author: DAVIDSON, P. J.

text:
    SAMPSON et al. v. STATE.
    (No. 5080.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Crops <®=38 — Taking of G-rowing, Standing, or Ungathered Corn — Statute-.
    The statute prohibiting the unlawful and fraudulent taking from the possession of the owner of growing, standing, and ungathered corn does not apply only to immature and undeveloped corn in a growing condition, but punishes the taking of any growing standing corn, even if mature.
    2. Indictment and Information <⅜»125(20)— Conjunctive Charge.
    Information charging that defendants unlawfully and fraudulently took from the possession of the owner certain growing, standing, and un-gathered corn sufficiently charged the statutory offense, since, where a statute provides that the offense may be committed in divers ways, the pleader may charge them all conjunctively, and prove what ho can, or may select any particular phase of the statute, and charge it.
    3. Crops <s=j8 — Joint Prosecution — Action Pursuant to Common Purpose — Larceny of Standing Corn.
    In a prosecution of two defendants for unlawfully and fraudulently taking from the possession of the owner certain growing, standing, and ungathered corn, a statutory offense, to sustain conviction, the evidence must show that defendants were acting together as accomplices or principals, pursuant to a common purpose, in taking the corn.
    4. Indictment and Information <©=3166 — Joint Offense — Separate .Action by Defendant.
    Where the offense is joint or jointly charged, the state does not meet the allegations of the information by showing it was committed by the separate acts of the alleged joint actors, and under such circumstances the indictment or information cannot combine the two as jointly acting together.
    5. Crops <©=^8 — Larceny of Standing Corn-Fraudulent Intent.
    If defendants took the growing, standing corn of another, without intent to steal it or defraud the owner, but merely to use in catching horses outside in the lane, they wore not guilty of a fraudulent intent and conversion.
    6. Crops <®=>8 — Larceny of Standing Corn —InstrtjoAons—Lack of Fraudulent In-' tent.
    In a prosecution for taking from the possession of the owner growing, standing, and un-gathorod corn, where there was evidence for defendants that they took the corn without fraudulent intent, the court should have given special instructions requested, submitting the issue of their lack of fraudulent intent.
    Appeal from Fayette County Court; George Willrich, Judge.
    Lawyer Sampson and Marion Sampson were convicted of unlawfully taking standing corn from the possession of the owner, and they appeal.
    Judgment reversed, and cause remanded.
    John T. Duncan, of La Grange, for appellants. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Omitting formal parts, the complaint and information charge that Lawyer Sampson and Marion Sampson, etc., “did then and there unlawfully and fraudulently take from the possession of W. A. Euchs certain growing, standing, and un-gathered Indian corn, to wit, six pounds of Indian corn, of the value of 25 cents, the same being the corporeal personal property of the said W. A. Fuchs, and the same being then and there growing, standing, and remaining ungathered in the field and ground of the said W. A. Fuchs, without the consent.” etc.

The information charges joint offenses by the two defendants of the theft of the growing, standing, and ungathered Indian corn of the alleged owner. It is contended that this statute applies only to growing corn, which means immature and undeveloped corn in a growing condition. The statute 'goes further, and punishes the taking of any growing, standing, or ungathered corn. The facts show without question , that the corn was not what might be termed growing corn. It was matured corn, but still standing and the ears upon the stalks. Where a statute provides that an offense may he committed in divers ways, the pleader may charge them all conjunctively, and prove what he can, or he may select any particular phase of the statute, and charge that phase. This was not growing, but was matured, standing! and ungathereil, Indian corn. There was no error in this contention.

Appellants further contend that this is a joint prosecution, and necessarily that the parties were acting in concert with each other as accomplices or principals, and in order to sustain this conviction it must be shown that they were joint offenders, acting with a common purpose and in concert under that common purpose. We are of opinion that this proposition is correct, and in order to sustain this conviction the evidence must show that they were acting together from a common purpose in taking the corn.

Appellants further contend that where it is a joint offense, or jointly charged, the state would not meet the allegations by showing separate acts by the alleged joint actors; that under such circumstances the indictment or pleading could not combine the two as jointly acting together. We are of opinion this proposition is sound, and that the court should have given the special charges requested by appellants, instructing the jury that if one took corn by a separate act, and the other took corn by his separate act, with no concert of action between them, and each act was a different and separate act of the individual, they should be acquitted. In support of this see Lewellen v. State, 18 Tex. 538; Bennett v. State, 26 Tex. App. 672, 14 S. W. 336; Townsend v. State, 137 Ala. 91, 34 South. 382; McGehee v. State, 58 Ala. 360; Lindsey v. State, 48 Ala. 169; Elliott v. State, 26 Ala. 78; State v. Bridges, 24 Mo. 353; Hall’s Case, 97 N. C. 474, 1 S. E. 683; Cox v. State, 76 Ala. 69; Jackson v. State, 87 Ga. 435, 13 S. E. 689; 10 Ency. of P. & P., p. 555; Commonwealth v. McChord, 2 Dana (Ky.) 242; Griffin v. Mills, 39 N. J. Law, 587; 22 Cyc. 374-5. We deem it unnecessary to go into a discussion of this matter. This was alleged to be a joint offense, when the question was sharply presented that it was a distinct offense by each one, if an offense at all, and without collusion or joint action. This matter should have been submitted to the jury as requested by counsel in the special charges. Exceptions were timely and properly taken in the trial court, both to the charge and refusal to give the special instructions.

The evidence for the defendants is toMhe effect that in taking the corn each one testified he had no idea of defrauding the owner of it; that they had been picking cotton for him, and he owed them $10, and that thej; took this corn for a specified purpose, and" with no intent to steal it or to defraud the owner; that they thought under the circumstances it would make no difference to him; that they simply purposed to use it in catching horses which were outside in a lane. This in a general way was submitted by the court, and special instructions requested separately submitting this issue. If they took the corn under the circumstances indicated, they would not be guilty of a fraudulent intent and conversion. This charge should be specifically given upon another trial.

For the errors indicated, the judgment will be reversed, and the cause remanded.
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source: Caselaw Access Project

license: Public Domain

text:
    POWERS v. STATE.
    (No. 5048.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.
    Rehearing Denied June 26, 1918.)
    Criminad Law ®=>599 — Surprise— Withdrawing Announcement oe Ready.
    In prosecution for sale of intoxicating liquors, court did not err in denying a motion to allow defendant to withdraw his announcement of ready for trial on the ground that previous to the trial the state witness had told defendant’s counsel that he had only bought liquor from defendant once at a certain place, but on the trial testified to another sale of liquor at a different place; there being nothing in the record to indicate that defendant could secure testimony, and no statement concerning truth of the second sale of liquor.
    Appeal from Nacogdoches County Court; J. P. Perritte, Judge.
    Tom Powers was convicted of violating the local option law, and he appeals.
    Affirmed.
    Harris & Harris, of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was. convicted of violating the local option law, his punishment being assessed at a fine of $75 and 20 days’ imprisonment in the county jail.

The evidence for the state justifies the verdict of the jury, showing the sale as alleged. This is denied by appellant. During the trial it was developed by the state’s purchasing witness that he-made two purchases from appellant of whisky, one at the house where appellant was living, and the other at a different time on a creek somewhere in the town of Nacogdoches. On cross-examination of the state’s witness appellant’s attorney asked him questions with reference to a conversation occurring between counsel and state’s witness, laying a predicate for impeachment. This was admitted by the state’s witness in part and denied in part. A statement of these matters is not thought necessary further than will be observed later. This shows that defendant at this juncture, through his counsel, offered to withdraw his announcement of ready for trial for the reason that he was not prepared to meet the case testified by state’s witness. It is narrated in- the hill that defendant’s attorney talked with state’s witness before the case was called for trial; that at 5 minutes after 12 o’clock on the day of the trial, which took place at 1 o’clock, p. m., defendant’s attorney had talked to the state’s witness and ascertained from him, as the attorney states, that the sale was November 15th at the house where appellant was living or boarding with the woman Harriet Taylor; that he stated to counsel that he had bought no other whisky from the defendant except that which was bought in this house and paid for at the time. That state’s witness took the stand at 5 minutes after 1 o’clock, and testified to a different transaction than that which he mentioned to appellant’s counsel, which was the first intimation said attorney had that state’s witness would testify as he did with1 reference to the transaction at the branch or creek, and not at the house. The bill further recites that counsel stated to the court that he was not prepared to meet the state’s case as developed ; that he had brought his witnesses to meet the other transaction; that he was not aware of the fact that prosecuting witness would testify with reference to a sale of whisky on, the creek or branch; and that he had no opportunity to meet the development with reference to the transaction on the creek. The court signs this bill with this statement:

“Reference is made to the statement of facts as to the facts or matter complained of in this bill; also record shows case filed more than a year ago.”

There was no application made otherwise for a continuance than that stated. This was not sworn to by appellant, nor does be ask for a postponement, or state that be was surprised by tbis testimony. Tbe attorney’s statement comprises tbe whole matter with reference to the question of surprise. There is nothing in the record to indicate appellant could secure testimony, or that there were witnesses whom he could secure to show that the sale mentioned did not occur. The motion to withdraw the announcement was based on the fact that counsel was surprised at the witness testifying to the transaction on the creek. There was nothing stated or shown which indicated that the statements were not true and no fact mentioned which would be of any service to appellant. We do not mention the contradictions between the witness and counsel, believing that the showing is not sufficient to have entitled appellant to withdraw his announcement, and postpone or continue the case. This question is not a novel one. The authorities will be found collated in Vernon’s Ann. C. C. P., in notes under article 616. See, also, White v. State, 40 Tex. Cr. R. 366, 50 S. W. 705. As this record presents itself, we are of opinion that the court did not err in refusing to permit the withdrawal of the announcement as requested by appellant’s counsel.

The judgment will be affirmed.
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author: MORROW, J.

text:
    BARRIOS v. STATE.
    (No. 5067.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    1. Criminal Law <©=>703, 764(1) — Death §= 2(1) — Presumption prom Absence.
    The presumption of death arising from seven years’ absence is not absolute under Vernon’s Saylos’ Ann. Civ. St. 1914, art. 5707, and in prosecution of second husband for desertion of wife, it was error to so instruct concerning the former husband, there being rebutting evidence, and it is immaterial that under Pen. Code 1911, art. 482, the wife would be exempt from conviction of bigamy.
    2. Criminal Law <§=1090(14) — Matters Reviewable — Bill oe Exceptions — Aeeirma-tive BIrr or.
    In prosecution for wife’s desertion, where husband claims wife had another husband living, evidence being conflicting, it was affirmative error to charge that the presumption of death after seven years’ absence was absolute, and the giving of such instruction was reviewable, although no bill of exceptions was reserved to the refusal of a special correcting charge.
    3. Criminal Law <§=1090(14) — Statutes §= 140 — Amendatory Act — Matters Reviewable — Exceptions.
    Acts 35th Leg. c. 177 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), does not amend the procedure in criminal cases, which is embodied in Acts 33d Leg. c. 138 (Vernon’s Ann. Code Or. Proc. 1916, arts. 735, 737, 737a, 743), and special charges refused and not brought up for review by bills of exceptions cannot be considered.
    Appeal from Dallas County Court, at Law; W. L. Thornton, Judge.
    J. D. Barrios was convicted for desertion of his wife and child, and he appeals.
    Reversed and remanded.
    Williams, Puckitt & Harty and John White, all of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted for desertion of his wife and child under article 640a, Vernon’s Ann. Pen. Code 1916.

Appellant and his alleged wife were 'married in Texas in 1914, and that he abandoned her is a conceded fact which he justifies on various grounds, among them, that she was not his wife. This is based upon the alleged fact that he married her believing she was a maiden, but that she was in fact the wife of another man living. 'She married a man named Zapata in 1905. He killed her father in 1906, and fled to Mexico. Her mother, since deceased, went to Mexico, and claimed to have learned that Zapata was dead, and so informed Mirs. Barrios. The fact of his death was controverted. Several witnesses claimed to have heard of him at various times during the period of his absence, some of them subsequent to the time that it was claimed that he died.

The court instructed the jury that, if during his seven years’ absence bis wife had not known of his whereabouts, the presumption of death was absolute. This was not tho language, but the substance, of the charge, to which exception was raised. We think this charge was upon the weight of the evidence. Our statute (article 5707, Vernon’s Sayles’ Civil Stats.) declares:

“Any person absenting himself beyond the sea or elsewhere for seven years successively shall be presumed to be dead, in any case wherein his death may come in question, unless proof be made that he was alive within that time.”

The presumption of death arising from seven years’ absence is not absolute. See Wharton Crim. Law, vol. 2, § 809. The statute in question, in terms, makes the presumption rebuttable when it says, “unless proof be made that be was alive within that time.” The courts so construe it. See Gorham v. Settegast, 44 Tex. Civ. App. 254, 98 S. W. 668; Francis v. Francis, 180 Pa. 644, 37 Atl. 120, 57 Am. St. Rep. 668. It is believed the fact that under article 482, P. C., Mrs. Barrios would have been exempt from conviction of bigamy would not control. The prosecution is not against her, but upon appellant, based upon the fact that she, being his wife, he had abandoned her. Before his guilt of deserting his wife could be established, it was essential that it appear that he had a wife. The woman he deserted could not have been bis wife if she, at the time of the purported marriage, had a living husband. Her previous marriage having been established, and there being evidence rebutting tho presumption of the death of her husband, it was essential to a fair trial that the jury be permitted to solve the controverted question under a proper charge. This we think was not done.

The state’s contention that the bill of exceptions reserved to the court’s charge fails to show error in the absence of a bill of exceptions reserved to the refusal of a special charge correcting the error in the charge complained of would be sound as applied to a case where the charge was not affirmatively wrong. Teem v. State, 79 Tex. Cr. R. 285, 183 S. W. 1144. We think the error in the charge in question was affirmative, and that the trial court should have withdrawn it in response to the objections that were made to it at the time of the trial and preserved in the bill of exceptions which brings the matter before this court for review. See Novy v. State, 62 Tex. Cr. R. 492, 138 S. W. 139.

We find in the record a number of special charges requested which were refused, with reference to which no bills of exceptions are preserved. The state insists that these special charges cannot become the subject of review in -the absence of bills of exceptions. This states the correct rule. Giles v. State, 66 Tex. Cr. R. 638, 148 S. W. 317; Brown v. State, 73 Tex. Cr. R. 571, 166 S. W. 508; Ferguson v. State, 79 Tex. Cr. R. 641, 187 S. W. 476; Ellis v. State, 189 S. W. 1074; Moore v. State, 78 Tex. Cr. R. 171, 180 S. W. 677; Cline v. State, 79 Tex. Cr. R. 229, 183 S. W. 1152. Counsel for appellant meets this view by drawing attentioi* to chapter 177, Acts 35th Leg.- p. 389 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974). In this chapter, chapter 59, p. 133 of the act of the Thirty-Third Legislature is amended. This chapter relates to procedure in civil cases, and is article 1974, Rev. Civil Stats. 1913, and also is chapter 177, supra. This chapter does not amend the procedure in criminal cases which is embodied in chapter 138 by the Acts 33d Leg. p. 278, which amends articles 735, 737, 743, and adds article 737a, tit. 8, e. 5, C. C. P. The special charges refused and not brought up for review by bills of exceptions cannot be subject for consideration in this court.

For the error in the charge pointed out, the judgment of the lower court is reversed, and the cause remanded.
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text:
    BUCKNER v. STATE.
    (No. 5034.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    Intoxicating Liquors ⅞=>132 — Local Option Territory— Statutes.
    A prosecution for the sale of intoxicating liquor at retail without a license in local option territory may be maintained under Pen. Code 1911, art. 597, providing a penalty for such sales, but not under article 612, as amended by Acts 35th Leg. (Fourth Called Sess.) c. 6, § 1, making the offense of selling liquor without a license a felony; such provision not applying to a local option territory.
    Appeal from District Court, Lamar County; Ben I-I. Denton, Judge.
    Dixie Buckner was convicted of selling intoxicating liquor without a license, and she appeals.
    Reversed and remanded.
    Baughn & Johnson, of Paris, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of a felony, and her punishment assessed at two years’ confinement in the penitentiary.

The indictment charges, in substance, that appellant, not being a licensed retail liquor dealer, sold two quarts of beer in Lamar county. The prosecution is under chapter 6 of the Acts of the Thirty-Fifth Legislature, Fourth Called Session. Chapter 6 amends article 612, P. C. That article prior to this amendment denounced the sale of intoxicating malt liquors in quantities of. less than a gallon without procuring a liquor dealer’s license, or a retail malt dealer’s license, as a misdemeanor. The only effect of chapter 6 is to change the article so as to make the penalty a felony. Article 612, P. C., is a part of the Acts of the Thirty-First Legislature, Regular Session, c. 17, p. 293. The purpose of the act was to regulate the sale and disposition of spirituous, vinous, and malt liquors in places where same was sold. Article 612, P. C., corresponds with section 5 of the act. Section 27 of the act is as follows: ,

“This act, or any of the provisions thereof, shall not be construed to he in conflict with any local option law now or hereafter to be in force in this state, and no license to any retail liquor or retail malt dealer shall be issued or shall be effective at any place where local option law is in force and operation.”

It is admitted in the statement of facts in this case that in Lamar county, ■ where the offense is charged to have been committed, the sale of intoxicating liquors was prohibited under the local option statute. The view that article 612, P. C., is operative in counties or districts of the state where the sale of intoxicating liquors as a beverage is prohibited is a mistaken one. There is a statute which regulates and requires a license in such territory for liquors which are permitted by law to be sold, such as for medical purposes. See Watson v. State, 42 Tex. Cr. R. 14, 57 S. W. 101; Williamson v. State, 41 Tex. Cr. R. 466, 55 S. W. 568. The only purpose of the statute in question was to amend the license law regulating the sale of intoxicating liquors in districts where it is not prohibited in such way that the penalty for a violation of section 5 of said act of the 31st Legislature would become a felony instead of a misdemeanor, The sale, having taken place in a district or county in which the sale was prohibited under the local op-tton la\y, and not being a sale for any of tlie permitted purposes in such territory, comes within the purview of article 597, P. C., which provides a penalty for the sale of such liquors in prohibited territory, and the prosecution should be under that statute, and not under chapter 6, supra.

The judgment of the lower court is reversed, and the cause remanded.
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author: PRENDERGAST, J.

text:
    BURNETT v. STATE.
    (No. 4805.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    Criminal Law <§==>1070 — Appeal — Abatement.
    A motion to abate by the Assistant Attorney General and the county attorney supported by affidavit of the county attorney and clerk of the district court that appellant is dead will be granted.
    Appeal from District Court, Wise County; P. O. McKinsey, Judge.
    Ben Burnett was convicted of crime, and he appealed.
    Motion to abate granted.
    See, also, 201 S. W. 409.
    Benson & Benson, of Bowie, and Ratliff & Spencer, of Decatur, for appellant. B. B-. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The Assistant Attorney General and the county attorney of Wise county have set up that the appellant herein died on May 27, 1918. They thereupon move that this case be abated. To the motion is attached the affidavit of the county attorney and the clerk of the district court of Wise county wherein each swears that the appellant was killed on said date.

The motion to abate will therefore be granted. Pustiofsky v. State, 28 S. W. 947; March v. State, 5 Tex. App. 450. And it is ordered that said case be, and the same is hereby, abated and striken from the docket of this court.


text:
    QUATERNICK v. STATE.
    (No. 4921.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.
    On Motion for Rehearing, June 28, 1918.)
    1. Indictment and Information <©=>111(1)— Statutory Offense — Nf.gativing Proviso.
    An information for selling milk adulterated by adding water, based on Pen. Code 1911, art. 706, declaring it unlawful to sell or expose for sale adulterated or impure milk, with proviso that skimmed milk may be sold if the can or package from which it is taken is marked “skimmed milk” was not defective because containing no negative allegation that the sale was not a sale of skimmed milk so marked, as the statute contains no proviso authorizing a sale of watered milk.
    2. Food <©=>20(2) — Indictment—Designation of Persons — Purchaser of Adulterated Milk.
    Such information, was not defective because not showing the name of the purchaser of the adulterated milk, as the offense consisted in the sale or exposure for sale of adulterated milk.
    3.Criminal Law <©=>1159(3) — Appeal—Conclusiveness of Verdiot. . .
    . . In such prosecution, a verdict on conflicting evidence is binding on appeal.
    Appeal from Galveston County Court, at Law; J. C. Canty, Judge.
    M. Quaternick was convicted of selling adulterated milk, and he appeals.
    Affirmed.
    Elmo Johnson, of Galveston, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for selling and exposing for sale adulterated milk, the adulteration consisting in adding water to the milk. The statute defining the offense is article 706, P. C., declaring it unlawful for any person to sell or expose for sale adulterated or impure milk. The article contains a proviso stating that “skimmed milk” may be sold if on the can or package from which it is taken the works “skimmed milk” 'are painted.

Appellant attacks the sufficiency of the information upon the ground that there is no negative allegation showing that the sale was not a sale of skimmed milk so marked. We think this contention is unsound. The statute does not contain any proviso authorizing the sale of watered milk under any dircumstances, whether skimmed milk or otherwise. To bring it within the rule requiring the negative averment, it would he necessary that the terms of the statute be such as to permit the sale of watered milk under some circumstances. If such were the terms of the statute, it would then be necessary to show by averment that the sale of watered milk was not under the circumstances permitted. The authorities, upon the subject are collated in Branch’s Ann. P. O. § 510. See, also, Brown v. State, 74 Tex. Cr. R. 498, 168 S. W. 861; Wilkerson v. State, 42 Tex. Cr. R. 458, 72 S. W. 850; Mosely v. State, 18 Tex. App. 312; Blasdell v. State, 5 Tex. App. 263.

The information is also assailed upon the ground that the name of the purchaser of the adulterated milk is not alleged. In support of this contention appellant relies upon Drechsel v. State, 35 Tex. Cr. R. 580, 34 S. W. 934, declaring it necessary, in a prosecution for the sale of intoxicating liquors in localities where such sales are prohibited under the local option laws, to designate the name of the purchaser by averment in the indictment or information. There is, we think, an obvious distinction between the statutes prohibiting sales of intoxicating liquors and the statute under consideration, in that in the former a sale must be proved, and therefore averred with certainty, to comply with which rule the name of the purchaser is essential. The offense denounced by article 706, supra, consists in the sale or exposure for sale of adulterated milk. In a prosecution under this statute it is not necessary to prove a sale, but proof of possession and exposure for sale of the adulterated article is sufficient, and, being sufficient in proof, it is likewise sufficient in the averment.

Prom the evidence it appears appellant was engaged in the business of conducting a dairy and selling milk; that prosecuting witness bought and took from among other bottles of milk in the possession of appellant, and on his milk wagon about 7 o’clock in the morning, a bottle of milk which, on examination, was found to contain water; that is, it showed that 26 per cent, of the contents of the bottle was water added to the milk. The defense urged was that this particular bottle of milk was not exposed for sale, but that it ■was gotten by appellant from another person, and not intended for sale, but intended to be used by him in exchange for a drink of whisky; that at the time prosecuting witness got the bottle of milk it ivas the only one in his possession, and it had come into his possession in the manner and for the purpose meiitioned. This issue was submitted to the jury in a charge given at request of appellant. It was an issue upon which there was manifestly a conflict of evidence, and its solution by the jury against appellant is binding upon this court.

The judgment of the lower court will be affirmed.

On Motion for Rehearing.

Appellant insists that the evidence does not support) the judgment finding him guilty under the statute which makes it unlawful “for any person to sell or expose for sale or exchange any watered milk.” P. O. art. 700.

T. J. Teague testified that he was ana had been pure food inspector, for eight or nine years; that appellant ran a dairy in the city of Galveston, selling milk, and was selling milk on March 13, 1917; that on that day at 7 a. m. he took a sample of his milk, paid him ten cents for the sample, took a quart of milk; that he had other bottles of milk on his wagon at the time; of this he was certain ; that appellant did not tell him he had that bottle of milk to give to Lester Davison; did not claim it was not his milk. It was shown that the sample thus taken was analyzed, and contained 26 per cent, of added water. Apiiellant testified that the witness League on the occasion mentioned took a bottle of milk from his wagon and paid him ten cents for it. He said that that was the last bottle he had, and that he told League he was going to give it to Lester Davison for a drink of whisky. He claims that he had sold all of his milk and bought a bottle of milk trom Mrs. Ostermayer and paid her ten cents for it, and was going to exchange it to Davison for a drink of whisky; that he had been in the habit of making such an exchange; that he put no water in it; that at the time that League got the bottle of milk he was on the street in front of Davison’s place of business. No effort was made to have the testimony of Mrs. Ostermayer.

Lester Davison testified that he was in the habit of making an exchange with appellant, giving him a drink of whisky for a bottle of milk, and that he made no delivery to him on the day in question, though he was to do so.

The only charge given was one prepared by the appellant, in which the court told the jury that if they believed or had a reasonable doubt that appellant purchased the milk from Mrs. Ostermayer. to acquit him. We are not able to agree with appellant in his contention. The circumstances testified to are sufficient to show that he had on the wagon used in his dairy business on the occasion in question bottles of milk which were exiiosed for sale, and from among these bottles he sold one to the witness! League, which contained 26 per cent, of added water. ITrom the testimony the jury was authorized to draw the inference that the bottle of milk which was sold to League was among the others which the appellant was exposing for sale. The jury was not bound to accept his statement, and their verdict, sustaining the state’s theory and rejecting his having been approved by the trial court, is binding upon this court.

The motion is overruled.
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text:
    Ex parte BOWMAN.
    (No. 5083.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    Bail <©=>52 — Amount—Abson.
    In an ordinary case of arson, where it appeared that accused could not get any one to go on his bail bond for more than $1,500, the court erred in requiring him to furnish a bond for $6,000, and the bail will be reduced to $1,500.
    Appeal from District 'Court, Childress County; J. A. Nabers, Judge.
    Proceeding in habeas corpus by R. W. Bowman seeking reduction of the amount of bail. From a judgment denying the relief demanded, the applicant appeals.
    Reversed and bail fixed.
    Jos. H. Aynesworth, of Childress, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a hearing had on habeas corpus in the court below seeking a reduction of the amount of the bail fixed by the lower court. This was an ordinary case charging arson.

The evidence shows that the applicant (Bowman) was a man without any means, and, while he had some relatives and many friends, with one exception, none of them had any property such as would enable them to make his bond. The exception was a friend who refused outright to go on his bond for the sum of $6,000 which was fixed by the court as the amount of Ms bail bond in tMs case. The evidence further shows that prior to the indictment, on a preliminary hearing, his bail bond in this case was fixed at $1,-500, which he succeeded in giving by said friend who was able to make bond for him, and others, going on that bond. It also shows that he had been indicted in another case, a felony, growing out of this alleged arson. His bond in that case was $1,000. He also succeeded in making that bond.

Under the circumstances of this case, the bail herein fixed at $6,000 was excessive. We see no necessity of discussing the question or referring to the authorities. Under the circumstances, we think the amount of the bail bond should be reduced and that $1,500 would be a reasonable amount therefor. The judgment of the district court will therefore be reversed, and appellant’s bail herein fixed at $1,500.

Bail reduced and fixed at $1,500.
      <©=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte HALEY.
    (No. 5090.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    Bail <S=o42 — Persons Entitled to Bail.
    Where one was charged by complaint with murder, and the statement of facts of the testimony at the examining trial, which was used by consent, indicated that other pertinent tesimony might have been introduced, and it does not appear that the proof was so evident as to justify holding the prisoner without bail, bail will be granted.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    - W. I. Haley was charged by complaint with murder, and from an order denyMg bail, he appeals.
    Reversed, and bail granted.
    Williams, Puckitt & Harty, of Dallas, and Martin & McDonald, of Austin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

TMs is an appeal from an order of the district judge denying bail, wherein appellant was charged by complaint with murder. No indictment had then been found. Shortly after the killing of deceased, an examining trial was held, at which certain testimony was introduced. On the hearing before the district judge on ha-beas corpus it was agreed that the statement of the testimony heard on said examining trial should be used, which was done. No oral testimony was heard by the district judge. The applicant introduced no testimony.

TMs statement of facts would indicate that other pertinent testimony bearing upon the case might have been introduced. Why it was not is not .shown. It has been carefully read and considered. Erom it we cannot say with that degree of certainty which should obtain, that the proof is so evident as to justify holding he is not entitled to ball. The fact that we hold that from this statement of facts, appellant is entitled to bail, cannot and does not have any bearing or effect on any verdict which may be found on a final trial, nor on the punishment to be inflicted, if he is found guilty.

Under the law, as we understand it, we are constrained to hold that the applicant is entitled to bail, and therefore reverse the judgment denying it, and fix the amount of bail at $20,000.

Reversed, and bail granted.


text:
    HAYES v. STATE.
    (No. 5078.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    Bail <§=»65 — Appeal—Recognizance—SUFFICIENCY.
    An appeal will be dismissed where the recognizance does not recite that appellant was convicted and the punishment awarded.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Morris Hayes was convicted of violation of the local option law, and he appeals.
    Appeal dismissed.
    ®. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction' was for violation of the. local option law. Without investigating the case on the facts, it ¡should he dismissed on motion of the Assistant Attorney General, based on the insufficiency of the recognizance. It recites that appellant stands charged with the offense of selling intoxicating liquors in prohibition territory, and requires Ms appearance before the trial court from day to day and from term to term, and not depart therefrom without leave of that court to abide the judgment of the Court of Criminal Appeals. The defect in the recognizance is that it does not recite: First, that appellant was convicted; and, second, the punishment awarded. The statute requires these matters to be set out in the recogmzance. The motion of the Assistant Attorney General is sustained, and the appeal is dismissed.


text:
    CLAY v. STATE.
    (No. 5066.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    Bail <S=^64 — Appeal—Insufficiency of Re-oo gnizance — Dismissal.
    Where defendant, convicted of selling intoxicants in prohibition territory, recognized February 16th to appear before the district court of the county on the 1st day of July, and there to remain from day to day and term to term of the court to answer the state on a charge by indictment, etc., to abide the judgment of the Court of Criminal Appeals, the appeal will be dismissed for insufficiency of the recognizance, since the statute requires appellant to appear before the trial court from the time of entering into the recognizance from day to day and term to term and not from some future time fixed by the court, while neither the district court nor the Court of Criminal Appeals would be justified in changing or permitting to be changed the terms of the statute as to the time of the appearance of an appellant.
    Appeal from District Court, San Augustine County; W. T. Davis, Judge.
    "Will Clay was convicted of pursuing the business of selling intoxicating liquors in prohibition territory, and he appeals.
    Dismissed.
    E. B. Hendricks, Asst. Atty. Gen., for the State. ,
   DAVIDSON, P. J.

This conviction was for pursuing the business of selling intoxicating liquors in prohibition territory.

The Assistant Attorney General moves to dismiss the appeal because the recognizance is insufficient. The recognizance was entered into at a court which began on the 7th of January and terminated on the 18th of February, 1918. The recognizance was entered into on the 16th day of February, 1918. Among other things, it bound appellant for his appearance before the district court of San Augustine county on the 1st day of July, 1918, being the first Monday in July, 1918, and there remain from day to day and term to term of said court, to answer the state of Texas upon a charge by indictment, etc., to abide the judgment of the Court of Criminal Appeals. The law requires the defendant to enter into a recognizance to appear before the court at which the recognizance is taken from day to day and term to term to abide the judgment of the Court of Criminal Appeals. The appeal was filed in this court on the 17th day of May, 1918. The terms of the recognizance are more onerous than the law requires, and not in accord with the statutory requisites. The court below nor this court would be justified in changing or permitting to be changed the terms of the statute as to the time of the appearance of an appellant. He must appear before the trial court from the time of entering into the recognizance from day to day and term to term, and not from some future time to be fixed by the court. Passing beyond the terms of the law, the time fixed might be such time as it would -be impossible of performance. If power be conceded to go beyond the law one month or six months, then the same reason would justify the fixing of the time for appearance to be extended any length of time. This would defeat the ends and object of the statute.

We are therefore of opinion that the recognizance is not legal, and the appeal should be dismissed; and it is accordingly so ordered.
      @rs>For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


text:
    MASON v. STATE.
    (No. 5057.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    1. Criminal Daw <©=31099(5) — Appeal—Sep- . ARATION OP JURY^-KeVIEW.
    Evidence as. to the separation of the jury cannot be considered where the statement of facts was approved after adjournment, but to have such evidence considered it must be filed during term time.
    2. Criminal Law <©=>603(11) — Continuance —Diligence.
    Where an indictment was returned on August 3, 1917, and defendant’s process for witnesses was not issued until February 4, 1918, and judgment was entered on February 8, 1918, and there was no reason why process could not have issued earlier, and where the testimony was known to defendant either before or at the time of the homicide, the application for continuance did not show diligence.
    3. Criminal Law <©=>1090(19) — Overruling op Motion por New Trial — Bill op Exceptions.
    A bill of exceptions reserved to the action of the court in overruling a motion for ne.w trial setting out an application for a continuance, where no exception was taken to the overruling of the application for a continuance, does not add any strength to it.
    Appeal from District Court, Trinity County; E. A. Berry, Judge.
    Will Mason was convicted of murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

In the statement of facts is found evidence with reference to the separation of the jury. The statement of facts was approved on the 17th of April, the court having adjourned some time before that date. The evidence with reference to the separation of the jury, under a long line of decisions, cannot be considered. In order to have this, character of evidence considered it must be filed during term time.

We are impressed that the .application for continuance does not show diligence. The indictment was returned on the 3d of August, 1917. The process for the witnesses was not issued by the defendant until February 4,1918. The judgment was entered on February 8,1918. This would not indicate diligence. There is no reason shown why process was not issued earlier. The testimony seems to have been known to appellant at least at the time of the homicide, and some .of it prior to the homicide. Exception was not taken to the overruling of the application for continuance, unless it be considered in the bill of exceptions reserved to the overruling of the motion for new trial. The application for continuance is set out in the motion for new trial as well as in the previous part of the record, and the bill was reserved to the action of the court overruling the motion for new trial. The decisions are to the effect that a bill of exceptions reserved to the action of the court overruling the motion for new trial does not add any strength to' it. The evidence, we think, is sufficient to support the conviction.

The judgment will be affirmed.
      •'e^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COLEMAN v. STATE.
    (No. 5050.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.)
    Escape <@=>2 — Defense.
    Defendant, convicted of gambling, and fined and hired under convict bond, who left his employer’s place because he had nothing to eat, and did not know that his employer had made ar-rangejnents with third persons to feed him, was not guilty of a willful escape.
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Leroy Coleman was convicted of escaping from his employer after he had been hired under convict bond, and he appeals.
    .Reversed, and cause remanded.
    Harris & Harris, of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was arrested under article 338, P. C., for escaping from his employer after he had been hired under convict bond. Tire evidence shows he had been convicted for gambling and fined $10, and turned over to tbe county judge in default of tbe payment of tbe fine and costs, which amounted to about $20. Harrington hired appellant in Nacogdoches county and put him to work in Angelina county. Harrington left the camp or place where appellant was at work, and returned to his home in Nacogdoches. The same evening appellant left the camp and returned to Na-cogdoches, where he also resided. Upon reaching Nacogdoches he called Harrington over the phone and talked with him, telling him he was there and came after provisions ; that he had nothing to eat at the camp, and came home to secure provisions. Harrington says he made arrangements with a man and his wife who lived on his property in Angelina county to feed the defendant, but defendant was not aware of tliat fact, and, having nothing to eat, he returned to Nacog-doches. Harrington ordered him to return to Angelina county, which appellant failed to do. He testified that he purposed going in accordance with Mr. Harrington’s wish, and to take some things from Mr. Harrington’s house to the depot, but when ho went to Harrington’s house he had gone to the train, and he, appellant, went to the train to return with Harrington, but reached the depot too late; the train had gone. Appellant l.hen went to another party for whom he had previously worked, and requested him to pay his fine; and' release him from this obligation to- Mr. narrington, and that he (appellant)' would work for him. Witness agreed to>do so- and got in- communication with the county judge. Tliis was acceptable to the county judge, and the amount would have been paid, but the county judge deferred the matter a-little while to see Harrington, in order to ascertain the amount of credit due appellant for tile time that Harrington’ had him, so as-to be correct in receiving the balance of 'the-fine and costs- from the witness. The county judge and the witness both testified to-these-facts.

Without going into other questions suggested by bills of exception, we are of opinion-this evidence does not show a willful escape. That he left Mr. Harrington's place in. Angelina county is conceded, and it seems to be-also- not questioned that he left on account of the fact he had nothing to eat, and was not aware of the fact that Mr. Harrington had’ made arrangements to feed him until his return. He so informed Mr. Harrington, upon, his arrival1 in Nacogdoches. We are of opinion, under this state of facts appellant should not have been convicted. See Carter v. State, 29 Tex. App. 5, 14 S. W. 350.

The judgment will be reversed,, and. (¡because remanded.


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

text:
    SLOAN v. STATE.
    (No. 4928.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    Homicide ⅜=>250 — Evidence—Stjtficiengy.
    In a prosecution for murder by. shooting, evidence held not sufficient to sustain a verdict off guilty.
    Prendergast, J., dissenting4.
    Appeal from District Court,. Johnson- County; O. L. Lockett, Judge.
    Henry Sloan was convicted of murder, and he appeals.
    Reversed and remanded.
    -E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, the jury allotting him 25 years in the penitentiary.

Somebody killed deceased. He was shot. Deceased seems to have been to Dallas with a friend, not the defendant, and came home on the train to Cleburne, left tbe train with this party, and was later found dead on one of the resident streets of Cleburne. Shots were hoard in the neighborhood of where the body was found. Appellant’s home, who lived not far away from where deceased’s body was found, was searched. In his home was found a pistol recently discharged. Appellant was not at home, but was located later at the residence of his brother-in-law and arrested. The brother-in-law testified when appellant arrived at his home he made the statement that he was in trouble with white men; that he had killed a white man. This is the substance of the ease. The statement of appellant does not indicate when or where he killed the white man or when or where the trouble occurred with the white man. The state does not undertake to show otherwise than stated, or that the deceased, who was a white man, was the party indicated by appellant. We are of opinion this evidence is not sufficient to show that appellant killed deceased.

The judgment is reversed and the cause remanded.

PRENDERGAST, J.

(dissenting). While the evidence could have been made clearer and stronger against appellant, I believe it it sufficient to show his guilt.
      <§=For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes.


text:
    BENNETT v. STATE.
    (No. 4757.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    1. Criminal Law <©=>1018 — Appeal—Jurisdiction-Appeal prom Corporation Court op Texarkana.
    Under Sp. Acts 30th Leg. c. 104, incorporating the city of Texarkana as a city of the first class, sections 131-144, creating within the city a corporation court, giving it concurrent jurisdiction with justice courts and the county court of the county in all criminal cases, conforming the jurisdiction of the county court thereto, authorizing appeals from the corporation to the county court, and giving right of appeal to the Court of Criminal Appeals where the fine imposed in the county court exceeded $100, and Sp. Acts 31st Leg. c. 96, replacing section 144 by providing that the right of appeal from the corporation court, whether conviction be had for violation of a city ordinance or for a law of the state, was expressly restricted to the Court of Criminal Appeals, and the right of appeal taken from the county court, and under Sp. Acts 33d Log. c. 65, replacing section 144 entirely by providing that from every conviction from the corporation court of Texarkana, where a fine in excess of $25 has been imposed, there shall be a right of appeal, but only to the Court of Criminal Appeals, all appellate jurisdiction from the corporation court of Texarkana is taken away from the county court, and where the fine imposed in the corporation court does not exceed $25, there is no appeal, the judgment being made final, •but where the fine exceeds $25, exclusive appellate jurisdiction is in the Court of Criminal Appeals.
    2. Criminal Law <©=>1005 — Right oe Appeal prom Corporation Court — Restriction by Legislature — Constitution.
    Under Const, art. 5, §§ 5, 16, the Legislature had the right, in regulating appeals from the corporation c-ourt of Texarkana, to restrict appeals to cases where the fine imposed was more than $25, and to prevent appeals when less than that sum.
    Appeal' from Bowie County Court; J. B. Lytal, Judge.
    Ethel Bennett was convicted of vagrancy, and she appeals.
    Affirmed.
    T. N. Graham and Sid Crumpton, both of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was prosecuted in the corporation court of Texarkana for vagrancy under the state law, was found guilty, and fined $10. She attempted to appeal to the county court, but upon motion of the state’s attorney the case was dismissed because the county court had‘no jurisdiction of the appeal. The sole question in the case is whether or not the county court had jurisdiction of the appeal. If it did, the case must be reversed; if it did not, it must be affirmed.

By a special act of the Legislature approved May 2, 1907 (page 823 et seq.), the city of Texarkana, as a city of the first class with inhabitants of over 10,000, was incorporated. By sections 131 to 144, inclusive, there was created within said city a corporation court thereof and it was given concurrent jurisdiction within its corporate limits with justice of the peace courts and the county court of said county in all criminal cases arising under the criminal laws of the state, and the jurisdiction of the county court was conformed thereto, and all laws in conflict therewith were repealed. By section 144 appeals from said corporation court to the county court were authorized, and where the fine imposed in the county court exceeded $100, the right of appeal to this court was given.

By a special act approved March1 22, 1909 (page 726), section 144 of the act of 1907 was expressly replaced by the enactment of that section, by which it was provided that the right of appeal from the corporation court, whether conviction be had for violation of a city ordinance or for a law of the state, was expressly restricted to this court, and the right of appeal was thereby taken from the county court. Then again by special act approved March 20, 1913 (page 232), section 144 of the act of 1909 was replaced entirely, whereby it was expressly enacted:

“From every conviction had in the corporation court of the city of Texarkana, Texas, where a fine in excess of $25.00 has been imposed, there shall be a right of appeal, whether such conviction be had under a prosecution for a violation of an ordinance of the said city, or a law of the state; but such right of appeal shall lie only to the court of Criminal Appeals of Texas; and all appeals [shall,] accordingly be returnable to the Court of Criminal Appeals of Texas, and not otherwise.”

By these several acts it is seen that clearly all appellate jurisdiction from said corporation court was expressly taken away from the county court, and it was denied any appellate jurisdiction from said corporation court. And it is seen that, where the fine imposed in the corporation court did not exceed $25, appeal to any court was prohibited, and such judgment made final, but where the fine exceeded $25, then exclusive appellate jurisdiction was given to this court.

The earlier decisions of this court show that there was a difference of opinion among the judges of this court as to whether or not the Legislature, under the various constitutional provisions, had the right and power to create a corporation court in any of the cities of this state and give it jurisdiction to try any case against the criminal laws of this state. But since the adoption of the amendment to the judiciary article of the Constitution 'September 22, 1891, it was expressly held by our Supreme Court that the Legislature clearly had such power and authority, and such has been the uniform holding of this court since the decision in Ex parte Abrams, 56 Tex. Cr. R. 465, 120 S. W. 888, 18 Ann. Gas. 45. Harris County v. Stewart, 91 Tex. 133, 41 S. W. 650, May v. Finley, 91 Tex. 352, 43 S. W. 257, and other decisions of the Courts of Civil Appeals; Abrams Case, supra; Fricks v. State, 58 Tex. Cr. R. 101, 124 S. W. 922; Ex parte Clark, 56 Tex. Cr. R. 494, 120 S. W. 892; Ex parte Parker, 56 Tex. Cr. R. 544, 120 S. W. 892; Ex parte Parker, 56 Tex. Cr. R. 544, 120 S. W. 892; Ex parte Wilbarger, 41 Tex. Cr. R. 514, 55 S. W. 968; Ex parte Hart, 41 Tex. Cr. R. 581, 56 S. W. 341; Bergeron v. County Court, 76 Tex. Cr. R. 150, 174 S. W. 365. The Abrams, Fricks, Clark, and the two Parker Cases, supra, were all cases arising under said sections of the charter of the city of Texarkana. There is no necessity of discussing the question or the authorities. The Legislature of the state since the amendment of the judiciary article, and even before then, and said decisions, have repeatedly and in many instances, unnecessary to cite, passed laws taking from the county court all criminal jurisdiction and conferring it upon other courts, conforming the jurisdiction of the various court thereto. No question is now made of the validity of all such statutes.

Article 5, § 5, expressly confers upon this court appellate jurisdiction coextensive with the limits of the state when criminal cases of whatever grade “with such exceptions and under such regulations as may be prescribed by law.” Article 5, §• 16, of the Constitution prescribes that county courts shall have appellate jurisdiction in criminal cases of which justices’ courts have original jurisdiction “under such regulations as may be prescribed by law”; and then it provides that, where there are appeals from the justices’ courts to the county court when such appeals are provided for, the trial shall be de novo in the county court, and then appeals from that trial in the county court to this court “with such exceptions and under such regulations as may be prescribed by law.” In said section 16 the Constitution prescribes that there shall be no appeal from trials in the justices’ courts in civil cases where the judgment shall not exceed $20, and does not commit to the Legislature, as it does in criminal cases, the right to regulate appeals in such small judgments, “under such regulations as may be prescribed by law.” This court ex-; pressly held in Cornelius v. City of Dallas, 37 Tex. Cr. R. 309, 39 S. W. 679, that the provision of the charter of the city of Dallas which provided that “no appeal shall lie from this [city court] unless the fine imposed is $20 or more, and then only to the Court of Appeals [this court], was valid,” and that the Legislature had the authority to impose this restriction upon the right of appeal from convictions had in the city court. Exactly the same holding was made by Judge Hurt in George v. City of Dallas, 39 S. W. 1118. It is therefore clear that under the Constitution and decisions the Legislature had the right in regulating appeals from said corporation court of Texarkana to restrict appeals to eases where the fine imposed was more than $25 and to prevent appeals when less than that sum, as it clearly did do in the said provisions of the charter of Texarkana.

Therefore the county court was correct in holding that it had no jurisdiction and in dismissing the appeal.

The judgment is affirmed.
      <©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MILLER v. STATE.
    (No. 5062.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    Ceiminal Law <⅜=»1090(1) — Appeal—Bill of Exception — Statement oe Facts — Necessity foe.
    Wkez’e there is no statement of facts or bill of exceptions, there is nothing for appellate court to review.
    • Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    Grant Miller was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction for an assault with intent to murder, but without a statement of facts or any bill of exceptions. In the absence of these nothing is presented which can be reviewed.

The judgment is affirmed.


text:
    CARRELL v. STATE.
    (No. 4975.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    Ceiminal Law ®=»1023(9) — Review — Sentence.
    The Court of Criminal Appeals has no jurisdiction of an appeal where no sentence has been pronounced, and an opinion on appeal handed down before sentence had been pronounced will be withdrawn and the appeal dismissed.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    W. J. Oarrell wag convicted of crime, and he appeals.
    Appeal dismissed.

      F. E. Johnson, of Cleburne, D. W. Odell, of Ft. Worth, and S. C. Padelford, 0⅛ Cle-burne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

On a former day of the term an opinion was written herein disposing of the case. Upon motion for rehearing it is called to our attention for the first time, and which was not done before the former opinion was written, that sentence had not been passed upon defendant. Under our statute this court would not have jurisdiction in this character of case until after the final judgment or sentence had been pronounced.

An opinion rendered where jurisdiction has not attached would not be authorized, and it will therefore be withdrawn, and the case will stand for disposition upon appeal, if one should be taken, after sentence has been pronounced. The appeal, as the record now stands, will be dismissed for want of final sentence.

MORROW, J., not sitting.
      (&^>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RAMOS v. STATE.
    (No. 5053.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.)
    Criminal Law <§=>1159(3)— Review — Find-ins on Conflicting Evidence.
    The denial by defendant, charged with a violation of the local option law, of the testimony of the state’s witness that he bought a quart and one-half or a quart and a pint of whisky from defendant and paid him $2.75 for it, formed an issue of fact for the jury’s solution, which the Court of Criminal Appeals is not justified in reversing.
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Didie Ramos was convicted of violating the local option law, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted o'f violating the local option law; his punishment being assessed at a fine of $62.50 and 20 days’ imprisonment in the county jail.

There are no legal questions presented for revision. It is contended, however, that the evidence is not sufficient. The state’s testimony shows a sale by the defendant to the alleged purchaser ' Collins. Collins testified that he bought a quart and a half or a quart and a pint of whisky from appellant and paid him $2.75 for it. Appellant denies the transaction. This formed an issue of fact for solution by the jury. Under this condition of the record we would not feel justified in reversing the case.

The judgment therefore will be affirmed.


text:
    BOLIN v. STATE.
    (No. 5072.)
    (Court of Criminal Appeals of Texas.
    June 19, 1918.)
    1. Criminal Law <§=3361(1) — Homicide <§=> 192 — Conversation — Ecxplanatoky Evidence.
    In prosecution of defendant for assault with intent to murder his son-in-law, where a conversation had just preceded difficulty between defendant and victim about victim’s wife and his desire to desert her was in evidence, evidence that victim had married defendant’s daughter to avoid a prosecution for seduction and that he had undertaken to produce an abortion upon her was admissible as explanatory of the conversation and as bearing upon question of who began the difficulty.
    2. Homicide <§=>190(7) — Assault to Murder — Uncommunicated Threats oe Victim — Admissibility.
    It is always permissible to prove uncom-municated threats when the question as to who began the difficulty is an issue.
    3. Homicide <§=>310(2) — Assault to Murder —Instructions. •
    In prosecution for assault to murder, evidence held to require a charge on aggravated assault, although defendant relied on self-defense.
    4. Criminal Law <§=>982 — Witnesses <§=>337 (6) — Impeachment—Suspending Sentence.
    In prosecution for assault to murder, evidence that ten years before the assault defendant had a difficulty in another-' state, shooting a man, was too remote and inadmissible on question of defendant’s right to suspension of sentence and to impeach defendant’s reputation for veracity.
    5. Criminal Law <§=>982 — Witnesses <§=>337 (6) — Impeachment—Suspending Sentence.
    Evidence that, four or five years before assault to murder, defendant and another had a fight at a baseball game and that both pleaded guilty in justice court and paid a fine, was inadmissible to impeach defendant’s veracity or to contravene his plea for suspended sentence.
    Appeal from District Court, Falls County; W. A. Patrick, Judge.
    F. R. Bolin was convicted of assault with intent to murder, and appeals.
    Reversed and remanded.
    Nat Llewellyn, of Marlin, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault with intent to murder and allotted two years in the penitentiary.

This case arose out of trouble between a father-in-law and son-in-law. The son-in-law, J. H. Barham, had been working for appellant in his barbershop, appellant owning the barbershop, and his son-in-law was an employs. There were four chairs in the shop. Prosecuting witness Barham had married appellant’s daughter under circumstances that will be mentioned later. He had been thinking of leaving Marlin where they were living and he was working and going to Gainesville. This seems to have been talked about in the family, and, on Sunday evening before this shooting occurred Monday morning, Barham had spoken to appellant’s wife with reference to his leaving and requested her to ask appellant’s permission for Ms (Barkam’s) wife to remain at appellant’s house wlrile lie was gone. She told Barham it was useless; that they had talked this matter over with appellant before, and he declined to comply with the request. She intimated to him appellant thought, or it was believed, he was trying to leave his wife at the home of her father with a view of deserting her. This brought some further conversation between appellant’s wife and Barham, and he informed her that he could leave his wife whenever he got ready, and that his attorney had so informed him, and Barham made threats to the effect that he would go if he wanted to, there was nothing to stop nim, and if he so determined he would kill the officers, the sheriff and attorneys, etc. Appellant was informed by his wife that night of what had occurred. The next morning he went to his barbershop, and, while working in the back part of it cleaning away some rubbish, Barham came, and a conversation occurred with reference to his going away, and appellant objected to his going without taking his wife, and informed him that he had been trying to get rid of his wife and put her on him ever since they had married, or words to that effect. Barham did not agree with appellant’s statement of this altogether, but the conversation was a little warm, and appellant told him that he must take his wife with him if he went, and upon Barham informing him of his want of means to do so appellant offered him the money to take her, and stated that lie could not leave her at his house under the circumstances; that he had been trying to get away from her ever since he had married her. The conversation here ended and the parties went into the barbershop, and Barham’s testimony is to the effect that he heard defendant mumbling something which he could not understand, and that he told appellant “if he did not hush tie would kick his damned-,” some of the witnesses said, further “out of the shop” ; that deceased stepped to his drawer in front of his barber chair which was partially open, and put his hand either partly or wholly in the drawer. When this occurred, appellant opened his drawer and jerked his pistol, and the parties advanced upon each other. Appellant shot Barham. There is some conflict as to what occurred from the time the two men approached their drawers until the shooting ceased.

Under this condition of the record, appellant offered to prove that Barham had married his daughter to avoid a prosecution for seduction; that he had been arrested charged with that offense, and married to avoid further prosecution, and his idea seems to have been that since that time Barham had been trying to leave his wife, and that the matter discussed between (them was with reference to these family troubles. He also proposed to prove that after his marriage Barham had undertaken to produce an' abortion on his wife. He also proposed to prove by Mrs. Barham that, on the morning preceding the difficulty when Barham left home to go to the barbershop, his wife begged him not to have any trouble with appellant. It is unnecessary to detail the conversation. Barham did not agree with her and said he was going to talk with appellant, and if her father did not look out he was going to give him a cursing. This latter threat was not communicated to defendant prior to the difficulty. The other threats seem to have been communicated. We are of opinion that the offered testimony with reference to these conversations between appellant and Barham, having reference to former troubles about the girl and the seduction and the (abortion, etc., should have been admitted as explanatory of the conversation which occurred between them at the time or just preceding the difficulty. What occurred between them at the time of the conversation about the wife and the' desertion of her and kindred matters having been introduced before the jury as part of the trouble at the barbershop, the other matters should have gone to the jury as explanatory of the conduct of appellant and the relations between the parties and the ill will. It was also admissible as bearing upon the question as to who began the difficulty. It is always admissible to prove uncommunicated threats when the question as to who began the difficulty is an issue. Barham having testified to the facts the record shows he did, the testimony oí Mrs. Barham would have shed light upon the condition of Barham’s mind and his relation to his father-in-law and his purpose to leave as incidental to the question as to who began the difficulty. It therefore is admissible testimony. There are several bills of exception bringing up these matters, but it is unnecessary to discuss them, in detail. We think the evidence of these previous matters, and especially the threats, were admissible to throw light upon the question as to who began the difficulty, and what it would mean viewed from appellant’s standpoint. The communicated threats were introduced, but a charge was not given in that connection.

Exception was reserved to the charge for several reasons; among others, that the facts called for a charge on aggravated assault. Such a charge was not given, and we think required. It seems that the court did not so charge the jury for the reason that appellant relied upon self-defense. The testimony of the defendant is not always the criterion of his rights, legally speaking. The facts of the case, whether from the state or the defendant’s side, raise the issues upon which the jury should be instructed. It is immaterial from what source comes the'testimony. If it is in the record and favorable to defendant, the law should be appropriately given.

Appellant filed a plea asking for a suspension of sentence. He also put in evidence Ms general reputation as being a quiet and peaceable man. Over objection, tbe state was permitted to show that' about 16 years or more before tbis trouble appellant bad a difficulty in tbe state of Mississippi, shooting a man in tbat state. Appellant objected to tbis testimony as being too remote. We think this should have been sustained. It should have been sustained viewed either from the standpoint of impeaching his reputation for veracity, or as contravening his right to have the suspended sentence.

The state also introduced evidence to the effect that, while appellant lived in Comanche county four or five years prior to this trouble, he had a fight at a baseball game with another party, and he and the other party pleaded guilty and paid a small fine in the justice court. The writer is of the opinion that this testimony ought not to have gone to the jury. It seems to have been a little casual matter that came up incidentally on the playgrounds, resulting in a fist fight, and both parties pleaded guilty to it. This could not be used to impeach his veracity, and we are of opinion that it is not such a violation of the law as could be used in contravention of his plea for suspended sentence.

The judgment will be reversed, and the cause remanded.
      g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and IndexeB


author: WILLSON, O. J.

text:
    UNITED STATES FIDELITY & GUARANTY CO. v. HUFFMASTER.
    (No. 1967.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 2, 1918.
    Rehearing Denied May 9, 1918.)
    Attoeney and Client <£xol26(l) — Failure to Pay ovee Money — Motion eoe Judgment.
    A company which guaranteed that a lawyer would promptly turn over to the party entitled to receive them any moneys which he might recover and receive, on account of the lawyer’s failure to pay over a collection to the collecting agency which placed the account in his hands or to the owner of the account, whereby it was cast in judgment on its guaranty, was not entitled to invoke against the lawyer Vernon’s Sayles’ Ann. Civ. St. 1914, art. 332, providing that each attorney who receives money for his client and refuses to pay it over on demand may be proceeded against by motion of the party injured or his attorney, since payment by the guarantor of the debt of his principal does not operate as an equitable assignment to the guarantor by the creditor of the debt and all its incidents, but in Texas an implied promise is raised by law on the part of the principal to reimburse the guarantor the sum he was bound to pay to satisfy the debt.
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Motion for judgment under Vernon’s Say-les’ Ann. Civ. St. 1914, art. 332, by the United States Fidelity & Guaranty Company against Ross Huffmaster. From judgment dismissing the proceeding, movant appeals.
    Affirmed.
    Briefly stated, the allegations in appellant’s motion were as follows: That in its business as a general guaranty company appellant guaranteed to its customers and the general public who might intrust business to appellee as a practicing lawyer that he “would promptly turn over to the party entitled, to receive it any moneys that he as such practicing lawyer might* recover and receive into his hands”; that about January 1, 1915, the F. Mayer Boot & Shoe Company placed a claim it had against “Jones, Incorporated,” for $300 in the hands of the Snow-Church Company, a collecting agency, who, relying on appellant’s guaranty of appellee, placed the claim in his hands for collection; that July 19, 1915, by agreement of the parties, judgment was rendered in favor of the boot and shoe company for $237.63 in a suit commenced and prosecuted by appellee as its attorney against said “Jones, Incorporated” ; that October 15, 1915, appellee collected the amount then due, to wit, $243.13, on said judgment; that appellee “was in duty bound to turn over to said Snow-Church Company or to said F. Mayer Boot & Shoe Company” said $243.13, less $16.21 he was entitled to retain for his services in making the collection; that, though often requested to do so, appellee had never turned over said sum or any part thereof; and that because of his failure to do so appellant, in compliance with its guaranty, had had to pay the boot and shoe company the sum to wit, $226.92, appellee should have paid to it. “Wherefore” quoting from the pleading:
    “This plaintiff brings this motion before the court and moves the court to render judgment against the said defendant, Ross Huffmaster, for the amount of $226.92, with legal interest thereon from October 15, 1915, up to the date of judgment herein, together with damages in the sum of 20 per cent, on the principal sum collected, to wit, $45.38 additional as damages provided for under article 332 of Vernon’s Sayles’ Texas Civil Statutes, and for costs of this motion.”
    The article of the statutes referred to is as follows:
    “Each attorney who receives or collects money for his client, and refuses to pay over the same when demanded, may be proceeded against by motion of the party injured or his attorney before the district court of the county in which such attorney usually resides, or in which he resided when he collected or received the money ; notice of which motion with a copy thereof shall be served on such party at least five days before the trial thereof; and, in case the mótion be sustained, judgment shall be rendered against the defendant for the amount by him collected or received, with legal interest, and also not less than ten nor more than twenty per cent, damages on the principal sum.”
    ■ After sustaining a general demurrer to tbe motion, appellant refusing to amend same, tbe court below dismissed tbe proceeding, on tbe ground that it was without jurisdiction thereof. The action of the court is assigned as error.

      Woods <& Morrow, of Kaufman, and Lewis Inerrarity, of Baltimore, Md., for appellant. W. Dorsey Brown, Ross Huffmaster, and Terry & Brown, all of Kaufman, for appellee.
   WILLSON, O. J.

(after stating the facts as above).

It will be noted that tlie power conferred upon the district court by the statute set-out in the statement above to compel an attorney to pay over money collected for his client, summarily and without reference to the amount thereof, is to be exercised only when invoiced “by motion of the party injured or his attorney.” By “the party injured” the lawmakers must have meant the party entitled to demand and receive of the attorney the money collected by him, as such party alone could be injured by the refusal of the attorney to pay over the money. The party entitled to demand and receive money collected by an attorney for his client is the client or his legal representative or assign. In the instant case appellant was not appellee’s client, nor was it the legal representative or assignee of that client. It follows that appellant was not entitled to invoke the statute, and that the court below did not err when he sustained the demurrer and dismissed the proceeding.

Appellant’s contention to the contrary is on the theory that, by paying to the boot and shoe company, as it was bound to, the money appellee should have paid, it became subro-gated to the rights and remedies, including the one to proceed by motion, possessed by the boot and shoe company against appellant. There would be merit in the contention if in this state, as in other jurisdictions payment by the guarantor of the debt of his principal operated “as an equitable assignment” to the guarantor by the creditor “of the debt and all its incidents.” 37 Oyc. 412. In this state the right of action of the guarantor who has paid the debt of his principal is not predicated upon the doctrine of subro-gation, but upon “an implied promise raised by law” on the part of the principal to reimburse the guarantor the sum he was bound to pay to satisfy the debt. Faires v. Cock-erell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528; Lacey v. O’Reilly, 40 Tex. Civ. App. 283, 89 S. W. 640; Whitaker v. Sanders, 52 S. W. 638; Halbert v. Paddleford, 33 S. W. 592; Scott v. Rowland, 14 Tex. Civ. App. 370, 37 S. W. 380.

There is no error in the judgment, and it is affirmed.
      @^>Foc other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes