but, when he approached deceased, deceased gave him no opportunity to ask for and demand an explanation, but reached for his pistol, when he (appellant) shot and killed him.

Appellant asked the court to instruct the jury that if appellant was so informed, and did arm himself and go in search of deceased with the intention of demanding an explanation or retraction of the remarks, such action would not deprive him of his right of self-defense. This is undoubtedly the law in this state, but where the. court gives a full and fair charge on self-defense, without any limitation, is it required to give such a charge as was requested? If the court had charged on provoking a difficulty, or presented imperfect self-defense, or in any way restricted or limited appellant’s right against real or apparent danger, this charge should, perhaps, have been given.

But inasmuch as the court instructed the jury that, viewing the circumstances from appellant’s standpoint, if it reasonably appeared to him that he was in danger of losing his life, or suffering serious bodily injury, he should be acquitted, it was unnecessary to give this additional charge. In the case of Williford v. State, 38 Tex. Cr. R. 395, 42 S. W. 972, this court held that on a trial for murder, where the court gave a full charge upon the law of self-defense, unlimited and unabridged by any other charge, it is not reversible error to refuse an instruction, asked by defendant, upon the theory of his right to arm himself and seek deceased to demand an explanation. In the Shannon Case, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17, cited by appellant, it is held that where the issue of who provoked the difficulty is raised, this character of charge should have been given. In the Newman Case, 69 S. W. 520, cited by appellant, it is also said that-the court should have submitted the issue of provoking the difficulty, and the converse of that proposition, and in so doing should have instructed the jury that if Newman did not provoke the difficulty, the fact that he had armed himself would not abridge his perfect right of self-defense. The other cases cited by appellant but reiterate this rule of law, and that is that, if the court submits the issue of provoking the difficulty, or in any way limits appellant’s right of self-defense, .then it would be error to refuse to so charge at appellant’s request, but in the event the court submits the issue of self-defense, without any limitation being placed thereon, and aptly applies the law to the facts in the ease, the failure to so charge presents no error. The court on the issue of self-defense instructed the jury; “Every person is permitted by law to defend himself against any unlawful attack reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself. You are further instructed that a reasonable apprehension of death' or serious bodily harm will excuse a party in using all necessary means to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such ease the party acting upon such apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant, and a killing under such circumstances would not be an unlawful killing. If, therefore, you believe that the defendant killed the deceased, Erank Glasgow, but further believe that at the time of so doing the deceased by his acts and conduct, or either, caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear of death or injury, the defendant killed the deceased, or if you have a reasonable doubt as to said matters, then you should acquit him, and so say by your verdict. And in this connection you are charged that it is not necessary that there should be any real danger in order to entitle the defendant to a verdict of not guilty, but it is only necessary that, viewing the matter from his standpoint, and from his standpoint alone, the acts and conduct, or either, of the deceased at the time caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and that the defendant acted at the time under such reasonable expectation or fear. When a homicide takes place to prevent murder or other bodily injury, if the weapon or means used by the party attempting or committing such murder or other bodily injury are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury. Therefore, if the deceased made an attack upon defendant with a pistol at or just before the time defendant shot the deceased, if he did shoot him, it will be presumed that the deceased intended to injure the defendant. When a defendant is accused of and is on trial for murder, and seeks to justify himself on the ground of threats against the defendant, the law permits him to introduce evidence of threats made, but also provides that same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the deceased did, by some act then dope, manifest an intention to execute the threat so made. As to whether the defendant had reasonable grounds to fear an attack by the deceased, or reasonable grounds to fear that he was in danger of death or of suffering serious bodily injury, or of fearing or believing that the deceased was about to execute a threat involving, ás a probable result, the infliction of serious bodily harm, the facts and circumstances attending the difficulty and the situation of the parties must be looked at, and the question determined from the standpoint of the defendant alone. In this connection you are charged that if you believe from the evidence that the deceased, Erank Glasgow, had threatened to kill the defendant, or do him serious bodily harm (and as to whether he had done so is a question for you to determine), and that at the time the defendant shot the deceased, if he did, the said deceased by his acts and conduct, or either, manifested an intention to put the threats so made, if any were made, into execution, and that the defendant believed, or had reason to believe, that the deceased was about to put such threat into execution, or if you have a reasonable doubt as to said matters, then you will acquit the defendant.”

The issue of self-defense was made by the testimony of defendant, and he says, as he approached deceased and spoke to him, that deceased reached for a pistol, and he heard it drop on the ground, and at this time he fired and killed him. He also testified as to threats that had been communicated to him, and under this evidence we think the charge above quoted fully presented every issue raised by the testimony. To select one sentence in the charge, and complain in one instance that the court limited the right to defend to an actual attack, is hardly presenting the matter fairly, for if we read the charge as a whole, no such construction could be given to the charge on self-defense. In another instance it is claimed that the charge limited the right to defend to a “fear or expectation of death,” when the law allows one to act as well from a fear of serious bodily injury. Again, we would say if you would pick out one isolated sentence, the charge might be subject to this criticism, but as a whole it aptly and correctly tells the jury that, in order to justify defendant in killing deceased, it “was only necessary, viewing the matter from his standpoint, that the acts and conduct of deceased, or either of them, caused him to have a reasonable expectation or fear of death or serious bodily injury.”

As defendant testified deceased not only reached for his pistol, but got it and dropped it, the court did not err in charging on presumption from the use of a weapon, and the charge is drawn in such a way that no jury could have been misled.

The other complaints of the charge are, we think, also without merit, and present no matter which would call for a reversal of the case. In some instances it may have been inaptly worded, but it presents the law in a way that fairly presented each issue to the jury for their determination.

Those complaints in the motion in regard to the organization of the jury cannot be reviewed, as no bill of exceptions was reserved.

Judgment affirmed.

On Motion for Rehearing.

Appellant insists that the court was in error in holding that the trial court did not err in overruling the application for a continuance. Let us see the facts he states he expects to prove by this witness. The application states “that all the testimony will show that the killing took place between 3 :20 and 3:30 o’clock; that Mrs. N. B. Sturdevant called Dr. Menafee between 12 and 1 o’clock that night, and he was at home at that hour.” If she should so testify, this would not tend to show where he was at 3:20 o’clock, and as the place where deceased was killed was only a short distance from Dr. Menafee’s residence, he could have been at home at 1 o’clock and at the scene of the killing at 3 o’clock. However, the state offered no testimony that Dr. Menafee was present at the scene of the killing.

It is contended that the court in his charge limited appellant’s right of self-defense to an •‘actual attack.” The charge is copied in the original opinion, and by reading it it will be seen that this contention is without merit, and under such circumstances the authorities cited by appellant have no application. If in fact the charge had so limited appellant’s right, then his contention could be of weight.

All the other questions raised were fully discussed in the original opinion, and we do not deem it necessary to do so again. However, we will add that when a person on trial relies on insult to his female relative to reduce an offense to manslaughter, it is statutory that the state may put in evidence proof of the general character of the female alleged to have been insulted. Article 1134, Penal Code.

The motion for rehearing is overruled.


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

text:
    Ex parte ELLERD.
    (Court of Criminal Appeals of Texas.
    Nov. 27, 1912.
    Rehearing Denied Dec. 18, 1912.
    Dissenting Opinion Jan. 15, 1913.)
    1. Divorc-e (§ 289) — Custody of Children— Power of Court.
    Under Const, art. 5, § 8, giving the district court original jurisdiction and general control over all minors, and Rev. Civ. St. 1911, art. 4641, giving the district court power to give the custody of the children, to either the father or mother, the court in granting a divorce has authority to award the custody of the children to the father’s mother.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 773; Dec. Dig. § 289.]
    2. Divorce (§ 299) — Custody of Children— Access to Child by Parent.
    In such a case the court can, by its order, grant the mother of the' children the right to visit them at all reasonable times.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 788; Dec. Dig. § 299.]
    3. Divorce (§ 300) — Custody of Children— Removal from Jurisdiction.
    In order that the mother may have an opportunity to see the children, the court may require them, to be kept in a certain place within its jurisdiction.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 789; Dec. Dig. § 300.]
    4. Divorce (§ 302) — Custody of Children— Decree — Certainty.
    Where a divorce decree, in giving the custody of the children to the father’s mother, specified that neither the plaintiff nor the defendant should remove them from the jurisdiction of the court “without the agreement of the parties,” the parties who must agree are the parents of the children and the decree is not so-uncertain as to be unenforceable.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. §§ 791, 792; Dec. Dig. § 302.]
    5. Habeas Corpus (§ 85) — Evidence—Commitment for Contempt — Presumptions.
    Where the testimony on habeas corpus shows that the court, before fining the applicant for contempt, heard the evidence as to his contempt, but that evidence is not before the court in habeas corpus proceedings, it will be presumed that it authorized a judgment of conviction.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dee. Dig. § 85.]
    6. Habeas Corpus (§ 85) — Evidence—Sufficiency.
    Evidence in habeas corpus held sufficient,, if it was the same as that in the contempt proceedings, to authorize a judgment that the applicant was in contempt for the violation of its injunction against removing his children from the jurisdiction of the court.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. § 85.]
    7. Habeas Corpus (§ 28) — Punishment—Excessive Fine — Effect.
    On habeas corpus by one fined for contempt of the district court for the violation of' its injunction, where the court imposed a fine in excess of the limit permitted by Rev. Civ. St. 1911, art. 1708, the judgment of the court is not void except as to the excess, and the applicant will not be released until he has paid the fine that could be lawfully imposed.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 23 ; Dec. Dig. § 28.]
    Davidson, P. J., dissenting.
    Original application by Reuben M. Ellerd! to the Court of Criminal Appeals for a writ of habeas corpus.
    Writ granted, and, on final hearing, applicant remanded to custody.
    Carrigan & Householder, of Wichita Falls,, for appellant. C. E. Lane, Asst. Atty. Gen., for the State;

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

   PRENDERGAST, J.

This is a writ of habeas corpus from a judgment of the district court of Hale county, fining the applicant for contempt. The writ was granted in vacation by one of the judges of this court largely because the fine for contempt was for $250.

The record shows that prior to April 23, 1909, the applicant, Ellerd, sued his wife, Ruth, for divorce in the district court of Hale-county, Tex., also setting up therein that there were two children by the marriage, a boy then five years of age and a girl then about three years old, and that his mother, Mrs. Lucinda Ellerd, was a proper person to-care for said children, prayihg for a divorce- and that the care and custody of said children be given to his mother; that on said1 date he was granted a divorce, and certain-property was partitioned between them. As-to the children, the judgment of the court in the divorce suit, in response to appellant’s-allegations and prayer, is as follows: “It further appearing to the court that the parties hereto have in open court agreed, and it is therefore ordered and decreed by the court, that the two minor children of plaintiff and defendant, to wit Truman Ellerd, a boy of about five years of age, and Nina Belle Ellerd, a girl of about three years of age, be and is placed and decreed in the custody of Mrs. Eucinda' Ellerd of Hale county, Tex., who shall not later than the 1st of September, 1909, bring said children to the town of Plainview in said county and keep them in Hale county as their permanent place of residence, and that the defendant shall have the right to visit said children and administer to their needs at all reasonable and seasonable times; five days prior notice of such visits having been first given to Mrs. Lucinda Ellerd, without any hindrance whatever, and neither the plaintiff nor the defendant shall have the right to remove said children or either of them out of the jurisdiction of this court without the consent of the court or the agreement of the parties.”

This judgment was in full force and effect when this contempt proceeding was begun; about August 9, 1912, said divorced wife of applicant, Ruth Ellerd, filed her motion in the said district court of Hale county, setting up the said divorce judgment and the disposition of the children as shown by that portion of the order copied above, and that on or about May 26, 1912, she not having seen her children for many months, wrote them a letter from her home in New.Castle, Young county, Tex., addressing it in the care of said Mrs. Lucinda Ellerd, notifying her (said Mrs. Ellerd) that she would soon visit her children at Plainview in Hale county; that on June 1, 1912, she left her home and went to Plainview for the purpose of visiting her children, arriving there on June 2, 1912, and went to where Mrs. Lucinda Ellerd had been residing with her children but found they, were not there but that her former husband, the applicant' herein, had had his father and mother, after receiving said notice of her intended visit, take her children from Plainview to the town of Tex-ieo, N. M., and had placed them then on the train and sent them to Cloud Croft, N. M., both of said places being beyond the jurisdiction of the court and in a foreign state; that her said former husband, knowing her visit at Plainview and the purpose of it, had failed and refused to cause her children to be returned to Plainview as he could have done; that his father and mother were old and infirm, subject to his control and entirely subservient to his wishes with respect to the custody, control, and management of her children, and their control and custody being in substance and effect his control and custody, and that in violation of said divorce decree in the particulars above quoted had procured and caused them to remain away from Plain-view beyond the jurisdiction of the court for more than 67 days at that time, while she waited in vain for the opportunity to visit them in Plainview as she was entitled to do under the terms of said decree, and that by his action he was guilty of violating the terms of said decree and in contempt of the authority of said court. There was much else in this motion of prior violations by her former husband of said decree and that he had many times been in contempt of the court in violation thereof, but it is unnecessary to state any of these matters as they were not the basis of the court’s order in said contempt proceedings.

The record further shows due service upon the applicant and that he appeared with his attorney and duly answered her motion against him. That the court fully heard all of this matter between them, heard all the evidence, and thereupon and on June 26, 1912, made and entered in the minutes of said district court an order to the following effect: “It is ordered, adjudged, and decreed that the defendants, Reuben M. Ellerd, Mrs. Lucinda Ellerd, and her husband, T. J; El-lerd, and each of them, be and they are hereby required to produce before the district court of Hale county, Tex., on the first day of the next ensuing term thereof, to wit, the 5th day of August, 1912, at 10 o’clock a. m., the two said minor children, Truman Ellerd and Nina Belle Ellerd, mentioned in plaintiff’s petition, and them to have in said court from day to day and term to term until otherwise ordered by the court, and to observe and to perform such further order of the court as it may make from time to time with respect to said children and the custody thereof; and it is further ordered that the clerk of this court do issue notice of this order to said defendants.” That the clerk thereupon issued the proper writ with a copy of this last order therein, which was duly served upon the applicant. That in obedience to said order and notice the applicant did appear and answered the said motion, contesting the same in many particulars. Thereupon the court again heard the parties, all the evidence introduced thereon, and argument of counsel, and on August 10, 1912, entered a decree stating that the court was of the opinion that said Reuben M. Ellerd, applicant, was guilty of contempt of the court in disobedience of said order of said court rendered and entered on April 23, 1909, and thereupon adjudged him guilty of contempt of the court as charged by the plaintiff in her said motion and fined him $250, and “it is therefore ordered, adjudged, and decreed by the court that the state of Tex-as do have and recover of the defendant, Reuben M. Ellerd, the said fine of $250 and all costs of this prosecution, and the said defendant, being present in court, is placed in the custody of the sheriff, who will forthwith commit him to jail until such fine and costs are paid, and said defendant, Reuben M. Ellerd, is now in the custody of said sheriff, and execution may issue against tbe property of the defendant for the amount of such fine and costs.” Thereupon the proper writ of commitment was issued to the sheriff of said county in accordance with said decree. Tlie sheriff took charge of him in obedience thereto and was holding him in custody when he, on August 14, 1912, sued out the writ of habeas corpus herein.

The record herein does not show this court what testimony was introduced in the district court on the hearing and at the time the court made and entered the order fining the applicant for contempt. No appeal was taken from the said order fining him for contempt, if that could be done. By his brief and the oral argument of his attorneys, he attacks the said judgment of contempt on four grounds: (1) That the district court of Hale county had no jurisdiction to fine him in any sum for contempt for doing the things for which he was fined; (2) that the said judgment of contempt was void because the motion nowhere states that his children were taken out of Plainview without the consent “of the parties,” claiming that the original decree herein first above recited was indefinite and uncertain and does not inform him or any one whose consent must be obtained in order to remove said children from Plainview; (3) that the said first order above recited was no such order or decree as would hold him in contempt for sending his mother and the children out of the state and the jurisdiction of the court for 67 days; that this would be in effect an injunction, when, as a matter of fact, it is a mere declaration of the rights of his father and mother in reference to said children and gave them the right to exercise such control over them as mentioned therein, and that Mrs. Ruth Ellerd, in effect, should have gone into a court of proper jurisdiction and sued out a writ of habeas corpus, or other process; and (4) that the district court had no authority to fine him exceeding $100, and that the judgment fining him $250 was void.

It will not be necessary to discuss the said three grounds, first set up, separately, but instead we will discuss them together. It is too well settled in this state to require any discussion to show that a district , court of this state had the power and authority to make the order as to the custody and care of the children and where they should be kept and that they should not be taken out of the jurisdiction of that court. The statute of this state (R. S. art. 4641 [2987]), expressly gave the district court power to give the custody and education of the children to either the father or the mother as to the court shall seem right and proper. The Constitution of our state also (section 8 art. 5), as has been expressly held by our Supreme Court, gives to the district court original jurisdiction and general control over minors. In Ex parte Reeves, 100 Tex. 622, 103 S. W. 480, our Supreme Court expressly so held and in addition quoted and approved on this point section 1307, 3 Pomeroy’s Equity (3d Ed.), as follows: “In addition to its power to appoint guardians, the court of equity will also exercise its jurisdiction, in a proper case, and to promote the highest welfare of the infant, where there is already a guardian, natural or legal, by controlling the person of the infant and by removing it personally from the custody of its natural or legal guardian, even from the custody of its own parents.” And our Supreme Court has many times held that our district courts had the right and power, and it is universally practiced by the district courts, to take the custody of the minor children from both parents and put them into the custody of another. Rice v. Rice, 21 Tex. 58. See, also, Jordan v. Jordan, 4 Tex. Civ. App. 559, 23 S. W. 531; Legate v. Legate, 87 Tex. 248, 28 S. W. 281, and authorities therein cited; Church on Habeas Corpus (2d Ed.) § 430; Hurd on Habeas Corpus, p. 462; 2 Bish. on Mar. & Div. (6th Ed.) §§ 528d, 536; Schouler on Dom. Rel. §§ 248, 249.

And that the district court has the right by its order, as was done in this case, to permit either parent to have access to his child at reasonable times and in a reasonable manner there can be no question. Church on Habeas Corpus (2d Ed.) §§ 433, 437c.

And we think there is no question but that in this state the court can restrict the person in whose charge he places the child from removing it out of the jurisdiction of the court. Hurd on Habeas Corpus, p. 52. Especially is this the case when such decree is made by the agreement of all the parties at the time the custody of the child is awarded, and directs that it shall not be removed from the jurisdiction of the court.

We cannot agree with applicant’s contention that there is any uncertainty about the decree of the court as to what parties are to have notice of the visit of the mother to the children, wherein it says that “the defendant (Mrs. Ruth Ellerd) shall have the right to visit said children and administer to their needs at all reasonable and seasonable times, five days prior notice of such visits having been first given to Mrs. Lucinda Ellerd, without any hindrance whatever, and neither the plaintiff nor the defendant shall have the right to remove said children or either of them out of the jurisdiction of this court without the consent of the court or the agreement of the parties.” Evidently the agreement of the parties and the decree of the court clearly embrace both the father and the mother.

As stated above, what the evidence was on the trial by the district court when the fine for contempt was made and entered is not shown in this court. The testimony before us, when this habeas corpus trial was had, did show that, before said order of contempt was made and entered, the district court heard all the evidence. On this collateral attack of said judgment we must presume and assume the evidence fully sustained Mrs. Ellerd’s allegations in her motion, and that all said evidence fully authorized, if it did not require a judgment of contempt.

Even if we take the testimony of the applicant, heard before us, it clearly would have authorized the district court to have adjudged applicant guilty of contempt. It is shown from this testimony that at the time of the trial of said divorce case, when the decree placing said children in Mrs. Lucinda Ellerd’s custody was made, she then lived in Hale county, 17 miles from Plainview, the county seat of Hale county, and that she then at that time had said children in her custody. That by said decree she was required not later than September 1, 1909, to even bring them from said distance already in Hale county to Plainview and there keep them as their permanent place of residence. That said Mrs. Ellerd complied with this part of'said decree and removed from her then home with said children and acquired another home at Plain-view. All this was for a specific purpose, as we plainly understand from said decree, which was that their mother shall there “have the right to visit said, children and administer to their needs at all reasonable and seasonablé ■ times, five days prior notice of such visits having been first given to Mrs. L. Ellerd, without any hindrance whatever,” and not be required to go elsewhere to do so.

The said testimony of the applicant before us unquestionably further shows that the mother of the children did give his mother this five days’ notice, and his mother not only so notified him but gave him said written notice and requested him to answer it, and he did so, by registered letter, telling her the children were going to be taken to Cloud Croft, N. M., and inviting her to visit them at Cloud Croft. Prior to the receipt of this notice from the children’s mother, while his mother and father had discussed • going somewhere on a trip for his health, no time nor place had been fixed upon. But immediately after he sent this registered letter, and he knew before it was possible for their mother to reach Plainview, he took his father and mother and the children some 80 miles across the country in his automobile and did not stop until he got them, not only out of Plainview and Hale county, but out of Texas. The presumption is strong that he did not take them on the railroad, fearing they might meet up with their mother. The testimony would also authorize the finding that his removal of them was permanent from Hale county, and that he is to keep them out of the jurisdiction of the court. In addition the testimony is clear that he took these children away and out of Texas at this particular time so as to prevent, as it did, their mother from seeing and visiting them at the time she had notified his mother she would, in clear violation of said decree.

As the district court clearly had jurisdiction of the subject-matter and of the person of the applicant before and at the time he” heard Mrs. Ruth Ellerd’s motion and entered the judgment of contempt against applicant, and as we are not advised what the testimony before the court was at that time, every indulgence will be presumed in favor of the regularity and authority of the order so made by the district court at the time, when such judgment is collaterally attacked as it is in this habeas corpus proceeding.

The only other question necessary to be decided is whether or not the excessive fine entered against applicant renders the judgment absolutely void and subject to this collateral attack. It is clear that the district court for contempt could not enter a fine exceeding $100. R. S.'art. 1708 (1101). There is no claim by the applicant that he has paid this fine or any part of it or that he has paid the cost of the proceedings which was adjudged against him. So far as we have been able to find, there is no case in this state directly passing upon this question. The applicant cites us to Ex parte Morgan, 48 Tex. Cr. R. 108, 86 S. W. 755. The decision of that case does not directly decide this point, and nothing is said thereabout other than the fact that in that case the relator was ordered discharged, because the fine for contempt therein was $300 and 15 days’ confinement in the county jail, which was held to be for a past offense. A careful study of that case convinces us that the question was not raised, discussed, nor decided. So that we look to other authorities and principles for a correct decision of the question. In 15 A. & E. Ency. of Law (2d Ed.) p. 171, the correct rule is laid down as follows: “In the case of a judgment or sentence which is merely excessive it seems to be well settled that, if the court was one of general jurisdiction, such judgment or sentence is not void ab initio because of the excess, but that it is good so far, as the power- of the court extends, and is invalid only as to the excess, and therefore that a person in custody under such a sentence cannot be discharged on habeas corpus until he has suffered or performed so much of it as it was within the power of the court to impose. This condition exists whenever, the punishment imposed is of the nature or kind prescribed by law and merely exceeds the quantity authorized, as where the offender is sentenced to a longer term of imprisonment than is prescribed for the particular offense, or where he is condemned to pay a fine and be imprisoned for an offense which is punishable by fine or imprisonment, or where the sentence is severable, and a part of it is of the nature prescribed by law and the other part is not, as where an offender is sentenced to imprisonment in the penitentiary and to pay a fine, when the punishment authorized by law for the particular offense is a fine and imprisonment in the county jail.” To support this, many cases are cited in the note by the United States Supreme Court and of the states of California, Massachusetts, Missouri, Nebraska, New York, North Carolina, Ohio, South Carolina, Vermont, West Virginia, and Wisconsin. It is true that the text both before and following the quotation we have given above, in substance states that there are authorities holding that an excessive sentence is invalid in toto and that a discharge on habeas corpus has been granted on that ground, but the cases in such sentences have been so declared on writs of error, or appeal. On this subject Church on Habeas Corpus (2d Éd.) p. 529, while recognizing that some courts hold such a judgment absolutely void, states: “The prevailing rule is that an excessive sentence is merely erroneous and voidable; that the whole sentence is not illegal and void because of the excess; that it is not void ab initio; and that it is good on habeas corpus so far as the power of the court extends, and invalid only as to the excess” — citing many decisions to sustain this.

The rule above announced is so reasonable, just, and right and is so well supported by authority that we therefore hold that the said judgment, although excessive to the amount and sum of $150, is not void, and the applicant is not entitled to a discharge until and unless he shows that he has paid the amount of $100 and all costs, and he is therefore remanded to the custody of the sheriff of Hale county.

DAVIDSON, P. J.

(dissenting). While I do not think a fair statement of the facts, would justify a contempt punishment if imposed within statutory authority, and that the majority opinion states more conclusions of the writer of that opinion than the facts as contained in the record would justify, I do not care to discuss that phase of the case particularly. I am clearly of the opinion this case on the facts does not present one in which a contempt punishment ought to have been inflicted.

The court fined applicant $250. The statute limits the authority of the district judge or court to the imposition of fine at not more than $100 and may impose as much as three days’ imprisonment in jail for contempt. As the court did not undertake to imprison in this ease, that phase of the statute will not be discussed, except as incidentally it may arise. My ¡Brother PRENDI&Et-GAST concedes that the judgment is clearly erroneous and in direct violation of the stat'ute. He further concedes that the limit of judicial authority is fixed by the statute at a fine of $100, and any amount of fine above the sum of $100 is clearly unauthorized and cannot be enforced in contempt proceedings. But applicant, however, is remanded by the ■majority opinion to custody until he pays the $100, upon the theory that the judgment is separable, and that by paying $100 he can then be released of the remaining $150. I do not understand such to be the law or such to be the authority vested in this court. There is no difference between my Brethren and myself on the proposition that a fine of more than $100 cannot be imposed. They agree with me that that is the limit so far as the amount of the fine is concerned. They decide, however, that this court can make the judgment of the trial court separable, selecting part of the $250 imposed as a fine and when that is paid the court under such showing would remit the remaining $150 on the theory that it was in excess of statutory authority. To that extent it would be vacating the judgment of the district court, and this court would in such case be entering a judgment that the trial court did not enter, and of which he alone had jurisdiction to enter. This court is not sitting as an original court so far as the contempt is concerned but only as a reviewing court under writ of habeas corpus in this instance of the action of that court. We therefore cannot enter an original judgment in the case. I do not understand why my Brethren should arbitrarily select the sum of $100, unless it be found in the fact that that was the extreme limit of the statute. If we have the power to remit a portion of it or to make the judgment separable and put what we deem proper in it, why not place less than $100; why not go to the lower amount of even $1? If this court has authority to change the judgment of the trial court, it would be absolute in that respect and could substitute any amount it sees proper, and would in that event become absolute and autocratic. This court, as I understand it, has no authority whatever to impose any fine upon applicant. He was not in contempt of this court. If in contempt at all, he was in contempt of the trial court. That court or judge should impose a punishment only when he is authorized by law to do so and in the amount authorized by law. This court could not impose a punishment for contempt where that contempt was of another court. That judge fixed the punishment and did so in an amount that is admitted to be illegal. This court has fixed one supposed to be within the statute, but not fixed by the trial court and not for contempt of this court, but contempt of another court. It would hardly be necessary to state this court is directly without authority to fix any amount of punishment for contempt of another court, or its proceedings. That is beyond the jurisdiction of this court, and my Brethren so hold in their opinion, because they decide that the judgment was illegal and beyond the au: thority of the trial court. They have therefore assumed authority not conferred by the Constitution, by the statute, nor inherent in this court.

The authority of this court in this ease in this matter is merely and only revisory. If the judgment is violative of the statute or Constitution, this court can only discharge for the alleged violation if the judgment of the trial court is erroneous and void. Ex parte Morgan, 48 Tex. Cr. R. 108, 86 S. W. 755; Ex parte Kearby, 85 Tex. Cr. R. 539, 34 S. W. 635; Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962; Ex parte Tinsley, 37 Tex. Cr. R. 534, 40 S. W. 306, 66 Am. St. Rep. 818. In the Morgan Case it was held that in assessing a fine at $300 the court was in error and the judgment void, placing the decision on the limitation set forth in the statute. So it was said in Ex parte Kearby, supra. In Kearby’s Case the opinion says: “Article 262, Rev. Civ. Stat., authorizes courts to punish ‘attorneys at law, for misbehavior or contempt, by fine or imprisonment’ It is true there is no limitation in this article, but article 1101 limits the extent of the power of the district judge in this respect and says ‘that he shall be authorized to punish persons guilty of contempt by fine not exceeding one hundred dollars, and by imprisonment not exceeding three days.’ This clearly applies to all persons and creates a limitation upon the district court to punish any one to a greater extent.” There is not a decision in Texas that has been called to my attention which holds otherwise. This is the rule established by the statute and followed in all decisions in this state. The rule seems to be that, where the statute or Constitution puts a limitation, that ends the power of the courts, and its authority. The rule is thus laid down in 9 Cyc. 58: “If the statute limits the duration of imprisonment or the amount of the fine, the punishment may conform to such limitation, but cannot exceed it.” Supporting this proposition the note cites Cole v. Egan, 52 Conn. 219; Ex parte Edwards, 11 Fla. 174; Swafford v. Berrong, 84 Ga. 65, 10 S. E. 593; Cobb v. Black, 34 Ga. 162; Stewart v. State, 140 Ind. 7, 39 N. E. 508; In re Millington, 24 Kan. 214. Without further collating cases, the same rule is announced in Kentucky, Louisiana, Michigan, Montana, New York, North Carolina, Ohio, Tennessee, Texas, Utah, Washington, Wisconsin, England, and by the decisions of the Supreme Court of the United States. This is the rule in Texas by all the authorities. In Re Graham, 138 U. S. 461,11 Sup. Ct. 363, 34 L. Ed. 1051, the rule was thus laid down: “The general rule that a judgment rendered by a court in a criminal case must conform strictly to the statute, and that any variation from its provisions, either in the character or the extent of punishment inflicted, renders the judgment absolutely void.” See, also, Ex parte Karstendick, 93 U. S. 396, 23 L. Ed. 889; In re Mills, 135 U. S. 263, 10 Sup. Ct. 762, 34 L. Ed. 107; United States v. Pridgeon, 153 U. S. 48, 14 Sup. Ct. 746, 38 L. Ed. 631; Weems v. United States, 217 U. S. 349, 30 Sup. Ct. 544, 54 L. Ed. 793, 19 Ann. Cas. 705.

Again, the rule is clearly laid down that a judgment in criminal cases must conform strictly to the provisions of the statute prescribing punishment and a variation therefrom will render the judgment void. See the same authorities already cited, and in addition 15 American & English Ency. of Law, p. 17(), and notes. I also cite Nielsen, Petitioner, 131 U. S. 176, 9 Sup. Ct. 672, 33 L. Ed. 118; In re Johnson (C. C.) 46 Fed. 477; Harman v. United States, 50 Fed. 922; In re Christian (C. C.) 82 Fed. 199; Ex parte Kelly, 65 Cal. 154, 3 Pac. 673; Ex parte Bulger, 60 Cal. 438; In re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149; In re Coy, 127 U. S. 731, 8 Sup. Ct. 1263, 32 L. Ed. 274; Ex parte Rowland, 104 U. S. 604, 26 L. Ed. 861. Such is the rule in Texas as shown by the statutes and decisions in the history of the state. Ex parte Morgan, 48 Tex. Cr. R. 108, 86 S. W. 755; Ex parte Kearby, 35 Tex. Cr. R. 539, 34 S. W. 635; Ex parte Kearby, 35 Tex. Cr. R. 634, 34 S. W. 962, and cases previously cited. It is laid down in 15 American & English Ency. of Law, 170: “That, even where a court has jurisdiction of the offense charged and of the person of the accused, it may so far transcend its powers in assessing penalty for the offense by imposing a punishment of a character different from that prescribed by law or otherwise that the sentence will be void and furnish no authority for holding the accused in custody, though the conviction on which the sentence was entered was valid and correct, and in such case the accused may be discharged on habeas corpus.” This cites many of the cases already quoted and cited. And it has been held that an excessive judgment is one that the court did not have power to render and is therefore void. Ex parte Kearby, supra; Ex parte Morgan, supra, and other cases cited. These are cases decided by this court. See, also, Ex parte Cox, 3 Idaho (Hasb.) 530, 32 Pac. 197, 95 Am. St. Rep. 29. The case of Ex parte Degener, 30 Tex. App. 566, 17 S. W. 1111, has been followed by every decision announced by this court since its rendition, until this particular case made the exception. This court has also laid down the rule after reviewing the authorities, and the old rule which had been in vogue theretofore, as follows: Jurisdiction is of two kinds: First, of the person; second, of the subject-matter — and the further proposition announced that, where the court had jurisdiction of the person and of the subject-matter, it must have the further power to render the particular judgment which was rendered on the facts and law of the case. That courts of general jurisdiction or superior-courts have what is termed inherent power to punish for contempt may be granted as a correct general proposition, but that power is subject to constitutional provisions, and it seems as well to the power of the Legislature to regulate such power. I do not care to enter into a discussion of that particular phase of the subject. This power may not be prohibited, but it may be regulated. In Texas the Legislature does regulate and prescribe the rule for the district courts, and limits their power to fine for contempt to $100, and may in addition add imprisonment not to exceed three days. It has also prescribed and regulated punishment with reference to county and justice courts. Therefore the rule is the correct one in this state that, where the statute limits the duration of imprisonment or the amount of the fine, the punishment must conform to such limitation, “but cannot exceed it.” In the ease in hand the trial court assessed a punishment of $250; the statute limits to $100. In the Morgan Case, 48 Tex. Cr. R. 108, 86 S. W. 755, the court imposed a fine of $300; the statute limited to $100. In the Kearby Case the court imposed no fine, but placed him in jail until he apologized; the statute limited the punishment to $100 and three days in jail. In both instances this court discharged the contemner because the judgment was void. In the Kearby Case, supra, the order was made without limitation as to the extent of the punishment, but confined itself practically to the will and pleasure of the court malting it, dependent upon an apology on the part of the contemner.

These are some of the reasons why I cannot agree with the opinion of my Brethren I am clearly of the opinion under the law and under the statute and our decisions that applicant is entitled to his discharge. If the trial court desires to punish and has authority to do so, and a case arises where he deems it necessary to punish for contempt, he must conform that punishment to the statutory law of the state, and until that law has been changed it must govern the decisions of the courts. This court nor the trial courts would have authority to substitute their will or ideas of those matters for that of legislative enactment. This court is not clothed with authority to enter a judgment here against a party that was not entered in the court below; nor has it the authority to remit any of the punishment imposed by the trial court If the trial court had the authority to punish for $250, then that part of his judgment would be legal. If he did not have that authority, then it would be beyond his jurisdiction to enter the order he did enter, and this court cannot substitute any other order or judgment either directly or indirectly in the place of the judgment entered by the trial judge by a remission of a portion of the judgment so as to bring the trial judge’s order within the statutory limit of $100. This court did not and cannot enter the judgment nor impose the punishment. The trial court must d'o that. If he acted independent of the statute, his judgment would be unauthorized, illegal, and void for want of authority to enter such judgment, and, having no authority to enter such judgment, it would be void. See cases already cited.

It will be noticed that the district judge was not exercising his authority to punish for contempt under and by virtue of the terms of the statute .which limits the punishment as already indicated. This statute was ignored, and his action was based on a different proposition and one entirely outside the statute. Had he been following this statute, he would have limited the punishment not in excess of $100. 1-Ie, as judge, either really knew what the statute was or is supposed to have known its contents as well as the construction placed upon it not only by this court but the limit the Legislature had placed upon it. There is no other conclusion, as I understand the law, but that the judge acted outside and in excess of authority beyond the statute, and that his action in this matter was not based upon the statute, but was an assumed power clearly illegal and void.

Another distinction may be noticed. The punishment imposed by the trial judge was for disobedience of an order or supposed order. He was not undertaking to enforce the order of the court but was only punishing for its infraction. All the authorities make the distinction between the enforcement of the judgment or order of the court and a punishment for the infraction or disobedience of the order. To illustrate: A witness is brought before the court and is required to testify. This he refuses to do. The court may put him in jail until he agrees to testify, and he may in addition fine him $100 and also place him in jail three days for contempt, even after he has agreed to testify, as a punishment. Under the first proposition, the. witness may be kept in jail until he agrees to testify. Under the second proposition, he can discharge the punishment by paying $100, or whatever the judge may legally impose, and serve his time in jail, not to exceed three days, and be discharged. My Brethern seem to have lost sight of the fact that these two propositions are clearly and distinctly marked by law and the decisions. Ex parte Tinsley, supra. In the Tinsley Case Tinsley refused to produce some books in a civil suit which were in his possession, which were deemed necessary or thought to be so by the trial court for the protection of the rights of others involved in the litigation. The court placed him in jail until he should produce the books. Tinsley refused and resorted to writ of habeas corpus. He was remanded upon the theory that he must produce the books, and that the court had a right to have his orders obeyed and have the books produced. That was in the nature of a continuing contempt. It was also stated in the Tinsley Case, in order that there might be no confusion about this matter, ‘that the court could as well have punished Tinsley by fine, but, inasmuch as he did not do that, that question did not arise. But the distinction was drawn between the two characters of cases and tlie different .characters of punishments, and both propositions were •asserted as being the law under appropriate circumstances. The facts in this ease and the opinion of my Brethren as well make it •evident that this was not a continuing offense; at least the court did not so hold ■and did not punish or attempt to punish upon that theory. He was simply imposing a fine for disobedience of his order. It is unnecessary to go further into this matter. The proposition is so plain the legal profession and bench of the state will understand it, and perhaps it was even unnecessary to write what I have written or say what I have said.

Eor the above reasons I most respectfully dissent from the conclusion reached by my Brethren. I am clearly of the opinion the applicant, first, has not committed contempt, and, second, that the judgment- of the trial court was clearly erroneous and in excess of what the punishment authorized by law •ought to be, and the writ of habeas corpus was the proper remedy, and he ought to be discharged from custody.


author: KEY, C. J.

text:
    GOLDING v. GULL.
    (Court of Civil Appeals of Texas. Austin.
    June 18, 1913.)
    Appeal and Error' (§, 627) — Failure to File Transcript — Effect.
    Where a party perfecting an appeal from an adverse judgment fails to file the transcript within the time allowed by law, the adverse party has the absolute right by timely motion to have the judgment affirmed on certificate and that right cannot be defeated by the prosecution of a writ of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 274A-2749, 3126; Dec. Dig. § 627.]
    Error to McLennan County Court; Tom L. McCullough, Judge.
    Action between M. Golding and Flossie Cull. There was a judgment for the latter, and the former brings error.
    Dismissed.
    Williams & Williams, of Waco, for plaintiff in error. Dickens & Dickens, of Austin, Hamilton & Kibler, of Waco, and J. P. Richardson, of Austin, for defendant in error.

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

   KEY, C. J.

This case has reached this court by two routes. On April 28, 1913, M. Golding, as plaintiff in error, filed a transcript which was filed within the time required by law. On May 24,1913, defendant in error filed a motion to affirm on certificate, accompanied by a transcript which shows that Golding gave notice of appeal, filed an appeal bond, and thereby perfected his appeal; but no transcript was filed in this court within the time required by law in order to prosecute the appeal, and thereafter, and without furnishing any excuse for not prosecuting the appeal, Golding sued out a writ of error.

Flossie Cull, the appellee or defendant in error, has filed a motion to dismiss the writ of error, and reiterates her request that the judgment be affirmed on certificate, and upon the authority of Welsh v. Weiss, 40 Tex. Civ. App. 257, 90 S. W. 160, Wandelohr v. Bank, 90 S. W. 180, and Chambers v. Grisham, 155 S. W. 959, that motion is sustained. The cases cited establish the proposition that when a dissatisfied litigant has perfected an appeal, and has failed to file the transcript within the time allowed by law, it is the absolute right of the opposite party, by timely motion, to have the judgment affirmed upon certificate, and that that right cannot be defeated by the prosecution of a writ of error.