author: PRENDEKGAST, P. J.

text:
    HILL v. STATE.
    (No. 3396.)

    (Court of Criminal Appeals of Texas.
    Jan. 27, 1915.)
    1. Dibel and Slander <@=>156—Criminal Responsibility — Evidence — Sueei-OIENCY.
    Evidence held to sustain a conviction for slander imputing unchastity to a female public school teacher.
    [Ed. Note.—For other cases, see label and Slander, Cent. Dig. §§ 437-441; Dec. Dig. <@=>156.]
    2. Criminal Daw <@=>1122—Refusal oe Instructions—Review.
    Where neither the bills of exceptions nor the motion for new trial gave any reason why accused’s refused special charges should have been given, the refusal is not reviewable.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. <@=>1122.]
    3. Libel and Slander <@=>152—Criminal Responsibility—Issues, Prooe, and Variance.
    To sustain a conviction for slander, it is only necessary to prove substantially what is alleged in the indictment.
    [Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 417, 419—424, 426, 427; Dee. Dig. <@=>152.]
    4. Criminal Law <@=>829—Instructions— Refusal'oe Instructions.
    Where the court, at the request of accused, charged that the jury must find from the evidence that the slanderous statements substantially as alleged in the indictment for slander were proven, it was not error to refuse a requested charge that the state must prove the identical language alleged, or acquit accused.
    [Ed. Note.—For other eases, see Criminal Law, Cent. Dig. § 2911; Dec. Dig. <@=>S29.]
    5. Witnesses <@=>240—Examination—Direct Examination—“Leading Question!”
    A leading question is one which may be answered in the affirmative or negative, and suggests the desired answer in a matter material to the issue.
    [Ed. Note. — For other eases, see Witnesses, Cent. Dig. §§ 795, S37-839, 841-845; Dee. Dig. <@=>240.
    For other definitions, see Words and Phrases, First and Second Series, Leading Question.]
    6. Criminal Law <@=>1170% — Harmless Error-Allowance of Leading Questions.
    Under the rule that permitting a leading question improperly is not reversible error in the absence of a showing of prejudice to accused, accused charged with criminal slander was not prejudiced by the court permitting the state to ask a witness whether or not accused had stated to him the language charged in the indictment as slanderous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. <@=>1170%-]
    7. Witnesses <@=>358 — Direct Examination -Cross-Examination.
    Where a witness on direct examination testified that he knew a person’s general reputation, and that it was good, the fact that on cross-examination he admitted that it was also his individual opinion did not justify the exclusion of the testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1159, 1160; Dec. Dig. <@=>358.}
    Appeal from Colorado County Court; J. J. Mansfield, Judge.
    Sam Hill was convicted of slander, and lie appeals.
    Aflirmed.
    P. P. Putney, of Victoria, and Emanuel Roos, of Eagle Lake, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

       Rehearing denied February 24, 1915.

   PRENDEKGAST, P. J.

Appellant was convicted of slander, and assessed a fine of $100. The indictment avers that on or about August 15, 1914, in said state and county, appellant “did then and there orally, falsely, maliciously, and wantonly impute to a female in this state, to wit, Nancy Hemphill, a want of chastity, to wit, the said Sam Hill did then and there, in the presence and hearing of I. L. Terrell, and divers other persons, falsely, maliciously, and wantonly say of and concerning the said Nancy Hemphill that during the time that she boarded with Jim McJimsey that she had a man to stay with her every night, meaning that the said Nancy Hemphill, a teacher in the public schools of Colorado county, state of Texas, and while boarding with Jim McJimsey, following her vocation lived with and had carnal and adulterous intercourse with men other than her husband.”

The uncontradicted testimony showed that said Nancy Hemphill was a married woman and a negro school teacher in Colorado county, Tex.; that her home was at Columbus, where she was born and lived all of her life; that she had taught school in said county for nine years — the last seven terms before the fall of 1914 at Walker’s Chapel, in said county; that said Terrell was one of the trustees for that school, and in the summer of 1914 sent for Nancy, and, after talking to her, he practically promised her the scbool for the succeeding term; tb.«t soon after this appellant came to see him about the employment of a teacher for said school, and opposed the .employment of Nancy, and in the conversation, said Terrell testified, appellant told him that she was a bad woman of an immoral character while she lived at Columbus, and “that during the time she boarded with Jim Me-Jimsey that she had a man to stay with her every night”; that after this conversation Nancy came to see him again about the school, and he told her that defendant had told him that she was a woman of bad reputation, and he couldn’t give her the school, and he did not give her the school, but the trustees employed another teacher. On cross-examination Terrell testified:

“During my conversation with the defendant in which he told me that Nancy Hemphill stayed with a man while she boarded with Jim Mc-Jimsey, I am not positive as to what he said about the time that man stayed with her; he might have said every night — three or four times a week; however, ho conveyed to. my mind the impression that she had a man to stay with her frequently.”

And he further said that he would not say positively that defendant said to him that she had a man to stay with her “every night.”

Taking the effect of the testimony of this witness, it shows that on direct examination he stated positively that defendant used to him the identical language charged in the indictment, but on cross-examination he was not so positive about it, and, in fact, said he could not be positive. Taking it as a whole, it was a question for the jury.

Nancy Hemphill, among other things, testified that she was 45 years old, had been married since she was 20 years old, and had three children, boys about grown; that she never had a man to sleep with her other than her husband, while boarding with Jim McJimsey, or at any other time during her whole life.

Jim McJimsey and his wife both swore that no man other than her husband slept with Nancy while she boarded at their house.

Betsy Johnson testified for appellant that said Nancy boarded with her awhile, while she was teaching school at said Walker’s Gliapel; that she knew her general reputation in that community for virtue and chastity, and it was bad; that she and Nancy had a falling out before the term closed, and Nancy quit boarding at her house. Nancy testified that she quit boarding at Betsy Johnson’s because she and Cornelia Clayton, who also boarded there, and was her assistant teacher, could not get along together; that she boarded there 5½ months just before she boarded with McJimsey.

Appellant testified that he lived near Walker’s Chapel school, was a patron thereof, having grandchildren attending the school, and felt an interest therein, and its management; that he heard certain reports concerning Nancy’s character, and went to Mr. Terrell and told Mm what he had heard about her. He said he did not remember making statements to Mr. Terrell that are charged against him in the indictment, and he did not know whether they were true or not; that he simply repeated what he had heard; that he was looking after the interest of the school, and had no idea or purpose of injuring Nancy. Nancy had testified that she had never had any ill will against appellant, but that he had been meddling with her and her school for 3 years, and had told her that he was going to get even with her, “and he has done it.”

Appellant introduced several witnesses who testified to his good reputation as a law-abiding, peaceable man and for truth and veracity. Each of these witnesses likewise, on cross-examination, testified that they knew the general reputation of said Terrell for truth and veracity,'and that it was good. He also had Cornelia Clayton, Nancy’s assistant teacher at said school during 1913 and 1914, testify that she knew Nancy’s reputation at both Walker’s Chapel and at Columbus for virtue and chastity, and that it was bad. On cross-examination she said she was not on good terms with Nancy.

In rebuttal, the state introduced Lawrence Eoley, Ellek Robertson, Jim Henry Putney, Thomas Alexander, Albert Sanford, Ace Garner, Ellek Cole, who each in substance, testified that they had known said Nancy for many years at Columbus, where she' lived, and that they knew her general reputation there for virtue and chastity, and it was good.

Lou Owens, for the state, testified:

On. direct examination: “I live near Walk.er’s Chapel school. I know Nancy Hemphill. I know her general reputation in the community of Walker’s Chapel for virtue and chastity, and that reputation is good.”
On cross-examination: “That is my own individual opinion.”

The state also had Will Kelly, Aaron Brown, and James Amos, each, to testify precisely, in substance, the same as said Lou Owens.

The evidence was amply sufficient to sustain the conviction. The court gave a correct charge and applicable to the law and testimony. Appellant has made no objections thereto.

After the court had read his charge to the jury appellant requested several special charges. The court gave some of these and refused others. In neither of the charges requested which were refused is any reason whatever given why such special charge should have been given. Neither is any reason whatever given in the bills of exceptions or in the motion for new trial complaining of the refusal to give them. In the bill and motion for new trial it is simply stated that the appellant requested the charges, quoting them, and that the court refused to give them. This would not present the matter in such way as ,to authorize or require this court to review the court’s refusal to give the charge, even in a felony case. Byrd v. State, 151 S. W. 1068; Berry v. State, 163 S. W. 964; Ryan v. State, 64 Tex. Cr. R. 628, 142 S. W. 878; Berg v. State, 64 Tex. Cr. R. 612, 142 S. W. 884. It is needless to cite the many other cases.

All the authorities hold that it is only necessary to allege the substance of what was said which is charged to be slander, and also that it is only necessary to prove substantially what is alleged and what was said. Frisby v. State, 26 Tex. App. 180, 9 S. W. 463; Conlee v. State, 14 Tex. App. 222; Riddle v. State, 30 Tex. App. 425, 17 S. W. 1073 ; Rogers v. State, 30 Tex. App. 462, 17 S. W. 548; Berry v. State, 27 Tex. App. 483, 11 S. W. 521; Humbard v. State, 21 Tex. App. 200, 17 S. W. 126; Hasley v. State, 57 Tex. Cr. R. 400, 123 S. W. 596, 136 Am. St. Rep. 986. So that appellant’s special charges to the effect that the state had to prove the identical language alleged, or acquit, should not have been given.

Besides, the court gave his special charges to the effect that the jury must find from the evidence that the slanderous statements substantially as alleged were proven. And it would have been improper, as the court gave his special charges on this subject, to have charged the state had to prove the identical language.

The court did not err in refusing appellant’s special charges which were refused, even if the refusal to give them had been raised in such a way that we could consider them.

A leading question is one which may be answered in the affirmative or negative and suggests the desired answer in a matter material to the issue. So says Mr. Branch in section 334 of his Criminal Law, citing authorities.

Again, as said by him, permitting a leading question improperly will not be reversible error in the absence of a showing of prejudice thereby, citing several cases. Clearly appellant’s bill complaining, in substance', that the court permitted the state to ask the witness Terrell “whether or not” the appellant had stated to him about Nancy what was alleged in the indictment shows no reversible error. Carter v. State, 59 Tex. Cr. R. 75, 127 S. W. 215.

Neither did the court err in refusing to strike out the said evidence of the witnesses Lou Owens, Will Kelly, Aaron Brown, and James Amos as'detailed above. In direct examination they each swore positively they knew Nancy’s general reputation in the particular inquired about, and that it was good. In cross-examination they showed that it was also their individual opinion. Even if the cross-examination had weakened their testimony on this point, it would not justify the exclusion of the testimony, but would go to the weight of it to be considered by the jury.

There being no reversible error presented, the judgment will be affirmed.
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    GUITERREZ v. STATE.
    (No. 3402.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1915.)
    1. Criminal Law <@=>507 — Parties to Offense — Accomplice.
    Parties who knew, when they received goods from defendant, that they had been stolen from a certain store, and who secreted them, were accomplices.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. <@=> 507.]
    2. Criminal Law <§=>510, 511 — Accomplice Testimony — Corroboration.
    Defendant, indicted for burglary, could not be convicted upon the testimony of an accomplice alone, nor could two accomplices corroborate each other.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124-1126, 1128-1137; Dec. Dig. <@=>510, 511.]
    Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.
    Jose Miguel Guiterrez was convicted of burglary, and he appeals.
    Reversed and remanded.
    Mahall'ey & Fulwiler, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of burglary of a store belonging to T. C. Campbell; his punishment being assessed at five years’ confinement in the penitentiary.

The evidence for the state was made largely by two witnesses, whose names are Juan Peralez and Rita Peralez, his daughter. The court charged the jury that Juan Peralez was an accomplice, and submitted the law in regard to his testimony and necessary corroboration. He did not apply that law with reference to the witness Rita Peralez, and refused special instructions submitting that question to the jury. The requested instructions are as follows:

“You are charged that if you believe and find from the evidence that the witness Rita Peralez knew that the goods offered in evidence before the jury were stolen from T. C. Campbell, and that, after ascertaining that said goods were stolen property, she (the said Rita Peralez) concealed the said goods or aided and abetted any other person in concealing the said goods, knowing them to be stolen, then you are charged that said Rita Peralez would, in law, be an accomplice, and you could not convict the defendant in this case upon her testimony alone; and in this connection you are further charged that the witness Juan Peralez is an accomplice, and that the testimony of one accomplice in law cannot corroborate the testimony of another accomplice.”

This charge should have been given. The testimony of Juan Peralez shows that he received the goods into his house from Guit-errez, with the statement, at the time he received them from appellant, that he got the goods from Campbell’s store. In other words, his testimony shows, at the time Guiterrez left the goods in Ms house, he knew the goods had been stolen from the burglarized house. The witness Rita Peraléz also testified that she knew the goods were stolen, heard the conversation between her father and appellant with reference to the goods, and she testified the goods had been in the house a year or more, secreted and hidden away as such stolen goods. She denied any knowledge of the goods until found, and then admitted she knew they were stolen when received.

In other words, the evidence is clear and conclusive that Juan and Rita Peralez both knew, by their testimony and the testimony of these officers, that at the time they received the goods they had been stolen from Campbell’s store, and they secreted the goods knowing that fact. This required the court to charge the jury, not only that Juan Peralez was an accomplice, but the same testimony makes Rita Peralez an accomplice.

The court should have instructed the jury with reference to the law of accomplice testimony as to Rita Peralez, and the further fact that two accomplices could not corroborate each other. The evidence in this case is much stronger than that in the case of Johnson v. State, 58 Tex. Cr. R. 244, 125 S. W. 16, opinion written by Judge Ramsey and concurred in by the court. In view of the decision in that case and the reasoning given, it is unnecessary to elaborate or try to elucidate the question.

The judgment will be reversed, and the cause remanded.


text:
    JOBE v. STATE.
    (No. 3422.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.)
    Assault and Battery <@=>100 — Aggravated Assault — Excessive Punishment.
    Where accused severely beat his wife, constituting an aggravated assault, a fine of $500 and two years’ imprisonment in the county jail, being less than the maximum penalty fixed by statute for the offense, was not an excessive punishment.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 164-170; Dec. Dig. <§=> 100.)
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Jack Jobe was convicted of aggravated assault upon his wife, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $500 and two years’ imprisonment in the county jail.

The state made a case with the testimony of the assaulted wife. A detailed statement of the evidence would serve no useful purpose. Appellant denied qualifiedly the assault, and especially making the bruises on her person that were shown to have been placed there by some cause. He says she ran against the door and hurt herself. She and her husband (appellant) were alone in the room. A witness on the outside heard the commotion, whipping or beating, or what she took to be such. We are of the opinion that the verdict of. the jury is sustained by the evidence. The only ground of the motion for new trial is stated in the following language: “The verdict therein is excessive and unreasonably harsh.” The jury awarded appellant rather an entertaining punishment for an aggravated assault; but, if he beat his wife the way she says he did, it would be a little difficult for this court to say that this punishment was excessive. It was less than the maximum fixed by the statute.

There being no reversible error in the record, the judgment is affirmed.
      <§=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J. 'DAVIDSON, J.

text:
    MADDOX v. STATE.
    (No. 3387.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.)
    1. Criminal Law @=>306 — Evidence — Presumption on Presumption — Insanity.
    Where accused contended that a drink of whisky containing cocaine, given him by deceased, rendered him temporarily insane, evidence that deceased had long been addicted to the excessive use of cocaine is not admissible to aid the jury in determining whether the whisky given to accused contained so much cocaine as to render him temporarily insane, for to reach that conclusion the jury would have to presume as to the quantity of cocaine contained in the whisky, and then as to its effect on accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 719; Dec. Dig. <¿=306.]
    2. I-Iomicide <@=> 120 — Defenses — Self-Defense.
    Where accused in self-defense inflicted a mortal wound, and deceased thereafter abandoned the combat, accused cannot pursue and inflict other wounds, and if he does so, and death is hastened or contributed to, he is guilty of an offense.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 175; Dec. Dig. <@=>120.]
    3. Criminal Law <@=>1043 — Appeal—Objections.
    Under Code Cr. Proc. 1911, art. 743, as amended, requiring specific objections to instructions, accused, not having raised that particular objection, cannot complain that the instructions on self-defense did not inform the jury what would be the grade of the offense, if, after inflicting a mortal wound in self-defense, accused pursued deceased and inflicted other wounds, hastening death.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. <@=> 1043.]
    4. Homicide <@=>179 — Evidence — Admissibility.
    Where accused claimed that deceased gave him whisky containing cocaine, and that he was thereby rendered insane, evidence -that deceased was drunk on the morning of the homicide was inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 380; Dec. Dig. <@=>179.]
    5. Homicide <@=>179 — Evidence — Admissibility.
    In such case, evidence that deceased, some weeks before the homicide, was seen to put a drug in whisky, is also inadmissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 380; Dec. Dig. <@=>179.]
    Davidson, J., dissenting.
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    F. M. Maddox was convicted of manslaughter, and be appeals.
    Affirmed.
    A. S. Baskett, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted, charged with murder, and when tried was convicted of manslaughter, and his punishment assessed at four years’ confinement in the state penitentiary.

The facts show that appellant cut and killed Charles Colson on the night of the 6th of July of last year. The evidence would further show, without conflict, that appellant came from his home that night to a moving picture show, and after visiting the show was on his way home when he met Colson. They engaged in a conversation, and while walking along Colson asked appellant if he wuuld take a drink with him, and, upon appellant stating he would, Col-son pulled a bottle of whisky out of his pocket, and appellant took a drink out of the bottle. The evidence would further justify a finding that, in a few minutes after taking the drink of whisky, appellant’s throat and tongue began to have a numb or dead feeling, when he asked Colson what was the matter with the whisky, and Colson replied it had morphine or coke in it. Appellant says he asked him, “Do you mean cocaine?” and Colson replied, “Tes;” and, when asked what he meant by giving one whisky with cocaine in it, Colson replied, “I thought you1 were a cocaine fiend, too.” Appellant says he told Colson he was mistaken, and Colson replied, “It won’t hurt you,” and shortly thereafter asked if he would have another drink; appellant declining. To this much of the testimony there is but little, if any, conflict, but from this point there is quite a variance.

The state’s witness W. L. Moulder testifies he.is a driver for the Dallas Transfer Company, and he saw a part of the difficulty near the transfer barns. He states he saw the parties standing near one of the barns, and appellant said something about there being morphine in the whisky, and Colson replied it did not make any difference; that appellant then struck deceased, and deceased began backing, threw up his hands, and told appellant to let him alone; that appellant kept backing Colson until Colson backed into barn No. 2; that he saw Colson turn as if to run, and appellant struck Mm in the back; that he saw appellant strike deceased several blows; that Colson never struck appellant at all, but held up his hands and told Mm to let him alone. Witness says he went in the barn and saw Colson; that he was not then dead, but died in about two or three minutes; that he saw no knife in deceased’s possession nor none laying around there.

Frank McDonald says he was sitting on the curb near transfer barn No. 2 when he first saw the two men; that they were' then about 150 feet from him, and were talking and quarreling, but he could not understand what they said; that deceased started toward witness, and, to use Ms own language, witness testified:

“And the other man, Maddox, apparently grabbed him by the coat, and pulled him back. Colson started again toward me, and Maddox was hitting him with his fist (that is, he was striking at him, anyway), and when they got down to where I was — you see I was on the curb, and Colson was coming on toward me, and Maddox was striking him — I stepped out of the way, then, when they came to the curb, they started back into the street again. No, up to that time I had not heard anything that passed between them, that X could understand. Well, they passed into the street again, towards the center, and went down towards the bam door, and went into the barn. Colson was backing backwards some of .the time, and some of the time facing him. All X could see Colson doing was holding up his hands and warding off these blows, as near as I could see. They went into the barn No. 2. I stayed out there on the sidewalk. Maddox came out of the barn. I don’t suppose it was over two minutes after he went into the barn. I heard him say, ‘Why don’t you quit fooling -with me?’ He then went into a saloon there, which was about 50 or 60 feet from barn No. 2. I then went in the barn, and, when I found that he was hurt, I came out of the barn. When I went into the barn where Colson was, he was alive. I do not know how long he lived. He was laying on his back and bleeding on his left side. I could see the blood coming through his shirt. I then went up to the saloon where Maddox was. I heard him talking over the phone. He says: ‘I have cut hell 'out of a fellow. I am in jail. Come down and get me out.’ ‘I have cut helt out of a son of a bitch. I am in jail. Come down and get me out.’ He then went down about 50 feet on the other side of the saloon, where there is a lot where Hurst keeps horses and cows. He went down towards McKinney avenue. No, I did not see Colson strike Maddox.”

Thus it is seen that the state’s case is that appellant, becoming angry at deceased giving him whisky with cocaine in it, while deceased was trying to get away from him, pursued him, cutting him until deceased fell; that deceased at no time struck or attempted to strike appellant.

Appellant’s testimony presents two lines of defense: Temporary insanity, produced by drinking the whisky with cocaine in it, and self-defense. He testified:

That as he was on his way home from the moving picture show he met deceased, who said, “ ‘I-lello, friend, where are you going?’ And I told him, ‘I am going home.’ He said he was going that way, and walked along with me about 15 feet, and he says, ‘Will you take a drink with me?’ and I says, ‘I would not mind having one.’ I thought he was going to take me to the saloon and have a drink, but he pulled a bottle of whisky from his pocket and handed it to me, and I taken one. I took about two swallows of whisky out of the bottle of whisky which he gave me, and then I handed the bottle back to him, and we went straight on down Griffin street. When we had gone about 15 or 20 feet after taking the drink out of the bottle, my tongue and my throat became numb and dead, and I asked him what in the world was the matter with that whisky, and he said, ‘It had coke in it,’ and I said, ‘Do you mean cocaine?’ and he said, ‘Yes.’ I asked him what he meant by giving me whisky that had cocaine in it, and he said, ‘I thought you was one, too;’ and I said, ‘You are mistaken; I am not;’ and he said, ‘It won’t hurt you.’ We then went on down Griffin street, where it "crosses the Texas & Pacific Kailroad, and he said, ‘Have another one,’ and held the bottle out to me, and I refused to take another one. I thought it was a mighty dirty thing, giving me whisky with cocaine in it. When he told me it had cocaine in it, it scared me, because 1 did not know what cocaine might do for me. We crossed the Texas & Pacific tracks and went on past Patterson avenue toward Camp street. After we got to Camp street my head commenced to swim. When we got to Camp street, we turned off of Griffin street down Camp street. The man was walking along with me, and he turned on off to Camp street with me. My head felt queer, and my tongue had a funny feeling. We went on out Camp street towards Akard street. We reached the first livery, stable on Camp street before I had any trouble with this man. We were talking about him giving me whisky with cocaine in it. I asked him what he wanted to give me whisky with cocaine in it for; and he said, ‘I thought you was.one, too;’ and I told him it was a damn dirty trick; and he slapped me. At the time he slapped me, my head was already swimming, and my tongue and throat had a dead feeling. I felt peculiar. When he slapped me, I hit at him. He then got out his knife, and I got out mine, and after that he was cutting at me with his knife, and I was cutting at him; that is as far as I remember. No, I do not remember cutting him.”

He further testified he did not remember anything after that until the next morning, when he awoke in jail; that Ms head was then swimming, he had an awful headache, and Ms tongue and mouth did not feel right; that Ms mouth and throat felt dry, and Ms throat was burning.

Appellant’s father testified: That he got word that night his son was in jail, and went to see, and the first thing appellant said was: “Pa, have you come after me?” That he spoke to appellant, and said: “Frank, do you know you have killed a man?” And appellant replied: “I never killed anybody. A man tried to kill me. He gave me some dope.” That he was in the jail talking to appellant about five or ten minutes. That appellant’s face was red, and Ms eyes looked glassy, and, from the way appellant talked and acted, in Ms opinion he was of unsound mind.

Joe Austin, the city detective who arrested appellant, says he was greatly excited when arrested, and talked freely and loquaciously, and Ms talk was disconnected; that the knife he took off of him had blood on it. The knife was identified and introduced in evidence.

Dr. C. M. Rosser testified and qualified as an expert on insanity. He explained the effect of cocaine on the human system. From the hypothetical question propounded by appellant, based on the evidence offered in his behalf, he testified that in his opinion appellant would be temporarily insane. Prom the hypothetical question propounded by the state, based on its evidence and theory of the case, the doctor testified' that the appellant would not be insane, but his conduct and acts would look like resentment.

So the jury would be left to find whether the hypothetical question propounded by the defendant or the state was founded upon the true state of facts as made by the testimony.' Deceased was cut a number of times, both in the back and in the chest, one cut penetrating the heart.

In his brief and argument before this court the appellant seemed to place more stress on bill of exceptions No. 2 than he did on the others. In this he shows while Arch- Allen and two others were on the witness stand be propounded to them a question, in answer to which each would have testified:

“He was acquainted with deceased, Charles Colson, and knew that said Charles Colson used cocaine, and at the time of the homicide, and long prior thereto, that he was habitually addicted to the use of cocaine.”

Appellant states in the bill:

“That the testimony of each of said witnesses was important, material, and relevant to the defense herein, as there is no direct proof as to the amount or quantity of cocaine contained in said whisky, and the defendant desired to show by each of said witnesses that the deceased, Charles Colson, was then and had long been addicted to the excessive use of cocaine, and was habitually addicted to the use thereof, for the reason that said proof would have aided the jury in forming some correct conclusion as to the amount and quantity of cocaine contained' in the whisky given to the defendant by the deceased, and would have thrown some light on the issue as to whether a sufficient quantity of cocaine was administered to the defendant to produce the physical and mental condition on the part of the defendant as testified to by the defendant.”

It is thus seen appellant’s reason assigned to tbe court at tbe time as to wby be erred in admitting said testimony was that be desired to introduce tbe evidence that tbe jury might infer or presume therefrom tbe amount or quantity of cocaine contained in tbe whis-ky, and also that tbe jury might, from that presumption, further infer or presume whether or not such a quantity of cocaine might produce tbe mental or physical condition, as testified to by defendant.

Appellant cites a number of authorities to tbe effect that “all facts which go to sustain or impeach a hypothesis logically pertinent are admissible in evidence.” This is the law beyond question, and therefore it is unnecessary to discuss the authorities cited by appellant in support of the proposition, but such a rule of law has no application to the testimony offered and excluded by the court, as shown by this bill. He wanted to show the fact that deceased was an habitual user of cocaine; for what purpose? That the jury might first presume as to the quantity of cocaine probably in the whisky, and from this presumption the jury then presume that such a quantity would probably produce temporary insanity. The text-books on evidence all adhere to the rule laid down by Mr. Chamberlain:

“The requirement that the logical inference, styled a presumption of fact, should be a strong, natural, and immediate one brings as a corollary the rule that no inference can be based upon a fact, the existence of which itself rests upon a prior inference. In other words, there can be no presumption upon a presumption.” Section 1029.

This court in the case of House v. State, 15 Tex. App. 522, in an opinion by Judge Hurt, ably and fully discusses this question, and holds one presumption cannot be based upon another presumption, quoting approvingly the text of Burrill on Evidence:

“Upon this subject the learned author, Mr. Burrill, says: ‘Rule 3. The evidentiary facts must be all proved, and the existence of none of them can be presumed. This is a fundamental rule, applying without variation to all of the elementary -facts of which the basis of evidence is composed. So far as they are concerned, presumption cannot be made the ground of presumption. This would be .extending the principle of induction or inference far beyond the legitimate limits, and lead to endless multiplication of the sources and chances of error.’ ”

This rule has always prevailed in this court; such presumptions sometimes being referred to as too remote. Also our Supreme Court and Courts of Civil Appeals follow the same rule of evidence. In the case of M. P. Ry. Co. v. Porter, 73 Tex. 307, 11 S. W. 325, that court says:

“The only possible way to construct a theory of the case which would entitle plaintiffs to recover is to deduce one presumption from another, and this the law will not permit”— citing Lawson, Pres. Ev. rule 118, p. 569.

See, also, St. L. S. W. Ry. Co. v. McIntosh (Civ. App.) 126 S. W. 692; M., K. & T. Ry. Co. v. Byrd (Civ. App.) 124 S. W. 738; Moore v. Hanscom (Civ. App.) 103 S. W. 665; Baldwin v. Goldfrank, 88 Tex. 258, 31 S. W. 1064. In this latter ease Chief Justice Gaines wisely states the rule to be:

“It seems to us that this would be to build one presumption upon another, which is never allowed. The rule is elementary that a presumption can be legally indulged only when the facts from which the presumption arises áre proved by direct evidence; and that one presumption is not to be adduced from another.”

For a list of authorities from almost every state in the Union, see 16 Cyc. 1051; 22 Am. & Eng. Ency. of Law, 1236; Ency. of Ev. vol. 9, p. 880.

The only other question presented in appellant’s brief is that the court erred in his charge on self-defense. Under this assignment, he presents no authorities. At the time the court submitted his charge to appellant’s counsel for inspection, the only exception reserved reads as follows :

“Tlie defendant excepts to that portion of the charge o-f the court on the question of abandoning the difficulty, contained in his main charge on page 9 thereof, because it does not make clear to the jury that if the fatal wound had been inflicted while the defendant was acting in his own self-defense, and before the deceased had so- abandoned the difficulty, the further inflicting of wounds and injuries after the necessity therefor had ceased, and after deceased had abandoned the difficulty, would not impair the defendant’s right of self-defense.”

The exception reserved, it will be noticed, is that the court erred in not instructing the jury that, if the fatal wound was inflicted while the defendant was acting in self-defense, the further inflicting of wounds after the necessity thereof had ceased, and after deceased had abandoned the difficulty, would hot impair the defendant’s right of self-defense. I-Iad the court so instructed the jury, it would not have been the law, for it is not the law of this state that if one inflict a fatal wound, and his adversary flees, and he still pursues him, the right of self-defense would remain unimpaired. The law is he has no right to pursue and inflict other wounds, and if he does do so, and death is hastened, or contributed to in any sense by the additional wounds, the defendant would be guilty of some grade of offense. In the cases of Williams v. State, 2 Tex. App. 282, and Hart v. State, 15 Tex. App. 231, 49 Am. Rep. 188, the rule is clearly laid down: That if the person would have died from some other cause already operating, yet if the wound hastened the termination of life, this is enough. Bordeaux v. State, 58 Tex. Cr. R. 61, 124 S. W. 640, St. Clair v. State, 49 Tex. Cr. R. 483, 92 S. W. 1095; Riley v. State, 81 S. W. 711. No one can pursue another -when he knows his adversary has abandoned the difficulty and retreated with no intention of renewing the difficulty, and inflict other wounds on him. His right to act in self-defense ceases when he knows all danger to him is over, and he is criminally liable for all acts he commits subsequent to that time. If the additional wounds did not hasten nor contribute to the death of his adversary, he might be guilty of no higher grade of offense than aggravated assault, but certainly he would not be entitled to an acquittal on the ground of self-defense, when he knew that all danger to him was passed, when he inflicted the wounds after his adversary had abandoned the difficulty and retreated with no intention of renewing the difficulty. The exception to the charge was not well taken, and the court did not err in overruling it.

Had the appellant excepted to the charge on the ground that same did not instruct the jury of what grade of offense appellant would be guilty under such circumstances, there might have been some merit in his contention, but he made no such exception or objection to the charge, either in the objections to the charge or in the motion for a new trial, and under article 743, as amended, we cannot make such -objection for him and act thereon. In addition to this, as appellant was adjudged guilty of manslaughter only, such objection, if it had been made, would not present serious error. It might do so had he been found guilty of murder.

Appellant does not brief his other bills or failure to give the special charges requested. However, we have read the other bills, and they present no error. The court’s charge on insanity is a fair presentation of that issue, and not objected to by appellant; therefore it was not necessary to give the special charge requested. One of the special charges was given by the court, and the others virtually embraced in the court’s charge.

The fact that deceased was drunk on the morning before the homicide would be material to no issue in the case, and the court did not err in sustaining objections to that testimony. Nor would the testimony of H E. Payne, to the effect that a few weeks before the homicide he saw deceased put a drug in a bottle of whisky, be material. The evidence for the state and appellant proved that deceased gave appellant a drink of whisky with a drug in it on the night of the homicide. That was not a contested issue.

The judgment is affirmed.

'DAVIDSON, J.

(dissenting). On a previous day of the term the judgment herein was affirmed. At the time I entered my dissent. I purpose now to give a few reasons why this judgment should not have been affirmed. I deem it unnecessary to go into a detailed statement of the facts. Some of the evidence is not stated in majority opinion, but, with reference to what I have' to say, I shall not regard those omissions as material.

The theory of the state was that defendant was the aggressive party and cut the deceased fatally with a knife. There were three theories presented by the evidence favorable to the defendant: First, the abandonment of the difficulty; second, insanity produced by cocaine administered by deceased through the whisky given him by deceased; third, self-defense. The court charged upon self-defense and abandonment of the difficulty. Charging upon abandonment, he instructed the jury, in substance, that, if there was an abandonment of the difficulty and a renewal of it by appellant, it would deprive him of the right of self-defense, but failed to inform the jury what would be his relation to the case under the law growing out of the subsequent difficulty; self-defense being in the first. If the first difficulty ceased, and appellant renewed it, he would not be responsible under the first difficulty if the jury should find in his favor on self-defense. The court did not instruct the jury to that effect. If the fatal wounds were inflicted in the first difficulty, and if self-defense was found on this state of facts* then the second difficulty could only be viewed in tbe light of tbe facts occurring upon tbe renewed difficulty. If be inflicted tbe fatal wounds in the second difficulty, be being tbe attaching party, be would not be entitled to self-defense, viewed from that standpoint, but under those circumstances be might be guilty of manslaughter or some grade of assault.- If the wounds inflicted in second difficulty were of a serious nature but not fatal, be would be only guilty of aggravated assault. If tbe wounds were not serious, then be might not be guilty of more than simple assault. The evidence does not show positively whether the fatal wounds were or were not inflicted in tbe second difficulty. Most of tbe fighting occurred before tbe separation of tbe parties. It is a matter of deduction, presumption, or inference as to what occurred in tbe second difficulty. Appellant may have used his knife in tbe second difficulty with fatal effect, or be may not have used it with any such result. He may not have used it at all, or .he may have used it only in inflicting flesh wounds. These were matters to be deduced from tbe circumstances of tbe case, and tbe jury should have been informed as to the law governing such condition, but they were not, and appellant reserved bis exception. Tbe majority opinion seems to base tbe conclusion of no error on the theory that appellant hastened or may. have hastened the death of deceased in the renewed difficulty. How this doctrine could apply to this case is not clear to my mind. If the law of self-defense was in his favor in the first difficulty, he would be justified in what he did. This was impaired by the doctrine of hastening the death in the subsequent trouble. He may have been in the wrong, or thought he may have been justified in first trouble. If he was wrong in the first difficulty, the doctrine of self-defense would nqt be in his favor. If he was right in the first difficulty, under the law of self-defense he would be guilty of no wrong, legally speaking, because he would be justified. The doctrine of hastening the death by subsequent wounds could not deprive appellant of the right of self-defense in the original difficulty, and hastening his death in the second difficulty would not apply, because he was justified in the first trouble. He could then only be charged with the criminal results growing out of the second difficulty. The right of* self-defense is justification, and cannot be used as a criminative fact, tied to and coupled with criminative acts occurring in another difficulty. I cannot altogether agree with the statemeiit of the exception to the charge, as quoted in the majority opinion. A part only of the exception is quoted in Judge HARPER’S opinion in the following language:

“The defendant excepts to that portion of the charge of the court on the question of abandoning the difficulty, contained in his main charge on page 9 thereof, because it does not make clear to the jury if the fatal wound had been inflicted while the defendant was acting in his own self-defense; and, before the deceased had so abandoned the difficulty, the further inflicting of wounds and injuries after the necessity therefor had ceased, and after deceased had abandoned the difficulty, would not impair the defendant’s right of self-defense."

This is the quotation in the original opinion which omits a part of the exception found in the record, but this exception, as quoted by Judge HARPER, is well taken, because if defendant had the right of self-defense originally, and the abandonment occurred, then his rights of self-defense ceased from that time afterward. If it was complete up to abandonment of the difficulty, of course, if he renewed the trouble afterwards, he could not plead self-defense in first difficulty for what he did later, but his right of self-defense would not be impaired in the first difficulty by what occurred in the second difficulty. But the exception to the charge did not stop with the quotation made by Judge HARPER; it went farther. In the exception taken, and in the same clause of the exception in addition to what Judge HARPER quotes, as shown above, this occurs:

“He furthermore excepts to said portion of said charge because it is further erroneous because it practically tells the jury that the defendant, at the time, was doing wrongful act, and permits the jury to consider same against the defendant, without reference to whether or not the fatal injury had already been inflicted.”

This puts quite a different light on the matter, and the exception was well taken. I do not purpose further to follow this. I have said enough, I think, to make it plain, and the exception makes it plain, that the questions were properly presented to the court, and that- the court was in error in not instructing the jury as to what the relation of defendant would be to the ease and the law under the facts of the renewed difficulty.

On the theory of insanity, Judge HARPER holds the court was correct and appellant’s exception not well taken wherein he refused to permit evidence to the effect that the deceased, Colson, was a confirmed cocaine fiend; that he had frequently been arrested by the officers for being drunk and under the influence of cocaine; and that he was a confirmed “dope fiend.” If it could be shown deceased was a user of cocaine for a considerable length of time and for years, as here offered, it was testimony of a most material character. This was pertinent testimony, and went directly to the issue of insanity. The majority opinion disposes of all these matters on the theory that it was “a presumption based upon a presumption.” That doctrine had nothing to do with this case as presented by bills of exception and the testimony. Dr. Rosser, who had served for years as superintendent of the insane asylum at Terrell, an expert -in these matters, testified as to the effect of cocaine, and substantially that the continued use of cocaine brought about an enlargement or increased quantity of the medicine taken by the party addicted to its use. If appellant could prove (and the bill of exceptions shows he could) that deceased had been addicted to the use of this drug for several years or quite a long time, that would be a fact, not a presumption. If he could have proved, which he alleges he could, that by the continued use of the drug the percentage of the dose largely increased, this would be a fact, not a presumption. It was a fact un-controverted that this was the first drink of whisky appellant had ever taken; it was the first dose of cocaine he had ever taken; and out of these facts grew the difficulty. These were not presumptions. With these facts before the jury, the proposition to be determined by Dr. Rosser, as an expert, was that, the dose taken by the confirmed cocaine fiend being larger than one not addicted to it, the result and effect upon the novice would be much greater than it would if he had been addicted to it; therefore more likely to produce insanity in the novice. This would be permissible on the theory of insanity and the opinion of the expert, and where the doctrine of “presumption .upon presumption” comes under this state of facts I do not understand. Appellant was clearly entitled to this testimony, and, had it been before the jury, there is no question in the mind of the writer that the verdict would have been more favorable; but, whether it was or not, it was a cogent fact to be weighed by the jury favorable to the defendant on insanity. Again, it might have influenced the jury to give defendant two years instead of four years, which they gave him. I do not purpose to go into the reasons assigned in the exceptions why the exclusion of this testimony was error. Judge HARPER in his opinion, only quotes a portion of those. However, the exceptions were very numerous and present the matter from almost every imaginable standpoint. Appellant’s contention is correct. He should have had the benefit of this testimony, and not have the case affirmed on the mistaken theory that this testimony was basing “presumptions upon presumptions.” The issue was insanity, and the opinion of the expert was sought on a given state of facts, all of which were provable on the theory of insanity. It might be well to state here that testimony is often admissible when the issue is insanity that would not be admissible on other questions outside of and beyond insanity. This has been so thoroughly settled in Texas it ought not to be questioned. I might mention here one instance: The acts and conduct of the defendant under arrest that may be used in insanity when undertaken to be used against him on the theory of guilt are clearly non-admissible. Other instances might be cited, but this is sufficient. Burt’s Case, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330; Tubb’s Case, 55 Tex. Cr. R. 621, 117 S. W. 858; Spivey’s Case, 45 Tex. Cr. R. 497, 77 S. W. 444; Miller’s Case, 71 S. W. 20; Cannon’s Case, 41 Tex. Cr. R. 486, 56 S. W. 351.

I therefore respectfully enter my dissent.
      <®=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J. HARPER, J. DAVTDSON, J.

text:
    ETHERIDGE v. STATE.
    (No. 3426.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.
    Rehearing Denied March 3, 1915.)
    1. Perjury <&wkey;21 — Prosecution — Indictment — Sufficiency.
    An indictment, charging that accused committed perjury by giving false testimony on his trial in the county court, where he was charged by complaint with a gaming offense, is sufficient, though not averring that he was charged by information or indictment.
    [Ed. Note. — Por other cases, see Perjury, Cent. Dig. §§ 72-75; Dec. Dig. &wkey;>21.]
    2. Perjury <&wkey;9 — Offense—Jurisdiction of Court.
    Accused was in justice court convicted of a gaming offense, the charge being made by complaint only. Thereafter he appealed to the county court, and the prosecutor, discovering the complaint to be defective, moved to dismiss and filed a new complaint. Accused waived notice and the filing of an information, consenting to go to trial immediately upon the complaint. Held, that the county court had jurisdiction over the prosecution, and accused, having given materially false testimony, was guilty of perjury.
    [Ed. Note.' — For other cases, see Perjury, Gent. Dig. §§ 27-35; Dec. Dig. &wkey;?9.]
    Davidson, J., dissenting.
    Appeal from District Court, Travis County ; George Calboun, Judge.
    Lee Etheridge was convicted of perjury, and he appeals.
    Affirmed.
    Eaulk & Parker, of Austin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of perjury and assessed the lowest punishment.

1. Perjury is assigned on alleged materially false testimony given by appellant on his own trial in the county court, wherein he was charged with unlawfully, etc., betting and wagering at a game played with dice, to wit, craps. This court on January 6, 1915, reversed that case because no information was preferred, based on the complaint therein, holding that an information was essential, that he could not waive the information and by agreement be tried legally in an original proceeding in the county court on the complaint only. Lee Etheridge v. State, 172 S. W. 784; James Etheridge v. State, 172 S. W. 786. This writer dissented in those cases. The record in appellant’s ease, supra, clearly and conclusively showed that he made no objection whatever at the time to being tried on-the complaint only and without an information. In fact, it shows he was already voluntarily in court, and that it was at his and his attorney’s special instance and express agreement and waiver he was then tried on the complaint only, which was, at the time, read to the court and jury, and he then and there pleaded not guilty thereto, and that it was only after his conviction therein he raised any question or objection to the legality of his trial, and that he did so then by a motion in arrest of judgment only, because no information had been filed.

2. The indictment herein conforms to the statute and the approved forms thereunder, alleging, however, with all the other requisites, that in said county court case he “was duly charged by complaint with” said gaming offense. It did not allege that he was charged therein by information, nor by complaint and information, nor by indictment. So far as the validity of the indictment is concerned, it was sufficient for it to allege he was charged and tried in said county court case for said gaming offense “by complaint.” It was not essential to its validity that it should allege he was charged in said county court case “by information,” nor “by complaint and information,” nor by indictment; for, upon an appeal to the county court from a justice court conviction when trial was had on a complaint only, a perfectly valid trial could be had in the county court, without any information. Ex parte Morales, 53 S. W. 107; Ex parte Nitsche, 170 S. W. 1101. So that the trial court did not err in overruling appellant’s motion to quash the indictment herein. Powers v. State, 17 Tex. App. 428.

3. On the trial of this case, the uncon-troverted testimony showed that appellant and his brother, said James, were tried and convicted separately in the justice court, precinct No. 2 of said county, at Manor, for said gaming offense on a complaint only, from which they respectively appealed to, the county court; that, when these appealed cases were called on Monday in the county court for setting, all the witnesses, a large number, who had been duly summoned, were present. Both cases were then set for trial for the next day, Tuesday, and the witnesses then notified to attend the trial that next day, which they did.

Mr. Shelton, the county attorney, who was in no way disputed, testified:

“The morning the cases against Lee Etheridge and Jim Etheridge were called for trial in the county court, they were called on the complaints originally made in the justice court at Manor, ©n which they were tried and convicted and appealed to the county court. When I examined those complaints that came up from Manor, I found that they were both defective, and told the court that I would file a motion to dismiss both of those cases, but that I would immediately file new complaints against them in the county court. Tt was stated at the time that, as the complaints were just filed, the cases would necessarily be continued until the January term of court, on account of the defendants’ being entitled to their three days after filing before trial. Mr. Paulk, their attorney, then stated to me, in the presence of both of the defendants, that he was willing to waive the three days and the filing of informations and go to trial. I filed the complaints, and after they had been filed Mr. Paulk called for the witnesses to be recognized. Mr. Johnson, the deputy clerk, was preparing a subpmna, at my request. The reason I wanted the subpoena issued was that I wanted the officers of the court to be entitled to their fees, and when Mr. Paulk called the witnesses around to be recognized, I asked Mr. Jester and Mr. Barbisch, both being deputy sheriffs, who were standing there, to at once summon the witnesses, so the sheriff would be entitled to his fees in case of conviction. We were selecting a jury in the case against Jim Etheridge, and there were only five jurors selected out of the jury for the week, and Mr. Paulk said, ‘We are willing to try the case with five jurors,’ and then said, ‘As the testimony in both cases is practically the same, to save the witnesses from coming back we can try both cases at the same time,’ which I agreed to.”

Both cases were tried together in the county court.

Mr. Shelton further testified that when the appealed cases were called for trial Tuesday morning, and he discovered the defective complaints from the justice court, he said:

“As I remember it, I was standing at one corner of the judge’s desk in the courtroom at that time, and Mr. Paulk was standing close to me, and the defendants, Lee Etheridge and Jim Eth-eridge, were sitting in chairs just inside the railing. As to whether I asked Mr. Paulk to agree for me to substitute corrected complaints for the defective complaints, I stated to him that unless he would agree for me to substitute corrected complaints I would have to dismiss the cases.”

Judge Von Rosenberg, the county judge, testified substantially as did Mr. Shelton. In the cross-examination of him, he said:

“Mr. Paulk may have told me the real thing he was trying to get rid of was the court costs in the.old cases.”

Both appealed cases were then dismissed, and the new complaints made, and the trial thereon at once had in the county court on appellant’s and his attorney’s said express waiver and agreement. It was for the false evidence of appellant given on the said trial for which he was convicted of perjury in this case. The evidence was amply sufficient to show, and did show, that appellant’s testimony as charged in the indictment herein was false, etc., as alleged therein.

4. The material question herein is whether or not the said county court trial was the trial of such a case as that perjury therein could be committed. Appellant earnestly contends that because no information was filed on said complaint, and said trial was had on a complaint only, the pretended trial was utterly void, and in fact no trial whatever; that, even if he gave materially false testimony on the pretended trial, he is not guilty of perjury and cannot be convicted therefor. The state, by her Assistant Attorney General, as earnestly contends the reverse.

We will now discuss said question. We think this exact question, in principle, has been expressly decided by this court against appellant, in Anderson v. State, 24 Tex. App. 705, 7 S. W. 40. That case was tried in the court below before the Honorable F. A. Williams, then one of our district judges, but aft-erwards so long one of the most eminent and able justices of our Supreme Court, who in every way sustained that conviction. The opinion of this court therein was rendered by the equally .eminent and great Judge Hurt, so long the Presiding Judge of this court. In said Anderson Case it is shown that one Green was prosecuted before a justice of the peace for unlawfully carrying a pistol, in effect, by information only, without any complaint. For Judge Hurt says:

“There is evidence in the record strongly tending to prove that the complaint was not sworn to. This being the case, it is insisted that the court should have instructed the jury that, if they had a reasonable doubt as to whether the complaint was sworn to, they should acquit the defendant. Concede the fact that the complaint was not sworn to, does it follow that defendant could not commit perjury upon the trial under such complaint? There is no question as to the jurisdiction of the justice to hear and determine the cause then before the court. The court had jurisdiction of the offense, the subject-matter of litigation. But appellant insists that the jurisdiction had never attached in that case., and hence there was no authority in the justice to swear the defendant, and therefore no perjury.”

And he treated and decided the case, as if the complaint was not sworn to, as Judge Williams had done in the trial court. Of course, a complaint not sworn to is no complaint whatever, and is void as a pleading, and cannot be ihe basis for a prosecution either with or without an information. C. C. P. arts. 268, 269, 479, 972; Scott v. State, 9 Tex. App. 434; Morris v. State, 2 Tex. App. 502; Dishongh v. State, 4 Tex. App. 158; Robertson v. State, 25 Tex. App. 529, 8 S. W. 659; Neiman v. State, 29 Tex. App. 860, 16 S. W. 253; Jennings v. State, 30 Tex. App. 428, 18 S. W. 90; and many other eases. Anderson testified falsely in said Green’s pistol case, so as to commit perjury, if perjury could be committed in the trial of such a case without a complaint, and was indicted therefor. He contended the perjury charge against him could not be maintained under said circumstances. Judge Hurt then shows his contention was correct at common law, but not so under our Constitution and laws. He quoted section 14, art. 1, of our Constitution, which is:

“No person, for the same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”

And said:

“As it frequently occurs that an accused is placed upon trial for an offense before a court of competent jurisdiction upon indictments vicious in substance, and that long and tedious trials are had, resulting in verdicts of acquittal, was it not the intention of the Constitution to say to the state that the accused shall not be tried again for the same offense" though the indictment was in substance insufficient? After a most thorough examination of this subject, we are of the opinion that this was the intention of the framers of the Constitution. * * * Bet us suppose that the indictment charging the theft of a bay horse, the property of B., fails to allege that it was fraudulently taken, or that it was taken without the consent of the owner, or fails to allege that the accused took the property with the intent to deprive the owner of the value, etc. If the accused is acquitted, he can plead this acquittal in bar of another prosecution under a good and sufficient indictment — one which charges him with the theft of the same bay horse, the property of B., on an indictment containing all the elements of theft of property alleged. If therefore the accused can be acquitted under a bad indictment, information, or complaint, the court having jurisdiction of the cause of action — the offense — and this acquittal can he successfully pleaded to a second prosecution, may not a witness be guilty of perjury for false swearing upon the trial, though the jurisdiction of the court may not have lawfully attached? For, if the court has jurisdiction of the offense — the subject-matter— and a trial results in a verdict of not guilty, the state is forever debarred from another prosecution for the same offense; and the false testimony of a witness may, and no doubt would, in many cases contribute to an acquittal, and thus defeat the ends of justice.
“Just here let us give another illustration. All prosecutions originating in the county court must be presented by information, and the information must have for its support a complaint verified by the affidavit of some credible person. Now, let us suppose the accused is placed upon trial upon a good information, and is convicted and fined one hundred dollars. He pays his fine and is discharged. Afterwards it is discovered that there was no complaint. Now. then, the jurisdiction of the county court had not properly attached, and yet the accused has been tried upon a good information before a court of competent jurisdiction. Will it be Contended that, because there was no complaint, a witness who swears falsely, deliberately, willfully, and intentionally cannot, .and should not, he convicted of perjury when it may he that tha accused was convicted solely upon his false testimony? We should hesitate long before we would sanction such a doctrine. But suppose the accused be acquitted by verdict of not guilty, this would be a bar to another prosecution, when-it may be that this verdict was obtained by the false testimony of a witness who, if we are wrong in our views upon this subject, is beyond the reach of the penal laws of this state. To this we cannot agree.
“Concede that the jurisdiction of the court had not properly attached to the particular case, yet there was a trial before a court of competent jurisdiction, upon a charge of an offense, and, though not properly before the court, its adjudication, if resulting in a verdict of not guilty, has such force and effect as will enable the accused to plead that the matter was res adjudicata, plead this trial before a court of competent jurisdiction, and verdict of not guilty in bar of another prosecution. The judgment in such a case would not be a nullity as to both the state and the accused, for while the state would be bound by it, the accused, if convicted, would not. The state being bound by such a judgment, by reason of such a trial and verdict, we are clearly of the • opinion that a witness swearing falsely upon such a trial would be guilty of perjury.”

See, also, Mixon v. State, 35 Tex. Cr. R. 459, 34 S. W. 290.

This Anderson Case has never been questioned, modified, or overruled, but many times cited with approval by our decisions. It was specially cited with approval, and the same doctrine held, by the Supreme Court of Iowa in State v. Brown, 128 Iowa, 30, 102 N. W. 799.

Again, in Cordway v. State, 25 Tex. App. 405, 8 S. W. 670, it was shown that one Coy was extradited from Mexico to our state to be tried for the murder of Elder. He was after-wards -indicted for the murder of Jackson, for which he was not extradited. Cordway was indicted for perjury for false testimony given by him in Coy’s trial for the murder of Jackson. That trial resulted in a mistrial. Coy, in that trial, did not interpose any plea or object to the jurisdiction of the court, but afterwards sued out habeas corpus and was discharged thereunder, because, and it was held, the court had no jurisdiction to try him for the Jackson murder. Cordway thereupon contended that, as the court had no jurisdiction to try Coy for the murder of Jackson, he could not commit legal perjury on that trial. Judge Davidson was then Assistant Attorney General, and briefed the case. This court, through Judge Willson, said:

“In an able and exhaustive brief by the Assistant Attorney General, this proposition is, we think, successfully and conclusively answered. We shall not enter upon an extended discussion of the question, but merely state our conclusions upon it, which, we think, are well supported by both reason and authority. Our conclusions are : (1) The district court of Wilson county had jurisdiction of the subject-matter of prosecution against Coy; that is, the offense of murder. (2) It did not have jurisdiction over his person to try him for said murder, because he had not been extradited for that particular murder. (3) Jurisdiction over the person, unlike jurisdiction over the subject-matter, is a matter with respect to which only the person over whom the jurisdiction is being or sought to be exercised has or can have any concern. It can be denied or objected to by no one else. It may be waived by him, as he may waive any other right except that of trial by jury in a felony case. (4) If such person submits to the jurisdiction of the court over his person, if he makes no objection to being tried by the court, he waives his privilege, whatsoever it may be, and, so long as he does not assert such privilege and challenge such jurisdiction, the court may proceed legally to try him, and in such case the proceedings had against him are not void, but in any event are merely voidable, and voidable only at the instance of the person entitled to the privilege, and cannot be called in question by any other person. We hold therefore that the trial of Coy for the murder of Jackson, upon which trial the alleged perjury was committed, was a legal and not a void proceeding, and that the court in which said trial was had was a court of competent jurisdiction for all the purposes of this case.”

Again, in Smith v. State, 31 Tex. Cr. R. 317, 20 S. W. 707, it was shown that Smith gave false testimony in the trial of his own case in the justice court, wherein he was tried for “betting at a game of craps” and duly indicted for perjury committed therein. He claimed the justice court trial was void and he could not commit perjury therein because the jury was not sworn. The court, through Judge Hurt, said:

"We are not to be understood as holding that perjury could not be committed in a judicial p?oceedinig under any circumstances, unless the gourt had acquired jurisdiction of the person of defendant. In this case the jury was selected, but was not sworn as the law directs. Upon the trial before the court with such a jury, could perjury be committed, though the false testimony would be perjury if the jury had been legally sworn? ‘Perjury’ is a false statement, either written or verbal; deliberately and willfully made, relating to something past or present, under the sanction of an oath, where such oath is legally administered under circumstances in which an oath is required by law, or is necessary for the prosecution or defense of any private right, or for the ends of public justice. An oath, legally taken in any stage of a judicial proceeding, civil or criminal, in or out of court, or before a grand jury, is included in the description of this offense. Now, it is contended, too, that until the jury be legally sworn the oath is not required by law, and is therefore not legally taken; in other words, the objection of appellant is that all of the proceedings must be regular up to the time the oath is taken in order for the oath to be legally taken. We cannot agree to such a proposition. The effect would be_ fatal to a great many prosecutions for perjury if the proposition was extended to its legitimate consequences. The correct rule seems to be that if the court has jurisdiction of the subject-matter of the suit, and the oath is required by law, irregularities in the proceedings will not prevent perjury. In State v. Hall, 7 Blackf. 25, a trial was hid before a court and jury of six men. Hall testified in the case, and his evidence was assigned as perjury. It was urged there was no perjury, because the case was tried before a jury of six men, and that a trial by a jury -of six men in such a case was wholly’ unauthorized by law, and that the proceedings were therefore illegal and void. To this the Supreme Court replied: ‘Where the false swearing was in the course of a judicial proceeding, we do not think it essential to the commission _ of the offense of perjury that all the proceedings on the trial should be strictly regular. It is essential, however, that the court have jurisdiction of the subject-matter, and power to administer an oath to the witness.’ See, also, State v. Lavalley, 9 Mo. 834; Anderson v. State, 20 Tex. App. 312. Let us suppose that the accused had been acquitted by an un-sworn jury, would the acquittal bar another prosecution for the same offense? We think so.”

This case was cited and approved in Manning v. State, 46 Tex. Cr. R. 329, 81 S. W. 957, 3 Ann. Cas. 867, and other cases to the same effect cited with approval. To the same effect is Schooler v. State, 52 Tex. Cr. R. 331, 106 S. W. 359, citing, among others, said Anderson and Cordway Cases, supra.

Again, in Kelley v. State, 51 Tex. Cr. R. 509, 103 S. W. 190, where Kelley was indicted for perjury committed in the trial of a local option case under a fatally defective information, this court, through Judge Henderson, said:

“The question thus presented is: Can perjury be predicated on an information that is defective? Unquestionably an acquittal on such information would be a bar to any subsequent prosecution on account of the same offense, and the authorities hold that where the court has jurisdiction and the indictment is irregular, but the case is tried, perjury can be committed on the trial. See Smith v. State, 31 Tex. Cr. R. 315 [20 S. W. 707], Anderson v. State, 24 Tex. App. 705 [7 S. W. 40], and Cordway v. State, 25 Tex. App. 405 [8 S. W. 670]. And it is held that, where an indictment may be held void, still perjury can oe committed on the trial under such indictment. See State v. Rowell, 72 Vt. 28 [47 Atl. 111], 82 Am. St., Rep. 918, and State v. Brown, 68 N. H. 200 [38 Atl. 731], We accordingly hold that, notwithstanding the defect in the information, the testimony of appellant on the trial of said case, being false, affords the predicate for a charge of perjury.”

There can be no question hut that the county court in said gaming case against appellant had jurisdiction of his person and of said offense, and such trial was not void, and that he could legally be convicted for perjury committed in the trial thereof.

We have carefully considered appellant’s brief herein and the authorities cited therein. We regard the eases cited as inapplicable. In the case of Emery v. State, 57 Tex. Cr. R. 423, 123 S. W. 133, 136 Am. St. Rep. 988, specially relied on, it was conclusively shown that the party on trial for a felony when the false testimony was given by appellant therein was absent, and that the court had no jurisdiction of his person. The reverse of that was true in this case. Herein he was not only present, but voluntarily gave such testimony if the jury had believed would have secured his acquittal, and it was for his false testimony therein he- was convicted of perjury. The court unquestionably had jurisdiction of his person. Hence the Emery Case is'inapplicable

5. The state objects to this court’s consideration of appellant’s bills 4 and 5 regarding certain questions asked two witnesses, because they are wholly insufficient. The state’s objections are well taken, and said bills cannot be considered under all the authorities. James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612; Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112; Best v. State, 164 S. W. 997. But, even if considered, they show no error.

The judgment will be affirmed.

DAVIDSON, J., dissents.

HARPER, J.

(concurring). Whether or not a prosecution can be maintained under the record in this case, correctly stated in Presiding Judge PRENDERGAST’S opinion, was a question of no little difficulty to the writer. If the jurisdiction of the county court had not attached, of course the proceedings would be void, and, if void, no prosecution for perjury would lie. If there had been neither a complaint nor information, to our minds there would be no question that appellants contention that the jurisdiction of the county court had not been invoked would be sound. But in this ease, on appeal from justice court, the complaint was quashed, and a new complaint filed. This new complaint was a necessary step to confer jurisdiction on the county court; but when filed, and appellant appeared and pleaded thereto, the county court had jurisdiction to make any and all necessary orders authorized by law. Had appellant moved to quash the complaint (before the filing of the information), the county court could have entertained jurisdiction and acted thereon, and we are of the opinion that by the steps taken jurisdiction of the case was conferred on the county court. The first step required by law to be taken in all cases in county court had been taken, and appellant appeared and answered thereto. It is true no legal conviction could be had until an information had been filed based on the complaint, because the law requires an information to be filed; but the fact that no information had been filed did not deprive the county court of the jurisdiction of the cause conferred by the filing of the complaint. In the recent case of Lee Etheridge, .out of which this prosecution for perjury grew, the cause was reversed and remanded because no information had been filed; but the county attorney can still file an information on the original complaint, and proceed with the prosecution of the case. If the jurisdiction of the county court had not been invoked by the filing of the complaint, this court would have reversed arid dismissed, because it is only where the trial court has jurisdiction of the matter that the cause is remanded to that court. The jurisdiction of the county court having been invoked by the filing of the complaint, and appellant appearing and answering thereto, the proceedings had thereafter were not void, but only erroneous, or voidable at the instance of appellant. If appellant had been acquitted on that trial, the county attorney could not legally have instituted another prosecution —a plea of former acquittal would have been good.

Not only do the authorities in this state, cited by Presiding Judge Prendergast, so hold, but in an exhaustive opinion rendered by the Supreme Court of the United States in the case of Ball v. United States, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300, it is so held. In that case the facts show three men were indicted for murder, and were tried. One, Millard F. Ball, was acquitted, J. C. Ball and Boutwell were found guilty. J. C. Ball and Boutwell appealed the case, and it was reversed and dismissed on account of defect in the indictment. They were all three reindicted and again tried; Millard F. Ball pleading former acquittal, which had been had on a defective indictment. The trial court overruled the plea, but the United States Supreme Court holds the plea good, and reverses the case as to Millard F. Ball, and the reasoning therein to us appears sound. It says:

“The Constitution of the United States, in the fifth amendment, declares: ‘Nor shall any person be subject to be twice put in jeopardy of life or limb.’ The prohibition is not against being twice punished, but against being twice put m jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial. An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case,, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense. Com. v. Peters, 12 Metc. [Blass.] 387; 2 Hawk. P. C. c. 35, § 3; 1 Bishop, Crim. Law, § 1028. But although the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error, and, until so avoided, cannot be collaterally impeached. If the judgment is upon a verdict of guilty, and unreversed, it stands good, and warrants the punishment of the defendant accordingly, and he could not be discharged by writ of habeas corpus. Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787. If the judgment is upon an acquittal, the defendant, indeed, will not seek to have it reversed; and the government cannot. United States v. Sanges, 144 U. S. 310 [12 Sup. Ct. 609] 36 L. Ed. 446.”

Appellant answered ready for trial arid voluntarily took trie stand and testified in the hope lie would secure an acquittal, and if lie had done so it would have been final. If lie had been convicted and did not appeal therefrom, it would have been final. He and he alone could attack trie judgment, whatever it might have been. He took his chances on securing an acquittal, and, if he had been acquitted, of course no appeal could have been had, and the judgment would have been final; and in that state of case, if some one other than appellant had been prosecuted for perjury on account of testimony given on that trial, would it be held that such person would be allowed to go behind the judgment, collaterally attack it, and show that it had .been erroneously obtained? We think not. If not, then such judgment would not .be void, but voidable only, and if only erroneous proceedings were had (but not void) an indictment for perjury will lie, and we agree to the affirmance of the case.

DAVTDSON, J.

This opinion is in direct conilict with the cases of Etheridge v. State, Nos. 3364 and 3365, recently decided, in which Judge HARPER concurred and Presiding Judge PRENDERGAST dissented. Concurring in that case, Judge HARPER cites cases showing want of jurisdiction in county court where no information had been filed. That the county court was without jurisdiction is not debatable under the Constitution, statutes, and decisions. I may write later and collate authorities, but it would be of no value if what has been written is to be ignored. We cannot now tell what a day may bring forth.
      <@=^3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    HOUSEMAN v. STATE.
    (No. 3410.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.)
    Prostitution <®=>3 — 1“Pandering” "— Indictment— Sujtjtciency — Statute.
    Under Pen. Code 1911, art. 3, forbidding punishment of any act or omission not made a penal offense by written law, and under Acts 32d Leg. c. 23, defining the offense of pandering as committed by “any person who shall by fraud or artifice or by duress of person, * * * or by abuse of * * * confidence, procure any female person to become an inmate of a house of ill fame, or to enter any place in which prostitution is * * * allowed.” an indictment charging that defendant by fraud, etc., and by abuse of confidence, etc., did * * * procure and induce * * * the said female to submit her body and person to men for the purpose of prostitution,” is insufficient to sustain a conviction, as failing to allege that the woman was induced to remain in or enter a house of prostitution.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 3; Dee. Dig. <§=>3.]
    Appeal from District Court, Shackelford County; Thomas L. Blanton, Judge.
    Andy Houseman was convicted of pandering, and he appeals.
    Reversed, and cause dismissed.
    W. P. Sebastian, of Breckenridge, and A. A. Clarke,, of Albany, for appellant. C. O. BlcDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

In this case the appellant was convicted of pandering; the indictment alleging, omitting the formal parts, that appellant, “by fraud -and artifice, and by duress of the person of Mrs. Andrew Houseman, a female, and by the abuse of his, the said Andy Houseman, position of confidence and authority with and over the said Mrs. Andrew Houseman, a female, procure and induce the said Mrs. Andrew Plouseman, the said female, to submit her body and person to men, other than the said Andy Houseman, for the purpose of prostitution.”

We have carefully read and studied chapter 23 of the Acts of the Thirty-Second Legislature (page 29, Session Acts), defining the offense of pandering, and we fail to find any section thereof to which the allegations of the above indictment conform. Presumably it was brought under the section which defines as an offender:

“Any person who shall by fraud or artifice, or by duress of person, * * * or by abuse of any position of confidence or authority, procure any female person to become or remain an inmate of a house of ill fame, or to enter any place in which prostitution is encouraged or allowed.”

Under the evidence introduced in behalf of the state, if accepted as true by the jury, an indictment can be framed under the above section under which a conviction would be sustained. But it will be noticed that the offense denounced is the procuring of a female person to become or remain in a house of ill fame, or enter any place in which prostitution is encouraged or allowed. There is no allegation that defendant caused Mrs. Houseman to become or remain an inmate of a house of ill fame, or enter a place where prostitution is encouraged or allowed. No matter how reprehensible the acts of a defendant may be, in this state it is provided by the Penal Code (article 3) that, in order that the system of penal law in force in this state may be complete within itself, and that no system of foreign laws may be appealed to, it is declared that no person shall be punished for any act or omission unless the same is made a penal offens.e by the written law of this state. The allegations contained in the above indictment do not charge a violation of any law of the state, and appellant’s motion in arrest of judgment should have been sustained, the judgment set aside, and the cause dismissed, because the indictment charged no offense.

Should it be desired to prosecute appellant further, it will be necessary to return a new indictment, and, as the evidence for the state would show that appellant procured men to go to his home and have sexual intercourse with his wife, mating a charge therefor, the indictment should allege that appellant, by fraud and artifice, and by duress of the person of Mrs. Andrew Houseman, and by the abuse of his position of confidence and authority as husband of Mrs. Andrew Houseman, he (the said defendant) did procure the said Mrs. Andrew Houseman, a female person, to become and remain an inmate of a house of ill fame, and he (the said defendant) did procure, by the means aforesaid, Mrs. Andrew Houseman, a female person, to enter a place in which prostitution was encouraged and allowed in this state. This is not laid down as a form of indictment, but merely as suggestive of the necessary allegations to be made in this character of case, for it is made evident by the state’s testimony that appellant’s house had become a house of ill fame and a place where prostitution was encouraged and allowed.

The judgment is reversed, and the cause dismissed.
      <@c^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DAVIDSON v. STATE.
    (No. 3401.)
    (Court of Criminal Appeals of Texas.
    Feb. 10, 1915.
    Rehearing Denied March 3, 1915.)
    1. Disorderly House <§=>12 — Prosecution— Information.
    In a prosecution under Pen. Code 1911, art. 500, declaring it a misdemeanor for one knowingly to permit the keeping of a disorderly house in a building owned by him, the information need not allege that defendant had not immediately proceeded to prevent the keeping of it, and that he had not given the county attorney notice that it was being kept on his premises, since such matters, not made a part of the definition of the offense, were matters of defense.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 14-19; Dec. Dig. <§=>12. J
    2. Criminal Law <g=s>406 — Evidence—Admissions by Accused.
    In a prosecution for permitting a disorderly house to be kept on defendant’s premises, evidence that defendant had admitted that he was the owner of the building was admissible, since title to the property was not being adjudicated.
    [Ed. Note. — For other cases,' see Criminal Law, Cent. Dig. §§ 785, 894-917, 920-927; Dec. Dig. <@=>406.]
    3. Criminal Law <§=>448 — Evidence—Opinion Evidence.
    In a prosecution for allowing a disorderly house to be kept on defendant’s premises, testimony of one who had watched the house as to what he heard from outside a room in the house held not objectionable as opinion evidence, but admissible as testimony of the facts within the witness’ knowledge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. <§=>448.]
    4. Disorderly House <§=>16 — Prosecution-Evidence.
    In a prosecution for permitting the keeping of a disorderly house on defendant’s premises, testimony that the general reputation of the keeper of the house, and of an inmate, for virtue and chastity, were bad, was admissible. .
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. §§ 21-25; Dec. Dig. <@=>16.]
    5. Disorderly House <§=>8 — Prosecution — Defenses.
    In a prosecution for permitting a disorderly house to be kept on defendant’s premises, tried without a jury, where the state’s evidence would authorize a conviction, and it appeared that defendant was informed of the character of the house some time in January or February and requested additional investigation, which was refused, the defendant’s efforts in the following May, after prosecution had been commenced, to have the premises vacated, were too late to save him from prosecution.
    [Ed. Note. — For other cases, see Disorderly House, Cent. Dig. § 8; Dee. Dig. <§=>8.]
    Appeal from Nacogdoches County Court; E. B. Lewis, Judge.
    John P. Davidson was convicted of knowingly permitting the keeping of a disorderly house in a building owned by him, and he appeals.
    Affirmed.
    Ingraham & Hodges, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was prosecuted under that portion of article 500 of the Penal Code which provides:

Any “person who shall knowingly permit the keeping of a disorderly house in a building owned by him shall be deemed guilty of a misdemeanor.”

Appellant moved to quash the information because it did not allege that:

He “had not immediately proceeded to prevent the keeping of ■ same, and did not allege that he had not given the county attorney notice that such house was being kept on his premises.”

These matters are matters of defense, and are no part of the definition of the offense in article 500; therefore it was not necessary to negative such facts in the complaint and information. Williams v. State, 37 Tex. Cr. R. 241, 39 S. W. 664; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1076.

Appellant objected to a state’s witness being permitted to testify that appellant had admitted to him he was the owner of the building in which it was alleged the disorderly house was being run; his contention being that it was not the way to prove title. The title to the property was not being adjudicated on this trial, and the court did not err in admitting the testimony. Frazier v. State, 47 Tex. Cr. R. 25, 81 S. W. 532.

J. L. Burrows was permitted to testify tliat one night, while watching the house in April—

“there was another woman stopping in one of the north rooms, and the night of the day that I saw her there I went up that night and got in the hall of Mrs. Noulin’s place and watched the room occupied by this woman; after being outside a while a man came to the door, knocked, and the woman came to the door and opened it. The man went in. And after they were in there awhile I heard noises as if people were undressing, and directly I heard noises as if people were going to bed. Shortly after hearing a noise as of people going to bed, I heard the bed squeaking and the springs of the bed rattling.”

Appellant objected to this testimony on the ground that it was “but an opinion.” It seems to us the witness was testifying to facts within his knowledge, upon which a jury would be authorized to find a rather decided presumption.

Witnesses were permitted to testify that the general reputation of Mrs. Noulin, the keeper of the house, and Mrs. Wilkerson, an inmate, for virtue and chastity, was bad. The court did not err in admitting this testimony. Sylvester v. State, 42 Tex. 496; Wimberly v. State, 53 Tex. Cr. R. 12, 108 S. W. 384.

This disposes of all the bills of exceptions in the record. The case was tried by the court without a jury, at appellant’s instance. The state’s evidence would authorize a conviction, and the trial court so adjudges. Appellant earnestly contends 'that, as soon as he was informed of the character of the house being run, he did all he could to have the woman vacate the premises. It appears that facts were developed before the grand jury in January or February that led the county attorney to believe a disorderly house was being run on appellant’s premises by Mrs. Noulin. He did not indict appellant, but wrote him a letter notifying him that a disorderly house was being run on his premises by Mrs. Noulin. Appellant went to see the county attorney, and told him he was going West on some business, and to make additional investigation. The county attorney told him he did not need to make additional investigation; he knew facts sufficient to show him the character of the house. Appellant went West, returning in March or April. The rental contract was by the month; yet on May 25th appellant had not moved Mrs. Noulin from the premises. The state’s evidence would authorize a finding that Mrs. Noulin continued to run a disorderly house during all that period. On May 25th the county attorney filed a complaint against appellant, and he was arrested. Two days later (May 27th) he gave Mrs. Noulin written notice to vacate the premises. Prosecution had already been commenced, and his efforts came too late. The county attorney had given him personal notice of the character of the house in February; had waited until May for appellant to move Mrs..Noulin. He had taken no legal steps to do so, and it was too late to begin to do so after prosecution had been begun.

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


text:
    JEFFERS v. STATE.
    (No. 3429.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1915.)
    Assault and Battery <@=>48 — Facts Constituting.
    After a child six years old threw a few links of chain at S., who had been fooling with the child, S. threw it back so hard as to leave an impression of the links on the boy’s back, upon which accused, father of the child, asked S. why he did that and started toward him, whereupon S. picked up a pole and struck accused so hard as to leave a bruise two inches wide by six inches long, and then accused picked up a dumb-bell and struck S. on the head. 1-Ield, that accused was not guilty of an assault.
    fEd. Note. — For other cases, see Assault and Battery, Cent. Dig. § 68; Dec. Dig. <§=>4S.]
    Appeal from Coke County Court; G. S. Arnold, Judge.
    S. L. Jeffers was convicted of assault, and he appeals.
    Reversed, and cause remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was adjudged guilty of an assault, and his punishment assessed at a fine of $20.

The only serious question in the case is: Does the evidence authorize a conviction? The state introduced but one witness, Robert Smith, and he testified he was at the home of defendant with others; that they were on the front porch, and were fooling with the six year old son of appellant— throwing his ball away and hiding his hat. Tie says the little boy got mad and commenced to throw rocks and chunks at them, and finally threw a few links of a chain. He (Smith) says he caught the chain and threw it at the boy, striking him. The boy cried, when defendant came out of the house and asked his little boy what was the matter, when the boy told his father that he (Smith) had struck him. Appellant asked Smith why he did so, when he replied he could not make him behave any other way. Smith says appellant started toward him, when he picked up a piece of tent pole and struck at appellant; that appellant dodged down and picked up a dumb-bell and threw it at him, striking him on the head; that he struck appellant with the tent pole before appellant picked up or threw the bell. He says he thought appellant was going to attack him is the reason why he got the pole and struck him. This.is all the testimony offered in behalf of the state.

The evidence shows that, when Smith struck the child with the chain, it was with ■ such force as to leave the print of three links on the hack; the flesh being' bruised in the shape of the links. When he struck appellant with the pole, he made a bruised place two inches wide and five or six inches long.

All the state’s case is that appellant after asking Smith why he struck his child, and receiving the answer he did, started towards Smith, and Smith says he thought he was going to attack him. He did not wait until an attack was made, or appellant had gotten in position to make one, when he struck with the tent pole. We do not think the facts authorize the conviction of appellant— the wrong man was fined.

The judgment is reversed, and the cause remanded.
      ig^nFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes