text:
    HASSELL v. STATE.
    (No. 4161.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Homicide <@=>247 — Instructions — Self-Defense.
    Where the defendant claimed that he had shot deceased, his landlord, while he was moving cotton which the defendant claimed as his own, the jury should have been required to find beyond a reasonable doubt that defendant had turned it over to the deceased before his right of defending it would be taken away from him, and told that he would have no right to defend it if they found from the evidence beyond a reasonable doubt that he had turned his interest therein over to the deceased.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 512; Dec. Dig. <@¿3247.]
    2. Homicide @3=124^Self-Defense— Right —Statute.
    Branch’s Ann. Pen. Code, art. 1107, providing that one defending his property must resort to all other means then at command to prevent injury to it, before killing the aggressor, does not refer to a right to sue the aggressor.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 184-188; Dec. Dig. @=124.]
    3. Homicide <@=33303 — Defense oe Property— Instructions.
    Where such provision applies to the circumstances of a homicide, the court should so instruct the jury that they will know that the means referred to were such as were then at defendant’s command.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 635; Dec. Dig. <@333303.]
    4. Homicide @3=124 — Defense oe Property.
    Where a tenant had not previously turned cotton over to the deceased, his landlord, the fact that deceased had gone on the rented premises and hitched his team to a wagon in which defendant had placed the cotton would not have ousted defendant’s possession thereof, and the deceased in the act of-taking it from the premises would be acting unlawfully.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 184-188; Dec. Dig. @3=124.]
    5. Homicide @=102 — Defense of Property-Limitation of Right — Statute.
    Branch’s Ann. Pen. Code, art. 1107, providing that one defending his property must resort to all' other means then at command to prevent an injury before killing the wrongdoer, is a restriction within the legislative power.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 132; Dec. Dig. <@=33102.]
    6. Homicide <@=>109 — Self-Defense—Right.
    A tenant who had voluntarily turned the possession of a crop of cotton over to deceased, his landlord, when the landlord came to take it away, would only have the right to defend his person against an attack, or apparent effort to take his life, or inflict serious bodily harm.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 138, 139; Dec. Dig. <@333109.]
    7. Homicide <@3=3309(6) — Instructions — Degree of Offense — Inclusion of All Facts.
    In a trial for homicide growing out of the relation of defendant and his father and brothers as tenants of the deceased, and immediately out of deceased’s attempt to take away cotton which defendant claimed to own, an instruction on what would be adequate cause to reduce the offense to manslaughter, directing the jury to look to all the facts and circumstances which had occurred between deceased and the “defendant,” excluding- what had taken place between defendant’s father and deceased, was erroneous, as not embracing all the facts and circumstances.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 655; Dec. Dig. <@¿3.309(6).]
    8. Homicide <@3=37 — Degree—Murder.
    Where the defendant’s mind was not rendered incapable of cool reflection, he would be guilty of murder, if the jury found that deceased was guilty of no act at the time which led defendant to believe that his life was in danger.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 12; Dec. Dig. <@3=7.]
    9. Homicide <@=3300(14) — Instruction—Self-Defense — Inclusion of All Facts.
    An instruction on self-defense only authorizing the jury to consider the threats against defendant’s life, and all the acts and words of the deceased, and whatever had gone before between the deceased- and the defendant, where the record showed threats not only against the life of defendant, but against the life of his father, and evidence of acts and words between deceased and defendant’s father to his knowledge leading one to believe that the deceased was a dangerous man in a dangerous mood, placed an improper limitation on the facts in issue.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 629; Dee. Dig. @=3300(14).]
    10. Homicide @=3142(5) — Indictment — Mistake in Middle Initial — Effect.
    That the indictment charged the killing of E. B1. H., while the evidence showed that the name of the deceased was E. J. H., and notwithstanding there was án E. B. I-I. shown to be alive, was no ground for directing an acquittal, where the defendant was not misled.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 254; Dee. Dig. @3=142(5).]
    11. Criminal Law @3=438 — Evidence — Photograph.
    A photograph of the scene of the homicide, taken a year after the difficulty, on a showing that the conditions were practically the same then as at the time of the homicide, was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § S93; Dec. Dig. @=438.]
    Appeal from District Court, Navarro County; I-I. B. Daviss1, Judge.
    W. R. Hassell was convicted of murder, and he appeals.
    Reversed, and cause remanded.
    Richard Mays and Callicutt & Johnson, all of Corsicana, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder and his1 punishment assessed at 15 years’ confinement in the state penitentiary.

The record is quite voluminous; appellant’s motion for a new trial alone embracing 68 pages of the transcript, presenting numerous questions for review, and many of the same questions from different viewpoints. We have carefully read the entire transcript and the briefs of counsel for the state and appellant. Neither of the briefs take up the various grounds presented, but rather discuss several grounds under one assignment, and we shall also do so in disposing of the case.

The main contentions of the appellant in his brief relate to claimed errors in the court’s charge presenting the issues of manslaughter and self-defense, he contending that the charge does not present those issues as applicable to the facts in evidence.

In 1913, E. J. Holcomb owned a farm in Navarro county. J. P. Hassell was a widower, the father of three boys; Wi R. Hassell, appellant, a married man; Hugo Hassell, a 14 year old boy; and Ben Hassell, a young man about 2,3 years old. In the fall of 1913, J. P. Hassell, referred to in tlie record as the “old man,” and his. grown unmarried son, Ben, were working for deceased, Holcomb, on his farm; appellant and Hugo being at that time in Oklahoma. The old man and Ben and Holcomb made a tentative trade for the rental of 100 acres of land for the year 1914, if appellant and Hugo would come from Oklahoma, so they could all live together. Appellant and Hugo returned to Texas, and the 100 acres of land was rented from deceased. The state’s contention is that the land was rented to appellant and Ben Hassell alone, while the contention of appellant is that the rental contract was with J. P. Hassell for the use of himself and all three of his sons. They all moved on the Holcomb farm, and lived together; Holcomb furnishing a lot of household articles and other things to appellant, for which he and Ben gave their note for $108. Ben purchased a horse and buggy from Holcomb, agreeing to give $185 therefor, and he and appellant gave a joint note to Holcomb for $300, securing it by a mortgage on the crop. Neither J. P. Hassell nor Hugo signed either the note or the mortgage. About March 1st the landlord hired Ben Hassell to work for him, and he was no longer interested in the crop or the rental contract; the landlord reducing the land from 100 acres to 70 acres. All of this was planted in cotton, except about one acre planted in oats, and this acre was planted in cotton when the oats were harvested. The land was worked by appellant, J. P. and Hugo Hassell, and no friction or trouble arose until some nine bales of the cotton had been picked and ginned. The groceries during the year were purchased from A. F. Toal, and were charged to W. B. Hassell alone, secured by the landlord. This debt amounted to about $300.

The landlord, Holcomb, purchased a span of mules from Berry & Martin, giving his note for $330, and securing it by giving a mortgage on the mules, also giving to Berry & Martin as collateral the $300 note of appellant and Ben Hassell.

As the crop was gathered, it was hauled to the gin and ginned and weighed in the name of J. P. Hassell and sons; the receipts for the cottpn being placed in the Eirst State Bank of Dawson. The Hassells ail testify the cotton was placed in the bank to await an advance in the price of cotton, that being the year the price of cotton was very low. Holcomb is dead, and we can get only his contention by the circumstances. The bankers say as fast as the receipts were placed in the bank they were pinned to the $330 note of Holcomb due to Berry & Martin, and to which note was attached the $300 note of W. B. and Ben Hassell.

Toal, the merchant furnishing the supplies, approached the Hassells and offered 10 cents a pound for the cotton, if applied to the debt due him. To this proposition the Hassells gave their assent, if the landlord would agree to it; but the landlord did not agree. He told Toal he would let him have one bale of the cotton if Berry, the holder of the $330 note, would consent. Berry refused to consent, and none of the cotton was applied to the debt’due Toal.

J. P. Hassell and Hugo Hassell each asserted a claim to one-third of the cotton, but were willing for it to be applied to the payment of the debt due Toal for supplies, but were unwilling for it to be applied to the $300 note of W. B. and Ben Hassell given to Holcomb for the horse and buggy purchased by Ben Hassell, and other things purchased by W. B. Hassell. Toal testifies, when he approached W. B. Hassell about his debt, he said he had turned the cotton crop over to the landlord to be applied to his debts, and for him to see Holcomb. This Wi B. Hassell denies, but says he told Toal he was willing for the baled and ginned cotton to be sold to him at 10 cents a pound to pay his (Toal’s) debt, and to see the landlord in regard thereto. If J. P. Hassell and Hugo Hassell owned any part of the crop, there is no evidence that they or either of them ever authorized the landlord to sell their part of the crop.

The most pleasant relations appear to have existed until the ginning of the ninth bale of cotton. The trouble then arose over the seed. J. P. Hassell had hauled this bale of cotton to the gin, and he and the landlord each wanted the seed out of this bale of cotton. They had words, and this apparently is the first source of trouble. The money received for this seed was finally divided between the landlord and J. P. Hassell by agreement, but the bitterness engendered continued to exist. The next cause of friction seems to have been brought about by Holcomb going to the field'and hauling out some 1,200 pounds of seed cotton and selling it. The Hassells were then informed that Holcomb had also sold the 9 bales of cotton placed in the bank. They went to the bank, and, when they ascertained that Holcomb had sold the 9 bales of cotton for 7% cents per pound and applied the money to the note due by Ben Hassell and appellant, J. P. Hassell sought the advice of counsel, and Holcomb was notified that he must settle with J. P. Hassell and Hugo Hassell for their interest in the cotton or they would bring suit. All the threats and evidences of ill will and unkind words up to this time in the record are shown to have been uttered by J. P. Has-sell, the father, and Holcomb, the landlord. W. B. Hassell, appellant, is not shown to have made any unkind remarks, but was investigating the sale of the 9 bales of cotton, the 1,200 pounds of seed cotton, and the disposition of the money.

A portion of another bale of cotton had been picked in the Hassell field, and on the morning of the fatal difficulty Holcomb had gone to the field and was taking the cotton off the rented premises without saying anything to either of the Hassells, when appellant met him at the gate and the shooting occurred.

The state contends that appéllant had turned his cotton crop over to deceased, and therefore deceased had a right to haul off the cotton and sell it, and that appellant could not claim to have acted in defense of his property. Appellant’s contention is that he had not turned over his cotton crop to deceased; that deceased was taking it, selling it and appropriating the proceeds arising from such sales without warrant or authority and without accounting to him for the proceeds. Appellant complains of the court’s charge, contending that it required him to prove that he had not turned the cotton over to the landlord before he would have the right to act in defense of his property. Paragraph 15 of the court’s charge is subject to this construction, for it requires the jury to find as an affirmative fact that appellant was the owner of a portion of the cotton and entitled to possession before he would be authorized to act in defense of his property. The appellant, instead of being required to prove this as an affirmative fact, is entitled to the reasonable doubt on this issue as well as all other issues in the case.

It is shown beyond doubt that the cot•ton in question was raised by appellant, his father, and brother Hugo. This gave him possession in law, unless he had turned the cotton over to the landlord; there being some evidence that he had done so. But on this issue the jury ought to have been required to find that he had done so beyond a reasonable doubt before his right of defense of property would be taken from him. This issue being in the case, it ought to have been correctly presented to the jury, and the jury told he would not have the right to defend his property if they found from the evidence beyond a reasonable doubt that appellant had turned his interest in the cotton over to deceased to dispose of to pay his (appellant’s) debts. On the other hand, they should have been told if they found appellant had not turned the cotton crop over to deceased, or they had a reasonable doubt as to whether he had done so or not, he would have the right to protect his possession of this property.

Our statute provides (article 1107) that one .under such circumstances must resort to all other means then at command to prevent the injury before resorting to the extreme of killing the assailant. However, this does not refer to a right to go and sue the aggressor, and the court should so have instructed the jury that they would have known that means referred to were such as were then at his1 command. If appellant had not theretofore turned his cotton over to deceased, the fact that deceased had gone on rented premises and hitched his team to the wagon in which appellant had placed the cotton would not have ousted appellant’s possession of the cotton so long as it was on the rented premises. The deceased was in the act of driving the cotton off the rented premises and in law would be in the very act of committing the unlawful deed, if he had not been given possession by appellant theretofore.

The contention of appellant that the Legislature had no right to place such' restriction on the right to defend one’s property cannot be sustained. To our minds it is a proper restriction, and one ought to be required to use all means at his command to prevent injury to his property or possession thereof before taking human life. In many jurisdictions this limitation is placed around the right to defend even one’s own life, and, while that is not the rule in this state, yet it is the rule in regard to defense of property, and a salutary one, we think. See citation of authorities under section 1919, art. 1107, Branch’s Ann. Pen. Code.

On another trial the court will so instruct the jury that they will know that appellant had the right to defend his possession of his property under the provisions of article 1107, unless they find beyond a reasonable doubt that he had theretofore surrendered possession of the cotton crop to deceased; but, if they do find that possession of the crop had been voluntarily turned over to deceased, appellant would only have the right to defend. his person against an attack or apparent effort to take his life or inflict on his person serious bodily injury.

Appellant also complains of the tenth paragraph of the court’s charge in defining what would be adequate cause to reduce the offense to manslaughter. The facts appellant relies on to reduce the offense to manslaughter are that deceased had, without authority, sold 9 bales of cotton, in which he, or his father, brother, and himself owned a half interest, and applied the proceeds to his own use and had sold the cotton for 7% cents per pound when appellant had been offered 10 cents per pound by Toal; that deceased had taken 1,200-pounds of seed cotton, without the consent of appellant, or his father and brother, and mixing it with some of his own, sold it, and was in the act of again taking about 1,000 or 1,200 pounds of seed cotton without the consent of appellant, his father, or brother Hugo; that deceased had made threats, was going armed; and that he had been informed that deceased was going to force them to leave, etc. Appellant’s contention is that, if the jury found that state of facts to exist, even if appellant saw deceased drive into the field after this last cotton, if the jury believed it aroused in him such a degree of anger, rage, or resentment as to render him incapable of cool reflection, and that under such circumstances he borrowed a gun and, when deceased was fixing to drive out of the field with the cotton, he shot him, when deceased was attempting to do him no personal injury, he would be guilty of no higher grade of offense than manslaughter. He complains that the court in his charge, having undertaken to state a part of the facts, should have embraced all of the facts and circumstances, and in this contention he seems to be sustained by our decisions. Wheeler v. State, 54 Tex. Cr. R. 51, 111 S. W. 1022; Gant v. State, 55 Tex. Cr. R. 284, 116 S. W. 801; Barbee v. State, 58 Tex. Cr. R. 129, 124 S. W. 961; Munos v. State, 58 Tex. Cr. R. 150, 124 S. W. 941. It is true that the charge instructs the jury that they might look to all the facts and circumstances that had occurred between deceased and appellant, and as a, general rule this would be sufficient to direct the minds of the jury properly, yet in this case very nearly all the prior incidents and dis=-cussions about the cotton had taken place between appellant’s father and deceased, and this charge would esclude the jury from considering such matters, when, under the peculiar circumstances of this case, they should have been authorized to consider such facts and incidents, because the father and deceased had been dealing with what it was considered was the joint property of appellant and his father, and appellant apprised of all these matters, and such matters might have an effect on the condition of his mind at the time.

Of course, if appellant’s mind was not rendered incapable of cool reflection, he would be guilty of murder if the jury found that deceased was guilty of no act at the time which led appellant to believe his life was in danger, and under the state’s evidence such finding would be sustained, yet the appellant has the right to have his contention faiiiy given in charge to the jury, that the jury may determine which contention is the correct one.

The same criticism is leveled at the charge on self-defense; that the charge places an improper limitation, in that it only authorizes the jury to consider the threats against appellant’s life, and that the charge authorized the jury to alone consider “all the acts and words of Holcomb, deceased, and view all and whatever had gone before between defendant and the said Holcomb,” etc., when the record shows threats against not only the life of appellant, but also threats against the life of his father, and discloses that the “acts and words” which would irritate and alarm one and lead one to believe deceased was a dangerous man and in a dangerous mood had occurred between deceased and appellant’s father, all of which conduct appellant had 'been made aware of. The circumstances are so entwined that we think appellant’s contention is correct in claiming that the charge was too restrictive, and perhaps misled the jury as to what they could and should consider in passing on both the issues of manslaughter and self-defense. If appellant had been made aware of the threats and the acts and conduct of deceased, one can readily understand how he might have believed his life was in danger, if in fact deceased, at the time of the difficulty, said, “I will settle with you with this,” reaching :for his hip pocket, in which it is shown deceased had a Colt’s revolver.

It may be that deceased, although armed, made no effort to draw the pistol, as contended by the state, and, if he did not do so, appellant would be guilty of murder or manslaughter, yet the jury should be correctly informed as to the law governing the facts in evidence that they might correctly determine the issues' made by the testimony.

There are many criticisms of- the charge on manslaughter and. self-defense, and many special charges asked in regard to those issues ; but we do not deem it necessary to further discuss them, for what we have already said will give a correct idea of how the jury should be instructed on another trial if the evidence is the same.

We do not think, the court erred in refusing to instruct the jury to acquit because the indictment charged appellant with killing E. B. Holcomb, while the evidence showed the name of deceased to be E. J. Holcomb. The fact there was an E. B. Holcomb and •he was shown to be alive would not alter the rule that incorrectly stating the middle initial does not render an indictment invalid. Appellant was not misled, knew whom he was charged with slaying, and under such circumstances it was early decided in this state that the misstating of a middle initial might be wholly disregarded, unless the, evidence should show that the person on trial was misled thereby. Stockton v. State, 25 Tex. 774. .

Appellant complains of the admission in evidence of a photograph of the scene of the homicide, taken a year after the difficulty. Unless the evidence should show that the conditions are practically the same at the time of the taking of the photograph that they were at the time of the homicide, the photograph will not be admitted on another trial. If shown to be practically the same, as the court’s qualification of the bill would indicate, the photograph' is properly admissible.

We do not deem it necessary to discuss the various other questions presented, as in our opinion none of them present reversible error, other than those hereinbefore mentioned.

The judgment is reversed, and the cause remanded.
      <®=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    JOHNSON v. STATE.
    (No. 4175.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Witnesses <@=>52(7) — Competency—Wife.
    A wife is incompetent to testify against her accused husband.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 132-134; Dee. Dig. <S=52(7).]

      2. Marriage <S=s50(1) — Evidence — Sufficiency.
    Evidence held to show that a person introduced as a witness was not the wife of accused.
    [Ed. Note. — For other cases, see Marriage, Cent. Dig. §§ 79, 83, 88, 89; Dec. Dig. <®==> 60(1).]
    3. Criminal Daw <@=k>1165(3) — Appeal — Harmless Error.
    In trial for murder, where accused objected to testimony of a woman, claiming she was his wife, and the great preponderance of the evidence showed she was not, submission to the jury of the question of her wifehood, with instruction to disregard her testimony if the jury had reasonable doubt of her nonmarriage, was hot prejudicial to accused, and he could not complain.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3083, 3089; Dec. Dig. 1166(3).]
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Oscar Johnson was convicted of murder, and appeals.
    Affirmed.
    Boyd & Boyd and J. M. Davenport, all of Denton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of murder, and his punishment assess-, ed at 30 years’ confinement in the penitentiary.

The evidence clearly established that appellant begot a child of Ruby Summers, the 13 year old daughter of the woman with whom he was living in adultery. The evidence suggests that some 10 days or 2 weeks after this baby was born he murdered the baby, and it clearly establishes that before the 13 year old girl, Ruby, got up from her sickness of confinement, appellant killed her by administering poison to her — all, it seems, for the purpose of preventing prosecution for his acts upon the 13 year old girl. How the jury could have assessed his punishment at only .30 years in the penitentiary is hard to understand. However, that was for the jury, and not this court.

The sole question in the case is whether or not the court erred in permitting the said woman with whom appellant lived to testify against him, because he claimed that she was his wife. Of course, if she was his wife, she was .incompetent to testify. If she was not his wife, she was competent to testify.

We will state the substance of some of the testimony on this point. This woman who claimed to be appellant’s wife, her own sister testified, was named or called Bennie Tillie, Bennie Summers, and Bennie Johnson. Her maiden name was Tillie. She at one time married a man by the name of Summers, by whom she had said 13 year old girl. She testified that she was married to appellant in Kaufman in August, 1909; that appellant at the time sent her from where she was living, it seems, in the edge of Dallas county, to- Kaufman, for the purpose of marrying her, telling her he would get the license and a preacher; later, that he appeared with a party, whom he said was- a preacher, and that that preacher read a license and married them; that she lived with him from that time on to the time of the killing of her daughter by him, though they were occasionally separated and had disturbances between them, but she claims there was no permanent abandonment at anytime. No other testimony was introduced to show that these parties were married at that time or any other time. She denied that she had told Mr. Farrington, the justice of the peace who made an investigation of the killing of her daughter soon after it occurred, that she was not married to the appellant. The justice of the peace swore that on his investigation of this killing he interrogated her and asked her whether she and defendant were then married, or ever married, and she then stated to him that they were not married and never were married, that he asked her what she was doing with him and staying around with him so much for, and she replied that she was just cooking for him while he did the work; that he wrote this down at the time; and that she signed it and swore to it. It was agreed that no license was ever issued in Dallas county authorizing these parties to marry. The deputy clerk of Kaufman county swore that he had examined the marriage license records of Kaufman county from 1904 on down, and that he found no record of any marriage license issued to appellant and said Bennie Tillie, or Bennie Summers, to marry; that he did find a license to appellant, dated September 11, 1904, authorizing him to marry a woman by the name of Vercie Dickson; and that he found another license dated May 27, 1905, to appellant to marry a woman by the name of M. Sophie Sneed. It was also shown that appellant made a written application for a subpoena for said woman, naming her as Bennie Tillie, and not Bennie Johnson. One of his attorneys testified that he had written and had appellant to sign said application for a subpoena, and that he did so under the impression that they had some letters from Ft. Worth to him which were signed “Bennie Tillie,” and that he put it in “Johnson” at one place and “Tillie” at another. The deputy sheriff of Denton county swore that, while the grand jury was investigating the charges against appellant he had him confined in the jail, and that appellant insisted upon the officer taking him before the grand jury; that he wanted to testify; that he submitted the question to some of the grand jurors, he thought, and at any rate to the county attorney; and that they told him, if he wanted to testify, to bring him before the grand jury. The county attorney testified that when-the-appellant came‘before the grand jury he warned him as to his rights not to testify, told him what he was charged with, and warned him that he did not have to make any statement, and that if he did make a statement it could be used against him; that thereupon appellant voluntarily testified; and that appellant said that he and Bennie Johnson were not husband and wife. Mr. Kennedy, a witness for the defendant, testified that he had known him 12 or 13 years, and that he had known him until some 4 or 5 years ago, that the witness was station agent for one of the railroads, and that appellant worked for him for awhile; that while he worked for him he was married twice; that he got a divorce and remarried. The clear inference from this witness’s testimony is that appellant was divorced from the first wife, whom he married in September, 1904, and later married the second wife, in May, 1905. There is no evidence and no reasonable inference from any of the testimony that appellant was ever divorced from the second woman whom he married in May, 1905, and there is an entire absence of testimony that that woman is not still living and his legal wife.

From the whole of this testimony the judge was clearly authorized to believe and find that said witness Bennie Tillie, Summers, or Johnson, whichever name she bore, was not appellant’s lawful wife at any time, if it did not require him to so find.

When she was offered as a witness, appellant objected to her testimony because she was his wife. The court, after hearing said testimony, overruled his objections, thereby clearly holding that, in the judge’s opinion, she was not his wife, but was competent to testify.

In addition to this, the court, in a proper charge, submitted the question to the jury for a finding by them, and told them that if they believed, or had reasonable doubt, that she was appellant’s wife, to wholly disregard her testimony, and not to consider it for any purpose.

The court did not err in permitting this woman to testify and in overruling appellant’s exception to her testifying on the ground as claimed by him that she was his wife, as shown by his first 'Bill.

In his second bill, which is the only other in the record, he objected to the court’s charge submitting the question to the jury of whether or not she was his wife, and, if so, or they had a reasonable doubt of it, to wholly disregard her testimony, on the ground that this was a question for the judge himself to decide, and it was improper for him to submit it to the jury.

Some authorities hold that this is a question solely for the judge to determine, and that he does not have to submit the question to the jury. 1 Wigmore on Ev. § 487. If the uncontradicted testimony had shown that said woman was not appellant’s wife, then it would have been a question for the judge alone to decide, and it would have been wholly unnecessary for him to have submitted it to the jury. However, as there was some testimony tending to show that she was his wife, although the great preponderance showed that she was not, it was in appellant’s interest, and not against him, when the court charged the jury as he did on this subject. So that in both and each contingency the'action of the court was correct.

No other question is raised.

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

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text:
    BERRY v. STATE.
    (No. 4130.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Homicide <§=>308(4) — Trial — Instructions.
    Where a homicide occurred before a statute abolishing the degrees of murder, the court properly charged on murder in both the first and second degrees.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 645; Dec. Dig. <§=>308(4).]
    2. Criminal Dáw <§=3822(1) — Appeal and Error — Review—Instructions.
    In a homicide case, in considering objections to any paragraph or portion of the charge, it is necessary to consider the whole of the charge in connection with the paragraph objected to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1994; Dec. Dig. <§=> 822(1).]
    3. Criminal Law <§=>770(1) — Trial—Issues.
    The state, as well as the defendant, has the right to have issues in its favor submitted properly.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. <§=>770(1).]
    4. Homicide <§=>61 — Sele-Deeense—Limitation.
    Under Pen. Code 1911, art. 1138, if a person by words or acts, or both, provoke a contest with the apparent intention of killing or doing serious bodily injury to deceased, the offense would be murder and not manslaughter, even though the killing was done in either self-defense or in defense of another.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 75; Dec. Dig. <§=>51.]
    5. Homicide <§=>51 — Sele-Deeense—Limitation.
    If accused by words or acts, or both, provoke a difficulty or combat, or produces the occasion for deceased to attack him, for the purpose of producing an opportunity of committing a battery upon him, or inflicting violence upon him other than to kill or do him serious bodily injury, and does so, then the accused would be guilty of manslaughter, even though it should then be necessary to kill deceased in self-defense, or in defense of another.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 75; Dec. Dig. <§=>51.]
    6. Homicide <§=>300(3) — Instructions—Sele-Deeense.
    An instruction on the doctrine of provoking the difficulty and the limitation of self-defense or defense of another, held, under the circumstances and evidence, not to present reversible error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 617; Dec. Dig. <§=>300(3).]

      7. Criminal Law ©=830 — Appeal and Error — Review—Instructions.
    The refusal of a requested charge which did not state a correct legal proposition applicable to the testimony, was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2012, 2017; Dec. Dig. <@= 830.]
    8. Criminal Law @=763, 764(1) — Appeal and Error — Review—Instructions.
    A charge clearly upon the weight of the evidence was properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731, 1737, 1742, 1743, 1746; Dee. Dig. @=763, 764(1).]
    9. Criminal Law @=31091(5) — Appeal and Error — Review—Bills oe Exception.
    Where a bill of exceptions to the court’s refusal to permit accused to introduce and read to the jury the testimony of a witness taken upon a former trial, does not give the testimony of this witness, but states conclusions therefrom, the trial court will not be put in error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2831, 2832; Dec. Dig. @= 1091(5).]
    10. Criminal Law @=543(1) — Appeal and Error — Review—Reception oe Evidence.
    The court’s refusal to permit defendant to read to the jury the testimony of a .witness taken upon a former trial, which evidence did uot sh,ow that said witness was out of the jurisdiction of the court, was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. @= 543(1).]
    Appeal from District Court, Henderson County; John S. Prince, Judge.
    Thomas Berry, Jr., was convicted of manslaughter, and' he appeals.
    Affirmed.
    Miller & Miller, A. B. Watkins, and Faulk & Faulk, all of Athens, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was indicted and tried for murder. He was convicted of manslaughter, and the lowest punishment assessed.

This is a companion case to that of Thomas Berry, Sr., v. State, 73 Tex. Cr. R. 203, 163 S. W. 964. From the report of that case, the circumstances of the killing can be understood sufficiently to make any preliminary statement in this unnecessary. This appellant was the person who actually killed the deceased, for which his father was convicted, as shown in said Thomas Berry, Sr., case.

The killing having occurred before our murder statute abolishing the degrees of murder, the court properly charged on murder, in both the first and second degrees; but, as he was convicted of manslaughter, no further mention of murder, or the degrees, is necessary.

Appellant’s defense was that he killed the deceased in the defense of his father. The court in his charge on the definition of manslaughter gave the usual full and complete general definition thereof, as is given on the subject.

It is elementary that, in considering objections to any paragraph or portion of a charge, it is necessary to consider the whole of the charge in connection with the paragraph objected to. It is also elementary that the state has the right to have issues in its favor submitted properly, as much so as it is for the defendant to have the issues in his behalf so submitted.

On appellant’s defense, the court charged the jury:

“A reasonable apprehension of death or great bodily harm to oneself, or to another, will excuse a party in using all necessary force to protect his life or person, or the life or person oí the party so attacked, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and in such case, the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
“If from the evidence you believe the defendant killed the said John McGahan, but further believe that, at the time of so doing, the deceased had made an attack on his father, Tom Berry, which, from the manner and character of it, and the relative strength of the parties, and defendant’s knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury to his father, Tom Berry, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed, and was making such attack on defendant’s father, and' if the weapon used by him and the manner of its use were such as were.reasonably calculated to produce death or serious bodily harm, then the law presumes the deceased intended to murder or to inflict serious bodily injury upon the defendant.
“Applying facts to the above, you are instructed that a party has the same right to act in the defense of another, when such other party is as-sáulted, as he would in defense of himself, and if you find from the evidence, that an- unlawful attack was being made by the deceased, John McGahan, upon Thomas Berry, Sr., then Thomas Berry, Jr., would have the same right to act in defense of his father, and to use the same force in repelling said attack as Thomas Berry, Sr., would have.
“If the defendant with his father, Thomas Berry, Sr., went to the stalk field, mentioned in the evidence, and their purpose in going there was to reason with deceased, and to settle in a reasonable manner any differences that may have existed between them as to their right to cut the corn stalks, and under such circumstances deceased made an attack upon Thomas Berry, Sr., striking him with a stick, then the defendant would have the right to use any means which seemed to him to be necessary to defend his father from s'aid attack, and he would have the right to shoot and kill deceased, if it seemed to him to be necessary,'viewed from his standpoint, and under such circumstances he would be guilty of no offense, and, if you so find, you will acquit the defendant.” <■

No complaint by appellant is made to this charge.

It is the law of this state by statute (article 113S, Pen. Code), and the many decisions thereunder, that if a person, by words or acts, or both, provoke a contest with the apparent intention of killing or doing serious bodily injury to the deceased, the offense would not be manslaughter but murder, even though the hilling was done in either self-defense or in defense of another. Green v. State, 12 Tex. App. 449; Cartwright v. State, 14 Tex. App. 486; Cunningham v. State, 17 Tex. App. 95; Arto v. State, 19 Tex. App. 126; Thuston v. State, 21 Tex. App. 248, 17 S. W. 474; Roach v. State, 21 Tex. App. 254; 17 S. W. 464; Crist v. State, 21 Tex. App. 367, 17 S. W. 260; Allen v. State, 24 Tex. App. 224, 6 S. W. 187; Thumm v. State, 24 Tex. App. 703, 7 S. W. 236; Johnson v. State, 26 Tex. App. 631, 10 S. W. 235; Saens v. State, 20 S. W. 739; Warren v. State, 31 Tex. Cr. R. 573, 21 S. W. 680; Puryear v. State, 56 Tex. Cr. R. 238, 118 S. W. 1042; Keeton v. State, 59 Tex. Cr. R. 316, 128 S. W. 413; and other cases collated in 2 Branch’s Ann. P. C. p. 1093.

It is also the settled law of this state that if an accused, by words or acts, or both, provohe a difficulty or combat, or produce the occasion for deceased to attach him, for the purpose of thereby producing an opportunity of committing a battery upon him, or inflicting violence upon him other than to hill or to do him serious bodily injury, and does so, then the accused would be guilty of manslaughter, even though it should then be necessary to hill deceased in self-defense or defense of another. King v. State, 13 Tex. App. 284; Cunningham v. State, 17 Tex. App. 95; White v. State, 23 Tex. App. 164, 3 S. W. 710; Arrellano v. State, 24 Tex. App. 43, 5 S. W. 526; Varnell v. State, 26 Tex. App. 67, 9 S. W. 65; Tollett v. State, 55 S. W. 575; Pedro v. State, 48 Tex. Cr. R. 407, 88 S. W. 233; Brownlee v. State, 48 Tex. Cr. R. 412, 87 S. W. 1153; Casey v. State, 50 Tex. Cr. R. 392, 97 S. W. 496; Parnell v. State, 50 Tex. Cr. R. 425, 98 S. W. 269; Sanders v. State, 50 Tex. Cr. R. 430, 97 S. W. 1046; and other cases.

Of course, the doctrine of provohing the difficulty is necessarily a limitation of self-defense or defense of another, and clearly so intended by the law.

The court in this instance undertooh to apply, and we thinh, did apply, this doctrine of provohing the difficulty. In one paragraph on the subject, to which appellant objected, the court told the jury:

“If you find that John McGahan was the tenant of the defendant’s father, and had planted some corn on the land rented from him for the year 1912, and that the defendant and his father desired to cut the stalks on the land so rented to deceased, John McGahan; and that deceased protested against their cutting the stalks; and that under such circumstances defendant and his father went to the field with no intention of slaying deceased, but for the purpose of cutting the cornstalks, knowing that deceased, John McGahan, had not given his consent, and with the intent to cut such stalks without the consent and over the protest of said John McGahan, deceased; and that they did attempt to cut said stalks over the protest of the deceased, and thereby caused the deceased to make a violent attack on defendant’s father; and that defendant in defense of his father shot and killed deceased — such killing in defense of his father would be manslaughter only. And if you so find, you will find defendant guilty of manslaughter.”

Under the circumstances and evidence in this case, we think the giving of this charge presents no reversible error.

The court did not err in refusing appellant’s first special charge, because the testimony did not authorize it, and it did not state a correct legal proposition applicable to the testimony; and this also applies to appellant’s third special charge.

Neither did the court err in refusing his second special charge, because it is clearly upon the weight of the evidence, stating the testimony of one of appellant’s witnesses; and, further, so far as any legal proposition therein is stated, it was covered by the court’s main charge. And this applies also to his fourth special charge.

Nor did the court err in refusing his fifth and sixth special charges, because neither is the law applicable to this case. And this applies also to his seventh special charge.

His eighth special charge is clearly upon the weight of the testimony, and the court did not err in refusing to give it.

Appellant has another bill to the court’s refusing to permit him to introduce and read to the jury the testimony of W. J. Bass, taken upon a former trial of this cause. His bill does not give the testimony of this witness. It states conclusions therefrom. The court, in allowing the bill, qualified it by stating that the evidence did not sho.w that said witness was out of the jurisdiction of the court. For both these reasons, the court committed no error.

The evidence was clearly sufficient to sustain the conviction — -in fact, would have authorized a conviction for a higher offense and a greater punishment.

The judgment is affirmed.
      <§=For other oases see same 'topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, J.

text:
    McWilliams v. State.
    (No. 4203.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Indictment and Information <&wkey;176 — Oj-éense Committed After Complaint.
    One cannot be convicted of an offense shown by the evidence to have been committed after the filing of the complaint.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 584; Dec. Dig. &wkey;176.]
    Appeal from Dallas County Court at Law; T. A. Work, Judge.
    Addie McWilliams was convicted, and appeals.
    Reversed and remanded.
    McCutcheon & Church, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of violating the pistol law, her punishment being assessed at 30 days’ imprisonment in the county jail.

It may be‘very seriously questioned whether or not the evidence would .sustain the conviction on the merits of the testimony; but, in view of another proposition, this is not discussed, inasmuch as the case may be more fully developed should there be another trial.

The ease will be reversed for the following reason: The affidavit charging the offense was made and filed on the 24th of the month. The evidence for the state, there being none for the defendant on this question, shows that the offense was committed on the 29th of the same month, or five days after tt;e filing of the complaint. The information, of course, follows the allegations of the complaint. A citizen cannot be convicted of an ofl'ense until the evidence shows that that offense was committed as charged. It would not do to hold that an offense committed five days after the complaint is filed could be sustained. Under our law a citizen cannot be convicted for future, but for past, offenses.

The judgment is reversed, and the cause remanded.
      <§x=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    MARTINEZ v. STATE.
    (No. 4194.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Larceny <&wkey;28(l) — Indictment — Sufficiency.
    An indictment for theft, which alleges that defendant and codefendant did “unlawfully take and steal from and out of the possession of, and of the property of, and without the consent of, Tom Peoples,” property described, with intent to deprive “said owner of the value thereof and to appropriate same to the use and benefit of” defendant and codefendant, is sufficient as against a motion to quash, on the grounds that it charges no offense and is'vague and uncertain and fails to charge that the property was taken from the possession of Tom Peoples or any other person.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 58, 99, 101; Dec. Dig. &wkey;28(l)J
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Ygnacio Martinez was convicted of theft, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the theft of personal property of more than the value of $50, and assessed the lowest punishment.

He was jointly indicted with Górgonio Vil-lareal. The charging part of the indictment is that on or about June 13, 1914, in said state and county, “Ygnacio Martinez and Gorgonio Villareal did then and there unlawfully take and steal from and out of the possession of, and of the property of, and without the consent of, Tom Peoples, one certain buggy of the value of $75.00, with intent to deprive said owner of the value thereof and to appropriate same to the use and benefit Of them, the said Ygnacio Martinez and Gor-gonio Villareal.” Appellant moved to quash the indictment on the grounds: (1) That it charged no offense. (2) It was vague, uncertain, and fails to charge any offense. (3) It fails to charge that said property was taken from the possession of the prosecuting witness, Tom Peoples, or any other person. The court properly overruled appellant’s objection to this indictment. We think it is clearly sufficient.

There are no bills of exceptions and no statement of facts in tbe record, and no other questions raised that can be considered.

The judgment is affirmed.


author: HARPER, J.

text:
    MARTIN v. STATE.
    (No. 4205.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    Criminal Law <&wkey;265 — Indictment—Service of Copy — Time to File Pleadings.
    One arrested after return of indictment is within Code Cr. Proc. 1911, art. 551, providing that when accused is in custody, or, if not in custody, as soon as he is arrested, he shall be served with a copy of the indictment; and so is entitled to the benefit of article 579, giving a defendant entitled to service of indictment two days after such service in which to file written pleadings.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 616, 617; Dee. Dig. &wkey;265.]
    Appeal from District Court, Somervell County; W. J. Oxford, Judge.
    Boone Martin was convicted, and appeals.
    Reversed and remanded.
    Levi Herring, of Glen Rose, and W. E. Myres, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted and the indictment returned into court on May 23, 1916. He was arrested on that day and gave bond. No copy of the indictment was served on him. When the case was called for trial on May 29th, six days after the return of the indictment, appellant filed a motion stating that he had not been served with a copy of the indictment against him, and he asked that the officers of the court be required to deliver him a certified Copy and that he be granted two days after such service before being required to plead to the indictment. The court overruled the motion, and appellant reserved an exception to being forced to trial without being served with a copy of the indictment. . The court in approving the bill states as reasons for doing so that he construes article 551, Code Cr. Proc., to mean that it is only those in custody at the time of the return of the indictment who are entitled to a copy. In this we think he erred. The article provides that when the accused is in custody, or, if not in custody, as soon as he is arrested, he shall he served with a copy of the indictment. This is not only the letter of the law, but the construction given by this court to the article in an unbroken line of decisions. Article 579 provides that he shall be entitled to two days after service of copy 'of indictment in which to file written pleadings.

The judgment is reversed, and the cause remanded.
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    WAGNER v. STATE.
    (No. 4151.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.)
    1. Criminal Law <&wkey;1144(14) — Appeal—Review — Presumptions—Instructions.
    When a party is only charged with and convicted of a misdemeanor and no charge appears in the record on appeal, it will be presumed that a verbal charge was given by consent of the parties, or that no charge was given, and, if the former, that the charge so given was correct.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2767, 2901, 3032; Dec. Dig. &wkey;1144(14)J
    2. Criminal Law <&wkey;1090(8) — Appeal—Record — Necessity op Bill op Exceptions.
    Objections to the admission or rejection of testimony cannot be reviewed, in the absence of a bill of exceptions.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2816, 3204; Dec. Dig. <&wkey; 1090(8).]
    3. Weapons <&wkey;17(4) — Criminal Prosecution — Evidence—Sufficiency.
    In prosecution for carrying a pistol about the person, evidence that, when arrested, accused tried to break away to get back to his automobile, which shortly before had been left standing at the depot, and that after his arrest a pistol was found pushed down behind the front cushion of the automobile, opposed by evidence that the pistol was one which belonged to another party, and which accused was to take home, held sufficient to throw the burden of proof on accused to show his exemption. under some of the statutory exceptions, since the statute does not make the offense depend upon ownership of the weapon.
    [Ed. Note. — Por other cases, see Weapons, Cent. Dig. § 29; Dec. Dig. <&wkey;>17(4).]
    4. Weapons <&wkey;10 — Criminal Prosecution-Manner op Carrying — “About the Person.”
    A pistol pushed down behind the front cushion of a jitney driver’s automobile, on which cushion he sat to drive his car, was carried “about the person” within the meaning of the statute forbidding such carrying.
    [Ed. Note. — Por other cases, see Weapons, Cent. Dig. § 9; Dec. Dig. <®=^10.
    Por other definitions, see Words and Phrases, First and Second Series, About the Person.]
    Appeal from Harris County Court, at Law; Murray B. Jones, Judge.
    R. G. Wagner was convicted of carrying a pistol about his person, and appeals.
    Affirmed.
    Menefee & York, of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., Prank Willi-ford, Jr., and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was charged with carrying a pistol about his person and on his trial before a jury was found guilty and his punishment assessed at a fine of $100.

The brief filed by state’s counsel so fully presents the issues, we adopt it and the reasoning as to why the case should be affirmed:

“1. No charge of the court nor any requested instrúctions appear in the record, and the law is that when a party is only charged with and convicted of a misdemeanor and no charge appears in the record on appeal, it will be presumed that a verbal charge was given by consent of the parties, or that no charge was given, and, if the former, that the charge so given was correct. Bowden v. State, 2 Tex. App. 56. Newton v. State, 3 Tex. App. 245. Sullivan v. State, 61 Tex. Cr. R. 658, 136 S. W. 456. Branch’s Annotated Penal Code, § 1596, page 939. In the Sullivan Case, supra, it was held that where no exceptions were taken to a verbal charge and no special charges were requested, this court would conclusively presume that the charge covered every phase of the ease necessary or proper to be submitted. It follows, therefore, that the unverified complaint to the charge of the court cannot be considered.
“2. There are-no bills of exception in the record, and hence the complaint of appellant that the court erred in admitting, over objection, testimony that he resisted arrest and tried to break away and get to his automobile where the pistol was cannot be reviewed on appeal. Objections to the admission ’or rejection of testimony should be presented by bill of exceptions. Branch’s Annotated Penal Code, page 132, par. 6.
“3. The only question presented for review is the sufficiency of the evidence. The only witness for the state testified that he saw appellant drive an automobile up to the depot; that about 3:30 o’clock p. m. he arrested appellant after some difficulty, that appellant fought and tried to break'away and get back to his automobile, which 20 to 30 minutes before he had driven up to the depot, that after placing him under arrest the. witness went back and looked in the automobile and saw a pistol pushed down behind the front cushion of said automobile and identified the pistol produced in court as the pistol obtained from said automobile.
“Appellant did not testify. The only witness for appellant testified that appellant was a jitney driver, and that witness had ridden in his car about 1 o’clock on the day of his arrest. When witness got in the car, about a mile from town, there was a passenger on the front seat with appellant, and the two appeared to be under the influence of liquor. Witness further testified that this unknown passenger in a few minutes pulled a pistol from his pocket and flourished it, finally pushing it down behind him after witness cautioned him; that after th£ passenger alighted witness required appellant to ride him to the police station, where witness got out of the car; that thereupon appellant asked witness what he should do with the pistol, witness replying, ‘Take it home with you or throw it away or do anything you want to do with it.’ It was not shown that appellant made any reply. Witness fixed ¿he time of this conversation as being about 1 o’clock. The distance from the depot where appellant was arrested to the police station1 is about 11 blocks, and appellant resided in an addition to the city of Houston which is in the 'same general direction from the police station as said depot. Witness further testified that he was not positive that the pistol produced in court was the same pistol had by the drunken passenger, but that it looked like it, and was in many respects similar. Both witnesses testified that they did not see appellant liare tlie pistol in his actual p'hysical possession. >
“This is, in substance, all of the testimony adduced, and we are left in the dark as to whether the court submitted to the jury the issue as. to whether appellant was on his way home, and the facts do not disclose that appellant was on his way home, since it is shown he had stopped his car at the depot. Nor is it shown for what, purpose he stopped at the depot, nor how long he had been there, nor what he had done, ¡nor where he had been since the conversation at 1 o’clock and his arrest more than two hours later. With only 11 blocks from the police station to the depot he is' found there, more than two hours later with the pistol behind the cushion on which he sat to drive the car and he offers no proof as to what he had been doing in the meantime nor as to his intended destination.
“The state’s case was complete when with time and venue it was shown that appellant carried a pistol about his person and the burden of proof was on appellant to show. that he was exempt by reason of coming within some of the exceptions named in the statute. Blair v. State, 26 Tex. App. 387, 9 S. W. 890; Zion v. State, 61 S. W. 306; Hunter v. State, 73 Tex. Cr. R. 469, 166 S. W. 165; Branch’s Annotated Penal Code, § 990, p. 571.
“The statute making it an offense to carry a pistol on or about the person in no way makes it a requisite that the party so carrying the weapon shall be the owner thereof. If appellant made any declaration to the officer who arrested him, or to any one else explanatory of his reason for having the pistol, he made no attempt to prove it, nor did he attempt to explain why he fought the officer and tried to get back to the car where the pistol was.
“Without in any way intending to reflect on the witness for appellant, we know of no rule of law which required the jury to believe his testimony; but, if his testimony is accepted as true, it does not establish any exemption from the operation of the pistol statute, since this witness did not know or undertake to tell what appellant did during the two hours after witness left him.
“Was the pistol behind the cushion on which appellant sat to drive his car carried ‘about’ the person of appellant? In Branch’s Annotated Penal Code, § 974, the holdings of this court on that question are collated, and we quote' the following propositions therefrom:
“ ‘A pistol in a basket on one’s arm is carried “about the person.” Johnson v. State, 51 Tex. Cr. R. 648, 104 S. W. 902.’
“ ‘A pistol on the wagon seat or under the buggy cushion on which defendant sat is carried “about his person.” Garrett v. State, 25 S. W. 285; Leonard v. State, 56 Tex. Cr. R. 84, 119 S. W. 98; Mayfield v. State, 170 S. W. 308.’
“ ‘A pistol in the bottom of the buggy in which defendant rode is ’ “about” his person. De Friend v. State [69 Tex. Cr. R. 329], 153 S. W. 881.’
“ ‘A pistol under a buggv seat is “about” the person. Hill v. State, 50 Tex. Cr. R. 619, 100 S. W. 384.’
“Opposed actually or apparently to the holdings above stated, it was held, in Hardy v. State, 37 Tex. Cr. R. 511, 40 S. W. 299, that having a pistol in the front end of a wagon in which defendant was riding was not ‘about’ the person. It has also been held that having a pistol in a wagon about halfway between the seat and the rear end is not carrying ‘about the person.’ Thompson v. State, 48 Tex. Cr. R. 146, 86 S. W. 1033; George v. State, 29 S. W. 386, in which case' it appears that the pistol was in an overcoat in a wagon. The information alleged that the "pistol was carried on and about the person, and ‘ we respectfully submit that the weight of authority is with the proposition that a pistol under or behind the cushion of a vehicle on which the driver sits is carried about his person. The Legislature must have meant something when it used the words, ‘or about the person,’ and, on principle, using the word ‘about’ in its ordinary meaning, taking into consideration the context and subject-matter relative to which it is employed, the word, not being specially defined, must, as we believe, be held to mean, within the pistol statute, near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could, without materially changing his position, get his hand on it; otherwise every person having a vehicle would be authorized to keep prohibited weap.ons in his vehicle and within reach of his hand, ready for action, and thus fill our streets and highways with armed men, while peaceful pedestrians and passengers or guests in such vehicles would not be so exempt from the law.” -

The judgment is affirmed.
      <&wkey;For other cases see same topic and KEY -NUMBER in all Key-Numbered Digests and Indexes


text:
    HALL v. STATE.
    (No. 4209.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Schools and School Disteicts <&wkey;63(3)— Officers — Statutory Provisions.
    Rev. St. 1911, art. 2773, requiring each treasurer receiving any school funds to keep an itemized account with each of the different classes of school funds, and on or before October 1st of each year file with the state superintendent an itemized report of the receipts and disbursements of the school funds for the preceding school year ending August 31st, embraces all treasurers of school funds, including the treasurer of an independent school district organized under article 2851, authorizing the organization of independent school districts, but does not make it a criminal offense for any treasurer to fail to comply with the statute.
    [Ed. Note. — For other cases, see Schools and School Districts, Gent. Dig. §§ 151, 155, 159, 160; Dec. Dig. &wkey;j03(3).]
    2. Schools and School Districts <&wkey;63(3)— Officers — Funds—Statute.
    Under Pen. Code 1911, art. 3, providing that no person shall be punished for any act or omission unless the same is made a penal offense and a penalty is affixed thereto by the written law of the state, a violation of Rev. St. 1911, art. 4517, declaring that any county judge or county, city, or town superintendent, assessor, treasurer or teacher, failing to make reports required by the state superintendent shall be guilty of a misdemeanor, and shall, on conviction, be fined as provided in the Penal Code, is not punishable, where the penalty provisions are omitted from the civil statutes and the criminal codes.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 151, 155, 159, 160; Dec. Dig. <®=»63(3).] ■
    3. Schools and School Districts &wkey;363(3)— Officers — Funds—Statute.
    Pen. Code 1911, art. 15S0, declaring that any county or city or treasurer of the school board of a city or town having exclusive control of its schools, who fails to make the report required by law, shall be guilty of a misdemeanor and fined not less than $50 nor more than $500, is not broad enough to embrace the treasurer of an independent school district authorized by Rev. St. 1911, art. .2851, authorizing unincorporated towns and villages to have an independent school district, which may include incorporated towns, which towms sháH'hot have the right'to assume ' control of the schools of the independent district, and a treasurer of an independent school district, who fails to make a report in violation of Rev. St. 1911, art. 4517, is not punishable under Pen. Code 1911, art. 1580.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 151, 155, 159, 160; Dec. Dig. &wkey;63(3).]
    Appeal from Jones County Court; J. E. Lindsey, Judge.
    • H. H. Hall was convicted of crime, and he appeals.
    Reversed, and prosecution dismissed.
    Davenport & Davenport, of Stamford, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted for failing to make a report as treasurer of an independent school district, the information, omitting formal parts, reading as follows:

“That H. H. Hall, on or about the 1st day of October A. D. 1914, and before the filing of this information, in the county of Jones and state of Texas, was then and there the treasurer of the school funds, of the Avoca independent school district, in said county of Jones, and state of Texas, for the year of A. D. 1913 and 1914, and the said H. H. Hall, as treasurer aforesaid, was on the 1st day of October, A. D. 1914, or not later than 20 days thereafter, required by law, and by the state superintendent of public instruction of the state of Texas, to make an annual statement of the school funds of said Avoca independent school district, on the 1st day of October, A. D. 1914, and not later than 20 days thereafter, and the said H. H. Hall did then and there, on the 1st day of October, 1914, and within 20 days thereafter, willfully fail to make to the state superintendent of public instruction of the state of Texas, as required by law and by the state superintendent of public instruction of the state of Texas, an annual statement of the school funds of the said Avoca independent school district aforesaid, as required by law and the state superintendent of public instruction aforesaid, and after the said state superintendent of public instruction aforesaid had furnished to the said H. H. Plall the necessary blanks and forms for making said annual statement aforesaid.”

Appellant earnestly insists that this information charges no offense, and therefore this case should be reversed and dismissed. Article 3 of our Penal Code provides that in order to make the system of penal law in force in this state complete, it is declared that no person shall be punished for any act or omission unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this state; and, if this prosecution is sustained, it must be by virtue of article 15S0 of the Revised Criminal Statutes of 1911 (Pen. Code), which reads:

“Any county or city treasurer, or treasurer of the school board of each city or town having exclusive control of its schools, failing (omake and transmit the report required by law, * * * shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than $50.00 nor more than $500.00.”

Our school laws have been changed, amended, and re-enacted so frequently it is rather difficult to the writer to obtain a clear conception of the laws governing in school affairs. We find in 1893 a rather general revision of the laws governing our schools (chapter 122, Session Acts, p. 182 et seq.), and by its terms, sections 25, 26, and 26a, two separate and distinct character of reports are provided for, and two separate and distinct offenses created, with penalties differing in the minimum sum to be assessed. In the Revision of 1895, section 25 of the Acts of 1S93 was carried forward into the Revised Statutes as article 3917, retaining the penalty for failure to make reports to the state superintendent as therein provided. Section 26, providing for financial reports to the commissioners’ court, was carried forward into the Revised Statutes of 1895 as article 3936, and section 26a of the act providing a penalty for failure to comply with section 26, was carried forward into the Revised Penal Code of 1895, as article 1013b. The penalty for failure to comply with section 25 was not carried into the Penal Code, but was carried, -into the Civil Statutes of 1895 as part of article 3917. In 1905 the Legislature again codified the school laws,* the act being chapter 124, p. .263, Session Acts. Section 25 of the Acts of 1893, and which was article 3917 of 1895, Revised Statutes, was re-enacted without change as section 48, and provided a penalty for failure to comply with its provisions. Section 26 of the Acts of 1893, article 3936, Revised Statutes 1895, was brought forward as section 49 of the Acts of 1905, but its provisions were changed in this particular. The reports theretofore required to be made to the commissioners’ court were required to be made to the state superintendent of public instruction. Both sections were valid, and provided different penalties for failure to comply with their terms.

And this was the law until the Revision of 1911. In the Revision of 1911, old section 26, which was carried into Revision of 1895 as article 3936 and re-enacted as amended as section 49 of the Acts of 1905, was carried forward in this revision as article 2773, and is broad enough in its scope to embrace all treasurers of school funds, but the penal feature which was carried forward into the Code of 1911 is not so broad in its language, it providing for the punishment of only the officers named in that article of the Code. It is hereinbefore copied and refers back as passed in 1893, page 188, and which was the penalty for failure to comply with section 26 of the Acts of 1893, section 49 of the Acts of 1905, and brought forward in the Revision of 1911 as article 2773.

Section 25, which carried a different penalty for its violation, and which was re-enacted in 1905 as section 48, retaining the same penalty' for its violation, was carried into the Revision of 1911, as article 4517, but in carrying it into the Revised Code the phraseology was changed. When section 25 was reenacted as section 48 in 1905 it provided that the persons who failed to make the reports therein required to be made should be deemed guilty of a misdemeanor, and upon conviction should be fined not less than $25 nor more than $500. The codifiers changed the phraseology, and provided that the persons failing to comply with its provisions should be deemed guilty of a misdemeanor, 'and upon conviction “shall be fined as provided in the Penal Code.” The penalty provided for the violation of this section of the act when passed, carried into the revision as article 4517, was never carried into the Penal Code. The revisers changed'the language from providing for a specific penalty for its violation by fine of not less than $25 nor more than $500 to read as provided in the Penal Code, and then did not carry this penalty into the Code, but omitted it both from the Civil and Criminal Codes.

We can then look only to article 1580 of the Penal Code and see if it is broad enough in its terms to embrace the offense charged in the information in this case. If so, by the wording of the Code, we, perhaps, would be authorized to apply its provisions to a violation of article 4517 as well as article 2773, to which it originally only applied, but in this case appellant is charged with failing to make a report as “treasurer of the Avoca independent school district'.” Article 1580 provides a punishment for no such officer, and nowhere in the Penal Code is there a provision punishing such officer, the codifiers having omitted to carry into either the Revised Civil Statutes or Penal Code the penalty originally enacted as a part of section 48 of the act of 1905, and carried forward into the Revision of 1911 as article 4517. Article 1580 provides for a punishment for a county or city treasurer, and treasurer of the school board of cities and towns having exclusive control of its schools, and no other or different officer or persons. ■

By reference to the laws governing our schools it will be seen that in article 2867, Rev. St. 1911 (section 134 of the Acts of 1905), provision is made for any city or town to assume’ exclusive control of the public free schools. Article 1580 is broad enough in its scope to reach .the treasurers of all such schools, and by its terms includes the treasurers of such schools.

Article 2851, Rev. St. 1911 (section 149 of the Acts of 1905) provides for unincorporated towns or villages, containing not less than 200 inhabitants, to form what is termed an “independent school district,” and providing that, while it may include within its limits incorporated towns, yet such towns shall not have the right to assume control of the schools in such independent school district. Article 1580 is not broad enough in its scope to embrace the treasurers of such independent school districts, for it specifically provides that it applies alone to treasurers of cities and towns, and treasurers of cities and towns having exclusive control of its schools.

In the complaint and information in this case it is charged that appellant was the treasurer of an independent school district (Avoca independent' school district), and by the terms of section 2851 of the Revised Civil Statutes the town of Avoca, whether an incorporated town or not, can never assume the control of the schools of Avoca school district, and, the Penal Code only providing for the punishment of treasurers of cities and towns who have assumed exclusive control of its schools who fail to make a report, it necessarily follows the information charges appellant with a violation of no provision of the Penal Code of this state, and this case must be reversed and dismissed.

The attention of the next Legislature is called to the fact that in the civil statutes they have required certain reports to be made to the state superintendent, but in the Penal Code they have provided no punishment if such officers fail to make such reports.

The judgment is reversed, and the prosecution ordered dismissed.
      <j&wkey;For other, cases see-same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    KINCHEN v. STATE.
    (No. 4153.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Assault and Battery <§=»56 — “Deadly Weapon.”
    A piece of metal used in setting up forms in a printing office, about seven inches long and from half to an inch thick, weighing about three pounds, with which was inflicted a wound about an inch long, leaving a small scar, was not a “deadly weapon.”
    [Ed. Note. — For other cases, see Assault and Battery, Cent. Dig. §§ 80, 81; Dec. Dig. <S=^56.
    For other definitions, see Words and Phrases, First and Second Series, Deadly Weapon.]
    2. Criminal Law <§^883 — Verdict — Grade of Offense.
    A jury should specify in its verdict the grade of the offense of which accused is convicted in eases where more than one degree or grade of the offense included in the indictment is given in charge to the jury.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 2104-2106; Dec. Dig. <§=> 883.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    G. O. Hinchen was convicted of aggravated assault, and appeals,.
    Reversed and remanded.
    John L. Poulter, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged in two counts with aggravated assault, one with a deadly weapon and the other with inflicting serious bodily injury. The court only submitted the count with reference to deadly weapon. There was no evidence which justified the submission of the count with reference to serious bodily injury. We are of opinion that the evidence does not justify the verdict of aggravated assault upon the theory that it was a deadly weapon. The evidence is to the effect that the blows were inflicted by appellant with a piece of metal used in setting up forms in a printing office, which was about seven inches long and from a half to an inch thick and would weigh about three pounds. Appellant struck the injured party on the head with it, the state contends, without any occasion, while the defendant contends it was in self-defense. Evidence was introduced pro and con on the question of who was in the right or wrong of the difficulty. It was a seriously contested issue, but there is no evidence other than the size of the instrument that it was deadly. The wound inflicted was about an inch long and bled freely, leaving a small scar near or about the edge of the hair. This evidence, under our law, we think, is not sufficient to show that the weapon was a deadly one as contemplated by the statute. If it is sought upon another trial to convict appellant of aggravated assault, the evidence should show the deadly character of the weapon.

An attack is made upon the verdict of the jury as being insufficient. It reads as follows: “We, the jury, find the defendant guilty as charged, and assess the fine at fifty dollars.” The court submitted both phases of assault, aggravated and simple. This matter is not discussed, but we wish to call the attention of trial courts and prosecuting officers again to the necessity of having the jury to specify in the verdict the grade of the offense of which the appellant is convicted in cases where more than one degree or grade of the offense included in the indictment is given in charge to the jury. It saves trouble and prevents questions arising on the appeal that are unnecessary or ought to be unnecessary. These questions ought not incumber records on appeal. For instance, where aggravated and simple assault are submitted to the jury, the jury should specify in their verdict of which grade of the offense they convict. There are numerous other statutes where inferior grades of offense are included or may be included under the evidence in the charge of the court. Wherever this is the case, the verdict of the jury should specify the degree of the offense of which the jury convict. If the jury in this ease had found appellant guilty of aggravated assault, this trouble could not have arisen. This is mentioned in passing so that these matters may not occur in the future. It is not intended here to discuss anything but the importance of having these verdicts clearly set out the offense for which the conviction occurs.

The judgment is reversed, and the cause remanded.
      ®s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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    SOLA v. STATE.
    (No. 4189.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Criminal Law @=3508(3) — Competency of Witnesses — Persons Indicted fob Same Offense — * ‘Indictment.”
    Pen. Code 1911, art. 91, and Code Cr. Proc. 1911, art. 791, declaring incompetent witnesses for each other persons charged by the same or a separate “indictment” with the same offense, applies to persons prosecuted by complaint and information; Pen. Code 1911, art. 10, providing that words not defined in the Code are to be taken and construed in the sense in which they are understood in the common language.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1101, 1104, 1113-1115; Dec.Dig. @=3508(3); Witnesses, Oent.Dig. § 244.
    For other definitions, see Words and Phrases, First and Second Series, Indictment.]
    2. Criminal Law @=3304(16) — Judicial No-. tice — Pendency of Complaint.
    Relative to competency of a witness for defendant, the court has judicial notice of the pendency in that court of a complaint against the witness for the same offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 711, 2951%! Dec. Dig. @=o 304(16).]
    Appeal from Harris County Court at Law; S. B. Ehrenwerth, Special Judge.
    Willie Sola was convicted, and appeals.
    Affirmed.
    Fred R. Switzer, of Houston, for appellant. C. C. McDnoald, Asst.' Atty. Gen., John H. Crooker, Cr. Dist. Atty., Frank Williford, Jr.. L. M. Williamson, and E. T. Branch, all of Houston, for the State.
   HARPER, J.

Appellant and bis wife were charged, in separate complaints, with making an assault on Beatrice Williams. Appellant being a man, the complaint against him charged aggravated assault. His wife and the assaulted party both being women, the complaint against her charged simple assault.

Both complaints were pending in the county court at law at the time of this trial. When appellant’s case was called, he did not ask that his wife be first tried, but announced ready. When the state r.ested, he tendered his wife as a witness in his behalf. The district attorney objected, she being charged in a separate complaint with being a principal in the offense for which the appellant was then being tried. The court sustained the objection, and all the bills of exception in the record relate to the correctness of the court in so ruling. Appellant contends that article 91 of the Penal Code and article 791 of the Code of Criminal Procedure only disqualify those who may be indicted as principals, and does not disqualify those who are only prosecuted by complaint and information. He contends that the word “indictment” has a well-defined legal meaning, and does not embrace prosecutions by complaint and information. It is true that the term “indictment” has a technical legal definition which only embraces “a written accusation against one or more persons presented by a grand jury legally convened.” Bouvier’s Law Die., and cases therein cited. But our Penal Code provides (article 10) that words not defined in the Code “are to be taken and construed in the sense in which they are understood in common language.” In common everyday language any person legally charged and held for trial is understood to be indicted, and, when we say one is “held under indictment” charged with an offense, all that is meant is that there is a legal accusation pending against him in the courts of his country. In the Century Dictionary the word is there defined: “The act of indicting; accusation; formal charge or statement of grievances; formal complaint before a tribunal.” This is the generally and commonly accepted meaning of the word, and not the technical legal definition.

These articles of our Code are of long standing, and it has been the universal rule, so far as we are informed, when two or more persons are charged by complaint and information with being principals in the commission of an offense, they are incompetent as witnesses for each other. Jordan v. State, 29 Tex. App. 595, 16 S. W. 543; Davis v. State, 45 Tex. Cr. R. 183, 74 S. W. 909; Sparkmam v. State, 61 Tex. Cr. R. 430, 135 S. W. 134; Baldwin v. State, 39 Tex. Cr. R. 245, 45 S. W. 714; Robertson v. State, 63 Tex. Cr. R. 268, 140 S. W. 105; Oliver v. State, 65 Tex. Cr. R. 158, 144 S. W. 604.

As both complaints were pending in the county court at law, when the objection was made, the court had judicial knowledge of the pendency of the complaint against the wife, and there was no error in refusing to permit her to testify in behalf of appellant.

The judgment is affirmed.
      <§=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GLOVER v. STATE.
    (No. 4232.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Criminal Law <@=>1090(1) — Appeal and Error-Absence op Statement op Evidence and Bill op Exceptions.
    Where no statement of the evidence heard on trial accompanies the record on appeal from a conviction and it contains no bill of exceptions, the judgment must be affirmed.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2794; Dec. Dig. <§=>1090(1).]
    . Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Dave Glover was convicted of assault to murder, and he appeals.
    Judgment affirmed.
    O. p. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at three years’ confinement in the penitentiary.

No statement of the evidence heard on the trial accompanies the record, nor does it contain any bill of exceptions. Under such circumstances the judgment must be affirmed.