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

text:
    ODELL v. STATE.
    (No. 3961.)
    (Court of Criminal Appeals of Texas.
    March 8, 1916.)
    1. Witnesses t&wkey;346 — Impeachment —Evidence.
    Tho infant daughter of a farm lessee who occupied premises belonging to accused’s father was assaulted with intent to rape, but neither she nor her younger brother and sister contended that accused was the guilty person. According to the statements of one of the children, it appeared that the assault was committed by another. About ten days thereafter the girl’s father returned and shortly instituted criminal proceedings against accused, the latter’s father sequestrating his property at about the same time. The girl’s father subsequently offered to compromise the case and to leave the state in return for slight compensation. Held that, as all of the children were under his influence and domination, evidence of his conduct was admissible to discredit their testimony.
    [lid. Note. — Eor other cases, seo Witnesses, Cent. Dig. § 1133; Dec. Dig. <&wkey;>346.]
    2. Oeiminal Law ^51166%(1) — Trial—Con-duct oe Tbiae.
    In. a criminal prosecution, after the evidence was closed and argument begun, accused’s wife, who had been under the rule, took her place beside him inside of the bar. There was no impropriety in her conduct, and she was. not conducting herself so as to interfere with the business of the court; but the judge refused to allow her to sit by accused, and later, when ■accused’s young child came to tho rail and accused took it up, the court directed the removal of the child. Held that, in view of the fact that the jury did not assess the minimum penalty', the action of the court was prejudicial as tending to indicate a belief in accused’s guilt, and that he was using members of his family to affect the jury’s sympathies; this being so though the trial court may regulate procedure in the courtroom and preserve order, particularly as there is no general rule as to where either accused or spectators may sit, and it is the custom for the family of an accused person to sit beside him inside the bar.
    [Ed. Note. — Eor other cases, see Criminal Daw, Cent. Dig. §§ 3119-3122; Dec. Dig. <&wkey;> 1166% (1).]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Callahan County; Thomas L. Blanton, Judge.
    Willie Odell was convicted of assault to rape, and he appeals.
    Reversed and remanded.
    J. E. Cunningham, of Ahilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of assault to rape, his punishment being assessed at four years’ confinement in the penitentiary.

The state’s testimony is to the effect that the alleged assaulted girl, Emily Smith, was over 14 years of age. Appellant and his wife were at his father’s residence, and had been for a short time, appellant working about the country at various jobs. The father and mother of the prosecutrix were in Wilbarger county, and had been for three or four weeks. The father of prosecutrix was a renter of the elder Odell, occupying a small house on the property and about 400 yards east from the residence of Mr. Odell. During the absence of her father and mother, prosecutrix and her brother and sister were guests of the senior Odell. On the morning of the alleged assault, which was Sunday, appellant took a gun with a view of going wolf hunting. His course lay westward. The house where prosecutrix went, and which was the home of the father of prosecutrix, was about 400 yards east of the senior Odell’s residence. The defendant’s version as to his whereabouts, proved by several witnesses, was that he was something like 1,300 or 1,400 yards west of the house at the time of the alleged assault, at a wolf den; that he had gone with a view of catching young wolves. 1-Ie was seen by the various witnesses at that point. Later he went from that point north, then east, hunting wolves. Without going into detail as to his perambulations, about 9 o’clock that morning, or half past 9, he was at the residence and spent a couple of hours with Mr. Peterson and two or three other parties, having his gun with him, presenting no appearance of being agitated or excited, and from there he returned to his father’s residence, reaching there about noon.

The state’s version as given by the girl, in the main, is slightly corroborated as to one or two matters by her brother and sister, who were present at the little house where

tlie assault is said to have occurred. The prosecutrix testified: That it was her custom to go in the morning from the residence of the elder Odell to the little place where the family lived to feed the chickens, and on this particular morning it was something like 8 or 8:30 o’clock when she went to the house. As she entered the house, somebody unrecognized by her threw a quilt over her head, tied it around her neck so that she could not see, threw her down, tied her wrists together with a string, and undertook to have intercourse with her; among other things, tore the left leg of her drawers from the bottom up to or near the waistband. About that time one of the children on the outside began calling a kitten and came to the door and knocked, whereupon her aggressor jumped through the window. The window was a small one in the north side of the house, the door being in the east, and these two being the only apertures in the house. The panes of glass in the window seem to have been broken. Under the window there were ashes, thrown from the fireplace or stove. In these ashes were found no tracks by the parties who investigated the place after the girl had returned to the elder Odell’s home. She said the ashes were hard; the other witnesses contradicted her as to that. There were no tracks found going from the house, and the state introduced some evidence to show that the ground was hard. The brother of appellant’s wife and one or two children and the small baby of appellant had followed the prosecu-trix to within 75 or 100 yards of the little house where the assault is alleged to have occurred, and were there at the time trying to get a rabbit out of a hole in a tree. She made no outcry at the house, but accounts for this by reason of the quilt being over her head. She says, when the party attacking her went out of the window, she remarked, “Willie Odell, you will be hung for this.” That he then looked at her, and she recognized him. One of the children who was with her testified that he heard that statement, but neither one of these children seemed to have seen anybody. The brother of appellant’s wife, who was trying to get the rabbit out of the hole, testified that the girl .came where he was and that her wrists were tied together by a string, and that he cut the string. This witness testified that in discussing the matter with prosecutrix she stated that somebody had tried to smother, her to death, but that she did not know who it was. In fact, the whole record shows that it was about ten days before her father returned, and that in talking with the people who discussed the matter with her she always stated she did not know who it was. She accounts for this by stating that these people were in some way related to appellant, and she did not want to tell them because she did not know what they would do to her. The witness who was 75 yards or 100 yards away saw nobody leaving the house. The pros-ecutrix further testifies that when her father and mother returned she told them about the transaction, and that it was appellant who made the assault on her. They returned on Saturday, some ten days after the occurrence. On the following day, or Sunday, a friend and neighbor, Miss Gillett, visited prosecutrix after the return of her parents, and the matter came up for discussion between prosecutrix and Miss Gillett. In that conversation she told Miss Gillett that she did not know who had made the assault on her. This was the day subsequent to the time she says she told her father and mother that it was appellant. She says the reason she did not tell Miss Gillett about the matter was that she was related to appellant, and she was afraid Miss Gillett would tell things prosecutrix did not say or state. There is also testimony by some ladies, to the effect that, on Sunday evening after this alleged assault should have occurred Sunday morning, that they in company with prosecutrix went in swimming, and they saw prosecutrix undress and go in bathing, and that her drawers were not torn. There were no other persons than ladies present at that time.

Tuesday following the Sunday on which Miss Gillett and prosecutrix had the conversation, the father of prosecutrix filed a complaint against appellant charging him with assault to rape. On the same day the senior Odell filed' sequestration proceedings against the father of prosecutrix on a debt, sequestrating some horses and other property. There is some question as to which suit was filed first, although they were both filed the same day and within a short time of each other.. This brings one of the serious questions in the case. The bill is lengthy, and in view of what has been said it is unnecessary to reproduce it. The bill practically rehearses the substance of the case. The defendant then offered the witness Thomas H. Floyd, who testified he was justice of the peace of precinct No. 1, Callahan county, and defendant offered to prove by him, and could have proved by him, that on the 10th day of August, 1915, subsequent to this alleged assault, defendant’s father filed a suit in the justice court for sequestration against the father of state’s witness Emily Smith, the father’s name being D. H. Smith, and that said suit for sequestration and the writ issued, seizing two horses and a wagon of the father of prosecutrix, and the suit was then pending; and the defendant would have further proved by the witness Floyd that, on the same day that said suit was filed, said D. H. Smith filed a complaint against the defendant charging him with assault to rape upon his daughter Emily Smith, and the defendant procured from said witness the writ of sequestratmn, the affidavit, and bond for sequestration, and the docket entries of said suit were also offered in evidence in connection with the foregoing evidence of the witness — all of which was objected to by the state for the reason that it was irrelevant and immaterial and not proper evidence by which to show the bias or feeling or prejudice of the state’s witnesses Bessie Smith, Emily Smith, and Uel Smith. Whereupon counsel for the defendant stated to the court that this evidence was offered to show bias and ill will and prejudice of said witnesses against the defendant, and was further admissible as a circumstance tending to show that said witnesses might have been or were biased and influenced in their testimony by their father against whom said sequestration suit was filed; they being of tender years, very young, and under the control of their parent. The court sustained the objection of the state and excluded the testimony from the jury.

In another bill in this same connection, which is very full and recites practically the main facts of the case, it is shown defendant offered W. F. Collins as a witness, who testified: That he lived in Callahan county, and was acquainted with D. H. Smith, and also acquainted with the father of appellant. That on or about the 26th day of October, 1915, he was in the town of Baird, in Callahan county, at the wagonyard, and there said D. H. Smith had a conversation with witness Collins, detailing the conversation. Appellant then offered to prove, and if permitted would have proved by him, that D. I-I. Smith told him (the witness) that he was the very man he was looking for; that he wanted to effect a compromise with Wm. Odell, the father of the defendant; that he asked him what sort of compromise, and he said that, if Odell would give him back his wagon and mules and black horse and give him $100, he would leave the state and carry the state’s witnesses with him; that after some talk it was agreed that witness would see Odell and see if said compromise could be arranged; that he afterwards saw Odell and arranged for a meeting between Odell and Smith in the office of one of the lawyers for the defendant; and when they met witness wrote out an agreement, which is as follows:

“Baird, Texas, 10-26-1915. Dear Sir: I have concluded to compromise with you and your son Willie Odell and stop all court proceedings now pending- against your son. If you will give me back my wagon and mule and your black horse, the one you call old negro also collars and bridles and the sum of $100.00 one hundred dollars, we agree to leave the state of. Texas immediately on receipt of same.”

That when they got to said office he read the proposition over to Smith in the presence of Odell. That said Smith said it was all right, and in the presence of William Odell signed his name thereto. That Odell then stated that he would not consider it unless the wife of D. H. Smith also signed it. That Smith then took the instrument and left, and in a short while returned with his wife’s name signed to it. That Odell then stated that he wanted to see his attorneys before he agreed to it, and that witness and said Odell then went to Abilene and submitted the matter to defendant’s counsel, J. F. Cunningham, and also submitted to him the question as to whether or not $50 would be a reasonable fee for witness’ time and trouble in the matter. Counsel stated the fee was reasonable, but that the compromise would not bind Smith and his wife; that they could take the money and horses and leave the state and then return and testify; that the agreement was an improper one, and advised Mr. Odell to reject the proposition. That thereafter witness and said Odell returned to Baird, and witness saw D. H. -Smith and told him what Cunningham had said, and that Mr. Odell declined the proposition; whereupon said Smith became very angry and said he intended to swear that he and his wife never signed the instrument, and asked witness if he would stay with him in the matter. That witness told Smith if he had to testify that he would swear the truth. The state objected to all this testimony for the reason that it was irrelevant and immaterial and not legitimate and competent testimony to be used for any purpose; whereupon counsel for the defendant stated that they offered the evidence to show a bias, prejudice, and ill feeling on the part of the children of said Smith who had testified in the case, and as a circumstance to be considered by the jury in determining whether or not the evidence of said three children of D. H. Smith had not been influenced, prejudicially to the defendant by their father, they being of tender years and under the control and influence of their father; and they offered it for the purpose of showing that the prosecution had been instigated by said D. H. Smith for the purpose of extorting money from the father of the defendant, and as a circumstance to show that he was using his children as witnesses for that purpose. But the court sustained the objeetions of the state and excluded all of said testimony from the jury.

The contention of appellant is that in view of the fact that the state relies for a conviction on the evidence of the three small children of Smith, and that the said children were under his care and control, the testimony offered was admissible to be considered by the jury in determining the extent of the bias, prejudice, ill feeling, etc., which the children might have against the defendant by reason of the suit filed by the father of the defendant in which the mules and team and other property of their father were seized and taken from him, and for the further purpose of showing that the father of said witnesses instigated the prosecution in the first instance, he having sworn to the complaint for the purpose of extorting a compromise from the father of the defendant, and having failed in that he became angry, and further that he exercised undue influence over his children in regard to their testimony. Appellant cites in support of this several cases, among others: Edwards v. State, 172 S. W. 227; Wade v. State, 171 S. W. 713; Burnam v. State, 148 S. W. 759; Earles v. State, 64 Tex. Cr. R. 537, 142 S. W. 1181; Pope V. State, 143 S. W. 611. In addition, they also cite Pope v. State, 143 S. W. 612, and Earles v. State, 64 Tex. Cr. R. 537, 142 S. W. 1182, and authorities collated in those eases; 33 Cyc. p. 1455, and notes; 23 Am. & Eng. Ency. of Law, p. 880, and notes.

We are of opinion that the court was in error. This testimony was admissible under the circumstances of this case. Neither D. H. Smith nor his wife, father and mother of the prosecutrix, testified in the case. They are, however, the only parties to whom Emily Smith, prosecutrix, testified that she told who it was that made the assault on her. The state did not use them. To all other witnesses she denied any knowledge of the identity of her assailant. On Tuesday after the conversation with Miss Gillett on Sunday in which prosecutrix denied knowing the identity of the party, and after on the previous Saturday she testified she told her father and mother about it, her father filed this complaint charging appellant with assault to rape. The same day the sequestration suit was filed. There may be some question as to which was filed first, but that is not very material. They were filed about the same time and on the same day. Smith, father of prosecutrix, was indebted to Odell, the father of appellant. If Smith filed that complaint, anticipating or believing that the elder Odell was going to bring the sequestration suit, and they were in Baird, the county seat, at least it was before the justice of precinct No. 1, some 20 miles or such matter from where the assault is said to have been committed, it would be a circumstance to indicate that the complaint was filed on a compromise basis. Smith is the party- who offered to compromise, and put it in writing, signed it, and had his wife -to sign it. This was rejected by the elder Odell. These children were young, living with their father, and, of course, under his- domination and control; the prosecutrix being the oldest one, who had just passed 14, the others being perhaps under 10 years of age. These offers of compromise did not come from appellant’s side of this case, but came from the prosecution side, the father of the prosecutrix. He and his wife were important witnesses for the state. If she told him that appellant was her assailant, he could have so stated. Instead, he filed complaint for assault to rape. The prosecutrix did not file it. Under these circumstances, we are of opinion this testimony was legitimate. It certainly tended to show that these witnesses were or could have been influenced by their father, especially in view of the fact that he failed, as did his wife, to take the stand and testify in corroboration of the girl’s statement that she had informed him that it was appellant who assaulted her, and this was also emphasized by the fact that, after she stated she told her father and mother, she denied any knowledge as to who her assailant was. Appellant did take the witness stand and deny the whole transaction, proving a complete alibi for himself, in which he was supported by practically all the testimony except that of the prosecutrix. This testimony was legitimate, and would show, as contended and set out in the bill of exceptions, that Smith instigated-the whole thing to avoid the result of the sequestration suit and to thus pay his debt, and further realize from it the wagon, mules, horses, and collars, etc., and $100 in money.

We have not reviewed all of the bills in this connection, but they are practically along the same general line as those we here mention. This testimony should have gone to the jury, and, because it was excluded, the judgment will be reversed.

There is another question in the case,, which is somewhat novel, and upon which the writer finds no authority directly in, point. After the testimony was in, the wife of appellant entered the bar where appel-. lant was sitting in front of the jury and took her seat, having with her her baby, something like a year old. The court suspended pro-, ceedings, retired the jury in charge of an officer, and instructed that the wife of appellant and his baby be excluded from sitting by her husband in front of the jury inside of the railing of the bar. When this, was accomplished, the jury was brought back and the argument proceeded. During the argument, and while Mr. Cunningham was addressing the jury for appellant, the appellant’s little child approached the railing, near where he was sitting. Appellant reached down and picked up the little fellow and set him on his knee, whereupon the court again suspended the proceedings and retired the jury and had the child removed from, the father and sent back to its mother. The court signs this with the qualification, in. substance, that he had a rule in substance- and effect that friends and relatives, especially female part of them, should not sit with their husband, brother, or relatives during, the trial of a case. The wife had been under the rule, and had testified in the case. Of course, this all occurred after the case had. been concluded so far as the evidence is.. concerned. This was the rule by the court-,, there being no statute in regard to the matter. The bill of exceptions recites further,, which is not in any way qualified by the-court, that the wife was sitting by the' side-of her husband, having the little child with her; that the child was not crying nor the-wife weeping, and nothing unusual between, them or in connection with them occurred, but they were simply sitting there by the side-of appellant. The court seems to., further think that this would have an undue influence upon the jury and arouse their. sympac. thy for the defendant, and might affect their verdict either in acquittal or in minimizing the punishment. Defendant, whatever else may be said about it, did not get the minimum punishment; they gave him four years when the jury could have given him only two. It might be stated in a general way that courts and lawyers — bench and bar — of this state have been accustomed to the custom of relatives sitting by the defendant during the trial. Of course, the court would have the right to enforce discipline or decorum in court, and prevent manifestations of an unseemly character; but, so far as this case is concerned, there seems to have been no ill effect, except on the defendant, as he received an enhanced punishment above the minimum. It will be difficult for this court to lay down a rule that would arbitrarily say to the trial court that he can or cannot permit witnesses or friends or relatives to sit by an accused person during his trial, and, if so, upon whom the choice should fall who could sit by him and those who should be rejected. It certainly would not be held that he can exclude counsel. Besides, the statute does not require that the accused shall sit in any particular place inside or outside of the bar or railing of the courtroom, should the room be so constructed. The statute does require, in felony cases and in misdemeanor cases, where there is imprisonment attached to the punishment, that defendant shall be present during the trial in the courtroom; but the statute does not specify any particular point at which he shall sit. The usual practice has been that the accused shall sit near his counsel, but this is the practice or custom and not the law; at least, no such statute or provision has been pointed out, and the writer has failed to find any provision of law in reference to it.

Until the recent statute allowing the accused to go on bond during his trial, upon announcement of ready for trial he was taken from the bondsmen and placed in the custody of the sheriff; but under the recent statute this is not the rule. He must be present, however, during his trial, and the case will not proceed otherwise. Appellant may sit in the bar or inside of the railing, if there is such, or he may sit out on one of the .benches in the audience. He still would be in the courtroom 'and would be present at his trial, and to the mind of the writer there seems to be very little force as to the position in the courtroom the accused occupies. If his wife is not permitted to sit with him inside of the railing, he might get outside of that and sit on a bench in the audience with her. Of course, he would have a right to do this, unless there is some rule of law which requires them to be separate and apart during the trial. The court might interfere if the wife was giving exhibition of her feelings that might undignify the court or influence the jury. She might be required to desist, and if she refuses she might be separated from her husband, but that would be upon the theory that it was unseemly in court like any other demonstration from the audience, but there ought to be something to indicate that the due order of the trial and dignity of the court was impeached or trespassed. The writer is not in harmony with the ruling of the court on that proposition under the facts detailed in the bill of exceptions and as shown by this record. What effect it had upon the jury we could only speculate outside of the fact that he received four years instead of two. This action of the court may have tended to impress the jury with the fact that he thought the wife was placed there, and that defendant subsequently took up his little child for the purpose of affecting their finding, and thus place the jury in rebellion against appellant’s cause. This act of the court may have influenced the jury against him. The judge is prohibited from discussing facts or commenting on the weight of the evidence. While this is not a comment in words and language on any fact introduced, or on the weight of the testimony, yet it still is a criticism of the defendant, in that he had his wife sitting' by him in front of the jury while the argument was in progress. It cannot always be told what affects the jury in the trial of a case. We are of opinion, however, that under the circumstances of this ease the court should not have done what he did.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J.

(dissenting).

The opinion herein opens the door too wide and permits collateral evidence which is wholly inadmissible. No principle heretofore established would authorize the introduction of evidence that appellant’s father had brought a sequestration suit against the witnesses’ father, with which the witnesses had no connection, and especially that said fathers had agreed to compromise the prosecution and civil suit, with which the witnesses had no connection. And no precedent can be found for any such holding. On the contrary, both principle and precedent are against the holding. State v. Calvert, 96 Kan. 813, 153 Pac. 499.

The judge’s action in removing, as he did, appellant’s wife and child, was correct and presents no error. An accused should always be tried, as the law expressly requires, according to the law and the evidence, and not according to the effect and influence his wife and children may have on the jury. I think the judgment should be affirmed, not reversed.

HARPER, J.

(concurring).

In agreeing to

a reversal of the case, I want to state that the general rule of law is that the acts of a third person who is not a witness cannot be introduced as evidence to affect the credit of a person who testifies in the case. As stated in Yernon’s Cr. Statutes 1916 (note 89, p. 638):

“When the evidence fails to show the defendant’s connection (or witness’ connection) with the matter, it is improper and inadmissible to adduce in evidence against him the prejudicial acts and declarations of third persons, though such acts ,and declarations were offered in the interest of or in the behalf of the accused”— citing l’nvors v. State, 20 Tex. App. 161, and other cases.

However, there are some exceptions to the rule, as when the defendant authorizes the third person to act for him. Burge v. State, 73 Tex. Cr. JR. 505, 167 S. W. 03. The question is: Where the evidence shows that the minor child is living with the father and under his control, and where the father offers to take the child beyond the jurisdiction of the court for a given consideration, is evidence of that fact admissible on the theory that the father may have influenced the child to testify as the child has testified, when the testimony is different from that first statement made by the child? Uel Smith is shown to be only seven years of age. On the trial he testified to hearing his sister say, “Willie Odell, you will be hung for this,” and that he looked up and saw Willie Odell running off. On cross-examination, he admits that, on the day of the occurrence, he told them he thought it was Crazy Adams whom he saw running off. “At that time I thought it was Crazy Adams. I had seen Crazy Adams before. I know how he was dressed. When I saw him last, he had on a blue shirt and blue overalls. At that time I thought the party I saw running off was Crazy Adams.” So far as this record is concerned, the first time this boy ever said it was appellant running off was when he testified on this trial, which was after appellant’s father had brought suit against the girl’s father, and after the girl’s father, according to the witness W. F. Collins, had approached him, and they together had gone to appellant’s father, and the girl’s father had agreed, if appellant’s father would give him the team sequestered, the black horse, and $100, he would carry the witness out of the state, and, when appellant’s father refused to pay this amount, he became very angry. If the seven year old boy, Uel Smith, before this occurrence had said appellant was the person he saw running off, we would hold the testimony of Collins inadmissible. But inasmuch as Uel Smith, according to this record, had claimed Crazy Adams was the. man whom he saw running, and never changed this testimony until after appellant’s father refused to pay his father, the writer thinks, when the record shows the child was only seven years old, lived with, and was under the control of, his father', and the child on the stand gave no explanation of this change in his testimony, the evidence that the father, between the time witness ■said it was Crazy Adams and the time he . testified it was appellant, had sought to obtain money and other considerations to suppress testimony, and when he failed to do so got angry because he could not obtain it, ought to have been admitted to aid the jury in determining whether the father was instrumental in having the little boy change his testimony. This was offered as a motive for the father to have influenced the child to change his testimony, to be considered by the jury. It may be of but little weight, unless the other facts and circumstances should convince the jury that the father had unduly influenced the child to change his testimony.
      other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J.

license: Public Domain

text:
    LAKE v. STATE.
    (No. 3989.)
    (Court of Criminal Appeals of Texas.
    March 15, 1916.)
    1. Cbiminal Law <&wkey;792(2) — Aiding in Crime — ‘ ‘Principal’ ’ — Effect.
    Under Pen. Code 1911, art. 74, making all persons guilty of acting together in the commission of an offense principals therein, and article 75, providing that, when an offense is actually committed by one, another who is present knowing the unlawful intent and aids by acts or encourages by words or gestures the one actually engaged in the commission of the offense is a principal, and article 78, providing that any person who advises or agrees to the commission of an offense is a principal, whether he aids or not, when the evidence shows any one of such conditions the court must charge and apply the law of principals and submit such question to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. <&wkey; 792(2).
    For other definitions, see Words and Phrases, First and Second Series, Principal.)
    2. Homicide <&wkey;281 — Murdeb—Principals— Evidence — Sufficiency.
    Evidence in a prosecution for murder held to justify submission to the jury of the issue of the law of principals where defendant stood by and knew the unlawful intent, but failed to prevent the commission of the crime.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 573; Dec. Dig. &wkey;5281.)
    3. Homicide <&wkey;281 — Muedek—Principals— Evidence — Sufficiency.
    Evidence in a prosecution for murder held insufficient to warrant submission of the issues whether defendant kept watch so as to prevent interruption of the one committing the offense by which under Pen. Code 1911, art. 75, he would have been .a principal, or whether he procured arms to assist in the commission of the offense by which under article 76 he would have been a principal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 573; Dec. Dig. ■&wkey;>281.)
    4. Homicide &wkey;>118(2) — Defenses—Self-Defense — -Beteeat.
    Where one armed with a shotgun is pursued by another who is unarmed, and whom 'the first person knows to be unarmed, it is the duty of the first to retreat or to use any other means to prevent an injury to himself, rather than to shoot and kill the pursuer.
    [Ed. Note. — For other cases, see Homicide, Gent. Dig. § 169; Dec. Dig. &wkey;>118(2).]

      5. Homicide <&wkey;244(l) — Murdeb—Defenses-Pbovoking the Difficulty — Evidence.
    Evidence held insufficient to raise the issue of provoking the difficulty in a prosecution for murder.
    [Ed. ..Note. — For other cases, see Homicide, Cent. Dig. § 507; Dec. Dig. <@=5244(1).]
    Appeal from District Court, Wood County; R. M. Smith, Judge.
    J. T. Lake was convicted of murder, and he appeals.
    Reversed and remanded.
    Harris & Britton, of Quitman, and J. H. Beavers and W. G. Russell, both of Winns-boro, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

From a conviction of murder, with 12 years in the penitentiary assessed as the punishment, this appeal is prosecuted. Because the case must be reversed, we will not specially discuss the testimony. We will make merely a general statement. On some points the testimony is in direct conflict; that of appellant himself contradicting the other disinterested eyewitnesses. It will not be necessary to state this conflict.

The killing occurred late one evening. About 3 o’clock that evening appellant took his neighbor and friend Mr. Black from Quit-man, where they both lived, in his buggy about a mile east, to his farm, to get roasting ears and peas. In going they met deceased, Louis Thom, who, with Mr. Chreitzbergh, was in deceased’s buggy going towards Quit-man. Chreitzbergh was quite drunk and sick therefrom. Appellant suggested to them not to go to Quitman in that condition, for they might be arrested. He asked deceased if he had any whisky. Deceased said not, but that, if he and Mr. Black would take Chreitz-bergh and go to a certain designated point and wait, he would go get some liquor and meet them there in a few minutes, which he did. Deceased also told them if they met Moore and Kendrick, to tell them to go to said meeting point, which was at or near Dr. Conger’s pasture. Deceased soon met all these parties at the designated place, bringing with him raw alcohol. At appellant’s suggestion, deceased and Mr. Black went to a negro’s house nearby, who was appellant’s tenant, where they divided the alcohol in two bottles, diluted one with water and sugar, and returned with both to the crowd. They all, except Chreitzbergh, proceeded to drink the liquor freely, and the evidence justifies the conclusion that they all became more or less affected thereby. After drinking and talking some time, Chreitzbergh and Kendrick got in one of the buggies and left the others.

Soon afterwards trouble arose between appellant and deceased, which resulted in a fight. From the testimony of the state’s witnesses Moore and Black it was caused by ap-. ■ pellant calling deceased a G-d-s-of a b-. Deceased resented this, and struck appellant in the face with his fist. Moore got hold of deceased, and Black of appellant and tried to keep them apart and from further fighting. Appellant took the little end of the buggy whip and .repeatedly attempted to strike deceased with the butt end of it, but was prevented and the whip taken from him by Black. 1-Ie then got an iron pin or rod out of his buggy and attempted to strike deceased with that, but was prevented, and this also taken from him by Black. However, in the mSISe deceased struck appellant at least twice more in the face with his fist. The licks bruised appellant’s face, and one lick broke the skin above the eye and' caused blood to flow. More or less talk was indulged between the parties at the time; appellant telling deceased that he was not able to fight him and had nothing to fight him with. Deceased replied that he could whip him and the whole d — ■— Lake family, repeating this a time or two. Appellant got in his buggy, started off and said: “I will see if you can whip the whole Lake family.” Deceased in a friendly manner tried to pacify appellant, but without success.

Appellant alone in his buggy, leaving his friend Black, drove rapidly back to his home at Quitman, about a mile. He there procured his double-barreled shotgun, put it in his buggy, and drove up to his son Elbert’s tailor shop for him. He found his son’s shop closed and locked, and then started directly back to the scene of the fight, where he had left deceased. Elbert, his son, had been out east to his pasture to procure and drive back his milk cow. They met, Elbert on horseback, and appellant in his buggy with his shotgun. They stopped and talked some considerable length of time; appellant telling his son why his face was bruised and bleeding, and that deceased caused it. While talking, the sheriff, Williams, and his deputy, Butler, going east from Quitman, came upon them. They stopped and talked with appellant and his son some time. After the four parleyed some time the sheriff told them he would go and investigate the matter. They all went back together to where the fight occurred. When they reached the gate leading into Dr. Conger’s pasture, the sheriff got down off of his horse, opened the gate, when all the parties, it seems, went in. The sheriff left his horse there unhitched, took the gun out of appellant’s buggy, and walked up the road, meeting deceased and Chreitzbergh in deceased’s buggy, and Kendrick and Moore following behind in another buggy. However, Elbert rode on from the gate, meeting these parties just ahead of the sheriff. When he met Chreitzbergh and deceased, he asked, in substance, who had beaten up his father. They both told him that deceased had. Appellant had already told him this. The sheriff, walking, reached these parties about this time, and ordered Chreitzbergh, who had gotten out of the buggy, to throw up his hands and consider himself under arrest. Chreitzbergh immediately complied, and the sheriff searched him, finding no arms upon him. He thereupon ordered deceased' out of the buggy and to throw up his hands and consider himself under arrest, which deceased promptly did, and he searched him, finding two pocketknives in his pocket, and took both of them off of deceased. He then proceeded back further to the next buggy, where Moore and Kendrick were. He ordered Moore to throw up his hands and consider himself under arrest, with which Moore promptly complied; and he then proceeded to search Moore, finding no arms upon him. Moore inquired why he was arrested and searched. The sheriff responded because of his being drunk and fighting. Moore denied that he had had any fight or was drunk. Then a controversy arose between them. The sheriff presented the gun which he had in his hands towards Moore as if to shoot him. Deceased and Moore, seeing this, evidently believed that the sheriff intended to shoot and kill Moore. Deceased thereupon grabbed the barrel of the shotgun and shoved it so that, if it was discharged, it would not strike Moore. Thereupon the sheriff pulled his pistol, he said, with the intention of killing deceased. Moore and deceased then grabbed the sheriff’s pistol and hand in which he held it, in the struggle holding it in such a way that, if discharged, it would strike neither of them; they declaring at the time that they had no intention of hurting the sheriff, but were seeking to prevent him from killing either of them. While all this struggle was going on, Chreitzbergh succeeded in wrenching the gun from the sheriff, and, when Elbert attempted to interfere, threw the gun down on him and stopped him. In the meantime the appellant and the deputy, Butler, had reached the scene, and saw and heard, most of what occurred at the time. Butler attempted to get the sheriff’s pistol; and, when he did, Moore and deceased ceased their struggle for it. Elbert at this time had wrenched the gun from Chreitzbergh, presented it as if to shoot Moore, Chreitzbergh, and deceased, and ordered them to scatter, telling them that, if they did not, he would kill all of them. They promptly scattered. Butler appealed to him for God’s sake not to shoot. He thereupon lowered the gun. Deceased at once ran to his buggy, jumped in it, put whip to his horses, ran out said gate to the road running north, evidently only intending to avoid being killed. Elbert and his father took after him; Elbert having the shotgun, it is not certain whether Elbert’s horse was right there at the time or not, but, if not, Butler’s was near by, and he got on Butler’s horse and took after deceased. Appellant also soon reached the horse Elbert had ridden to the scene, mounted him, and rapidly followed Elbert, after deceased. Deceased ran up this road a few hundred yards, whipping his horses and seeking to avoid being killed. Elbert soon caught up with the buggy and waved the gun in towards deceased in the buggy. The 'buggy top and side curtains were up. Elbert was a part of the time alongside deceased’s buggy, and sometimes behind it, appellant following rapidly on his horse; and he testified that he saw his son and the buggy of deceased the whole of the time, the collision of the buggies, and the killing.

Mr. Cowan, a wholly disinterested witness, was coming from the west in his no top buggy along the road which intersected the road running north and south, intending to go this road north. Mr. Wright’s place was in the comer of these roads. His house fronted north. Just as Cowan turned from the east and west road into the north and south road, and before his buggy had passed the corner clear, the deceased’s buggy and team ran into and broke down his left hind wheel. The collision threw deceased’s right horse down, his feet becoming entangled in Cowan’s buggy wheel, so that he could not get up, and deceased’s other horse got out from under the trace and reversed his position, both buggies immediately stopping when the crash occurred. Cowan jumped out of his buggy, went back a few paces south, and saw and testified to all that occurred thereafter. He said: That Elbert jumped off of his horse, ran around to deceased’s buggy, and, as deceased was in the act of getting out of his buggy, with one hand hold of the buggy top, and the other on the dashboard, or wheel, Elbert, with the shotgun in both hands, struck deceased therewith an overhand lick on the center of his head; staggering deceased to his knees, and then ran south. Deceased ran, following. The lick made a ghastly wound on the head of the deceased, cutting the skin for some inches, from which blood flowed. Both parties ran south some 30 or 40 steps as fast as they could, deceased getting no nearer than about 10 steps from Elbert. That after they had run this distance, and were still running, Elbert wheeled and shot deceased in his stomach in the left side, from which he instantly fell, and a few hours later .died. That deceased, in running, following Elbert, had nothing in his hands, and was saying nothing and doing nothing except running. Elbert said nothing to deceased after he struck him in the head with the gun. Mr, Cowan testified:

“The next thing that was done the defendant' came running up and said: ‘Let me have that gun; let’s get that other white faced s-of a b-’ ” (evidently referring to Moore). That appellant was on his horse and rode up there. That Elbert then went to and got his horse, and they both rode back down south together. “In going from there defendant passed where the deceased was lying, and he said to him: ‘Oh, yes, you white headed s-of a b — , you said you could whip all three oí. the Lakes. Now, we have got you where we want you.’ They then rode on down the lane, going south.”

Mrs. Wright testified that she saw the collision, and i;hat, when Elbert got off! his horse, he said:

“G-d-you, we have got you now. See whether you can whip all three of the Lakes.”

At this time she said Elbert was running towards deceased and had the barrel of the gun pointing towards deceased. She was standing in the door of her house, and said she then closed the door, and did not see the parties again until after the shot was fired, which was soon afterwards. Soon after the shot was fired she looked out of the window and saw deceased on the ground. She phoned to town, then proceeded to get water and went out to deceased’s assistance.

Appellant denied that he went up to the scene of the killing, and denied saying what Gowan swore he said. He claimed that he stopped back in the lane near the negro house and saw the race between deceased and his son, the collision with Cowan’s buggy and all the other occurrences, including the shooting, and there awaited Elbert, and that, when Elbert reached him, they went back further south, meeting the sheriff, his deputy, and Moore, who were some distance back down the lane walking north.

The indictment, in the usual allegations', in the first count charged that the appellant killed the deceased. In the second count he was charged as an accomplice in the killing. The second count was abandoned and dismissed, and he was tried only on the first. The court submitted murder, manslaughter, and self-defense. He also charged the law of principals, or attempted to do so, and provoking the difficulty. The court’s charge is attacked by appellant on these points on many grounds. It is unnecessary to take them up separately.

The statute is (P. O. art. 74) “all persons are principals who are guilty of acting together in the commission of an offense” ; and (article 75) when an offense is actually committed by one, and another is present, and, knowing the unlawful intent, aids by acts, or encourages by words or gestures, the one actually engaged in the commission of the unlawful act, he is a principal; also (article 78) any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal thereto, whether he aids or not in the illegal act. These articles of our Code have been construed and applied many times by the decisions-of this court. Where the testimony, positive and circumstantial, one or both, in behalf of the state, as it does in this case, sufficiently raises the question that an accused has conspired with another to kill a person, or, knowing his unlawful intent to kill, aids him by acts, or encourages him by words or gestures, to kill, he may be convicted as a principal, even though he may not at the time of the killing be bodily in the immediate presence of the actual slayer, it becomes’ the duty of the trial court to charge and apply the law of principals and properly submit the issue to the jury for a finding. In the recent cases of Serrato v. State, 74 Tex. Cr. R. 413, 171 S. W. 1144, Gonzales v. State, 74 Tex. Cr. R. 460, 171 S. W. 1146, and Dillard v. State, 177 S. W. 104, and others, we have reviewed and discussed many of the cases and charges on this subject, and expressly sustained charges wherein the jury were told under what circumstances an accused would be a principal, even though he was not bodily present when the fatal shot was actually fired. We think it altogether unnecessary to again discuss this question, herein or review the cases.

The testimony rather forcibly tends to show that appellant may have advised his son, Elbert, to kill deceased, or agreed thereto, and that they conspired to kill him, and acted together in doing so, and that by his acts and conduct he aided and encouraged him in the killing, and thereby became and was a principal in the killing. What we say herein is not to be taken nor used in another trial that the jury should so find, but merely that the evidence raises these issues, and that they should be properly submitted to the jury for their finding. We think the testimony of the eyewitnesses to-the killing would show, if believed by the jury, that appellant was in such proximity to his son at the time of the killing as, in contemplation of law and in fact, to be actually present at the time, even if his own testimony itself would not so place him. But, as stated above, the testimony would authorize and require the court to submit the question of whether or not he was a principal, even if it could be claimed he was not bodily present at the exact time and immediate-place of the killing, under the circumstances-of this case.

It is true article 75, P. C., provides-that any one who keeps watch so as to prevent the interruption of the one committing the offense, and article 76 provides that any one who procures arms to assist in the commission of an offense, is also a principal; but, having carefully studied the testimony herein, we are of the opinion that it raises neither of these issues, and, as the court submitted both of them, and authorized the jury to convict appellant if they believed either, such charge is a material and fatal error to this conviction, and necessarily results in a reversal.

The testimony, positive and circumstantial, was sufficient to show that appellant became ■ angry and entertained malice against deceased because deceased had struck him in the-face with his fist, etc., in the fight, that he deliberately went to his home, got his gun, procured and induced his son to return to ■ the scene of where the fight occurred for the purpose and with the intention of wreaking his vengeance on the deceased to the extent of killing him or having his son do so, and that what was said between him and his son when he met him and their going back together, and what they both and each did after again getting to deceased, and what he did and said just after his son killed him, was sufficient to raise the issue and require the submission of the question to the jury of whether or not he was a principal.

It is very doubtful if self-defense by •appellant’s son, Elbert, was raised by the evidence so as to authorize or require the court to submit that question to the jury. The uneontradicted testimony shows that, when the sheriff told deceased he was under arrest, he searched him, and found no arms whatever upon him except two pocketknives, and that he then took possession of them and took them from deceased. This was done In the immediate presence of appellant’s son, Elbert. When deceased fled, it is evident that he did so for the sole purpose of avoiding being killed by Elbert or the sheriff. From that time on until he was killed it was not shown that he attacked Elbert in any way or with anything. The utmost that he did was because of the un.provoked and brutal act of Elbert in striking him in the head with the shotgun as he was in the act of getting out of his buggy •and staggering him to his knees thereby, and then running to take after him. He is shown positively to have had nothing in his hands or about his' person with which he could have inflicted death or any serious injury upon Elbert, and that he got no nearer in the chase than 10 steps from him, when he was shot and killed. So that, if the question of self-defense was raised at all, it was Elbert’s duty under the law to have resorted to all other means for preventing any injury upon him by deceased before he had the right to shoot and kill him, and the evidence fails to show that he resorted to any other means whatsoever. P. 0. art. 1107; Kendall v. State, 8 Tex. App. 569; Freeman v. State, 40 Tex. Cr. R, 545, 46 S. W. 641, 51 S. W. 230; Vinson v. State, 55 Tex. Cr. R. 493, 117 S. W. 846; Foster v. State, 11 Tex. App. 109; Jordan v. State, 11 Tex. App. 450; Hunnicutt v. State, 20 Tex. App. 645; and many other cases to the same effect.

The evidence did not raise the issue of provoking the difficulty. Even if self-defense was raised, it was error in the court to submit any question of provoking the difficulty.

Appellant’s bills to the exclusion of certain testimony and to the questions asked by the district attorney as presented by his bills show no error. It is unnecessary to state or discuss them.

For the error of the court in submitting to the jury that they might find appellant guilty if he kept watch or furnished the gun to Elbert with which the killing was done, and provoking the difficulty, if self-defense was raised, the judgment is reversed, and the cause remanded for a new trial.
      (S=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      d&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CARRELL v. STATE.
    (No. 3973.)
    (Court of Criminal Appeals of Texas.
    March 8, 1916.)
    1. Indictment and Information ¡&wkey;150— Validity — Averments of Indictment.
    In determining the validity of an indictment, the court must necessarily take its allegations as true.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 497; Dec. Dig. &wkey;150.]
    2. Forgery <&wkey;7(2) — Prosecution — Offense —“Another.”
    Pen. Code 1911, art. 925, declares that one who, without lawful authority and with intent to injure or defraud, shall alter any instrument in writing, in such manner that the alteration would increase, diminish, discharge, or defeat any pecuniary obligation, shall be guilty of forgery, while article 933 declares that it is forgery to make a writing with intent to defraud or injure by inscribing on the opposite side of the paper a signature appearing as an indorsement. Articles 924, 926, 929, and 931, respectively, declare that he is guilty of forgery who, without lawful authority and with intent to defraud, shall make a false instrument in writing, purporting to be the act of another, which will affect pecuniary liability or affect property; that the false making or alteration must be done with intent to injure or defraud; that the 'term “another” includes the government or a body corporate or person or firm other than the writer; and that every species of a conveyance or undertaking in writing, which supposes a right in the person purporting to execute it, or to dispose of or change the character of property, and which could have such effect when genuine, shall be deemed an instrument affecting property. By Rev. St. 1911, arts. 2759-2762, as well as Act March 6, 1911 (Acts 32d Leg. c. 26 [Vernon’s Sayles’ Ann. Oiv. St. 1914, arts. 2849a-2849o]) the county superintendent of schools was empowered to control and draw out school funds. Such officer drew a check on a bank holding school funds, and falsely signed the name of the payee. Reid that, the cheek being an instrument affecting pecuniary liability, the false signing of the name of the payee constituted “forgery.”
    [Ed. Note.- — For other cases, see Forgery, Cent. Dig. §§ 10, 11; Dee. Dig. <S&wkey;7(2).
    For other definitions, see Words and Phrases, First and Second Series, Another; Forgery.]
    3. Forgery c&wkey;12(4) — Offenses—What Constitutes.
    In such case, whether the check was valid or not, the county superintendent was guilty of forgery, as the indorsing of the payee’s name and negotiation of the check would have affected the payee’s pecuniary liability.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 39, 40; Dec. Dig. &wkey;>12(4).]
    4. Forgery <&wkey;29(3) — Indictment—Validity —Innuendo.
    An indictment, charging that accused, as county superintendent of public schools, drew a check and forged the name of the payee, is insufficient, in the absence of an innuendo showing that in drawing such check he was acting in his official capacity as county superintendent of public instruction.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 79; Dec. Dig. &wkey;>29(3).]
    Appeal from District Court, Johnson County; O. L. Lockett, Judge.
    W. J. Carrell was convicted of forgery, and he appeals.
    Reversed, and cause dismissed.
    D. W. Odell, of Ft. Worth, and Odell, Johnson & Harrell, of Cleburne, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of forgery, and his punishment fixed at 2 years and 6 months’ confinement in the penitentiary.

In view of the disposition we make of the case on this appeal, we will not discuss nor pass upon the matters of evidence, or attack on the charge of the court, as they are neither necessary nor proper to its disposition.

The indictment was in two counts, each alleging a forgery of the same instrument. We will copy such portions of the second count only,'which we deem proper or necessary in passing upon its validity. After the necessary preliminary allegations in an indictment, this second count avers:

That, on or about February 23, 1914, “one W. J. Carrell, who was then and there the duly and legally elected and qualified county superintendent of public schools in and for Johnson county, Tex., without lawful authority and with intent to defraud, did then and there willfully and fraudulently alter an instrument in writing, then and there already in existence, and which had theretofore been made by the said W. J. Carrell, county superintendent of public schools, and which at the time it was so made and before it was altered by the said W. J. Carrell was to the tenor as follows:

“ ‘Cleburne, Texas, Feb. 23, 1914.
“ ‘The National Bank of Cleburne County Depository- Please pay to E. M. Wilson or bearer $994.00 Nine hundred & ninety four & no/100 Dollars out of the S & Co Fund collected for School District No. Transfers for Teaching Incidental expenses. W. J. Carrell
“ ‘County Superintendent of Public Schools’ —and the said W. J. Carrell did then and there alter the said instrument in the manner following, to wit: The said W. J. Carrell did then and there write and indorse the name of E. M. Wilson across the back of said instrument so as thereby to make said writing appear as an indorsement of the said instrument by the said E. M. Wilson, and in such manner that the said false indorsement so made would, if the same were true, have created a pecuniary obligation, and have transferred said instrument, and the said instrument after the said alteration by the said W. J. Carrell, as aforesaid, thereby became and then and there was of the tenor following:
“ ‘Cleburne, Texas February 23, 1914.
“ ‘The National Bank of Cleburne County Depository Please pay to E. M. Wilson or bearer $994.00 Nine hundred & ninety four & no/100 Dollars out of the S & Co. Fund collected for School District No. Transfers for Teaching Incidental expenses. W. J. Carrell,
“ ‘County Superintendent of Public Schools.’
“Indorsed across the back of it: ‘E. M. Wilson.’
“That the following part of said instrument: ‘out of the S & Co Fund collected for School District No. Transfers for Teaching Incidental
Expenses,’ meant out of the state and county school fund apportioned for Johnson county, Tex., for the year A. D. 1914, and that the said sum of $994.00, mentioned in said instrument, was to be paid to the said B. M. Wilson, payee in said check, out of said fund for transfers.”

Then follow averments, to the effect that the bank named meant said bank in Cleburne, Johnson county, Tex., and that said bank had been legally incorporated by virtue of the laws of the United States, and was then engaged in the banking business in Cleburne, and that it had been duly selected depository of the public school funds thereof, and that said bank had accepted said office and duly executed the bond required by law, which bond had been duly accepted and approved— “and which said bank had, previous to said date mentioned in said instrument, received from the state of Texas the public school funds belonging to the public schools of Johnson county, Tex., for the year A. D. 1914.”

The appellant attacked the validity of this indictment, and each count of it, on every conceivable ground that experienced and able attorneys, it looks like, could think of or imagine. It is wholly unnecessary to specify all of them. They all hinge around, or are bottomed upon, two propositions, in substance: (1) That the said instrument was illegal and void, and therefore could not be the subject of forgery; (2) that there was no such office as that of county superintendent of public schools of Johnson county, but that the office was that of superintendent of public instruction of said county. It is only these two questions we will discuss and decide, as the decision of these embraces all others.

In discussing the validity of any indictment, the court must necessarily take the allegations as true. Let us first, from the statute, see what forgery is, and what instruments are the subject of forgery, and how they can be forged. Article 925, P. O., is:

“He is also guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall alter an instrument in writing, then already in existence, by whomsoever made, in such manner that the alteration would (if it had been legally made) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever.”

Article 933 specifically says:

“It is forgery to make, with intent to defraud or injure, a written instrument, * * * by writing on the opposite side of a paper so as to make the signature appear as an indorsement.”

The indictment herein was based specially on these two articles in connection with the others we now mention. Article 924, P. O., is:

“He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing, purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever.”

Article 926 provides that the false making or alteration must be done with Intent to injure or defraud—

“and the injury must he such as affects one pe-cuniarily, or in relation to his property.”

The next article defines an “instrument in writing,” in the broadest and most comprehensive sense which language could do as:

“Every writing purporting to make known or declare the will or intention of the party whose act it purports to he, whether the same be of record or under seal or private signature, or whatever other form it may have.”

Article 929, in defining what is meant by the act of “another,” enumerates the United States; this state; every other state or territory of the United States; all the several branches of the government of either; all public or private bodies, politic and corporate ; all courts; all officers, public or private, in their official capacity; all partnerships in professions or trades; and then concludes:

“And all other persons, whether real or fictitious, except the person engaged in the forgery.”

The next article says that pecuniary obligation not only means every instrument having money for its object, but every obligation, for the breach of which a civil action for damages may be lawfully brought Then the next article, in further definition of what is meant by an instrument which would have transferred or in any manner have affected property, says:

“Every species of conveyance, or undertaking in writing, which supposes a right in the person purporting to execute it, to dispose of or change the character of property of every (any) kind, and which can have such effect when genuine.”

It would be difficult, if not impossible, to find language more comprehensive, and at the same time more specific, to define forgery than is used in our statute, and, if the law be properly enforced, succeed in punishing the forger, and thus protect the innocent and unsuspecting from his wiles in his attempted, or consummated, fraud, or injury, by his forgery. This was the purpose, object, and intention of the Legislature in the enactment and repeated re-enactments of said statute. It was well and aptly said by Judge Ramsey, speaking for this court, in Eorcy v. State, 60 Tex. Or. OR. 210, 131 S. W. 586, 32 L. R. A. (N. S.) 327:

“In these times, as we know, hut a small per cent, of commercial transactions are carried on and completed in any other form than by note, bond, checks, orders and drafts. While having due regard for the safety of the individual citizen who may be prosecuted for forgery of any of the manifold instruments” which would in any way affect any pecuniary obligation, or would transfer, or in any manner affect any property whatever, “it is essential that at least some fair regard shall be had to the protection of the great body of our people who are interested in the honesty and integrity of these instruments.” had let Porter alone one day down in the bottom, he would have killed Manning.”

The language of the statute is so plain, clear and unequivocal it needs no construction — all it needs is a true and correct application. It should not, and cannot lawfully, be construed away.

In discussing whether or not said instrument (we will herein call it a “check”) is such as can be forged, we will assume that appellant’s official name is averred therein, “County Superintendent 'of Public Instruction,” or that proper innuendo or explanatory averments are made to the effect that “County Superintendent of Public Instruction” was meant, understood, intended, etc., when and where “County Superintendent of Public Scho'ols” instead is used.

It is proper to here state, in a general way at least, how the available school fund is handled, and the county superintendent’s connection therewith and control over it. The state school board, on August 1st of each year, apportions the state school fund for the succeeding year to the various counties, based on the scholastic population. The state superintendent certifies this to the county depositaries (treasurers). It is unnecessary to detail how this fund is collected and finally reaches the county depository, except to say that it is paid to it monthly through the comptroller’s, state superintendent’s and state treasurer’s departments, as the taxes are collected. In addition to this fund from the state, the county may get a fund direct from its school lands, 'or interest on the proceeds thereof, and from other sources also. All of it, however, reaches the county depository during the year, and is held by it to be transferred, 'or paid out, in maintenance >of the county public schools, and all together it is the state and county school fund. The county superintendent’s powers, authority, and duties are prescribed by statute. To sum them up generally, they, are what the name indicates. He is in truth superintendent of the county public schools. Said schools are taught, managed, controlled, operated, and maintained under his superintendence. Not a dollar of the money in the depository can be paid out, or transferred therefrom, without his action. Every dollar can be paid out, or transferred therefrom, with his proper action. The indictment avers that prior to the time appellant drew said check, the depository had received from the state said school fund belonging to the public schools of said county for 1914, and that the check was drawn in favor of said Wilson and to be paid out of said fund for transfers. Hence we will state how said fund can be transferred. It will be unnecessary to state how the fund can be otherwise paid out or withdrawn.

Article 2759, R. S., authorizes the county superintendent to transfer the whole number of children, when less than 20, from one district to another in his county; and the next article authorizes him to transfer individual children, without restricting the number, from one district to another in his County. And by article 2761 he is authorized to transfer children and their proportion of the fund to another county. In articles 2760, 2761, he is given express authority to also transfer the child’s, or children’s, proportion of the school fund. This authority to also transfer the fund, we think, would necessarily be implied, if not expressly given, in the case provided for in article 2759. It is true article 2759 provides the transfers of children should be made before the apportionment is made, and the next articles provide they shall not be transferred after August 1st, yet if the children are transferred in time, it does not follow that the fund may not later be transferred; but, on the contrary, we think, the fund may not only, but in fact should be, transferred later, if not done at the time the child or children are transferred. It is only in this way that the object, intention, and purpose of the law can be carried 'out, and the fund be properly used for the benefit of the child or children entitled thereto. Again, article 2762 provides for the consolidation of school districts in two or more counties, on the County line, and the transfer of all the children and their fund from one county to the other in which the principal school building is situated. And this article also further provides that all children in one district may be transferred to another, upon such terms as the trustees of the respective districts agree upon. In case this is agreed upon by the trustees, the county superintendent would, of course, make the transfer, both of the children and the funds. And yet, again, the Thirty-Second Legislature, by an act approved March 6, 1911, p. 84 (Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 2S49a-2849o) passed an act which was in force in 1914, providing for rural high schools in the county, to be composed of one or more common school districts. The “general management and control” of the schools were vested in five county school trustees therein provided for, and they were made a body corporate, but they were expressly required to make the county superintendent- “their secretary and executive officer.” The provisions of this act are somewhat general, but they clearly contemplate and embrace the transfer of both children and their proportion of the school fund, from the common school districts to the rural high school districts. Otherwise the rural high schools could not have been carried on at all. And while the county school trustees, as a body corporate, under their general management and control of the schools, probably could, and should, order transfers of children and funds, yet it certainly was not contemplated that they should themselves, individually or collectively, make the specific transfer of the children or their funds, but clearly this would be done upon their order by the county superintendent, their secretary and executive officer. This would comport with the method of the transaction 'of business by every other corporation. And said act clearly contemplated that the business of said corporate body of trustees should be-executed by their said executive officer as county superintendent, and not otherwise.

Thus we have shown the many ways and contingencies wherein and whereby the county superintendent is authorized and required by law to transfer the school fund of his county from one district to another, and from his county to another county, and he alone can do this. No other person or official can. The depository in this instance-was a bank, and it had already collected and had the fund on hand on deposit. We know, as every other person knows, that the usual, if not practically the exclusive, way to get money on deposit in a bank out of it is by check. This is the universal and daily and hourly practice, and has always been so. Then every one would expect, and have no-other idea, than that when the county superintendent went to transfer this fund, or any part of it, when it had already been collected and on deposit, he would do so by check, as in this instance, and not otherwise. And doubtless the bank would have required him. to have drawn a check, if he had attempted to make the transfer otherwise. We, therefore, think it clear and certain and hold that the check in this instance, under our forgery statute could, in no event, be held void so-as to prevent it from being subject to forgery.

But suppose we are mistaken in holding that the county superintendent could legally have drawn said check under all or some of the contingencies mentioned, and it should be conceded or held that he had no power or authority to draw it, and that it be conceded or held, as drawn, the depository had no power or authority to pay it, and thereby transfer the fund, then the question would be, Are the averments in the indictment sufficient under our statute to charge forgery? We will discuss the indictment from that standpoint. It avers that appellant drew said check, and as he first drew it, it was thus already in existence. He “did then and there write and indorse the name of E. M. Wilson across the back of it so as thereby to make said writing appear as an indorsement of it by the said Wilson, and in such manner that the said false indorsement so made would, if the same were true, have created a pecuniary obligation and have transferred said check”; it also, of course, being averred that appellant did this willfully and fraudulently -and without lawful authority and with intent to defraud. There can be no question whatever that if Wilson, a real person, had, in fact, indorsed his name on the back of said check and procured the money thereon from the Cresson Bank, that would have transferred the check to the Cresson Bank. And if the Cresson Bank had then presented said check to theCleburne Bank, the depository, and that bank had refused payment because appellant bad no authority to draw it, or it bad no authority to pay it as drawn, then unquestionably. Wilson’s indorsement on said check would have affected him pecuniarily and have created a legal pecuniary obligation on his part for the repayment of said amount to said Cresson Bank. And said Cresson Bank, if AVilson had refused or failed to repay said check to it, by reason of his indorsement, could, without doubt, have maintained a suit against Wilson, and recovered a judgment against him in a civil action for the amount of the cheek. All this is so evident and clear and certain it would be idle to discuss it. The averments in the indictment as drawn, so clearly and fully and distinctly, follow the statute, and are in such strict conformity therewith, no further illustration or application is necessary. The indictment, even on the theory that the check was drawn by appellant without authority of law and contrary to law, and that on the. same theory, as drawn, the depository had no authority in law to pay it, and it would have been contrary to law to have paid it, is valid and legal, because the forgery is based entirely on the forgery of Wilson’s name by appellant by indorsement on the back of it of his name.

What we decide is no new doctrine, but is in strict accordance with our statute. Neither is it in conflict with any of the well-considered cases heretofore decided by this court. We have failed to find any case exactly in point. It is true many of the cases lay down the general proposition, in effect, that when an instrument is void on its face, it is not the subject of forgery. They also lay down the correct proposition that, even though void on its face, it is subject to forgery, if extrinsic facts are alleged showing that the holder might be enabled, by reason thereof, to defraud another. In all the cases where this first proposition is laid down and stressed the forgery of the instrument itself solely was under discussion, not a forged indorsement of such an instrument. Our statute makes the indorsement of an instrument forgery under the circumstances therein mentioned, regardless of whether the instrument itself is valid or void. We think it unnecessary to cite or discuss these various cases.

This second count of the indictment pointedly avers that appellant was the duly and legally elected and qualified “County Superintendent of Public Schools,” and as such drew said check, etc. That was not his official and legal name, but “County Superintendent of Public Instruction” was. He had drawn and signed the check as “County Superintendent of Public Schools,” and purported to act in his official capacity. There is no innuendo or explanatory averment whatever to the effect that in drawing and signing said check as “Superintendent of Public Schools,” it was meant, intended, understood, etc., that he did so as “Superintendent of Public Instruction.” It is by reason of the fact that said check was drawn and signed in an official capacity on another official that it enabled the payee as holder to defraud another. Hence', under the authorities and in reason, it was necessary and essential to make the innuendo or explanatory averments showing that it was meant, intended, understood, etc., to be his official act, and that in using “Schools” was meant, etc., “Instruction,” and without this the indictment is fatally defective. In 17 Enc. of P. & P. p. 240, it is said:

“An indictment or information against a public officer must contain averments as to the official capacity of the defendant, and so characterize him that it may be seen that the offense charged is one denounced by statute * * * as an offense committed by the defendant as an officer, and not as an offense denounced generally” (citing in the notes several decisions).

See, also, Allison v. State, 45 Tex. Cr. R. 596, 78 S. W. 1065; Naill v. State, 59 Tex. Cr. R. 484, 129 S. W. 630, Ann. Cas. 1912A, 1268.

On this ground alone will this case be reversed and dismissed.

We think it unnecessary to pass upon the first count. It may be sufficient otherwise than the same fatal defect we have pointed out in the second.

The judgment is reversed, and the cause dismissed.
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author: HARPER, J.

text:
    BURKHALTER v. STATE.
    (No. 3941.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1916.
    Rehearing Denied April 5, 1916.)
    1. Criminal Law <&wkey;419, 420(4) — Evidence— Hearsay.
    In a trial for murder, where a witness who, with the ex-sheriff, had investigated the case, who was asked no questions in regard to such matter, the statement of the ex-sheriff that such witness had brought him a gun which he had found at the house of another and had said it was the gun that killed deceased, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 980-983; Dec. Dig. &wkey;> 419, 420(4).]
    2. Homicide &wkey;>250 — Conviction — Sufficiency of Evidence.
    Evidence in a trial for homicide held sufficient to sustain a conviction of murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. &wkey;250.]
    3. Criminal Law &wkey;770(2), 1173(2) — Issues — Commission of Offense by Another —Instructions.
    In a trial for murder, where the defendant’s testimony placed another in the neighborhood of the killing, who had had several fights with'the deceased'and showed his ill will toward the deceased, the refusal of defendant’s specifically requested charge that if the jury believed from the evidence, or if they had a reasonable doubt whether such other person or defendant killed deceased, or if the circumstances did not exclude the idea that such other person killed deceased, they should find defendant not guilty, was reversible error; notwithstanding the negative presentation of such issue by a charge that the circumstances taken together must be of a conclusive nature tending to produce a reasonable and moral certainty that the “accused and no other person” committed the offense charged, and that if there was a reasonable doubt as to whether defendant was present when deceased was shot they would give him the benefit of the doubt and acquit.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig: §§ 1806, 8165; Dec. Dig. <§=» 770(2), 1173(2).]
    4. Criminal Law <&wkey;775(2) — Homicide—Instructions — Alibi.
    In a trial for homicide, where defendant admitted that he was within 250 yards of the scene of the homicide at the time of its commission, the issue of an alibi should be fully presented by the charge and made applicable to the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1833; Dec. Dig. <5&wkey;775(2).]
    5. Criminal Law *@^3407(2), 448(12) — Admission ojt Evidence — Conversations with Dependant.
    It is permissible for the state to introduce conversations with the defendant while not under arrest relative to the crime for which he is on trial and prove statements made to him calling for a denial, and that he made no denial or made a qualified admission, but witnesses should not be permitted to testify that “they told appellant a great many things damaging to him,” etc.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 899, 900, 902, 949, 968, 970, 971; Dec. Dig. &wkey;407(2), 448(12).]
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    John Burkhalter was convicted of murder, and he appeals.
    Reversed and remanded.
    Woods & King, of Houston, and King & Seale, of Nacogdoches, for appellant. Bee-man Strong, of Nacogdoches, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the murder of Tellie Manning, and his punishment assessed at ten years’ confinement in the state penitentiary.

There is in the record some 25 hills of exception. We have read and considered each of them, but as the case will he reversed, we do not deem it necessary to discuss those that, in our opinion, present no error.

On the trial of the case the state called Miss Oda Grace as a witness, and she testified that on Sunday preceding the homicide she had heard appellant say that if deceased ever crossed his path he (appellant) would kill him. On cross-examination by defendant she testified she was a sister of Porter Grace; that her brother, Porter Grace, and deceased, Tellie Manning, had had three or four fights, and they were mad at each other, and did not like each other at all. She* further testified:

“It may be that there at appellant’s house on the Sunday before Manning was killed, and at the time he said, if he ever crossed him he would kill him, that I made the remark that we were afraid of Manning, deceased, and if my father

She further testified that shortly after Manning was killed some officers came to her brother’s and looked at a gun there, and they were about to lay this killing off on Porter Grace, her brother, because he had had several fights with Manning, and she then told them what appellant had said about killing Manning if he ever crossed his path.

The defendant introduced H. G. Rich, who was sheriff of Nacogdoches county at the time Manning was killed, as a witness, and Mr. Rich testified that he and Mr. Spradley, who is now sheriff of that county, were investigating the killing of Manning; that he (Rich) was at the home of appellant and examined a gun at appellant’s residence, and in his opinion the gun had not been fired for some time. I-Ie furthermore says that Mr. Spradley brought him a gun that he (Spradley) had obtained at the residence of Porter Grace, and said, “This is the gun that ■ killed Tellie Manning.” It is further shown that Poster Grace lived at Waterman, and worked in a planing mill at that place; that deceased had gone to Waterman the morning of the killing, and when killed was returning home from Waterman, and in about a mile of that town. Miss Grace testifies that her brother, Porter, was at Waterman that day, so she had been informed by her brother. Porter Grace was not called as a witness either by the state or defendant. No witness testifies as to the whereabouts of Porter Grace at the time of the killing. The defendant’s testimony had placed him in this neighborhood, in less than a mile of the scene of the killing; that he and deceased had had several fights some time prior to the homicide, and just before deceased was sent to the epileptic asylum at Abilene — he having just returned from that place on Sunday before he was killed on Tuesday — that a gun was obtained at the home of Porter Grace, which Mr. Spradley said in his opinion was the gun used in killing Tellie Manning. As Mr. Spradley was a witness in the case, and no question asked him in regard to the matter, the testimony of ex-sheriff Rule as to what Mir. Spradley said was inadmissible, and an objection to it should have been sustained.

No one saw the shots fired that killed Manning. The case against appellant was one depending on circumstantial evidence, and we will say here that we do not think the contention of appellant that it is insufficient to sustain a conviction should be sustained. We would not reverse the ease on that ground, but we are of the opinion that when the evidence of Rev. Mr. Martin and Mrs. Jones is considered, together with the other facts and circumstances in the case, the evidence would support the verdict of the jury. But the fact it would do so does not alter the rule that the case must be reversed if tlie court did not submit all the issues made by the testimony.

The appellant, when the court’s charge was presented to him', excepted to the charge:

“Because the court nowhere instructs the jury in his main charge that if they believe from the evidence or if they, have a reasonable doubt therefrom that Porter Grace or Earnest Burk-halter killed deceased or if the circumstances do not exclude the idea that Porter Grace or iiarnest Burkhalter killed deceased, then they will find the defendant not guilty, and defendant now requests that the court give to the jury his special charge No. 3, submitting said issue.”

In his special charge No. 3 he specifically requested the court to submit that issue, which charge was by the court refused. So if the issue was raised by the evidence that Porter Grace may have killed the deceased, the failure of the court to submit it is raised in a way that we must and should consider it. The court in his charge, in submitting the law governing a ease depending on circumstantial evidence, instructed the -jury that:

• “The circumstances, taken together, must be of a conclusive nature, tending on the whole to a satisfactory conclusion and producing, in effect, a reasonable and moral certainty that the accused and no other person committed the offense charged.”

lie also instructed the jury:

“If you have a reasonable doubt as to whether or not the defendant, John Burkhalter, was present at the time and place that Tellie Manning was shot, if he was shot, you will give the defendant the benefit of such doubt and acquit him.” ,

And then gave the law governing the presumption of innocence and reasonable doubt.

And if this was an original proposition, the writer would be inclined to the opinion that the jury could not be misled as to the law governing the case when thus instructed; but it appears that this indentical question has been before this court, and it was held such error as to require a reversal of the case, to fail to charge the jury that if they believe from the evidence that Porter Grace may have shot and killed the deceased, or if they had a reasonable doubt about the matter, to acquit appellant. In the ease of Wheeler v. State, 56 Tex. Or. R. 547, 121 S. W. 167, in discussing the identical question here presented, the court said:

“The charge upon alibi and that upon circumstantial evidence negatively, perhaps, presents the issues. It has been, as before stated, the universal rule in Texas to hold that wherever a defensive matter is set up, and supported by facts, the accused is entitled to an affirmative charge on that defensive matter. The law is not satisfied with a negative presentation, and it has been held directly that where there is evidence that another, or others, may have committed the crime, and not the accused, the court must submit this issue to the jury. Kirby v. State, 49 Tex. Cr. R. 517,93 S. W. 1030. Por a discussion of the matter generally, see Harrison v. State, 47 Tex. Cr. R. 393, 83 S. W. 699; also Hart v. State, 15 Tex. App. 204, 49 Am. Rep. 188; Mclnturf v. State, 20 Tex. App. 335; Eeonard v. Washington Territory, . 2 Wash. T. 396, 7 Pac. 878; Kunde v. State, 22 Tex. App. 97, 3 S. W. 325; Coffelt v. State, 19 Tex. App. 436; Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174; Sawyers v. State, 15 Lea (Tenn.) 694.”

The state insists that in the case of Brown v. State, 74 Tex. Or. R. 356, 169 S. W. 437, this court to some extent modified the rule as announced in the Wheeler Case, supra, but from a reading of that case we do not think it will bear any such construction. In the Brown Case it was pointed out that the testimony did not place the other Brown in such proximity to the place where the offense was committed that he could have committed the offense, and for that reason no charge presenting that issue was required. We cannot so hold in this case. The evidence and all the evidence places Porter Grace in such proximity to the place where the offense was committed that he could have committed the offense. In the Brown Case 'the state, when the defendant sought to raise the issue that the other Brown might have committed the offense, introduced evidence as to the location of the other Brown and placed him in Comanche county, a long ways from the scene of the homicide in Brown county. In this case when the defendant sought to raise the issue that Porter Grace may have committed the offense, and by his testimony placed him in at least a mile of the scene of the homicide, the state made no effort to' account for the whereabouts of Grace at the time of the homicide.

It seems to have become a settled rule of law in this state, that when the testimony of a defendant, in addition to his plea of not guilty, introduces evidence setting up a distinct defense, that such defense must be affirmatively presented in the charge of the court', and a negative presentation of such an issue is insufficient. Davis v. State, 63 Tex. Cr. R. 485, 141 S. W. 43; Holt v. State 57 Tex. Cr. R. 434, 125 S. W. 43; Coleman v. State, 54 Tex. Cr. R. 396, 112 S. W. 1072.

The charge on alibi is criticised by appellant, and a special charge requested on that issue. In a case like this, one where the defendant admits that he was in 250 yards of the scene of the homicide at the time of the commission thereof, it would be better to more fully present that issue and on another trial make it applicable to the evidence adduced on the trial.

While it is always permissible for the state to introduce conversations had with the defendant, while not under arrest, relative to the crime he is on trial for having committed, and prove statements made to him calling for a denial, and that he made no denial, or made a qualified admission, yet witnesses should not be permitted to testify “they told appellant a great many things damaging to him,” etc. The court endeavored to keep such expressions out, and admit only legitimate testimony along this line, but we call attention to this matter so that on another trial such expressions as that above will not be allowed to creep into the record.

As before said, we have read each bill of exception in the record, but do not deem it necessary to discuss any of the others. Some of the matters complained of will not occur on another trial, and the others present no reversible error.

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

      <S&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    TAYLOR v. STATE.
    (No. 4002.)
    (Court of Criminal Appeals of Texas.
    March 22, 1916.)
    1. Criminal Law &wkey;j595(9)—Continuance-Absent Witnesses.
    Whore defendant’s wife would have testified that on the day of the alleged offense he and she spent the day at the home of another, and defendant denied the commission of the offense, a continuance to procure the testimony' of his wife, who was ill with typhoid fever, was improperly denied; it appearing that defendant’s alleged hosts testified that defendant spent a different Sunday with them than the one claimed.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. § 1323; Dee. Dig. <§=>595(9).]
    2. Witnesses <§=318 — Corroboration — Admissibility.
    Where accused claimed that on the day of the offense he was not at home, and , a witness testified that on such day, while on his way to visit a neighbor, he saw and conversed with accused, the state is not, the witness not having been impeached, entitled to introduce evidence showing that the witness did on the day mentioned visit the person claimed.
    [Ed. Note.—Por other cases, see Witnesses, Cent. Dig. §§ 1084-10S6; Dec. Dig. &wkey;31S.]
    3. Criminal Law <&wkey;440—Evidence—Admis-sibility.
    Where in a rape case the parents of prose-cutrix testified she was bom one year after their marriage, the record of the marriage license, being properly proven, is admissible to establish the date of the marriage, and show the age of the prosecutrix.
    [Ed. Note.—Por other cases, see Criminal Law, Cent. Dig. § 1026; Dec. Dig. <§=440J
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Gus Taylor was convicted of rape, and lie appeals.
    Reversed and remanded.
    Greenwood & Short, of Seguin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of rape, and' his punishment assessed at five years’ confinement in the state penitentiary.

The most serious question in the case-is presented on the application for a continuance. That diligence was used is unquestioned. The subpoena had been duly issued and served, and the affidavit of one doctor and the certificate of another are attached to the application, certifying that appellant’s wife had been sick with typhoid fever and was unable to attend court. The date of the alleged offense is fixed as the third Sunday in May, 1915. Appellant on this trial swears that on this day he was not at home, and that he and his wife spent that day at the home of Henry Neal. If he was at the Neal place on that day, it would disprove the case as made by the state’s witness Bertha Du-hart. In the application for a continuance he swears that his wife would also testify that they spent that Sunday at Henry Neal’s. Henry Neal and his wife swear that they did not do so, but that it was the first Sunday in May that appellant and his wife spent with them. He also swears in the application for a continuance that his wife will testify she was with him each Sunday in May, 1915. It is thus seen there is a direct conflict in this testimony, and, if his wife had been present, she would have supported his testimony.

Jarvis Dale, upon whose place appellant lived (as did the prosecuting witness), Jim Jones, a deputy sheriff, J. W. Jones, J. A'. Lynch, R. Imhoff, and J. O. White all testify that they knew appellant, and that his reputation as a peaceable, law-abiding citizen is good. The prosecuting witness swears positively to the act of intercourse. Appellant just as vehemently denies it. No other witness can or does testify to that fact. Under such circumstances we think appellant was entitled to have his wife’s testimony on this contested issue, and the court erred in not granting a new trial, when the materiality of the wife’s testimony became so manifest.

Again, Henderson Duhart, the father of the girl, testified that he passed the place appellant was living on the third Sunday in May, and talked with appellant. Appellant denies that he saw Henderson Duhart on that day, and in this he would be supported by his wife. There was no impeachment of either of these witnesses, but testimony was admitted supporting the state’s witness. Henderson Duhart said when he passed appellant’s house and talked with him he went and spent the day with Nannie McKnight. After appellant testified denying seeing state’s witness and talking with him that day, the state was permitted to call Nannie McKnight and prove by her that Henderson Duhart and his wife did spend the third Sunday in May with her. She knew nothing as to the facts, but was called to prove th..j fact as tending to support Henderson Duhart’s testimony. This supporting testimony should not have been admitted.

Under the record in this case the marriage license, if properly proven up, is admissible, as Henderson Duhart and his wife fixed the age of the girl by the fact that she was born one year from the date of their marriage. Then any proper evidence showing the date of the marriage would be admissible as affecting the age of the girl. However, the record should be properly proven up before being Introduced in evidence.

Tlie other bills in our opinion present no error.

The judgment is reversed, and the cause remanded.

DAVIDSON, J., absent.
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