text:
    POWELL v. CHARCO INDEPENDENT SCHOOL DIST. et al.
    (No. 6035.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 15, 1918.
    Rehearing Denied June 12, 1918.)
    1. Appeal and Error <&wkey;759 — Briefs—Form.
    The rule in regard to briefs on appeal, requiring that each ground of error relied on shall bo separately presentee] under an assignment of error, is not complied with where the assignments are treated as being part of the statement of facts, and not as the basis of the propositions of law, and are mixed up with the statement following a proposition which in turn follows an assignment.
    2. Statutes &wkey;>8%(l) — Special Laws — Notice.
    Irrespective of Const, art. 3, § 56, providing that the Legislature shall not, “except as otherwise provided in this Constitution,” pass local or special laws regulating the affairs of school districts, Const, art. 7, § 3, authorizing formation ol school districts by general or. special law, without the local notice required in other cases of special legislation, and authorizing the Legislature to pass laws for the assessment and collection of taxes in such districts, authorized the Legislature to pass, without notice, the special act creating the Charco independent school district (Special Acts 34th Leg;, c. 51), which provided for election to determine necessity of borrowing- money and the rate of taxation.
    3. Statutes <&wkey;96(5) — School Districts.
    By Const, art. 7, § 3, as amended in 1909, the Legislature is authorized by general or special law not only to create school districts, but to provide for the assessment and collection of taxes therein and for the management and control of their schools, and to authorize the levy and collection of additional ad valorem taxes, not only in such districts as then existed, but those thereafter formed.
    4. Statutes &wkey;96(l) — School Districts.
    Under Const, art. 7, § 3, as to school districts, the Legislature can exercise the same authority over a school district through a special law, without notice, as through a general law.
    5. Statutes &wkey;76(l) — Applicability of General Law.
    The special act creating the Charco independent school district (Special Acts 34th Leg. c. 51), is not invalid as prescribing a notice of election for bonds different from that prescribed in Rev. St. arts. 2857, 2859.
    6. Schools and School Districts <&wkey;97(3j— Bond Issues — Amount.
    That an independent school district, which has voted a bond issue, does not have a property valuation sufficient to sustain such issue, does not make the election invalid, but the proportion of the voted bonds that can be protected by a legal tax on the present valuation of property within the school district may be legally issued.
    Appeal from District Court, Goliad County; John. M. Green, Judge.
    Suit by N. R. Rowell against tlie Charco Independent School District and others. From a decree for defendants, plaintiff appeals.
    Affirmed.
    Dougherty & Dougherty and G. C. Robinson, all of Beeville, and G. E. Pope, of Goliad, for appellant. Sam C. Lackey and H. W. Wallace; both of Cuero, for appellees.
   FLY, C. J.

Appellant instituted this suit against the Charco independent school district and J. C. Calhoun, Norman Calhoun, G. T. Powell, T. J. Reagan, and R. E. Roberts, trustees of said district, seeking to restrain appellees from issuing certain bonds of said district which had been authorized by an election of the voters of the district. The court, after a lull hearing, denied the injunction.

It was agreed between the parties that the school district was created by a special act of the Thirty-Fourth Legislature (Special Laws 1915, p. 161); that on November 27, 1916, an election for the issuance of bonds was ordered by the trustees of the school district, and an election held and the bonds voted. Bonds in the amount of $8,000 were executed and made ready to issue by the trustees. That election was declared invalid by the trustees, and another election was held on May 5, 1917, resulting in the approval of an issuance of bonds in the sum of $10,000. The last order for an election was issued on April 21, 1916, 14 days before the election was held, and 10 days’ notice of the election was given. The order declaring the result of the election was made on May 7, 1916, and on the same date an order was made for the issuance of the bonds, and the law complied with as to provisions for interest and sinking fund. The total property values in the district were $371,986. It seems that a tax of 25 cents on the $100 which is provided for by law and the order of the trustees would not be sufficient to meet the interest and provide a sinking fund for the whole $10,000 voted, but it was also-shown only so many of the bonds would be issued and sold for which the taxes would provide interest and a sinking fund.

After a statement of the nature of the case and result of the trial appellant has placed in his brief his first proposition which he says is “under his first assignment of error.” However, the first assignment is not copied until after a statement, covering-about 11 printed pages, is made, when it is copied just above the authorities cited. The first propositions, said to be under the second and third assignments of error, are followed by the third and second assignments of error. No statement is found under either of the assignments. The only other assignments of error, the seventh and eighth, are placed after the propositions, the seventh being placed at the beginning of the statement following the proposition, and the eighth at the end of the statement. In fact, all of the assignments of error are treated as being a part of the statement of the facts, and not as the basis of the propositions of law. This is not in compliance with the rules which require that each ground of error relied on in a brief shall be separately presented under an assignment of error.

It was never contemplated that assignments •of error should be mixed up with a statement, which should follow a proposition which should follow an assignment. The brief is not only in total disregard of the rules, but has entailed much labor upon this court to discover assignments buried in statements. No objection, however, has been urged to the brief by appellees, and, as the assignments have been correctly copied into the brief, we have considered those not violating other rules, but this action will not be considered as a precedent to guide in the briefing of cases. The rules are simple, and when followed assist the court in arriving at a conclusion as to the points sought to he raised.

Tlie judgment is attacked, through the first assignment of error, because the notice of election was not posted for 20 days before the date of the election. In the special law creating the Charco independent school district it is provided that, when it becomes necessary to borrow money to purchase grounds and erect, furnish, and equip school buildings, the amount shall be ascertained as well as the rate of tax to he levied, and the board of trustees “shall then immediately cause an election to be held on some secular day, not a legal holiday, within twenty days after the date of ordering such election, of which ten days prior notice shall be given by the board of trustees by written notice duly posted at three public places within said district.” That law was strictly complied with, and, if not unconstitutional, was sufficient to sustain the election.

It is the contention, however, through the third assignment of error, that the law is unconstitutional, because antagonistic to section 56 of article 3 and section 3 of article 7 of the state Constitution. In section 50 of article 3 it is provided that the Legislature shall not, except as otherwise provided in the Constitution, pass local or special laws, as to a number of things, among the number being “regulating the affairs of counties, cities, towns, wards or school districts.” Section 3 of article 7 of the Constitution is an amendment adopted by the people in 1900, the parts added to the original section 3 being:

That such “school districts, whether created by general or special law, may embrace parts of two or more counties. And the Legislature shall be. authorized to pass laws for the assessment and collection of taxes in all said districts. and for the management and control of the public school or schools of such districts, whether such districts are composed of territory wholly within a county or in parts of two or more counties.”

These quotations form the parts added to the section in question in 1909, with the exception of the words “heretofore formed or hereafter to be formed,” which were added as descriptive of the districts in which an additional ad valorem tax may be authorized by the Legislature. Appellant quotes the language deemed by him applicable to school districts, but omits the gist of the amendment' which empowers the Legislature to pass laws, either general law or special law, without the notice required in other cases of special legislation, and in order that there might he no ground for contention that the authority was given only as to districts lying partly in one county and partly in another it describes the districts as those “composed of districts wholly within a county” and those “in parts of two or more counties.” In spite, however, of that clear and explicit declaration, it is the contention of appellant that the amendment was made “looking alone to county line districts.” Even if the definite description of the districts affected by the amendment had not been given, it would have been clear from the other language used' that all school districts were in view, for “such” and “said school districts,” of course, refer back to the districts that the Legislature is authorized to form, whether in one county alone or “parts of two or more counties.”

It is clear that by the amendment the Legislature is authorized by general or special law to create school districts, to provide for the assessment and collection of taxes therein and for the management and control of their schools, and to authorize the levy and collection of additional ad valorem taxes, not only in such districts as then existed, but those thereafter formed. These extra powers conferred upon the Legislature do not in any wise conflict with section 56, art. 3, because the inhibition in that section is made subject to any exception “otherwise provided.” It made- provision for any amendment to the Constitution as to regulating the affairs of counties, cities, towns, wards, or school districts, giving the power to regulate such affairs, undoubtedly the amendment “otherwise provided” for such regulation by “local or special law.” The broad powers given by the amendment to the Legislature authorized the passage of the special law creating the Charco independent school district, and under the power granted “to pass laws for the assessment and collection of taxes in all said districts and for the management and control of the public school or schools of such district” the Legislature could by “a special law, without the local notice required in other cases of special legislation,” authorize the assessment and collection of taxes and manage and control the public schools in the district as fully as could be done through a general law. No one can reasonably contend that the powers granted the Charco school district could not have been given through a general law, and the amendment adopted in 1909 extends the authority to the Legislature to give such districts such powers through special laws without the necessity of the usual notice required in other cases of special legislation. It may be that the desire to authorize the formation of school districts composed of parts of two or more counties was what primarily prompted the submission of the amendment to the people, but the language of the amendment went further and granted to the Legislature authority theretofore denied to it hy the Constitution.

Section 10 of article 11 of the Constitution empowers the Legislature to constitute any city or town a separate and independent school district and authorizes certain school districts to levy and collect taxes under certain conditions, and, as said in State v. Brownson, 94 Tex. 436, 61 S. W. 114, the power granted to the Legislature would not have been necessary except for the provisions of section 56 of article 3. In 1883 an amendment to section 3 of article 7 was adopted which gave the power to create school districts by special laws without-notice, and then in 1909 the same authority over school districts that could be exercised by general law was given by and through special laws. Having the power to create them, the Legislature perhaps had the authority under the amendment of 1883 to manage and control the schools of districts created hy it, but, if such authority did not exist, it was clearly granted by the voters of Texas in 1909, and the Legislature can exercise the same authority over a school district through a special law, without notice, as through a general law. Snyder v. Baird, 109 S. W. 472; Cummins v. Gaston, 109 S. W. 476; Parks v. West, 102 Tex. 11, 111 S. W. 726; Gillespie v. Lightfoot, 103 Tex. 359, 127 S. W. 799; Glass v. Pool, 106 Tex. 266, 166 S. W. 375. As said by the Supreme Court in the case next to last cited:

“The amendment of the Constitution is an exertion of the sovereign power of the people of the state to give their expressed will the force of a law supreme over every person and every thing in the state so long as it does not conflict with the Constitution of the United States. The rule so established bears down and supplants all other laws and rules .that are inconsistent with it. In determining rights controlled hy it we therefore have only to ascertain what it means' and give it full effect, so long as .it encounters no opposition- in the higher law of the federal Constitution.”

The amendment to the Constitution adopted in 1909 gave certain authority to the Legislature it had not possessed before, and when such authority was given it gave the power to enact any and all laws that it could enact liad there been no such provision in the Constitution as that embraced in article 3, § 56. Dallas v. Electric Co., 83 Tex. 243, 18 S. W. 552; Altgelt v. Gutzeit, 187 S. W. 220.

In the case of Eagle Lake Independent School District v. Hoyo, 199 S. W. 352, the identical points raised as to the constitutionality of sxiecial or local laws in regard, to which notice lias not been given are discussed, and the conclusion reached:

“That the Constitution, by this very simple and plain language, confers on the Legislature the power to make any provisions for such school districts by special law, without the local notice,' that it might make with it, or by general law.”

All the Texas authorities on the subject are fully reviewed and distinguished in that ease.

This court, in an exhaustive opinion, de- | livered through Associate Justice Moursund, ¡ fully treated the subject of special laws in ! connection with independent school districts. ! and arrived at the conclusion:

“That if the authority to legislate by special act upon a certain subject is given hy a provision of the Constitution other than section 56, art. 3, such authority carries with it the right to enact all provisions which could legitimately he embraced in the bill if such section 56 was not a part of the Constitution. The Legislature would have the same right to frame the provisions of the special act as it would if it was framing a general law to accomplish the same purpose. • Its inherent power would not be affected by the fact that it availed itself after privilege to use a special act pursuant to authority conferred in the Constitution. The power to create a district carries with it the power to deal with school property in the territory, and to regulate the school affairs of the entire new district, and make all provisions germane to the purpose of creating the new district, and all of this may be done by a special act without notice.” Houston v. Gonzales Independent School Dist., 20-2 S. W. 963, not yet officially published.

The conclusion reached in that case is irresistible and is fully sustained by all the authorities. The Charco independent district is legally -and constitutionally established, and the bond question was duly presented to the people of the district in compliance with a constitutional law, and the issue of the bonds legally authorized.

Having been invested by the Constitution with the power to control and manage public schools by special or local legislation, and to authorize the assessment and levy of taxes through special or local legislation, the Legislature had the right as it would by general legislation to provide the manner in which notice should be given as to bond elections, and if such provision as to notice is in conflict with a general law, the latter would give way in the district created hy the local law. Dallas County v. Plowman, 99 Tex. 509, 91 S. W. 221. There is nothing sacred about the provisions as to notice in articles 2857 and 2859, Rev. Stats., and, having the power to create a district by a local law, the Legislature had the authority to provide for a different notice of election for bonds than that prescribed in the articles cited.

The cases of Hall v. Bell County, 138 S. W. 178, and Bell County v. Hall, 105 Tex. 558, 153 S. W. 121, cited by appellant, were in regard to a law passed before the constitutional amendment of 1909 was adopted, and further were in connection with a law about a county auditor, and had nothing to do with school districts, with which the amendment is alone concerned. The case of Cain v. Garvey, 187 S. W. 1111, is a liquor local option case and is not applicable .to this case. None of the numerous authorities cited by appellant are pertinent to the facts before this court.

The second contention of appellant is that, as the property valuation of the school district shows that it is not sufficient to sustain an issue of $10,000 in bonds, the election is invalid, and bonds in no amount can be issued. Tbe excess of bonds voted on doubtless occurred from a miscalculation of tbe interest and sinking fund required and the amount tbe property values would produce, or tbe property values were not correctly ascertained. At any rate, it is not claimed that a fraud was intended or attempted, and it is agreed that no attempt bad been, or would be, made to issue any more of tbe bonds than would be covered and protected by a tax of 25 cents on tbe $100 of tbe taxable property in tbe district. No bonds bad received tbe Attorney General’s approval, and none been registered by tbe comptroller, and of course could not be put on tbe market until those things were done. No debt bad been created against tbe district, and none would be created until tbe approved and registered bonds bad been sold. There are 18 of tbe 20 $500 bonds authorized by the vote of the people to be issued that can be lawfully sold, being amply secured by the necessary interest and sinking fund arising from a legal tax on the property valuation.

Can that proportion of tbe voted bonds be legally issued that can be protected by a legal tax on the present valuation of property in the school district? We are of opinion that such issue can be legally made. Tbe people were fully informed of tbe matters concerning tbe bond issue, and voted that a bond issue of $10,000 should be made, and it cannot be presumed that an issue of $9,000 in bonds would meet with their disapproval. The sanction of a bond issue for a larger amount would necessarily include tbe issue of a less amount of bonds. In other words, the people authorized the trustees to issue a certain number of bonds of a certain value each, and it would be unreasonable to suppose that such authority would not give authority and discretion to issue a less number if for any reason they deemed such less number should be issued. The trustees could not increase the amount voted, but would be authorized to lessen the amount if deemed expedient and proper. The maximum amount of the bond issue was voted by the people, and although that issue was excessive at the time, a less amount could be issued, and the others issued whenever the property values had sufficiently increased to justify it. City of Austin v. Valle, 71 S. W. 414, writ of error denied; Cohen v. City of Houston, 176 S. W. 809. In the Valle Case it was held that:

The “bonds will be valid, although the bonds would have been excessive if all of them had been issued at the time the election was held.”

In the Cohen Case it was stated:

“The question presented by this state of fact, then, is whether the city can lawfully issue the bonds in annual installments running for a period of five years. We think the answer should be in the affirmative, provided that at the time of issuing each installment the city has available a margin of taxing power and property values sufficient to raise, by taxation, the sum of money necessary to pay the interest upon and to create a sinking fund of at least 2 per cent, for the redemption of such installment at maturity.”

In the same case, following other authorities, it was held that the debt was not created until the bonds were sold as obligations against the city or district issuing them. Speaking on this subject, it was said in the Valle Case:

“We are of the opinion that, although the taxable values may not be sufficient at the time the election is held, yet if at the time the bonds actually become debts against the city the taxable values are sufficient to pay the interest and provide the sinking fund, the bonds will be valid.”

In the case of Wells v. Sioux Falls, 16 S. D. 547, 94 N. W. 425, forcefully and properly it was held:

“The contention that the defendants are without power to issue these bonds to the amount of $50,000 because the proposition submitted to the voters provided for ‘issuing bonds to the extent of $210,000’ is untenable, especially as it appears that they intended to issue the remaining portion as they may be required by the contemplated municipal improvement. The mere statement of the contention is sufficient to show its fallacy. It would be con- ’ trary to the dictates of reason to hold that the city authorities are bound to sell more bonds than are needed for the intended purpose, or that they are required to dispose of all of them at one and the same time.”

To tbe same effect are Dillon, Mun. Corp § 203, and Daviess County v. Dickinson, 11 U. S. 657, 6 Sup. Ct. 897, 29 L. Ed. 1026; City of Laredo v. Looney, 108 Tex. 119, 185 S. W. 556.

Tbe judgment is affirmed.
      ®=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    ESQUIVEL v. STATE.
    (No. 5039.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.)
    Appeal from Criminal District Court, Nueces County; Walter E. Timón, Judge. Urbano
    Esquivel was convicted of burglary, and lie appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

The conviction is for burglary, and the punishment assessed at two years’ confinement in the state penitentiary. Appellant entered a plea of guilty, and sought to obtain a suspended sentence. The facts proved are not brought up by the record, nor do we find any bills of exceptions. Motion for new trial complains of misconduct of the jury, but there is absence of any bills of exception or statement of facts disclosing the evidence upon which the trial judge overruled the motion. The record discloses no error, and the judgment is affirmed.


author: KING, J.

text:
    PAUL v. SWEENEY et al.
    (No. 363.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 17, 1918.
    Rehearing Denied June 5, 1918.)
    Appeal from District Court, Harris County; Wm. Masterson, Judge. Action by Allen Paul against J. J. Sweeney and others. Judgment on directed verdict for defendants, and plaintiff appeals.
    Affirmed.
    A. C. Allen and Cooper & Merrill, all of Houston, for appellant. Moody & Boyles, of Houston, for appellees.
   KING, J.

This appeal has been perfected by appellant from a judgment of the Eifty-Eifth district court of Harris county; the judgment being based upon the following verdict of the jury, returned in obedience to a peremptory instruction by the court, to wit: “Gentlemen of the Jury: In this case, the plaintiff having utterly failed to establish, in the opinion of the court, his allegations of conspiracy upon the part of the defendants, and the same being essential to his right of recovery herein, you are instructed to return a verdict in favor of defendants.” The action of the court in thus instructing the jury is assigned as error by appellant. Upon a former trial of this cause, the trial judge sustained the following special plea to plaintiff’s petition: “They specially except to all the allegations in said petition which undertake to join in the same action a claim for damages for breach of a contract of rental with a claim for damages for slander, because the same would constitute a misjoinder o'f causes of action.” Plaintiff refused to amend, and appealed to the Court of Civil Appeals at Galveston, which court reversed and remanded the cause, the report of which may be found on page 525, 188 S. W. We will not copy plaintiff’s original petition, as the material part of same is contained in the report of the former appeal. A careful consideration of the pleadings forces us to the same conclusion that was reached by the Galveston Court, that plaintiff bases his right to recover for the wrongful acts, statements, declarations, etc., upon the theory that such acts were done, made, and declared with the common design of appellees for the purpose of defaming his character and destroying his business, and without quoting the testimony, we have carefully considered the pleadings of the plaintiff, and the evidence introduced upon the trial of the case, and find that plaintiff failed to establish any conspiracy upon the part of appellees, as alleged, and therefore the trial court did not err in giving a peremptory instruction in their favor, and the judgment of the lower court is therefore affirmed.


author: MORROW, J.

text:
    ROGERS v. STATE.
    (No. 5058.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    1. Bigamy <@=>1 — Elements of Offense — Statute.
    To authorize defendant’s conviction of bigamy, under Pen. Code 1911, art. 481, providing that if any person who has a former wife or husband living shall marry another such person shall be punished, it was necessary for the state to prove that when defendant married he had been previously legally married to anothes^wo-man, who was. living when the offense was committed.
    2. Bigamy <®=>11 — G-uilt — Sufficiency of Evidence.
    In a prosecution for bigamy, evidence held insufficient to sustain conviction, in that it failed to establish that defendant, who married in Texas, was the same person who had married previously in Michigan, and in that it failed to show that at the time of his second marriage, if it was such, defendant’s first wife was living.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Kenneth Rogers, alias Mark Morton, was convicted of bigamy, and he appeals.
    Judgment reversed, and cause remanded.
    Oscar H. Calvert, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for the offense of bigamy. It was shown that under the name of Morton he, about the 12th day of February, 1918, was married in Dallas county, Tex., to Gene Crockett. The state introduced a marriage certificate showing that on the 19th day of July, 1913, Kenneth O. Rogers was married to Anna L. Bou-cher, in the State o-f Michigan. A witness testified that appellant some time prior to the last marriage admitted that his name was not Morton, hut that his name was Kenneth Rogers; that he assumed that name of Morton because he could not get along with his brothers. This is the entire evidence as shown by the statement of facts.

The statute defining bigamy (article 481) contains the following: “If any person who has a former wife or husband living shall marry another in this state, such person shall be punished,” etc. To authorize the conviction of appellant it was necessary that the state prove that at the time he married Miss Crockett in Dallas he had been previously legally married to another woman who was living at the time the offense was committed. Goad v. State, 51 Tex. Cr. R. 393, 102 S. W. 121. In the absence of some further proof of identity than that developed upon the trial, we think the evidence is insufficient to show that appellant is the person who was married in Michigan as shown by the marriage certificate mentioned. That certificate shows that in 1913 Kenneth C. Rogers married Anna B. Boucher. There is no further evidence of the identity of appellant with the bridegroom mentioned in the certificate than the fact that a witness testified that while they were drinking together appellant told him that his name was Kenneth Rogers. No fact or circumstance was introduced to further show his identity with the person named in the certificate. The evidence of identity was stronger in the case of Goad v. State, supra, and was there held insufficient. The statement of facts brought up by the record failing to establish by sufficient evidence that the appellant is the same person who married in the state of Michigan in 1913, the evidence is insufficient to sustain the conviction. It is further insufficient in failing to show that at the time appellant married in Dallas his former wife was living.

The procedure complained of in bill of exception No. 1 and the argument referred to in bill of exception No. 6 are matters that will doubtless not occur upon another trial and their discussion is unnecessary. The other bills present no error.

Because the evidence is insufficient, the judgment of the lower court is reversed, and the cause remanded.


text:
    MIRICK v. STATE.
    (No. 5017.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.
    Rehearing Denied June 19, 1918.)
    1. Indictment and Information <@=>44 — Lost Indictment — Substitution of Copy.
    Where there is no intimation in the record that a copy substituted for a lost indictment was not a substantial copy of the original, no error is shown by the substitution by order of the court on written motion, under Yernon’s Ann. Code Or. Proc. 1916, art. 482, relating to lost indictments.
    2. Ckiminal Law <@=> 132 — Change of Yenue —Time.
    An application for change of venue on the ground of prejudice after nine jurors had been selected was too late; the state having contested the motion, denying everything therein, and controverting the knowledge of the com-purgators, under Vernon’s Ann. Code Or. Proc. 1916, art. 630, relating to change of venue.
    3. Criminal Law <@=»1092(4) — Matters Reviewable — Bills of Exceptions — Time fob Filing.
    Under Yernon’s Ann. Code Or. Proc. 1916, art. 845, relating to time for filing of bills of exception, a bill of exception filed more than two months after the court had adjourned for the term cannot be considered.
    4. PIabeas Corpus <@=>50 — Bail — Time fob Application.
    There was no error in refusing accused’s application, made during the trial, for writ of habeas corpus, so as to try to get bail during the further pendency of the trial; such application coming too late.
    5. Criminal Law <@=>1091(5) — Bill of Exceptions — Matters Reviewable.
    A bill complaining of the exclusion of testimony, which does not state what the objections of the state were, nor on what ground the court refused to admit the evidence, cannot be intelligently reviewed.
    6. Witnesses <@=>388(2) — Impeachment—Laying Predicate.
    A witness cannot be impeached by showing inconsistent statements unless the proper predicate is laid.

      7. Criminad Law <&wkey;1091(3) — Matters Reviewable — Bills oe Exception.
    A bill in a rape case complaining that on cross-examination defendant was asked if his wife did not slap a coupile of little girls on the street because of his improper conduct towards them, that he objected because it was immaterial, irrelevant, and calculated only to prejudice his rights, and that it was overruled, was too meager to require that it be passed on.
    8. Criminal Law <&wkey;1170%(2) — Harmless Error — Evidence.
    In prosecution for rape, where defendant had testified that his wife was visiting in another state at the time because her mother was sick, overruling an objection to a question on cross-examination as to whether defendant’s wife had not slapped a couple of little girls because of his improper conduct toward them was harmless, where his answer was that he did not know of it.
    9. Rape <&wkey;7 — Carnal Knowledge — Extent op Penetration.
    To constitute rape, it is unnecessary that the penetration should be perfect, nor that there should be an entering of the vagina or rupture of the hymen; the entering of the vulva or labia being sufficient.
    10. Criminal Law <&wkey;1170(l) — Harmless Error — Evidence.
    In rape case, where the testimony unquestionably showed penetration to the extent required by law, exclusion of testimony of a physician that the hymen would have been ruptured if defendant had had intercourse with the complaining witness was harmless.
    11. Criminal Law <&wkey;>366(l) — Evidence — Rape.
    In rape case_, witnesses could testify that they heard the girl, who was locked in defendant’s room, cry out: “Don’t do that! let me alone! I will tell mamma. I want to go home.”
    12. Criminal Law <&wkey;1169(2) — Harmless Error — Evidence.
    Defendant cannot complain of admission of testimony, where another witness had testified to substantially the same thing without objection.
    13. Criminal Law <&wkey;36á(3) — Res Geste.
    In a rape case, an exclamation, “My God!” made by defendant when witnesses broke into room where he had the girl, was admissible as res gestse.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    J. E. Mirick was convicted of rape, and he appeals.
    Affirmed.
    R. S. Phillips, of Ft. Worth, for appellant. E. B. Hendricks, ‘Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of rape of Nellie Pannell, a little cripple girl 11 years old, and his punishment assessed at 99 years in the penitentiary. The evidence was amply sufficient to sustain tho conviction. The court’s charge, together with those specially requested by appellant, which were given, fairly, fully, and aptly submitted every question necessary and proper to be submitted. There was no objection to the charge.

The rape was shown to have been committed on the night of December 25,1917. The indictment was preferred on December 27th. Appellant was then under arrest and confined on the charge. Doubtless, as tho statute requires, he was duly served with a copy of the indictment. The trial was set for January 2, 1918. A special venire was duly ordered and summoned to appear on that date and were then in attendance. Tho record shows that some 20 minutes before the case was called for trial the county attorney discovered that the indictment had been lost. Hei thereupon filed a written motion so stating, and attached thereto what he alleged was a substantial copy of tho original indictment. The court then made an order to the effect that the county attorney had suggested the loss of the indictment, and that the court was of the opinion that the state was entitled to, and granted leave to, substitute the indictment. It seems at that time the court did not enter on his docket that the original was in fact substituted, but later in the minutes of the court had entered an order to that effect. It appears that appellant and his attorneys were present when all these proceedings occurred. Appellant has three bills of exception on the subject. He claimed at the time that he had the right to contest such substitution and that he desired to do so; but he did not then, nor at any other time, make any such contest. From the record there can be no doubt but the substituted copy was in truth and in fact a true copy of the lost original. It was held by this court in Bowers v. State, 45 Tex. Or. R. 188, 75 S. W. 299, that the only contest which can he made when a, lost indictment is attempted to be substituted is that such substitute is not a substantial copy of the original. As stated, appellant only a few days before the loss and attempted substitution of the indictment had been served with a true copy thereof. He doubtless still •had that. But whether he did or not, there is no intimation in this record that the substitute was not a true and correct and substantial copy of the original. The proceedings in making this substitution were substantially in accordance with the statute and decisions thereunder. 2 Vernon’s Grim. Stats, p. 249; 1 Branch’s Ann. P. O. p. 268.

When the ease was called for trial January 2d, the state announced ready. Appellant made a motion for a continuance, which was overruled. Thereupon began the selection of the jury from the special venire. The trial proceeded until some time next day. After nine jurors had been selected and sworn appellant then made a motion for a change of venue, claiming there was so great a prejudice against him that he could not obtain a fair and impartial trial. The state filed a demurrer to this on the ground, among others, that the application came too late, and the state further contested the said motion, denying everything therein, and controverted. the knowledge of the compurga-tors. The court sustained the state and 'overruled the motion for change of venue. There was no error in the action of the court. 2 Vernon’s Crim. Stats, p. 339; 1 Branch’s Ann. P. O. p. 178. Besides, the bill presenting this matter was not filed until more than two months after the court had adjourned for the term. The statute and decisions reguire that such bill shall be filed during term time; otherwise this court is prohibited from reviewing the guestion. 2 Vernon’s Crim. Stats, p. 831.

Some time later during the trial apipel-lant presented to the trial judge an application for a writ of habeas corpus, so as to try to get bail during the further pendency of the trial. This was clearly too late, and the court did not err in refusing to grant the application at the time. Muldrew v. State, 73 Tex. Cr. R. 465, 166 S. W. 156, and authorities there cited.

The little girl, Nellie, testified in effect that shortly prior to the night the rape was alleged to have been committed the appellant took her upon-his lap, showed her his privates, and asked her something nasty, and said, “Let’s have a bit;” and on another occasion tried to pull up her dress. She did not and could not testify that appellant had sexual intercourse with her on said Christmas night because she swore, and the testimony of other witnesses and the physical facts unguestionably showed, that that night after appellant had enticed and inveigled her into his room and locked the doors he gave her intoxicating liguor, certainly, and perhaps also dope, which rendered her unconscious, and she remained in a stupor and in that condition until sometime about the middle of the next day. The testimony of other witnesses and the physical facts practically demonstrated that about 12 o’clock, or just after, Christmas night, appellant ravished her. Appellant, in cross-examination of her, or otherwise, in no way attempted to lay a predicate to impeach her or any of her testimony. He, however, introduced a 'Mrs. Stein, who testified for him that two or three days after appellant’s alleged rape of the little girl, she (the witness) had a talk with Nellie with reference to what appellant had done and said to her, ■and that in that conversation Nellie said that the appellant never mistreated her. Appellant has a bill complaining that upon the objections of the state Mrs. Stein was not permitted to answer further that on said occasion Nellie had stated to her that appellant never had said anything ugly to her; that he always conducted himself properly before her; never promised her anything out of the way; and thati he never showed his private parts and never did take her upon his lap and say ugly things to her.

The state objects to the consideration of the bill presenting this subject because, among other things, it does not state what the objections of the state were, nor on what ground the court refused to permit the witness to so testify. The state’s objections to the bill are well founded. 2 Vernon Cr. Stats, p. 542, note 29. This court cannot intelligently review the ruling of the court because of said defects. Many reasons could have been given, and probably were, why this claimed testimony of this witness was inadmissible. One alone would have been sufficient, and that is, that no predicate had been laid to impeach Nellie on any of these grounds, and the bill therefore presents no error. It is well established that before a witness can be impeached the proper predicate must be laid, and unless it is laid the impeaching testimony is inadmissible. 1 Branch’s Ann. P. O. § 179, where some of the cases are cited.

Appellant himself testified. In his direct testimony, among other things, he testified, that he had been married for 9 years; that he and his wife had no children and that for many months prior to this Christmas night he had had many little girls, ranging in ages from perhaps 6 or 8 to 12 or 13 years in his room frequently; he never testified that he ever had at any time any boy child in his room; it was exclusively little girls, and among them was Nellie; that he meant and intended no harm or improper relations with any of them at any time; that he and his wife were living together as man and wife, but that she was then with her mother, it seems, in some other state, and had been since June, 1916, and that the occasion for her going there at that time, was that her mother was then sick, and that is why she went there.

Appellant has a very meager bill which complained that while he was testifying, on cross-examination by the state, he was asked if a few months before this alleged offense his wife did not slap a couple of little girls while they were walking along the street on account of his improper conduct towards them; that he objected to this guestion and answer because it was immaterial, irrelevant, and calculated only to- prejudice his rights before the jury; that the court overruled his objections and he answered that he did not know of it if it was true. This is in substance the whole of the bill. In allowing it the court qualified it by stating that he had testified upon direct examination:

“I am married. My wife is with her mother at present. We are living together as man and wife and my wife is off on a visit. Her mother was sick and that was why she went home.”

And the above cross-examination was with reference to whether or not they were living together as husband and wife and whether or not they were separated and the cause of the wife leaving home. This bill is too meager to reguire that it be passed upon. But even if it could be, under the circumstances of this case it showed no reversible error. His answer would be beneficial and not harmful to him and would not authorize a reversal. Phillips v. State, 59 Tex. Cr. R. 534, 128 S. W. 1100; Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596; Merritt v. State, 40 Tex. Cr. R. 359, 50 S. W. 384; Smith v. State, 39 Tex. Cr. R. 320, 45 S. W. 1013; Hart v. State, 57 Tex. Cr. R. 21, 121 S. W. 508; Warthan v. State, 41 Tex. Cr. R. 387, 55 S. W. 55; Baker v. State, 45 Tex. Cr. R. 396, 77 S. W. 618, and many other cases.

In another bill is alleged that in his cross-examination of Dr. Neece, an expert, he asked him whether or not a small girl, the size of Nellie, having sexual intercourse with a man the size of appellant, if it was not a fact that in such relations the hymen would be ruptured. The bill then further recites that the state objected to said question and answer, and the court sustained the objections and would not permit the witness to answer. What objections the state made is in no way given. The bill is incomplete without this. It may have been that the testimony was inadmissible on the ground urged by the state. We cannot tell about this from his bill. He claims in the bill that if th'e witness had been permitted to answer he would have testified that under such conditions the hymen would have been ruptured. Presumably appellant’s contention was that in order to rape this little girl it was necessary for appellant’s sexual organ to have fully and completely entered her vagina and ruptured her hymen in order to show penetration. This under the law was not necessary. The law in this state is as stated in 33 Cyc. 1422:

“The slightest penetration of the body of the female by the sexual organ of the male is sufficient; it is unnecessary that the penetration should be perfect; nor that there should be an entering of the vagina or rupture of the hymen ; the entering of the vulva or labia is sufficient.”

To the same effect is 1 Wharton’s Crim. Law (11th Ed.) §697; 10 Encyc. of Ev. p. 580; 2 Bishop’s New Crim. Law, § 1132. This court has expressly held the law to be as stated by the authorities above. Kenney v. State, 79 S. W. 817, 65 L. R. A. 316; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077; Fitzgerald v. State, 20 Tex. App. 294-296. The testimony by the state unquestionably showed penetration to the extent required by law. Under the law and the unquestioned facts presented in this case, appellant’s bill does not present reversible error even if it could be considered.

The court did not err in permitting two of the witnesses to testify in substance that just after 12 o’clock that Christmas night when appellant had the little girl locked in his room they heard her cry out: “Don’t do that! let me alone! I will tell mamma. I want to go home.” Besides, another witness testified to substantially the same thing to | which there was no objection. Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169, and many other cases. Neither did the court eri in permitting two witnesses to testify that when they broke into the room where appellant had this little girl locked in he exclaimed, “My God.” That was res gestte and admissible.

No other questions are raised which require any discussion. None of them present reversible error.

The judgment will therefore be affirmed.
      <@=>1⅛ other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;»For oilier cases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    GILLUM v. STATE.
    (No. 5023.)
    (Court of Criminal Appeals of Texas.
    May 15, 1918.
    Rehearing Denied June 12, 1918.)
    1. Homicide <&wkey;230 — Assault to Murder— Evidence — Sujticiency.
    In prosecution for shooting at another, evidence held sufficient to warrant conclusion that defendant intended to kill so as to justify verdict of guilty of assault to murder.
    2. Assault and Battery t&wkey;96(l) — Failure T0‘ Submit Issues Not Involved.
    In a prosecution for shooting at another with a shotgun, simple assault was not involved, and failure to submit it as an issue was not error.
    Appeal from District Court, Austin County; M. C. Jeffrey, Judge. .
    Pearly Gillum was convicted of assault to murder, and appeals.
    Affirmed.
    Johnson, Matthaei & Thompson; of Bell-ville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for assault to murder, the punishment being assessed at three years’ confinement in the penitentiary.

Appellant shot Dave Williams, his father-in-law. Appellant’s wife had left him and gone to her father’s home, where she had been for some time. He visited the place oc-. casionally, seeking to induce his wife to return, but she had declined. Otherwise matters had been going on peaceably between the parties up to the night of this shooting. Appellant went to Williams’ house on this particular night and carried a loaded shotgun. He went in the house and was talking to his wife seeking to induce her to return. However, she would not so agree. Williams told him not to raise any disturbance in the house; . while the girl was his wife, he did not want any row in his house; that they must get outside in the road or away from the house if they wanted to have trouble. Appellant left the room and went outside the house. Williams remarked, after appellant went ,out, that he was a good, hard-working boy, but squandered his money, and some of the testimony goes to show that Williams said appellant squandered it on other women. Appellant, on the outside, overheard this remark and said it “was a damn lie,” or “a God damn lie.” Williams stepped to the door, and while standing in it ashed appellant what he meant hy using such language, and appellant fired both barrels) Of a shotgun at him, striking him in the thigh and leg below the knee. The shot were supposed to be No. 6, or what the witnesses called “squirrel” or “bird” shot. The distance was estimated at about 30 or 40 yards; appellant said it was about 60 yards. He admits the shooting, but denied his intent to kill. His version of it was that when Williams stepped to the door he had in his hands a shot gun and snapped it at him, and he then shot. The state’s evidence is to the effect that after Williams was shot he stepped back and got his gun and stepped to the door and snapped the gun twice, but it failed to fire, and upon investigating the gun it was discovered the cartridges had been taken from it. Williams had other cartridges about the house, but they could not be found. They seem to have been the same size shot that appellant used. The state asked questions looking to the fact that appellant may have taken these cartridges, but that is more a theory than a fact.

It is conceded that this does not make out a case of assault to murder. The court submitted the issue as well of aggravated assault. Appellant urges error because the court failed to charge upon simple assault, and also refused to give his special charge submitting the issue of simple assault. We are of opinion the issue of simple assault was not in the case. On the facts the jury was properly instructed with reference to aggravated assault and assault with intent to murder, and the evidence was of a nature that might have justified the jury to believe either that it was asault to murder or aggravated assault. In Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679, these issues were pretty fully discussed by Judge Hurt, which case has been followed. In the I-Iatton Case the assault was committed with á shotgun. The accused in that case was standing about 40 yards from Johnson, the assaulted party. The shot used were No. 8. This extract is made from that opinion:

“If a deadly weapon is used in a deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the intention must be established by other facts. But it would be a monstrous doctrine to hold that, because in fact the accused did not have the ability to kill, therefore he did not intend to kill. A. attempts to rape B., but fails, because physically unable to accomplish his purpose. A. shoots at B. with intent to kill. He fails because his gun was not true to the mark, or because his shot were not large enough to effect his purpose. To this doctrine we cannot assent.”

In this ease, from the state’s standpoint, appellant fired both barrels of his gun at his father-in-law at from 30 to 40 yards. Under appellant’s contention he only fired one shot from a distance of 50 to 60 yards. The intent will be gathered from the facts, and there is sufficient evidence on this question to justify the jury to reach the conclusion that his purpose was to kill. He may have made a bad shot, as Judge Hurt says, but the shots were fired and quite a number of them found embedded in different parts of the house, evidently passing through the open door into the house. There were other people in the room at the time.

We think the facts are sufficient, and the jury was authorized under the evidence to convict of assault to murder or aggravated assault. We do not feel justified in disturbing their finding, and the judgment will be affirmed.
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text:
    HAMMETT v. STATE.
    (No. 4995.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    1. Ckiminax, Law <&wkey;507(7) — Corroboration or “Accomplice.”
    In a prosecution for adultery, the woman was an accomplice, and corroboration was necessary to conviction.
    [Ed. Note. — For other definitions, see Words and Phrases, - First and Second Series, Accomplice.]
    2. Criminal Law <&wkey;511(3) — Corroboration of Accomplice — Evidence.
    In a prosecution for adultery, the fact that defendant took the woman to a town some four months after he ceased having intercourse with her, and introduced her as his wife, and occupied the same bed with her, was admissible as a circumstance, but was not legal corroboration of her testimony as to their relations four or five months before.
    3. Criminal Law <&wkey;511(l) — Corroboration of Accomplice — Sufficiency of Evidence.
    In á prosecution of a married man for adultery, the state depending on the testimony of the woman, an accomplice, evidence held insufficient to show corroboration, and sustain conviction.
    Appeal from Callahan County Court; W. R. Ely, Judge.
    J. C. Hammett was convicted of adultery, and he appeals.
    Reversed.
    Oüs Bowyer, of Baird, M. C. Council, of Clyde, and J. R. Stubblefield, of Eastland, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction of adultery by appellant with Lillie Hirt. He was a married man; she an unmarried girl. The charge was that the offense was committed by his having habitual carnal intercourse with her without living together.

But one question needs to be stated or discussed, and that is whether the girl was corroborated or not. Under the law she was an accomplice, and corroboration was necessary to a conviction. The statement of facts appears to be but a brief statement of the testimony.- It seems it is not a full statement of all the evidence. However, it is properly approved as a statement of facts, and this court is hound thereby. The proof clearly shows that appellant became a tenant of the girl’s father about January 1, 1916; that he lived in a tenant house on Mr. Hirt’s farm about 200 yards from Mr. Hirt’s house. The girl lived with her father. She was 20 years old at the time. She swore: That after appellant became a tenant of her father he was a frequent visitor at her father’s house on business and in a friendly way; that she often met him there; that the first act of familiarity by him with her was in July when she came from Clyde in a buggy; that he was at Clyde having some plow points sharpened; and that he got in the buggy and rode home with her. On the way home he kissed her. That the first act of intercourse he had with her was the last part of July. That he met her at the woodpile, and they agreed to go to the bam and have sexual intercourse, and that they did so. She said she did not remember when the next act of intercourse took place, but that acts of sexual intercourse occurred between them two or three times a week after the first act until the 1st of September, when she went to Baird to school. That he did not have sexual intercourse with her any more after she went to school. That the acts of intercourse occurred when defendant would come to her room at night at her father’s house. This was the substance of her testimony, except that she testified he took her to Granger about Christmas, introduced her there at the hotel as his wife, and they occupied a bed together that night in the hotel.

There was in fact practically no corroboration of her by any witness or circumstance. Her father testified: That appellant was his tenant from the 1st of January, 1916, living in a house 200 or 300 yards from his own residence. That he furnished him tools and provisions to make a crop, and said that defendant was frequently at his house on business and met his daughter Billie there from time to time while she lived at his house. That he received him as a friend, and thought he was a gentleman. That defendant was in the parlor with. Billie alone on several occasions. None of the father’s testimony was sufficient to corroborate hel-as to any single act of intercourse, or that he habitually had intercourse with her without living with her. The fact, if so, that appellant took the girl to Granger some four months after he had ceased having intercourse with her, and that he then and there introduced her as his wife and occupied the same bed with her that night was admissible as a circumstance, but it would be no such corroboration of habitual intercourse some four or five months before as required by law. At most, it would be evidence of the fact that he at that time had sexual intercourse with her.

It may be that on another trial in a full development of the testimony she’ may be corroborated, but we think the evidence in this case, as it is presented in this statement of facts, is insufficient to show corroboration, and hence that the testimony was insufficient to sustain the conviction, and on this ground the judgment will be reversed.
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text:
    WALKER v. STATE.
    (No. 5049.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.)
    1. Criminal Baw <&wkey;598(2) — Continuance— Absence oe Witness — Diligence.
    Where defendant’s motion for continuance for absence of a witness, the case having been called for trial January 24th, alleged such witness had gone to another town temporarily on January 18th, no process having been issued to the county of the witness’ residence and place of trial, or served on the witness, and no process was issued for her in the town to which she went until January 22d, and such process was not returned, the diligence to secure her attendance was insufficient.
    2. Cbiminal Baw <&wkey;917(2) — Continuance— OVERRULING OE MOTION.
    Where defendant’s amended motion for new trial was not filed or acted upon until more than two weeks after he was tried and convicted, and the affidavit of neither of the witnesses for whose absence he had asked continuance was filed in connection with the motion for new trial, or otherwise, and no reason or excuse was giv,cn why that was not done, the court did not on-in refusing new trial.
    Appeal from Nacogdoches County Court; J. H. Perritte, Judge.
    J. T. Walker was convicted of malting a sale of intoxicating liquor in a county where prohibition was in force, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of making a sale of intoxicating liquor in Nacogdoches county where prohibition was in force, and the law made it a misdemeanor only, and the lowest punishment assessed. The evidence by the state was amply sufficient to sustain the verdict, because evidently the jury believed that testimony and disbelieved appellant’s to the contrary.

The complaint and information were filed against appellant on December 15, 1917. He was doubtless arrested at once. Nothing is shown to the contrary. When the case was called for trial January 24th following, appellant made a motion for a continuance on account of the absence of Bud Paine and Mary Sanders. The motion shows that Bud Paine had been subpoenaed on January 19th, and attended court a couple of days. Just the day before the case was called for trial, as we understand the bill and the judge’s qualification, the 'appellant excused the further attendance of that witness. Both these claimed witnesses were residents of the town of Nacogdoches, where the court was held and the cause tried. No process was issued to that county or served on the witness Mary Sanders. It is alleged that she had gone to San Antonio temporarily on January 18th. No process was even issued for her at San Antonio until January 22d, and that process was not returned. The diligence to secure her attendance was therefore wholly insufficient. It may he conceded that, if these witnesses would have testified what appellant alleges they would, their testimony would have been material for him. However, his amended motion for new trial was not filed nor acted upon until more than two weeks after he was tried and convicted. The affidavit of neither of these witnesses is filed in connection with the motion for new trial or otherwise, and no reason or excuse is given why this was not done. The court did not err in overruling his motion for a continuance nor in refusing him a new trial because thereof.

The judgment is affirmed.
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text:
    TORREZ v. STATE.
    (No. 5047.)
    (Court of Criminal Appeals of Texas.
    May 29, 1918.)
    1. Homicide &wkey;112(5) — Self-Defense—Voluntary Engagement in Difficulty.
    If defendant obtained a knife and went to where deceased was with a view to engaging in a difficulty with him, and did some act that brought about the difficulty, he had no right to use his knife in self-defense.
    2. I-Iomicide “<&wkey;112(2) — Self-Defense—Obtaining Arms.
    The act of defendant in obtaining a knife to defend himself against the aggression of deceased, who had previously assaulted him, in case deceased should again attack him, did not defeat the right of self-defense, whore defendant did nothing to bring on the final difficulty resulting in the killing.
    3. Homicide <&wkey;109^-SELF-DEFENSE — Anticipatory Arming.
    If defendant went where deceased was on the invitation and call of deceased, and the latter attacked him with rocks, his right of self-defense was not eliminated, though lie had armed himself with a knife in anticipation of an attack by deceased.
    4. Homicide <&wkey;276 — Self-Defense, — Evidence.
    In a prosecution for murder, evidence held to raise the issue of self-defense.
    Ajppeal from District Court, De Witt County; John M. Green, Judge.
    Jesus Torrez was convicted of murder, and he appeals.
    Reversed, and cause remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 25 years’ confinement in the penitentiary.

The only question presented for decision is the failure of the court to submit the law of self-defense. . The evidence suggesting this issue comes mainly from' the defendant’s side of the case. The facts show it was Thanksgiving Day, and the section hands, deceased and appellant being of that number, were enjoying a holiday. The boss of the section gang invited the four men working under him to repair to a beer saloon and enjoy a glass of beer at his expense. After taking the beer the parties began treating each other to glasses ot beer. Finally, appellant ordered beer “for the crowd.” Deceased remarked that he would not pay for that beer. Appellant told him he had ordered the beer, and had money with which to pay for it, and would do so. Deceased pressed the quarrel. Later they left the saloon and went to a water-closet. While there deceased renewed the quarrel, stating to appellant, in substance that “he was not a man to meet him.” In other words, the substance of this conversation was 'that deceased informed appellant he would not fight him and was not man enough to do so. Appellant deprecated the quarrel, stating there was no necessity for having any trouble. They returned to the saloon. Short; ly afterward appellant left the saloon, and it seems was followed by deceased, or at least they met not far from it when deceased renewed the quarrel, this time slapping or striking appellant with his hand or fist, and perhaps did both. He also kicked him with his foot two or three times, and appellant again informed deceased there was no necessity for having trouble; that they were both married men and had families, and should not engage in trouble. The treatment by deceased seems to have humiliated appellant. During one of their quarrels deceased told appellant he was not man enough to meet him at the bridge. Appellant left after receiving the blows and kicks and went to his house in which both he and deceased and their families resided, secured a large knife, put it upon his person, and came towards the depot. Going in that direction he observed deceased going in the direction of a bridge. Deceased motioned or called him, or did both, to come to him. Appellant went in that direction. As he approached, deceased threw rocks at and struck him on the head or face a time or two, the blow being sufficient to cause appellant to bleed freely. Appellant then threw rocks at deceased, and deceased threw other rocks, and the fight continued until appellant jerked his knife and killed deceased. This is the evidence presenting the issue of self-defense. The court refused to charge upon this issue, and also refused a special instruction requested by appellant.

If appellant obtained the knife and went to where deceased was with a view of engaging in a difficulty with him and did some act that brought about the difficulty, he would be deprived of the right of self-defense. If, however, he obtained the knife to defend himself against the aggression of deceased who had previously assaulted him in the manner above described, and in case deceased should again attack him, and did nothing to bring on the difficulty, then he would he entitled to a charge on self-defense. If he went where deceased was on invitation and call of deceased and the deceased attacked him with rocks, his right of self-defense was not eliminated. He had the right to arm himself in anticipation of an attack by the deceased. He had no right to arm himself and go where deceased was for the purpose of killing him, and, if he did any act then that brought on the difficulty, he would be deprived of the right of self-defense. The issue of self-defense we think was in the case, and should have been submitted.

The judgment will be reversed and the cause remanded.
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text:
    HAYS v. STATE.
    (No. 5045.)
    (Court of Criminal Appeals of Texas.
    May 22, 1918.
    Rehearing Denied June 12, 1918.)
    1. Intoxicating Liquors <&wkey;236(15) — Offense — Evidence — Identity of Defendant.
    In a prosecution for a violation of the local option law, evidence held sufficient to identify defendant as the party who sold beer to the alleged purchaser.
    2. Criminal Law <&wkey;742(3) — Impeaching Evidence — Question for Jury.
    The effect of impeaching evidence is for the jury.
    3. Criminal Law &wkey;»940 — New Trial — Newly Discovered Evidence — Hearsay.
    Where an affidavit attached to a motion for a new trial, and setting up alleged newly discovered evidence, was to the effect that defendant had been informed by unnamed parties that the state’s witnesses and other parties whom affiant did not remember had been paid $50 apiece to send unidentified whisky peddlers to the penitentiary, the alleged newly discovered evidence was hearsay.
    4. Criminal Law <&wkey;958(6) — New Trial — Newly Discovered Evidence — Sufficiency of Motion.
    A motion for new trial, with an affidavit that defendant had been informed that the state’s witnesses and other parties whom he did not remember had been paid $50 apiece to send unidentified whisky peddlers to the penitentiary, not naming any parties by whom such facts could be proved or indicate, except by hearsay, that the state’s witnesses had any interest in the eases, or that defendant was involved in any of them, was too indefinite for consideration, and not within any rule authorizing a new trial for newly discovered evidence.
    On Motion for Rehearing.
    5. Criminal Law <&wkey;1092(4) — Appeal—Bill of Exceptions.
    All errors with reference to impaneling the jury, and which are relied upon, must be reserved by bill of exceptions at the time of impaneling the jury, and, if not so reserved, there must be something shown in the record excusing such diligence on the part of the complaining party, and a mere statement connected with a ground of the motion for a new trial would not-be sufficient.
    Appeal from District Court, Titus County; J. A. Ward, Judge.
    Perry Hays was convicted of violating the local option law and he appeals.
    Affirmed.
    I. N. Williams, of Mt. Pleasant, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, his punishment being assessed at two years’ confinement in the penitentiary.

The main issue presented for revision is the want of sufficient evidence to support the finding of the jury. The case was investigated very fully So far as the facts were concerned. The basis of this contention is that there was a want of evidence to identify the defendant as the party who sold beer to the alleged purchaser. The evidence of the alleged purchaser is not satisfactory as to the identity of appellant. They were strangers, and had never met before. It is shown that Wilder and some of his friends went into a café, and Wilder ordered meals for himself and friends. They then went into a rear room or apartment and drank four bottles of beer, for which they paid 50 cents a bottle. Wilder was not willing to swear definitely that appellant was the man who soffi him the beer. He was of the impression, however, that appellant was the man, and, among other things, mentioned the fact that one of his eyes was defective. Another one of the dining party testified that appellant was the man and identified him with reasonable accuracy. Appellant denied being the selling party. Under this state of the record this court would hardly feel justified in holding that the evidence was not sufficient to identify appellant.

There is evidence also by the appellant, from two witnesses as well as himself, to the effect that after he was indicted he went to see Wilder and the other witnesses at Wilder’s music store. What occurred between the parties at the time was a matter of contradiction between them. This evidence was introduced by appellant for the purpose of weakening the testimony of the state’s witnesses, and to contradict them about matters that occurred between them at the music store and as to what was said. The jury had the right to decide this question. It was impeaching evidence introduced by the defendant.

There was a motion made for new trial, to which was attached an affidavit setting up newly discovered testimony. The affidavit sets out no facts that would be in-troducible were he on the witness stand. It was to the effect that he had been informed and told by parties that Wilder and McBrayer, the other state’s witness, and other parties whom affiant did not remember, had paid $50 apiece to send some whisky peddlers to the penitentiary from Mt. Pleasant, at the January term, 1918, of the district court; that in the Rugby neighborhood and at Umphries’ residence, where McBrayer had been working, and while affiant was at the residence of Jack Winters and near his place, he was informed by several men that McBrayer had told them that he was getting $50, and that Wilder and some other witness whose name he did not remember were each getting $50 to send three whisky ped: dlers to the penitentiary from Mt. Pleasant. McBrayer did not talk to affiant at any time about these cases, or about the foregoing matter, but affiant was working in that neighborhood about the time that McBrayer was in these counties, and affiant repeatedly heard the statements in substance and words as above stated. This was hearsay. No parties were named by whom these facts could be proved, and there is nothing to indicate, except hearsay, that Wilder or Mc-Brayer had any interest in these cases, or that defendant was involved in any of them. Who the three whisky peddlers referred to were is not stated, nor the names of the witnesses. This is too indefinite for consideration, and is not brought within any rule authorizing a new trial on newly discovered testimony.

The judgment will therefore be affirmed.

On Motion for Rehearing.

On a former day of this term this judgment was affirmed. In motion for rehearing appellant complains that the court did not notice one of his grounds of the motion for new trial. 'With reference to that ground it was alleged that the state used 11 challenges instead of 10, and that this fact was not discovered until after the case had gone to the jury. Attached to this ground of the motion is what is termed “Exhibit B,” which contains three lists of jurors from which the jury was selected. These lists show that the names of 'll jurors were scratched by the state and 10 by the defendant. There is no bill of exceptions reserved, and no testimony introduced to verify this in any way, neither as having been the list used by the respective parties in this case or that in fact they were correct. It was simply alleged as a ground of the motion, with no facts to verify and no evidence introduced in connection- with the matter. We are of opinion this does not sufficiently present this matter for consideration. The usual rule is that all errors with reference to impaneling the jury relied upon must be reserved by bill of exceptions at the time of impaneling the jury; and, if this rule is not followed, then there must be something shown in the record excusing such diligence on the part of the complaining party. A mere statement connected with the ground of the motion would not be sufficient. Appellant refers to the case of Hill v. State, 10 Tex. App. 618, and subsequent cases approving the decision in that ease. There is no question of the correctness of that decision, but it seems to have no application to this case. Hill was on trial before a special venire for murder. Eight jurors had been selected, and, over objection of appellant, at that stage of the trial, one of the jurors was excused by the court because the juror said his family was sick. This was done over Hill’s objection. We are of opinion the opinion was correctly rendered, but it has no application here. As this matter presents itself, we do not think it should be considered by the court.

The motion for rehearing is overruled.
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text:
    WHITE v. STATE.
    (No. 4650.)
    (Court of Criminal Appeals of Texas.
    June 5, 1918.)
    LAECENY <&wkey;55— SUFFICIENCY OE EVIDENCE.
    Evidence helé insufficient to sustain a conviction for theft of a lawn mower.
    Appeal from Ellis County Court; W. M. Tidwell, Judge.
    Ed White was convicted of misdemeanor theft, and he .appeals.
    Reversed and remanded.
    E. P. Anderson and T. J. Ball, both of Waxahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of misdemeanor theft, and his punishment assessed at a fine of $25 and imprisonment in the county jail for one day.

It is claimed that he stole a lawn mower, the property of A. Clark, from the possession of Sam Hardin, special owner. Clark, some time in the spring of 1916, left a lawn mower with Hardin for the purpose of repair. Hardin repaired it and placed it outside of the door of his shop. He noticed about a week later that the machine had been removed, he assumed, by Clark, until some ten days thereafter, when Clark called for it, and claimed that he had not gotten it. Some time thereafter Hardin at Clark’s suggestion examined a lawn mower at McCoy’s shop, which mower had a tag attached to it upon which appellant’s name was written, but which he could not identify as Clark’s machine, though he took it to be his because it was the same make of machine and the handle had some paint on it of the same character as that which was on the machine which he repaired for Clark. Later Clark brought and exhibited to him a lawn mower which Clark claimed he had gotten from appellant, and which was an entirely different one from the one he had missed from his shop. McCoy testified that in April, 1916, appellant brought a lawn mower to bis shop to be sharpened, and while it was there Clark saw it and claimed it as having been taken from Hardin’s shop; that there was paint on the handle that appeared to have been placed there and afterwards smeared. The mower remained in his shop for more than a month, when appellant came and paid the charges on it and took it away. Subsequently appellant and his attorney exhibited to witness a lawn mower which was a different one from that which he repaired. Clark claimed that in April, 1916, he owned a good ball-bearing lawn mower; that it had been used one season; that he left it at Hardin’s shop for repairs, and later called for it and found it missing; that he later saw it at McCoy’s shop, bearing a tag on which' appellant’s name was written. He said:

“I examined the lawn mower and knew it was mine. One means of identification was it was a ball-bearing machine like mine that I had gotten from the Howell Hardware Company, and their name was on the mower. Another was that I had attempted to paint my initials on the machine, and that was also on the handle of the machine.” ,

He saw appellant one or two weeks later, and told him that the m&chine at McCoy’s shop had been stolen from Hardin’s shop and belonged to the witness Clark. Appellant said that he had traded for it and would bring it back, and some time afterwards brought a lawn mower to the witness Clark’s house and left it; that he noticed on the handle of the machine paint, and thought it was his, but after he examined it he found it was his handle, but not his machine; that his was a ball-bearing machine with five blades, and the one left was a cheap machine with four blades; that he had Hardin examine the machine left at his house.

Appellant testified and claimed that in 1914 he had bought from the hardware company a lawn mower, paying $15 therefor, and that it had the name of 'Howell Hardware Company on it; that he used it in mowing yards and broke it, and bought another mower from Mr. Will Moore and traded that one to Will Sanders for another mower, and, after doing so, took the handle off of the machine he bought from Howell Hardware Company and placed it on the one he had traded with Sanders for; that this mower was taken by him to McCoy’s shop for repairs, and some time later he paid for the repairs. In the meantime, while the mower was at McCoy’s shop, Anderson Clark told appellant that the mower belonged to him, Clark, and when appellant took it out of the shop he was going to the country to work, and he left the mower with Clark so that he might use it. Will Moore testified he had sold appellant in 1915 a secondhand lawn mower, and Henry Richie, a clerk of the Howell Hardware Company, testified that appellant had bought from the hardware company a $15 lawn mower in 1914, having upon th'e 'handle a metal plate' with the firm name upon it, that it was brought back by appellant for repairs, and that it could not be repaired.

The testimony is purely circumstantial, and we think not sufficient to overcome the presumption of innocence, nor to exclude other reasonable hypotheses arising from the evidence consistent with innocence, and inconsistent with guilt. There was proof introduced that appellant had been previously convicted of a felony, which testimony is not shown to have been admissible except as bearing upon his credibility, but which was not limited to that question and which, it is possible, was more persuasive to the jury in bringing about the conviction than was the certainty of his guilt arising from the evidence. The testimony of both Moore and Richie, who appeared to be white men, while Clark and appellant are negroes, is consistent with the theory of appellant as defined in his testimony, and with his claim that he had traded for the machine when he was accused by Clark of stealing it. The evidence is not cogent that he was ever in possession of the lawn mower which Clark claims to have lost. He lost a ball-bearing machine. Appellant was never found in possession of it, unless it was the mowing machine which was left at McCoy’s shop for repairs. This machine had a handle attached to it which had been taken from a ball-bearing machine bought from the Howell Hardware Company, and by this handle it appears Clark at least in part identified it when he saw it at McCoy’s shop. Appellant’s claim that he had owned a machine bought from the Howell Hardware Company having a handle of that kind, and that he had subsequently broken his machine and attached the handle to one that he had gotten from Sanders in exchange for the one that he had bought from Moore, was corroborated and reasonably supported by the evidence and consistent with his innocence. The court did not submit the case upon the law of circumstantial evidence, and there is no sufficient complaint of its failure to do' so, but in passing upon its sufficiency to prove his guilt the rules of law touching circumstantial evidence are to be applied, and, tested by them, the evidence, in our opinion, is not sufficient to sustain the verdict, for which reason the judgment of the lower court is reversed and the cause remanded.
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text:
    WHITE v. STATE.
    (No. 5051.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.
    Rehearing Denied.)
    1. Criminal Daw <&wkey;346, 364(5) — Evidence —Admissibility.
    In a prosecution for violating the local option law, it was error to exclude testimony as to a conversation with defendant tending to prove that the whisky alleged to have been sold by defendant was loaned, and that the transaction tools: place on a certain date, since such evidence was part of the res geste and material on the question of limitations.
    2. Gbiminal Haw <&wkey;772(4) — Limitation — Instructions.
    In a prosecution for violating the .local option law, where the defense of limitations was interposed, the court should have instructed that, if the liquor was obtained on the date claimed by defendant, they should acquit, or, if they had as reasonable doubt, they should acquit; it not being sufficient to charge with reference to limitations generally.
    Appeal from Nacogdoches County Court; J. P. Perritte, Judge.
    Scrap White was convicted of violating the local option law, and he appeals.
    Reversed and remanded.
    Arthur A. Seale, of Nacogdoches, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of violating the local option law, his punishment being assessed at a fine of $50 and 20 days’ imprisonment in the county jail.

The state’s case is made by three witnesses, Milton Bell, John Dove, and Isaah Jackson. In substance, they testified that they made up a purse with which to secure whis-ky, and that Milton Bell went to appellant’s house and secured the whisky and came away; that they were all present at the house, but two of them did not see the purchase of the whisky or delivery of the whis-ky by appellant to Bell.

One of the main contentions is whether this offense was barred at the time of the filing of the complaint and information. In regard to the date of the purchase Milton Bell testified as follows in regard to limitation;

“My mother died two years ago this coming February. (He was testifying at the January term, 1918, of the county court of Nacogdoches county.) I think that I bought this whisky in December before she died. I know that she has been dead two years this coming February. I cannot be certain, but I believe it was after she died, but I am not certain. It might have been before she died, but it was in December all right.”

Then he denied making certain statements in the presence of Mr. Seale and Mr. Simpson with reference to the date of the purchase of the whisky in which he fixed the date of the purchase before his mother died, which would place the purchase in December, 1915, the complaint and information having been filed the 22d of January, 1918. Mr. Simpson testified the other witnesses made a statement to Mr. Seale in his presence that the whisky was bought before the death of Milton Bell’s mother. It seems that Milton Bell was related to appellant by marriage. He was the uncle of appellant’s wife. The other two witnesses testified to practically the same facts as did the previous witness.. Dove and Jackson, however, did not see the transaction between Milton Bell and defendant in which it was claimed the whisky was purchased. It seems, however, they were at appellant’s house at the time. Appellant’s testimony is to the effect that in December, 1915, before the death of his mother in February, 1916, Bell and others came to his house, and Bell called appellant off into a room and wanted him to sell him some whisky, which he declined, and then he borrowed a bottle of whisky from him to be returned later. He loaned Bell a bottle of whisky to be returned, but which he had never done. Simpson and Seale were placed on the witness stand and contradicted Bell and the other witnesses with reference to the conversation had in Seale’s office. They testified they heard these witnesses make the statement that they fixed the date of the transaction between Bell and appellant in December, 1915, because it was in connection with the death of the old lady who died in February, 1916. All the witnesses who testified to the fact agree that this was the only time Bell, Dove, and Jackson were at the residence of appellant, in connection with any whisky -transaction.

While 'Simpson was testifying appellant proposed to prove some matters by him which were rejected by the court on objection of the state. Simpson testified that one night about 8 o’clock before Christmas of 1915 he was at appellant’s house to secure his services to drive a team for the purpose of hauling logs, and when he got there Milton Bell, Isaah Jackson, and John Dove were present. Isaah Jackson and John Dove were coming off the gallery and Milton Bell was coming out of the house. In this connection appellant further proposed to prove, and the witness would have sworn upon his arrival at appellant’s house and while Bell was leaving the house he asked defendant White what the negroes were doing there, and defendant White told him that Bell came to borrow some whisky for his mother; that she was sick, and that he let him have it; that this was in December, 1915. The bill with reference to this shows that defendant expected to prove, and that Simpson would have sworn, that he arrived at defendant’s house while prosecuting witness Bell and Jackson and Dove were coming out of the house and off the gallery; that he (Simpson) asked appellant what those negroes were doing there, and apipellant stated that Milton Bell had come to borrow whisky for his mother, who was sick, and that he had loaned him a quart of whisky. Said witness would have further answered that this conversation took place about 8 or 9 o’clock just before Christmas, 1915, while the mother of Milton Bell was was ill. It is alleged this, testimony was material to the defense, etc., and especially in connection with the fact that these witnesses stated they had never been at appellant’s house together but the one time, and said statement of defendant to Simpson was admissible as being part of the res gestee, and was explanatory of his action, and explained why the prosecuting witnesses were at appellant’s house; said conversation occurring at the time the prosecuting witnesses were leaving the house or immediately thereafter. We are of opinion that this evidence should have gone to the jury. If the transaction occurred just before Christmas, 1915, it was barred by limitation. This is one of the serious issues of the case. The state’s evidence was uncertain as to whether it was December before or December after the death of the woman. It was shown also that these three witnesses were not at appellant’s house together except one time. Simpson was there on the night of their visit and saw them there, and just as they were coming out of the house or stepping off the gallery the conversation occurred between appellant and Simpson. This identifies the transaction as being the only occasion the parties were there as well as the time. If the evidence had gone before the jury, it would have added strength to the theory of appellant that this whisky was given Bell on the Christmas before the death of the woman the following February, and this would have fixed the date of securing the whisky in December or just before Christmas, 1915. The court seems to have excluded this because it was self-serving and not part of the res geste. We are of opinion it could not operate as self-serving. The witness Simpson was not aware of the fact that appellant had let the parties have any whisky except under his. statement. This, it occurs to us, is part of the res gestee, and did not come within the rule of self-serving declaration. His statement to Simpson was he had loaned the whisky to be paid for by Bell by return of the whisky. This of itself would have constituted a violation under our decisions, and could have been used by the state from that view point of the case as sustaining, or assisted in sustaining, a sale by appellant to Bell. It could not be well prophesied by appellant or Simpson that the old lady was going to die in February, 1916, or that this prosecution would be commenced as late as January, 1918. The parties had just secured the whisky and were leaving the house, or had just stepped off the gallery. This took place more than two years before this prosecution began. We think it was explanatory and part of the res geste of that immediate transaction. There are quite a number of cases supporting this view of the matter, some of which will be cited. Goebel v. State, 45 Tex. Cr. R. 415, 76 S. W. 460; Johnson v. State, 29 Tex. App. 150, 15 S. W. 647; Epson v. State, 29 Tex. App. 607, 16 S. W. 780; Farrar v. State, 29 Tex. App. 250, 15 S. W. 719; Lewis v. State, 29 Tex. App. 204, 15 S. W. 642, 25 Am. St. Rep. 720; Shelton v. State, 11 Tex. App. 86; McPhail v. State, 9 Tex. App. 165; Carter v. State, 73 Tex. Cr. R. 336, 165 S. W. 200. See, also, Branch’s Crim. Law, § 337, for further citation of cases. We'think this testimony, therefore, was admissible.

There is another question which ought not to arise upon another trial. The court’s charge with reference to limitation Was rather general. While we would not feel justified in reversing for this reason, yet upon another trial we are of opinion that the charge asked by appellant more nearly presents the question of limitation than did that given by the court. The jury should be told specifically that, if the whisky was obtained about Christmas, 1915, they should acquit, or if they had a reasonable doubt, they should acquit. This would have presented' the matter specifically. The issue was sharply drawn with a preponderance of evidence in favor of the proposition that it was barred by limitation, and that this transaction occurred about Christmas,- 1915.

The judgment is reversed, and the cause remanded.
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