author: HARPER, J.

text:
    THOMPSON v. STATE.
    (No. 3624.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied Oct. 13, 1915.)
    Disorderly House <&wkey; 17 — Conviction—Stjp-3TICIENCY OE EVIDENCE.
    Evidence in a prosecution for unlawfully keeping and being concerned in keeping a bawdyhouse held sufficient to support a conviction.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 26-29; Dee. Dig. <&wkey;>17.]
    Appeal from Harris County Court at Law; C. O. Wren, Judge.
    Mrs. Jennie Thompson was convicted of unlawfully keeping and being concerned in keeping a bawdyhouse, and she appeals.
    Affirmed.
    Heidingsfelders, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Am information was filed against appellant in which she was charged in two counts with unlawfully keeping and being concerned in keeping a bawdyhouse, a house where prostitutes were permitted to resort and reside, and with keeping a disorderly house, the same being a place where men and women met by mutual appointment for the purpose of sexual intercourse. A jury was waived, and the court adjudged her guilty; her punishment being assessed at a fine of $200 and 20 days’ imprisonment in the county jail.

The sole ground relied ón is that the evidence does not support the conviction.

Mrs. A. B. Crook testified she lived near appellant; that she had seen men and women go to this house a number of times; that they would not go together, but she would see men go, and in a short time a lady would go; they would remain an hour or hour and a half, when she -noticed; that this happened most of the time in the afternoon, but at other times about dark. She did not know the purpose of the men and women, and did not know the reputation of the house.

Mrs. Schaeffer testified also she lived near appellant; that she had seen men and women go to the house, and had seen men leave the house as late as 11 or 12 o’clock at night; that the house had a bad reputation.

Mrs. Sanderson testified she had seen men and women go to this house at different times during the day; did not know the reputation of the house, but she was a “little suspicious.”

Mr. Crooker testified he raided appellant’s house on the night of the 27th of last June; it was between 1 and 2 o’clock at night; that he found C. H. Collins in bed in the front room, undressed; that Miss Davis was undressed, and in her nightgown, in the room with Collins, when he peeped in the house, but when he got in the house appellant and Miss Davis were in another room. He arrested all three of them.

Officer Gallney testified he was with Mr. Crooker when they made a raid on the house. He also says that Collins was undressed and in bed, and the two women in their nightclothes.

Appellant testified that Collins and Miss Davis came to her house that night; that she knew Collins well, but did not know Miss Davis; that Collins introduced Miss Davis as his wife; that Collins complained of not feeling well, and asked permission to lay down, and she granted it to him, and he went into the front room. She says Bliss Davis did not go into the front room, but, having torn her dress, she took it off and was mending it when the officers came, having put on an apron. She testified she had run a rooming and boarding house in Houston for a number of years; that she had one gentleman as a roomer, who came in late at night and left early in the morning; that she also had two ladies rooming with her. She denies that anything improper occurred in her rooming house. She says she was looking for her husband that night is the reason she was up at that hour of the night.

Miss Davis testified that she did not go in the room where Collins was undressed on the bed; says she went there with Collins after having been out talcing supper with him, as Collins expressed a desire to go to Mrs. Thompson’s house. She denies anything improper taking place, and denies being in her gown, as testified to by the officers. She also denies that Collins introduced her to Mrs. Thompson as his wife.

It is true that only one witness testifies that the reputation of the house was bad, but several testify to seeing men and women visit there frequently, remaining a short time, leaving separately. One officer testifies positively to finding Collins and Bliss Davis in the same room, both being undressed, one being in bed, the other being in the room in her nightgown. Mrs. Thompson and Miss Davis cross each other about Collins introducing her as his wife. The trial court heard and saw the witnesses, and heard them testify, and if, as a matter of fact, he found as true that Miss Davis and Collins were in the same room, both being undressed, the other facts and circumstances would authorize him to find the purpose they had gone to this house that night. Others are seen going there, and we cannot say that the evidence would not authorize him to find that this was a house where men and women would meet for the purpose of sexual intercourse.

The judgment is affirmed.
      <§ss»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HARPER., J.

license: Public Domain

text:
    CELO v. STATE.
    (No. 3622.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied Oct. 13, 1915.)
    Ckiminal Law <&wkey;1099 — Appeal—Bills op Exception — Misdemeanob.
    _ After conviction for unlawfully carrying a pistol, which is a misdemeanor, a' statement of facts not filed until 81 days after adjournment of the county court will be stricken.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <&wkey; 1099.]
    Appeal from Harris County Court at Law; C. C. Wren, Judge.
    George Celo was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    A.. D. Austin, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER., J.

Appellant was convicted of unlawfully carrying a pistol, and prosecutes this appeal.

The term of court at which he was tried adjourned October 31, 1914. No bills of exception are in the record, and the statement of facts shows to not have been approved nor filed until January 20, 1915 — 81 days after court adjourned. This being a misdemeanor, the state’s motion to strike out the statement of facts is sustained.

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


author: PRENDERGAST, P. J. ' DAYIDSON, J.

text:
    NYE v. STATE.
    (No. 3620.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied Oct. 13, 1915.
    Dissenting Opinion, Oct. 14, 1915.)
    1. Fornication <&wkey;9 — Evidence — Prosecution.
    In a prosecution for fornication, evidence held insufficient to show accused’s common-law marriage to the woman.
    [Ed. Note. — For other cases, see Fornication, Cent. Dig. § 7; Dec. Dig. &wkey;>9.]
    2. Marriage <&wkey;13 — Common-Law Marriage —Validity.
    A real common-law marriage,' properly agreed to by both parties and consummated by both, is a valid and legal marriage.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. § 4; Dec. Dig. <&wkey;>13.]
    3.Marriage <&wkey;47— Common-Law Marriage —Evidence—Acts oe Accused.
    In determining whether the parties consummated a valid common-law marriage, the acts of the man in celebrating a ceremonial marriage with another, without divorce, are admissible.
    [Ed. Note. — For other cases, see Marriage Cent. Dig. § 75; Dec. Dig. ®^47J
    Davidson, J., dissenting.
    Appeal from Harris County Court, at Law; C. C. Wren, Judge.
    J. Nye was convicted of fornication, and he appeals.
    Affirmed.
    A. B. Wilson, of Houston, for appellant. C. 0. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was prosecuted and convicted of fornication. He waived a jury, and tried his case before the judge, who found him guilty and assessed a $250 fine as his punishment.

The woman with whom he is charged to have committed this offense was Kittie Ensby. On her direct examination she testified:

“My name is Kittie Ensby. I have lived in Houston two years. I came here in January, 1913. I came by myself. Since I came here I have been working at Levy Bros.’ dry goods store. After I came here I lived with Mr. Nye, the defendant. I first began living with, him along about May, 1911, and I began to live with him in Houston after I came here in 1918. I do not know just the exact date to which I continued to live with him; but it was up to about a month ago, some time in February, 1915. During the time I lived with tho defendant in Houston, our room was at Mr. Lieder’s residence. We had the same room there, occupied it, and slept together there. He had carnal intercourse with me during the time I lived with him here in Houston. I am not a married woman. I know about the defendant marrying recently. It has been about two weeks ago that he married; I am not positive of the exact date. I do not know where he and his wife are now living.”

This is the whole of her testimony on direct examination. Appellant’s defense, as we understand it, was that this woman was his common-law wife, and therefore his cohabiting and carnal intercourse with her would not make him guilty of fornication. After Kittie Ensby had so testified on direct examination, she was cross-examined, then, after that was coricluded, redirectly examined, and this occurred back and. forth several times. The trend of these examinations might tend to show some facts indicating a common-law marriage between these parties; yet, when it is considered as a whole, the reasonable conclusion only can be drawn that their apparently assumed relationship of husband and wife was merely for the purpose of covering up and preventing detection in their real illicit relationship, or, as expressed by the judge before whom the case was tried, in his qualification to one bill, as follows:

“The court was of the opinion, and found as a fact, that both defendant and Miss Ensby were unmarried at the time of the alleged fornication, and that the arrangement that had been made between them was in substance and actual effect to appear married rather' than to be married, and thus cover up their illicit relations.”

And as expressed by the judge in his qualification of the other bill:

“The court found from the evidence that such arrangement as existed between defendant and Miss Ensby was merely to cover up their illicit relations, and its purpose was; to insure that the parties appear married without being married.”

We think it unnecessary to go into a detailed statement of this woman’s testimony, which established the state of fact as found by the trial judge. Suffice it to say that the effect of it is that she claims they first met in Nebraska in January, 1911; that about May, 1911, as expressed by her in one place in her testimony:

“I said to him, ‘Let’s live together as man and wife;’ and he said, ‘All right;’ and no mention was ever made of a ceremony or anything of that sort.”

And in another place she says the proposition to thus live together came from her, and not from him. She then shows that they announced it to their friends that they were married, and that they went to living together as husband and wife would; that he traveled for awhile, and in some of his travels she went about with him, and they registered as man and wife; that they were not together all the time, but were separated a part of this time, presumably because of his traveling about,' or her visiting others; that in about January, 1913, he landed in Houston, and six weeks later she followed him there, and they renewed their relationship at Houston, and continued such relationship until he married another woman under a regular license and by a proper officer in Houston on March 2, 1915.

There is an entire absence of any evidence whatever showing that, before they assumed the said relationship, he wooed and won her for his real wife. In one place she testified that, at the time of the said agreement that they were to live together as man and wife, it was made at her instance and suggestion, and she said:

“I thought some day I would be his wife. I was his wife then; but by saying that some day I thought I would be Ms wife X mean that I thought that some day we would get a marriage license and go through the ceremony.”

■She says at that time she really intended and expected to be his wife some time, and she thought that was 'his intention; that he said it was. In another place she says:

“Mr. Nye did not tell me recently that our marriage was a mock marriage. I knew I was not married to him, and he did not have to tell me I was not. I did not regard myself as Ms legal wife. I went by Ms name for protection, so that people would not know how we came to toe living together.”

In another place she said:

“I do not know what Mr. Nye intended when we first went together. I do know that he is not living with me now. I have not talked to him. with reference to his being married again. I do not know the exact date we quit living together, but it is somewhere in the neighborhood of a month. As to the reason I took Mr. Nye’s name, we agreed to be man and wife, and naturally I would take his name. I do not still claim to be his wife. I could not very well be his wife now. He has got another one now.”

It is beyond controversy the law of this state that a real common-law marriage, properly agreed to by both parties, and properly consummated by both, is a valid and legal marriage. Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, Ann. Cas. 1915C, 1011; Melton v. State, 71 Tex. Cr. R. 146, 158 S. W. 550. And if these parties had really thus been married appellant would not have been guilty, even though without a divorce he subsequently attempted to legally marry, and would otherwise have legally married, another woman. As the testimony in this case, without any sort of doubt, authorized the trial judge to find that these parties were not thus married, we deem it unnecessary to discuss this question further.

As the question of appellant’s intent in the sexual relation between him and said woman, Miss Ensby, was a material inquiry, the marriage license procured by him on March 2,1915, authorizing him to marry Lennie B. Williams, another woman, and the return thereon, showing that he did so marry her on that date, was clearly admissible. Not only did the testimony of said woman, Kittie Ensby, show that they were not legally married under the common-law, but his act of marrying another woman without any pretense of a divorce from her, would show and tend to show that he never intended that the relationship that existed between him and said Kittie Ensby was really and truly that of husband and wife. His acts showing his intent speak louder than words. Even though the intention of the woman was that they should be husband and wife, her intention could not control. It took the intent of both and each of them, and if his intent was lacking there could be no common-law mar- ' riage, even though that might have been her intention.

We have carefully examined the record in this case, and read and studied the evidence, in addition to hearing appellant’s attorney read it in the submission of the caso, and we think, without doubt, the correct conclusion was reached by the trial judge; and the judgment is affirmed.

' DAYIDSON, J.

(dissenting). The conviction was for fornication. I am persuaded that from the evidence appellant was guilty of bigamy. The testimony of the woman with whom the fornication was alleged shows that she first met the defendant in January, 1911, and they began living together as husband and wife in May, 1911, and that they continued to live together as such until about a month before this prosecution was instituted, which was the 8th of March, 1915, as husband and wife, and that they lived together nearly four years. She says :

“He and I had an understanding and agreement that we would 'be man and wife. I introduced Mm as my husband, and he introduced me as Ms wife. Since that time I have been known, as Mrs. Nye. Prior to that time there was no improper relationship Between us at all; that is, prior to May, 1911. Since that time we have lived together continuously as husband and wife, during the time we have been together; up until about a month ago. During that time we have resided together and been introduced as husband and wife, and gone about together as husband and wife. That has been ever since May, 1911. I came to Houston from Oklahoma in January, 1913. Prior to that time I had been absent from) Mr. Nye about a month. I had been visiting my sister in Oklahoma. That was the occasion of my absence from Mr. Nye. Then I came right on to Houston. Mr. Nye was stopping at the Bristol Hotel in Houston, and I went right on. to his room immediately on my arrival in Houston. Then he and I began to look for a boarding place, and went out to Mr. Lieder’s, and have been boarding there since that time. Since the time he and I agreed to marry, we have both recognized each other publicly and introduced ourselves publicly everywhere as Mr. and Mrs. Nye. During that time I was certainly in every way faithful to him as his wife. Mr. and Mrs. Lieder addressed me as Mrs. Nye. While I was employed at Levy Bros.’ I was employed as Mrs. Nye. I received my mail as Mrs. Nye. Mr. Nye traveled for a while -when we first married, and we stopped at hotels and registered as Mr. and Mrs. Nye. I have never been known by any other name, except Mrs. J. H. Nye, since we agreed to be married in May, 1911. My relatives and friends know me as Mrs. Nye, and so do my sisters and brothers. At the time this agreement was entered into that Mr. Nye and I should marry and live together as husband and wife, I thought some day I would be his wife. I was his wife then; but by saying that some day I thought I would be Ms wife I mean- that I thought that some day we would get a marriage license and go through the ceremony. At the time we agreed to live togther as husband and wife, I really intended and expected to be his wife from then on. I thought that was Ms intention. He said it was. The agreement that we should live together as man and wife was made in Omaha, Neto. Immediately after we made that agreement, Mr. Nye introduced me as Ms wife. I do not remember any particular names of people to whom he introduced, me, but they were just friends that we would meet. My brother lived in Omaha at that time, and we introduced ourselves to him as man and wife right afterwards, and told him that we had married. It was published in the Omaha paper that we had married. During the time we lived together Mr. Nye has been supporting me as a man does his wife. Prom the date we made the agreement it was my intention to be his wife from that day on. That was my purpose in making the agreement, and I have complied with that agreement, and have remained his wife as much as I could outside of a formal ceremony. Mri Nye did not tell me recently that our marriage was a mock marriage. * * • I went ’by his name for protection, so that people would not know how we came to be living together. I used the money that I made when I worked at Levy Bros.’ for my own self. I do not know whether Mr. Nye got any of the money I made. He did not take my earnings. As a matter of fact, Mr. Nye did not in any way mislead me. We both agreed to be husband and wife. We have lived together continuously since then as husband and wife, and he has supported me as his wife. Whem I say that I took his name for protection, I mean for him to protect me as his wife. I never had any other intention than to' be his wife; had no other purpose in view. We were not just temporarily living together, 'but I intended to be and to remain his wife, and the only thing that we did not do was to follow out a formal ceremony by getting a license. As to my earnings, each one of us has at times let the other have money, just as a man and wife would. I have let him have some of my earnings at various times but I never kept any account whatever of it, and never charged him with any of it. It was all in the family. Mr. Nye took out insurance on his life in my favor as his wife, and named me in the policies as his wife.”

Mr. Fred Bieder testified:

That the defendant and Mrs. Nye, with whom he is charged with committing fornication, lived at his house and did light housekeeping for nearly two years. They slept together; had one bedroom and one bed. “When they were living in my house, I understood they were man and, wife, and they went under the name of Mr. and Mrs. Joseph Nye.”

Another witness testified, speaking of Miss Ensby, or Mrs. Nye, says:

“She came to the store, and addressed Mr. Nye as her husband, and asked for him as her husband. The first I knew that Miss Ensby was not Mrs. Nye was when some investigation was made by the federal officers. Prior to that time, as far as I know, she was reputed to be Mrs. J. H. Nye, the wife of the defendant, and they were living together as man and wife, and were known as such to me and to everybody else, so far as I know, and I never hoard anything to the contrary until this investigation.”

This is enough of. the testimony to indicate the relation of the parties. I do not care to enter into a discussion, of this testimony. Por nearly four years these parties lived together as husband and wife, publicly and everywhere, known among their relatives as being husband and wife, and wherever they went and wherever they traveled they were known as husband and wife publicly and to everybody. Enough of the testimony has been repeated to show that, if a common-law marriage could be had by the facts and acts and circumstances, there is enough here to | satisfy any fair mind, it occurs to me, that this was a common-law marriage. This comes within the rule laid down by the Supreme Court in Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, Ann. Cas. 1915C, 1011. The Grigsby Case lays down the correct rule, and under that rule this was a common-law marriage. The “status” was fixed by the parties to be annulled only by death or divorce. This question has been so often decided in Texas that it would be a work of supererogation to cite the cases. I, however, cite Cuneo v. De Cuneo, 24 Tex. Civ. App. 436, 59 S. W. 284; Simmons v. Simmons (Civ. App.) 39 S. W. 639; Burnett v. Burnett (Civ. App.) 83 S. W. 238; Simon v. State, 31 Tex. Cr. R. 186, 20 S. W. 399, 716, 37 Am. St. Rep. 802; 26 Cyc. 382; 19 Am. & Eng. Ency. of Law, p. 1204.

A common-law marriage is valid if the parties agree to live together and carry out the contract. Defendant and this woman lived together, took upon themselves all the responsibilities, duties, and obligations that belong to the marital relation, such as holding themselves out to the world as husband and wife, and carrying on their business relations and matters of that sort, dealings with society, and were so received and acknowledged, and they themselves so acknowledged and thus fixed their “status.” I do not know how facts could more clearly show a common-law marriage than this record shows. It is in evidence by the state that the husband, or appellant, took out a life insurance policy in favor of the woman as Ms wife,' traveled with her as such, registered at hotels, paid all her expenses, and they handled their funds as a family usually does, and as husband and wife. Everybody understood them to be husband and wife; they published it in the newspaper at the time of the marriage, and announced it to her brothers and sisters, and were by them so accepted, received, and treated. It would hardly be questioned, if there had been a child born of this relation and one of the parties died, that the child would have inherited legally whatever was coming to it as an heir of the deceased parent. I would ask: How long would it take parties to recognize each other as married people in order to constitute such relation of common-law marriage? If four years is not sufficient length of time to fix and determine that status, how long would it take for the parties to publish to the world and hold themselves out as husband and wife to constitute such status a common-law marriage?

I make these short observations, believing the opinion to be wrong in holding the relation of these parties to be that of fornication. The case shows bigamy on the part of appellant, and not fornication.

The judgment ought to be reversed, and the cause remanded.
      ^&wkey;Eor other oases see same topic an! KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CHISOM v. STATE.
    (No. 3618.)
    (Court of Criminal Appeals of Texas.
    June 16, 1915.
    Rehearing Denied Oct. 13, 1915.)
    1. Indictment and Information <&wkey;122—Ac-cusation—'Vaeiance—Substantial Ag-keement—Common Name.
    A complaint charged that an assault was committed with “knucks, commonly known as brass knucks,” while the information based on the complaint described the weapon merely as “knucks.” Held, that the omission of the phrase “commonly known as brass knucks” was not a fatal variance.
    [Ed. Note.—For other cases, see Indictment and Information, Cenr. Dig. §§ 321-325; Dec. Dig. <&wkey;>122.]
    2. Criminal Law <&wkey;176 — Evidence — Expert Witnesses—Opinion.
    Where a doctor has qualified as an expert, it is not error to admit his opinion as to causes of the injuries complained of, especially where his opinion is supported by his statement of the nature of the wounds.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1062; Dec. Dig. <©=3476.]
    3. Assault and Battery &wkey;>91—Proof—Va-riance— Substantial Proof.
    An information charging an assault with “knucks” will be supported by substantial proof of the means used.
    [Ed. Note.—For other cases, see Assault and Battery, Cent. Dig. § 136; Dec. Dig. &wkey;>91.3
    4. Criminal Law <&wkey;200-rEviDBNOE — Relevancy—Other Offenses.
    On a charge of assault with “knucks,” it is immaterial that the defendant has already been acquitted on the charge of unlawfully carrying knucks on the occasion of the assault; the question of unlawful carrying not being in issue.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dee. Dig. &wkey;200.)
    Appeal from Harris County Court, at Law; O. O. Wren, Judge.
    Wash Chisom was convicted of aggravated assault, and he appeals.
    Affirmed.
    Meek & Kahn, of Houston, for appellant. John H. Crooker, Or. Dist. Atty., and E. T. Branch, both of Houston, and O. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged by information with “unlawfully making an aggravated assault and battery upon the person of Oscar P. Steckel, with a weapon then and there calculated to inflict serious bodily injury, to wit, knucks, and by the use of said •weapon did then and there inflict serious bodily injury to the said Osear P. Steckel,” etc. The Assistant Attorney General and Mr. B. T. Branch have filed a brief, which in our opinion correctly disposes of each question presented, and we therefore adopt the brief as the opinion of the court:

“1. The complaint on which the information is based recites that the assault was committed with a weapon, ‘to wit, knucks, commonly known as brass knucks,’ while the information describes the weapon as ‘knucks.’ Appellant contends that there is a fatal variance between the information and the complaint as to the description of the weapon with which the assault is alleged to have been committed, on account of the fact that the words ‘commonly known as brass knucks,’ which appear in the complaint, are not contained in the information. The terms ‘knuckle,’ ‘knuckles,’ ‘knucks,’ ‘brass knuckles,’ and ‘brass knucks’ have the same meaning. Mills v. State, 36 Tex. Cr. R. 71, 35 S. W. 370; Morrison v. State, 38 Tex. Cr. R. 392, 43 S. W. 113. Where there is substantial agreement between the information and the complaint, on which it is based, a variance is immaterial. Meier v. State, 10 Tex. App. 39; Cole v. State, 11 Tex. App. 67; Steinberger v. State, 35 Tex. Cr. R. 492, 34 S. W. 617; Baker v. State, 35 S. W. 666; Huizar v. State, 63 S. W. 329; Moreno v. State, 64 Tex. Cr. R. 660, 143 S. W. 157, Ann. Cas. 19140, 863; Brown v. State, 170 S. W. 714. This is an information for an assault, and it is not sought to charge the unlawful carrying of a prohibited weapon on the person. The name by which a thing is commonly called is in law its name, though in fact it may bear a different name. Roman v. State, 64 Tex. Cr. R. 515, 142 S. W. 912; Schenk v. State, 174 S. W. 357. We think the variance is immaterial and could in no way have affected the rights of the appellant. The ground of aggravation relied on was that serious bodily injury was inflicted.
“2. There was no error in permitting the doctor, who had qualified as an expert, to give his opinion as to the probable cause and nature of the injuries inflicted on the alleged injured party. Waite v. State, 13 Tex. App. 180; Banks v. State, 13 Tex. App. 182; Streight v. State, 62 Tex. Cr. R. 453, 138 S. W. 742; Spates v. State, 62 Tex. Cr. R. 532, 138 S. W. 395; Lacoume v. State, 143 S. W. 626; Williams v. State, 144 S. W. 626; Harris v. State, 148 S. W. 1076; Singleton v. State, 167 S. W. 46; Brown v. State, 174 S. W. 362. The opinion of the doctor that the injured party was struck with metal knucks, or with some instrument capable of inflicting a similar injury, is borne out by his descrintion of the wounds inflicted, the number of fractures, and the direct connection between the fractures and the surface of the skin.
“3. The proof is sufficient to sustain thé finding of the trial judge, as shown by his qualification to bill of exceptions No. 4, accepted and filed by appellant, to the effect that the testi-monv was amply sufficient to show circumstantially that the prosecuting witness was struck with knucks, as found by the jury, whom the judge had charged to acquit unless they found he was struck with knucks. The qualification to this bill shows, also, that the trial judge was clearly convinced that the prosecutor was either struck with knucks made of metal or some hard substance, or with some instrument capable of and which did produce the same injury as if he had been struck with knucks. In proving the means used in committing a murder, or any grade of assault, only the substance of the issue need be proven. Douglass v. State, 26 Tex. App. 109, 9 S. W. 489, 8 Am. St. Rep. 459; Monk v. State, 27 Tex. App. 450, 11 S. W. 460; Johnson v. State, 29 Tex. App. 150, 15 S. W. 647; Morris v. State, 35 Tex. Cr. R. 317, 33 S. W. 539; Brown v. State, 43 Tex. Cr. R. 293, 65 S. W. 529; Taylor v. State, 44 Tex. Cr. R. 550, 72 S. W. 396; Lopez v. State, 73 Tex. Cr. R. 624, 166 S. W. 155.”

The fact that appellant had been tried and acquitted of unlawfully carrying brass knucks on this occasion would not bar a prosecution for an assault with knuckles. They are two separate and distinct offenses, and even though the proof on the trial for carrying the knucks might have been insufficient to sustain a verdict that he had knucks, or that he unlawfully carried them, yet on this trial it was wholly unnecessary to prove that he unlawfully carried the knucks; that would not be an issue in this case. Or if the state in that case failed to prove he had on or about his person knucks, this would not prevent the state on this trial adducing additional testimony and showing that he did in fact strike Steckel with knucks. We do not know what the testimony was on the trial of the case when he was charged with carrying the knucks; we only have the testimony adduced on this trial, and the facts and circumstances offered in evidence by the state will support the finding of the -trial court and jury that Steckel was struck with knucks.

The judgment is affirmed.
      (©=3For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    MOSER v. STATE.
    (No. 3647.)
    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    Rehearing Denied Oct. 13, 1915.)
    1. Homicide &wkey;>300 — Self-Defense — ABSTRACT INSTRUCTIONS.
    In a prosecution! of a peace officer for murder in having killed deceased after the latter had made an attack upon two brothers, where the testimony conclusively showed that such brothers passed out of the difficulty entirely when defendant came up and took hold of deceased, failure of the court to tell the jury that the brothers were not bound to retreat when attacked by deceased was not erroneous, as there was no such issue in the case.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <&wkey;>300.]
    2. Homicide &wkey;>300 — Trial — Abstract INSTRUCTIONS.
    In a prosecution for murder, where defendant peace officer killed deceased in the scuffle that ensued upon the officer’s coming up when deceased was attacking two brothers with a knife, there being nio question of retreat involved under any theory of the facts in the case, the failure of the court to charge upon the law of retreat as applied to the two brothers and the peace officer was not erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. &wkey;300.]
    3. Homicide &wkey;>250 — Manslaughter—Sufficiency of Evidence.
    In a prosecution for murder against a peace officer, evidence held sufficient to sustain! a conviction of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. &wkey;250.]
    Appeal from District Court, Zavala County; R. H. Burney, Judge.
    J. M. Moser was convicted of manslaughter, and lie appeals,
    Affirmed.
    D. Old, of Uvalde, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted for murder, in the second degree, of Morton Barnard, alleged to have been committed on or about September 14, 1912. He was convicted of manslaughter and assessed the lowest punishment.

It will be seen that this offense is alleged to have been committed prior to the act of the Legislature doing away with the degrees of murder. The indictment is unquestionably Correct under the old law and was properly preferred thereunder.

The state’s first witness, Acie Stapleton, testified:

“I reside in Uvalde, Uvalde county, Tex., and have known the defendant in this case for seven or eight years, and kniew the deceased, Morton Barnard. I was present on the night of the 12th day of September, 1912, at the time that Morton Barnard was shot. Along about l2 o’clock of that" night, I went into the Hollingsworth drug store, and Morton Barnard was in| there and was talking to the Cobb boys, that is, to Walter and Henry Cobb, and they were having some kind of an argument, and I got a drink of water and went on out in front, and immediately after I got out in front of the building Walter and Henry Cobb came out and sat down on the little bench in! front of the store under the window, and after they had been there a few minutes, the deceased, Morton Barnard, came out, and attempted to renew the argument, and some words passed, and Henry Cobb got up, and said something about leaving, but I did npt understand exactly what he did say, and started off down the sidewalk, going west, with his back turned towards the deceased. At that time, the deceased, Morton Barnard, was standing in front of Walter Cobb, and when Henry Cobb made the statement about going away, and started west, the deceased started down the sidewalk after him, and rushed up to him, and struck at him with a knife, and Henry Cobb turned around, and the deceased backed out in the street, and the Cobb boys approached him, and the deceased still had a knife in his hand, an|d he rushed up to Henry Cobb and struck at him with the knife, and then rushed up to Walter Cobb and struck him with the knife. About this time, the defendant in this case, Jim Moser, and Will Watkins came up from behind, and Moser grabbed hold of the deceased from behind and jerked him down, and the deceased got up on his feet, and they got into a scuffle, and were hugging and going around and around, anjd I heard cither Moser or Watkins say, ‘Give me the knife,’ or, ‘Turn the knife loose,’ or something to that effect, and I heard the deceased say, ‘I have already thrown the knife down;’ but they continued to scuffle around, and up between the wheels of a buggy that was standing there, which belonged to the Howard boys, and, after they had gotten up between the buggy wheels, Jim Moser got out his pistol, and began trying to hit the deceased over the head with it, and I saw it come up and down two or three times, and finally Moser had hit the deceased over the head with the pistol, and knocked him loose from him, and knocked him down, practically, on his knees, and, as soon as he had done this, he (the defendant) stepped back, and fired point blank at the deceased, and at the time that he fired the muzzle of the pistol was not more than; 18 inches from the body of the deceased. This all, happened in three or four minutes. Immediately after the shot was fired, the deceased arose to his feet, and his clothes on his left breast were on fire, and Will Watkins and I began to put out the fire, and the deceased, Morton Barnard, said: ‘You have killed me, and you have killed a man that never did you a particle of harm in your life.’ The defendant said, ‘No, Blondy, you are not hurt,’ and the deceased was carried on into the drug store by myself and Will Watkins, and we got the doctor there. During the time of the struggle, and just before tbe deceased stated that be bad thrown down tbe knife, I saw a white shining object fall on the ground. Of course, at tbe time, I did not know what it was, just simply saw it was a white object, and that it fell from some of the parties engaged in the scuffle, and it fell out in front of the buggy, that is, westward from the buggy, and very near the sidewalk. This all happened in Uvalde, Uvalde county, Tex., on the 12th day of September, 1912, and the deceased died some three or four days after that, in a hotel at Uvalde, Uvalde county, Tex.
“Cross-examination: I can say that there was plenty of light there for me to see all that was going on. There was the street light right across the street at Rice’s corner, and there was also some light coming from the lamps in Hollings-worth’s drug store, and I could see everything that was going on, and I say positively that I saw a white object fall towards the west of the buggy. I do not remember that I testified before that I saw the knife fall east of the buggy, but, if I did, I got my directions mixed up. Yes, it is a fact that, up to the time that the deceased cut at Cobb on the sidewalk with the knife, no one had made any assault upon him, and no one had done or said anything to him to make him mad. Yes, it is a fact that he seemed mad about something, and it is a fact that he rushed up behind Henry Cobb as he was going a^ay from him. Yes, it is a fact that this is the first that I knew that there was going to be any fight. Yes, it is a fact that I heard one of the Cobb boys say out in the street, after the deceased had already struck at Henry: ‘Boys, somebody give me a club. He has a knife.’ Yes, it is a fact that, at the time that the defendant grabbed hold of the deceased, he had already cut at Henry Cobb with the knife on the sidewalk, and had already cut at Henry Cobb out in the street, and, at the time he was seized hold of by the defendant, he was in the act of cutting at Walter Cobb with the knife. Yes, the defendant in this case was deputy sheriff of Uvalde county, at the time, and was also night watchman, and Will Watkins, who was with him at the time, was also deputy sheriff.
“Redirect examination: No, I never heard either Will Watkins or the defendant in this case call upon the deceased to submit to arrest, and I never heard either one of them tell him that they were trying to arrest him. There was nothing whatever said about an arrest — just grabbed hold of him. But at the time that the defendant jerked the deceased down, I heard some one say. ‘Look out, he has got a knife,’ and then I heard some one say, ‘I have handled lots of worse men than he is, many a time.’ ”

The state introduced other witnesses who testified substantially as did Stapleton. The knife of the deceased was found after the shooting about where Stapleton said he saw it dropped. It was identified, produced on the trial, and introduced in evidence.

Dr. Myrick testified that he was called to deceased immediately after the shooting and reached him very soon; that he was bleeding profusely from a gunshot wound, which entered his left side about three inches above the left nipple; the ball ranged downward and backward, and its exit was in his back, left of his kidney about 12 or 14 inches below the place of entrance; the wound was made with a large caliber pistol, and it was fatal. Deceased died therefrom a few days later.

The appellant’s side of the case is fairly presented by the testimony of Will Watkins, said officer, who was with him at the time he shot deceased. He testified:

“The shooting occurred in Uvalde, right, in front of the Hollingsworth drug store, between 11 and 12 o’clock, on the night of the 12th day of September, 1912. At the time I was deputy sheriff of Uvalde county, and was also night watchman of the town of Uvalde; both of us being salaried officers. On that night, between 11 and 12 o’clock, the defendant and I were across the street from what is known as the Hol-lingsworth drug store corner, and we heard some loud wrangling, and heard some cursing, and heard some one whom we afterwards found to be the deceased, Morton Barnard, using the words, ‘God damned!’ and we got up and started across the street to see what the trouble was, and when we started the deceased was in sight of us, but just immediately after we started we heard footsteps going down the cement sidewalk in a western direction, and saw the deceased start towards the direction in which the steps were going, and he passed from our view, but we kept going, and we did not go upon the sidewalk for four or five seconds after the deceased disappeared. He came back into'our view out into the street, and he made a run at Henry Oobb, and struck at him with a knife, and then turned and made a run at Walter Cobb and struck at him with a knife, and, just at the time that he wa§ in the act of striking at Walter Cobb with a knife, the defendant in this case, Jim Moser, seized hold of him from the side, and pulled him backwards, and I was on the other side of him, and stepped between him and the Cobb boys. When the defendant in the case pulled him backwards, he very nearly jerked him down, and the right hand of the deceased struck the ground, and I saw in his hand at the time a large pocketknife with the blade open, and I said to the defendant : ‘Look out, Jim ! He has got a knife.’ And the deceased immediately jumped up, and seized hold of the defendant, and caught him around the neck, and hugged him up close to him, and began trying to cut him with the knife which was in his right hand, and they struggled around for a minute or so, and got up between the buggy wheels of the buggy which belonged to the Howard boys, which was there, and, after they had gotten up there, the deceased got Moser some way around the neck and throat, and pulled his head around to one side and up, and Jim said: ‘Hit him, Bill! He i's choking mo.’ And again repeated the words: ‘Hit him, Bill! He is choking me.’ In the meantime, I had seized hold of the right hand of the deceased in which the knife was, and the deceased was struggling with this hand, trying to get it loose, and trying to cut Moser with the open knife that he had in his hand, and when Moser said the second time to, ‘Hit him, Bill! he is choking me,’ it sounded like he was choked, and immediately, the second after he said that, the deceased said: T have got one of the God damn sons of bitches now.’ Up to this time, Moser -had never drawn his pistol, but the deceased had been trying to cut him with the knife, and, about the instant that the deceased made this remark, I saw Mos-er’s pistol come up and come around over the arm of the deceased in some way, and was fired, and at the time it was fired the muzzle of the pistol was right against the deceased and set his clothes afire, and at the time that it was fired they were both hugged together between the buggy wheels, very close to each other, and the defendant did not step back, and shoot the deceased, nor did he hit him with the pistol, and knock him down on his knees. When the shot was fired, both the deceased and the defendant turned loose of each other, and the deceased walked around to the west in front of the horse and buggy belonging to the Howard boys, and went up on the sidewalk, and his clothes were on fire at the time from the shot, and the defendant and myself put out the fire. Yes, at the very time that the shot was fired, the deceased had in his right hand an open knife, and was trying to cut the defendant with it, and he was surging this right hand forward in the direction of the de fendant, and all the time he had the knife in his hand continually from the time that Moser took hold of him until the time that the shot was fired, but I do not know what became of the knife after the shot was fired.
“Cross-examination: Yes, it is a fact that I had hold of the deceased from the time that Moser caught him, and from the time that he seized Moser around the neck until the shot was fired, and it is a fact that he had the knife in his hand all the time. I did not get up between the wheels of the buggy, but was standing on the outside of the wheels, holding his right arm. Just at the instant that the shot was fired, I let go his right arm, with one hand, and reached up and caught hold of the hand that was on Moser’s throat, and gave it a jerk, and just as I did that Moser gave his head a jerk, and just at the instant that the shot was fired they came apart, but the two actions occurred at the same instant, but I never let go my hold of his right arm, the hand in which the knife was at any time after I got hold of it until the shot was fired. Yes, it is a fact that neither Moser nor myself called upon the deceased to surrender, and we did not even toll him that we were going to arrest him, nor tell him what we wanted; just seized hold of him, and the struggle began.
“Redirect examination: At the very time that the defendant Moser seized hold of the deceased, he was in the act of striking at Walter Cobb with a knife, and there was not time tó do or say anything; but during the struggle I heard Moser say to the deceased, ‘Give me that knife,’ and the deceased said, T will give you nothing.’ ”

The court charged on murder in the second degree, manslaughter, self-defense, and accidental killing. It presented in a fair, full, and apt way every question raised by the testimony and is subject to none of appellant’s attacks upon it.

Appellant attacked various paragraphs of the charge, numerously. We deem it unnecessary to discuss them separately—except such as appellant mentions in his brief. In his first, he contends the court erred in not telling the jury that the witnesses Walter and Henry Cobb were not bound to retreat when attacked by deceased. This was wholly unnecessary. The testimony conclusively shows that they passed out of the difficulty entirely when appellant took hold of deceased, and they had nothing whatever further to do with the deceased, nor did deceased have anything further whatever to do with them.

His next complaint is that the court erred in not applying the law of retreat as to both the defendant and the said Cobbs. What we have said about the Cobbs above equally applies here. The question of retreat was wholly inapplicable to any state of facts in this case, as shown by the two theories of the case in the above stated testimony.

The evidence clearly raised the issue of manslaughter and likewise self-defense. Both issues were fully and completely submitted, wholly separate and distinct one from the other, by-the court’s charge, and appellant’s complaint that there is a conflict between them so as to make them confusing is entirely untenable.

Appellant’s attack of various paragraphs of the court’s charge on self-defense is without merit. The court gave a clear and apt charge on the various phases raised by the evidence of self-defense and every way as favorable to appellant as the evidence on any issue called for or raised. It is unnecessary to take up each of these attacks separately.

We have carefully considered the evidence, charge of the court, and each of appellant’s attacks thereon.' No error was committed in the trial of this cause.

The evidence amply sustained the verdict, and the judgment is affirmed.
      <gu=>For other oases see same topic and KEY-NÜMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    ROBERTSON v. STATE.
    (No. 3546.)
    (Court of Criminal Appeals of Texas.
    May 19, 1915.
    On Motion for Rehearing, June 23, 1915.
    On Second Motion for Rehearing, Oct. 13, 1915.)
    1. Bail <&wkey;66—Recognizance on Appeal— StTEEICJENCY.
    A recognizance on appeal by one convicted of violating the local option law which recites no specific offense and does not comply with the statute requiring that the punishment itself must be stated is insufficient and ’ requires a dismissal of the appeal.
    [Ed. Note—For other cases, see Bail, Cent. Dig. §§ 279-283; Dec. Dig. &wkey;66.]
    On Second Motion for Rehearing.
    2. Criminal Law <&wkey;1133—Appeal and Error—Rehearing—Motion.
    A motion for rehearing, based upon statements that appellant was deprived of a statement of facts and bill of exceptions through the fault of the trial judge, will be denied, where the statement is in no way way verified.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig: § 2984; Dec. Dig. <&wkey;>1133.]
    Appeal from Rains County Court; J. B. Allred, Judge.
    Allen Robertson was convicted of violating the local option law, and he appeals. Appeal dismissed.
    Affirmed on rehearing, and another hearing denied.
    A. R. Cornelius, of Emory, for appellant C. C. McDonald, Asst Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

The recognizance was in the sum of $250, “conditioned that the said Allen Robertson who stands charged in this court with the offense of selling intoxicating liquor in violation of law, and who has been convicted of said offense in this court, shall appear before this court from day to day and from term to term of the same,” etc. The recognizance is not in compliance with the law. Selling intoxicating liquor in violation of the law recites no specific offense. That general charge may have involved any selling Of intoxicating liquors violative of the law, and does not even refer to the fact that the party was charged with violating the local option law, nor does it state the punishment which was required hy the statute. While the statute says that it is sufficient to recite that appellant was convicted of a misdemeanor and given the following punishment, yet if the recognizance, in the writer’s opinion, would state the specific misdemeanor of which the party was charged and convicted sufficiently as required hy the law, this might answer the requirements of the statute that it was a misdemeanor, provided the offense was a misdemeanor, but it requires further that the punishment itself must be stated. This recognizance does not comply with the law in these respects, and therefore is not sufficient. For that reason this appeal must be dismissed.

In addition, however, we might further say that, so far as the record is concerned, there is no reason shown why the judgment should be reversed, in the absence of a statement of facts which does not accompany this record. The first ground of the motion for a new trial asserts that the verdict of the jury is contrary to the law and the evidence. The evidence, as before stated, is not in the record. The second ground complains of the refusal of the court to grant appellant’s application for a continuance for a certain witness. There was no bill of exceptions reserved to this ruling of the court. The third ground of the motion was reserved to the refusal of the court to give special charge No. 1 asked by appellant. This charge may or may not have been required under the facts, but, as we have not the facts before us, it is impossible for us to review this question, even if the court had acquired jurisdiction. We mention these because the accused might supply a good recognizance and attach the jurisdiction of this court, although the one in the record is insufficient, but it would be useless, it occurs to us, to follow this procedure, unless there was something in the record that would justify a review of the questions presented.

The appeal will be dismissed.

On Motion for Rehearing.

On a former day of this term the appeal herein was dismissed for want of a valid recognizance. Since the rendition of that opinion appellant has filed a sufficient recognizance, which reinstates the case upon the docket. The record is now before us on its merits.

We noticed the fact in the former opinion that the record was in such condition, even had the jurisdiction of this court attached, the judgment would have to be affirmed. We notice again the fact that the record is before us without a statement of facts or bill of exceptions. There is therefore nothing before the court which can be reviewed or discussed.

The motion for new trial insists on three grounds: Hirst, the verdict is contrary to the evidence; second, the refusal of the court to grant a continuance; and, third, refusal to give special charge No. 1. With reference to the first .and third grounds it may be stated that we cannot review those matters for want of the evidence. There is nothing before us to indicate that the jury was wrong in their verdict, or that the charge was applicable to any situation presented by the evidence that would be favorable to appellant. In regard to the third ground it may be sufficient to state there was no bill of exceptions reserved to the ruling of the court overruling the application for continuance.

The dismissal is set aside, and the judgment is now affirmed.

On Second Motion for Rehearing.

At a previous term of this court the judgment herein was affirmed. After the adjournment of the term, which occurred the latter part of June, appellant filed a motion for rehearing, because appellant has been deprived of a statement of facts and bills of exception by the trial judge without fault or neglect on the part of appellant or his counsel, and appellant represents to this court that he thought his attorney made and prepared a statement of facts, which was agreed to by the county attorney on 27th of October, 1914, and' which statement of facts and bills of exception were immediately presented to the trial judge with the request to approve same, or prepare a statement himself, which said judge failed and refused to do, though requested to approve the same and return same to appellant’s attorney so they could be filed with the clerk. Appellant further says that the trial judge arbitrarily held in his possession the statement of facts and bills of exception until after the time allowed for filing same, and refused to approve same. Therefore he asks this court to consider the matter. This statement is signed by counsel for appellant, but there is no affidavit made. This application is not sworn to; in other words, it is not sufficiently presented so that this court can act upon it. The judge makes no certificate, and in fact the unsworn statement by counsel is all that is presented to the court with reference to it. Under this showing we are not authorized to consider the statements in the motion, and in order to do so they must be verified in some way.

The motion for rehearing therefore will be overruled.
      other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: URENDERGAST, P. J.

text:
    VOLLINTINE v. STATE.
    (No. 3635.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.
    On Rehearing, Oct. 13, 1915.)
    1. Criminal Law <&wkey;193% — Former Jeopardy.
    Where defendant tried for murder was acquitted by a conviction of manslaughter, the issue of murder could not be submitted in another trial, though the court, in submitting manslaughter, might charge as to what constituted murder.
    [For other cases, see Criminal Law, Cent. Dig. §§ 366, 387, 389, 394; Dee. Dig. &wkey;393y2.]
    2. Homicide &wkey;>300 — Instructions — Self- ' Defense.
    In a trial for murder, where the issue of self-defense was raised, an instruction that defendant, in exercising such right, could use only such degree of force as it reasonably appeared to him at the time and place was necessary to protect himself against unlawful violence, was erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. &wkey;j¿00.]
    3. Homicide &wkey;>300 — Instructions—Threats.
    Where the evidence in a trial for murder raised the issue of self-defense based on threats, the refusal to submit it was error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <&wkey;>300.]
    4. Homicide <&wkey;47 — Manslaughter — “Adequate Cause.”
    Adultery of the deceased with the wife of appellant was “adequate cause” which might reduce the homicide to manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 71; Dec. Dig. <&wkey;47.
    For other definitions, see Words and Phrases, First and Second Series, Adequate Cause.]
    5. Homicide <&wkey;>341 — Instructions—Manslaughter-Adequate Cause.
    In a prosecution for murder, a charge on manslaughter that, if defendant believed that the deceased had improper relations with his wife, it would be adequate cause, was sufficient, and a failure to further charge that, if he believed that deceased had had improper relations with appellant’s wife, such belief by him would be real to him, whether such relations existed or not, is not error requiring' reversal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 721; Dec. Dig. &wkey;341.]
    6. Homicide <&wkey;181 — Evidence—Letter.
    In a prosecution for murder, wherein defendant alleged as provocation that deceased had had improper relations with defendant’s wife, the contents of her letter to deceased was inadmissible, but the fact that deceased received a letter from her and the registry receipt for it to which his answer to her was in reply was admissible.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. <&wkey;>181.] Prendergast, P. J., dissenting in part.
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    J. T. Vollintine was convicted of manslaughter, and he appeals.
    Reversed, and cause remanded.
    B a shin, Dodge, Bashin & Eastus, of Ft. Worth, and Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   URENDERGAST, P. J.

Upon a trial for murder appellant was convicted of manslaughter and assessed the highest punishment.

In view of the disposition we make of this case, we will give no extended statement of the evidence. Unquestionably the evidence raised, and it was the duty of the court to submit, the issue of murder, and the court did not err in so doing. However, under the law, as appellant was acquitted of murder, of course, that issue cannot be submitted in another trial, although it may be proper for the court, in order to properly submit the issue of manslaughter, to inform the jury what is murder, as is frequently necessary to do when an accused is tried for manslaughter only.

By appellant’s testimony alone self-defense was raised, and this issue, based on his testimony, was as favorably submitted in his behalf by the court’s charge as the law and facts would authorize. However, after thus submitting the issue the court added thereto subdivision 14 as follows:

“You are further instructed that; in exercising his right of self-defense, the defendant is permitted only to use such degree of violence as it reasonably appeared to him at the time and place was necessary to prevent or protect himself against such unlawful violence.”

In proper time appellant specially excepted to this. We think it clear under the authorities that this instruction under the facts of this ease should not have been given. Branch’s Grim. Law, § 451.

The court refused to submit a charge on self-defense based on threats. This was properly excepted to and the point saved, and appellant even requested a special charge on the subject. In -our opinion, the evidence raised this issue, and the court erred in refusing to submit it.

In the charge on manslaughter the court properly told the jury that adultery of the deceased with the wife of appellant was adequate cause. He further told them that, if the defendant believed that the deceased had improper relations with his wife, this would constitute adequate cause. Appellant complains of these charges' in that the court should have gone further and told the jury as requested in his special charge, that if they believed from the evidence that appellant believed that deceased had had improper relations with appellant’s wife on the occasions of their meeting at a certain place in Dallas and at a certain other place in Ft. .Worth, or either, then such belief by him would be real to him, whether such improper relation was, in fact, had or not. We think it may have been proper to have given such an instruction under the facts of this case, but it is not such error as we think would justify a reversal. However, it might be better for the court to embrace this matter in a proper charge on another trial.

In the opinion of this writer, the letter of appellant’s wife to deceased, dated September 12, 1914, in view of appellant’s testimony and the letter of the deceased in reply to appellant’s wife, introduced in evidence by him, was properly admitted in evidence. 'His Brethren, however, incline to the opinion that the contents of the letter should not have been admitted in evidence, but the fact that deceased received a letter from her and the registry receipt for it to whifch his answer to her was in reply was admissible in evidence.

There is nothing else raised which presents any error or needs any discussion. Owing to the near approach of the adjournment of this court for the term and the press of many other matters, a full discussion of the questions decided is pretermitted.

For the errors above pointed out, the judgment is reversed, and the cause remanded.

On Eehearing.

We think the original opinion, wherein we held the court on another trial should charge, as insisted by appellant, to the effect that, if appellant believed deceased had had improper relations with his wife, “then such belief by him would be real to him,” is not correct, but the court’s charge, as given, is sufficient. With this correction in the original opinion, the motion for rehearing is overruled.
      «gspFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    Ex parte SAPP et al.
    (No. 3659.)

    (Court of Criminal Appeals of Texas.
    June 23, 1915.
    Rehearing Denied Oct. 13, 1915.)
    1. Habeas Corpus <&wkey;113 — Admission to Bail — Appeai>-Evidence.
    On appeal from an order denying admission to bail, the Court of Criminal Appeals will not discuss the evidence.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 114; Dec. Dig. &wkey;>113; Appeal and Error, Cent. Dig. § 3400.]
    2. Bail <&wkey;42 — Admission to Bail.
    Ender Const, art. 1, § 11, all prisoners are to he admitted to bail, save when the proof is evident, not only that accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 139-144, 147-152; Dec. Dig. &wkey;42.]
    3. Habeas Corpus &wkey;>113 — Appeal—Review —Evidence.
    Where there was evidence warranting the conclusion, in habeas corpus, denying relator hail in a prosecution for a capital offense, that proof of guilt was strong, its order will be upheld on appeal.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 114; Dec. Dig. <&wkey;>118; Appeal and Error, Cent. Dig. § 3400.]
    Appeal from District Court, Hardin County; J. Llewellyn, Judge.
    Ex parte application by E. E. Sapp and others for a writ of habeas corpus for admission to bail. From an order denying bail, they appeal.
    Affirmed.
    F. J. & O. T. Duff, of Beaumont, Coe & Coe, of Kountze, and Howth & Adams, of Beaumont, for appellants. D. J. Harrison, Dist. Atty., of Liberty, W. R. Blain, of Beaumont, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellants were indicted for the murder of Dick Watts. They sued out a writ of habeas corpus before the district judge, who, after hearing all the evidence, denied them bail. Hence this appeal.

The statement of facts is voluminous. We have given it, and appellants’ briefs, careful consideration, in addition to having heard the evidence discussed on submission for an hour on each side, by the able attorneys representing the appellants and the state. It is the rule of this court not to discuss the evidence in appeals of this character, and we shall adhere to that rule now.

“The rule is: ‘All prisoners shall be bailable.’ Section 11, art. 1, of our. Constitution. The exception is: ‘When the proof is evident’ that not only the accused is guilty, but that the jury will, if they properly enforce the law, probably assess capital punishment; this conclusion to be reached by the well-gúarded and dispassionate judgment of the court or judge passing upon the question.” Ex parte Stephenson, 71 Tex. Cr. R. 382, 160 S. W. 77. As we understood appellant’s attorney, on the submission hereof, it was conceded that in all probability a jury will assess the death penalty, if on final trial the guilt of appellants is shown. At any rate, whether conceded by appellants or not, in our opinion, if their guilt is so shown, a “jury will, if they properly enforce the law, probably assess capital punishment.” That feature need not be further considered.

The only other question, then, is whether or not the evidence as a whole was clear and strong enough to “lead a well-guarded and dispassionate judgment to the conclusion * * * that the accused is the guilty agent.” Ex parte Russell, 71 Tex. Cr. R. 378, 160 S. W. 76. If so, bail was correctly denied. The law of our state on this question is well, and has long been, established, not only by our constitutional and statutory provisions, but by our decisions as well. We will cite and quote from some of our decisions — not all of them to the same effect, by any means.

In Ex parte Evers, 29 Tex. App. 560, 16 S. W. 343, this court, by Judge Davidson, said:

“ ‘All prisoners shall be bailable by sufficient sureties unless for capital offenses when the proof is evident.’ Bill of Rights, § 11. By virtue of this provision the right of bail is secured to all persons in this state who arc accused of crime, except in cases where the evidence manifests with reasonable certainty that the accused party is guilty of a capital offense. McCoy v. State, 25 Tex. 33 [78 Am. Dec. 520]; Ex parte Coldiron, 15 Tex. App. 464; Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99. The rule in this state for determining whether or not bail should be granted is as follows: ‘If the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right.’ Ex parte Smith, 23 Tex. App. 126 [5 S. W. 102], Stated in another form it is thus laid down: ‘If, upon the whole testimony adduced, the court or judge entertains a reasonable doubt whether the relator committed the act, or whether in doing so he was guilty of a capital crime, bail should be granted.’ Same authority. ‘This rule applies when the ease is considered on appeal, the cowt keeping in mind the prima fame legal presumption that the action of the trial judge was correct.’ (Italics added.) Same authority. ‘To the mind of the tribunal passing upon the evidence the g'uilt of the applicant of a capital offense may be evident * * * and yet there may be evidence in conflict with such inculpatory evidence. It is not all conflicting, exculpatory evidence that will have the effect to raise a reasonable doubt of guilt and destroy or impair the force of “evident proof” made by in-culpatory evidence.’ Same authority.”

In Smith v. State, 23 Tex. App. 125-127, 5 S. W. 102, cited by Judge Davidson, it is said the rule is:

“If the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right.”

And further:

This rule “is, as we understand it, in harmony with the constitutional requirement that bail shall be granted unless the proof is evident. It is, in effect, the same rule stated as a correct one in Bridewell’s Case, 57 Miss. 39, but in different language; that is: ‘If, upon the whole testimony adduced, the court or judge entertains a reasonable doubt whether the relator committed the act, or whether in so doing he was guilty of a capital crime, bail should be granted.’ This rule applies when the case is considered on appeal, the court keeping in mind the prima facie legal presumption that the action of the trial judge was correct. A majority of the court are not to be understood as holding that under the operation of this rule the evidence, though conflicting, may not at the same time be evident. To the mind of the tribunal passing upon the evidence the guilt of -the applicant of a capital offense may be evident — that is, clear, strong, not admitting of a reasonable doubt — and yet there may be evidence in conflict with such inculpatory evidence. It is not all conflicting, exculpatory evidence that will have the effect to raise a reasonable doubt of guilt, and destroy or impair the force of ‘evident proof’ made by inculpatory evidence. It is for the judge or court who hears the testimony to consider the evidence as a whole, and if by the entire evidence a reasonable doubt of the applicant’s guilt of a capital offense is not generated, the proof is evident, and bail should be denied.”

In Ex parte Jones, 31 Tex. Or. B. 445, 20 S. W. 983, this court, by Judge Simkins, again said:

“Bail should be granted in murder cases unless, upon examination of all the evidence adduced, the court should conclude that the proof of guilt is evident, and the accused would be' convicted of murder in the first degree if the' law was administered. The guilt of the accused may be evident, though there may be conflicting testimony. Ex parte Smith, 23 Tex. App. 125 [5 S.W. 99]; Drury’s Case, 25 Tex. 45. ‘Proof is evident,’ if the evidence adduced on an application for bail would sustain a verdict convicting the applicant of murder in the first degree. Foster’s Case, 5 Tex. App. 625 [32 Am. Rep. 577].”

In Ex parte King, 56 Tex. Cr. R. 68, 118 S. W. 1032, this court, by Judge Bamsey, said:

“The testimony introduced on the part of the state is amply sufficient, if true, to show that relator is guilty of murder in the first degree. 1-Iis defense consists of proof of alibi, and’ also involves to some extent an attack and impeachment of the state’s witnesses. The case is peculiarly one of fact, and in respect to a matter of this sort, as we view it from the statement of the evidence contained in the record, the judgment of the trial court should not be set aside where there is proof showing the defendant’s guilt to be evident. We are not prepared to say the action of the court below was without ample warrant, and without comment on the testimony we deem it our duty to affirm the judgment of the court below, which is here done.”

That case is specially and peculiarly applicable to this. See, also, Ex parte Cabrera, 53 Tex. Cr. R. 466, 110 S. W. 898; Ex parte Brown, 63 Tex. Cr. R. 613, 614, 140 S. W. 1191; Ex paite Finney, 70 Tex. Cr. R. 284, 156 S. W. 636. As said by Judge Ramsey in. King, supra, so we say in this case:

“We are not prepared to say the action of the court below was without ample warrant, and without comment on the testimony we deem it our duty to affirm the judgment of the court below, which is here done.”
      <S&wkey;Eor other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    LOOPER v. STATE.
    (No. 3650.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.
    Rehearing Denied Oct. 13, 1915.)
    1. Criminal Law <§==>1114 — Appeal and Error — Question Presented — Sueeicibncy oe Evidence.
    Where, on appeal from a conviction of crime, there were no bills of exception in the record, no complaints as 'to the charge of the court, and no special charges requested below, the only question presented was the sufficiency of the evidence to sustain the conviction.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. <©=> 1114.]
    2. Vagrancy' <®=>3 — Sufficiency of Evidence.
    In a prosecution for being an idle person without visible means of support, evidence held to support conviction.
    [Ed. Note. — For other cases, see Vagrancy,. Cent. Dig. § 3; Dec. Dig. <@==>3J
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Jake Looper was convicted of being an idle person without visible means of support, and he appeals.
    Affirmed.
    W. B. Featkerston, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Under a complaint charging him with, on or about January 1, 1915, and continuously up to the time of filing the complaint, February 19th, being then and there an idle person, the appellant being an able-bodied person, who habitually loaied and loitered about the streets of Cleburne, having no regular employment and no visible means of support, appellant was convicted.

There are no bills of exception in the record, no complaints as to the charge of the court, and no special charges were requested. So the only question presented is the sufficiency of the evidence. W. M. Battle, A. C. White, Jim Hughes, Emmett Dillard, Bob Ewing, and Lee Bizzell testify to facts which fully support the .allegations in the complaint. As a defense appellant relies on the fact that he owned a home in Cleburne valued at $400, two vacant lots, value not given, and some other property, value not given. None of them are shown to produce any revenue, or that he has any income therefrom. If the testimony would show that appellant had visible means of support, or an income sufficient to support himself, wife, and children, we would agree with appellant that the provisions of the law under which he was indicted did not reach his case. But, as no such showing is made, we cannot say that the jury, with the law properly presented to them in the charge, was not authorized to return the verdict they did.

The judgment is affirmed.
      <©=3F.or other cases see same, topic andKEY-NUJUBER. in all Key-Numbered Digests and.Indexes


author: I-IARPER, J.

text:
    SLOAN v. STATE.
    (No. 3649.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.
    Rehearing Denied Oct. 13, 1915.)
    1. Intoxicating Liquors <©==>236 — Prohibition Laws — Violation — Sufficiency of Evidence.
    Id a prosecution for violating the prohibition law, evidence held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. §§ 300-322; Dee. Dig. <@= 236.]
    2. Criminal Law <@=>147 — Limitation ob’ Prosecution — Computation of Time from Filins of Indictment.
    In a prosecution for violating the prohibition law, a conviction could only be had for an offense committed within two years prior to the filing of the indictment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 271, 272; Dee. Dig. <@= 147.]
    3. Criminal Law <@=1172 — Appeal and Error-Harmless Error — Mischarge as to Limitation of Prosecution.
    Where, in a prosecution for violating_ the prohibition law, the court erred in authorizing a conviction for the commission of the offense other than within two years prior to the filing; of the indictment, all the evidence nevertheless showing that, if a sale was made at all, it was made within less than two years prior to the return of the indictment, the error was harmless.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3128, 8154^3157, 3159-3163, 3169; Dec. Dig. <@=>1172.]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Henry Sloan was convicted of violating the prohibition law, and he appeals.
    Affirmed.
    W. B. Featherston, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   I-IARPER, J.

Appellant was convicted of violating the prohibition law in Johnson county and his punishment assessed at imprisonment in jail for thirty days and a fine of $25.

The evidence is amply sufficient to sustain the verdict, as Warren Clark testifies he purchased a bottle of whisky from him about the 10th day of February, 1914, and paid him 50 cents for it. Appellant introduced evidence tending to show that he was on the county road in Johnson county, working out a fine from February 4, 1914, until March 4, 1914. However, the judgment introduced by him states the judgment of conviction was had on March 10, 1914. In addition to this Warren Clark testified that he knew when appellant went on the road, and he purchased the whisky a little while before he went on the county road.

Appellant insists that the court erred in authorizing a conviction for any period of time two years prior to February 14, 1914, when he should have counted the time within two years prior to the filing of the indictment in this case. Appellant’s contention is correct, and if the evidence suggested that the alleged sale may have been any time prior to two years before the filing of the indictment, his contention would be ground for reversal of the case. But, as the evidence and all the evidence shows that if a sale was made, it was made within-less than two years prior to the return of the indictment, the assignment presents no ground for reversal.

The judgment is affirmed.


text:
    VAN DYKE v. STATE.
    (No. 3591.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    On Motion for Rehearing, Oct. 13, 1915.)
    1. Criminal Law <@=1092, 1099 — Appeal-Record — Time for Filing Statement and Bills of Exception.
    Where the statement of facts and bills of exception were filed after adjournment of court without an order for that purpose, such papers will not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283<b-2861, 2866-2880, 2919; Dec. Dig. <@=1092, 1099.]
    On Motion for Rehearing.
    2. Criminal Law <@=1092, 1099 — Appeal and Error — Record — Time for Filing Statement — Bills of Exception — Statute.
    Code Or. Proc. 1911, art. 845, regulating .the filing of statement of facts and bills of exception when the appeal is taken from a judg-meat of conviction in a district or county court, does not authorize such papers to be filed after adjournment of court, whether there was an order entered to that effect or not.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. S§ 2803, 2829, 2834^-2861, 2866-2880, 2919; Dec. Dig. <@=>1092, 1099.]
    3. Criminal Law <S=>1092, 1099 — Appeal and Error — Record — Time por Filing Statement and Bills op Exception—Order oe Court.
    Where, on appeal, the clerk of the trial court sent up a certificate showing that the court entered upon its private docket, “Defendant’s motion having been this day overruled, and he having given notice of appeal, and his bond fixed at $700, defendant asked and was granted the time provided by law in which to file his statement of facts,” such order not carried forward into the minutes of the court, does not authorize the filing of statement of facts and bills of exceptions after adjournment of court.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. <©=>1092, 1099.]
    4. Criminal Law <©=>1121—Appeal—Ques-tions Reviewable—Record.
    Where, in a prosecution for violating the local option law, motion was made to quash the information and affidavit because the prohibition election in the county and the publication of the result had not been in conformity with statute, the court on appeal could not consider the question of the invalidity of the election in the absence of evidence on the point.
    [Ed. Note.—For other cases, see Criminal Daw, Cent. Dig. §§ 2938, 2939; Dec. Dig. <©=>1121.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    A. B. Van Dyke was convicted of violating the local option law, and he appeals.
    Affirmed.
    Smith & Spiller, of Snyder, and W. A. Anderson, of San Angelo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged with violating the local option law. There are several interesting questions raised in the motion for new trial and bills of exception, but the record is in such condition that the statement of facts and bills of exception cannot be considered. All these papers were filed after adjournment of court, without an order having been entered for that purpose; at least the record is before us without an order authorizing the filing of statement of facts and bills of exception after adjournment of court. In this attitude of the record these papers cannot be considered, and the questions suggested in motion for new trial and bills of exception cannot be revised.

The judgment therefore will be affirmed.

On Motion for Rehearing.

Just before the adjournment of the term of court in June last the judgment herein was affirmed. The statement of facts and bills of exception were filed out of term time, without an order of the court entered granting time for such purpose. Appellant insists we were in error in not considering his statement of facts and bills of exception, referring us to the act of 1911, art. 845, of the Procedure as authority authorizing such papers to be filed whether there was an order entered or not. In view of the numerous decisions holding to the contrary, and that that law did not apply to county court cases, and only applied to the stenographer’s act, the statement of facts and bills of exception cannot be considered. It is deemed unnecessary to cite these cases.

The clerk sends a certificate showing that the court entered upon his private docket the following:

“Defendant’s motion having been this day overruled, and he having given notice of appeal, and his bond fixed at $700, defendant asked and was granted the time provided by law in which to file his statement of facts.”

This order was not carried forward into the minutes of the court, and therefore cannot be considered. The writer was under the impression that this court would be authorized to consider such an order and consider the statement of facts and bills of exception, but upon looking over the session acts fails to find that the Legislature enacted such a statute. We find that the acts of the last Legislature contain a statute to the effect that where notice of appeal has been given and not carried into the minutes, this may be shown either in vacation or term time, and the proper' order entered, and it shall be regarded as having occurred at the time the notice of appeal was given, but statement of facts and bills of exception were not included in that statute. We therefore cannot Consider the statement of facts and bills of exception.

Motion was made to quash the information and affidavit because prohibition of the sale of intoxicating liquors in the county of Scurry is not in effect, for the reason that the election wherein the question was submitted to the voters of said county and the publication of the result thereof was not in conformity with the statute governing such election, as is shown by the records of the minutes of the commissioners court of Scurry county. Without evidence of that fact before us this question cannot be considered. Where the validity of the election is attacked, the evidence must show such election to be invalid, and that the law was not in force. Whether this could be done on motion to quash or not it is not necessary here to decide, but inasmuch as this court must presume that the election was properly held in the absence of an attack on it, that question cannot under condition of this record, be considered on motion to quash. It might come up in the evidence, and if the evidence showed there was no valid election, of course the evidence would not be sufficient to support a conviction. There must be a law in force punishing the offense, else a conviction cannot occur. But as the matter is presented we cannot consider it.

The motion for rehearing, therefore, will be overruled.
      ©=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes