author: MORROW, J. PRENDERGAST, J. MORROW, J.

text:
    GALAVIZ v. STATE.
    (No. 4569.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.
    On Motion for Rehearing, Nov. 28, 1917. Dissenting Opinion Dec. 6, 1917.)
    1. Rape <®aw51(3) — Penetration—'Requisites.
    Penetration is an element of rape and must be proved beyond a reasonable doubt, though it need not be of any particular depth.
    2. Rape <®=o52(2) — Penetration—Evidence— Sufficiency.
    Evidence in prosecution for rape held insufficient to show penetration beyond a reasonable doubt.
    Prendergast, J., dissenting.
    On Motion for Rehearing.
    3. Criminal Law <®^>1100 — Appeal—Statement op Pacts — Sufficiency.
    Under Rev. St. 1911, art. 2068, authorizing parties to agree to a written statement of facts, such a statement, when duly made and approved by the trial judge and filed in time, is sufficient.
    Appeal from District Court, Bee County; P. G. Chambliss, Judge.
    Marcelino Galaviz was convicted of rape, and appeals. Reversed and remanded. On motion for rehearing.
    Motion overruled.
    R. L. Cox and W. G. Gayle, both of Bee-ville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for rape and punishment fixed at 5 years’ confinement in the penitentiary.

The state’s theory is that the offense was committed against a child 9 years of age. Appellant had been living some years with the mother of the child, first in Mexico and later in Bee county. There had been no marriage, but they had lived together as husband and wife. This woman testified that she had thought of quitting appellant and said:

“I had made up my mind of ridding myself of him. I had thought of going with my home people, living at Granger, Texas. I have never written to my people from here. I never thought of doing anything that would put my husband in trouble in order to get shed of him.”

Appellant at the time of the alleged offense was clearing land for Mr. Young. He, with his family and a man by the name of Miguel Verdines, were occupying a house on Mr. Young’s premises, and had been doing so for a short time. The little girl, who could not speak English, testified through an interpreter. There was evidence that a shallow hole had been dug in the ground near where appellant was grubbing land, which appeared to have been recently made, though by whom is not shown. The little girl claimed that she was at the place, or near the place where appellant was at work, and that he threatened to kill her and put her in the hole if she did not do what he wanted. We quote from her as follows:

“He first put his finger in me and pulled down his pants, but he didn’t put anything in me, but he didn’t put his paloma in me. No, sir, he didn’t put his paloma in me, only outside.”

At this stage the district attorney asked some leading questions with permission of the court, endeavoring to show by witness that there was penetration. Responding to the leading question, she said:

“No, he only took my pantlets off.. Yes, he brought me up to him, but he put his paloma (Mexican word for penis) on the outside and not in.” Question: “Didn’t he put it in you and hurt you.” Witness: “No.”

The district attorney suggested that some one had been tampering with the witness, and had the jury withdrawn in order that he might examine the witness in the presence of the court, in the absence of the jury. Whereupon she was asked who had talked to her and told her to say that appellant did not put his penis in her. Replying to this question, she said: “No, sir; only outside. Yes, sir; only on the outside.” The district attorney then asked why she had told him in the grand jury room that he had put his paloma in her. She replied, “I told you also that he just put that on the outside, and not inside at all.” He put his paloma against her little thing. Did put it in her, only outside; up against her. The district attorney, with the permission of the court, over the objections of appellant, took the witness and the interpreter outside, and out of the presence and hearing of the defendant and his counsel. She returned and testified:

“Yes, sir; he took me and pulled down my pantlets. Yes, sir; his paloma entered just a little of the lips of her privates. He told me that' if I said it that he would kill me and bury me in that hole. Anyway, I was going to tell mama. Yes,- sir; I told her, told her right of way, just as soon as my mama come there. She come out there to bring the breakfast.”

On cross-examination she said:

“He put his finger in me. I called to my mother, and my mother didn’t hear me. He pulled down his pants,- and he put his legs over on top of mine. He put his hand on my mouth so I couldn’t call, then he brought me up against him and opened my legs and put his finger in there- and put his paloma a little bit in there. I saw his paloma. He was inside, between my legs. He never did put it in there, only on the outside.”

She further said:

“No ; he did not hurt me. When he put his finger in there it hurt me. No, he didn’t put his paloma in there, only on the outside. No; it didn’t hurt me; yes, it did hurt me.”

On redirect examination this question was asked:

“Now, it was when he just put a little of his penis in there that it hurt her? A. Yes.”

On recross-examination she said, in answer to the following question:

“Didn’t you say a while ago that his paloma didn’t enter at all; that it was on the outside of you?” A. “Yes; that is the truth. I believe that he didn’t put it in, only outside.”

The child’s mother accused appellant of the offense at the time she took his breakfast to him. Officers were called for and arrested appellant, who made no effort to escape. One physician examined the little girl on the same day, and said that the hymen was lacerated and torn, but no marks of violence, no bruises. The hymen had recently been torn and lacerated. We quote from him as follows:

“From the examination I made, and from my knowledge as a physician, I would not attempt to say that this little girl had been penetrated. The hymen being broken was no evidence of penetration. The laceration denotes that there had been an entrance to this part that was torn. Something had been inserted. It could have been made with the finger, a piece of metal, or a stick.”

He claimed that the laceration of the hymen was no evidence of rape. He saw no blood. That there was a serio-sanguineous discharge on her drawers, but saw no evidence of violence on her person other than already stated. There was very little signs; no blood; nothing but the serio-sanguineous discharge. Another doctor, who later examined the child, said that he found the hymen practically normal. No laceration or anything; that the hymen was intact, showing no evidence of laceration; that it was a peculiar type, which he described as foEows:

“This little girl has the fimbrame hymen, that is, one with notches, and after a certain time it would be possible, in many cases, unless a thorough examination is made, to mistake these notches for artificial abrasions. In a fimbrame or notchy hymen, quite often the mistake has been made of thinking that this was a ravisher’s abrasion, instead of a natural abrasion. A fim-brame or notchy hymen may be taken for a lacerated hymen, and great care should be taken in the examination of a hymen for laceration.”

He stated that the hymen could be lacerated from many causes. He said that the laceration of the hymen would cause hemorrhage. There was an absence of evidence of hemorrhage. Appellant testified and denied the offense. He admitted that the little girl was out where he was at work, and that he had given her a switching on account of some disobedience. The other occupant of the house was working nearby, but knew nothing of the occurrence.

Penetration is an element of rape, and must be proved beyond a reasonable doubt, though such penetration need not be of any particular depth. Johnson v. State, 27 Tex. App. 163, 11 S. W. 106; Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077; P. C. art. 1067; Word v. State, 12 Tex. App. 183; Wilson v. State, 17 Tex. App. 537; Duckworth v. State, 42 Tex. Cr. R. 75, 57 S. W. 665. Prom Blair v. State, 56 S. W. 622, we quote as follows:

“Appellant was convicted for rape upon a female under the age of 15 years, and Ms punishment assessed at confinement in the state penitentiary for a term of 5 years. In the view we take of this case, we only deem it necessary to consider one question. The testimony of the prosecutrix in the first instance, is in favor of the theory of the state. Then immediately she denies in toto the truthfulness of this statement, and states that appellant did not have carnal intercourse with her at any time. This leaves the record before us in such condition that we cannot permit the verdict to stand without other proof on the question of penetration, which is an absolutely essential requisite to all prosecutions for rape. See article 637, Code Cr. Proc.; Davis v. State, 43 Tex. 189.”

See, also, Draper v. State, 57 S. W. 656.

Because the evidence is not sufficient to support the verdict, the judgment is reversed, and the cause remanded.

The bills of exception cannot be considered because filed too late. The evidence we regard as insufficient to prove penetration beyond a reasonable doubt. As a consequence, the judgment of the lower court is reversed, and the cause remanded.

PREND ERG AST, J., dissents.

PRENDERGAST, J.

(dissenting)!

The opinion of Judge MORROW herein does not give all of the pertinent testimony going to show the rape by appellant of the little girl. It was clearly sufficient to show penetration by appellant of the lips of her private parts. This only was essential to he proven. It was not essential to prove that his male organ entered the vagina of the little girl. This, was the effect of her testimony, and the jury unquestionably from the evidence so found.. The fact, as testified to by her, that appellant did not put his male organ “in me, only outside,” was no contradiction of her testimony, where she swore repeatedly that his organ did enter the lips of her privates. But even if she had contradicted herself on that point, that was a question exclusively for the jury. The statute is clear and plain that “the jury are the exclusive judges of the facts in every criminal cause” (article 734, O. O. P.) and' “the jury, in all cases, are the exclusive judges of the facts proved, and of the weight to be given to the testimony” (article 786, O. O. P.).

In no case are the judges of this court authorized to pass on the credibility of the witnesses. By the statute giving the jury this exclusive right the judges of this court are excluded from exercising any such right.

The question of where a raped girl, as in this case, contradicted herself, and what effect that would have in law as to the sufficiency of her testimony when believed by the jury was discussed in Kearse v. State, 68 Tex. Cr. R. 635, 151 S. W. 827, and in a large numDer of cases both before and since then. I quote from the said Kearse Case, which was the unanimous opinion of this court, as-follows:

“Appellant contends that the evidence is insufficient to sustain the verdict. The contention is based largely on the fact that the girl alleged to have been raped by appellant contradicted herself in her testimony, and was contradicted by the testimony of other witnesses and by some circumstances. There is hardly any contested-case that comes to this court but what there are contradictions in the testimony, and frequently a principal witness may contradict himself in material matters. In such cases, when it is con-' tended that the evidence is insufficient to sustain the verdict, this court cannot legally take the place of the jury and determine whether or not it will believe any witness, or witnesses, and from all of the testimony, as put down on paper and sent to this court, it would have found a different verdict from that of the jury, and, if so, reverse the case on that account. The only question this court can determine is whether there is sufficient evidence, if believed by the jury, to sustain the conviction. * * * Our law expressly provides that the jury in all cases are the exclusive judges of the facts proved and of the weight to be given to the testimony. This court, therefore, cannot take that question from the jury without usurping authority that was never given or intended to be given to it. The jury, in a felony case, is made up of 12 fair, disinterested, impartial, unprejudiced, unbiased, and competent jurors, selected from different portions of the county, each one of whom hears all the witnesses, looks them in the face when testifying, observes their manner and the method of their examination by the respective attorneys, then hears the argument of the attorneys for each side, one side undertaking to break down the- testimony of the witness and calling attention to every contradiction in the. testimony of such witness and the contradiction by others of him, the other explaining such matters and seeking to sustain such witness, then hear and take with them in their retirement the charge of the court; then the 12 men discuss and consider in private between themselves all such matters, and, after weighing it all and all the arguments against it and in support of it, come to the conclusion that the testimony of a certain witness, or witnesses, although contradicted and although there are contradictions in the testimony of such witness, is true, and they believe it. The jury is made up of men of different ages, from young to comparatively old men, and they pursue different occupations and businesses. With all these surroundings they are much more competent to arrive at the truth than are the judges of this court, who must look solely to the testimony as written down on paper. It cannot portray the manner, the looks, and the deportment of the witness, nor the manner of his examination and cross-examination by the attorneys. Besides this, the presiding judge hears and sees and observes all that thei jury does in the trial of the case, and he then sustains the verdict of the jury. Therefore, when the evidence, taken in its favorable light, sustains the verdict, this court cannot legally set it aside.”

The judgment in this case should have been affirmed.

On Motion for Rehearing.

MORROW, J.

The state on motion seeks to set aside a reversal on the ground that no duplicate copy of the statement of facts was filed in the court below.

A statement of facts, with an agreement to its correctness signed by attorneys for the state and appellant, and bearing the approval and signature of the district judge, was filed in due time in the court below and in this court. It is in full compliance with article 2008 (R. S.) authorizing parties to agree to a written statement of facts which, when approved by tbe trial judge and filed in tbe requisite time, becomes a statement of facts. The statute relating to the preparation of statements of facts by tbe court stenographer in express terms declares that it is not to annul the privilege accorded by article 2068 to prepare an agreed statement of facts, as above indicated by statute (article 2072), Railway v. Prazak (Civ. App.) 170 S. W. 859; McLane v. Haydon (Civ. App.) 178 S. W. 1197; Tyler v. Sowders (Civ. App.) 172 S. W. 205.

The motion for rehearing is overruled;
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J. .PRENDERGAST, J.

license: Public Domain

text:
    EPPISON v. STATE.
    (No. 4523.)
    (Court of Criminal Appeals of Texas.
    Nov. 14, 1917.
    Dissenting Opinion Dec. 5, 1917.)
    1. Witnesses @=>372(2) — Motive — Cross-Examination.
    In a prosecution of a husband under Vernon’s Ann. Pen. Code 1916, art. 506a, for procuring bis wife to enter a house of prostitution, where the incriminating testimony came from the wife and J., a man who had been paying her considerable attention, it was proper on cross-examination of the wife, for the purpose of throwing light upon the motives of the wife and J., to show that the wife had been married, had lived with one W., a crook, to whom she had not been married, and that after J. took her to a certain hotel she left with a barber.
    2. Witnesses @=>37Q— Redirect Examination — Limitations.
    While the state had a right to have the wife make explanation of circumstances developed on cross-examination tending to weaken her testimony, it went too far where it made proof of occurrences in the wife’s early life, such as mistreatment by her parents, her first husband, etc.
    3. Witnesses @=>398(1) — Impeachment—Corroboration.
    In a prosecution of a husband under Vernon’s Ann. Pen. Code 1916, art. 506a, for procuring his wife to enter a house of prostitution, where the wife had testified that her relations with another man with whom she had lived were brought about by brute force, testimony showing that she had lived with such man for months without complaint, and that she had an opportunity to disclose the outrage and free herself from the restraint, was admissible, not only to impeach the wife, but for throwing light upon her motives and corroborate defendant in his denial of her statements.
    4. Criminal Law @=>956(1) — New Trial — Matters Considered.
    Though there was lack of diligence shown in the application for a continuance which justified the trial court in overruling it, it, with the affidavit supporting it, were proper factors to be considered on. the motion for a new trial.
    5. Criminal Law @=>936(3) — New Trial — Absence oe Witness.
    In a prosecution of a husband under Vernon’s Ann. Pen. Code 1916, art. 506a, ioi* procuring his wife to enter a house of prostitution, in view of the fact that the state had proved by the wife that her relations with a former man with whom she had lived were brought about by brute force, and the further fact that she was the main state witness, had many episodes with men, and occupied a questionable relation with the chief corroborating state witness, and had been permitted to relate a touching story relating to a series of wrongs committed against her by others than defendant husband in his absence and without Ms participation or knowledge, a new trial should have been granted where defendant had been denied a continuance to procure testimony of an absent witness which would have shown that the wife had lived with such former man for months without complaint, and had had opportunity to disclose the outrage and free herself from restraint; _ such testimony being admissible not only for impeachment of the wife, but for throwing light upon her motives and corroborate defendant in his denial of her statements.
    6. Ckiminal Law <§=5770(2) — Refusal to Pbesent Theokt of Defense — Reveksible Ebbor.
    The court’s main charge was to the effect that, if defendant by abuse of his position as husband procured his wife to enter a place in which prostitution was encouraged or allowed, he would be guilty of pandering. Defendant requested a charg'e to the effect that the state was bound to show beyond a reasonable doubt that the place where the wife was taken was a place where prostitution was allowed and encouraged. Meld, that refusal of the requested charge was error, the character of the house to which defendant took his wife being sharply in issue, and defendant having the right to have submitted the theory presented by his evidence, which was that he did not take his wife to a place where prostitution was permitted.
    Prendergast, J., dissenting.
    Appeal from District Court, Bowie County; H. E. O’Neal, Judge.'
    J. A. Eppison was convicted of pandering, and appeals.
    Reversed and remanded.
    D. Ward Stuart, E. E. Weaver, and E. Newt Spivey, all of Texarkana, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This appeal is from a judgment condemning appellant to confinement in the penitentiary for ten years for the crime of pandering.

The state’s case is supported in the main by a witness by the name of Jones and the wife of appellant.

On behalf of the state Mrs. Eppison testified that after a very short acquaintance she and appellant were married in June, 1916, and after living together for 17 days a separation took place, and she left Texarkana, g(^ing to Paris, working in a confectionery store for her uncle. She claimed to have left her husband because he wanted her to lead an immoral life. After leaving him he wrote her letters seeking a reconciliation, and in October went to see her on the same mission.’ Encouraged by her mother to return to him, she went to Texarkana for that purpose, having received money sent her by her husband to pay her expenses. She reached Texarkana in the evening, and was taken by her husband to the Mecca Rooms. Soon thereafter Charlie Jones was brought to see her by appellant, who insisted that she submit to Jones’ embraces, and complained because she refused to do so, and finally upon his urging she went to Jones’ room, but found him asleep. The house was kept by a woman named Mrs. Isonhauser. One other woman lived there, and this woman, Mrs. Eppison claimed, was a prostitute. After remaining at the Mecca Rooms for several, days, she and her husband went to another rooming house called the Como Rooms which she claimed was a. place of ill fame, and at which her husband insisted upon her having intercourse with meñ. Remaining at the Como House about an hour, she left in company with Jones, went to a show, and after thé show to the Savoy Hotel, which was across the Texas line in Arkansas. She stayed at the Savoy Hotel one night at Jones’ expense, but without any improper relations with him; afterward fell into the hands of Mr. Henry, a white slave officer. This substantially is her evidence.

Charlie Jones, a married man 42 years of age, claimed that he went to the Mecca Rooms at appellant’s request, appellant stating that anything could be had, whether a crap game or a good-looking woman, and that his wife was there, and Jones .could stay with her; that he saw Mrs. Eppison at the Mecca Rooms, and asked her if she wanted to stay with him; told her she did not have to; that she declined, and said she did not want to lead that kind of life, and that he told her she did not have to do so, Eppison being absent at the time of this conversation; that a day or two later she met him at a restaurant and told him that appellant was going to take her to the Como rooming house, where she did not want to go, and asked his advice. Later he found her at the Como, and took her to the Savoy Hotel, where he rented a room; took her to the picture show that night, gave her a small sum of money, and told her he would send her to his wife at Kansas City; that she subsequently, after separating from her husband, went back to the Mecca Rooms, and remained about two weeks, where he (Jones) paid for a room pa.rt of the time; that she left with a man named Arnold, and Mr. Henry, white slave officer, investigated the' matter. He claimed that the Mecca Rooms had a bad reputation, and that the woman Iiagerman who stayed there was a prostitute, and that the Como Rooms was also a house of prostitution. After returning to the Mecca Rooms she was visited several times by the white slave officer, and he made no protest against her remaining there. He said he had heard nothing of its ill fame.

On cross-examination Mrs. Eppison testified that she had married a man named Ector when about 14 years of age, and had lived for about a year with a man named Wilson under the guise of husband and wife; that during this time she lived with Wilson at the house of a man named Harold Arnold in Titus county, also in Texarkana and Little Rock; that Wilson was a thief and a crook; that after Jones took her to the Savoy Hotel she left there with a barber by the name of Arnold.

On redirect examination the state proved by Mrs. Eppison that when she was a small child her father and mother were mean to her, beat and abused her, made life unpleasant for hex-, forced her to marry a half Indian when she was 14 years of age; that her first husband was also cruel to her, beat and abused her, and permitted other people to do so; that after living with him nine months she went off With Wilson. She was permitted to go into details of Wilson’s-treatment of her, which in substance shows that he forced her to have intercourse with him, and that during the year she lived with him as man and wife she did so through fear of Wilson, who whipped, her, beat her, placed a gun against her head and breast, and threatened to shoot her; that she lived with him several months in Titus county, Tex., about three months in Texarkana, and a short time in Little Rock, where he was arrested and sent to the penitentiary, she testifying as a witness against him.

There was a sharp issue of fact with reference to the reputation of the Mecca rooming house, it appearing that Mrs. Isonhauser had recently taken charge of it, she testifying that there was nothing wrong took place there during her occupancy. Most of the testimony with reference to its reputation related to a time antedating the time of Mrs. Isonhauser’s tenancy. After she took charge none of the original roomers remained. Jones’ testimony with reference to his conversation with appellant was denied by appellant and contradicted by another witness. This witness also claimed that Jones solicited Mrs. Eppison to accompany him to another room, and that Jones had gone to the house on reguest of the Hagerman woman. Appellant claimed that he had been employed to solicit patronage for Mrs. Ison-hauser’s rooming house, and that he had no knowledge of anything wrong there, and denied his wife’s statements of his improper conduct toward her, claiming that he did not know the cause of her leaving, that he had written her mother and gone to see her, and that she came back to him at his solicitation, he sending her the money. A letter from Jones to Mrs. Eppison, written after she left her husband, and while she was at the Mecca place, was identified and read in evidence, which is as follows:

“Dec. 14, 16.
“Dear Daughter: I am so surprised at the choice that you have taken, and so is Mr. Henry, but you know your mind best. After what I saw last night I went home thinking about you, but I will never say anything about what I saw to any one. Believe me, my best wishes g'o to you. I never will get in that much trouble for any one else again. I have lost my faith in any one. You know and Mr. Henry knows my intentions were the best. • As far as this man Pollard ■ is concerned, I will meet him in Kansas City, Missouri, and hell will break loose. Please call me up before 9 o’clock and I will say good-bye.
Prom one that thinks more of you than any one else does. Cas. A. Jones.
“The old lady wants you for a drawing card for her house, and you know it. Now if you find yourself slipping let me know. Please answer if you think anything of me, hut destroy as soon as you see this lettei-. C.”

Appellant objected to the details of ber past life, and they were admitted on the ground, as explained to the court, that in the cross-examination appellant had gone minutely into her life and refused to permit her to make an explanation.

Appellant’s cross-examination of his wife appears to have been legitimate. There was ground for question of her relations with Jones and his attentions towards her and appellant. The incriminating evidence against appellant came from Jones and Mrs. Eppison. Their motives were proper subject of inquiry, and the facts throwing light upon them were relevant. O’Neal v. State, 57 Tex. Cr. R. 249, 122 S. W. 386; Wigmore on Evidence, §§ 948 and 949; Wharton’s Crim. Evidence, § 488.

The state’s right to have Mrs. Eppison make legitimate explanation of circumstances developed on cross-examination tending to weaken her evidence cannot be questioned. Branch’s Ann. P. C. p. 62; Wigmore on Evidence, § 952. In the exercise of this privilege the. state should not have gone into details so minute or transactions so remote. Proof was made of occurrences in the early life of the witness, of mistreatment by her father and mother, cruelty of her first husband, her betrayal and outrage by Wilson, and his subsequent restraint and abuse of her.

Appellant sought to postpone or continue the case to procure the testimony of Harold Arnold, who testified that during 1914 Mrs. Eppison lived at his house with Elmer Wilson, claiming to be his wife and going under the name of Cleo Wilson; that she did housework for witness, and that Wilson was a laborer in his field; that she quit his employ after some months and resided with Wilson near the witness’ house; that she and Wilson were very affectionate toward each other; that she was foolish over him; that she would follow him to the field almost every day; and that at no time did he notice any indication or evidence of duress on the part of Wilson. A bill of exceptions was reserved to the court’s action in overruling this application for a continuance in the absence of this testimony, and attached to the motion for a new trial is the uncontroverted affidavit of Arnold to its truth.

We think, in view of the testimony drawn out on the redirect examination of Mrs. Eppison and referred to above, that the testimony of Arnold was admissible not only to impeach Mrs. Eppison, but to throw light upon her motives and corroborate the appellant in his denial of her statements. Bader v. State, 57 Tex. Cr. R. 293, 122 S. W. 555; Parker v. State, 62 Tex. Cr. R. 64, 136 S. W. 453; Wigmore on Evidence, § 1135.

Though there was lack of diligence shown in application for a continuance which justified the trial court in overruling it, it, with the affidavit supporting it, were proper factors to he considered on the motion for a new trial (Tull v. State, 55 S. W. 61; Stewart v. State, 52 Tex. Cr. R. 100, 105 S. W. 809; Cockrell v. State, 60 Tex. Cr. R. 124, 131 S. W. 221; Collins v. State, 66 Tex. Cr. R. 602, 148 S. W. 1069; Rushing v. State, 62 Tex. Cr. R. 309, 137 S. W. 372), and by this court in reviewing the action of the trial court in overruling such motion (Rumbo v. State, 28 Tex. App. 30, 11 S. W. 680; Clark v. State, 30 Tex. App. 377, 17 S. W. 933; Walker v. State, 32 Tex. Cr. R. 175, 22.S. W. 685; Logan v. State, 39 Tex. Cr. R. 573, 47 S. W. 645; Hardin v. State, 40 Tex. Cr. R. 215, 49 S. W. 607; Lopez v. State, 52 Tex. Cr. R. 226, 106 S. W. 336; Presley v. State, 60 Tex. Cr. R. 102, 131 S. W. 332; Branch’s Ann. P. C. § 338).

The state proved by Mrs. Eppison that her relations with Wilson were brought about by brute force and continued by violence and threats. By the testimony of the absent witness it was shown that she lived with Wilson for months without complaint, and that she had opportunity to disclose the outrage and free herself from restraint.

On hearing the motion for new trial the court had before it the knowledge of Arnold’s testimony; the fact that the main witness against appellant was a young woman who had had many episodes with men, and at the time occupied questionable relations with the chief corroborating witness, Jones; and the fact that a serious verdict against appellant had been rendered in a case where this young woman had been permitted to recite a touching story, relating a series of wrongs committed against her by others than appellant, in his absence and without his participation or knowledge.

In the light of this record we think a new trial should have been granted.

The court in its main charge submitted the case to the jury in the following language ;

“Now, if you believe from the evidence beyond a reasonable doubt that the defendant, in the county of Bowie and state'of Texas, on or about the 2d day of December, 1916, as alleged, did then and there unlawfully, by abuse of his position of confidence and authority, to wit, as a husband, procure a female person, to wit, Bertie Eppison, to enter a place there situate in which said place prostitution was then and there encouraged or allowed, you will find him guilty of pandering as charged in the indictment and assess his punishment at confinement in the penitentiary for any term of years not less than five.”

Appellant requested the following charge:

“You are charged that the state is bound to show beyond a reasonable doubt that the place where Bertie Eppison was taken was a place where prostitution was allowed and encouraged, and if you have a reasonable doubt as to this house being a place where prostitution was allowed or encouraged, then you will find the defendant not guilty and so say by your verdict.”

The refusal of this charge, we think, was error. The submission of the question was put by the state’s standpoint in an affirmative way. A house of prostitution was defined, but the charge fails to submit the issue from the standpoint of appellant. One of his defenses was that he did not take his wife to a place where prostitution was encouraged and allowed, and the character of the house to which he took her was sharply in issue. In response to the well-known rule that it is incumbent upon the court, upon request, to submit to the jury appellant’s theory raised by the evidence, the requested charge should have been given.

Eor the errors in denying the motion for a new trial and refusing special charge mentioned, the judgment of the lower court should be reversed, and the cause remanded. The other assignments do not present error.

.PRENDERGAST, J.

(dissenting).

The opinion of the majority does not state or discuss some material questions raised. I think this should have been done, and shall proceed to do so. These questions are passed up by the majority opinion by merely saying:

“The other assignments do not present error.”

I have studied the evidence carefully. It is much stronger against appellant than stated in the majority opinion, and some cogent evidence is omitted entirely. But it is useless now to give this testimony.

The offense is prescribed by section 1 of Act March 1, 1911, p. 29 (Yernon’s Statutes, art. 506a), as follows:

“Any person who shall procure or attempt to procure or be concerned in procuring, wife or without her consent, a female inmate for a house of prostitution, or who, by promises,threats, violence or by any device or schemes, shall cause, induce, persuade or encourage a female person to become an inmate of a house of prostitution, or shall nrocure a place as inmate in a house of prostitution for a female person, or any person who shall, by promises, threats, violence Or by any device or scheme, cause, induce, persuade or encourage an inmate of a house of prostitution to remain therein as such inmate, or any person who shall, by fraud or artifice, or by duress of person or goods, 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 in this state, or to come into this state or leave this state for the purpose of prostitution, or who shall procure any female person to become an inmate of a house of ill fame within this state, or to come into this state or to leave this state for the purpose of prostitution, or who shall give or agree to receive or give any money or thing of value for procuring, or attempting to procure, any female person to become an inmate of a house of ill fame within this state, or to come into this state or leave this state for the purpose of prostitution, shall be guilty of pandering, and, upon conviction for an offense under this act, shall be deemed guilty of a felony and shall be punished by confinement in the penitentiary for any term of years, not less than five.”

The indictment is in several different counts, neither of which is either directly or indirectly based on that part of the statute pertaining to bringing a female into or leaving the state for the purpose of prostitution. The court in his charge expressly excluded the submission of all other counts except the first, which was to the effect that appellant on or about December 2, 1916, in Bowie county, Tex., did then and there unlawfully by abuse of a position of confidence and authority, to wit, as a husband, pro-dure a female person, to wit, Bertie Epxiison, to enter a place there situate in which said place prostitution was then and there encouraged and allowed.

Appellant contends that said statute is in conflict with the Mann White Slave Act of Congress of June 25, 1910 (36 Stat. 825, c. 395 [U. S. Comp. St. 1916, §§ 8812-8819]), because of the provisions in our statute prohibiting any person from procuring a female to go into another or leave this state for the purpose of prostitution, and cites Hoke v. United States, 227 U. S. 308, 33 Sup. Ct. 281, 57 L. Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905, and State v. Harper, 48 Mont. 456, 138 Pac. 495, 51 L. R. A. (N. S.) 157, Ann. Cas. 1915D, 1017.

This court has already expressly held against appellant on this point in Hewitt v. State, 74 Tex. Cr. R. 46, 167 S. W. 40. In that case the same cases and others were relied upon therein to establish the invalidity of our statute, but this court showed the distinction between our statute and the Mann White Slave Act and the Montana statute, and distinguished the Harper and Hoke Cases, supra, showing that they were inapplicable to our statute. It is needless to discuss the question again.

Moreover, it is well established in both this court and the civil courts of this state, as well as the courts of other states, that:

“When a penal law prohibits two or more acts, * * * one valid and constitutional, and the other not, it may and will be held valid and constitutional, and can and will be enforced, as to that portion which is valid and constitutional. Holley v. State, 14 Tex. App. 506.” Ex parte Kennedy, 23 Tex. App. 79, 3 S. W. 114.

The rule is also clearly stated by our Supreme Court in Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485, as follows:

“The rule for the construction of statutes in partial conflict with the Constitution is that, if the portion repugnant to the fundamental law can be stricken out, and that which remains is complete in itself and ‘capable of being executed in accordance with the legislative intent, it must be sustained.’ Ex parte Towles, 48 Tex. 421, quoting Cool, on Const. Lim. 178, If the unconstitutional provision be but incidental to the main purpose and be not essential to give effect to the statute, such part may be rejected, leaving the remainder to stand.”

The Supreme Court again clearly states the rule in Railway Co. v. Mahaffey, 98 Tex. 392, 84 S. W. 646, as follows:

It is settled law, and noy a familiar rule, that where, a statute contains an unconstitutional provision and another which, if standing by itself, would be valid, the latter will be given effect, provided they are so clearly independent of each other that the court can say that the Legislature would have passed it, if the former had been omitted.”

This principle is also universally laid down as sound by the text-book writers as follows:

“A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the Legislature, and being in the form of law, may contain other useful and salutary provisions not obnoxious to any just constitutional exception. It .would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” Cooley’s Const. Lim. 215; 1 Lewis’ Suth. Stat. Const, p. 583.

The rule is further correctly stated in 36 Cyc. 976, as follows:

“It is elementary that the same statute may be in part constitutional and in part unconstitutional, and if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected” — citing decisions from 34 states, the District of Columbia, and the United States Court’s decisions.

Another rule is as correctly stated in 8 Cyc. 787, as follows:

“It is a firmly established principle of law that no one can be allowed to attack a statute as unconstitutional who has no interest in it, and is not affected by its provisions” — citing the decisions of many courts and of the United States Supreme Court.

Many other authorities on this point could be cited.

There can be no sort of doubt but that the Legislature did not make, nor intend to make, the other unlawful acts prescribing this offense depend in any measure upon those which might be offenses by a person bringing the female from another to this state, nor taking her out of this state into another, and that the other acts prescribing the offense undoubtedly would have been passed without reference to those depending on taking the female from this into another or from bringing her from another into this state.

The principles above announced are equally applicable where the law of any state undertakes to deal with, interstate commerce as well as intrastate • matters as held by many courts, and expressly by our Supreme Court. Allen v. Railroad Co., 100 Tex. 527, 101 S. W. 792 ; 36 Cyc. 983, and cases cited in note 58.

There can be no question as to the application of these principles to our pandering statute and to appellant herein. So that in no contingency can he be sustained in his contention as to the invalidity of our pandering statute if in any contingency any part of it could be held invalid or unconstitutional.

While the evidence was in conflict on some points, there is no question but that it was amply sufficient under the law to show appellant’s guilt and sustain the verdict of the jury.

The court did not err in overruling appellant’s application for a postponement or continuance on account of the absence of the witness Arnold. At most, the allegations would show that the testimony of this witness was for no other purpose' than to tend to impeach, if it did, the testimony of the state’s principal witness, and that upon not a very important point. It has always been held by this court that a continuance will not be granted for this purpose. Section 324, 1 Branch’s Ann. P. 0., where a large number of the cases are collated. Besides, no diligence was used to secure his attendance.

Section 3 of the pandering act expressly makes the wife a competent witness against her husband in prosecutions thereunder. The court did not err in permitting her to testify.

Appellant complains of this remark by the trial judge in permitting the explanation by Mrs. Eppison:

“I knew when you let down the bars you would have a long siege of it.”

He explains and qualifies appellant’s bill as follows:

“The defendant’s attorney, while Bertie Eppi-son was on the witness stand, asked her all about her past life. The witness desired to make some explanations as to her life. Defendant’s attorney objected to her making any explanation. On cross-examination the district attorney told her to make the explanation she desired to make. Defendant’s attorney objected. I overruled the objection because, the defendant’s attorney having asked her all about her past life, she would be entitled to make the explanation with reference to the matters inquired about by defendant’s attorney. I had notified defendant’s attorney, if he went into her entire past life, it would let down the bars and would result in an extended investigation on both sides.”

What hie stated was not calculated to make the jury believe that the judge was convinced of the appellant’s guilt. It was in no sense a comment on the weight of the testimony, and could not have affected the jury in any way in passing on the testimony. In this connection it will be stated what appellant complains of in another bill. This other bill (6) show this:

“The state offered to prove by Bertie Eppison the story of her life, and propounded this question: ‘Go ahead Bertie and just tell the whole story from beginning to end.’ To which the defendant objected, the objections being overruled, the witness stated in substance as follows: [Then follows with some of her testimony.]”

Her testimony was her explanation of certain acts of her life which had been drawn out for the purpose of impeaching and reflecting upon her. The court explains that bill as follows:

“The defendant’s attorney on cross-examination of this girl went into the life of the witness minutely. At the time she desired to make an explanation this was refused by defendant’s attorney. I permitted the district attorney to ask for these statements or explanations; I did so because the defendant’s attorney had gone into these matters at great length, and I permitted her to make her explanations.”

It is universally held that any witness has the right to explain from his standpoint any fact tending to create a distrust of his integrity or truthfulness. As the witness sought to make this explanation when appellant was interrogating her, and he refused to then permit her to do so, it was proper for the court to permit the district attorney upon redirect examination of her to have her then make such explanation. Section 94, 1 Branch’s Ann. P. C.

The court committed no error in permitting the witnesses to testify that Lou Hager-man was a prostitute. This woman was shown to be a common prostitute, and it was into her room appellant took his wife, and in that and an adjoining room also attempted to force her to have sexual intercourse with another man.

The state not only proved positively by witnesses that said Lou Hagerman was a common prostitute, but also proved by witnesses that the Mecca Booms, and also the Como Booms, where appellant took and placed his wife, had the reputation of being houses of prostitution, or where prostitutes resorted or resided for the purpose of plying their vocation. The appellant thereupon introduced a witness who testified, in substances, that the reputation of said Mecca Booms in the particulars mentioned was good-. This witness having been crossed by the state, on redirect examination appellant sought to have him testify that on one occasion a girl came to his place of business and told him that she had been put out of the Mecca Booms because she had a date to meet a man up there. This testimony was hearsay. The court did not err in excluding it.

The only other matter of which appellant complains is the court’s refusal to give his two special requested charges. Neither the charges nor the bills complaining of their refusal show that they were presented to the judge for his action before the argument began. On that account alone they would present no error'; but the court states that one of them was not given because given in effect in his main charge, and this was true.

The other was wholly inapplicable, and should not have been given.

The record herein presents no reversible error.

The judgment should have been affirmed, not reversed.
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author: PRENDERGAST, J.

text:
    Ex parte CLARK.
    (Nos. 4629 and 4717.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.)
    Habeas Corpus <§=m85(l) — CSaracter op Application as Pleading — Proof of Allegations.
    Application for writ of habeas corpus in and of itself is not evidence of any of the allegations therein stated, but is a mere pleading, which must be proved like other allegations to entitle the party to the relief sought.
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge. ■
    Application for mandamus and habeas corpus on behalf of Will Clark.
    Proceeding dismissed;
    F. S. .Samples, of Wichita Palls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

During the vacation of this court last summer there was presented to the presiding judge an application by P. S. Samples, an attorney, wherein he complained of Judge Bonner, the judge of the Thirtieth judicial district of Texas, and alleged that said Clark was indicted at the June term of said court for an attempt to commit burglary, was tried on June 29th, found guilty, and his punishment assessed at two years in the penitentiary; that before that trial said Samples, a licensed attorney, was employed and - paid to represent said Clark on his trial; that when the ease was called for trial the judge refused to allow him to represent said Clark, and that said attorney moved the court to continue the case until cause could be shown why he was not allowed to represent him, which motion was filed, but which was ignored by said judge, and he was forced to trial without an. attorney of his choice; that on the same day said Clark was convicted his said attorney filed a motion for a new trial, and on July 3d said Clark was called into court and arraigned to be sentenced in accordance with the verdict, and when asked by the judge if he had anything to say why sentence should not be passed upon him that he informed the court that he had employed said Samples as his attorney and requested said attorney to speak for him at that time, and that his attorney offered the motion that had been filed and asked the court to hear it, which the court refused to do, and in harsh language commanded said attorney to be seated and proceeded to pass sentence upon said Clark, and after sentence had been passed said attorney asked permission of the court to give notice of appeal, which he refused to entertain, and remanded said Clark to the custody of the sheriff, to be - delivered to the agent of the state penitentiary, and that immediately thereafter said attorney filed with the clerk his notice of appeal in writing; that on July 5th he applied to Judge Scurry, the judge of the -Seventy-Eighth judicial district, for a writ of habeas corpus, which was granted and heard, and an order made remanding him back to the custody of the sheriff, holding that he did not have jurisdiction to change the orders of the Thirtieth district court, but that such power would be to the Court of Criminal Appeals at Austin; that he is being illegally carried to the penitentiary, for the reason that said district judge has not only deprived him of a fair and impartial trial, but of the right to appeal. Wherefore he prays that the judge of this court issue a mandamus to Judge Bonner to set aside the order heretofore made in said case, and that he be allowed a fair and impartial trial, and that the said judge be ordered to either grant him a trial in accordance with the law, or that he be ordered to instruct the clerk of his court to prepare a full and complete transcript of said case and forward it to the Court of Criminal Appeals, and that a writ of habeas corpus issue out of the Court of Criminal Appeals, and that said Clark be not sent to the state penitentiary pending this appeal, and he prays for any and all other relief he is entitled to in law and equity, and he further prays that the judge of this court issue an order restraining the sheriff of Wichita county delivering said Clark to any agent of the penitentiary and that he be held in the county jail in Wichita or be allowed bail pending his appeal, and further that, if it is in its discretion and it is proper to order a writ of certiorari commanding the clerk of the Thirtieth judicial district court to prepare a transcript in said cause and forward it to the court of Criminal Appeals at Austin.

This was signed and sworn to by said attorney, to which he attached a copy of his affidavit filed in the lower court in which he moved that the cause be continued until a hearing could be had showing why he, said attorney, had not been allowed to defend said case; also a copy of an affidavit by him for a new trial; also copy of an order to be entered in the minutes of the' court giving notice of appeal, and a copy of his application to Judge Scurry for a writ of habeas corpus, and the judge’s order granting the writ.

On July 11th Presiding Judge Davidson had entered upon the docket of this court the following:

“Clerk ordered to file application and writ to district clerk of Wichita commanding him to make certified copies of all proceedings, etc., and forward same to this court by October 3, 1917, and to sheriff to hold applicant and not surrender him to transfer agent of the penitentiary until further ordered by this court.”

Upon that order the clerk of this court on that date issued to the sheriff a writ of habeas corpus, and also issued a notice of the writ to the clerk of said court of Wichita county requiring him to make a full, true, and correct certified copy of all records and papers upon the trial of said Clark and forward them to this court on or before October 3, 1917, for its consideration and further orders.

Thereupon the clerk of the district court of Wichita county duly made out and sent to the clerk of this court what he certified was a complete transcript of all the proceedings of the Thirtieth district cirart of Wichita county in the case of the state against said Will Clark. When that transcript reached the clerk, there was nothing to call his attention to the fact that it was made and sent as a part of said ex parte proceedings required by said order; hence by mistake he filed and docketed it as a separate case, No. 4717. In that transcript is no order of the court showing that said Clark gave notice of appeal; neither is there any statement of facts, nor any bills of exceptions.

The sheriff on July 20th, which was filed in this court three days later, made out a complete return sworn to by him in which he answers the writ of habeas corpus and what he calls writ of injunction issued against him on July 11th in this ex parte proceeding, in which he swears that said Clark was not in his custody when said writ was served, but that on July 8, 1917, he duly delivered him to the agent of the penitentiary to be conveyed thereto in accordance with the judgment and sentence of said court in said ease against Clark, and that in delivering him to said penitentiary agent he was acting under the sentence, order, and judgment of said district court. Said ex parte cause was duly reached and submitted on October 3, 1917.

Neither said Clark nor said attorney introduced or offered any testimony. whatever on the submission of said ease. In addition to the said sheriff’s return, the state has procured a certificate of said clerk of Wichita county wherein he certifies that in the said case of the state against said Clark in that court there is no record in the minutes of the court showing that he ever gave notice of appeal to the Court of Criminal Appeals, or excepted to the judgment of the lower court, that there is among the papers of the case .an order filed by said Samples containing a notice of appeal, but that this order was never approved by the court or entered of record in the minutes of the court; also an affidavit by Hon. Leslie Humphrey, the district attorney of said district court, in which he swears that said Clark was represented by counsel, Hon. Wayne Somerville, a practicing attorney at the Wichita Falls bar, a lawyer of reputation for integrity and ability, and that said Clark was never deprived of counsel in the trial of said case, and neither he nor his attorney requested a motion for new trial, and neither he nor his attorney gave notice of appeal at the time sentence was passed upon him, or at any other time; also a certificate by Judge Bonner in his official capacity to the effect that no motion or order in said case in the district court was never presented to him by Mr. Samples or any other person, and that he never signed any such order at any time or place, and that for the first time his attention had been called to the fact that there appears in the transcript sent by said clerk, in obedience to the requirements of this court, a copy of what is styled thereunder, “Order overruling motion for new trial, filed July 3, 1917,” that he thinks no such order appears in the minutes of the court at the term at which said case was tried, and that, if it does, said order was placed thereon without his knowledge and consent, and was overlooked by him in reading the minutes at the close of the term, and that said Clark on that trial was represented by Hon. Wayne Somerville, who advised him at the time he sentenced said Clark that no motion for new trial had been filed and no notice of appeal would be given, and that he was sure no person indicated to him in any manner that the case would be appealed; also an affidavit by Mr. Somerville that he represented said Clark on said trial under appointment of the court, that he is a practicing attorney at the Wichita county bar, had been practicing for three years, and holds certain degrees from the University of Texas, and that he used his best efforts to defend said Clark, and after his conviction did not file a motion for a new trial, and gave no notice of appeal to the Court of Criminal Appeals in said cause, and that his client, Will Clark, indicated no desire ,or intention of prosecuting an appeal in said case.

The Assistant Attorney General thereupon moves this court to dismiss said application. He further contends that the said application is insufficient in that the allegations thereof are not proven, and in substance that there is no evidence to sustain the allegations. This proceeding is rather a novel and unusual one.

In Ex parte Thomas, 65 Tex. Cr. R. 537, 145 S. W. 601, where an application for writ of habeas corpus was granted by this court and the cause submitted, at which time there was no evidence submitted or heard by the court, and only the proceedings applying for said writ and the allegations contained therein, and the papers resulting therefrom, were in the record, this court held that:

“Certainly the application for a writ of habeas corpus in and of itself is not evidence of any of the allegations therein stated, hut it is a mere pleading. These allegations must be proven the same as any other allegations in order to entitle the1 party to the relief sought” — following several earlier decisions so holding, and the opinion, of Presiding Judge Davidson in Ex parte Naill, 59 Tex. Cr. R. 140,127 S. W. 1031, and quoting therefrom.

This is the uniform holding of this court. Ex parte Naill, 59 Tex. Cr. R. 140, 127 S. W. 1031; Ex parte Robertson, 63 Tex. Cr. R. 280, 140 S. W. 98; Ex parte Basham, 65 Tex. Cr. R. 533,145 S. W. 619; Ex parte Northern, 63 Tex. Cr. R. 275,140 S. W. 95; Ex parte Wellburn, 70 Tex. Cr. R. 465, 157 S. W. 154; Ex parte Barnes, 73 Tex. Cr. R. 583, 166 S. W. 728, 51 L. R. A. (N. S.) 1155; 1 Branch’s Ann. P. C. § 237.

Following these decisions, this proceeding in Nos. 4629 and 4717 is hereby dismissed.
      <fc=>Eor other cases see same topic ana KEY-NUMBER in all Key-Numberea Digests and Indexes


author: DAVIDSON, P. J.

text:
    HARRIS v. STATE.
    (No. 4710.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.)
    1. Gaming &wkey;98(2) — Playing Cards — Evidence. .
    . Evidence, on prosecution for playing cards in a place other than a private residence, held insufficient to show playing.
    2. Gaming <§=»98(1) — Caed Playing — Private Residence — Evidence.
    Evidence, on prosecution for playing cards at a place not a private residence, held to show the tent in which the alleged play took place to be a private residence.
    3. Gaming <&wkey;77 — Being Presenil-Onlook-ees. ⅛ ',
    ⅛ The statute against bemg present where gambling is being carried on applies only to onlookers, and not to those playing.
    Appeal from Cottle County Court; W. O. Jones, Judge.
    Charley Harris was convicted, and appeals.
    Reversed and remanded.
    C. C. Renfro and J. M. Hawkins, both of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The prosecution is predicated upon three counts. The first charges that appellant did unlawfully play at a game played with cards at a place which was not then and there a private residence and occupied by a family; the second, that appellant did unlawfully bet money at a game played with cards at a place which was not then and there a private residence and occupied by a family; and, the third, that appellant went into and remained in a place where a game with cards was then and there being played, and which said place was not then and there a private residence and occupied by a family.

The evidence shows that there were 12 or 14 negroes working under the employment of a certain party and occupied a couple of tents; that one of these tents was occupied by a man and his wife as their residence, but the evidence does not definitely show which tent was so occupied. The men were inmates of the place and- slept and took their meals there. The evidence is barely sufficient, if at all sufficient, to show that there was card playing. Purvis v. State, 62 Tex. Cr. R. 302, 137 S. W. 701, Ann. Cas. 1913C, 536. Nobody testified to seeing a game played, and the strength of the evidence is found in the fact that some negroes were seen in one of the tents. One witness saw defendant with cards in his hands and money in his shirt pocket. Purvis Case, supra. Another witness testified he saw some money on a bed. We are of opinion that this evidence is not sufficient to support the judgment as well from what has been stated as from the further fact that it was a private residence. There is no allegation to the effect that this private residence was a place of common resort, or that intoxicants were sold. The state’s case is that card games were played in a house which was not then and there a private residence. We are of opinion, under the decisions, that this was a private residence. Hipp v. State, 45 Tex. Cr. R. 200, 75 S. W. 28, 62 S. W. 973.

It is also suggested for reversal that the third count, to wit, remaining in a place 'where parties were gambling, should not have been charged or submitted to the jury. If appellant engaged in the game, he could not be charged under the statute which prohibits his being present in a place where gambling is being carried on. These statutes are different and intended to cover different aspects of the law. If he was engaged to the game, of course he would be present; but that statute was intended £o apply to those parties who were present and not engaged in the game but looking on. Prom any viewpoint of this case, we think the conviction should not have been obtained.

The judgment is reversed, and the cause remanded.


text:
    MARTIN v. STATE.
    (No. 4685.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.)
    1. Arson &wkey;>45 — Accomplices to Arson — Suspension of Sentence.
    “Accomplice to arson” is not “arson” within Act 33d Leg. c. 7, § 1 (Vernon’s Ann. Code Cr. Proc. 1916, art. 865b), denying suspension of sentence in convictions for arson, and where the verdict on trial for “accomplice to arson” so directs, a suspended sentence should he granted.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Arson.]
    2. Criminal Law i&wkey;1188 — Appeal—Suspension of Sentence.
    Where the lower court has wrongfully refused’to suspend sentence in accordance with the verdict, the sentence on appeal will be reversed, with instructions to enter judgment suspending the sentence and take accused’s recognizance and discharge him.
    Appeal from District Court, Mills County; F. M. Spann, Judge.
    Harry H. Martin was convicted for accomplice to arson, and denied suspension of sentence, and tie appeals.
    Reversed, with directions to suspend sentence.
    J. C. Darroeh and L. E. Patterson, both of Goldthwaite, and Wilkinson & McGaugh, of Brownwood, for appellant. E. B. Hendricks, Asst. Atty. Gen.; for the State.
   PRENDERGAST, J.

Appellant was convicted for accomplice to arson, and the jury assessed his punishment at the lowest prescribed by law at the time of the trial, and recommended his sentence be suspended.

In one count appellant was indicted as an accomplice to arson — the arson committed by Raymond Williams and Otis Allen. In another count as an accomplice of an attempt of arson by the same persons. He properly pleaded for a suspended- sentence. The court submitted to the jury both of said counts for a finding, and also the law of suspended sentence as applicable to each. The jury found him guilty under the first count, and also in their verdict properly recommended that his sentence be suspended. After the verdict the judge concluded that the suspended sentence could not be applied to a conviction for said offense of accomplice to arson, and thereupon declined to enter a judgment suspending the sentence, but instead entered judgment and sentence imposing confinement in the penitentiary for the term of years found by the jury.

The act of 1913, p. 8, § 1, art. 865b, Vernon’s Crim. Statutes, provides that when there is a conviction of felony, except, among others, for arson, and the penalty imposed is five years or less, the court shall suspend the sentence upon the recommendation and finding of the jury to that effect. This article does not except accomplice to any offense. There is no separate offense prescribed by our law as an “accomplice,” but there is an offense of an “accomplice” to most crimes. An accomplice to any given offense must be specifically indicted as such. 1 Branch’s Ann. P. G. § 724, and authorities noted. No person indicted as a principal for any offense can be convicted as an accomplice to such an offense; and vice versa, no person indicted as an accomplice of any given offense can be convicted as a principal therein. Arson is one offense and an accomplice to arson is an entirely separate and distinct offense. Crook v. State, 27 Tex. App. 243, 11 S. W. 444; Kaufman v. State, 70 Tex. Cr. R. 447, 159 S. W. 58. As an accomplice to arson wás not one of the excepted felonies where a suspended sentence was not applicable, the court clearly erred in entering a sentence imposing imprisonment in the penitentiary on appellant, and in not suspending his sentence.

Perhaps the trial court was misled in this matter by an .expression by Judge Hurt in Carlisle v. State, 31 Tex. App. 546, 21 S. W. 358, wherein he, in one sentence, said:

“In this state there is no distinction between the punishment of an accomplice and a principal. Why? Because the crime is the same.”

The sole question decided and discussed in the Carlisle Case was the question of venue. In that case murder by Carlisle’s principal was committed in Grayson county. Carlisle was not a principal therein, but an accomplice of the murder, and at the time of the murder was not in Grayson county, but in another county. The court held that the accomplice could be prosecuted in Grayson county where the murder was committed of which he was an accomplice.

In the construction and application of our suspended sentence law statute,' and the proceedings in this court when the lower court has wrongfully refused to suspend the sentence in accordance with the verdict, this court has reversed the sentence, with instructions to the lower court to enter the judgment suspending the sentence, take the accused’s recognizance, and discharge him. Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998; Martin v. State, 71 Tex. Cr. R. 212, 158 S. W. 994; Brown et al. v. State, 71 Tex. Cr. R. 212, 158 S. W. 807. We now adhere to that procedure, and reverse said sentence, and instruct the lower court to enter the proper judgment suspending the sentence, and discharge him on his own recognizance, in accordance with the verdict and law.

Reversed, with instructions.
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author: MORROW, J.

text:
    RENFRO v. STATE.
    (No. 4708.)
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1917.)
    1. Ceiminal Law <&wkey;784(l) — Instetjctions— ClBCUMSTANTIAL EVIDENCE.
    The evidence being purely circumstantial, the charge should instruct on circumstantial evL dence.
    2. Gaming <&wkey;98(2) — Caed Playing — Stieei-oiency oe Evidence.
    The state’s evidence on a prosecution for playing cards, being purely circumstantial, and entirely consistent with defendant’s, that they were expecting to play cards on the coming of others, but had not begun, is insufficient for conviction.
    Appeal from Cottle Cfranty Court; W. O. Jones, Judge.
    Dick Renfro was convicted, and appeals.
    Reversed and remanded.
    C. C. Renfro and J. M. Hawkins, both of Paducah, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant’s conviction was for violation of the law against gaming, the specific charge being as follows:

“Did then and there unlawfully play at a game played with cards at a place which was not then and there a private residence and then and there occupied by a family.”

The statute covering the offense is' article 54S, P. O. It appeared from the state’s testimony that two witnesses, who were officers of the county, entertained suspicions that persons in a certain hotel were engaged in a game of poker, and that they went to the hotel and looked through the transom over the door and recognized appellant and two others sitting on the floor, each of them having money in front of him. One of these witnesses claims he saw' a deck of cards in the hands of one of the parties, but did not know what kind of cards; saw no spots on them; did not «ee anybody shuffle the cards or play or bet with or at them; that the door to the room was locked. The other witness testified that he saw appellant sitting on the floor with money in front of him; did not see any cards or any one playing or betting, at any game. He further testified that as they left they met two other parties, namely, Roscoe Renfro and Paul Huff, coming up the steps.

Appellant’s testimony was to the effect that he and two other parties who were in the room with him and Mr. Huff and Mr. Renfro had made arrangements to play a game of cards, but did not engage in it for the reason that, while they were waiting for Huff and Renfro to return from breakfast and begin the game, the officers came and no game was played. In fact, he stated that they had no cards, but were waiting for Huff and Ren-fro to bring them when they came back from breakfast.

The charge was excepted to because of the failure to charge on circumstantial evidence, and the special charge on that subject was refused. This was error. Appellant contends that the evidence was insufficient, and in this we think he was correct. The evidence was purely circumstantial, and that of the state entirely consistent with that of the appellant to the effect that they were expecting to play a game of cards on the coming of Renfro and ITuff, but it had not begun. Fallwell v. State, 48 Tex. Cr. R. 35, 85 S. W. 1069; Berry v. State, 85 S. W. 14; Hale v. State, 49 Tex. Cr. R. 105, 90 S. W. 654; Looper v. State, 56 Tex. Cr. R. 498, 120 S. W. 880; Bowen v. State, 69 Tex. Cr. R. 242, 153 S. W. 306; Ables v. State, 49 Tex. Cr. R. 292, 92 S. W. 414.

The motion for a severance, which was formal, as required by article 727, Vernon’s O. O. P., was filed in order to secure the testimony of Jim Connor. Apparently, the motion should have been granted. O. C. P. art 791, and cases1 cited in Vernon’s Orim. Statutes, art. 91, P. C.; Branch’s An. P. O. pp. 373, 374, and cases cited. As presented in the bill of exceptions and qualified by the court, we are unable to determine whether there was reversible error in refusing the motion for a severance.

Other questions presented hre not likely to arise in the event of another trial.

For the errors pointed out, the judgment of the lower court is reversed, and the cause remanded.
      <S=»For other cases see same topic and KEY-NCJMBBR in all Key-Numbered Digests and Indexes


author: DAVIDSON, P, J.

text:
    ISLER v. STATE.
    (No. 4728.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    Bail <&wkey;65 — Appeal Bond — Dismissal.
    The recognizance failing to set out the amount of punishment, as required by the statutory form, but only reciting charge of aggravated assault, and conviction of simple assault, appeal will be dismissed.
    Appeal from Jasper County Court; O. C. Brown, Judge.
    Richard Isler was convicted, and appeals.
    Appeal dismissed.
    C. C. Ingram, of Jasper, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. .
   DAVIDSON, P, J.

Appellant was charged with aggravated assault on his wife, and was convicted of simple assault, and fined in the sum of $25.

We think the motion of the Assistant Attorney General to dismiss the appeal on account of the insufficiency of the recognizance should be sustained. The recognizance fails to set out the amount of the punishment as is required by the statutory form. It recites that appellant was charged with aggravated assault and convicted of simple assault, but does not mention the amount of punishment.

The motion will be sustained, and the appeal dismissed.


text:
    REYNOLDS v. STATE.
    (No. 4611.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    1. DISORDERLY HOUSE &wkey;>12 — INDICTMENT and Information &wkey;>122(5) — Keeping Disorderly House — Assignation Houses.
    A complaint that defendant kept a house to be used by “men for the purpose of meeting by mutual appointment made by another for the purpose of sexual intercourse” does not state an offense, and is a variance from information charging it was done for the purpose of men and women meeting for such intercourse.
    2. Indictment and Information <&wkey;41(2)— Information — Necessity for Valid Complaint.
    Without a valid complaint an information is worthless.
    3. Indictment and Information &wkey;»l — Necessity for Information — Disorderly House.
    The information is a prereouisite to a prosecution in the county court for keeping a disorderly house for the purpose of men and women meeting for sexual intercourse.
    4. Criminal Law <&wkey;878(2) — Defective Information — General Verdict.
    Where one of several counts in an information is invalid for not being supported by the complaint, and the evidence tends to support the offense attempted to be charged in such count, and there is a general verdict, a conviction -will be set aside.
    Appeal from Wichita County Court, Harvey Harris, Judge.
    Mrs. A. C. Reynolds was convicted of keeping a disorderly house, and she appeals.
    Reversed and remanded.
    W. Lindsay Bibb, of Wichita Palls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged in two counts with keeping a disorderly house — the evidence indicates that if anything it was an assignation house. The complaint charges that she kept this house and permitted it to be used by men for the purpose of meeting by mutual appointment made by another for the purpose of sexual intercourse. The information charges that it was done for the purpose of men and women meeting for such intercourse. This count in the information was attacked; the court overruled. There is a clear variance between the complaint and information. The Legislature has as yet not denounced a punishment for men to' meet at assignation houses for such immoral purposes. It has confined its enactment to the meeting of men and women for such purpose. The complaint charges no violation of the law, while the information charges one that could be. Without a valid complaint the information is worthless. The information is a prerequisite to a prosecution in the county court for this offense. This count will be quashed, as it should have been in the lower court. This count was submitted along with the other count. The evidence rather tends to support the meeting of men and women at the house by mutual appointment. The verdict was general.

The judgment will be reversed and remanded.
      (fe=jFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J. MORROW, J. PRENDERGAST, J.

text:
    BLACK v. STATE.
    (No. 4551.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.
    Dissenting Opinion, Dec. 6,1917.)
    1. Criminal Law <&wkey;1093 — Bill oe Exceptions— SCO'PE.
    Admission of declarations of a coconspirator after the homicide, the subject of the conspiracy, will be held error, unless the bill of exceptions shows that they were similar to his testimony, and properly introduced to meet evidence of declarations inconsistent with his testimony; and mere statement in bill of exceptions that he had made contradictory statements is not enough.
    2. Witnesses &wkey;>389 — Evidence oe Fact aeter Admission.
    If a witness admits making contradictory statements, they cannot be proved by others.
    3. Homicide <&wkey;166(3) — Evidence—Motive.
    Evidence of indiscretion of defendant’s wife with deceased, not known by defendant before the killing, is not admissible to show motive.
    4. Witnesses &wkey;>270(2) — Cross-Examination —New Matter.
    Defendant’s wife having testified for him merely as to his alibi, allowing the state to ask her as to her improper relations with deceased, was error, the state thus making her testify against her husband on new matter.
    5. Criminal Law <&wkey;448(8) — Opinion Evidence-Predicate.
    The state may not connect defendant with the homicide by opinion of witness that tracks of a horse leading from the place were those of defendant’s horse; he having merely stated that one of the tracks was made by a horse having a peculiar chip or split in the hoof.
    Prendergast, J., dissenting in part.
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    Will Black was convicted of murder, and appeals.
    Reversed and remanded.
    George Carter and Nat Llewellyn, both of Marlin, for appellant. E. B. Hendricks, Asst. Atty. Gen.', for the látate.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 25 years’ confinement in the penitentiary. The state relied upon the fact that appellant and Virgil Vasser killed Green Vasser, the father of Virgil. It is deemed unnecessary to go into a statement of the facts. Virgil Vasser turned state’s evidence and testified.

There are two or three bills of exception reserved to the action of the court permitting certain witnesses to testify to statements made by Virgil Vasser, who was also called Boozer Vasser. These statements were hiade after the examining trial, and after Boozer Vasser had talked to De Graf-fenreid in the absence of appellant. The sheriff of Palls county, one of these witnesses, testified:

“I talked to Boozer Vasser after the examining trial and' after he had talked to Flem De Graf-fenreid, while he was in jail of Palls county in the absence of Will Black. Boozer told me that he killed his father; that Will Black got him to kill him; that Will Black made it up with me on Monday evening first; then Tuesday evening he seen him again and he made this proposal to him, and he says that Will Black told him that on Tuesday evening, says, T will be down there in the morning, and whnt you to do me a favor,’ ” etc.

—without going into further details of this bill of exceptions. It contains quite a number of statements occurring between Boozer, or Virgil, Vasser and De Graffenreid. What is here said is also said with reference to other bills of exception showing similar statements made by Virgil, or Boozer, Vas-ser after the homicide to other testifying witnesses in the absence of defendant. Various exceptions were urged to this testimony, which were well taken. The acts and declarations of a coconspirator after the homicide or termination of the matter involved in the conspiracy are not introduci-ble against any one except the declarant. This has been the well-settled rule in Texas, at least since Cox et al. v. State, 8 Tex. App. 256, 34 Am. Rep. 746; Young v. State, 59 Tex. Cr. R. 137, 127 S. W. 1058.

The court qualified only one of these bills by stating that Boozer Vasser had, on cross-examination, admitted that he had made contradictory statements. This is all the bill shows with reference to the matter, and this is but a general statement by the court in signing the bill. This does not authorize the introduction of the testimony set out in the bill of exceptions. How the witness contradicted himself and about what is not stated by the judge in his qualification. It is not all contradictory statements that authorize the sustaining of a witness. The contradictory statements must be in reference to matters about which he testified, and must be such as are admissible to corroborate statements already testified,' and under such circumstances as to show he was not influenced by some ulterior motive or purpose. A rule sustained by the authorities is that, where a state’s witness is impeached or attempted to be impeached by showing that he has made statements with reference to the transaction out of court different from and contradictory to his testimony delivered on the trial, it is not error to permit the state to support the witness by showing that shortly after the transaction, and before any 'motive or inducement existed to fabricate, he made statements of the matter similar to his testimony delivered on the trial. The authorities will be found collated in section 181, p. 110, Branch’s Ann. P. 0. It is also the rule that where the opposing case is that the witness is prompted by improper or corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, the party introducing such witness may prove that his witness stated the same fácts prior to the time when the motive existed, or prior to the occasion which might prompt manufacturing the testimony. These authorities will be found on page 111 of Mr. Branch’s Ann. P. O. There is nothing of that sort shown or attempted to be shown by this bill of exceptions. The court in a general way says the witness “on cross-examination. made contradictory statements.” This may or not have been such as were proper to be corroborated. There is nothing to show that it referred to- or was connected with the statements that he made while delivering his testimony. What these statements were and how they were in conflict with each other, or whether the testimony could be shown in support of his testimony on the trial, this bill of exceptions does not explain; nor is it shown why such testimony should have gone before the jury. If appellant made statements different from those delivered on the trial before the jury, and to meet these the state would be able to show that he made similar statements about the time and in connection with the other statements explanatory of or corroborative of his testimony on the trial, this might be in-troducible; but that would be entirely owing to how the matter arose. It must be brought within the rule laid down by the authorities cited. This bill of exceptions does not undertake to so show.

It is also stated by the authorities that if a witness admits making contradictory statements inquired about, neither party is entitled to prove that he did make such statements. The authorities on this are clear. See Walker v. State, 17 Tex. App. 31; Rodriguez v. State, 23 Tex. App. 507, 5 S. W. 255; Barnard v. State, 45 Tex. Cr. R. 71, 73 S. W. 957. These authorities might be stretched out indefinitely. Whatever these contradictory statements were, if appellant admitted making them they could not be proved by other parties and if admissible through other parties it is on the theory of corroboration of his statements delivered before the jury. This bill of exceptions does not so present the question.

The other bills are not qualified by the judge. Those bills show error as they are presented by this record.

Another bill of exceptions shows error in the court’s ruling in this: That Sam Johnson and Jim Young and others were permitted to testify that they saw Stella Black, in the absence of defendant, Will Black, commit indiscretions with deceased, Green Vasser; the bill showing that Will Black, appellant, knew nothing of this conduct on the part of his wife and Green Vas-ser before the killing. Said, evidence was introduced by the state to prove motive on the part of the defendant, Will Black. Young v. State, supra, and Branch’s Ann. P. O. §§ 1 and 2, where numerous authorities are collated. This evidence was inadmissible.

Another bill recites the defendant placed his wife on the stand, the substance of her testimony being that on the morning that Green Vasser was killed, and at the time Virgil Vasser stated he and defendant killed him, or acted in conjunction in the killing, appellant was at home with her, and her testimony is of such a nature that, if true, it contradicted the accomplice testimony as to the presence of defendant at the time and place of the killing. This was all the testimony introduced by the defendant through his wife. She was then asked by the state quite a number of questions with reference to matters not involved in the testimony, nor relevant to that elicited from the wife by defendant. These involved matters of conduct between deceased and appellant’s wife, mainly to the effect that deceased visited his house and wife in his absence, and other matters of that character not elicited by the defendant. This testimony should not have gone to the jury. The state by this means was making the wife testify against her husband, and by this manner of cross-examination made her a state’s witness as to new matter elicited on cross-examination. The authorities, supra, and a great number of others sustain this bill of exceptions.

The witness Johnson was permitted to testify, oyer objections of appellant, that he knew appellant’s wife and deceased, .Vasser, and that he had seen deceased at defendant’s house on several occasions in the absence of the defendant, and, without stating the testimony as delivered, the substance of it is their conduct was quite reprehensible. It is shown in the bill that appellant was not present, and seems never to have been informed of that fact prior to the killing. This testimony was, under the circumstances, not admissible. See Young v. State, 59 Tex. Cr. R. 137, 127 S. W. 1058. The same may be said of the testimony of the witness Young, which was to the effect that he knew the parties, and had at one time Green Vasser, Will Black’s wife, and Boozer, the accomplice, chopping cotton for him. The pay for all these was handed to Stella Black, wife of appellant. Will Black was not present and knew nothing of it. These matters were inadmissible.

There is another bill of exceptions that may be noticed in a general way. It is not very specific, but it is sufficient to say with reference to it that, unless the matters therein testified are made more certain and definite upon another trial, they should be excluded. This is with reference to horse tracks. The witness testified, in a general way, that he followed horse tracks going from the neighborhood of where the homicide occurred to a certain point, and it is not shown that he measured them or in any way compared them, except by noticing them on the ground, and the fact that one of the tracks was made by a horse that had some peculiar chip or split place in the hoof. If it is undertaken to connect defendant with this horse as tending to show his presence at the time and place of the killing, the evidence should be more specific. The mere opinion of the witness in- regard to these being the tracks of appellant’s horse will not be sufficient under the predicate laid. The rule laid down in Tankersley v. State, 51 Tex. Cr. B. 174, 101 S. W. 234, seems to be applicable to this bill of exceptions. If tracks are sought to be used upon another trial, they should be more specific and definite in their identification as the tracks of the horse appellant is supposed to have ridden.

For the reasons indicated the judgment will be reversed and the cause remanded.

MORROW, J.

Concurring in the reversal, I want to make it clear that there is no intention to modify the established rule of evidence which permits the party offering a witness under proper circumstances to support him by proof of prior statements made by him consistent with the evidence he gives on the trial.

PRENDERGAST, J.

(dissenting in part).

The bills of exceptions to the testimony of Mr. De Graffenreid and Mr. Plott, the sheriff, directly, on their face, show that the witness “Boozer” Vasser admitted that he had made contradictory statements, in effect, directly the reverse of what he had testified on this trial. This was proven by the appellant for the very purpose of impeaching his testimony on this trial. Under such circumstances there can be no question but that the state had the right to support his testimony upon this trial as proving, as it did, by said De Graffenreid and Plott that soon after the killing said witness Vasser made to them statements of the facts corresponding substantially, if not literally, to what his testimony was on this trial. Their testimony was clearly admissible for the purpose of supporting the attempted impeachment of said witness. The court so limited, by his charge, their testimony. The question of proving what the witness Vasser had told before was not an attempt to prove the declaration of a conspirator at all. No such question arose. The testimony was not offered for that purpose.

If the! circumstances proven would show or tend to show that appellant knew of the conduct of his wife with the deceased, such testimony would be admissible as showing a motive by appellant to kill the deceased. It would not be necessary to prove his actual knowledge of her intimacy with deceased. Of course, if the testimony showed that he had no notice or knowledge of her conduct, then the testimony of the witnesses as to her acts of intimacy would not be admissible. All the testimony about the] horse’s tracks was admissible.

I concur in the reversal solely on the admission of the cross-examination of appellant’s wife on independent new matters incriminating appellant which were not testified to in any way by her on direct examination.
      <fc»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MOYE v. STATE.
    (No. 4721.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    Ceiminal Law <⅜=>1090(1) — Aupeau—REconn —Stjiticiency.
    Where record on appeal from conviction of murder contains no statement of facts or bill of exceptions, and nothing in the motion for new trial can be reviewed in the absence of the facts, the conviction will be affirmed.
    Appeal from District Court, Kaufman County; F. L. Hawkins, Judge.
    Will Moye was convicted of murder and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convict-

ed. of murder, Ins punishment being assessed at 12 years’ confinement in the penitentiary. The record is before us without statement of facts or bill of exceptions. There is nothing brought forward in the motion for new trial that can be considered in the absence of the facts.

The judgment will therefore be affirmed.
      <g»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes