author: PRENDERGAST, P. J.

text:
    BEESING v. STATE.
    (No. 3816.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.

    Rehearing Denied Dec. 1, 1915.)
    1. Criminal Daw @=>829 — Instructions— Requests — Instructions Already Given.
    1 There is no error in refusing a requested charge affirmatively presenting accused’s defense, where such a charge has already been given.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dee. Dig. @=>829.]
    2. Witnesses @=>37 — Character — Knowledge of Witness.
    In a prosecution for carrying weapons, it is not error to exclude testimony of a witness as to the defendant’s general good reputation, where it does not appear that the witness knew of such reputation.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 80-87; Dec. Dig. @=>37.]
    3. Criminal Daw @=>377 — Evidence—Character Evidence — Time—Carrying Weapons.
    It is not error to exclude evidence of good character of the defendant in a prosecution for carrying weapons at the time of trial, but such evidence can only relate to the time of the commission of the offense.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 836, 837, 840; Dec. Dig. @=>377.]
    4. Criminal Daw @=>377 — Evidence—Character Evidence — When Admissible.
    Evidence of good character of accused is admissible only when guilty knowledge or criminal intention is of the essence of the offense charged.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 836, 837, 840; Dec. Dig. @=>377.]
    5. Criminal Daw @=>1091 — Record on Appeal-Bill oe Exceptions — Definiteness.
    A bill of exceptions stating that defendant offered to prove by his wife upon his return home on the day he was charged with carrying a pistol that she told him a Mexican, Gossio, had accosted her on the street and said to her, “Hello, kid, where are you going?” and followed her home, that defendant then told her he had just met the Mexican and pulled a bottle on him and he ran, and that the two bottles of beer was all she saw in his pockets, and she saw no pistol about him and that she had opportunity to observe him, is too indefinite and vague to require consideration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. &wkey;1091.]
    6. Criminal Daw <&wkey;413, 418 —Carrying Weapons — Evidence—Admissibility.
    Evidence of what defendant’s wife told him and he told her after commission of the offense charged, is inadmissible.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 928-935, 968-972; Dec. Dig. &wkey;>413, 418.]
    7. Weapons &wkey;>17 — Carrying Weapons — Evidence — Admissibility.
    Testimony of defendant’s wife that at a time after the commission of the offense, when defendant returned home, she saw no pistol about him, and that all she saw in his pockets was two' bottles of beer, was inadmissible.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. §§ 20, 22-33; Dec. Dig. &wkey;17.]
    8. Witnesses <&wkey;37 — Carrying Weapons — Evidence — Admissibility.
    It is not error to exclude testimony of defendant’s wife as to whether he had a pistol on his return home, where she says she had an opportunity to observe him but does not say that she did in fact observe him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 80-87; Dea Dig. &wkey;87.]
    Appeal from Potter County Court; T. W. McBride, Judge.
    Gill Beesing was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    A. M. Mood, of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for unlawfully carrying a pistol, and fined $100.

Cossio, a Mexican, swore positively that in Amarillo, while he was in the- street talking to other Mexicans, appellant came by, stopped, held in his hand and poked a pistol at his chest, and, after standing there a minute or two, he, the witness, backed off and ran. He was positive that it was a pistol appellant had in his hand and poked at him. Mr. Rasmuson saw what appellant did at the time, and swore positively it was a pistol appellant presented towards Cossio at the time. Mr. Ellison, in effect, swore the same thing. Appellant swore it was not a pistol he presented and pointed at Cossio, but a beer bottle. He swore positively he had no pistol on the occasion.

The court, in his charge, required the jury to believe beyond a reasonable doubt that appellant had a pistol on the occasion, before they could convict him, and that the burden was on the state, the presumption of innocence, and, if they had a reasonable doubt, to acquit. Also, in a separate paragraph, that, if they believed from the evidence appellant, at the time, had something in his hand that appeared to be a pistol, but if they had a reasonable doubt if it was a pistol, to acquit him. This clearly presented appellant’s only defense affirmatively, and made it unnecessary to give his special charge, in effect submitting the same thing.

Appellant has a bill complaining that he offered to prove by his sister, Mrs. Benton, his general good reputation as a law-abiding man, which he contends the court erroneously excluded. The bill in no way shows that Mrs. Benton knew his general reputation in this particular. By all the authorities, this was essential before she would be permitted to testify what it was. Again, the bill does not show that he offered to prove by her his said good reputation at the time, or before, he was charged with this offense, but at the time of the trial, which was some time subsequent. Again, it is only when guilty knowledge or criminal intention is the essence of the offense that such evidence is admissible. This court, in Jones v. State, 10 Tex. App. 558, and many other cases, established this rule, saying:

“It must be borne in mind, however, that it is not in all public prosecutions for breach of law that evidence of a party’s general character is admissible. The rule seems to be that whenever, • in a criminal prosecution, guilty knowledge or criminal intention is of the essence of the offense, evidence of the general character of the party is relevant to the issue and therefore admissible; but when a penalty is claimed for the mere act, irrespective of the intention, it is not. 3 Greenl. Ev. § 26.”

In this case appellant swore positively he had no pistol. This court has repeatedly held:

“The question of intent to violate the law for carrying a pistol does not apply, because the intention to violate the law is not made an element of the offense. The only cases when the question of good faith and intent of the appellant in a pistol case applied, as held by this court, is when he is an officer, or honestly believes he is an officer, and carries the pistol under such circumstances so believing, when it turns out he is not, under the law, an officer.” Farris v. State, 64 Tex. Cr. R. 530, 144 S. W. 249; Culp v. State, 40 S. W. 969; Clopton v. State, 44 S. W. 173; Cordova v. State, 50 Tex. Cr. R. 353, 97 S. W. 87; McCallister v. State, 55 Tex. Cr. R. 392, 116 S. W. 1154.

The only other error urged by appellant is as to the excluded claimed evidence of his wife. His bill, presenting this question, states, he “offered to prove” by his wife upon his return home on the day he was charged with carrying a pistol, that she told him said Cossio had accosted her on the street in a suggestive manner, and said to her, “Hello, kid, where are you going?” and followed her home. That appellant then told her hq had just met the Mexican and pulled a bottle on him and he ran, and that the two bottles of beer was all she saw in his pockets, and she saw no pistol about him, and that she had opportunity to observe him.

The state objects to this bill, claiming it is too indefinite and vague to require consideration, and cites White v. State, 32 Tex. Cr. R. 635, 25 S. W. 784, Castlin v. State, 57 S. W. 828, and section 48, Branch Crim. Law. In the White Case, Judge Davidson, for this Court, held:

“A bill of exceptions recites that defendant ‘offered to prove by Walter Delaney, the little son of William Delaney, whether he and his father, William Delaney, had ever talked with one another about threats testified to have been made in the icehouse by Jim White to William Delany, in his, Walter Delaney’s, presence, about one week before Bob Ford was hurt.’ Objections interposed by the state were sustained. This bill is too indefinite to be considered. It should have stated the evidence expected to be elicited from the witness, as well as the object or purpose of seeking it. Davis v. State, 14 Tex. App. 645; May v. State, 25 Tex. App. 114 [7 S. W. 588]; Walker v. State, 19 Tex. App. 176; Counts v. State, 19 Tex. App. 450; Willson’s Crim. Stats. §§ 2368, 2516.”

In the Castlin Case, Judge Brooks, for the court, held:

“Bill 3 is defective in that it states that appellant ‘offered to prove by witness McHale,’ but does not show that said facts could have been proved, or that, it witness was permitted, he would have testified to said facts. White v. State, 32 Tex. Cr. R. 625 [25 S. W. 784]; Moore v. State [40 Tex. Cr. R. 439] 50 S. W. 942.”

These authorities sustain the state’s contention herein. Besides, what she told appellant, and he told her, after the offense, would not be admissible. Nor that she then saw no pistol about him, and that all she saw in his pockets was two bottles of beer. It will be noted she said she “had opportunity to observe him,” but she does not say she, in fact, did observe him. The lowest punishment was assessed herein, and we think, under no circumstances, should this case be reversed because of anything shown in said bill.

The judgment is affirmed.
      <@u=]Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      igz^jPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    HARPER v. STATE.
    (No. 3780.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    Criminal Law <&wkey;1099 — Appeai>-Rbcokd.
    Where no 20-day order was entered authorizing the filing of a statement of facts and bills of exception after adjournment of the county court where defendant was tried, no bill was filed, and the statement of facts was not filed until the 1st of July, the county court having adjourned on the 5th of June, and where the rec.ord contained nothing to indicate why the filing of the statement of facts was delayed, no question was presented for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <&wkey;> 1099.]
    Appeal from Knox County Court; E. R. Howell, Judge.
    Charles Harper was convicted of using abusive language, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of using abusive language; his punishment being assessed at a fine of $5.

This case was tried in the county court, which adjourned the 5th day of June. No 20-day order was entered up authorizing the filing of a statement of facts and bills of exception after adjournment. There is no bill of exceptions in the record, and the statement of facts was not filed until the 1st of July. The record contains nothing indicating why the filing of the statement of facts was delayed. As the record is presented, the statement of facts cannot be considered. Without this there is nothing in the record that can he revised.

The judgment is affirmed.
      (gxvjFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDHRGAST, P. J.

text:
    FIELDER v. STATE.
    (No. 3840.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Criminal Law <&wkey;1086 — Appeal and Error — Record—Showing op Recognizance or Imprisonment — Necessity.
    Where on appeal from conviction of crime the record fails to disclose that defendant entered into any recognizance or is in jail pending appeal, the Attorney General’s motion to dismiss on the record will be sustained.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2770, 2772, 2794; Dec. Dig. <@=51086.]
    2. Criminal Law <&wkey;1114r-AppEAL and Error-Necessity por Exceptions or Statement.
    In the absence of bill of exceptions or statement of facts, no question is raised for' review on appeal from a conviction of crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. <©=» 1114.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Willie Fielder was convicted of unlawfully carrying a pistol, and he appeals.
    Appeal dismissed.
    O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDHRGAST, P. J.

Appellant was convicted for unlawfully carrying a pistol. He waived a jury, and the cause was tried before the court.

The record nowhere discloses that he entered into any recognizance, or that he is in jail, pending this appeal. The Assistant Attorney General’s motion to dismiss the appeal, with the record as stated, must therefore be sustained. Young v. State, 8 Tex. App. 81; State v. Fatheree, 23 Tex. 202.

However, even if the record had shown that he was in. jail, or had duly entered into recognizance, his appeal would avail him nothing, for there is neither a bill of exceptions nor a statement of facts. In the absence of these, nothing is raised which could be reviewed anyway.

The appeal is dismissed.


text:
    JACKSON v. STATE.
    (No. 3837.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    Homicide <&wkey;276 — Justification—Self-Defense — Question fob! Juby.
    Evidence held to require question, whether the defendant killed deceased under a reasonable belief, induced by his words and acts, that it was his purpose and intent to commit murder, rape, or robbery upon her, which, under Pen. Code 1911, art. 1105, would justify the killing, to be submitted to the jury.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 569; Dee. Dig. <§r^276J
    Appeal from District Court, Gonzales County; M. Kennon, Judge.
    Mariah Jackson was convicted of manslaughter, and she appeals.
    Reversed and remanded.
    Horn berg & Duncan, of Gonzales, for appellant. C. C. McDonald, Asst Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted for the murder of Mike Kanerek, tried, and convicted of manslaughter.

The evidence was sufficient to require the court to submit both issues, murder and manslaughter; but it submitted only those two issues.

The appellant objected to the charge of the court, because he failed and refused to submit the issue of justifiable homicide. In addition to objecting to the court’s charge, she also requested some special charges submitting that issue, all of which the court refused. It may be that the jury would not have acquitted appellant on that ground, but, in our opinion, the evidence was sufficient to require the court to submit the issue to the jury in a proper charge.

The evidence shows that the appellant was a woman living in a house in the country alone. She testified, in substance, that she was sitting alone in her house reading about half past 9 o’clock at night, when some one at her gate, which was only four or five steps from her house, hollowed, “Hello!” She made no response, when he twice again hollowed, “Hello!” She then went to her window, pulled aside the curtain at a broken pane, and looked out through it. She saw a man standing at her gate. She asked him who he was and what he wanted. He did not tell her his name nor who he was. He first said he wanted to come in. That she thought it was a Mexican, or maybe a negro; she did not know who. She told him that he was not coming in, and he said that he was; and that he made an attempt to come in; and, when he did so, she got a gun, poked it through the window pane, and shot at him. She did not then know that she had hit or killed him. That, when she shot, she rushed out of the back door and went to a neighbor’s in the neighborhood. She further testified that her front' gate was fastened at the bottom with a wire. In addition, near the top was an ordinary wooden latch, and at the top she had it fastened by a bucket hoop over the post and a picket of the gate. That, when he said he was coming in, he took off the bucket hoop and threw it aside. That he then stooped down, as she thought, to unfasten, and (from her standpoint) the inference was that he did unfasten, the gate1 at the bottom; and, as he raised up to come in, as she thought, she shot.

Our statute (P. C. art. 1104) says that homicide is permitted in the necessary defense of person or property under certain circumstances. The next article provides that it is permitted when inflicted for the purpose of preventing the offense of murder, rape, robbery, and other felonies enumerated. In enumerating these circumstances, the first subdivision of this article states that it must reasonably appear by the acts, or words coupled with the acts, of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named; and the killing must take place where the person killed was in the- act of committing the offense, or after some act done by him showing evidently an intent to commit such offense. We think that, from the testimony of the appellant herself, the jury were authorized to believe that, from the words and acts of the deceased, she could reasonably conclude it was his purpose and. intent to commit rape upon her, if not murder or robbery; and that the killing took place after some act done by him showing evidently an intent to commit such offense. Or, at least, that her evidence sufficiently raised the question so as to authorize and require the court to submit that issue to the jury for a finding.

No other question is raised requiring discussion.

For the error of the court in refusing to submit the question of justifiable homicide under the statute and evidence, this case must be reversed and remanded.
      <S&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    HUGHES v. STATE.
    (No. 3829.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Criminal Law &wkey;>982 — Trial—Instructions.
    Where defendant, charged with theft, filed application for suspension of sentence, there was no necessity for the court to charge that the filing of the plea creates no presumption of guilt, unless the state contended that such was the case.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dee. Dig. &wkey;> 982.]

      2. Criminal Law @=>775 — 'Trial—Refusal oj? Instruction on Alibi.
    In a prosecution for theft, where defendant did not testify as to his whereabouts on the night of the crime, except that he was not at a drug store near the scene where the state’s evidence placed him, and the court, in addition to giving the usual charges on reasonable doubt and presumption of innocence, gave a full charge on circumstantial evidence, to which defendant did not except, also instructing at defendant’s request that if the jury believed that the stolen horse was taken from its owner by a person other than defendant, or if they had a reasonable doubt of the fact, they should acquit, the'refusal of defendant’s request to charge on alibi was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1833-1837; Dec. Dig. @=> 775.]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    T. J. Hughes was convicted of crime, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of a horse from J. W. Hayes, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant filed an application for a suspension of sentence, and the plea was properly submitted to the jury in'the court’s charge. Appellant requested the court to instruct the jury that the filing of the plea creates no presumption of guilt against defendant. There was no necessity to give such charge, as there was no contention made by the state that the filing of such a plea created any presumption of guilt. Had such a contention been made, it would have been proper for the court to have so instructed the jury.

The appellant also requested the court to charge on alibi. The evidence raises no such issue. There is no testimony from defendant as to his whereabouts on the night of the theft. He admits that he rode the horse, for which the stolen horse was traded, into Ft. Worth, and sold the saddle that was stolen at the time of the theft of the horse. He does not undertake to show his whereabouts on the night of the theft, but denies that he was at the drug store of Mr. Mothershed, within three miles of the place where the horse was stolen, on that night. The state’s evidence places him at this drug store, and this would place him in proximity to the place from where the horse was stolen; Mr. Souther positively identified him as the man who traded to him the stolen horse, and says he traded to appellant the horse he rode into Ft. Worth, and which appellant says a man named Noland got him to ride into Ft. Worth. The court gave a full and fair charge on circumstantial evidence, and one to which appellant did not reserve any exception. He also instructed the jury at appellant’s request:

“If you believe from the evidence that the horse in controversy was actually taken from the possession of the witness Hayes by one No-land, or if you have a reasonable doubt of that fact, then you will acquit the defendant.”

In addition, he gave the usual and customary charge on reasonable doubt and presumption of innocence.

The judgment is affirmed.


text:
    JACKSON v. STATE.
    (No. 3724.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Criminal Law @=>1144 — Review — Presumptions.
    Where the record fails to show the evidence upon which. the court ruled, it will be presumed that the ruling was correct, and it cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2730-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. @=> 1144.]
    2. I-Iomioide @=>250 — Evidence — Sufficiency.
    Evidence, in a prosecution for murder, held sufficient to warrant conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. @=>250.]
    3. Homicide @=>300 — Defenses — Self-Defense — Instructions—Sufficiency.
    In a prosecution for murder, instructions that only a reasonable apprehension of death or great bodily injury, as it appeared to the defendant at the time, was necessary to justify the use of all necessary force to protect himself, and that he was not bound to retreat; that if defendant had a reasonable fear of death or great bodily injury because deceased was, or apparently was, drawing a pistol, he should be acquitted ; that if defendant was told by his wife that deceased had used insulting language to her, or if a third person asked his protection from deceased, defendant had the right to order deceased to leave his premises, and to arm himself to prevent deceased’s entering his house, and to use all necessary force to protect himself, even to taking life; and that the jury must view the facts as they appeared to defendant at the time — sufficiently present the issue of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. @=>300.]
    4. Criminal Law @=>829 — Defense — Self-Defense — Instructions—Repetition.
    The giving of such instructions rendered it unnecessary to give defendant’s requested instructions that defendant had the right to use all necessary force to eject deceased from his premises, and that if deceased, on being ordered to leave, did anything, as viewed from defendant’s standpoint at the time, to inflict death or great bodily injury upon defendant, the jury should acquit, since such would be but repetition.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. @=>829.]
    5. Criminal Law ©=>829 — Self-Defense — Instructions — Repetition.
    It was also unnecessary to give defendant’s requested charge that if, in defendant’s absence, deceased went to his house and was ordered to leave by defendant’s wife, the defendant had the right to arm himself for the purpose of using such force as he reasonably expected might be necessary to eject deceased from his premises; since the requested instruction was substantially covered in those given.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;829.]
    Appeal from District Court, Houston County; John S. Prince, Judge.
    E. J. Jackson was convicted of manslaughter, and he appeals.
    Affirmed.
    J. E. Winfree and Earle Adams, Jr., both of Crockett, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Under an indictment charging him with the murder of Jim Bridges, appellant was convicted of manslaughter and assessed the lowest punishment.

In his motion for a new trial, he alleged newly discovered evidence from several persons. The state vigorously contested his motion on every such ground. The record shows that the court heard evidence on the trial of these issues, but in no way shows to us what that evidence was. We must presume it supported the court in overruling the motion on those grounds. Thprefore, under the well-settled law of this state, we cannot review that question. Knight v. State, 64 Tex. Cr. R. 564, 144 S. W. 967, and cases there cited. We also cite some of them and others: Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Mikel v. State, 43 Tex. Cr. R. 615, 68 S. W. 512; Reinhard v. State, 52 Tex. Cr. R. 64, 106 S. W. 128; Jarrett v. State, 55 Tex. Cr. R. 551, 117 S. W. 833; Williams v. State, 56 Tex. Cr. R. 225, 120 S. W. 421; Tarleton v. State, 62 S. W. 748; Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Patterson v. State, 63 Tex. Cr. R. 310, 140 S. W. 1128; Bailey v. State, 65 Tex. Cr. R. 17, 144 S. W. 996; Cleary v. State, 68 Tex. Cr. R. 292, 150 S. W. 919; Brice v. State, 72 Tex. Cr. R. 225, 162 S. W. 874; Hoskins v. State, 73 Tex. Cr. R. 109, 163 S. W. 426. There are many other cases so holding. It is unnecessary to collate all of them.

The evidence raised, and the court in his charge submitted, manslaughter’. Appellant made no objection to this charge or the submission of that issue. The only objections' he presents are to the charge of the court in submitting his claimed self-defenses. We will discuss those urged by him.

No extended statement of the evidence is necessary. Prom the state’s side and a preponderance of the evidence, it was amply sufficient to show that appellant was guilty of murder. His testimony and that of his wife, which was pointedly disputed by that of the state and preponderated against him, raised the issue of manslaughter. Self-defense in different ways was also raised by his and his wife’s testimony.

Early in the evening of the day of the killing, Earnest Kelly, a comparatively young boy, got drunk. The deceased followed him for some distance, from the state’s testimony, to take care of him and to take him home. In this effort he caught Earnest Kelly and struggled with him some distance and to and into a cotton house on the farm of Mr. Parker, adjoining appellant’s. There was some testimony which tended to show that the deceased was beating Kelly, instead of struggling with him to take him home and take care of him. Kelly, while drunk, from the state’s standpoint, escaped from the deceased at said cotton house, went into appellant’s house dpring his absence, and sought protection against deceased from appellant’s wife. Appellant’s wife testified that, when Kelly came into her house for protection, deceased followed him up to her premises, when she ordered him away. He then went away, according to her testimony. She claimed that, at this time, he used abusive, profane, and insulting language towards her. The state’s evidence, if believed, would clearly show that his wife in this particular was mistaken, and that the deceased did not on this occasion go to or near her house, but instead, when Kelly escaped from him at said cotton house, some 150 or more yards from appellant’s house, deceased went in an opposite direction. Some two or three hours later, deceased, in company with his brother, Preston Bridges, and his uncle, Lee Wilson —all young men — as they testified, went in search of Earnest Nelly, deceased claiming that Kelly was drunk in or about said cotton house and would freeze or take pneumonia. The weather was quite cold. These three young men in seeking Kelly went by said Mr. Parker’s house where Parker and appellant were at the time. Appellant saw them and saw them go in the direction of said cotton house, which was towards his house. Mrs. Parker called her husband’s attention in. appellant’s presence to the fact that those three boys might raise another row with Kelly and might go to appellant’s house for that purpose. Appellant thereupon proceeded rapidly to his house. The three young men went by the cotton house and then on towards appellant’s house. He reached his house before they did, went in the back way, procured his shotgun, loaded it with a buckshot shell, and walked out on his front gallery thus armed as the three young men reached his yard approaching his house. Ben Jackson, appellant’s young son about grown, 'was on appellant’s front gallery when these three young men approached the house.

The state’s side of the question can be made to appear from said Lee Wilson’s testimony, a portion of which is as follows:

“Jim (deceased) asked him (Ben) if Earnest Kelly was there. He said, ‘Yes.’ Jim said that he wanted to see him. I spoke up and asked him if he had seen my hogs. He said, ‘They are here now.’ Mr. Jackson came out about that time and said: ‘Leave here, God damn you! I don’t want you here.’ Jim said, ‘Give me time and I will be gone.’ He kept saying: ‘Leave! Leave, I say! And raised his gun and shot. Jim was moving when Mr. Jackson shot. He had started to run. He just had made a start to run, he was going, X guess, about west. His home was west from Jackson’s. The nearest way to Jim’s home would have been right across the fence, the way that he had started when he fell. After I saw that Jackson looked like he was going to shoot Jim, I said, ‘Don’t shoot him, and I will see that he gets away.’ Jackson did not say a word. It wasn’t a second until he shot. After Mr. Jackson shot, Jim run something like ten feet. He had started, and after he shot he run something like ten feet before he fell. Jackson hit him right along here in- the breast (left side). Jim was not facing Mr. Jackson when Mr. Jackson told him to leave. Mr. Jackson was on the gallery, and Jim was going in the direction towards his home. * * When Mr. Jackson told him to get out of his yard, he said give him time and he would be clear gone. After Mr. Jackson shot, he said: ‘You God damned son of a bitch! I told you that I would kill you the first chance I got.’ That is all that he said.”

To the same effect was the testimony of Preston Bridges, deceased’s brother, and said Earnest Kelly.

Appellant testified that, when he reached his house, he went in the back way; that his wife' met him just inside the door and told him that, when Earnest Kelly came in the house that evening drunk, Jim Bridges, deceased, was running after him, and claims that she then told him all the claimed insulting and profane language used by deceased towards her at the time; that he then got his gun, loaded it, and told his wife that deceased “could not come in here.” He testified that Kelly then called on him to protect him against the deceased, and further testified:

“As I walked out of the room, I went right straight out of the hall and went to the front steps. I did not get to the front steps. Ben was standing in front of the steps, Bridges and Wilson were coming up. Just as .quick as I got out there, I said, ‘Jim Bridges, you must not come in here.’ He never made me no reply. I was walking on to the gallery. I said again, ‘Jim Bridges, you must not come in here.’ By that time I was in front of the steps. He said, ‘I come here to come in, by God, or die.’ lie then had his hand in his pocket, and he began to draw a pistol, his right hand, and I shot him with a shotgun. I shot him because I expected him to shoot me if I didn’t kill him. That is the reason that I shot him. That is all the conversation that passed between Jim Bridges and myself.”

Among other things on cross-examination, he testified:

“ * * * Jim just kind of checked when he started to pull his gun, just kind of turned himself like he was making ready to shoot, just turned himself a little in a side position to shoot. I believed I could see the pistol just as he turned around. I do not know just how far Jim Bridges was from me when I shot him. He was something like 10 of 12 feet.”

Again, he testified:

“Jim Bridges did run off. He went off when I shot him. He was standing still when I shot him. He had turned just right to draw a gun when I sHot him. He turned his left hand just a little quartering to me.”

Again, he testified:

“I shot Jim Bridges because I expected him to shoot at me.”

Then he said that he went to his said neighbor Parker’s just after the shooting, and testified:

“I told Mr. Parker that I told Jim Bridges to get out of the yard two or three times, and he made an attempt to draw a pistol, and I shot him.”

Appellant’s wife in her testimony supported him in his on the main points.

Kelly denied positively that he made any request for appellant to protect him, but instead testified that:

When appellant got his gun, “ * * * she (Mrs. Jackson) said: ‘I wouldn’t do that, I don’t believe —-.’ Mr. Jackson said: ‘Yes, by God! I am going to kill him. God damned son of a bitch!’ * * * He loaded his gun and went out on the gallery. I was still sitting there. Ben Jackson was standing out there on the gallery. I told Mr. Jackson that I supposed that Jim wanted me, X said: ‘Mr. Jackson, don’t kill him. I will go with him if he wants me.’ He just went on, didn’t make no reply. He went on out of the door. He said: ‘Get out of here, Jim Bridges. You God damned son of a bitch.’ I never heard Jim say anything. He was talking low, if he said anything. Press Bridges and Lee Wilson said, ‘Mr. Jackson, if you won’t shoot him we will get him out of here just as quick as we can.’ He said: ‘Yes, by God! I can get him out quicker than that.’ ”

Kelly further testified, that:

Just after the shooting, “Ben said, *Pa, you oughten to have killed him.’ He said: ‘Yes¡ by God! I told that God damned son of a bitch six months ago if he ever come in my yard again I would kill him, and, by God, I have done what I said would do.’ ”

Lee Wilson, Preston Bridges, and Earnest Kelly each in substance and effect swore that deceased had no pistol and made no attempt to draw any, nor made any motion that would indicate that he attempted, or intended, to draw a pistol. They each aJlso swore that deceased did not say to appellant at any time that he intended to go into appellant’s house or die. The testimony was amply sufficient to show that, when deceased fell, he fell on his face and stomach, and that his body was not disturbed until the sheriff came, who with others searched the body. No pistol was found on or about the body at any time by any person. The sheriff testified that the deceased’s hands were in his breeches pockets; that in one pocket was a pocket-knife, unopened, and deceased’s hand not upon it.

Appellant did not introduce his son Ben, nor have him testify.

John Newton lived in about ISO yards of appellant. He heard the shot that killed deceased and immediately went to appellant’s. When he got there, he said Mr. Jackson did not say anything to him until he spoke to him first. He said:

' “I asked him what the trouble was, and he said, ‘Nothing, only I killed him.’ Then he spoke again and said, ‘I told him to get out, and X killed him.’ ”

He further said that appellant did not tell him that deceased told him he was going to come into the house or die; that he told him nothing of the kind.

Glint Lane testified that he went to appellant’s house soon after the killing, and appellant tanked to him. He said:

“I went in the house where Jackson was. I asked Jackson why he killed this boy, and he told me, said, T told him not to come in my yard eight months ago, and I killed him because he came in here this afternoon.’ That is just what Mr. Jackson told me. Jackson never told me that Jim Bridges said to him, T am coming in that house or die,’ and that he pulled his pistol out of his pocket when he shot him. Jackson never told me that.”

On the subject of appellant’s claimed self-defenses, the court charged the jury as follows:

“A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force 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 case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
“If from the evidence you believe that the de-i fendant shot and killed the said Jim Bridges, but further believe that at the time of so doing that the deceased was drawing a pistol, or making a demonstration as if to draw a pistol, which caused the defendant to have a reasonable expectation or fear of death, or serious bodily injury at the hands of deceased, and that, acting upon such reasonable expectation or fear, the defendant shot and killed the deceased, then you should acquit him.
“If the defendant, on arriving home on the evening of the homicide, was informed by his wife that the deceased had abused her and used insulting language toward her, or if Earnest Kelly asked the defendant to protect him from an assault by the deceased, or by the deceased and others, then the defendant had the right to order the deceased off of his premises and to prevent the deceased from coming into his house, and, if the defendant anticipated an attack by the deceased, he had the right to arm himself with his shotgun to protect himself from such an attack, and he h'ad the right to use all force that was necessary, but no more than was necessary, to force the deceased to leave his premises, and to prevent the deceased from entering his house. And if, under such circumstances, defendant ordered the deceased to leave his premises, and the deceased started to enter the house of defendant, defendant had a right to use all- force necessary, even to the extent of taking his life, to prevent his entering his home, provided he first used every other means in his power. And if you believe that defendant did order him to leave, and the deceased started as if to enter the house, and made a demonstration as if to draw a pistol, and the defendant believed that his life was in danger, or he was in danger of serious bodily harm, and acted upon such belief shot and killed the deceased, you should acquit him.”

In addition, the court gave two charges requested by appellant as follows:

“You are instructed that the defendant had the right to order the deceased off of his premises, or to order him not to come into his house, and to use all necessary force to cause the deceased to leave his premises, or to prevent the deceased from entering into his house, even to the extent of killing the deceased. But, before he would have had the right to kill deceased, he must have first resorted to every other means in his power at the time.
“In passing upon the issues of self-defense in this case you must view the situation from the standpoint of the defendant alone, and from no other standpoint.”

We think these charges, as a whole, presented appellant’s claimed self-defenses substantially correctly which were in any way raised by pertinent evidence.

Appellant’s first assigned error is that the court erred in refusing to give his special charge No. 1, as follows:

“You are charged, as a part of the law of this case, that a man has the right to defend his premises from trespass, and to use such force as may be necessary in ejecting one trespassing upon his premises.
“Now, if you believe from the evidence in this case that defendant, E. J. Jackson, shot and thereby killed Jim Bridges, but at the time the deceased was trespassing upon the premises of defendant, and defendant and his wife, or either of them, had ordered deceased to leave said premises, and deceased refused to leave, the defendant had the right, under the law, to use such force as appeared to him at the time to be necessary to make deceased leave such premises. And if, when defendant attempted to make deceased leave such premises, deceased refused, either by word or act, and deceased made a demonstration as if to inflict death or serious bodily injury upon defendant, as viewed from defendant’s standpoint at the time, defendant would have the right to act in his own self-defense, and if you believe that defendant shot and thereby killed deceased under such circumstances, or if you have a reasonable doubt thereof, you will acquit defendant and say by your verdict, ‘Not guilty.’ ”

Assigning as a reason why the court erred in this particular that, independent of any other fact, he had the right to order deceased to leave his premises, and, upon deceased’s refusal, if deceased, as viewed from his standpoint, made a demonstration as if to kill him or inflict serious bodily injury upon him, he had the right to act in his necessary self-defense, claiming that the court’s charge made his right to order deceased to leave his premises depend upon whether his wife had informed him that deceased had abused her and used insulting language towards her, or whether Kelly asked him to protect him from an assault from deceased or from deceased and others.

This charge, so far as it was the law and applicable to the evidence, was fully and substantially given in those of the court and those given as requested by him. He cites McMillan v. State, 73 Tex. Cr. R. 343, 165 S. W. 576, and other cases along the same line, wherein we held in effect that it was error in submitting self-defense for the court in his charge to require the jury to believe numerous unimportant details of disputed facts leading up to the homicide before the jury was authorized to acquit. We think this case and none of the others cited by appellant are in point, and we think appellant’s criticism of the court’s charge is unwarranted. The court does not by its charge require the jury to believe both, “and” all the things stated by appellant before they were authorized to acquit him, but either one, “or” the other, and we think that by no reasonable construction of the court’s charge does it sustain appellant’s contention. On the contrary, it is in effect and substance the reverse of what he does claim.

It was certainly unnecessary for the court to give the first paragraph of appellant’s said refused charge, for, as said by Judge Henderson in Patterson v. State, 49 Tex. Cr. R. 616, 95 S. W. 130:

“It was not necessary for the court to especially direct the attention of the jury to the fact that appellant had the same right to protect said house or property as Alice Sharp had, being in her employ. In the charges given by the court this right was assumed to exist in appellant as her employs.”

Clearly the whole charge of the court herein did recognize and assume his right to forbid and prevent deceased from entering his house, and to use all force necessary to do this, even the taking of his life, provided he first used every other means in his power; and, especially taking the court’s charge and the first one of appellant’s quoted above given, his rights were in every way protected and properly submitted to the jury.

Wharton on Homicide (3d Ed.) § 238, says:

“A mere trespass either upon the property, person, or liberty of a person does not justify killing the trespasser, where there was nothing to create a reasonable belief in the mind of the slayer that any of the trespassers were about to commit a felony, or do him serious bodily harm. And the duty to refrain from killing a mere trespasser is not limited to cases in which the trespass is committed in a peaceable manner. And though one has a right to resist an unlawful attempt to restrain his liberty,_ he must not kill in so doing, unless it is so persisted in, when lawfully resisted, as to induce in his mind a reasonable belief that the trespasser is about to commit a felony or do him great bodily harm. * * * And arming one’s self to resist a mere civil trespass on land, or to drive invaders away, and killing to accomplish the object, cannot be justified as self-defense, or even mitigated to manslaughter. Nor can a person killing another shield himself on a plea of self-defense, if he had reason to believe, and did believe, that Ms assailant only intended to commit a trespass, and did not intend to take life or inflict great bodily harm. One person is not justified in killing another in order to enjoy his lawful rights of property, unless he had reason to believe, or did believe, as a reasonable man, at the time of the killing, that he was in serious danger of receiving great bodily injury or of losing his life, and that the killing was necessary to protect himself. * * * ” Patterson v. State, 49 Tex. Cr. R. 616, 95 S. W. 129, C. C. P., arts. 114, 115, 116, and note thereunder; P. C., art. 1110, subd. 4, and note thereunder.

The only other assignment of error urged by appellant in his brief is to the refusal of the court to give his special charge to the effect that, if the jury believed during his absence from home the deceased went thereto and was ordered to leave by his wife, or that she so informed him, then, in either event, he had the right to arm himself for the purpose of using such force as he reasonably expected might be necessary in ejecting deceased from his premises or preventing him from intruding himself into his home. We think the court, in the charge he gave, quoted above, sufficiently covered this point so far as

it was necessary or proper. Warthan v. State, 41 Tex. Cr. R. 388, 55 S. W. 55.

Appellant in the record complains of the court’s refusal to give other special charges requested by him, but those discussed herein are the only ones urged by him in the brief. The refusal of the others, we think, presents no error.

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


author: HARPER, J. DAVIDSON, J.

text:
    COY v. STATE.
    (No. 3805.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.
    Dissenting Opinion Nov. 17, 1915.
    Rehearing Denied Dec. 8, 1915.)
    Jury &wkey;>131 — Presumption oe Innocence — Trial — Selection oe Jury.
    Counsel for the defendant asked a juror whether, having heard all the evidence, “from the evidence you believe the defendant to be guilty, but you have a reasonable doubt of his guilt, with your mind in that condition, would you give the defendant the benefit of the doubt and acquit him?” When the witness replied, “No,” the counsel challenged the venireman for cause, and the court refused to sustain the challenge. Held, that the action of the court was proper, since the question was in itself contradictory, it being impossible for the juror to believe defendant guilty and have a reasonable doubt thereof at the same time.
    [Ed. Note. — For other cases, see Jury, Cent. Dig. §§ 561-5S2; Dec. Dig. &wkey;131.]
    Davidson, J., dissenting.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Alex Coy was convicted of manslaughter, and he appeals.
    Affirmed.
    Haltom & Haltom, of San Antonio, for appellant. C. C. McDonald, Asst Atty. Gen., for the State.
   HARPER, J.

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

There are three bills of exception in the record, all relating to the same matter. In one it is shown:

“Upon the trial of this cause the following occurred: During the examination of the venireman, Frank Krueger, touching his qualification as a juror, the defendant’s counsel stated to said venireman: ‘The court will tell you in his charge that the defendant in a criminal case is presumed to be innocent until his guilt is established by competent evidence, .beyond a reasonable doubt, and if you have a reasonable doubt as to his guilt, you will give him the benefit of the doubt and acquit him. Now, assuming you have been accepted as a juror, and that you have heard all the evidence, and from the evidence you believe the defendant to be guilty, but you have a reasonable doubt as to his guilt, with your mind in that condition, would you give the defendant the benefit of the doubt and acquit him ?’ And to said question so put to him the venireman answered, ‘No.’ And thereupon the defendant’s counsel offered to challenge the venireman for cause, for the reason that the venireman had expressed himself as unwilling to give the defendant the benefit of the law as to a reasonable doubt; and the court refused to sustain the challenge, upon the ground, as stated by the court: ‘When a juror believes a defendant guilty, the reasonable doubt the law accords him is overcome. The question is inconsistent, because he [the juror] could not believe him guilty and then have a reasonable doubt thereof.’ ”

We think the court was correct in his ruling, for if a juror from the evidence adduced on the trial believes a defendant guilty, there is no reasonable doubt as to his guilt. If the juror had a reasonable doubt as to his guilt, the evidence would not have convinced him of his guilt. And the question propounded is based on the theory that, although the evidence had convinced the juror of the guilt of the person on trial, yet if the court charged on reasonable doubt, the juror should acquit. The question as framed is, as stated by the court, inconsistent, and the court did not err in not permitting it to be asked the other jurors. The juror who answered it as above did not sit in the case, and no error is presented.

The judgment is affirmed.

DAVIDSON, J.

(dissenting). Appellant was given five yearsi in the penitentiary for manslaughter.

There are three bills of exception in the record. The first shows that when Frank Krueger was being examined as a venireman, the following occurred:

“Defendant’s counsel stated to the venireman: ‘The court will tell you in his charge that the defendant in a criminal case is presumed to be innocent until his guilt is established by competent evidence beyond a reasonable doubt, and if you have a reasonable doubt as to the guilt of the defendant you will give him the benefit of the doubt and acquit him. Now, assuming you are accepted as a juror, and that you have heard all the evidence, and from the evidence you believe the defendant to be guilty, but have a reasonable doubt as to his guilt, with your mind in that condition, would you give the defendant the benefit of the doubt and acquit him ?’ To this question the venireman answered, ‘No.’ ”

A challenge was interposed for cause because of the facts stated, and answer of the witness, which the court refused to sustain, and overruled the challenge upon the ground, as stated by the court, that:

“When a juror believes a defendant guilty, then the reasonable doubt the law accords him is overcome. The question is inconsistent, because he [the juror] could not believe him guilty and then have a reasonable doubt thereof.”

The next bill is to the same effect, except the reasons are enlarged, and, among other things, that defendant further objected to the remarks of the court because the language of the court was calculated to cause the jurors and veniremen who heard the same to believe that the law requiring the court to charge upon the presumption of innocence and reasonable doubt is of no importance, and that a mere belief of guilt is sufficient to base a verdict of guilty upon, even though they have a reasonable doubt as to his guilt. During the further examination the other bill shows that there were 19 jurors who were asked the same question, and the district attorney made the same objection on the ground stated by the court above quoted, and, further, that the questions were misleading and confusing and the two propositions inconsistent.

I am of opinion that the cause for challenge should have been sustained. The trial court’s proposition that a man may believe another guilty, and that therefore the presumption of innocence and reasonable- doubt passes out of the case, is not correct, either in law or fact. It is well understood by the legal profession, as well as the bench of Texas, that a man may believe another guilty and yet he may have a reasonable doubt as to the sufficiency of the admitted facts to show his real guilt. Often facts convince the mind of the existence of other things,, yet when we touch it with the proposition that it must be shown beyond a reasonable doubt, it will not afford a justification for a verdict of guilty. If the court was right, then the statute with reference to presumption of innocence and reasonable doubt need never have been passed or enacted by the Legislature. That statute forms one of the basic principles of the enforcement of criminal law, and underlies the conviction of men in Texas for crime. That presumption of innocence and the reasonable doubt must be overcome by legal evidence, not the belief of a juror. The mere belief of the jury that a man is guilty would not justify a verdict. Belief may be reached on preponderance of evidence, and • even without that quantum of proof. Conclusion as to guilt must be engendered — reached beyond the presumption of innocence to the exclusion of the reasonable doubt by facts. Belief of guilt entirely falls short of the legal quantum of proof. Belief of guilt and proof of guilt, such as overcome innocence and the reasonable doubt, are as different as the mind may conceive. The defendant was entitled to cause for challenge on the jurors who so answered.

We are met, however, with the proposition by the Assistant Attorney General that no objectionable jurors are shown to have sat in the trial of the case. This may be answered from these bills of exception that there were 19 jurors subjected to the test, and if appellant had exhausted his peremptory challenges, there were still 4 jurors left on the jury subject to the challenge for cause. Appellant could only excuse peremptorily 15 jurors. The rule that the defendant must exhaust his challenges and show an objectionable juror sat on the case does not obtain in this character of case, because it is shown by the third bill of exceptions that there were 19 of these jurors, and- he was entitled to challenge each of those for cause without going to the peremptory challenges, and if he exhausted all of his peremptory challenges, still there remained 4 that he could not excuse. He could not excuse them for cause, because the court liad ruled that he could not; therefore he must exhaust his challenges peremptorily in order to get rid of those he did get rid of. Those others excused peremptorily could not exceed 15, leaving 4 who necessarily sat upon the jury. I believe the court was in error, and the defendant is entitled, at least, to a trial of his case according to law, and a jury selected who will not disregard the plain language of the statutes of the state.

The judgment ought to be reversed, and .the cause remanded.
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text:
    STREICH v. STATE.
    (No. 3696.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    1. Homicide <&wkey; 123 — Self-Defense — Defense Against Simple Assault.
    Where defendant killed deceased, an unwelcome guest in his house, whom he had attempted to eject, when the latter was making some sort of an assault upon him, either with or without a knife, defendant was justified if, in striking deceased with a pistol, so that the weapon was discharged, killing deceased, defendant used no more force than was reasonably necessary in resisting the. attack upon himself, since the right of self-defense exists in case of a mere simple assault upon one, as well as in ease of an assault which really or apparently threatens death or serious bodily injury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 182, 183; Dec. Dig. &wkey;123J
    2. Criminal Daw <&wkey;636 — Triajd—Reception op Verdict — Presence oe Defendant — Statute.
    Under Code Cr. Proc. 1911, art. 899, providing that in all prosecutions for felonies the defendant must be personally present at the trial, but that in all cases the verdict shall be effectually received and entered in the absence of the defendant, when such absence on his part is willful or voluntary, where defendant, in a prosecution for assault with intent to murder, being under bonds, was away from the courthouse eating his supper when the jury returned its verdict, the judge not recalling defendant before receiving the same, such verdict was proper, since it was defendant’s duty to attend the court, and not the duty of the court to see that he did so.
    • [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1465-1482, 2120; Dec. Dig. <&wkey;>636.]
    Davidson, J., dissenting in part.
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    C. F. Streich was convicted of assault to murder, and be appeals.
    Judgment reversed, and cause remanded.
    Walker & Burleson, of 'San Saba, Martin & Martin, of Fredericksburg, and W. T. Bagby, of Hallettsville, for appellant. Flack & Flack, of San Saba, and C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

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

This is rather a voluminous record in many respects. The case shows to have been fought with ability on both sides. The assault occurred at appellant’s house. The deceased, Taff, had made an assault on appellant on the gallery, at least, not in one of the rooms, having a knife in his hand at the time. The parties separated, but met again in one of the rooms in the house, and the trouble came up. Under the state’s theory, appellant shot Taff with a pistol. The evidence seems to be fairly conclusive that Taff was approaching appellant when the pistol was fired. The defendant, however, goes further, and states that he thought Taff was approaching him with a knife in his hand, and had succeeded in getting hold of him, and in the scuffle the pistol went off and shot Taff accidentally. There is evidence, which seems not to have been disputed, that appellant struck Taff on the head with the pistol, and a conclusion might be drawn, so far as the jury is concerned, that the pistol went off then. So we have the two theories— one for the state that defendant shot Taff intentionally, and the other that he struck him on the head, and in the scuffle growing out of this the pistol was discharged. We have, further, the testimony of appellant’s side that Taff was attacking Mm, he thought, with a knife; but there is testimony which seems to indicate the assaulted party did not have a knife open at the time. This is a sufficient statement to bring in review the questions to be decided.

The court charged the jury on assault to murder, and gave a general charge on aggravated assault and accident. In his charge on self-defense the court limited appellant’s right to danger and apparent danger to life or serious bodily harm from Taff. Objection was urged to this charge in the proper manner, and special requested instructions were asked, but refused. The effect of these exceptions and the special instructions asked was that the court had improperly restricted and limited appellant’s right of self-defense. It was contended in the trial court, and is here urged as being the law, that appellant had the right of self-defense under the circumstances, whether Ms life was in danger or his body of serious bodily harm. This is unquestionably the law, as applicable to this ease. Taff was an intruder, an unwelcome guest at the house of appellant; he was trying to get him away, and, after the first difficulty on the gallery, appellant found him in a room, and his testimony is that Taff made another assault upon him, and he thought with a knife. But whether he had a knife, or not, and made the assault at the time he was shot, and appellant only struck with the pistol in resistance to this attack, if his life was in danger, he was justified. If it was not in danger, and he used more force than was necessary, either to put Taff out of the house or resist the at-taels made upon Mm, still he had a right to have the jury instructed as to tMs phase oí the law of self-defense. The law of self-defense is not restricted to apparent or real danger of death or serious bodily injury under appropriate circumstances. A man has a right of self-defense in an ordinary simple assault; he has it in aggravated assault; he has it in assault to murder, as well as in the homicide itself. If appellant used more force than was necessary in resisting the attack that Taff may have made upon him, or used more force than was necessary to put Mm out of the house, still, if Ms life was not in danger or Ms body of serious bodily harm, he had the right of self-defense as against the other phase of it. This was the crucial point in the case. The refused special charge was on a vital issue, and the court’s charge restricted it, so that the jury would not apply, and were not informed of the law so they could apply, it to self-defense against danger less than death or serious bodily harm. This ought not to be a debatable question under all the authorities, as well as under statutory enactments.

Application for continuance was made and overruled. In view of another trial, that matter is not discussed. The witnesses may be obtained, and, if not, the matter may be presented in a different way, and would be viewed differently in another application for continuance.

There is another question in the case wMch ought to reverse the case; hut, it being reversed on the other question, it is not fully discussed, but mentioned rather incidentally. The jury retired to consider their verdict. Appellant was on bond; had a right to be on bond under the statute. He asked the county attorney whether he could go home, in view of the fact the jury had not returned a verdict and were out considering it, and the county attorney suggested to him he had better not leave; that the jury might come in with a verdict. Appellant made arrangements with a neighbor to carry Ms horse home, so he might spend the night around the courthouse to respond to any verdict the jury might return. There seems to have been a general scattering from around the courtroom, it being about supper time. Appellant went off to get his supper, and it seems the jury brought in a verdict while appellant was getting his supper, near by and in easy reach of the courthouse by call from the sheriff. The verdict was brought in and received by the court, and the jury discharged, in the absence of the defendant. He was not called, but was back at the courthouse in a few minutes. The court seems to have thought, because counsel for appellant was present and raised no objection, therefore defendant’s rights in the matter were waived. His counsel said he was as much unaware of the absence of the defendant as was the court. The duty was more obligatory upon the court to see that defendant was present when the verdict was received than on the counsel. The verdict ought not to have been received in the absence of the defendant; this by mandatory provisions of the law. It is evidenced from this record that defendant was not. willfully or voluntarily absent within the meaning of the law at the time the verdict was received. He was there directly afterwards, and was seen by the judge in one of the rooms of the courthouse. The reception of this verdict under the decisions of tMs court was not correct. This is not a novel case. See Derden v. State, 56 Tex. Cr. R. 396, 120 S. W. 485, 133 Am. St. Rep. 986; Cowart v. State, 145 S. W. 341; Choice v. State, 52 Tex. Cr. R. 285, 106 S. W. 387; Whitehead v. State, 147 S. W. 583; Hill v. State, 54 Tex. Cr. R. 646, 114 S. W. 117; Foreman v. State, 60 Tex. Cr. R. 576, 132 S. W. 937; Emery v. State, 57 Tex. Cr. R. 423, 123 S. W. 133, 136 Am. St. Rep. 988; Stoddard v. State, 132 Wis. 520, 112 N. W. 453, 13 Ann. Cas. 1211; Hill v. State, 17 Wis. 675, 86 Am. Dec. 736.

With reference to the other phase of this matter, that is, the reassembling of the jury and having them return a verdict in the presence of the defendant, is unauthorized by law. This has been a matter of frequent decision, and one very recently in an opinion by Judge Harper. After the jury returns a verdict and has been discharged, that ends their connection with the case. They cannot be reassembled to do anything in connection with their verdict. That is a closed incident, and a recalling is unjustified and unauthorized. So a recalling of the jury did not amend the matter, nor assist it in any way, but rather emphasized the fact the court understood that the former act in receiving the verdict in the absence of defendant was erroneous, and by this means he sought to correct that mistake or error.

There are other matters in connection with the first proposition — that is, charges in reference to self-defense of the home and necessary force to eject Taff from the house; but in view of what has been said these matters will not arise upon another trial. In other words, the court will properly instruct the jury with reference to those matters.

The judgment is reversed, and the cause is remanded.

PRENDERGAST, P. J., and HARPER, J. Under article 899, as the appellant was on bond, and he had voluntarily gone out of the courtroom, we do not think there was any error in receiving the verdict. It was appellant’s duty to attend court, and not the duty of the court to see that he did attend, since the enactment of article 899.
      ig^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BLACKBURN v. STATE.
    (No. 3827.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.
    On Motion for Rehearing, Dec. 8, 1915.)
    1. Criminal Law <©=3413 — Evidence—Self-Serving Declarations.
    Where defendant, when first informed that the mules belonged to the prosecuting witness, made no explanation of his possession, evidence of his statement as to where he obtained possession, made thereafter, is inadmissible, it being a self-serving declaration.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. <@=> 413.]
    2. Criminal Law <©=>1170 — Appeal—Harm•less Er!ror.
    The exclusion of evidence of matters shown by other evidence is not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. <@=> 1170.]
    3. Criminal Law <@=>721 % — Trial — Comment oe Counsel.
    Accused, who was charged with the theft of mules which he claimed he purchased while in company with one B., showed that B. was in attendance at the last term of court, but that he had recently lost his wife and child and it was impossible for him to attend that term. Held-, that in such case it was not improper for the state’s counsel to comment on the fact that B. had not been called as a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. <@=>721%.]
    4. Larceny <@=>58 — Prosecution—Evidence.
    In a prosecution for theft of mules, evidence held to warrant a conviction on the theory that the stolen mules, found in accused’s possession, were not the same animals which he claimed to have purchased from a Mexican.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § 166; Dec. Dig. <@=>58.]
    5. Larceny <@=>77 — Prosecution — Instructions.
    Where accused, who was found in possession of the stolen mules, claimed that he purchased them from a Mexican, a charge that if accused bought the mules he was charged with stealing, or the jury had a reasonable doubt as to that matter, he should be acquitted, is sufficient without any further charge on the law involving recent possession of stolen goods.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. <S=>77.]
    On Motion for Rehearing.
    6. Larceny <@=>04 — Prosecution — Evidence —Sufficiency.
    Unexplained possession of recently stolen property is sufficient to warrant a conviction of larceny.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 170-178; Dec. Dig. <@=>64J
    7. Witnesses <@=>395 — Impeachment — Corroborating Statements.
    Where the state seeks to impeach a witness by proof of contradictory statements, he may support his testimony by proof of statements similar to that on trial, unless such statements were made after the motive existed, which would likely prompt him to testify falsely.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. <@=>395.]
    8. Witnesses <@=>395 — Impeachment — Contradictory Statements.
    Where, in a prosecution for the theft of mules, the state proved a statement by accused that he had purchased the mules,, and when the proper time came would produce the check given, and accused took the stand and testified that he paid for the mules in money, accused was not impeached so as to warrant the admission of evidence of corroborating statements.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1260; Dee. Dig. <@=>395.]
    Appeal from District Court, Concho County; John W. Goodwin, Judge.
    H. J. Blackburn was convicted of a theft of mules, and he appeals.
    Affirmed.
    Woodward & Baker and Snodgrass, Dibrell & Snodgrass, all of Coleman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the theft of three mules, and his punishment assessed at two years’ confinement in the state penitentiary.

S. A. Hargrove testified to the loss of three mules, and that upon information received he went to Pawhuska, Okl., and found all three of the mules in the stock pens. Mack Kyle testifies that the mules came to Paw-huska in a carload of stock shipped there by-appellant. Appellant admits that fact, and also admits that when Mr. Hargrove identified the three mules as his property, he, appellant, paid Hargrove for the mules, at that time making no explanation of liow he came into possession of the mules. However, upon his return home, the length of time not being shown, G. C. Bryson testifies that appellant told him he had purchased the mules and could show a check when the proper time came to produce it. W. E. Farmer also testifies that after appellant’s return home, appellant told him that he had gotten in trouble about a portion of the shipment of stock he had made; that Mr. Hargrove claimed three of the mules, and he had paid Hargrove for them. He also stated to Mr. Farmer that he had gotten the mules from a Mexican.

On the trial of the case appellant testified that he was buying and selling stock, and that Mr. Kirkpatrick had telephoned him about a Mexican on his, Kirkpatrick’s, place, who had three mules for sale. That he went over and he, appellant, and W. E. Brown, went down to where - the Mexicans were, and he purchased the mules from the Mexican. He did not know his name, nor where he now is; that he paid him the money, getting it from Fred Taylor. He says Taylor was in attendance on court, but neither he nor the state called Taylor as a witness. Appellant denied telling Bryson that he had paid for the mules by giving a check, and that he could produce the check when the time came to produce it. Kirkpatrick testified in behalf of appellant, and said that a Mexican on his place had tried to sell him three mules, but he did not buy, and telephoned appellant about the Mexican having the mules; that appellant came over and appellant and Brown went down to where the Mexican was at work, and when appellant and Brown returned, appellant told him he had purchased the mules. Appellant asked him to let the mules stay in his pasture for a few days, and he refused to give permission. On cross-examination he said one of the mules was a yearling, another two years old, while the third was a three year old. That he knew of appellant buying no other mules from a Mexican other than those three.

Mr. Hargrove testified that the mules he lost and which he found in appellant’s possession in Oklahoma, and which appellant paid him for, were all two year old mules.

When appellant returned from Oklahoma he had a conversation with Kirkpatrick, and desired to prove by Kirkpatrick what he, appellant, said to Kirkpatrick. This would be inadmissible, for it was not coincident with the time he claimed to have purchased the mules, nor with the time when he first knew he was charged with having stolen the mules. The court, in approving the bill, states:

“Approved with this explanation, to wit: Defendant was first seen with the mules in Oklahoma and his right challenged, and he paid Har-grove for them. The conversation offered in evidence was long after this. Kirkpatrick testified to having told defendant of these mules, and that defendant informed him at the time of the alleged purchase that he had bought them, and the defendant also testified fully to his purchase of the mules. The statement of defendant offered in evidence it occurred to me was self-serving, and an attempt to bolster his evidence by self-serving declaration.”

Appellant contends that the court erred in not permitting him to prove by the witness Kirkpatrick that at a former trial of the case the case was submitted to the jury alone upon the evidence of the state, and upon the testimony of the state’s witnesses, Hargrove and Bryson, and that Earmer and Kyle were not -present, and did not testify. This was amply shown by other testimony. On the cross-examination of Kyle appellant asked if he did not know he could not be compelled to come to Texas to testify; that he had received $20 to pay his expenses, and he expected to receive $2 per day for his time and all his expenses. That he had never testified before. Appellant was permitted to prove that Brown was in attendance on the last term of court, and that he had recently lost his wife and one of his children, and it was therefore impossible for him to attend court. The witness Kirkpatrick could not possibly know why appellant and his attorneys had not placed Brown on the witness stand when he was in attendance on court. They alone would know why they did not do so, and if they offered to testify why they did not do so, we are sure the court would not have sustained an objection to them so testifying. And as no such explanation was forthcoming, it was not improper for the state’s counsel to comment on the fact, that while appellant testified that Brown was present when he purchased the mules from the Mexican, he had not been called as a witness. As appellant had proved the condition of Brown’s family as' a reason why he was not in attendance, and the further fact that he was present at the former term and had not been called to testify, the remarks of state’s counsel were within the record.

As far as this record discloses no one knows what Brown would have testified had he been present, and if he had testified as did Kirkpatrick, that appellant did purchase three mules from a Mexican, but also testified that they were one, two, and three years old, it would not have materially aided appellant. Appellant contends there is no testimony showing the falsity of his statement that the mules lost by Hargrove and found in his possession in Oklahoma were not the mules he claimed to have purchased from the Mexican. The mules Hargrove lost were two years old, while under this record the mules he says he purchased from the Mexican were a yearling, a two and a three year old. This would have a very strong tendency to lead a jury to believe that the mules he claimed to have purchased from the Mexican were not the Hargrove mules.

Appellant also contends that the court erred in failing to give his special charges on explanation of possession of recently stolen property. Appellant gave no explanation when first charged with the offense in Oklahoma, nor when he paid Hargrove for the mules. It is after his return to Texas he first makes a statement or claim that he had purchased the mules from a Mexican. The court in his charge instructed the jury:

“If you find from the testimony that the defendant bought the mules he is charged with stealing, or if you have a reasonable doubt as to his having bought said mules, you will acquit him.”

This character of charge was approved in Mathews v. State, 32 Tex. Cr. R. 357, 23 S. W. 690, and it was held not to be error to give any other charge on defendant’s explanation. In this case, as in that case, the defendant’s explanation was a purchase, and he gave no other explanation. See, also. Wheeler v. State, 34 Tex. Cr. R. 354, 30 S. W. 913; Holmes v. State, 38 Tex. Cr. R. 370, 42 S. W. 980; Sisk v. State, 42 S. W. 987; Ford v. State, 41 Tex. Cr. R. 1, 51 S. W. 936, and cases cited. In the case of Hays v. State, 36 Tex. Cr. R. 534, 38 S. W. 171, this court said:

“When the defendant was arrested he was found” in possession of the stolen property. “The second bill of exceptions is an insistence on the part of defendant that the court committed an error in not charging on recent possession, in connection with the explanation of the defendant. * • * While the court did not give, in terms, a charge on possession and explanation, he did that which was better, authorized the jury to acquit the defendant if they believed that the defendant bought the pistol, * * * or if they had a reasonable doubt concerning that matter.”

Such a charge as that given by the court, instead of the more lengthy one on possession and explanation, was held to be preferable in the case against 'Douglas Whitfield, decided at the present term of this court.

We have carefully examined each question in the motion for a new trial, and none of them present any error which would call for a reversal of the case.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in this cause; one of the grounds being that the evidence is of too weak and unsatisfactory character to permit the verdict to stand. The theft of three mules from Mr. Hargrove is shown beyond the shadow of a doubt; this fact is not questioned in the record. Shortly thereafter the stolen animals are found in possession of appellant in Oklahoma. At that time he gives no explanation of his possession, but proceeds to pay Mr. Hargrove for the stolen animals. If he had any explanation to give of his possession of the stolen animals, then it was it should have been given instead of merely paying for the property when his possession of the mules' was challenged. Instead of doing so, he is as silent as the grave as to how he came in possession of the stolen property. Under all of our decisions this testimony has been held sufficient to sustain a verdict. Payne v. State, 21 Tex. App. 187, 17 S. W. 463; Morgan v. State, 25 Tex. App. 513, 8 S. W. 487; Rust v. State, 31 Tex. Cr. R. 77, 19 S. W. 763; Roberts v. State, 60 Tex. Cr. R. 23, 129 S. W. 611; Powers v, State, 72 Tex. Cr. R. 290, 162 S. W. 833, and cases cited.

The state, in making its case, proved by J. O. Bryson, after appellant had returned to Texas, that he had a conversation with appellant in which appellant told him he had purchased the mules and could produce the check; that he could produce the check at the proper time. The state also proved by W. E. Farmer that after appellant’s return to Texas he had a talk with him about the mules in question. That appellant said Mr. Hargrove came to Oklahoma and accused him of stealing the mules, and he paid Har-grove for them. That he purchased the mules from a Mexican.

After the state had made this proof appellant took the witness stand and testified that he purchased the three mules in question from a Mexican, and paid him $150 for them. That he got the money from Fred Taylor, and paid the Mexican in money. That he never told Bryson he gave the Mexican a check for the money.

After having so testified, he desired to prove by E. S. Kirkpatrick that after Hargrove had claimed the mules and after he had paid Hargrove for the mules, and after his, appellant’s, return to Texas, that he, appellant, told Kirkpatrick that “he paid the Mexican $150 for the mules.” Appellant earnestly insists that we erred in holding that the court did not err in refusing to permit Kirkpatrick to testify that appellant told him after his return to Texas he paid the Mexican $150 for the mules, that we must have overlooked the case of Hudson v. State, 49 Tex. Cr. R. 24, 90 S. W. 177, and desires to know if we intend to overrule that case. It is true our attention was not called to this case in the brief of counsel or otherwise, at the time the original opinion was written, but we will say that we do not desire nor intend to overrule the rule of law therein announced. In that case appellant testified on the trial that he was 14 years of age. On this statement the state sought to impeach him, and introduced three witnesses who testified that Hughes had told them he was 16 years of age. The court held that Hughes should have been permitted to support his testimony by proving that he testified before the grand jury when carried before them by the district attorney that he was only 14 years of age. It has always been the rule in this state that when the state seeks to impeach a witness by proof of contradictory statements, he may support his testimony by showing that he had made similar statements to that he testified to on the trial. This is not only the rule announced in the Hudson Case, supra, but it has been so held in Williams v. State, 24 Tex. App. 666, 7 S. W. 333, Craig v. State, 30 Tex. App. 619, 18 S. W. 297, Campbell v. State, 35 Tex. Cr. R. 163, 32 S. W. 774, Pitts v. State, 60 Tex. Cr. R. 524, 132 S. W. 801, and cases cited in Branch’s Crim. Law, § 874. But the. rule is equally well settled in this state that proof of statements made in harmony with his testimony made after the motive existed which wouid likely prompt him to testify falsely cannot be introduced to support his testimony on the trial. Conway v. State, 33 Tex. Cr. R. 330, 26 S. W. 401; Sanders v. State, 31 Tex. Cr. R. 529, 21 S. W. 258; Anderson v. State, 50 Tex. Cr. R. 136, 95 S. W. 1037; Porter v. State, 50 S. W. 380. In this case it is made plain that it was after appellant had been charged with the theft of these mules, and after he had paid Hargrove for them, and after he had returned from Oklahoma, that he made the statement to Kirkpatrick, and the same motive existed then to testify falsely as existed on the trial of this case. In the Hudson Case it is not made to appear that it was after Hudson had been charged with an offense that he made the statement held to be admissible, and if it did so appear it would not be in, harmony with a long list. of authorities in this state, and as announced in 7 Ency. of Ev. p. 286. See, also, Barkly v. Copeland, 74 Cal. 1, 15 Pac. 807, 5 Am. St. Rep. 413; McCord v. State, 83 Ga. 521, 10 S. E. 437; Waller v. People, 209 Ill. 284, 70 N. E. 681; State v. Vincent, 24 Iowa, 570, 95 Am. Dec. 753; State v. Hendricks, 32 Kan. 559, 4 Pac. 1050; State v. Fontenot, 48 La. Ann. 283, 19 South. 113; Commonwealth y. Jenkins, 10 Gray (Mass.) 485; People v. Finnegan, 1 Parker Cr. R. (N. Y.) 147; State v. Exum, 138 N. C. 599, 50 S. E. 283; Commonwealth v. Brown, 23 Pa. Super. Ct. 470; State v. McDaniel, 68 S. C. 304, 47 S. E. 384, 102 Am. St. Rep. 661; Legere v. State, 111 Tenn. 368, 77 S. W. 1059, 102 Am. St. Rep. 781. In addition to this, the state had not sought to impeach the defendant in this case.

The state made its case, and in doing so 'proved by a witness that appellant claimed to have purchased the mules, and when the proper time came said he would produce a check given the Mexican for the mules. After this testimony had been adduced, appellant took the stand and denied ever having told the state’s witness any such thing. He then testified that he purchased the mules and paid the Mexican in money. After appellant testified the state offered no testimony in rebuttal. So there is no question of impeaching a witness in this case. Again, the alleged testimony of Kirkpatrick would tend no more to support the testimony of appellant than it would tend to support the testimony of the state’s witness. The difference in the testimony is the state’s witness testified that appellant told him he paid the Mexican by giving him a check, and would produce it at the proper time. Appellant says he did not tell the witness this, but testifies he paid the Mexican in money. Kirkpatrick’s testimony, as alleged, would only be that appellant told him he paid the Mexican $150 for the mules, without saying whether he paid it in money or by giving a check.

Appellant says' that we laid too much emphasis on the age of the mules, as testified to by the witnesses. Hargrove testified about the mules found in possession of appellant in Oklahoma as follows:

“They were my mules; these mules were taken from my pasture without my consent. I bought these mules from E. B. Noel; they were yearling mules, coming two’s — you might say two years old” — making them all the same age.

Appellant said Kirkpatrick called his attention to the mules he claimed to have purchased from the Mexican, and Kirkpatrick testified the mules he called appellant’s attention to were of the following ages:

“One of those mules was a yearling mule, and the other would be near two years old; and one of them was a three year old.”

This was the testimony on the trial, and we do not think too much emphasis was placed on this discrepancy in the ages of the mules appellant claimed to have purchased from the Mexican. The description did not fit the Hargrove mules found in his possession.

All the other questions were discussed in the original opinion, and we do not deem it necessary to do so again, but we have again discussed the above questions owing to the insistence of appellant’s counsel.

The motion for rehearing is overruled.
      <@=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MOORE v. STATE.
    (No. 3769.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1915.)
    Criminal Law <§=3417 — Evidence—Declarations and Acts of Others.
    Against defendant on a prosecution for adultery, neither the declarations of the woman, nor the acts and conduct of her or others, in his absence, he not being connected therewith in any way, are admissible; pendency of a divorce suit against the woman makes no difference.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. <§=>417.]
    Appeal from Erath County Court; A. P. Young, Judge.
    O. C. (Red) Moore was convicted, and appeals.
    Reversed and remanded.
    J. T. Daniel, of Stephenville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of adultery, the punishment for which is not less than $100 and not exceeding $500. The fine imposed is $400.

Mrs. Clara Henderson, with whom appellant was charged with living in adultery, a married woman, by some peculiar method, was fined only $50 on a plea of guilty. There is something in the record to indicate that the court for some reason or other believed she was charged with fornication, but the indictment charged she was a married woman, therefore she could not be guilty of fornication. This is of no peculiar moment in the case.

■During the trial various witnesses were introduced narrating facts or statements, declarations, acts, and conduct of Clara Henderson with others in the absence of the defendant, as well as the acts and conduct of others, not including Clara Henderson, but with reference to this case, and what she did say, and what the third parties said and did in the absence of defendant, among them the lawyers who brought suit for divorce for Henderson against Clara Henderson, and various and sundry things, which are unnecessary, we think, to narrate, as it would make the opinion long and be of no service either to the .jurisprudence or profession. Objection was urged to all these matters on various and sundry grounds, there being some 15 to 19 bills of exception. The court seemed to think, because there was a divorce pending between Mrs. Clara Henderson and her husband, in which she was defendant, that therefore all these acts and declarations on the part of Mrs. Clara Henderson and the attorneys of her husband, who brought suit for divorce, as well as other parties, were introdueible against the defendant. This is not the law. Acts and conduct of third parties, in the absence of defendant, with reference to this adulterous transaction, were not admissible because the husband of Mrs. Clara Henderson had sued her for 'divorce. Those matters may have been worth something, and admissible or not, according to the facts and circumstances that may have been developed in the divorce proceeding; but this was not a divorce proceeding. Appellant was charged with, and was being tried for, adultery. The acts of third parties in the absence of the defendant with reference to these matters, without his being in some way connected with same — and that is not shown or attempted to be shown — are not admissible against him. The qualification of the judge rather intensifies the error, for he seems to think all these hearsay matters were introdueible because the husband of Mrs. Clara Henderson had sued her for divorce. For authorities, see Branch’s Grim. Haw, § 21. One quotation from Mr. Branch will illustrate:

“Declarations of alleged paramour made in absence of defendant are not admissible against the defendant.” Spencer v. State, 31 Tex. 65; Quinn v. State, 51 Tex. Cr. R. 156, 101 S. W. 248.

But a proposition of this sort, it would seem, ought not to call for authorities. What has been written has been written without taking into consideration each particular bill, there being 19 of these bills, but they are all practically to the same effect, and those bills that do not bear directly upon the question are somewhat of a kindred nature and the trial court will understand from what has been said that all those matters are not- admissible. The defendant is entitled to a trial on the testimony which proves or disproves his adulterous intercourse with the alleged paramour. • The acts and conduct of third parties and the attorneys of her husband, in the absence of the defendant, without connecting him with them in some way, are clearly illegitimate.

The judgment is reversed, and the cause remanded.
      <®=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes