author: HARPER, J.

text:
    DURFEE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 4, 1914.
    On Motion for Rehearing, April 1, 1914.)
    1. Witnesses (§ 370) — Credibility—Animus.
    In a prosecution for murder, the exclusion of defendant’s testimony to facts tending to show the interest and prejudice of the state’s witnesses from the fact that they had taken him from jail, carried him out of town, and sought to extort a confession from him, was error.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1189; Dec. Dig. § 370.]
    2. Criminal Law (§ 1170) — Apreai^-Harmless Error — Exclusion of Evidence.
    Such error, in view of the fact that another witness, not prejudiced against defendant, testified to the same effect as such other witnesses with respect to bloodstains.on defendant’s clothing, and in view of the fact that such clothing with the stains on them were introduced in evidence, so that the jury might determine whether they were merely rust stains, as claimed by defendant, or bloodstains, as testified by the witness, was not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    3. Criminal Law (§ 404) — Incriminating Circumstances — Clothing.
    In a prosecution for killing a1 woman whom he had outraged, where the evidence was wholly circumstantial, the clothing worn by deceased when killed, with the cuts therein into which a knife, which defendant admitted was his, was found to fit, was admissible as an aid to the jury in determining whether or not her wounds were made with such knife.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457; Dee. Dig. § 404.]
    4. Criminal Law (§ 1169) — Admission of Evidence.
    In a trial for the murder of a woman whom he had outraged, testimony of a young woman as to having seen defendant on the day of the homicide, that she did not notice him much that day, but that he always generally looked at her real hard, and once watched her until she got to the corner, qualified by the court’s statement that it was introduced without objection, and that the objectionable part was at once excluded, presented no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    On Motion for Rehearing.
    5. Homicide (§ 250) — Sufficiency of Evidence-Murder.
    Evidence, in a prosecution for the murder of a woman whom he had previously outraged, though circumstantial, held sufficient to sustain a conviction.
    '[Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    Appeal from District Court, Brazoria Counity; Samuel J. Styles, Judge.

      Joe Durfee was convicted of murder, and lie appeals.
    Affirmed.
    Burns & Williamson, of Houston, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at death.

The testimony upon which this conviction was had is wholly circumstantial, and appellant’s able counsel earnestly insist that it is not of that cogency and force to exclude to a moral certainty every other reasonable hypothesis than the guilt of the defendant. We have read and re-read the record, and there is no circumstance pointing to another, but innumerable circumstances pointing, to appellant, as the person who hilled and outraged Mrs. Seitz, and we would not feel authorized to disturb the verdict on this account.

When N. M. Gibson, a witness for the state, was testifying, appellant desired to elicit.from him the fact that he and others had taken appellant from jail and cárried him out on the road some distance from town, and sought to extort a confession from him as tending to show the animus of the witness toward appellant, and the interest he was taking in the case. And in another bill it is shown that while appellant was on the witness stand he desired to testify that Mr. Gibson, Mr. Nevill, and others took him out of jail, put a rope around his neck, threatening to hang him, and otherwise maltreated him in an effort to extort a confession from him to show the interest, bias, and prejudice of Gibson, Nevill, and the others named. The court erred in not permitting appellant to testify to the facts tending to show interest, bias, and prejudice of the witnesses. Mr. Nevill especially had testified to very material facts for the state. But should the refusal to.admit this testi‘mony work a reversal of the case? Mr. Nevill frankly admitted that he was assisting the sheriff in hunting up evidence in the case, thus admitting the interest he had'taken and was taking in the case. He testified to finding a knife at appellant’s house that was proven to be appellant’s knife; he testified to finding an undershirt with blood on it; that he also found blood on the drawers. Octavia Brown, who lived with appellant, testified that the knife belonged to appellant, and the undershirt and drawers belonged to him also; that he had bathed the night of the homicide, and changed underclothing, leaving these clothes there in the house.

Appellant himself testified and admitted that the clothing found and the knife were his property. He said he had made the knife from an old case knife; it having been sharpened on both sides, and filed down to a point at the end. He admitted that his undershirt had blood on it, but said in shaving he cut himself, and in wiping the blood off his face he had gotten it on his undershirt. But appellant denied that there was blood on the drawers, claiming it was rust stain. Thus, as to the material points testified to by Mr. Nevill and others, whose interest and bias appellant desire to introduce testimony to prove, appellant 'himself testified to the same facts, except in the instance of whether it was blood on the drawers or simply rust stain; he contending that it was rust stain. Were these witnesses. whom he desired to show were taking an active interest in the prosecution, and were biased in their opinions, the only witnesses who testified to blood being upon the drawers, we would hesitate long before holding that the error in excluding this testimony was immaterial. But, in addition 'to Nevill testifying that there was blood on the drawers, Mr. Malcolm Masterson testified that he was one of the men who secured the drawers, and he testified that “he found bloodstains on them — • at least two spots of blood.”' It is not claimed in either of the bills that Mr. Masterson was one of the men who carried appellant away from the jail, or that he had any interest in the prosecution, or was in any way prejudiced against appellant. In addition to this, the record discloses that these drawers, with the stain on them, were introduced in evidence, and the jury thus given an opportunity to pass on whether it was blood on the drawers or merely rust stain, as contended by appellant. Under such circumstances we do not think the ruling of the court, while erroneous, presents reversible error.

Again, it is contended that the court erred in admitting the clothing in evidence. It is seen that it was material to admit the undershirt and drawers of appellant as to whether or not there was blood on them, they being shown to be appellant’s beyond all doubt, and found in his house the day-after the homicide; and we do not understand appellant's objection goes to the introduction of these clothes, but to the introduction of the clothing worn by deceased on the occasion when she was killed. It has always been held that it is permissible only to introduce bloody clothing when their introduction serves to illustrate some point,, or' solve some question, or throw light upon the matter connected with the proper solution of the case; but, whenever the clothing would, in the light of the whole case, aid the jury in properly solving the issues in the case, the court should not hesitate to admit it in evidence. The knife found at appellant’s house, and admitted by him to be his knife, and one he had made from a case knife, is thus described in the record: “Blade about five inches long, about one-half or three-fourths of an inch wide at the hilt, tapering on each edge to á fine point, sharp on both sides, and having á white bone handle about four inches long.”

Dr. Motherall testified:' “I am a physician, and have been practicing for about ten years. I have been in' Angléton since June 17 th, this year. I was there at the time Mrs. Seitz’s body was found. I saw the body about sunup on the morning it was found. I saw her in the alley — she had not been moved when I got there. She was lying in the alley on the side next to the Stockwell place, near the hedge, about two feet from the hedge, her head was south, and her feet north, and her clothing was all up around her knees on one side, and the right knee was drawn up, and the left was straight out, and her left arm was lying across her breast hiding the gashes, and her right hand was around by her side; and the clothing was wet from the dew, and her hair was wet from the dew or fog that formed that night, and her black skirt was 'wet, and her stockings were white and wet, and the mucous membrane was eaten out from between her lips by the ants. I cut her clothing away under the direction of the justice of the peace, and the first I found a contusion of the forehead there, from some heavy instrument or blow, and another one over the left ear, cutting the ear, and bruising the side of the head, and the wounds from her ear down to her neck all the way down her throat indicating that she had been choked and bruised, and there was a discoloration; and I found a place at the juncture of the neck and chest where she had been stamped, showing the prints of the tacks in the heel, and I found a place on her left muscle of her right arm where she had been bitten, and I found four stab wounds about the heart, in the region of the heart, on the left side. I probed these wounds; one of them went almost through the body, probably 6 inches or more, and the others varied in depth say up to about 2y2 inches. X found the left breast caved in by some blunt, heavy instrument — a rock or something of that nature— heavy enough to break the bones. We found every sign that she had been raped; we found bruises about the genital organs, and blood in the vagina, and this woman had not menstruated for about five years, because she could not, as her womb and ovaries had been removed, and that was the only way for the blood to get back up there. We found discharge there — semen—that looked like discharge from the male organs. This was a microscopic examination. We found no sper-matoza germs of the male organs, but were not experienced with the microscope, and of course could be mistaken. The stab wounds in the breast indicated to have been inflicted after death on account of the absence of blood; when we turned the body over, the blood ran freely, and the undertaker’s shoes were almost filled with blood, and before we turned her over there was very little blood on the ground. The chest wounds and the wounds on the neck each would have been sufficient to cause death. Those stab wounds appeared to have been made by a long knife with two edges. [Here witness is shown the knife in evidence.] This knife could have made those wounds. According to the depth of the wounds, they were smaller at the mouth of each of them. I did, not see a rock at that time, but saw' one later, and made an examination of it, and an instrument of that character and weight could have very easily have mashed in the breast, and the mashing would have caused death.” The doctor further testified that he was positive that the lady had béen raped, as well as nyirdered.

It is seen by this testimony that the wounds inflicted with a knife were of varying depth; one only going real deep. It was in evidence that the knife shown to be appellant’s, and introduced in evidence, was fitted to the holes in the clothing of Mrs. Seitz, and the record discloses the following facts: That, by inserting the knife in the rents in the clothing, it went to the hilt in the clothing where the deepest cut was in Mrs. Seitz’s body; where the wounds in the body were shallow, the knife would touch each side of the cut in the clothing before going to the hilt. The clothing further disclosed that the cuts had been made with a knife sharp on both sides. We think this demonstration would aid the jury materially in passing on whether or not the wounds were made in the body with this knife, and there was no error in admitting the clothing in evidence; this being a case depending wholly on circumstantial evidence. As said by this court in the Noftsinger Case, 7 Tex. App. 322, in a case depending wholly upon circumstantial evidence, the mind seeks to explore every possible source from which any light, however feeble, may be derived.

The only other bill in the record discloses that while Miss Lena Burridge was testifying, after she had stated she saw appellant the day of the homicide at Judge A. E. Masterson’s home, in answer to the question: “Did he do anything that attracted your attention particularly? A. I did not notice him much that day, but he always generally looked at me real hard; he watched me once until I got clean to the comer.” In approving the bill, the court states: “All the testimony was introduced absolutely without any objection on the part of defendant or his counsel, and as soon as the objectionable part of the evidence quoted was introduced I at once excluded it from the jury, and positively instructed them not to consider it, and no further instructions were asked by defendant’s counsel.” As thus qualified this bill presents no error. When the court voluntarily on his own motion ex-•eluded the testimony, appellant making no objection to it, the action of the court is to be commended, not criticized.

There was no objection made to the charge of the court, either at the time it was given, nor in the motion for a new trial, and no special charges were requested. The above-discussed bills are all the bills that appear in tlie record, and in our opinion neither of them presents reversible error; and the judgment is therefore affirmed.

On Motion for Rehearing.

Appellant’s able attorneys make an impassioned appeal for a rehearing in this cause, among other things,, saying:

“Appellant comes before this court realizing he is but a poor, downtrodden, helpless creature, surrounded .by a state of facts in all human probabilities not of his own making, and humbly prays the court to give his cause a careful and considerate hearing, to the end that he may have a fair and impartial trial, and that he be not forced to suffer the penalty of death for a crime he did not in all human probability commit.
“The conclusion is irresistible that the popular mind, by virtue of the character and race of the assaultant and assaultee, and the atrociousness of the alleged crime, was inflamed to such an extent as to preclude that fair and impartial trial contemplated and guaranteed by the organic law.' The court will recognize from the evidence that the locality of the commission of the crime was in a small town, and likely the major portion of the citizenship thereof actually looked upon the mutilated body of the dead woman, and thht perhaps each person so inspecting the body graphically and vividly described its horrors to all with whom they came in contact; the average mind of the citizenship of that county, from whose body the trial jury was •drawn, was in a high state of fevered perturbation. No reasonable man would un■dertake to measure the sea’s depth when its waves were lashed in foam and froth by the tempest, and no human being should be put to trial where the issues were life and death when the popular mind of the vicinage was storm-tossed by passion and prejudice, and was clamorous for a victim. The conditions forbade the defendant receiving such a trial as is embraced in due process of law.
“Conceding the circumstances pointed strongly to appellant’s guilt, they do not establish the same with that moral certainty which is indispensable in cases of circumstantial evidence. The court will recall the language of one of its greatest predecessors, when he substantially says: ‘While the facts and circumstances pointing to defendant’s .guilt are cogent, and render it quite probable that he participated in the murder, they do not impress us with that force and conclusiveness which should preclude every other hypothesis except defendant’s guilt.’ ”

That portion of the paragraph relating to the inflamed condition of the public mind, so vividly portrayed in the language, would be of unusual strength and force if it had the least foundation in the record before us. If such a condition of affairs existed, it would be a most severe reflection on the lawyers who tried the case, for no application to change the venue was filed.

But we do not think them entitled to such criticism, for in no line of the record is there any suggestion that the jury who tried appellant was not a fair and impartial jury. There is no suggestion in the record that any one of 'the jury had ever heard of the case, much less formed an opinion, or that “their mind was in a high state of fevered perturbation.” And if there Was the slightest ground for such graphic language, we are satisfied the able counsel who tried this case would, at least, have had the record now before us, to some extent at least, reflect such condition of affairs. Of course, “a poor, downtrodden, helpless creature” is entitled to a fair and impartial trial at the hands of the courts of this state, and we would be recreant to our duty, as would the trial court, if we did not see that he was given such a trial. As to being “surrounded by a state of facts, in all human probabilities, not of his own making,” we can hardly agree with appellant under this record now before us. Appellant is shown to have been the cook at Judge. A. E. Masters.on’s. On the afternoon of this tragedy it is shown that Judge Masterson and family went to an adjoining town to witness a game of baseball, leaving appellant in charge of the premises. It is in proof, and appellant admits, that he prepared the supper that night, and cooked the breakfast next morning — no one else is shown to have made a fire in the cook-stové, nor does the record suggest that any one else probably may have done so. Mrs. L. B. Seitz was boarding at the home of Mrs. Turner; she left Mrs. Turner’s to go to town, which would take her by the. Masterson home. She was last seen alive near the Mas-terson home, and when found dead was near the Masterson home. There is nothing to suggest that she got further, or to any other or different place. Appellant is shown to have been at the Masterson home alone about the time when Mrs. Seitz was seen last alive near this place. Mrs. Seitz was wearing a pair of low-quarter shoes she had purchased from Sells Bros.; a wire gauze hat owned by Mrs. Seitz was missing from her effects at Mrs. Turner’s, and the natural deduction is that she was wearing it that evening on her trip to town. In the ash pan of the stove where appellant did the cooking was a bundle of wire of the .character and kind used to make this character of hat; in the ash pan also were found shoe nails, eyelets, etc., of shoes. A pair of shoes of exactly the same number and kind worn by Mrs. Seitz was purchased from the firm from whom Mrs. Seitz purchased her shoes, and one of them burned. The nails, eyelets, etc., secured from the ashes where this shoe was burned were of the same character, kind, and description found in the ash pan of the stove where appellant is shown to alone have done the cooking. It is true that appellant undertook to explain these things by saying that Mrs. Masterson had thz'own away a •wig, and lie burned it in the stove, and that be sometimes repaired shoes for the Mas-terson family, and those shoe nails may have gotten in the stove that way; yet, while he called Judge Masterson, Mrs. Masterson, and Billy Masterson on other features of the case, he offered no proof by either or any of them that he had ever repaired a shoe for any member of the family, or that Mrs. Master-son ever owned a wig, or had ever thrown one away, and under such circumstances it is not unreasonable that the jury did not believe such explanation. Human blood was found on the post of one of the gates of Judge Masterson’s home next morning. This . was demonstrated by a chemical analysis. Appellant undertook to explain this away by showing that a little girl had cut her foot while playing in the yard; but the evidence discloses that this little girl cut her foot several days after Mrs. Seitz had been killed, and after'the post on which the human blood was found had been removed, and this explanation did not explain how the human blood came on the post the morning Mrs. Seitz’s dead body was found. Mrs. Seitz’s body was shown to have received four stab wounds made with a two-edged instrument. A two-edged knife was found at appellant’s home, made from an old case knife, which appellant admits he made. This knife fit the holes in the clothing, and the wounds in the body, and, strange to say, the wounds being of varying depth, the knife of appellant, found at his home, would not go into the holes the full length only where the wound was the deepest. It is shown by the state’s testimony that appellant took a bath at his home that night, and changed his underclothes. When the underclothing was found, the undershirt was spotted with blood. Appellant admits the undershirt found was his shirt, and the only explanation he gives is that in shaving he may have cut himself,, and the blood dropped on the undershirt. Blood was on the shoes he was wearing, and he undertakes to explain that this was animal blood. There are many other facts and circumstances in evidence; but a recitation of the above is enough to show that the jury was authorized to find, and was sufficient to produce in their minds, a reasonable and moral certainty that the accused, and no other person, committed the offense alleged. Of course, in no ease depending on circumstantial evidence can it be shown beyond all peradventure of a doubt that any person committed a certain crime; but it can be demonstrated beyond a reasonable doubt that the person on trial committed the crime, and this is what the law demands, and what the evidence in this case fully measures up to. There is no evidence in this case pointing to any other person as the one who may have committed the crime. But all the facts and circumstances point with specific clearness to appellant as the person who on this case murdered Mrs. Seitz, and outraged her person. Appellant’s able counsel admit “the facts and circumstances pointing to defendant’s guilt are cogent, and render it quite probable that he participated in the. murder,” yet they say they do not impress them with that force and conelusiveness which should preclude every other hypothesis except defendant’s guilt. These cogent facts and circumstances did so impress the jury who tried appellant, did so impress the trial judge; and, viewing the case from the record before us alone, we must confess that they impress us as they did the jury who tried appellant, and, had we been a member of the jury that tried appellant, we could have returned no other verdict than to adjudge him guilty.

The other questions raised are fully discussed in the original opinion, and we do not now deem it necessary to do so again.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    HIGHTOWER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 7, 1914.
    On Motion for Rehearing, March 18, 1914.)
    1. Indictment and Information (§ 159) — Amendment of Indictment — Matter of Form.
    An indictment for pursuing the business of selling intoxicants in prohibition territory which alleged that the grand jurors in N. - county “duly organized as such at the - term, A. D. 191 — ,” was properly amended by adding the-name of the month and year; such an amendment being a matter of form which was authorized under the direct provision of Code Or. Proc. 1911, arts. 598, 599.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 505-514; Dec-Dig. § 159.]
    2: Criminal Law (§ 200) — Former Jeopardy..
    A former trial for making particular sales-of intoxicants in prohibition territory was not former jeopardy, so 'as to bar a subsequent prosecution for pursuing the business or occupation of selling intoxicants.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 38&-409; Dee. Dig. §- 200.]
    3. Intoxicating Liquors (§ 232) — Prosecution-Admission of Evidence.
    In a prosecution for pursuing the business, of selling intoxicants in prohibition territory, evidence was admissible that accused was the-person from whom a witness bought whisky.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 292; Dec. Dig. §’ 232.].
    4. Witnesses (§ 345*) — Impeachment—Conviction for Crime.
    A misdemeanor conviction for selling_ intoxicants in prohibition territory does not involve-moral turpitude, so that it cannot be shown, for impeachment purposes, that a witness was-convicted of such offense.
    :[Ed. Note. — For other cases, see Witnesses,. Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    5. Witnesses (§ 268) — Cross-Examination.
    In a prosecution for pursuing the occupation of selling intoxicants in prohibition territory, accused could be asked, on cross-examination, how she accounted for so many people coming to her to buy whisky.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    6. CRIMINAL Law (§ 822) — Instructions — • Construing as Whole.,
    A charge in a criminal case must be construed as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    7. Intoxicating Liquors (§ 239) — Instruction.
    In a prosecution for pursuing the business or occupation of selling intoxicants in prohibition territory, the court charged the statute that any person who pursues the occupation of selling intoxicants in prohibition territory shall be punished, and that, to constitute the pursuing of the business of selling intoxicants, the state must prove that accused made at least two sales, and further instructed that the jury could not convict because accused permitted certain persons to leave intoxicants upon her premises, but must believe, beyond a reasonable doubt, that she actually made sales of intoxicants in pursuit of the business of selling intoxicants,, and that she was engaged in the business of selling intoxicants, and, if the jury did not find both facts established beyond a reasonable doubt, they should acquit, though they believed that one of the elements was proven. Held, that the instruction was not objectionable upon the ground that it permitted a conviction on proof of two separate and distinct sales.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    8. Intoxicating Liquors (§ 239) — Instructions — Pursuing Occupation.
    The instruction was not objectionable on the ground that it did not sufficiently define the offense charged.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    9. Intoxicating Liquors (§ 236) — Prosecution — Sufficiency of Evidence — Sale.
    In a prosecution for pursuing the business of selling intoxicants in prohibition territory, evidence held to show a sale of whisky to J., and not to show that accused was merely acting as J.’s agent in ordering the whisky for him.
    [Ed. Note. — For other eases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    10.Intoxicating Liquors (§ 239) — Appeal —Harmless Error — Instructions.
    In a prosecution for pursuing the business of selling intoxicants in prohibition territory, the court refused a requested charge not to consider as a sale a transaction between accused and J., if he requested accused to order whisky for him, and paid her. for it from money due him, and accused ordered the whisky for him acting as his agent, but instructed, instead, that, if J. requested accused to order whisky for him, and she did so and acted as his agent in doing so, such transaction would not be a sale, unless J. paid accused for the whisky after -it arrived or at delivery. Held, that the refusal of the requested charge and the giving of the charge was not reversible error; the evidence, in fact, showing a sale by accused to J.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. § 239.]
    11.Intoxicating Liquors (§ 236) — Offenses — Pursuing Occupation.
    In order to convict of pursuing the business or occupation of selling intoxicants in prohibition territory, the state need not prove each specific sale alleged, but need only prove that accused followed the business or occupation, and made at least two sales.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dee. Dig. § 236.]
    12.Intoxicating Liquors (§ 239) — Offenses — “Pursuing the Occupation.”
    The requested charge that by the term “pursuing the occupation” of selling intoxicants in prohibition territory was meant that accused was engaged in selling intoxicants as her chief business and occupation, and was engaged therein for the purpose of making a living or obtaining wealth, was properly refused as inaccurate.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 331-347; Dec. Dig. I 239.]
    On Motion for Rehearing.
    13.Intoxicating Liquors (§ 238) — Accomplices— Jury Question.
    In a prosecution for pursuing the business of selling intoxicants in prohibition territory, evidence held to make it a jury question whether a certain person was an accomplice.
    [Ed. Note. — -For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. § 238.]
    14.Intoxicating Liquors (§ 167) — Accomplices.
    That W. purchased whisky from accused would not make him an accomplice, under the statute, to the offense of pursuing the business of selling intoxicants in prohibition territory.
    [Ed. Note.' — For other, cases, see Intoxicating Liquors, Cent. Dig. §§ 182, 183; Dec. Dig. § 167.]
    15.Intoxicating Liquors (§ 239) — Offenses — Parties—Accomplices.
    The court refused a requested charge, in a prosecution for pursuing the occupation of selling intoxicants in prohibition territory, that, if W. procured whisky to be ordered for the purpose of sale by accused, and assisted in the sale and participated in its proceeds either by receiving whisky or money, he would be an accomplice, and accused could not be convicted upon his testimony, unless there was other corroborative testimony tending to connect accused with the transaction alleged to have been had with W., and the corroboration was not sufficient if it merely showed the commission of the offense. Held, that the charge was properly refused, for not stating that the corroboration might be as to one of the two or more sales required to be proved, if a second sale was shown by other evidence, or that a corroboration as to two or more sales would authorize a conviction on the accomplice’s testimony alone.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. §§ 331-347; Dec. Dig. § 239.]
    16. Intoxicating Liquors (§ 236) — Accomplices.
    If an accomplice, who testified as to sales in a prosecution for pursuing the business of selling intoxicants in prohibition territory, was corroborated as to more than one sale, the jury could convict on his evidence, irrespective of a sale to any one else, and, if his testimony was corroborated as to only one sale, the state could convict, by showing, in addition to that sale, a sale to others proven by other evidence.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. §• 236.]
    17. Criminal Law (§ 1172) — Appeal—Harmless Error — Instructions.
    In a prosecution for pursuing the occupation of selling intoxicants in a prohibition territory contrary to Pen. Code 1911, art. 589, failure to define the meaning of “engaging in _ or pursuing the occupation or business” of selling intoxicants would be favorable to accused,_ so ■that he could not complain thereof; since, without definition, the jury would naturally understand that the term meant the pursuit of the business as a vocation to procure a living or obtain wealth.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159-3163, 3169; Dec. Dig. § 1172.]
    18. Oeiminal Law (§ 800)—Prosecution— Instructions—Defining Offense.
    - In a prosecution for “engaging in or pursuing the occupation, or business-of selling intoxicating liquors” in prohibition territory contrary to Pen.. Code 1911, art. 589, the court should properly define the quoted phrase. _ .
    _ TEd. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1808-1810, 1812; Dec. Dig. § 800.]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    . Emma Hightower was convicted of pursuing the occupation of selling intoxicants in prohibition territory, and appeals.
    Reversed and remanded.
    C. E. Lane, Asst. Atty. Gén., for the State.

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

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

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

   PRENDERGAST, P. J.

From a conviction for pursuing the business or occupation of selling intoxicating liquors in prohibition territory, appellant prosecutes this appeal.

At an election held in 1906, the law prohibiting the sale of intoxicating liquors in Na-cogdoches county was carried and then duly put in force. The indictment was returned and filed February 16, 1912, alleging that the offense was committed on or 'about January 14, 1911. It charged the offense in compliance with the statute, and alleged eight specific sales to persons named. The state’s evidence was sufficient to show that at least five of these specific sales were made, and, in addition, at least one other' which was not specifically alleged. Appellant testified, denying each of these sales, and said she had made no sale to any person. The evidence showed that she had many times been prosecuted for mating individual sales in violation of the prohibition law. Among other things, she testified that all classes of people, during the night and all night long, came to her house,, ashed for whisky, and it seems that this had' been kept up for some time. - ■

The indictment, in the first part, alleged: “In the name and by the authority of the state of Texas, the grand jurors for the county of Nacogdoches, and state of Texas, duly organized as such [at the-term, A. D'. 191—] of the district court of said county upon their oaths in said court present, etc.” Before the trial began, upon the motion of the county attorney, the court permitted the indictment to be amended by inserting “February” and “2,” making it read, where inclosed in the brackets, as above, “February term, A. D. 1912.” The-court committed no error in permitting this amendment. The allegation was surplusage and a mere matter of form. O. O. P. arts. 598, 599; Grayson v. State, 35 Tex. Cr. R. 629, 34 S. W. 961; Murphy v; State, 36 Tex. Cr. R. 24, 35 S. W. 174; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536.

Pursuing the- business or occupation of selling intoxicating liquors in prohibition territory is an entirely separate and distinct offense from making individual sales. Under an indictment and trial for the offense of pursuing the business and occupation, it is necessary to allege, as the statute requires, at least two specific sales to persons named. That an accused has been tried and either acquitted or convicted of said individual sales would present no question of former jeopardy when such specific sales are alleged in this offense. The court did not, therefore, err in holding that the former trial for these 'specific individual sales was not former jeopardy, and excluding evidence of an acquittal or conviction either on the same grounds. Robinson v.. State, 147 S. W. 245; Wilson v. State, 154 S. W. 574; and- other cases unnecessary to cite.

As qualified by the court, no error is shown in refusing to permit appellant to ask Jude McKnight whether he was swearing the truth in giving his testimony in the county court trial, nor in admitting the testimony of Jeff Mora as to the identity of appellant as the person from whom he bought whisky.

Nor did the court err in refusing to permit appellant to prove that the state’s witness Wallace Jones had been convicted for selling intoxicating liquor; such conviction hot having been a felony, and, as has been many times held by this court, a misdemeanor conviction for selling intoxicating liquor in prohibition territory is not an offense involving moral turpitude. Branch’s Grim. Law, § 868, p. 551.

Nor does appellant’s bilí, as qualified by the judge, that asking appellant on cross-examination by the state, and requiring her to answer how she accounted for so many people coming to her to buy whisky show any error. This was proper cross-examination. .

There are some complaints by. appellant of separate and distinct paragraphs of the court’s charge; also of the refusal of the court to give certain special charges requested by her. None of these present any error.

The charge of the court must be considered as a whole, when some paragraph or portion thereof only is criticized.

The criticism of different paragraphs of the court’s charge, in effect, is that thereby the court, permitted her conviction, if the jury believed the state had shown as many as two separate and distinct sales, and that the. court’s charge does not define the offense. The charge of the court, taken as a whole, is not subject to any of these objections. The charge gives the substance in full of the statute in substantially, if not literally, the language thereof to the effect that, if any person shall engage in or pursue the occupation or business of selling intoxicating liquors in prohibition territory, he shall be punished, etc., “and the law further provides that in order to constitute the engaging in or ■pursuing the occupation or business of selling intoxicating liquors within the meaning of the law, it shall be necessary for the state to prove that the defendant made at least as many as two sales,” etc. Then, in submitting the case to the jury for a finding, required- that they shall believe beyond a reasonable doubt, not only that appellant engaged in and pursued the said occupation and business, etc., but did make two or more sales of such liquor before they could find her guilty. Both requisites of the statute are plainly charged and both are required to be found before a conviction can be had. This is fully in accord with the many decisions of this court. It is unnecessary to cite them all. See Clark v. State, 61 Tex. Cr. R. 600, 136 S. W. 260; Dickson v. State, 146 S. W. 918; Wilson v. State, 154 S. W. 576.

In addition to the court’s charge, this special charge of appellant was also given: “You are instructed that you cannot convict the defendant in this case for pursuing the business and occupation of selling intoxicating liquors, as charged in the indictment, because she permitted certain parties to leave intoxicating liquors upon her -premises. Before you can find her guilty under this indictment, you must find from the evidence, beyond a reasonable doubt, the following two propositions: First, that she actually made sales of intoxicating liquors in pursuit of the business and occupation of selling intoxicating liquors; second, and that she was engaged in the business and occupation of selling intoxicating liquors. 'And, if you fail to so find the facts to be, or if you fail to find that both facts have been established beyond a reasonable doubt, you will return a verdict of not guilty, and this notwithstanding you believe beyond a reasonable doubt that one of said essential elements has been proven.”

One of the specific sales charged in the indictment was to Wallace Jones. In effect, he testified that, prior to December 17, 1911, he had done some work for appellant for which she owed him 90 cents; that on Monday about that date he saw appellant at her house and told her he would be back there the following Saturday, and that, if she could get anything, or was making up any orders for whisky, to put him in for a half gallon and he would pay her on Saturday; that he went to her on Saturday and asked her if she had gotten the whisky or had it; that she said, “Yes”; at the time she was in one room of her house taking a bath, and he did not see her; that she told him where to find the whisky, two quarts, under the table; that he found it where she told him, and he told her that he would pay her as promised — that is, $3 — -by paying her the difference between what she owed him, 90 cents, which was $2.10; that he then left, as he told her, the $2.10 on the table, took the two quarts of whisky and left, thus paying her $2.10 cash, and the 90 cents which she owed him for work, for the two quarts of whisky. He didn’t know whether she had ordered the whisky for him or not. In effect, she testified substantially the same as appellant, except that she never ordered this whisky for him, but that she herself got Tom Edmon-son to order it, and at the same time to order for her some whisky; that Edmonson did order the whisky for her and Jones and brought a gallon to her house before Jones returned that Saturday; that when she had Edmonson to order a gallon of whisky she gave him $3 for .that purpose. She said at the time Jones, on Saturday, came and got the two quarts of whisky she was in the room taking a bath, and did not see him, but told him where to find and get the two quarts of whisky, and that he told her at the time that he would leave the $2.10 cash on the table, and that, with the 90 cents she owed him for said work, would pay her for the two quarts of whisky. According to her testimony, she gave Edmonson $3 to buy a gallon of whisky, which he did; that, when Edmonson brought it to her, she took her two quarts, half of it, and that Jones, when he got the other two quarts, paid for it, as stated above, but she claims that, while she supposes Jones left the $2.10 on the table for her, as a matter of fact, she did not get the $2.10.

Taking the testimony as a whole, this would clearly show a sale by appellant to Jones of two quarts of this whisky, and it would not show that she was acting merely as the agent of Jones in ordering this whisky for him, and that it was his whisky and not hers, under the decisions.

However, appellant requested, and the court refused, a special charge not to consider as a sale said transaction with Jones if he requested her to order, or have some one order for him some whisky, and to pay her therefor out of money then due him, and, in pursuance of said instructions, she ordered or had said liquor ordered for Jones, and, in so doing, acted as his agent. Instead the court charged them, doubtless because of this special requested charge, and invited thereby, that, if said Jones requested her to order whisky for him, and if she did so, or had some one else to do so for her, and that she acted as his agent in ordering such whisky, or if they had .a reasonable doubt thereof, such transaction would not be a sale to said Jones, and not to consider such transaction, unless said Jones paid her for said whisky after it arrived, or at the time of the delivery. Such charge and the refusal of her special charge present no reversible error.

The state did not have to prove each and every one of the specific sales alleged before appellant could be convicted. It was under the necessity of proving that she followed the business or occupation, and made at least two of said alleged sales. The court did not err • in refusing appellant’s special charge that the state had to prove every one of sáid sales.

Neither did the court err in refusing appellant’s special,charges to the effect that, if she made only an occasional sale, even on two or three occasions, she could not be convicted of pursuing the business or occupation, and that by the term “pursuing the occupation” is meant that she was engaged in selling intoxicating liquors as her chief business and occupation, nor that such term means a business in which one engages for the purpose of making a lj.vi.ng or obtaining 'wealth. The evidence did not call for a charge on an oeca'sional sale, and appellant’s definition of what is meant by pursuing the business or occupation of selling intoxicating liquors in prohibition territory has all the time been held improper under the statute by the decisions of this court. As stated above, the court’s charge and that given at appellant’s instance required the jury to believe beyond a reasonable doubt that appellant pursued the business or occupation of selling intoxicating liquors and, in addition, made more than two sales before they could convict. Taken as a whole, and especially in connection with appellant’s said special charge given, the charge correctly and substantially submitted every question proper and necessary to be found before a conviction could be had.

The evidence did not call for a submission to the jury of whether or not Whitton was an accomplice, and the court did not err in refusing appellant’s special charge on that subject.

There being no reversible error, the judgment is affirmed.

On Motion for Rehearing.

There are but two questions raised by the motion for rehearing which are necessary to discuss:

1. The first is the court’s refusal to submit to the jury whether the witness Whit-ton was an accomplice. Appellant raised and saved this point by requesting a charge on the subject, and by taking a bill of exceptions to the refusal of the court to give such charge, and then in the motion for new trial.

Upon a thorough review of the evidence, we have reached the conclusion that it does raise the question of whether or not Whitton was an accomplice, and that we were in error in holding it did not in the original opinion, and we now hold the court should have submitted that question to the jury. The effect of his testimony tends to show that he knew appellant kept, or got, whisky for sale, and his testimony tends to show that she made sales thereof, and was engaged in that business. In the indictment he is alleged to be one of the persons who-made two separate and distinct purchases of intoxicating liquors from her while she was so engaged in said business. He testified he bought whisky from her three or four times.

The mere fact that he purchased whisky from her would not make him an accomplice under the statute and decisions of this court (Creech v. State, 158 S. W. 282, 283, and cases there cited) ;■ but his testimony went further to the effect that he joined her in an order for whisky in his own name and received and receipted therefor, and delivered it, or had it delivered to her; also that she ordered other whisky in his name without his knowledge, but that, when it reached Nacogdoches, being in his name, the carrier refused to deliver it to any one except to him, and thereupon he at last, at hers and the instance of others for her, receipted for and received said liquor, and turned it over to her' or had it turned over to her. It appears that this is some of the liquor, or at least was received about the time that others testify they bought whisky from her. These acts on his part would tend to show that he was an accomplice.

The first paragraph of appellant’s special refused charge on this issue is: “Xou are'instructed, as a part of the law in this case with reference to the alleged sale to the state witness I. A. Whitton, that, if said Whitton ordered or procured whisky to be ordered by or for the defendant for the purpose and assisted in the sale, if any were made to him or to other persons, and participated in the proceeds of said sale, either by receiving whisky or money, then he would be an accomplice, and you will not convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of said Whitton’s testimony tending to connect the defendant with the transaction alleged to have been had with Whitton, and the corroboration is not sufficient if it merely shows the commission of the offense charged.” This paragraph suggests, at least, that a correct .applicable statement of the law be given. In further applying the law to the facts, the latter paragraph of appellant’s said charge, as it is shown in this record, should not be given.

Instead, an appropriate application to the facts should be made as the jury might find he was corroborated as to one and not more than one sale to him. If to more than one, then, without reference to an alleged sale to any other person on this feature of the law, they could convict. If to one only, then they could, with that one and one or more other alleged sales to others, if proven as to this feature of the law, convict. If neither sale to him was corroborated, then they could convict as to this feature if the state showed two alleged sales to others, without reference to either of the alleged sales to Whitton. We merely call attention to these matters so that in another trial the learned trial judge can charge to cover these various features.

2. When the court does not define what is meant by “engage in or pursue the occupation or business of selling intoxicating liquors” as used in article 589, P. C., ■substantially as was. done by the charges in Dickson v. State, 146 S. W. 918, or Creech v. State, 158 S. W. 282, and many other cases decided by this court, and as discussed and illustrated in Fitch v. State, 58 Tex. Cr. R. 367, 127 S. W. 1040, but merely charges in the language of the statute, or substantially so on this feature, such charge would be against the state and in favor of the accused (Clark v. State, 61 Tex. Cr. R. 601, and 604, 136 S. W. 260); for, if not defined as in the Dickson and Creech Cases, supra, then the jury would understand to “engage in or pursue the occupation or business,” etc., meant “calling, trade, vocation, or business which one principally engages in to procure a living, or obtain wealth.” Article 10, P. C.; Standford v. State, 16 Tex. App. 331: Love v. State, 31 Tex. Cr. R. 469, 20 S. W. 978.

So that in all cases tried under said article 589, as this ease was, the lower courts should charge defining said terms of the statute in favor of the state substantially as said charges in the Dickson and Creech Cases, or as discussed and illustrated in the Pitch Case, supra; but, if they do not so charge in favor of the state, the accused has no ground to complain. Christian v. State, 161 S. W. 101.

Por the error of the lower court in' not submitting the question of whether or not Whitton was an accomplice and requiring his corroboration, the judgment heretofore affirming this case is set aside, the rehearing granted, and the cause is now reversed and remanded.


author: DAVIDSON, J.

text:
    ANDRUS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.)
    1. Homicide (§ 300) — Instructions—Self-Defense.
    Where, in a homicide case, accused’s evidence showed that, when he spoke to decedent, the latter moved forward and threw his hand in his pocket where accused thought he saw the outlines of a pistol when accused shot, through a fear that he was about to be attacked, but it appeared that decedent did not draw or display a pistol, an instruction that, if at the time of the killing decedent had made or was making an attack on accused which, from its manner and character, caused accused to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable fear he killed decedent, the jury should acquit, was erroneous as being hypothecated on an actual danger of attack, when the evidence only raised the question of apparent danger.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    2. Homicide (§ 116) — Self-Defense—Apparent Danger.
    The issue of self-defense upon the theory of apparent danger may be raised by the acts of deceased, coupled with his words or by his acts without words.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.]
    3. Homicide (§ 300) — Instructions — Threats.
    Where the evidence in a homicide case showed that threats by decedent toward accused were communicated to accused, he was entitled to a charge on threats from his viewpoint, whether they were actually made or not.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    4. Homicide (§ . 116) — Self-Defense — Threats.
    If accused had been informed of threats toward him by decedent, and the latter at the time of the killing did any act or said anything coupled with his acts which made it reasonably appear to accused that decedent intended to execute the threats, accused could shoot, and, in determining the question, the jury should consider the circumstances from accused’s viewpoint.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 158-163; Dee. Dig. § 116.]
    5. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence.
    An instruction that the means by which a homicide is committed should be considered in determining accused’s intent, and, if the instrument be one not likely to produce death, it is not presumed that death was designed, unless such intention appears from the manner of its use, was on the weight of the evidence when considered with reference to accused, where he shot decedent with a pistol, and the evidence raised the issue of apparent danger, but did not show that decedent drew any weapon.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dee. Dig. §§ 763, 764.]
    6. Homicide (§ 188) — Admission of Evidence-Pistol Carrying Habit.
    Evidence was admissible for accused, claiming self-defense, that decedent had, on a number of occasions been seen to carry a pistol, if accused was shown to have known of such fact, but was not admissible in absence of knowledge of such habit by accused.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    7. Homicide (§ 8) — Sentence — Repeal of Statute.
    The act of the 33d Leg. c. 116, changing the definition of murder, did not repeal the prior law of murder to such an extent that no punishment could be imposed under indictments charging murder under the prior law; such act only changing the penalty.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    W. M. Andrus was convicted of second degree murder, and appeals.
    Reversed and remanded.

      Kahn, Williams & King, of Houston, D. R. Peareson and T. B. Peareson, both of Richmond, W. L. Hill, of Huntsville, and Lane, Wolters & Storey, of Houston, for appellant. Richard G. Maury, Dist. Atty., and Olarence Kendall, Asst. Dist. Atty., both of Houston, J. C. Florea, of Richmond, Mathis, Teague & Embrey, of Brenham, and C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of murder in the second degree; his punishment-being assessed at ten years’ confinement in the penitentiary.

There were two theories on which the ease was submitted to the jury. The) state’s theory was that deceased was killed without cause. Appellant came from his office to the garage underneath his office, to which deceased had just returned with his car, and was leaving the car in the garage, as was his custom, and, while deceased was walking out of the building and in the act of opening some letters, defendant came to the door with his pistol in his hand, and immediately began shooting the deceased while he was making no attempt to attack the defendant, and while he was making no hostile demonstration of any sort, and that the motive for the killing was ill will growing out of a land transaction between the two commonly referred to as the “Polly land matter,” and deceased was unarmed at the time. The defendant’s theory was that the meeting was a casual one; that he had left his office and started to a store for the purpose of seeing a gentleman by the name of Robertson, and that, in going from his office to the store, he passed immediately in front of the garage where the killing occurred; that previously he and deceased had had some misunderstanding with reference to the “Polly land matter,” and deceased threatened on more than one occasion to do him serious bodily harm and to kill him, and that appellant had armed himself for his own protection in the event deceased should attempt to carry his threats into execution; that, as he passed the door of the garage, he noticed deceased walking towards the door, and he stopped for the purpose of asking the deceased, and did ask him, for a settlement of the “Polly land matter.” That deceased replied that he “was too damned big a coward to settle anything with him,” and made a quick step ■forward, throwing his right hand to his pocket as if to draw a pistol, the bulk and outline of which he saw in deceased’s pocket, and, fearing deceased was about to kill him or do him serious bodily harm, he drew his pistol and fired, and continued firing until deceased fell. There had been ill feeling between the parties with reference to what is known as the “Polly land matter” for some time, and a disagreement had arisen between them with reference to that transaction. Appellant’s theory was that deceased, Van Slyke, had threatened to kill him on account of those matters, and this had been communicated to him, and, when he left his office almost immediately before the homicide, he passed by the door' of the garage where, deceased was and saw him approach the door, and he mentioned this “Polly land matter” to him,' when the subsequent matters above detailed occurred.

On the plea of self-defense, the court charged tie jury: “If from the evidence you believe the defendant killed the said A. H. Van Slyke, but further believe that, at the time of so doing, the deceased had made or was making an attack -on him which, from the manner and character of it, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you will acquit him; and, if the deceased was armed at the time he was killed, and was making such attack on defendant, and if the weapon used by him and the manner of its use were such as were reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or aimed to inflict serious bodily injury upon the defendant.” Various exceptions were urged to this charge. No witness swore to any actual danger, or that deceased was making any attack on appellant. The testimony for the defense in this connection shows that, when appellant spoke to deceased, he moved forward and threw his hand to his pocket, where appellant says he saw what he thought the bulk of a pistol, or shape of it, in Van Slyke’s pocket, and he shot. Van Slyke did not draw a pistol, nor did he use a pistol, nor did he display a pistol. So the case is one purely of apparent danger. The court submitted it upon the theory that deceased was making an attack upon appellant, or was about to do so, ignoring the testimony which made only an apparent 'attack, or a preparation rather to draw a pistol. Under all the authorities, this charge is wrong. Wherever the danger is apparent and not actual or real, the court in his charge must conform the charge to the facts. There is quite a difference under our statute between real and apparent danger. The apparent danger theory must not be burdened with actual or real danger. Appellant is entitled to have the jury pass upon the case as it is made, and not upon an issue that is not shown by the facts.

Self-defense, under the theory of apparent danger, may be brought about by the act of the party coupled with his words, or by the act without the words. Here in this case, in addition to what has been above said, the deceased, moving forward, used the language as set out in the evidence of the defendant. The failure of the court to charge the law of the case under this theory will require a reversal of the judgment. It is also urged that the charge on manslaughter is subject to the same criticism. This will also be avoided upon another trial.

With- reference to the law of threats, the court gave the following charge: “If you find from the evidence that deceased did threaten to take the life of defendant or to do him serious bodily injury, and at the time of the homicide deceased, by some act then done, viewing it from the standpoint of the defendant, manifested an intention to execute the threat or threats so made, if any, you will acquit the defendant, and say by your verdict, ‘Not guilty;’ or, if you believe, in your minds, a reasonable doubt as to the existence of said facts, you will acquit him.” Various exceptions were urged to this charge. The issue of threats was in the case made by defendant's testimony and contradicted by the state.

It was an issue as to whether threats were made in fact, but threats were communicated to the defendant; and, whether they were made or not, he was entitled to a charge on his view of the evidence. The jury might have believed they were not made, but, if the defendant so believed and so acted, he was entitled to the law on the issue of threats viewed from his standpoint, and not from the viewpoint of the jury. We deem it unnecessary to cite authorities upon this question. The line of cases seems to be unbroken in Texas. The court should have affirmatively charged the jury that, if defendant had been informed of the fact that his life had been threatened or his body with serious injury, etc., he was entitled to a charge as he viewed the matter.

To meet this appellant asked a special charge, which was refused, but, had it been given, it instructed the jury that, if defendant had been informed of threats, and at the time of the shooting deceased did any act or said any words coupled with such acts which made it reasonably appear to defendant that he intended to execute the threats, then defendant would have the right to shoot, and, in determining this question and whether or not there were such facts, they should view the transaction from the defendant’s standpoint. This charge is correct, and should have been given, and the court’s charge should not have been given as embodied in the transcript.

The court charged the jury that: “The instrument or means by which a homicide is committed are to be taken into consideration in judging the intent of the party offending. If the instrument be one not likely to produce death, it is not to be presumed that death was designed, unless from the manner in which it was used such intention evidently appears.” This charge ought not to have been given, so far as defendant was concerned. It was a charge on the weight of the evidence, because the weapon he used was a deadly weapon, and resulted in the killing of a man by shooting him. It should not have been given against appellant, because there was no weapon presented by the deceased. It was a case of apparent danger, and appellant thought the deceased was going to draw a pistol from his pocket to shoot with. Under the facts of this case, we are of opinion this charge should not have been given. As given it was a charge on legal presumptions against the defendant.

Appellant offered to prove by several witnesses specific instances of the deceased carrying and using a pistol. It was shown by numerous bills of exceptions. .The court excluded the testimony, evidently upon the theory it was not proving the custom or general reputation of the deceased in regard to carrying his pistol. Appellant testified that he had seen deceased with a pistol on several occasions 'for several months preceding the homicide, and particularly on the Saturday before the homicide, and at the time and place of the homicide he believed he had a pistol in his pocket. We are of the opinion that appellant could prove the fact that the deceased had on various and divers occasions been seen carrying a pistol. He proposed by several witnesses to prove that he did carry it, and was in the habit of carrying it, and that, when he was riding along the public road, he would take it out and shoot at objects. While it was not specifically undertaken to show his general reputation in this regard or matters of general notoriety, yet a number of witnesses would have testified to the fact that he was in the habit of carrying and firing his pistol, and, appellant himself having testified that he usually carried it, this character of testimony ought to have been admitted. It would have had weight in favor of appellant, and should have been considered by the jury in passing upon the immediate facts attending the homicide as to the reasonableness of appellant’s belief that deceased had a pistol in his pocket, and it would have fortified his testimony to the effect that he believed his life was in danger, and that deceased was then about to execute previously made threats. In regard tq the above proposition, my Brethren believe the evidence not admissible, unless knowledge was brought home to appellant by his own or other evidence.

There is another question ably and strongly argued by appellant’s counsel; that is, the act of the 33d Legislature (Acts 33d Leg. c. 116), changing the definition of murder, repealed the prior law of murder to such an extent that there could be no punishment under indictments charging murder under the prior law. This matter was discussed by Judge Harper in two cases — Cook v. State, 160 S. W. 465, and Shaw v. State, 160 S. W. 103 — decided at the present term. The conclusion reached in those opinions was that it was only a change of penálty, and not such a repeal of the law as avoided punishment under prior acts of homicide. In view of those opinions, we deem it unnecessary to here review the question, although the argument and reasoning carries great force and cogency.

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


author: PRENDBRGAST, P. J.

text:
    COOLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 25, 1914.)
    1. Criminal Law (§ 936) — New Teiai>-Grounds — Absence oe Witness.
    Where, on a trial for assault with intent to murder, in which defendant relied on self-defense, the evidence was conflicting as to the making of threats against accused by the prosecuting witness, a new trial should have been granted because of the absence, due to illness, of a witness, whose affidavit was attached to the motion therefor, showing that she would have given material evidence on this point, and whose attendance defendant used due diligence to procure.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2299-2305; Dec. Dig. § 936.]
    2. Homicide (§ 300) — Assault with Intent to Murder — Self-Defense—Instructions.
    On a trial for assault with intent to murder, an instruction that accused was not justified in shooting the prosecuting witness if he was in no real danger of death or serious bodily harm was not correct, as it should have hypothesized the absence of any apparent danger as viewed from accused’s standpoint.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    3. Criminal Law (§ 1098) — Appeal—Statements of Fact — Form.
    Under Act March 31, 1911 (Acts 32d Leg. c. 119) § 14, providing that in felony trials the official shorthand reporter shall keep an accurate record of the proceedings, that, if on appeal the state and defendant cannot agree as to the testimony, so much of the reporter’s transcript shall be inserted in the statement of facts as is necessary to show what the witness testified to, but that it shall be condensed so as not to contain the questions and answers, except where, in the opinion of the judge, they are necessary to elucidate the fact or question involved, where there is no possibility that the attorneys or the court below could not have agreed on the testimony without the questions and answers, the trial judge’s certificate that they are necessary to elucidate the fact or question involved is not conclusive, and their inclusion is improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2863, 2865; Dec. Dig. § 1098.]
    Appeal from District Court, Bowie County; H. F. O’Neal, Judge.
    Tip Cooley was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    Mahaffey, Thomas & Hughes, of Texar-kana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDBRGAST, P. J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at the lowest prescribed by law.

It is unnecessary to make any extended statement of the case or evidence. The evidence raised, and the court submitted, self-defense, especially under what appellant claimed was the attempted execution of threats by Mr. Pugh the assaulted party. The question of threats was a material one. The state undertook to show, and its testimony with more or less strength does show that said Pugh made no serious threats, or, if so they were conditional, against appellant. On the other hand, appellant introduced testimony showing, or tending to show, serious threats and without any condition to them. Among others of such threats, appellant contended that, about a week before the assault, said Pugh, in the presence and hearing of appellant’s daughter, Mrs. Cleveland, made such threats in an angry manner and violently cursed and abused appellant at the time. This was a controverted issue between the state and appellant. The effect of Pugh’s testimony tended to show that no such violence, abuse, or threats were made by him at the time.

Appellant sought a continuance because of the absence of his daughter to prove said Pugh’s said treats, violence, abuse, etc. Sufficient diligence was shown by appellant to procure the attendance of his said daughter, and her failure to attend was because of her illness and threatened abortion in such a way and to such an extent as to prevent her attendance. The estate did not contest this point, and it was amply shown by appellant. In his motion for new trial, and as a part thereof on this ground, he attached the affidavit of his daughter as to what she would have testified. This is shown to be material, and, under the circumstances of this case, the failure of the court to grant the continuance, or rather to grant a new trial because of his refusal thereof, must result in the reversal of this case. It is needless to recite the facts further about the matter. We think it clear that the action of the court in this matter presents reversible error. Hays v. State, 164 S. W. 841, recently decided.

Another ground of appellant’s motion for new trial is that he claims the testimony is insufficient to sustain the verdict. As the case must be reversed, we neither state nor discuss the testimony, but, after a careful consideration of it, we are clearly of the opinion that it was amply sufficient, and even the preponderance of it is in favor of the state.

Some complaint is made of the court’s charge on self-defense. Taking the charge as a whole, it is sufficient, and appellant’s claimed errors would not authorize a reversal of this case on that ground. However, in one particular the court’s charge is subject to criticism. It is in that paragraph wherein it instructs the jury that the mere fear upon the part of the defendant that the assaulted party might do him serious bodily injury, or would hill him, would not justify the defendant in shooting said assaulted party, “nor would the defendant be justified in shooting the said Pugh, if, at the time he did so, he was then in no real danger of suffering death or serious bodily injury from the said Pugh.” That part of this paragraph of the court’s charge quoted above is not correct, in that it omits therein, at this point or some other following it, to tell the jury if he was then in no real or apparent danger, as vieioed, from defendant’s standpoint. If the evidence on another trial calls for such charge, the court, in order to avoid criticism, should remedy this paragraph.

There is another matter in this case to which we call attention. The statement of facts contains some 90 typewritten pages. It could and should have been prepared within about one-fourth that space. The reason this statement of facts is so long is because the great bulk of it is made up of questions to, and answers of, the witnesses, when there could be'no possible misunderstanding of the witness’ testimony. It is also made up to some extent of the attorneys’ different remarks or objections, and the court’s remarks or statements, all of which should have been omitted. At one time the statement of facts, by our statutes, was authorized to be made up of the complete stenographic report ot the evidence by questions and answers and, in fact, everything that occurred and was said and done by the witnesses, court, and attorneys in the trial of the case. This was so abused, however, and imposed such an enormous unnecessary labor on the judges of the appellate courts, that the Legislature at the next session, years ago, repealed that law, and required, as the statute now does, that such statement of facts shall be made up in a narrative form.

Section 14 of the Act of March 31, 1911, p. 268, now in force, says: “In the trial of all criminal cases in the district court, in which the defendant is charged with a felony, the official shortland reporter shall keep an accurate stenographic record of all the proceedings of such trial in like manner as is provided for in civil cases, and should an appeal be prosecuted' in any judgment of conviction, whenever the state and defendant cannot agree as to the testimony of any witness, then and in such event, so much of the transcript of the official shorthand reporter’s report with reference to such disputed fact or facts shall be inserted in the statement’of 'facts as is necessary to show what the witness testified to in regard to the same, and constitute a part of the statement of facts; * * * provided, that such stenographer’s report when carried into the statement of facts * * * shall be condensed so as not to contain the questions and answers, except where, in the opinion of the judge, such questions and answers may be necessary in-order to elucidate the fact or question involved.” It will be seen by this and the legislation on the subject that it is not intended that statements of facts, under the law as it. now exists, shall be made up of questions and answers by the witnesses. But as stated by the statute, it is only “whenever the state and defendant cannot agree as to the testimony of any witness, then and in such event, so much of the transcript of the official shorthand reporter’s report with • reference to such disputed facts, or fact shall be inserted.” And, even then, the evidence of the witness on that point “shah be condensed so as not to contain the questions and answers, except where in the opinion of the judge such questions and answers may be necessary in order to elucidate the fact or question involved.” The trial judges in. the courts below should see that the statute in this respect is complied with, instead of, as in this case, practically the greater part of every witness’ testimony is given in question and answer form when there is no possibility that the attorneys or the court below could not have agreed to such witness’ testimony without the question and answers. When such is shown, as in this ease, we will not be bound by the judge’s certification, as in this case: “I certify that, where the questions propounded to, and the answers of, the witnesses appear herein such questions and answers, in my opinion, are necessary to help elucidate the fact or question involved.” If the prosecuting officers in this case had made a motion to strike out the statement of facts because of the violation of the law above quoted, we are inclined to believe that we would have granted it and'struck out the statement of facts and affirmed this case. We give this warning so that appellants and their attorneys in having a statement of facts prepared shall comply with this law; otherwise such statement of facts will be struck out and not considered by this court. Oriner v. State, 159 S. W. 1059, and cases cited therein.

There is nothing else requiring any discussion or decision in this case.

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


text:
    KAUFMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.
    Rehearing Denied April 8, 1914.)
    1. Witnesses (§ 376) — Corroboration — Prior Statement.
    The state, to show interest of a witness for defendant, and that her testimony was of recent manufacture' or origin, having shown employment of her by defendant subsequent to the crime, defendant may show the same statement was made by witness just after the crime and before such employment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1204-1206; Dec. Dig. § 376.]

      2. Criminal Raw (§ 376

      ) — Evidence—Character of Defendant.
    Defendant not testifying, the state may not introduce evidence of his bad character, irrelevant to the issue of guilt of the crime charged.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. § 376.]
    3. Criminal Law (§ 782) — Instructions— Consideration of Evidence.
    Where the admissibility of testimony depends on defendant having made a certain statement, as to which the evidence is conflicting, the jury should be instructed that, unless they find he did make it, they should not consider such testimony.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1847, 1849, 1851, 1852, 1877, 1878, 1880-1882, 1906, 1907, 1909-1911, I960,. 1966, 1967; Dec. Dig. § 782.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Charles Kaufman was convicted of murder, and appeals.
    Reversed and remanded.
    M. T. Lively and Barry Miller, both of Dallas, for appellant. Currie McCutcheon, Co. Atty., of Dallas, and C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   HARPER, J.

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

Annie Smith was a witness for the de-, fendant, and testified that she knew Moskowitz, the deceased, and that he and four others called by her place, and, while there, told her he was going down to appellant’s saloon and kill him; that he at this time had a pistol, and as soon as Moskowitz left she telephoned appellant. It further appears from the record that Moskowitz did go directly to the saloon of appellant, and he and his friends went into the saloon, when the difficulty occurred in which Moskowitz lost his life. To break the force of Annie Smith’s testimony, the state sought to impeach her, and, in addition thereto, to show that she was now in the employ of appellant collecting rents for him. This employment of Annie Smith, if she was employed by appellant, took place subsequent to the homicide, and the state introduced this testimony to show her interest, bias, and that her testimony was of recent manufacture or origin. When the state offered this testimony, the defendant then introduced J. J. Ledbetter, a deputy sheriff, who would have testified that, in a half hour after the killing of Moskowitz by appellant, Annie Smith detailed to him the same facts she had testified to on this trial; that deceased was at her place, had a pistol, and said he was going to Kaufman’s saloon and kill him. The court sustained the state’s objection to this testimony. In this the court erred. It has always been held by this court that, when it is sought to be shown that a witness had testified under corrupt motives, or where the testimony goes to charge the witness with recent fabrication, proof that the witness had made similar statements before the motive alleged existed to make the false statement, the witness may be sustained by showing that she had made the same statement shortly after the event and prior to the time the alleged motive 'existed. Williams v. State, 24 Tex. App. 665, 7 S. W. 333; English v. State, 34 Tex. Cr. R. 200, 30 S. W. 233; Reddick v. State, 35 Tex. Cr. R. 469, 34 S. W. 274, 60. Am. St. Rep. 56; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; Jones v. State, 38 Tex. Cr. R. 103, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Keith v. State, 44 S. W. 849.

Again it is shown by the record that the state diligently sought to inject and did inject into the record the fact that defendant was the owner of certain houses which he rented in the reservation, and owner of certain houses known as “cribs,” all of which were being used as houses of prostitution. The defendant did not testify on the trial of the case. The court shows by his qualification that he attempted to keep from the jury the fact that these houses were rented by appellant as housess of prostitution, and, after the proof had been made, he would exclude it from the consideration of the jury, but the prosecuting officers would again ask the questions from other witnesses, and get that fact before the jury, and in one instance, when the court sustained the objection, the county attorney in his insistence said he was entitled to show “the kind of people the rent was collected from; that he had a right to show what character of man he (appellant) is,” etc. In this we think the county attorney was wrong. When a person is on trial for murder, and he does not elect to take the stand and testify, only the facts relating to that transaction are admissible. The fact that he is an immoral man and is engaged in an immoral business and has violated other provisions of the Criminal Oode is not admissible. There are a number of bills of exception of this character relating to the testimony of witnesses, but we do not deem it necessary to mention each of them. In some of them the court, in qualifying the bill, says: “There was a continual struggle on the part of the defendant to show that the state’s witnesses were from a disreputable district, and on the part of the state to show that the defendant and his witnesses were engaged in disreputable business.” Why the state thought it had a right to show that defendant had engaged in disreputable business, when he did not testify as a witness, is beyond our understanding. A man cannot be sent to the penitentiary on “general principles,” although it might be a good thing for the community that he be “removed from its midst.” He can only be tried for the offense with which he is charged, and testimony only relevant to that issue should be admitted. The court apparently tried to keep this testimony out, but did not succeed in doing so, from the number of times he excluded such testimony, and from the record now before us. Had he applied the same methods to counsel for the state and defendant when they declined to obey his rulings, after he had held this testimony inadmissible, as he did to the defendant when he became “obstreperous,” they would not have sought to inject it into the ease the second time. And here we will say, when the defendant, in open court, called the county attorney a liar, arose and started towards him, the court was justified in using all the means he did use in maintaining order in his court, and this bill presents no error. We only regret he did not require counsel to pay the same respect to his rulings in the premises, and, if so, it might not have been necessary to reverse this ease. We hope on another trial the evidence will be restricted to ascertaining whether appellant killed deceased, and, if so, ’of what grade of homicide he is guilty, if any, or whether he was justifiable in so doing, and. evidence legitimately bearing on those issues.

Again we think the court erred in permitting the witness Belmear to testify to what took place between him and appellant’s son, Phil Kaufman, prior to the time he says that they went to aiipellant’s father. What took place in the conversation in which appellant was engaged was admissible, and, if appellant told the witness to do what Phil wanted him to, and he would make it all right, then what Phil said to him subsequently would be admissible; but, as Phil testified that his father did not say what Belmear said he did, and that he did not go with him to see his father, the court should have instructed the jury that, unless they found that appellant did so state, they would not consider that portion of his testimony.

Other matters are complained of, but we do not deem it necessary to discuss them.

The judgment is reversed, and the cause remanded.


author: I-IARPER, J.

text:
    HYDE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.
    Rehearing Denied April 8, 1914.)
    1.Criminal Law (§ 742) — Trial—Questions for Juey — Accomplice.
    Evidence that a private detective did not himself suggest the commission of burglary, « but, when it was suggested to him, he seemingly assented thereto, and that during the commission of the crime he stood outside the building,1 and thereafter received a part of the stolen money, which he promptly turned over to the police, warrants submitting to the jury the question whether the detective was an accomplice, instead of instructing, as a matter of law, that he was an accomplice.
    [Ed. Note. — Por other cases, see Criminal Law, Cent- Dig. §§ 1098. 1138, 1719-1721; Dec. Dig. § 742.]
    2.Ceiminal Law (§ 507%) — Evidence—Acj complice — Detective.
    In such a case, where the accused endeavored to show that the detective was an accomplice, evidence as to his employment, and that he made daily reports to his employers, and promptly reported the burglary, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1097, 1264; Dec. Dig. § 507%.]
    3.Criminal Law (§ 1136) — Appeal — Parties Entitled to Allege Error — Joint Defendants.
    One accused of a crime jointly with another, and who alone appealed from the conviction, cannot complain of error in the admission of letters written by the defendant, where the court instructed the jury that the letters could be considered as evidence only against the writer, and not against the codefendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3005, 3006; Dec. Dig. § 1136.]
    Appeal from District Court, Williamson County; Chas. A. Wilcox, Judge.
    R. R. Hyde was convicted of burglary, and he appeals.
    Affirmed.
    J. F. Taulbee, of Georgetown, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   I-IARPER, J.

Appellant was prosecuted, and convicted of burglary.

Appellant’s main insistence in this court is that the evidence, as a matter of law, makes G. C. Galloway an accomplice, and the court erred in not so instructing the jury, and erred in submitting that issue to the jury for their determination. Galloway is a detective, and was employed through the Pinkerton agency to ferret out some crimes that had been committed, in Taylor. He testified, and the facts justify a finding that in the capacity of a detective, and in all the steps he took, it was with a-view to the detection of crime. He originated no offense; but, when this burglary was suggested, he seemingly assented thereto, but participated no further in the commission of the offense than to stand idly by alongside of the building, and accepted part of the stolen money,' which money he promptly turned over to the officers, reporting the matter to them, and identified the two who did commit it. Whether or not such acts would constitute him an accomplice has been recently thoroughly discussed by this court in the case of Holmes v. State, 156 S. W. 1172, and Minter v. State, 159 S. W. 300. In this case the court did not err in submitting that question to the jury, and the evidence will sustain a finding that Galloway is not an accomplice. Therefore the evidence fully supports the verdict.

The appellant, throughout the case, earnestly labored to show that Galloway was an accomplice; therefore there was no error in admitting testimony as to his employment as a detective; that he daily made reports of Ms actions to Ms employers, and promptly reported tlie burglary and delivered the money to the mayor; and the bills seeking to present objections to bis testimony present no error.

Three letters alleged to have been written by Claud Atchison were admitted in evidence. Appellant and Atchison were jointly indicted, charged with this offense, and jointly tried. Atchison’s case is not before us on appeal. When the letters were introduced, the court instructed the jury they could not be considered as evidence against this defendant, but were only admitted as against Atchison, and could be considered by the jury alone in passing on the guilt or innocence of Atchison. Under such circumstances the appellant has no ground for complaint, whatever view we might take of the matter, if Atchison’s case was before us. The letters would not and could not have had any bearing with the jury in passing on appellant’s guilt, for there is nothing in-them that would have any tendency to show Ms guilt.

We have read carefully the charge of the court, and considered the objections made thereto. The charge as given was a full, fair, and admirable presentation of the law as applicable to the evidence in this case, and the only special charges requested were embodied in the charge of the court.

Judgment is affirmed.