text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. McGRATH et al.
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1913.)
    1. Trial (§ 296) — Instructions—-Omissions —Cube by Otheb Instructions.
    Where the court charged that defendant railroad company was only bound to exercise ordinary care in the operation of an engine belonging to M. over its tracks, there was no error in omitting to add such proposition to a further instruction that defendant would be liable for M.’s negligent operation of the engine over defendant’s tracks.
    [Ed. Note. — For other cases, see Trial,- Cent. Dig. §§. 705-713, 715, 716, 718; Dec. Dig. § 296.]
    2. Railroads (§ 485) — Eibes—Instructions.
    In an action against a railroad for destruction of plaintiff’s property by fire alleged to have been negligently set out, the court properly charged that careless operation of the engine in permitting the escape of sparks, setting, fire to the property, would be negligence, and that the railroad company had no right to scatter sparks along its tracks so as to be dangerous to property, and so doing would be negligence; it being permissible in such an action to instruct that proof of certain facts establishes negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1747-1756; Dec. Dig. § 485.]
    3. Trial (§ 296) — Instructions—Omissions —Instructions Given.
    An instruction that it was the duty of one operating an engine over defendant’s tracks to use only good engines equipped with best-known appliances, etc., to prevent the escape of fire, was not objectionable in omitting to charge that defendant was liable for damages from fire, only when it failed to use ordinary care in equipping its engines with the best-known appliances, etc.; the court in another charge having instructed that if the owner of the engine in question used, ordinary care to select and use such machinery and apparatus for preventing the escape of fire as was in general use by well-managed .railroads, and used ordinary care in keeping the same in repair, etc., and in operating the same, it would not be liable.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §| 705-713, 715, 716, 718; Dec. Dig. § 296.]
    4. Railhoads (§ 260) — Fires — Equipment Belonging to Others — Operation.
    Where defendant railroad company permitted M., the owner of a private logging road, to run his engines for a short distance over its tracks to obtain water at the defendant’s tank, and it did not appear that M.’s road was a chartered railroad or that it transported freight or passengers for hire, defendant was not compelled by law to permit such engines to use its tracks, and was therefore liable for loss sustained by fire set out in the negligent operation of such engines by M.’s employes.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 817-823; Dec. Dig. § 260.)

      5. Railroads (§ 481) — Fires—Evidence.
    In an action for damages from fires alleged to have been set out by the negligent operation ■of an engine on defendant’s tracks, evidence that about the time of the fire which destroyed plaintiff’s property, and just after the passing of an engine, witness saw two chunks of fire nearly as large as his hand lying on the right of way about 40 feet from the tracks, but did not recall whether that was before or after the fire in question, was admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1717-1729; Dee. Dig. § 481.]
    Appeal from Henderson County Court; C. D. Owen, Judge.
    Action by Thomas McGrath and others against the St. Louis Southwestern Railway Company of Texas. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    E. B. Perkins and Darnel Upthegrove, both of Dallas, R. S. Neblett, of Corsicana, and W. R. Bishop, of Athens, for appellant J. J. Faulk, of Athens, for appellees.

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

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

   RASBURT, J.

Appellees sued appellant in the court below for the value of their residence and certain household furniture and appurtenances of the alleged value of §937.60. It was charged that the house and contents were destroyed by fire set by sparks from an engine in use on defendant’s road, resulting from the fact that the engine was improperly and defectively built and constructed and carelessly and negligently managed by appellant. Appellee alternatively alleged that one Mitchell, or Mitchell-Critten-den Tie Company, with the consent and knowledge of appellant, in like manner operated said engine over appellant’s line of railway and set the fire by escaping sparks which destroyed appellee’s property. Appellant met the complaint by general demurrer and general denial and specially averred that the fire was not set by any engine belonging to it or operated by it or under its control, and impleaded L. F. Mitchell, charging that appellees had as good a cause of action against him as against appellant, and that Mitchell owned an engine which he operated over appellant’s tracks and asked that all liability between the parties be adjusted. Upon trial by jury appellee was awarded $540 against appellant and appellant was awarded • a like amount against Mitchell, followed by judgment, from which appellant has appealed. No appeal is taken by Mitchell.

The Mitchell-Crittenden Tie Company, or L. F. Mitchell, who seems to be the company, has a line of railway from Motel Camp, (a tie, wood, and lumber camp), to where it intersects the road of appellant at Trinidad, a distance of from four to eight miles. From the point of intersection Mitchell uses appellant’s tracks with appellant’s permission and consent for a distance of one-half or one-fourth of a mile in order to reach appellant’s water tank, whence Mitchell secures his water supply, which was sold him by appellant, and also in order to reach appellant’s side track at Trinidad, where he unloaded his wood, lumber, and ties. Appellee’s house is about 75 feet from appellant’s tracks, and sparks from the Mitchell engine set the fire that destroyed appellee’s house, etc., while it was being operated upon appellant’s tracks by Mitchell’s agents. Mitchell’s road at tllaft time was a private road and was used only for the purpose of bringing to the appellant’s line the wood, ties, and lumber cut by Mitchell and to secure his water supply. The road did not engage in transporting freight and passengers.

The first assignment of error complains of that portion of the court’s charge which tells the jury that appellant would be liable for Mitchell’s negligent operation of his engine over .appellant’s tracks. The proposition asserted under this assignment is that the court should have also at the same time told the jury that Mitchell was bound only to use ordinary care in the operation of the engine. This particular paragraph of the charge was intended only to fix appellant’s liability for Mitchell’s negligence, and the objection might be good, except for the fact that the court, by appellant’s special charge No. 4, did tell the jury that appellant was only, bound to exercise ordinary care in the operation of its engine.

The third assignment of error complains of the court for telling the jury it would be negligence if the engine was so carelessly operated by appellant that sparks of fire therefrom set fire to the property of appellee. The fourth assignment complains of that part of the charge which instructs the jury that railroads have no right to scatter sparks along their tracks in such manner as to cause unnecessary danger to property and upon so doing would be guilty of negligence and liable for resulting damages.

In this character of case it is well settled that, contrary to the general rule, it is permissible for the trial court to instruct the jury that proof of certain facts establishes negligence. Railway Co. v. Johnson, 92 Tex. 591, 50 S. W. 563, and cases cited. As illustrative of the rule, proof in this case that appellee’s property was destroyed by fire set by sparks escaping from appellant’s engine establishes negligence, and, when the court instructed the jury that it would in fact be negligence on the part of appellant if it so negligently operated its engine that sparks escaped therefrom and set the fire that destroyed appellee’s property, such instruction was within the rule just stated. So was that part of the charge which instructed the jury it would be negligence if appellant did scatter sparks upon its tracks in such manner as to cause unnecessary danger to property. Such comments, while perhaps unnecessary, are not, in such cases, upon the weight of the evidence. Railway Co. v. Burnett, 37 S. W. 779.

The second assignment of error complains of the action of the court in instructing the jury that it was Mitchell’s duty» “to use only good engines with best-known appliances and equipments to prevent the escape of fire.” The proposition asserted is that appellant was liable for such damages only when it failed to use ordinary care in equipping its engines with the best-known appliances and equipments. The proposition is sound, and while the court should have included the same in his main charge, and while he failed to do so, the point is fully covered by special charge No. 4, requested by appellant and given by the court. By this special charge the jury is instructed: “Now, if you believe from the evidence that the said Mitchell used ordinary care to select and had in use such machinery and apparatus for preventing the escape of fire as is generally in use by well-managed railroads, and that he used ordinary care to keep in repair such machinery and apparatus, and failed to discover any defect in the same, and you further believe from the evidence that at the time and place of the alleged fire that the person operating his said engine used ordinary care in operating said engine and fire apparatus, then you will find for the defendant railway company, even though you believe from the evidence the plaintiffs’ damage was caused by fire from sparks set out from the engine of the said L. E. Mitchell.”

The sixth, seventh, and eighth assignments of error assert the proposition that appellant was not liable for the negligent acts of Mitchell while operating by permission of appellant its engines over appellant’s tracks. In Railway Co. v. Culberson, 72 Tex. 375, 10 S. W. 706, 3 L. R. A. 567, 13 Am. St. Rep. 805, it was said: “So that it may now be considered the accepted and settled doctrine that, in all cases where one railroad company is operating trains upon the road of another without authority of law, the owner of the road remains responsible for the discharge of its duties to 'the public and becomes liable for ‘injuries resulting from the lessees’ failure to perform their duties.” See, also, Railway Co. v. Bryant, 30 Tex. Civ. App. 4, 66 S. W. 804. While it is not shown that Mitchell had a lease from appellant, the facts do show that he used the tracks with the consent of appellant, and we can see no distinction in the liability of one using the tracks under an illegal lease and one who has no lease at all. But it is also urged under these assignments that Mitchell’s road was a common carrier, and appellant was accordingly bound to permit him to use its tracks for unloading his freight, and hence not liable for his negligence. As we have said at another place, the evidence shows that the Mitchell road was a private road, owned and controlled by Mitchell, and only extended a distance of four or eight miles to Mitchell’s tie, wood, and lumber camp, and was used for the sole purpose, so far as the evidence discloses, of transporting Mitchell’s wood, lumber, and ties to appellant’s line at Trinidad. There is no proof that it was a chartered road, or that it either solicited or actually transported freight or passengers, and appellant was not compelled to admit the engine upon its tracks as provided by the several statutory acts concerning the duties of connecting lines of common carriers.

The ninth assignment of error complains of the admission of testimony. The witness Gurry, over objections of appellant, testified, in substance, that about the time of the fire which destroyed appellee’s property, and just subsequent to the passing of the Mitchell engine on appellant’s tracks, he saw two chunks of fire nearly as large as his hand lying on the right of way about 40 feet from the tracks, but did not recall whether he discovered them before or after the fire which destroyed appellee’s property. It occurs to us that a fair construction of this evidence brings the same within the rule announced in Fleming & Son v. Pullen, 97 S. W. 110, and McFarland v. Railway Co., 88 S. W. 451, cited by appellant, which hold that it is permissible to show that the engine which is alleged to have set the fire did on other occasions emit sparks. Here the witness testified that “just prior” to the time he found the chunks of fire the Mitchell engine passed. The passing of the engine and the finding of the fire, being so nearly related in point of time, were pertinent circumstances for the consideration of the jury in determining whether the Mitchell engine was the one that set the fire.

Finding no reversible error, the judgment of the court below is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    HARRIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Cbiminal Raw (§ 142) — Change of Venue — Recognizance—Necessity.
    Code Cr. Proc. 1911, art. 637, provides that, on a change of venue when accused is on bail, he shall forthwith enter into a recognizance conditioned for his appearance before the proper court at the succeeding term or, if the court for the county to which the ease is transferred be then in session, shall be recognized to appear before it on the day fixed. Article 638 provides that, if he fail to give recognizance, he shall be placed in custody and kept by the sheriff to be disposed of according to articles 639 and 640. Held, that an accused who was not in custody in R. county, but on bond, should have been required to recognize in that county when the venue was ordered changed to W. county, in order to give the court in W. county jurisdiction, even though accused had appeared in W. county at a prior term of court; such appearance not waiving his failure to recognize in R. county.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 264-267; Dec. Dig. § 142.*]
    2. Criminal Law (§ 542) — Evidence—Former Testimony — Physical Inability.
    Where a witness for accused, whose evidence was material and who had testified at the former trial, was unable to be px-esent at the second trial because of paralysis, his testimony at the former trial could be reproduced by the evidence of a witness who had then heard it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1232, 1236; Dee. Dig. § 542.¾
    3. Criminal Law (§ 547) — Evidence on Former Trial — Stenographer’s Notes.
    The court stenographer’s notes of the evidence of a witness at a former trial could not be admitted in evidence unless transcribed so they could be read and shown to be correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1237-1246; Dec. Dig. § 547.*]
    4. Criminal Law (§ 547) — Evidence—Testimony at Former Trial — Mode of Proof.
    A court stenographei’’s notes of the testimony of a witness at a former trial, though transcribed and shown to be correct, would not be superior evidence as to the testimony of such witness so as to be admissible at a subsequent trial over the oral evidence of a witness as to what the witness’ testimony was on the former trial.
    [Ed. Note. — For other cases, see Ci’iminal Law, Cent. Dig. §§ 1237-1246; Dec. Dig. § 547. ⅜
    5.. Criminal Law (§ 403) — Evidence—Secondary Evidence.
    There are no degrees of superiority in secondary evidence.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 889; Dec. Dig. § 403.]
    6. Criminal Law (§ 547) — Evidence—Evidence on Former Trial.
    It is sufficient proof of the testimony of a witness on a former trial, now incapacitated, that the witness herein be able to testify substantially to the material part of the evidence of such other witness on the former trial without giving his woi’ds verbatim.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1237-1246; Dec. Dig. § 547.]
    7. Criminal Law (§ 814) — Instructions— Conformity to Evidence.
    Where, in a prosecution for hog theft, accused did not have possession of the hog when the conversation constituting his ■ alleged explanation of his possession occurred, it was error to instruct that if accused, when found in possession of the hog shortly after it was stolen, gave an explanation of his possession which was reasonable, the jury must find, in order to convict, that the other testimony established the falsity of his explanation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*]
    8. Larceny (§ 70) — Issues—Guilt as Principal.
    Where the evidence, on a prosecution for hog theft, tended to show that accused was living at K.’s and that K. drove a hog home one evening and asked accused to open the gates so that he could drive it into a lot, which accused did, the court should have charged on request that, unless accused was connected with the original taking as provided by statute,_ the jury could not convict of theft, as a principal.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 182, 183, 1S5, 186; Dec. Dig. § 70.]
    9. Larceny (§ 71) — Instructions—Issues.
    Where the evidence in a pi-osecution for hog theft raised the issue of a taking by mistake, the court should have granted a requested instruction that, even if accused was a principal in the taking, he could not be convicted if he believed at the time that the hog belonged to his father and that he had a right to take it under his father’s authority.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 191-194; Dec. Dig. § 71.]
    10. Larceny (§ 50) — Admission of Evidence.
    In a prosecution for hog theft in which accused claimed that he believed the hog belonged to his father when he took it, the state could not show as an incriminative fact whether accused had ever attempted to institute civil proceedings to recover the hog from the alleged owner.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    Prendergast, P. J., dissenting in part.
    Appeal from District Court, Wheeler County ; L. C. Barrett, Special Judge.
    Isaac Harris was convicted of hog theft, and appealed.
    Reversed and remanded.
    Willis & Willis, of Canadian, and J. C. Dial, of Miami, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was indicted in Roberts county for the theft of a hog. The case was transferred on change of venue to Wheeler county, where this conviction was had.

Appellant moved to dismiss his case from the docket in Wheeler county for want of jurisdiction, alleging as reasons that the indictment was originally returned in the district court of Roberts county, which court had jurisdiction, and that no transcript appears on file in Wheeler county district court of all the orders made in that district court as required by the statute; that among the papers of the case there appeared a bond executed by defendant and sureties for his appearance before the district court of Roberts county, as required by the statute; that since making that bond appellant has not been surrendered to the custody of the sheriff of Roberts county but has remained out ■on said bond, at large; that he has never entered into any recognizance to appear in the district court of Wheeler county, and no order was ever entered in the district court •of Roberts county ordering the defendant to be removed from Roberts county and delivered into the custody of the sheriff of Wheeler county, and defendant was never so delivered into the custody of the sheriff of Wheeler county. This was in substance the motion. The district attorney agreed and admitted in open court that the defendant had never been recognized to make his appearance before the district court of Wheeler county, and that he had never been remanded or delivered into the custody of the sheriff of Wheeler county by the district court of Roberts county; that there appeared on file in the papers of said cause a bond duly executed by the defendant and his sureties requiring him to appear before the district court of Roberts county as required by law; that since the making of said bond defendant had never been surrendered to the sheriff of Roberts county but has remained out on said bond; that no order was ever made by the district court of Roberts county fixing any recognizance or ordering the defendant to be removed from Roberts county and delivered to the custody of the sheriff of Wheeler county, and appellant was never so delivered into the custody of the sheriff of Wheeler county. Whereupon the court overruled said motion and required the defendant to stand trial in the district court of Wheeler county, to which action he reserved exceptions, etc.

The district judge who tried the case approved this bill of exceptions in substance with the following qualification: “On the trial of the cause and on the trial of the motion, the clerk of the district court testified that there had been on file among the papers of the cause a transcript of all the orders from the district court of Roberts county in said cause, and that among the'same and in the same was an order changing the venue from Roberts county to Wheeler county, but that said transcript had been mislaid, and it was then agreed among the attorneys for both state and the defendant that they send to Roberts county where this indictment was first returned, and where the trial was had the first time in the cause, and get the .order, or a certified copy of it, changing the venue from Roberts county to Wheeler county, and further agreed that there should be a substitute for the order changing the venue, and the attorneys for both the state and the defendant agreed that there was an order entered changing the venue to Wheeler county before the case was first tried in Wheeler county- and when the papers were first brought, and the court finds that, when the papers-were first sent from Wheeler county, a transcript of all the orders on the docket in the cause in Roberts county regularly certified to, including the order changing the venue to Wheeler county, was sent to said Wheeler county, and that the venue was regularly changed, with the exception of the defendants below named in the recognizance, and the court further finds on the testimony of the attorneys in the cause that it was agreed between the defendants after the court in Roberts county had decided to change the cause to Wheeler county; and the court further finds from the testimony introduced on the trial of said cause and this motion that there had been two or more continuances in said cause after the venue had been changed to Wheeler county, and that the cause had been once tried in Wheeler county after said change of venue, and no objection had been made to the jurisdiction of the court until this cause came up for trial at this term; and the court finds that the venue was regularly changed from Roberts county to Wheeler county, with the exception that the defendant was neither ordered into the custody of the sheriff of Wheeler county nor was he required to enter into a recognizance by said order changing the venue, which order as a part of the record is hereto referred to in the transcript and made a part hereof, and that the venue notwithstanding said defects was changed to Wheeler county, and that the defendant by voluntarily appearing and submitting himself to the jurisdiction of Wheeler county, and being tried once before this term in Wheeler county, giving bond, etc., and entering into a trial in Wheeler county at a former term without any objection to the order of changing the venue, before the present term of this court had waived the defects in the order changing the venue, and that therefore this court, under the circumstances, had jurisdiction.”

The statute (article 637, Revised Code of Criminal Procedure) provides that, when a change of venue is ordered and defendant is on bail, he shall be required to enter into recognizance forthwith conditioned for his appearance before the proper court at the next succeeding term thereof, or, if the court of the county to which the cause is taken be then in session, he shall be recognized to appear before said court on a day fixed and from day to day and term to term thereafter until discharged. Article 638 provides that if defendant fails to give recognizance he shall be placed in custody and kept by the sheriff to be disposed of as provided in articles 639 and 640. These relate only to the defendant when he is in custody. Appellant was not in custody in Roberts county but was on bond, and the facts show, as stated in the bill of exceptions above quoted as well as in the qualification of the trial judge, that appellant, as a matter of fact, did not enter into recognizance in Roberts county when the change of venue was ordered to Wheeler county. The statute requires this to be done; and it would seem by its terms Wheeler county could not obtain jurisdiction of appellant until the law had been complied with. We have been unable to find but one case construing this statute, and this is in State v. Butler, 38 Tex. 560. That court sustains the contention of appellant. Among other things this language is found in that opinion: “An order transferring a criminal case to another county does not transfer the jurisdiction, unless the defendant be recognized to appear before the court to which the venue is * * * changed,” The judge seems to have arrived at the conclusion that, because appellant had at a prior term of the court appeared in Wheeler county, therefore he had waived the failure of the court in Roberts county to put him under recognizance. Under the statute the learned judge is in error. The statute is emphatic that the party must either enter into a recognizance or go to the custody of the sheriff of the county from which the change of venue is had, and until this'has been done the county to which the change of venue is had does not acquire jurisdiction. This might be sufficient to dispose of the case, so far as this appeal is concerned, but, in view of the fact that the proper change of venue may be had, there are some questions that we will notice.

At a prior trial of this case appellant’s father, C. C. Harris, testified to very material facts. He was not in attendance at the trial which resulted in this conviction. The reason for his nonattendance was his infirm condition and inability to testify, even if he was at court. He had received a second stroke of paralysis and was not in sufficient health or physical condition to attend court, and the predicate shows that he would not be able to answer questions were he present. With this showing the court should have admitted the testimony of Dial, who was offered to reproduce the testimony of the absent witness. It will be noted the absent witness was a defense, not a state’s, witness. The Constitution provides that the accused shall be confronted by the witnesses against him. The defense witnesses are not included in this inhibition of the Constitution. It is not the purpose here to discuss any of the questions involved in the reproduction of the testimony on the part of the state, and what may be said here has no reference to that phase of the law. But under the showing made it seems that appellant was entitled to the reproduction of the evidence of this witness. The predicate was ample and the testimony was material. The state’s theory was that appellant committed the theft of McCauley’s hog, and the indictment so averred. The state used McCauley and such other testimony as could be obtained to support the allegations in the indictment. Appellant’s theory of the case was that the hog belonged to his father, and that his father had authorized himself and A. O. B. Kidd to take up this hog. To be more particular, the father of appellant, the absent witness, had 40 or 50 head of hogs; 4 of them were missing. Appellant, son of the absent witness, and Kidd were authorized by the absent witness to gather these 4 hogs, and for this service they were to have one of the 4 under that authority, and it was claimed Kidd got this hog. Appellant sold or assisted Kidd in selling the hog to Bessler. Kidd, being indicted for the same transaction, could not testify. Appellant, therefore, was relegated to his own testimony, in the absence of his father’s, to support his theory of the case. His father had previously testified to the state of facts claimed by appellant to be true. The court excluded this testimony because he thought the stenographer’s notes were superior evidence to the reproduction of the testimony by the witness Dial, who heard the absent witness testify, and it would seem also that the court further ruled against appellant’s contention because Dial could not reproduce everything, or practically everything, the absent witness had stated. It is shown in the bill of exceptions that he could reproduce all the material matter testified by Harris, the absent witness, but that he could not reproduce, in the language of the absent witness, everything he said in regard to the case; but it was made clear he could reproduce substantially all the material facts.

The stenographer’s notes could not be introduced in evidence unless they had been transcribed so they could be read and shown to have been correct under the rules laid down in Stringfellow’s Case, 42 Tex. Cr. R. 588, 61 S. W. 719, and Smith v. State, 60 Tex. Cr. R. 293, 131 S. W. 1081.

But even'then the stenographer’s notes .would not be superior to the evidence of any other witness who could testify to the same facts. The court’s idea that ^Dial’s reproduction of the testimony would be secondary is not in accordance with the law. If the stenographer had his notes with him and was offered as a witness, he might, by showing that the notes were correct, testify as to what the notes contained. But that matter is unnecessary here to be discussed, as that question was fairly well discussed in the Stringfellow- Case and Smith Case, supra, but that did not prevent the defendant from reproducing the testimony by any other witness who heard and could testify to the facts. The stenographer would not be a superior witness, nor would his testimony be primary.

There are no degrees in secondary evi-denee under the decisions of this state. This has been settled, it seems, in Texas since Lewis v. San Antonio, 7 Tex. 288.

If the witness could testify to the material facts in the case substantially what the witness testified without giving his words verbatim, it would be sufficient under the decisions. We deem it unnecessary to cite these cases; however, we cite Bennett v. State, 37 Tex. Cr. R, 244, 39 S. W. 363; Pratt v. State, 53 Tex. Cr. R. 287, 109 S. W. 138; volume 16, Cyc. 1102; Underhill on Grim. Ev. § 266; 1 Greenl. on Ev. § 165.

The court charged the jury: “You are instructed that if you believe from the evidence in' this case that the property alleged to have been stolen was so stolen and re-, cently thereafter was found in the possession of defendant, and that the defendant when thus found in the possession of the same gave an explanation of his said possession which appears reasonably and probably true, then before you would be warranted in finding a verdict of guilty in this case you must be satisfied from the evidence beyond a reasonable doubt that the other testimony in this case establishes the falsity of the explanation so made by the defendant. And, if the state has failed to satisfy you that such explanation was false, then you will acquit the defendant. But in this connection I further instruct you that the state is not bound to prove the falsity of the defendant’s explanation by direct or positive testimony, but that the same may be shown to be false by any evidence sufficient to satisfy your minds that it was false.” Many objections are urged to this charge. This form of charge has been so often held fatally defective it would hardly seem to need discussion at this late date. Almost the identical charge was held error in Hopperwood v. State, 39 Tex. Cr. R. 15, 44 S. W. 841. The reasons are given in the Hopper-wood and quite a number of other cases, which will be cited below. The matters were fully discussed and thoroughly adjudicated in those cases, and the writer does not think it necessary to go over those reasons, but we cite some of the cases: Pollard v. State, 33 Tex. Cr. R. 197, 26 S. W. 70 (for a collation of a great many authorities, see Branch’s Crim. Law, § 796); Wheeler v. State, 34 Tex. Cr. R. 353, 30 S. W. 913; Hayes v. State, 36 Tex. Cr. R. 146, 35 S. W. 983; Franks v. State, 36 Tex. Cr. R. 151, 35 S. W. 977; Spillman v. State, 38 Tex. Cr. R. 607, 44 S. W. 149; Ballew v. State, 69 S. W. 513; McCulloh v. State, 71 S. W. 278; Stewart v. State, 77 S. W. 791; Gilford v. State, 48 Tex. Cr. R. 313, 87 S. W. 698; Lee v. State, 57 Tex. Cr. R. 177, 122 S. W. 389.

In Wheeler v. State, supra, Judge Henderson undertook to prescribe a form where it was necessary to charge this phase of the law. In that case a charge much similar to the one given in this case was condemned and the judgment reversed because such charge was given. It will be noticed in the reading of the charge that the court gave it with reference to explanation given by defendant when found in possession of the hog. The account given was' at Bessler’s house where defendant stated he had gotten the hog in a trade from some person who was going through the country traveling. Appellant was not then in possession of the hog, at least it was not at the place where the conversation was had, and it was the next day perhaps when appellant delivered the hogs. The evidence all the way through undertook to show or raise the question there may have been two hogs involved, but, be that as it may, appellant was not then in possession of the hog; he had not been accused of stealing any hog. In talking to Bessler he stated to him that he had a hog that he got from somebody going through the country and wanted to sell it to him. They\did not then make trade but subsequently did make a trade with reference to the hog. We are led to believe this charge was given with reference to this particular conversation, and if this is true the court was in error in including in his charge the idea that the explanation was given when appellant was found in possession of the hog. Bessler had no idea at the time he was purchasing a stolen hog, nor was appellant in any way directly or indirectly charged with stealing any hog. If a charge on recent possession is given in another trial, it should be in accordance with the facts stated and not assume that appellant was in possession of a stolen hog, when as a matter of fact there was no hog present and there was no question of theft at the time. If appellant bought the hog, as he said he did, of course he did not commit, theft of it. That phase of it perhaps was sufficiently charged by the court. The court did charge the jury if the hog was the property of C. C. Harris at the time of the alleged taking, or if defendant so believed, or-if the jury had a reasonable doubt of either question, they would acquit! Appellant claimed to have gotten the hog from his father,, and the hog belonged to him. So that charge of the court was not in accord with the facts when presenting that issue. The court’s charge on recent possession was therefore error.

There are some other questions with reference to charges given and refused which will be noticed in a general way. The issue is raised by the testimony of the defendant that he did not participate in the taking or original capture of the hog. In this respect the substance of the evidence is about this way: Appellant was living at Kidd’s, and, while there one evening cutting stove wood for Mrs. Kidd, Kidd came home driving a hog. He asked defendant to open the gate to the lot so he might drive in the hog. Appellant did this. The hog was turned into the pen. The jury should have been pertinently and affirmatively charged that, unless-appellant was connected with the original taking as the statute provides, they could not convict him of theft. If the hog Kidd brought home was stolen and the hog in question, then before appellant could be convicted as a principal he must be shown to have been connected with the oñginal capture, and the jury should have been definitely and affirmatively informed. If his testimony of his connection with the animal was true, he was not a principal, even if the hog was stolen and belonged to McCauley. Appellant swore the hog belonged to his father, but if that issue should be decided adversely to him, still he had the legal right to havfe the other question decided by the jury under appropriate instructions; that is, he must be a principal in order to sustain a conviction under this indictment. This question was raised in the charges requested.

There is another question that if the hog was taken through mistake, even if appellant was a principal in the taking, yet he could not be convicted if he believed at the time he took it that it belonged to his father, and that he had a right to take it under the authority given him by his father. In other words, the law in regard to mistake of fact should have been definitely and affirmatively given the jury. A requested instruction was refused submitting this issue.

A bill of exceptions recites that, while McCauley was testifying for the state, the district attorney asked him whether or not defendant had ever made any attempt to institute any proceedings for the purpose of recovering the hog. Appellant raised quite a number of objections, and the witness answered that the defendant had never made any attempt to recover the hog or instituted any legal proceedings therefor. This was not a criminative fact against appellant and could not be used as criminative. Morton v. State, 43 Tex. Cr. R. 536, 67 S. W. 115; Elkins v. State, 59 Tex. Cr. R. 157, 127 S. W. 833. The Elkins Case seems to be very much in point. That judgment was revérsed because of the testimony that the daughter of defendant had never instituted civil proceedings to recover the alleged burglarized property. See, also, Richards v. State, 59 Tex. Cr. R. 203, 127 S. W. 823.

Another bill of exceptions show that while defendant was testifying in his own behalf he was required, over objection, to testify at the instance of the state that he had not instituted legal proceedings or proceedings of any sort to recover the hog. This is the same question above discussed.

This perhaps is a sufficient discussion of the case in order to indicate to the trial judge the views we entertain in regard to how it should be tried. In disposing of these matters we have not taken up all the questions presented, because they are numerous, but a general outline of the questions suggested, we think, are sufficiently treated to indicate to the court how the ease should be tried.

The judgment is reversed, and the cause is remanded.

PRENDERGAST, P. J.

(dissenting in part).

I cannot agree to that part of the decision of the court holding that because appellant was not required to enter into a recognizance when the venue of his ease was changed from Roberts to Wheeler county, and that his subsequent appearance and trial twice in Wjieeler county after change of venue, did not give Wheeler county district court complete jurisdiction of him and his case.

1. I am thoroughly convinced that the holding of the lower court that the Wheeler county district court had jurisdiction was correct.

The Constitution, art. 3, § 45, expressly confers on the court power and authority to change the venue, to be exercised in such manner as shall be provided by law, and requires the Legislature to pass such legislation. The Legislature complied with this constitutional provision. C. C. P. arts. 626 to 641, inclusive.

The order of the judge of the Roberts county district court is full, clear, and explicit, changing the venue to Wheeler county, and, the order shows, was expressly agreed to be sent there by both the appellant and his attorneys at the time. Article 634, C. C. P., is the order of the judge granting a change of venue shall not be revised upon appeal unless the facts upon which the same was based are presented in a bill of exceptions prepared, signed, approved, and filed at the term of the court at which such order was made. There was no such bill in this case, and no pretense that there was. Besides, in obedience to the order changing the venue, appellant promptly and repeatedly appeared in the Wheeler county district court and stood at least one trial without in any way questioning the order changing the venue. If he had failed to appear, or the officers had discovered he had not entered into recognizance, a capias could have been issued by the Wheeler county district court, and he arrested and held for bail the same as if he had been indicted in that county in the first instance.

It is true that article 637, O. O. P., provides that when a change of venue is ordered, and the defendant is on bail, as he was in this instance, he shall be required forthwith to enter into recognizance, conditioned for his appearance before the court to which the change is ordered. But the fact that the judge did, or did not, do this, in no way, in my opinion, invalidates the order changing the venue. The order changing the venue, as stated above, is positive, clear, and explicit, and was agreed to by appellant and his attorneys, and was in no way conditioned upon his entering into recognizance. I would not be understood as intimating that the judge should not have required this. The judge should have complied with this statute. But what I am holding is that, even ii he did not, his failure did not affect the order changing the venue and thereby giving to the Wheeler county district court full and complete jurisdiction of the case. The only object in requiring this new recognizance is that defendant shall appear before the court to which the venue is changed, not that such recognizance is a prerequisite to the power and authority to change the venue. In this instance the defendant did, in obedience to the order changing the venue, duly and repeatedly appear before the court and stand his trial. This is all the recognizance could possibly have affected, or been good for. Suppose he had never been arrested, or made any kind of bail, or entered into any recognizance at all, that would not in any way have prevented the court having jurisdiction of his case; neither arrest nor bail, nor both, nor want of either, or both, can affect the jurisdiction of the court. Arrest and bail are simply the means of getting and keeping the defendant before the court to stand his trial. Everything requisite, so far as jurisdiction is concerned, has been as fully and completely accomplished as if he had been arrested many times and entered into any number of bail bonds or recognizances. In other words, the right and power to change the venue, and the order doing so, is in no way dependent upon the defendant entering 'into a new recognizance nor upon the judge so requiring at the time. It is merely an incident to the change of venue. To hold otherwise, it seems to me, would be holding the shadow superior to the substance.

The case of State v. Butler, 38 Tex. 560, decided by the old semicolon Supreme Gourt, and cited in the opinion as authority, is not in point and should not be construed as supporting the court’s opinion in this case. The report of the case clearly shows that the appellant therein was indicted in Smith county in 1861; that the district judge of that county, being disqualified to try the case because he had been of counsel for the defendant, in 1868 made an order transferring it to Rusk county, and the original papers were sent to Rusk county. In 1872 the district court of Rusk county ordered the papers returned to Smith county because the Rusk county district court had no jurisdiction, and the papers were so returned. The Constitution in force when the disqualified judge made the first order transferring the case from Smith to Rusk county, as well as every other Constitution of Texas, prohibited such disqualified judge from making any order in a case when he had been- of counsel. Hence his order was void, not merely voidable, and had no effect whatever. Constitution of 1845, art. 4, § 14; Amend. 1866, art 4, § 12; Constitution of 1869, art. 5, § 11; Constitution of 1876, art. 5, § 11; Garrett v. Gaines, 6 Tex. 447; Chambers v. Hodges, 23 Tex. 112; Gains v. Barr, 60 Tex. 676. So, the original transfer having been absolutely void, the Smith county district court was never deprived of jurisdiction, and the Rusk county district court never acquired any jurisdiction.

2. I do not agree, also, to that part of the opinion holding in effect that the state could not prove appellant had instituted no proceedings to recover the hog taken from his vendee and in effect from him, and for which he said he repaid his vendee the amount his vendee had paid him therefor. The opinion cites Morton v. State, 43 Tex. Cr. R. 536, 67 S. W. 115, and Elkins v. State, 59 Tex. Cr. R. 157, 127 S. W. 833. The Elkins Case, particularly cited as in point, in my opinion is clearly not in point. That case correctly holds that the fact that a third party has not sued another party for property, the right to which is in dispute between them, cannot be introduced against an accused who was neither of these parties nor the vendee nor vendor of either of them. Neither- is the Richards Case cited in any way in point, and certainly the Morton Case is not. The acts, or failure to act, of an accused, where the circumstances call for action on his part if incriminating, are always admissible against him.

3. I concur in the disposition of the case on some of the other points decided by the opinion of the court.


author: PRENDERGAST, P. J.

text:
    SHOCKLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Rape (§ 2) — Attempts—Assault with Intent.
    The offense of attempt to rape denounced by Pen. Code 1911, art. 1070, is distinct and separate from the offense of assault to commit rape denounced by article 1029.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 2; Dec. Dig. § 2.]
    2. Rape_ (§ 34) — Attempt—Indictment.
    An indictment alleging that accused made an assault upon a woman with the intent by force, threats, and fraud, without her consent, to commit rape upon her, by then and there attempting to ravish her, charges the offense of assault with intent to commit rape and not an attempt to commit -rape, notwithstanding the unnecessary allegations charging an attempt.
    [Ed. Note. — For other cases, see Rape, Cent. Dig. § 37-41; Dec. Dig. § 34.]
    3. Indictment and Infoemation (§ 119)— SURPLUSAGE.
    Where an indictment clearly charged the offense of assault with intent to commit rape, the inclusion of unnecessary allegations charging an attempt does not render it uncertain or subject to motion to quash as they can be disregarded as surplusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dec. Dig. § 119.]
    4. Indictment and Infoemation (§ 190)— Conviction — Indictments.
    Where the indictment only charged an assault with intent to commit rape, a conviction of the distinct offense of attempt to rape cannot stand, and the charge should submit only the offense denounced by the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 596-603; Dec. Dig. § 190.]
    Appeal from District' Court, Limestone County; H. B. Daviss, Judge.
    Robert Shockley was convicted, of an attempt to rape, and he appeals.
    Reversed and remanded.
    Downs & Webb and Tirey & Tirey, all of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was convicted of an attempt to rape, and his punishment fixed at ,two years in the penitentiary.

The indictment is in two counts. The first, after the necessary preliminary allegations, is that appellant “in and upon Estelle Shockley, a woman, did make an assault with the intent then and there by force, threats, and fraud, and without the consent of the said Estelle Shockley, to commit rape in and upon her (the said Estelle Shockley) by then and there attempting by force, threat, and fraud to rape, ravish, and have carnal knowledge of the said Estelle Shockley without her consent.” Likewise the second count is that appellant “did then and there unlawfully make and commit an assault in in and upon the person of Estelle Shockley, a woman, and did then and there by force, threats, and fraud attempt to rape, ravish, and have carnal knowledge of the said Estelle Shockley without her consent and against her will.”

It is the well-established law of this state that an attempt to commit rape provided for by article 1070, P. 0., is an entirely separate and distinct offense from an assault with intent to commit rape prescribed by article 1029, P. G. Fowler v. State, 148 S. W. 576, and cases cited.

We think it clear that both counts of this indictment unquestionably allege an assault with intent to commit rape and not an attempt to commit rape. See the form for an indictment for an assault with intent to commit rape given by Judge White in section 1050 of his Ann. !P. O., and Judge Willson’s form 478 (4th Ed.) p. 249. For the form of an indictment charging an- attempt to commit rape, see Judge White’s form in section 1117 in his Ann. P. C., and Judge Willson’s form 479, p. 250. While there are unnecessary allegations in the first count, we think it clearly charges an assault with intent to commit rape and not an attempt. It would, of course, have been better to have left out the unnecessary allegations in the first count, but including them in the count does not render it uncertain or bad so as to require that it be quashed. The court did not, therefore, err in overruling appellant’s motion to quash the indictment or either count thereof.

It is also the well-established law of this state and needs no citation of the authorities that no conviction for one offense can stand when there is no indictment therefor but when the indictment is for an entirely separate and distinct offense. In- this case the court, by his charge, submitted only the question of an attempt to rape and excluded by his charge an assault with intent to rape. This must necessarily result in a reversal of the judgment. Appellant raised and urged this point in various ways.

The appellant vigorously insists that the evidence is insufficient to sustain a verdict for an attempt to commit rape. As the case must be reversed, it would be improper for us to discuss the evidence, but the question of whether or not the evidence is sufficient to sustain a conviction is a question of law, and we are clearly of the opinion that the evidence in this case was sufficient to sustain in a conviction for an attempt to rape.

The appellant has many complaints to various portions of the charge of the court. One is that the court erred in stating that the indictment charged an attempt to rape. This, of course, was good under the indictment, as shown above. If the ease is tried again, under the indictment as it now stands, then of course the court must not submit the question of an attempt to rape at all, but instead must give the proper charge under an assault with intent to rape. If another indictment is found charging both an assault with intent to' rape and an attempt to rape, and the evidence justifies, of course both questions should be submitted to the jury.

As the case must be reversed, as shown above, it is unnecessary to pass upon any other question in the ease. For the error pointed out, the" judgment is reversed, and the cause remanded.


text:
    CASTELLANO v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    Cbiminal Law (§ 1182) — Appeal—Affirmance — -Error Not Presented.
    A judgment of conviction will be affirmed where there is no bill of exceptions or statement of facts in the record, and the motion for new trial raised no question which could be considered without a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3203-3214; Dec. Dig. § 1182.]
    Appeal from District Court, Bexar County ; W. S. Anderson, Judge.
    Castula Castellano was convicted of assault to murder, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   PRENDERGAST, P. J.

Appellant was indicted and convicted of an assault lo murder, and Ms punishment fixed at five years in the penitentiary.

There is neither a statement of facts nor Mils of exception in the record. There is nothing attempted to be raised by the motion for a new trial that can be considered in the absence of a statement of facts.

The judgment will be affirmed.


author: HARPER, J.

text:
    STARK v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    Infants (§ 20*) — Prosecution —- Sufficiency of Evidence.
    Evidence, in a prosecution for permitting a minor to play pool in a pool hall owned and managed by defendant, held to sustain a conviction.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. §§ 20, 282; Dec. Dig. § 20.*]
    Appeal from Mills County Court; S. H. Allen, Judge.
    Bert Stark was convicted of permitting a minor to play pool in a pool hall of which he was the owner and manager, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of permitting a minor to play pool in a pool hall of which he was the owner and manager.

That Lum White, a minor between 17 and 18 years of age, played pool in the hall is admitted by all the witnesses who testify in regard to the matter, including the defendant. The facts would show that appellant was the owner of the pool hall; that on the 16th day of April he made a trade with Smith & Spencer, agreeing to sell them the hall for $250; they desired to trade him an automobile for it, and he went to look at the automobile. Smith & Spencer ran the pool hall while he was gone. He decided not to take the automobile, and so informed Smith & Spencer on his return. They then agreed to give him several notes, aggregating $250, but never did do so, and on May 8th appellant sold the hall to another party. Lum White played in the hall after appellant had seen the automobile and declined to take it, and while Spencer & Smith were trying to make the notes. So. it may be said Smith & Spencer never became the owners of the pool hall, although the evidence would show that they ran it during the time appellant was gone to look at the automobile, and if the playing had taken place during this time, we would be inclined to hold that the evidence failed to show knowledge or guilty intent on the part of appellant. But the evidence discloses that the minor played in the hall after appellant returned, and when neither Smith nor Spencer were in the hall, and while appellant was in the hall, in control thereof, and that he “rung up” the balls for the boys to play, and, if the state’s testimony is true, accepted the pay from the minor for the games.

The case was tried in the court below without a jury, and the court finds him guilty, and under such a state of facts we will not disturb the finding of the trial court.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. Assault and Battery (§ 74) — Aggravated Assault — Indictment.
    An indictment, charging that accused, who was then and there an adult male, on August 4, 1912, and anterior to the presentment of the indictment, committed an aggravated assault upon a female named, was not open to the objection that it did not allege that accused was an adult male on the 4th of August prior to the return of the indictment.
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 103, 106, 108; Dee. Dig. § 74.]
    2. Criminal Law (§ 1099) — Appeal—Statement of Facts — Time for Filing.
    In a criminal case in the county court, the statement of facts must be filed within 20 days in order to be considered, and hence a statement filed 22 days after adjournment could not be considered.
    [Ed. Note. — For other cases, se'- Criminal Law, Cent. Dig. §§ 2866-2880; ■ Dec. Dig. § 1099.]
    Appeal from Denton County Court; S. H. Hoskins, Judge.
    Rufus Wilson was convicted of aggravated assault, and he appeals.
    Affirmed.
    T. G. Milliken, R. H. Hopkins, Jr., and Owsley & Owsley, all of Denton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $300.

The charging part of the indictment is as follows: “That Rufus Wilson, who was then and there an adult male on or about the 4th day of August, one thousand, nine hundred and twelve, and anterior to the presentment of this indictment, in the county of Denton and state of Texas, did then and there unlawfully commit an aggravated assault in and upon the person of one Lottie McCormick, the said Lottie McCormick then and there being a female, against the peace and dignity of the state.” The indictment is attacked because it does not allege that appellant was an adult male on the 4th of August prior to the return of the indictment, or set out any other ground of aggravated assault. We do not believe there is any merit in this contention. The indictment as copied above does allege that appellant was then and there an adult male on or about the 4th day of August, 1912, and anterior to the presentment of this indictment, and did then and there unlawfully commit an aggravated assault, etc. We are of opinion there is no such merit in the motion to quash to entitle it to be sustained.

The statement of facts cannot be considered, being filed 22 days after adjournment of court. This being a county court case, the statement of facts must be filed within 20 days in order to be considered. Without the statement of facts the other matters'cannot be intelligently revised.

The judgment is affirmed.


author: DAYIDSON, J.

text:
    LATHAM v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. Intoxicating- Liquobs (§ 238) — Prosecutions — Question bob Juey — Sale.
    Is is usually a question for the jury to decide whether an accused sold intoxicating liquors or not, but the facts must show a sale.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 324-330; Dec. Dig. § 238.*]
    2. Intoxicating Liquobs (§ 146) — Offenses —Sale—Puechase bob Another.
    Where defendant received $2 from prosecuting witness and said he thought he could “rustle” him a quart of whisky, and obtained the whisky from a third person on payment of the $2 as an accommodation to and as agent of the prosecuting witness, he was not guilty of a sale.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. §§ 159, 160, 163; Dec. Dig. § 146.]
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    George Latham was convicted of violating the local option law, and he appeals.
    !Be-versed and remanded.
    J. M. Sanders and Carter & Walker, all of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAYIDSON, J.

Appellant was convicted of violating the local option law in Shelby county, and given one year in the penitentiary.

The prosecution relied upon the testimony of the witness Crockett. His testimony is to the effect and in substance that on a certain night he was drinking and, as he said, half drunk; that he went to a certain negro woman’s house where a lot of men were congregated and wanted whisky. He first offered $1.50 with which to get the whisky. No reply was made to this. He finally said he would give $2, and asked appellant if he had some whisky or could get him some. Appellant told him he had no whisky, but he thought he “could rustle” him a quart. Appellant took the $2 and left the house. After being absent awhile, he returned with the quart of whisky or alcohol. The witness says appellant said he would “rustle him” a quart, but never said he would sell it to him. He says further that he had some indistinct recollection of something being said about the price of the whisky, but could not remember; that he did remember he said something; the only thing he could remember was that appellant gave him a quart of whisky for the $2 he had given him.; did not recollect whether appellant told him at the time he got the whisky from Alex Maxey and that was what he charged for it, though he might have said so. “I just can’t recollect and remember. I paid him $2 before he went for it.” This ⅛ the substance of the state’s case.

Jenkins testified he was at the negro woman’s house on the occasion mentioned, and heard Crockett, the state’s witness, ask appellant to sell him a bottle of whisky, and he heard appellant deny having any whisky, but told Crockeit at the time he would get the whisky from Alex Maxey. Crockett first wanted to give $1.50, and appellant said he could not get it for $1.50, but thought he could get it for $2. He was gone quite a length of time and returned with the whis-ky. That during the conversation between Crockett and appellant they were talking about Alex Maxey; at least, that was what he understood.

Cartwright testified he remembered the occasion mentioned in which appellant is charged with selling Crockett whisky at the negro woman Watts’ house. He was there on the occasion and saw Alex Maxey and appellant. That this witness and Jack Wortell were together, and there were other people in the house. This witness, however, says he did not go in the house; he was just outside. Appellant and Alex Maxey were outside of the house; appellant came out there; Alex Maxey was already there. Witness says he was standing there at the corner of the fence; he did not know whether appellant and Alex Maxey saw him or not; that he heard appellant tell Alex Maxey that he wanted a bottle of whisky, and heard Alex Maxey say it was worth $2. The trade was then consummated, and appellant took the bottle of whisky and went in the house with it. It was at night, and he did not see what was in the bottle, but from all the circumstances this witness makes it clear it was the same bottle that appellant got from Maxey and carried in the house to Crockett. He says he was down there “after a woman, just like fellows will do some time after women.” He says there was no woman out there where he was, but one was liable to come out there. “I had an appointment to meet one there. The woman was married, and I don’t want to tell about it. I ¡was about 15 steps from them I guess.” While he was out there, defendant came out and got the bottle of whisky. Afterwards he got with the witness Crockett and drank some of the whisky. He also testified that he had been out there something like 20 or SO minutes and the woman had not yet come. He says: “I reckon I got there ahead of time, but she did come. I know where Alex Maxey is ; he left here going to the pen.” It was agreed by counsel that Maxey, the party from whom appellant is said to have gotten the whisky, was convicted of selling intoxicating liquors in Shelby county and went to the penitentiary for a term of one year, and that he is now at the time of this trial in the penitentiary. It was further agreed that he was not in the penitentiary for this particular sale, but for the sale of other whisky.

The defendant testified himself that he was down at the negro woman’s house when Crockett, the state’s witness, came there and asked about whisky, and asked appellant if he had any, and was answered-in the negative. He says Crockett got 'up and rattled some money, and Jack Wortell came and holloed, “hello,” and exchanged the usual greetings of the evening. He testified he was informed that Alex Maxey had whisky, and that it was for sale or could be obtained. This was communicated to Crockett, and further that Maxey would not take less than $2 for his whisky. Witnesses seem to differ as to whether it was whisky or alcohol. He told Crockett that Maxey had whisky, and if he wanted to pay $2 for it he could get it. He then gave appellant $2, and he went and got the whisky and brought it back and gave it to Crockett.

There are errors assigned on the charge as well as allegations that the evidence is not sufficient. The court, among other things, charged the jury the only issue or question which remained for their finding and determination was whether defendant did sell intoxicating liquor in said county on or about the 21st day of January, 1912; and, further, that if defendant agreed to sell Crockett a quart of intoxicating liquors for $2, and took Crockett’s money and delivered a quart of intoxicating liquors to Crockett, it would make no difference from whom defendant got the intoxicating liquors and what he paid for same. Under the facts, we are of the opinion the objections to these charges are well taken.

It is a question usually for the jury to decide whether the accused sold intoxicating liquor or not; still the facts must show a sale. No witness swears appellant sold, and under the state of facts here shown we are of opinion the court was in error in giving these charges. There was nothing as we understand to justify the court in charging if defendant agreed to sell Crockett a quart of whisky for $2, and took the money and delivered the quart of whisky to Crockett, that it would make no difference from whom the defendant got it or what he paid for it.

As we understand the evidence, there was no 'agreement by defendant to sell the whisky. On the contrary, the state of facts precludes the idea that he agreed to sell .Crockett whisky, and shows that he got the whisky from Maxey. Under this state of facts, it would make a difference from whom defendant got the intoxicating liquors, and what he paid for it. If he got the whisky as he testified, and as other witnesses testified, from Maxey, and paid $2 for it as an accommodation to Crockett, and as agent of Crockett, then he would not be guilty, and it would make a difference in the result and conclusion to be attained. It is not a violation of the local option law to purchase whisky; at least, the Legislature has not yet so declared; nor is it an offense for the purchaser to buy through an agent. The party to be convicted must be the seller.

The judgment is reversed, and the cause is remanded.


text:
    ROBINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. Burglary (§ 18) — Requisites of Indictment-Elements of Offense Intended.
    Where burglary is charged to have been committed with the intent to commit some specific crime, the indictment, in addition to alleging the burglary, must also allege each element of the crime intended to be committed.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 31, 32, 36; Dec. Dig. § 18.]
    2. Criminal Law (§ 596) — Continuance-Cumulative Evidence.
    The rule that a continuance will not be granted for the production of cumulative evidence does not apply to the first application for continuance, but only to a subsequent application.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    3. Criminal Law (§ 815) — Charge—Theory of Defense.
    Where the theory and evidence of defendant, in a prosecution for burglary, was to the effect that he did not enter the house or steal the pistol, but bought it from the alleged owner, the ignoring of such theory in the charge was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. §
    4. Criminal Law (§ 770) — Affirmative Charge — Theory of Defense.
    A defendant is entitled to a distinct and affirmative charge on any theory that may be presented by the evidence which tends to exonerate him from the charge, or about which the jury may have a reasonable doubt as to his guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    Appeal from District Court, Caldwell County ; Frank S. Roberts, Judge.
    Glenn Robinson was convicted of a daytime burglary of a private residence, and he appeals.
    Reversed and remanded.

      Jno. N. Gambrell, of Lockhart, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

The indictment contains two counts, the first charging burglary of a private residence at night; the second count charges a daytime burglary of a private residence. The conviction occurred under the second count.

Without going into the question as to whether or not the second count was vicious in undertaking to charge a daytime burglary of a private residence, because there is no such offense, or whether that part of the indictment should be treated as surplusage, we find an objection urged against the indictment that seems to be fatal. The burglary was charged with intent to commit theft. The language is “with the fraudulent intent of him, the said Glenn Robinson, to take from said house corporeal personal property therein being and belonging to the said Sylvester Styles, without his consent, and with the intent then and there to deprive the said Sylvester Styles, the owner of said property, of the value thereof, and to appropriate the same to the use and benefit of him, the said. Glenn Robinson.” Among other things, it is contended that this indictment does not charge the property was taken from the possession of Styles. It does charge it- was taken without his consent, and with the intent to deprive Styles, the owner of the property, of the value thereof, and to appropriate the same to the use and benefit of the defendant, but it does not charge it was taken from his possession. If this had been an indictment charging theft it would have been necessary to charge that the property was taken from the possession of the alleged owner.

It is a familiar rule laid down by the authorities that where the burglary is charged to have been committed with the intent to commit some specific crime — and it muét be a felony or theft — the allegations of the crime intended to be committed, or actually committed, must be charged in all of its elements. The authorities are quite numerous, and many of them will be found collated in Mr. Branch’s work on Criminal Law, § 155. The general proposition may be stated that the indictment, in addition to alleging the burglary, must also allege each element of theft or the felony intended to be committed. State v. Williams, 41 Tex. 101; Wilburn v. State, 41 Tex. 237; Brown v. State, 7 Tex. App. 622; Rodriguez v. State, 12 Tex. App. 552; Reed v. State, 14 Tex. App. 662; Treadwell v. State, 16 Tex. App. 643. We call special attention to the cases of Reed and Treadwell, supra. It is deemed unnecessary to follow this further. The indictment is fatally defective in not alleging the elements of the intended crime.

Another question was raised and seriously urged, which we believe to be well taken; that is, the court refused to continue the case on account of absent witnesses. The diligence was ample, and the testimony was certainly very material. The court in qualifying the bill seems to have overruled the application mainly on the theory that it was cumulative. This was the first application. The rule of cumulative evidence does not apply. It is only on second or subsequent applications that that rule applies. It is not deemed necessary to discuss this further as it may not arise upon another trial.

The defendant had a theory in this ease, as well as the state, and urged it by testimony to the effect that he did not enter the house and did not steal the pistol; that he bought the pistol from the alleged owner; that he first traded him a horse for it, and, the alleged owner becoming dissatisfied, he traded back, and subsequently bought the pistol and took possession of it and had it. There was testimony introduced along this line. The court ignored this in his charge. This was error.

The court charged on circumstantial evidence, and gave a general definition of alibi. Appellant requested instructions, among other things, as follows: “But if you have a reasonable doubt from the evidence, either that the defendant as alleged entered the private residence of the said Styles at night by force, or that he entered said residence in any manner, at any time, either day or night, and remained concealed therein until night, with the intent in either case of committing the crime of theft, or that he took from said house, having so entered, the pistol offered in evidence, or if you believe from the evidence that said pistol at the time was the property of defendant, or if you have a reasonable doubt from the evidence that the pistol was the property of the said Styles, in either event you will find the defendant not guilty.” This was asked to be applied to the first count. In regard to the second count, he asked this charge: “But if you have a reasonable doubt that the said Styles was the owner of said pistol, and in possession of the same at the time of the alleged burglary, or if you have a reasonable doubt that the defendant in the daytime, with felonious intent, by breaking, entered said house- and took said pistol therefrom, in either event you will acquit the defendant on said count.” These charges were refused, and exceptions properly reserved. This matter is also raised in the motion for new trial, both in refusing to give the charges requested, and in the court failing to give proper charges with reference to appellant’s ownership of the property. It is unnecessary to-discuss these matters. A defendant is entitled to a distinct and affirmative charge on any theory that may be presented by the evidence which tends to exonerate him from the charge, or about which the jury might have a reasonable doubt of his guilt.

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


text:
    HUMPHRIES v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. CRIMINAL Law (§ 1090) — Appeal—Bills op Exception — Necessity.
    Assignments of error in the motion for new trial as to the admissibility of evidence cannot be reviewed on a criminal appeal, in absence of bills of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§ 1099) — Appeal—Statement op Facts — Signing and Approval.
    An alleged “statement of facts,” which was not signed or approved by the trial judge, cannot be considered for any purpose and will be stricken from the record.
    ,[Ed. Note. — For other cases, see Criminal Law, , Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    A. Humphries was convicted of vagrancy, and appeals.
    Affirmed.
    Nicholson & Blankenship and Mathis & Kay, all of Wichita Falls, for appellant. G. E. Lane, Asst. Atty. Gen., for the State.

      For otter oases see s'ame topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of being a vagrant, in that he habitually associated with prostitutes and loitered habitually in and around houses of prostitution.

There are a number of complaints in the motion for a new trial in regard to the admissibility of certain testimony, but as no bills of exception thereto were reserved —at least none being in the record — we cannot review these questions.

There is a paper in the record styled “statement of facts,” but same was never signed nor approved by the judge trying the case, and therefore cannot be considered for any purpose. The motion of the Assistant Attorney General to strike it from the record is sustained. However, if we could consider same, taking into consideration the two special charges given at appellant’s request, no error would be presented.

The judgment is affirmed.


text:
    BARROW v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1913.)
    1. Embezzlement (§ 48*) — Conversion by Bailee — Instruction as to Punishment.
    In a prosecution for the conversion of a cow in possession of accused, an instruction defining theft and stating the punishment therefor was proper, where the law as to conversion by bailee provided that a person guilty of that offense should be punished in the same manner as if guilty of theft.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 72-75; Dec. Dig. § 48.*]
    2. Embezzlement (§ 16*) — Conversion by Bailee — What Constitutes.
    Where defendant was in possession of a cow belonging to another under an agreement to borrow the cow, and fraudulently converted it to his own use without the owner’s consent and with intent to deprive the owner of the value thereof, there was a conversion.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 17, 18, 21; Dec. Dig. § 16.*]
    3. Criminal Law (§ 782*) — Trial — Wei&ht of Evidence.
    It is the peculiar province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony, and hence an instruction that the jury could not “weigh” the testimony was improper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1847, 1849, 1851, 1852,1877, 1878, 1880-1882, 1906, 1907, 1909-1911, 1960, 1966, 1967; Dec. Dig. § 782.*]
    4. Criminal Law (§ 814*) — 'Trial—Instructions— Conformity to Issues.
    Where there was no testimony raising the issue that defendant in a prosecution for conversion might have thought he had authority or permission of the owner to sell the cow in question, the court did not err in refusing a requested charge thereon.
    L-ftd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. s 814.*]
    5. Criminal Law (§ 784*) — Trial—Instructions— Circumstantial Evidence.
    In a prosecution for the conversion of a cow in possession of accused, where the animal converted was positively identified by the state, and accused merely claimed that the state’s witnesses _ were mistaken therein, and that issue was fairly submitted and found against defendant, a failure to charge on circumstantial evidence was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.*]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Jim Barrow was convicted of converting to his own use a cow in his possession, the property of another, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense of converting to his own use a cow in his possession, the property of D. S. Donald, and his punishment assessed at two years’ confinement in the penitentiary.

No bills of exception were reserved in regard to the admission of testimony, so the only question before us is: Did the court err in the charge as given, or in refusing the special charges requested?

The court, in his charge, defined “theft” and stated the punishment for theft. This was not improper, as the law as to the commission of the offense of conversion by bailee provides that a person guilty of that offense shall be punished in the same manner as if he had been guilty of theft, and it was proper to state the punishment fixed by law for a violation of the law of theft.

It was not necessary to define the word “conversion,” further than it was defined in the charge. The court instructed the jury: “Now if you find and believe from the evidence beyond a reasonable doubt that prior to the time of the filing of the indictment herein and about the time alleged therein that the defendant, Jim Barrow, was then and there in possession of a certain cow belonging to D. S. Donald under and by virtue of an agreement of borrowing said cow with or from the said D. S. Donald, and that he did then and there fraudulently convert said animal to his own use, without the consent of D. S. Donald, the owner thereof, and that such conversion by the defendant was with the intent to deprive the said D. S. Donald, the owner thereof, of the value of the same, then you will find the defendant guilty and assess his punishment at confinement in the penitentiary for any term of years you may see fit, not less than two nor more than four.”

The special instruction that the jury could not “weigh” the testimony should not have been given. This is the peculiar province of the jury, for the law makes them the judges of the credibility of the witnesses and the weight to be given their testimony.

There was no testimony raising the issue that appellant may have thought he had the authority or permission of Mr. Donald to sell the cow in question; consequently the court did not err in refusing the special charge requested on that issue.

The only other complaint in the motion we deem it necessary to discuss is that the court erred in failing to charge on circumstantial evidence. Appellant approached Mr. Donald to borrow some cows to milk. Mr. Donald agreed to loan them to him, and told appellant the two cows he could have, and told him to go to the pasture and get them. Appellant admits this, and admits he got the cows, but says the cow he sold was not one of the cows thus secured by him. Appellant is seen in possession of two cows which are identified as the Donald cows, and the two cows Donald says he loaned him. Some time after getting the two cows from Mr. Donald, appellant sells a cow to Mr. Guyse for $42.50. This cow sold by appellant to Guyse is positively identified by Mr. Donald as one of the cows loaned to appellant. This cow was also positively identified as the Donald cow by George Lynch, Ruby Lynch, James Waide, and others. Appellant admits selling this cow to Guyse; he contending only that the witnesses were mistaken as to the identity of the cow, he saying the cow he sold to Guyse was a cow that he had purchased from Mr. Crowder. This issue was fairly submitted to the jury by the court in his charge, and the jury finds against appellant’s contention. Under such circumstances, we do not think the failure to- charge on circumstantial evidence would present any error.

The judgment is affirmed.