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

text:
    VICK v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.
    Rehearing Denied June 18, 1913.)
    1. Criminal Law (§ 1159) — Appeal —Review of Evidence.
    Where the sufficiency of the evidence to support a conviction is attacked on appeal, the only question which the appellate court can determine is whether the evidence, if believed by the jury, was sufficient to sustain the verdict; the weight and credibility of the testimony being for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.]
    2. Homicide (§ 254) — Evidence — Sufficiency.
    In a prosecution for murder in the second degree, evidence held sufficient to sustain a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§, 533-538; Dec. Dig. § 254.]
    3. Criminal Law (§ 1064) — Appeal — Review-Motion for New Trial.
    A motion for a new trial, simply complaining that the court erred in refusing certain special charges, was too general to require review on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent., Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    4. Criminal Law (§ 829) — Trial—Instructions.
    The refusal of accused’s requests is proper where they are covered by the charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    5. I-Iomicide (§ 304) — Triai>-Instructions.
    In a prosecution for homicide, where accused claimed that he did not intend to kill deceased but shot off his rifle to scare him and make him leave the premises, a charge that no act done by accident is an offense except where there is criminal carelessness, and that a homicide is excusable where the death of a human being is by accident, and that accused had the right to fire his gun to scare deceased, and if he killed him without intention he should be acquitted, sufficiently presents the defense of accidental killing.
    TEd. Note. — For other cases, see Homicide, Cent. Dig. § 036; Dec. Dig. § 304.]
    6. Homicide (§ 286) — Trial—Instructions.
    Where accused claimed that the killing was accidental, a charge which required the jury to believe that accused fired his gun with intent to kill, and that he did unlawfully and with implied malice shoot and thereby kill deceased, sufficiently • charges on the issue of intent to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§, 586-591; Dec. Dig. § 286.]
    7. Cbiminal Law (§ 1090) — Appeal—Bill on? Exceptions — Necessity.
    Alleged error in the admission of evidence, the asking of questions, and argument of the prosecutor cannot be considered when not presented by a bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    8. Criminal Law (§ 1099) — Appeal—Statements op Fact.
    A statement of facts on a collateral matter, such as a qualification of a juror, must be filed before the court adjourns or it cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. §■ 1099.] - •
    9. Criminal Law (§ 1144) — Appeal —Presumptions.
    Where the lower court heard evidence on the question of the fitness of a juror, it will be presumed on appeal, in the absence of a statement of facts, that the court’s determination was correct and that it correctly overruled a motion for new trial on that ground.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781. 2901, 3016-3037; Dec. Dig. § 1144.] '
    10. Witnesses (g¡ 337) — Impeachment—Former Conviction.
    Where accused testified in his own behalf, evidence of a former conviction had nearly 14 years before is inadmissible to affect his credibility; it appearing that he was only a boy at the time of the conviction, and there being nothing to show he had not reformed.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1113, 1129-1132, 1140-1142, 1146-1148; Dec. Dig. § 337.]
    11. Criminal Law (§ 699) — Trial—Conduct op Counsel.
    The trial court has the power to restrain the prosecutor from asking improper questions merely for the purpose of getting before the jury incompetent evidence prejudicial to the accused and should severely punish prosecutor’s attempt to do so.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1655, 1656; Dec. Dig. § 699.]
    12. Criminal Law (§ 1170%) — Appeal — Harmless Error.
    Where the fact of accused’s former conviction of crime was brought out before the jury, a bill of exceptions to the action of the court in allowing the prosecutor to ask the questions eliciting the evidence shows no error where it appeared that the court ordered the evidence stricken and disregarded by the jury and qualified the bill of exceptions by a statement that on motion for new trial the jurors said they disregarded the evidence, for, where illegal evidence has been admitted and then withdrawn by the court, no reversible error is committed unless some injury is shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    13. Criminal Law (§ 1093) — Appeal—Bill op Exceptions.
    A mere statement in a bill of exceptions that the admission of incompetent evidence, which was subsequently stricken, was prejudicial is not sufficient to show that fact, but the manner of the harm should be shown.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§, 282S-2833, 2919, 2926; Dec. Dig. § 1093.]
    Davidson, P. J., and Harper, X, dissenting in part.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Harrison Vick was convicted of murder in the second degree, and he appeals.
    Affirmed.
    W. L. Eason and Williams & Williams, all of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, J.

On March 8, 1912, the grand jury of McLennan indicted appellant, charging that he unlawfully and with his implied malice killed and murdered E. M. Huckelberry by shooting him with a gun on January 3, 1912. The indictment charged only murder in the second degree. He was convicted for murder in the second degree and his penalty fixed at ten years in the penitentiary.

Appellant’s main contention seems to be that the evidence is insufficient to sustain the verdict. This point is pressed with much earnestness and vigor by appellant’s able attorneys. Whenever it is necessary for this court to pass upon that question in any case, it is only necessary to determine from the evidence whether it is sufficient, not that there may have been ample evidence to have authorized an acquittal. Whether the evidence is sufficient to sustain a verdict is a question of law which this court can and does pass upon. This court does not pass upon the weight of the evidence nor its credibility. Those questions are alone for the jury. So in this case we have considered the evidence from the standpoint of whether or not, if believed by the jury, it was sufficient to sustain the verdict. The statement of facts is voluminous. Xet we have carefully gone over it again and again and considered it thoroughly. It is our opinion that the evidence was amply sufficient to sustain the verdict. We will not undertake to give the evidence in full. It is unnecessary. We will give a summary of some of it on the material points without undertaking to quote it, except in some instances.

For some three years or more appellant had owned or controlled and with his wife (they having no children) lived upon a farm in McLennan county some mile or two west or southwest from the city of Waco. One of the public roads from the city of Waco runs along one of the sides of this farm. Through the farm a branch or ravine ran about 450 yards from appellant’s house, on which branch there were at different locations some trees, undergrowth, briars, etc.; in one place there was considerable of this. So much so that from some places in it a person could not see appellant’s barn at his house and could not be seen therefrom in said thicket. There were different paths running through this thicket, and from certain points along the path a person could see appellant’s barn and a person therein and there along could be seen from appellant’s barn. January 3, 1912, was a real cold, though quite bright, sunshiny day. On the morning of said day the deceased, Huckel-berry, and his friend Horsfield procured double-barrel shotguns and a buggy and went hunting for birds a few miles west of Waco. After hunting in localities west of appellant’s farm until just at noon or just prior to noon of that day, they started back towards Waco along the public road, and when they reached said branch they saw birds in appellant’s field about or around said thicket, and they hitched their horse and went over into appellant’s field near this thicket for the purpose of hunting and killing birds. Prom where these parties entered appellant’s field, and for some distance until they reached a thicket therein, they were in plain and open view from appellant’s house and barn. The distance was about 450 yards. As soon as they entered appellant’s field with their guns, he, being out at his barn, 'saw them and holloed to .them to get off of the place. Horsfield testified that he heard very distinctly a man’s voice say, “Well, you fellows get to hell off of there;” that when he heard that he called to Huckelberry to “Come on and let’s get off of here.” Huckel-berry replied, “To the dickens with that fellow ; I am going to get one more shot at these birdsand Huckelberry continued from where he then was on into the thicket on said branch. Horsfield immediately started back and went out of appellant’s field.

Appellant with some two or three other men, on said day and at said particular time, just before or just at 12 o’clock, was working on his barn. E. H. Meir was one of these. He testified that appellant holloed a couple of times before he got his gun, saying: “He first holloed at them, you know; yelled ; and then he says, ‘You had better get out of here.’ ” Again he testified: “I did not look to see where the parties were when he first said to get out. I am not sure how long it was from that time until he actually shot. I should judge it to be about five minutes. I think Mr. Yick holloed about twice, and then he went to the house and came back with a gun, and he stood there. When he holloed again he says, T will give them time to get out,’ or T have to give them time.’ Then he just stood there, and finally that fellow on the hill did not make any move and he [appellant] says, ‘Well, I will just shoot right through the thicket, and if they hear the bullet through the trees I guess they will go out.’ It was after he was with the gun when I first looked to see the parties in the field. That was when I looked.” Again he testified: “When he. [appellant] ordered the parties off the place, he yelled first • right loud, and then he says, ‘You had better get out of here.’ That is what he said. That is the exact language. That is what I understood.” Again he said: “He [appellant] waited a little while after he holloed. He says, ‘You had better get out of there.’ He says, T will give them time to get out; I have to give them time.’ He did not take any longer time than I have suggested there.”

The testimony without contradiction further shows that immediately after- appellant holloed, as stated above, he went to his house, got a 44 Winchester rifle, came back out in his lot, placed it np in the fork of a fence post, pointed it over towards this thicket, and fired it. E. H. Meir further testified that appellant shot, he judged, right towards the thicket. Appellant himself testified that he thinks he told Meir that he would go to the house, get his gun, and shoot over there in the brush; that he could not himself tell where he shot only over in towards the bushes. By actual measurement it was shown to be 449 yards from this forked post where appellant shot this Winchester rifle to the feet of and about where deceased must have been standing or walking at the time he was killed. It was clearly shown that the deceased was shot with a 44 Winchester ball from the front, near his heart, and that the ball passed entirely through his body, lodging in his outer clothes on his back, and that the shot produced immediate death. The deceased fell prone, with his head directly towards appellant’s barn and his feet directly back therefrom. This Winchester rifle was afterwards experimented with and shot with the same character of loaded shells that appellant used when he shot, and that it had a carrying distance of perhaps fully 1,200 yards. Mr. Forsgard, an expert, shot it, standing at the point where deceased’s feet were, when he was found dead, at the sheriff’s hat stuck up on appellant’s barn at about the same height as the shoulder of a man holding a gun, at- the place where appellant shot this gun, and the ball struck said barn a short distance beneath this hat, and that the ball went through two one-inch planks into the barn and fell therein.

After ' deceased and Horsfield separated when appellant holloed at them ordering them out of his field, deceased went into said thicket where his dead body was found that night. Horsfield went out into the public road and where they had hitched their buggy, waiting there for some time for Huckelberry to return, thinking he would return when he got through hunting the birds in appellant’s field. However, after waiting several hours, he concluded that deceased might have gone on towards Waco through appellant’s field, caught the street car, which was not a great distance therefrom, and gone on home; and after waiting this length of time Horsfield went bach to Waco to his home. He there began to inquire if Huekelberry had returned, but could not find that he had. Still thinking he would turn up in Waco, he waited till along about night, then called and told the officers and others of his alarm about Huekelberry, not knowing whether he had gotten lost or been killed. When he did not turn up, some of the officers and friends of deceased, after being told the circumstances by Horsfield, went out to hunt for Huekelberry. They first went to appellant’s house, reached there about or just after 8 o’clock that night; appellant and his wife had retired and were in bed. The officers had some little difficulty in getting appellant aroused. When they did, they told appellant they were out hunting for what they supposed to be a lost man, and that the last seen of him he was on his (appellant’s) farm down near or at this thicket; and asked permission of appellant to go down into his field in this thicket for the purpose of hunting for Huekelberry. Appellant offered or wanted to go along. The officers declined to let him go. After getting this permission the officers and party drove their buggy down towards this thicket, but not to it, tied their horse to the fence, and went down into this thicket hunting for Huekelberry. They then separated; the officer going in one and tbe friend in another direction. Very soon the officer found the dead body of Huekelberry in this thicket, lying on his stomach, and at once called his friend, and they saw that he had been shot and killed. Deceased had his double-barrel shotgun with him. The officer at once examined the gun, thinking perhaps the deceased had accidentally shot and killed himself. But upon examination found that both barrels of the gun were loaded and that his body had not been shot with a shotgun but with a rifle ball. They at once started back towards appellant’s, and immediately after getting out of this thicket met appellant coming directly from his house to where they had found the body of the deceased. When they told him that they had found the dead body, appellant wanted to go down with them and see it, but they declined to permit him to do this, and told him to go back to his house and remain there; that he could be of material service to them in the matter; and that they would go to the nearest phone and phone for the justice of the peace and for an undertaker to convey the body back to Waco. Appellant replied, “All right, I will be here when you get back; I have done carried my wife away anyhow, and I will be right here when you get back.” This officer further testified that while they were gone down from appellant’s house to this thicket where they found this dead body, and that before they returned to appellant’s house, and as they met him, as stated above, he going down there and they declining to go back with him and insisting that he go back with them to his house, he told them that he had carried his wife away from his house and had taken her to one of his neighbor’s who lived only a few hundred yards from him towards Waco, and the officer was positive that appellant so told him at this time and not at a later time. It was further shown that, when the officer Hatch and the party who was with him first went to appellant’s house and aroused him, they told him that they came out to hunt on his premises for a lost man and then asked him if he had seen anybody around on his place hunting that day. Appellant said, “Yes, they are just worrying the life out of me out here; there were some out here this very day hunting.” That his wife spoke up and said, “Yes, they are worrying the life out of me.” Appellant then said, “Yes, they shot some of my stock in the eye,” or something. He says, “We are getting awful tired of these people hunting on my place here, and I am going to put a stop to it.”

Clyde Billingsley testified that on Christmas day of 1911, which was only some week or ten days before deceased was killed, he and a boy friend, Willie Hood, were out in appellant’s field about this same thicket with their guns shooting at wheat birds, robins, and things like that; that appellant saw them and holloed at them to get out of there; that they did not at first understand and went on. He then holloed and said, “I said •get out of there;” and Willie Hood said, “Well, give us time;” and appellant replied, “I will see if you don’t,” and was using profane language directed to them; that appellant then started and ran back to his house, got his gun, and ran down towards them and shot directly at them with his gun; that he came very near hitting them, the bullet passing right over their heads and very close to them. They were then walking along talking, going out of his field, and when he shot at them they both ran as rapidly as they could and got out. Willie Hood testified substantially the same thing.

C. T. McCoy and W. W. Bell, both barbers living in Waco, testified that on Thanksgiving day, which would be the last of November, 1911, some five or six weeks before deceased was killed, they went hunting with their dogs and guns and as they were passing along this road beside appellant’s farm they saw some birds down towards this thicket and their dogs flushed a covey of partridges; that they thereupon got out, went over in appellant’s field towards this thicket and near to it for the purpose of shooting these partridges and other birds which they saw there; that appellant saw them and came down toward them running and cursing and holloeing, “Get out of here; you can’t hunt in here; get out of here.” And said, “You all get to hell out of here;” and he cursed them, and as soon as he got near enough to them they told him they were going out if he didn’t want them in there, and he said, “Well, God damn you, I mean it too.” He then turned around, ran to his house, got his gun, came running back towards them, and when he got out in his yard he leveled his gun at them and fired.

It was shown that Mr. Williams, an old man, the uncle of Mrs. Yick, wife of appellant, lived about 200 yards from appellant towards Waco, and that at that time he took his meals with them; that appellant had at his- house said Winchester rifle, which belonged to said Williams, and had had it there continuously from some time in February, 1911, until the night of the day that deceased was killed;. that as soon as the officers first came out and told appellant they were hunting for this lost man and asked him if he had seen him on his premises that day, and got his permission to go down and hunt for him, and as soon as the officers left, Mrs. Vick, appellant’s wife, testified that she told her husband that she was not going to stay there by herself and for him to take that “darned old gun home.” She claims that' this was after the officers had told them that they had found the body of this dead man. The officer, as stated above, swore that when he first went back to appellant’s house, just after they found the body of deceased, appellant not only then told him but, as a matter of fact, while they were gone down there, he took his wife from his home to one of the neighbors. Appellant himself testified that he went back, and, when he told his wife the officers had found the dead man and wanted him to stay at his house till they returned with the justice of the peace and undertaker to get the body, that she said she did not want to stay there but wanted to go somewhere, and she said, “I want you to take that old gun away from here.” Appellant replied, “There ain’t nothing going to bother me;” they both then testified that appellant did that night take this Winchester rifle from his house to Mr. Williams, her uncle, and that he that night left it there. The evidence further shows that at no time during this night or at any other time did appellant tell the officers or any others that he had that Winchester rifle at his house and shot it that day, as shown above, and said nothing to them whatever about it; that they hunted for two or three days for such a rifle and repeatedly went through appellant’s house hunting it and could not find it therein, and only found a little 22 target rifle in his house; they tried to find the said Winchester in said Williams’ house; that it took them some time to do so — two or three days — and when they did they1 found it back in the room b.ehind a window facing, and, while it was not exactly hidden, that it was so placed that it could not readily be seen, and it took some search to find it. Appellant, when pressed on cross-examination, could not give and did not give any satisfactory reason why he did not tell the officers about having that gun and having shot it that day, and he did not tell the officers that night or at any other time that he had taken that gun from his residence back to his uncle’s.

• There was much experimenting by many of the witnesses as to whether or not a person standing where the feet of the deceased were when they found his dead body could be seen by a man standing at the post at the barn from which appellant fired said Winchester. And vice versa whether a man standing at this post could see a .person standing ^Vhere the feet of deceased were where his body was found. -Some of the witnesses testified that they did not see and could not see appellant’s barn, nor a man at said post standing where the feet of the deceased were found, and vice versa that standing at said post they could not see a person standing at a point where deceased’s feet were when found. Some -witnesses, however, for the state testified that they could see said barn from where deceased’s feet were found, and some that they could stand at the post where said barn was and see a person standing at the feet of deceased, or at a point two feet south therefrom. In other words, the testimony was sufficient to show that deceased could have been seen by appellant at the time he fired said shot. Appellant claimed on this point that a hill on said branch was a physical obstruction so that persons standing at the two respective points could not see or be seen by one another. The state introduced a civil engineer who had made an accurate topographical survey, and he showed that this hill did not obstruct this view. In addition, as stated above, Forsgard actually stood at the point where the feet of the deceased were found, and shot the same rifle that appellant shot at the hat of the sheriff stuck up on the end of said barn at about the same height that appellant must have had the gun when he shot it, and that he missed the hat only a few inches and struck the bam below the hat. These physical demonstrations showed without question that a ball fired from the Winchester rifle towards said thicket by appellant could have and in all probability did strike deceased and killed him. AH of this was for the jury. The evidence on this point was amply sufficient to sustain a finding either way. Taking the whole testimony on this point, we think the evidence establishes, without doubt, that the ball fired from this Winchester rifle by appellant struck and instantly killed deceased. The evidence did not justify any other finding, and there is no evidence tending to establish that any other shot, or person, killed the deceased. It is unnecessary to further state the evidence.

The first 11 grounds of appellant’s motion for new trial, and his bills of exceptions on that subject, complain of the refusal of the court to give his said 11 special charges. These grounds of the motion, under the uniform holding of this court, are too general to require the court to consider them. As a sample of them we give the first. It is: “The court erred in refusing defendant’s special charge No. 1, which is as follows:” Then quotes the charge and no more. It is true that after the adjournment of the court appellant prepared, the court allowed and was then filed, a bill of exception to the refusal of the court to give this, as each of said other special charges. In that bill thus made and filed, after the adjournment of the court, appellant undertakes to give the reasons why he asked such a charge. But none of this is stated in the motion for new trial or otherwise in the record, during the term of court. That such grounds of the motion are too general, under the holding of this court, to require this court to review them is without question. It is unnecessary to cite all of the cases on this point, but see Byrd v. State, 151 S. W. 1071, and authorities there cited.

Notwithstanding these assignments are entirely too general to require this court to review them, yet we have carefully examined each of them, and In our opinion the court properly refused to give any of them. Wherever the question attempted to be submitted by any of these special charges was necessary or proper to be submitted, it was correctly, fully, and aptly submitted in the charge of the court.

In the twelfth to sixteenth, inclusive, of the grounds of the motion for a new trial are complaints of some word or short paragraph of the court’s charge. We have carefully considered each of these. It is unnecessary to take them up separately. In our opinion none of them show any reversible error whatever or any defect, in fact, in the court’s charge complained of, when the charge as a whole is taken together, which is necessary to be done.

The seventeenth paragraph is: “The court erred in failing to charge affirmatively on the issue of accidental killing; this being one of the main defenses.” This is the whole of the complaint. It too, like all the others of appellant’s complaints of the charge of the court, is too general to require this court to review it. However, we have considered every one of them, and no reversible error is shown by any. Take this ground as a sample. It will be seen that the complaint is not of the charge that the court did give on accidental killing, but that the court failed to charge affirmatively thereon. The court did give on this subject a full, fair, and apt charge. It covered the case and every point of it as made by the evidence. It is as follows: “You are further charged that no act done by accident is an offense except where there has been a degree of carelessness or negligence which the law regards as criminal, and homicide is excusable when the death of a human being happens by accident or misfortune, though caused by the acts of another who is in the prosecution of a lawful object by lawful means; and, as heretofore instructed, you are charged that the defendant at the time of the alleged killing had the legal right, with such care and caution as a man of ordinary prudence would exercise under the same or similar circumstances, to fire off his gun for the purpose of frightening the deceased or alarming him to cause him to leave his premises, if he was hunting thereon, or was on there without the defendant’s permission, and if you believe from the evidence that on the date of the killing, if the defendant,, not knowing the deceased was in the thicket on his premises, shot in that direction for the purpose of alarming the witness Horsfield to make him leave said premises, or if you believe that the defendant knew the deceased was in said thicket, but fired off his gun to alarm him and make him leave said premises, using at the time such care and caution as a man of ordinary prudence would use under like circumstances, then you will acquit him.”

Appellant’s eighteenth ground is that the court erred in failing to charge affirmatively on the issue of intent to kill; this being one of the main defenses. The charge of the court did submit this issue specifically to the jury and required the jury to believe beyond a reasonable doubt, with all the other requisites, that the appellant must have fired the gun “wth the intent to kill” ; and it also required the jury to believe in like manner that he did unlawfully and with implied malice shoot and thereby kill deceased. It is unnecessary, in our opinion, to take up and review any of the other of appellant’s complaints of the charge of the court. We have carefully considered them all, and none of them present any reversible error, if even any slight technical error at all.

The court charged on murder in the second degree, manslaughter, negligent homicide of the first degree, accidental killing, reasonable doubt between different degrees, and reasonable doubt. In our opinion it is one of the most complete, apt, full, and accurate charges we have had to consider, and, in our opinion, it properly submitted every issue that was authorized or justified by the evidence and was strictly in accordance with and applicable thereto.

Some grounds of the motion for new trial complain of the argument of the county attorney in some particulars, and of his asking some questions about a written statement made by appellant, and of the admission of the testimony of said witnesses Hood and Billingsley, and also of McOoy and Bell, but none of these matters are presented by bill of exception and of course, not being so presented and verified, cannot be considered by this court. .

In one ' ground of appellant’s motion for new trial he complains that one of the jurors, Edwards, was not a qualified juror; and in another he complains that the jury separated. Neither of these matters is presented by a bill of exception. The record, however, shows that the court on these two grounds of appellant’s motion heard the testimony of many witnesses. This evidence embraces 43 typewritten pages and shows that many witnesses were examined and testified, among them all but one of the jurors, and that the court, after hearing all this testimony, overruled appellant’s motion on those two grounds as well as all the others. This ease was tried at the term of the district court of McLennan county, which convened on March 4, 1912, and adjourned on May 15, 1912. The motion for new trial was overruled on May 12th, and notice of appeal then and there given. Said statement of the testimony on said two grounds of appellant’s motion is entirely separate and distinct from the statement of facts on the trial of the cause, and it was not filed in the lower court until July 11, 1912, 60 days after the overruling of the motion for new trial and 57 days after the adjournment of the court. It has always been held by this court in a uniform line of decisions that a statement of facts on such collateral matters, as presented by these two grounds of the motion, must be filed before the court adjourns; otherwise this court cannot consider them. See Knight v. State, 144 S. W. 981; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263, and the authorities cited in those cases.

This court, therefore, cannot consider this statement of facts on said two grounds of said motion, and without a statement of facts, it clearly appearing that the court heard testimony, we must conclude, as the law requires, that the court correctly overruled the motion on said grounds.

There is but one other question necessary for us to review and decide, and that is whether or not the acts and conduct of the county attorney and presiding judge in xoermitting the questions which were asked of appellant, when he was on the stand, about a former conviction for horse theft, for the purpose of affecting his credibility. This is shown by appellant’s bill of exception, which shows: That, after the conclusion of his direct examination as a witness, in his own behalf, appellant’s attorneys approached the court’s desk and upon their invitation the county attorney joined them. That out of the hearing of the jury his attorneys informed the judge that he had been convicted of horse theft in that court more than 13 years prior to that time and while he was a boy, and that he had been fully pardoned, exhibiting his pardon papers to the court, and claimed that his said former conviction was not admissible against him because it was too remote and was when he was a boy and because of said pardon. That the court then stated he thought the former conviction was too remote and not proper to go to the jury. His attorneys then asked the county attorney if he would observe said ruling of the court and not attempt to elicit said information before the jury. The county attorney replied that he would not but that he would inquire into said conviction. Thereupon his attorneys moved the court to instruct the county attorney not to ash questions seeking to elicit such information and prohibit him from doing so. The court stated that he knew of no rule of law authorizing him to so instruct the county attorney and overruled his motion, to which he excepted. That all of this occurred out of the hearing of the jury. That afterwards, and while appellant was testifying on cross-examination, the county attorney, over his objections, asked him in the presence of the jury if it was not a fact that he had been convicted for horse theft in that court; his grounds of objection being as above stated and that it was highly prejudicial to his case. The court at the time made no ruling. Before the question was answered and the court ruled, the county attorney asked the deputy clerk of the court to bring the minute book showing Ms conviction, to which appellant objected because it was improper, prejudicial, and too remote, and still the court made no- ruling. After the clerk brought said minute book into the courtroom and in the presence of the jury, the book was passed to the judge, and after reading it to himself he stated that the defendant’s objections to the effect that said conviction was too remote were well taken and he sustained it and would not permit said book in evidence and would not require appellant to answer. The court, thereupon instructed the jury not to consider what had just occurred in their presence.

We have given above the substance in full of said bill. The court, in allowing it, qualified it by stating, “The testimony of the jurors on the motion for new trial shows that this matter had no effect on them and they did not at the time of the trial know defendant had been to the pen.” This bill as thus qualified was accepted and filed by appellant and is the only bill presenting the matter to this court for a review.

This court has never held in any case we have been able to find, after the most diligent search, that the previous conviction for a felony of an appellant, when he makes himself a witness, or any other witness, cannot be proven when such conviction was had 13 or less years theretofore. It has been many times, and in many cases, held that, when a conviction has been for a great number of years, it is too remote and should not he admitted, and if admitted, and it is of such great age, it should cause a reversal. We are not undertaking to review all the eases but will cite some of the most recent ones and all that we have been able to find directly in point. In the case of Bowers v. State, 71 S. W. 284, this court first held that a conviction occurring 18 years before the trial was admissible for the purpose of affecting the credibility of the witness, stating: “The lapse of time since the commission of the crime could not be any objection to the admissibility of the testimony but might go to its weight.” However, on rehearing in that case, it was held that 15 or 17 years was too remote and that evidence of such conviction was not admissible. In Dyer v. State, 77 S. W. 456, Ware v. State, 49 Tex. Cr. R. 416, 92 S. W. 1093, Winn v. State, 54 Tex. Cr. R. 539, 113 S. W. 918, and Hanks v. State, 55 Tex. Cr. R. 455, 117 S. W. 150, 20 years in each case was held too remote. In Wesley v. State, 85 S. W. 802, 25 years was held too remote. In White v. State, 57 Tex. Cr. R. 196, 122 S. W. 391, 24 years was held too remote. In Brown v. State, 56 Tex. Cr. R. 392, 120 S. W. 444, and Bogus v. State, 55 Tex. Cr. R. 127, 114 S. W. 823, 131 Am. St. Rep. 804, and White v. State, 57 Tex. Cr. R. 196, 122 S. W. 391, 15 years was held too remote. Also in the Winn Case, supra, in addition to holding that 21 or 20 years, it also held that 14 years was too remote. But in the recent case of Oats v. State, 149 S. W. 1196, this court held that 19 years and 12 years in that ease was not too remote under the circumstances of that case. So that, as stated above, we know of no decision in this state which has held that 13 years without anything else and without the circumstances being stated or shown is of itself too remote. The true rule is stated in the Winn and Oates Cases, supra, to this effect: “Testimony of this character after a long lapse of years should not have been introduced where there was nothing in the record to show that defendant has not reformed. In other words, the law will not permit the early indiscretions of a witness to be brought into requisition to besmirch and becloud his subsequent life. To do so, as expressed by Judge Green-leaf, * * * would be to preclude any possible chance of a reform and would enable state’s counsel to parade the early misdeeds of a subsequently useful life to be introduced to becloud and discredit the subsequently honorable and useful life.” So that, while this court has never heretofore held in any case that 13 years in and of itself was too remote, yet applying the principle heretofore announced to the facts of this case, and this bill showing that this former conviction of the appellant occurred while he was a boy, as the record shows about 18 years old, and there being nothing in this record or bill to show that appellant had not reformed, and especially as he had been pardoned, the court below correctly held that his former conviction was inadmissible to affect his credibility.

But the court was clearly in error wjien he stated in effect there was no rule of law giving him authority to require or instruct the county attorney not to ask appellant about the former conviction. The court not only had the power and authority to do so but it was without doubt his duty to do so, and not only should he have instructed and required the county attorney not to ask said questions but he should have used the whole power of the court to enforce his instructions. And, if under such circumstances the county attorney still persisted and asked or attempted to ask such question, the court should have inflicted such immediate and severe punishment as would not only deter him, but any other prosecuting officer in future to desist. Appellants, however guilty, or for whatever crime charged, have the right to a fair and impartial trial, and they have the right and it is the duty of the court and the prosecuting officers to see that improper evidence is not admitted or attempted to be introduced.

In the case of Sweeney v. State, 146 S. W. 885, we recently reviewed this question and cited authorities to the effect that the asking of improper questions to elicit improper evidence alone was not sufficient ordinarily to require this court on that account to reverse a case. Such questions might, in some cases, require a reversal. In this, however, we are of the opinion that it is not sufficient to authorize or require this court to reverse this case. As stated above, this court had never before held that evidence of former conviction occurring 13 years before was not admissible for the purpose of impeaching a witness or the appellant himself. In addition, as shown by the bill, the court at last sustained appellant’s objections to said testimony. Also he specifically then and there, as shown by the bill, instructed the jury not to consider what had occurred thereabouts in their presence. And still in addition, in allowing the bill, qualified it by stating that in hearing the testimony of the jurors on the motion for new trial it was shown that this matter had no effect on them and they did' not at the time of the trial know defendant had been convicted. Appellant accepted this bill and filed it, and that is the basis of his complained error now. Besides, appellant in the bill, nor otherwise, shows how or in what way appellant was prejudiced thereby., The mere statement in the bill that it was prejudicial, without stating how or in what way, does not of itself establish any prejudice. In many cases this court has held that, where even illegal evidence has been admitted and then withdrawn by the court, no reversible error is committed. Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Sutton v. State, 2 Tex. App. 348; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Robinson v. State, 63 S. W. 870; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97. “Admissions of illegal testimony will not constitute reversible error unless some injury is shown or reasonably made to appear.” Hooper v. State, 29 Tex. App. 616, 16 S. W. 656. In our opinion, on the whole, on this question, while the action of the county attorney and trial judge was clearly wrong, it is not of sufficient gravity to require this court to reverse. Huggins v. State, 60 Tex. Cr. R. 215, 131 S. W. 596; Sweeney v. State, 146 S. W. 885, and authorities therein cited.

The judgment will be affirmed.

HARPER, J.

(dissenting in part). Under the circumstances of this case I am willing to concur in the opinion, but I do not concur in that part of the opinion wherein it is said that this court has never held 13 years or less would be too remote to show a former conviction. I think the trend of all of our decisions are contrary to that view, and individually I am of the opinion that, unless there is other evidence showing a continuity of criminal acts, a conviction had more than seven years prior to the commission of the offense for which he is then on trial would be too remote and should not be admitted.

DAVIDSON, P. J.

(dissenting in part). The use of prior convictions is for impeachment, and should be and is based upon the idea that the convicted party is or may be corrupt. This must depend upon, to some extent, the subsequent conduct and life of the party. Nothing shown to the contrary, the witness would be presumed credible. Unless something shows to the contrary, this presumption should not be overturned by a previous conviction of any remote date. This remoteness would depend somewhat upon subsequent conduct. Usually I would be disposed to agree with Judge HARPER as to number of years, but I am not prepared to lay down an iron-bound rule as to date. I think questions presented in the bills of exception are sufficiently set forth to require consideration.


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    KAUFMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    On Motion for Rehearing, June 18, 1913.)
    1.Criminal Law (§ 1090) — Exceptions in Lower Court.
    Where the court refused bills of exception stating that no exceptions were made or bili taken on the trial, the alleged exceptions could not be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§ 1093) — Appeal—Bills oe Exception — Sufficiency.
    Bills of exception reciting that witnesses for the state over accused’s objection were permitted to testify to certain facts, to which accused objected on certain grounds and then and there excepted, were insufficient to require or authorize the court to consider them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    3. Criminal Law (§ 372) — Evidence—Similar Offenses.
    On a trial for receiving and concealing stolen goods, the testimony of the thief, from whom it was claimed accused received the goods, that for four years he had a contract with accused and his father and brother by which he and his associates were to steal goods and accused and his father and brother were to buy them from him, and his testimony as to the details of transactions committed in consummation of such agreement, was properly admitted to establish a system of like crimes committed by accused, where the witness testified that the particular goods involved were stolen pursuant to an agreement between him and accused, and the court properly charged as to the purpose for which such evidence could he considered', and that accused could not be convicted for other offenses and required corroboration of the witness’ testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.]
    4. Criminal Law (§ 507) — Instructions— Corroboration of Accomplice.
    On a trial for receiving and concealing stolen goods, the court properly charged that the thief from whom it was claimed accused received the stolen goods, and who testified that they were stolen pursuant to an agreement between him and accused, was an accomplice and properly required corroboration of his testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    5. Receiving Stolen Goods (§ 4) — Acts Constituting Receipt.
    A person who, knowing that goods were stolen, directed the thief to deliver them to him by placing them in his barn received the goods when they were placed in the barn, although he was not personally present and did not manually receive them, and hence the court properly so charged and refused to charge an alibi, though there was evidence showing accused’s absence when the goods were placed iu his barn.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. § 6; Dec. Dig. § 4.]
    6. Criminal Law (§ 721%) — Argument-Comments on Failure to Produce Witnesses.
    On a trial for receiving stolen goods, where the state did not claim that accused personally received them, but only that he directed that they should be placed in his barn, it was proper to permit the county attorney in his argument to refer to accused’s failure to call as witnesses several relatives of his who were present when the goods were placed in the barn and when they were found and taken therefrom by the officers.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721%.]
    On Motion for Rehearing.
    7. Criminal Law (§ 1093) — Appeai>-Bills of Exceptions — Sufficiency.
    A bill of exceptions complaining of the refusal to permit accused on cross-examination of ■a witness to ask if he had ever committed robbery and of his confinement to inquiries regarding thefts and burglaries, because the inquiry was proper, tended to impeach the witness and, because accused expected to prove that the witness had committed robberies and had been in-dieted therefor, was insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    S. Witnesses (§ 345) — Impeachment—Commission of Crime.
    A witness cannot be impeached by proof of his guilt of crimes of which he has never been indicted nor convicted.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    ■■9. Receiving Stolen Goods (§ 1) — Nature and Elements.
    A person who, knowing that goods were stolen, directed the thief to deliver them to him by placing them in his barn was guilty of re-ceiving stolen goods, even conceding that an agreement between accused and the thief, pursuant to which the goods were stolen, would have authorized the state at its option to pros-■eeute accused as an accomplice to the thief.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 1-3; Dec. Dig. § 1.

    For other definitions, see Words and Phrases, vol. 7, p. 5993.]
    10. Indictment and Information (§ 191)— Issues, Proof and Variance.
    The offenses of theft of property, of being an accomplice to the theft of such property, and of receiving and concealing the same property are entirely separate and distinct offenses, and, under an indictment charging one of such offenses, a party cannot be convicted of either of the others.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 265, 604-621; Dee. Dig. § 191.]
    11. Criminal Law (§ 59) — Parties to Offenses — Accomplices.
    A person cannot be an accomplice to the commission of a crime or convicted as such unless there is a principal shown to be guilty of the main offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Sam Kaufman was convicted of concealing stolen property, and lie appeals.
    Affirmed.
    Lively, Nelms & Adams, of Dallas, and W. F. Ramsey, of Austin, for appellant. Ben Savage, of Dallas, and C. E. Lane, Asst. Atty. Gen., for the State.

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

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

   PRENDERGAST, J.

Appellant was convicted for concealing stolen property and his punishment fixed at eight years in the penitentiary.

Most, if not all, of the questions attempted to be raised by him are by some 60 bills of exception. A large number of them were refused outright, by the court, stating that no exceptions were made and no bill taken on the trial. Of course we cannot consider them.

The state claims that the others in no way comply with the rules long and well established, so that this court can review the questions attempted to be raised by them. We will quote two of them in full, except their headings, which merely state the number, style of the cause, and the court where pending. One is: “Be it remembered that upon the trial of the above-entitled and numbered cause the following proceedings were had: Fletcher Howard, a witness for the state, over the objection of the defendant, was permitted to testify that in the latter part of May he (the witness) stole some eggs from the Santa Fé yards and delivered the same to the defendant herein, and that the defendant paid him $24 for same, to which defendant objected because same was evidence as to an extraneous and independent matter and was immaterial, irrelevant, and hurtful to defendant, to which the defendant then and there excepted at the time and now tenders this his bill of exceptions and asks that the same be approved, signed, and filed as a part of the record in this cause. Which accordingly done, this-day of October, A. D. 1912, with this explanation: This matter was admitted as a part of the evidence of an extraneous theft committed under the contract with this witness and other negroes, and the goods delivered to the defendant, and was admitted as evidence of the ‘system.’ ” Another is: “Be it remembered that upon the trial of the above-entitled and numbered cause the following proceedings were had: W. H. Black, a witness for the state, over the objection of the defendant, was permitted to testify that he had shipped 100 cases of eggs from Clifton, Tex., to Ben Ablon at Dallas, Tex., and that thereafter he came to Dallas, Tex., and went to Ben Ablon’s cold storage house and there found several cases of the eggs that were packed like eggs he shipped, and that said several cases of eggs had the name Sam Kaufman on same; that at the time he went to Ben Ablon’s cold storage house and there looked at said eggs; that he had two detectives of the city of Dallas with him; that he found two car loads of eggs in said storage house; and that the cases he saw compared with the ones he packed and shipped from Clifton to Ben Ablon at Dallas; defendant objected because same was as to extraneous and independent matter in no way connected with the case on trial, because there was no testimony showing that the name ‘Sam Kaufman’ was placed upon said egg cases by the defendant herein or that same was done with his knowledge or consent, and because same tended to prejudice the jury against the defendant, was irrelevant and immaterial, prejudicial, and hurtful to defendant, to which the defendant then and there excepted at the time and now tenders this his bill of exceptions and asks that the same be approved, signed, and filed as a part of the record in this case. Which is accordingly done this-day of-, A. D. 1912, with this explanation: This was part of the evidence of extraneous crime admitted by the court as evidence of ‘system.’ ”

These are but samples of all of the others. Some of them may have a little more in the way of objections, others less. Not one of them is in such condition as to require or authorize the court to consider them. Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112; Ortiz v. State, 151 S. W. 1058; James v. State, 63 Tex. Cr. R. 77, 138 S. W. 612. Several other bills attempt to present that the county attorney was permitted to ash a certain claimed leading question. Each of these are as defective or more so than the others, but in no event do they present any error. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215.

One of the most important questions attempted to be raised by most of these bills is appellant’s contention that proof of other like crimes, or crimes of the same nature, alleged to have been committed by appellant, were inadmissible for any purpose. The rule is that independent crimes by an accused are ordinarily inadmissible; that an accused cannot be convicted of the crime for which he is on trial by showing that he committed at other times like crimes. But, while this is the rule, there are exceptions to it as well established as the rule itself. In fact, such exceptions might be considered and are also rules as well established as the said rule above mentioned. These exceptions are stated by Mr. Wharton, one of the ablest law-writers in this country, in his volume 1, § 31, on Criminal Evidence, as follows: (1) As part of the res gestee. (2) To prove identity of person or of crime. (3) To prove scienter or guilty knowledge. (4) To prove intent. (5) To show motive. (6) To prove system. (7) To prove malice. (8) To rebut special defenses. (9) In various particular crimes. In section 35 he says: “Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses .is admissible to establish such knowledge.” Again in section 39 he says: “When the object is to show system, subsequent as well as prior collateral offenses can be put in evidence, and from such system identity or intent can often be shown. The question is one of induction, and the larger the number of consistent facts the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate that they are a part of the system. In order to prove purpose and design, evidence of system is relevant; and in order to prove system, collateral and isolated offenses are admissible from which system may be inferred.” These exceptions or rules are so well established, have been so often applied and held by this court, that we think it is unnecessary to collate them; but see Melton v. State, 63 Tex. Cr. R. 365, 140 S. W. 230, where a few of the cases and authorities are cited. See, also, Hennessy v. State, 23 Tex. App. 355, 5 S. W. 215; Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep. 791; Pelton v. State, 60 Tex. Cr. R. 412, 132 S. W. 480, Ann. Cas. 1912C, 86; Long v. State, 39 Tex. Cr. R. 545, 47 S. W. 363. It is needless to cite the many other cases on these points.

The testimony of Fletcher Howard, who was an accomplice and a negro, was to the effect that he had worked for appellant and for appellant’s brother and father, who run a mercantile establishment in Dallas for a number of years prior and up to the time the offense charged in this case, commencing work with him and them in 1905 or 1906, and had worked for them off and on from that time up to the time of the offense charged in this case or shortly prior thereto; that his work therein was that of a porter in their saloon and driving a delivery wagon for appellant and his said father and brother, or appellant and one or the other of them in their grocery business; that for the years 1909 to 1912, inclusive, he had a contract with appellant and with him and his brother and father to the effect that he and his associates were to steal goods from the railroad cars and wholesale houses in Dallas, and appellant and they would buy them from him and his associates. And this contract was carried out by both of these parties during these years. Then he detailed several such transactions during the year 1912, prior to the time this offense was charged to have been committed; that in every instance appellant bought these stolen goods from him and his associates and paid him and them therefor, knowing at the time that they were stolen and that all these transactions were carried out in consummation and in accordance with said trade between them. It is unnecessary to detail these various transactions. This accomplice Howard was corroborated amply and sufficiently by other witnesses and circumstances tending to show and showing the said several transactions as testified to by Howard. The theft by Howard and his associates of the goods charged to have been received by appellant in this case was clearly and unquestionably established, not only by Howard, the accomplice, but by many other witnesses and circumstances clearly detailed in the evidence. As to these particular goods in this case, Howard testified that in the evening before these goods were stolen at night he and his associate, who was with him and helped steal them, were to deliver them in appellant’s barn for him, situated close to his said store and residence in Dallas. They were so delivered and found in said barn immediately after their delivery . therein. It was also shown that appellant kept his horses at this barn and that he had charge of said barn. The goods eharged to have been stolen and received by appellant in this case consisted of a case of dry goods; different bolts thereof containing, of one grade, 2,747 yards worth about 17% cents per yard, and 768% yards of another grade, worth about 22% cents per yard, and of a total valuation of over $600.

In this case the evidence was amply sufficient to show appellant’s guilt of the offense with which he was charged. The evidence of the various other comparatively recent offenses was clearly admissible in this case to establish, and it did establish, a system of like crimes committed by appellant.

The court in his charge properly told the jury for what purpose they could consider the evidence showing or tending to show said other crimes and that appellant was not on trial for the commission of any of those offenses and they could not convict him therefor.

The court also charged that said Fletcher Howard was an accomplice and fully and properly required the corroboration of his testimony in accordance with law.

The testimony shows that the theft and delivery of the goods in this case occurred about 10 o’clock at night. Appellant also showed that he left his home and store, where said barn was in which said goods were delivered, about or shortly before 8 o’clock that night; that he went to a public speaking in the colliseum at the fair grounds, which was a mile and a half from said barn and said store and residence, and remained at said public speaking until after 10 o’clock and did not return to his said home until 11:30 or later that night. In other words, he showed that he was not at said barn where said goods were placed at the time they were placed there, but at another and a different place. The court did hot charge on alibi. He was requested to charge on that subject. The court gave this charge on the subject of receiving stolen property: “I will define to you npw what the law means by receiving property acquired by theft. You are instructed that if you believe from the evidence beyond a reasonable doubt that the property described in the indictment was obtained from W. D. Stetler by Amos Parker and Fletcher Howard, under circumstances and in such manner that the acquisition thereof comes within the meaning of the term theft, and you further find and believe from the evidence beyond a reasonable doubt that, prior to the time that the same was so taken by the said Amos Parker and Fletcher Howard, a contract and agreement had been entered Into by Fletcher Howard and Amos Parker on the one hand, and Sam Kaufman, or Sam Kaufman and others, on the other hand, that the said Parker and Howard should steal the said property and deliver the same on the premises of the said Sam Kaufman, or in the barn under the control and management of the said Sam Kaufman, or under control of Sam Kaufman and others, and you further find and believe beyond a reasonable doubt that in pursuance of said agreement and contract with the said Sam Kaufman, if any, the said property was so fraudulently taken from the said W. 0. Stetler and so delivered by the said Amos Parker and Fletcher Howard in the said barn or premises, owned and under the control and management of said Sam Kaufman, or under the control of Sam Kaufman and others, then this would constitute the receiving of said property by said Sam Kaufman.” Appellant urges that the court erred in refusing to charge on alibi and in giving the last charge quoted just above.

Mr. Bishop, in his New Criminal Law, vol. 2, § 1139, in treating of the act of receiving stolen goods, says: “The leading doctrine here is that the goods must come under the control of the receiver; yet the control need not be manual. For instance, if they are in the hands of a person whom he can command in respect of them, they may be deemed to have been received. And one who allowed a trunk of stolen goods to be sent on board a vessel in which he had taken passage was held to have received them.”

In 34 Cye. p. 517, in treating of the receiving, it is said:' “To be convicted of receiving stolen goods, defendant must have had such control of the property as amounts to constructive possession, at least; but the possession need not be actual and corporeal. It may be through the instrumentality of another person, and the offender need not have seen the goods.”

In Huggins v. State, 41 Ala. 399, which was a conviction for receiving stolen property, it is held: “The charge given at the instance of the solicitor, to the effect that the defendant might commit the offense without seeing the property, was obviously correct. The defendant could certainly be guilty of committing the felony charged, through the instrumentality of others, without performing the act of receiving or buying in person, or actually seeing the property.”

In the case of State v. Stroud, 95 N. C. 631, it is held: “The court charged, in substance, that if the meat after being stolen was directed by the defendant to be carried to a certain place, he at the time knowing that it had been stolen, it was a receiving in the eye of the law. To constitute the criminal offense of receiving, it is not necessary that the goods should be traced to the actual personal possession of the person charged with receiving. It would certainly made him a receiver in contemplation of law if the stolen property was received by bis servant or agent, acting under bis directions, be knowing at tbe time of giving tbe orders that it was stolen, for qui facit per alium facit per se. It is tbe same as if be bad done it bimself.”

We are clearly of tbe opinion that tbe evidence in this ease justified tbe jury to believe that appellant knew that these goods were stolen by Howard and bis associates and that he directed that they should be delivered to him by placing them in bis barn, which was done. This “was a receiving by him in tbe eye of the law.” It was not necessary under tbe law that he should personally be present nor manually receive the property under tbe circumstances of this ease. Tbe charge of tbe court above complained of was correct, and no charge on alibi should have been given. Tbe court in submitting the case specifically required tbe jury to believe beyond a reasonable doubt that tbe appellant received tbe goods knowing that they were stolen before they could convict him.

Tbe court did not err in permitting tbe county attorney to argue that appellant bad not placed on tbe stand and had them testify any of bis several relatives who were unquestionably shown to be present at tbe time of tbe delivery of said goods in said barn and when they were found and taken therefrom by tbe officers. Sweeney v. State, 146 S. W. 888, 889.

We have carefully considered all of appellant’s claimed errors and have discussed tbe material ones. There being no reversible error, tbe judgment will be affirmed.

On Motion for Rehearing.

In bis motion for rehearing, appellant, by his attorneys, expressly states that, whatever might be their views touching the matters discussed and decided in tbe original opinion, they do not urge any error therein or rehearing thereof. But appellant presents and urges two questions only, which be claims were not referred to in the original opinion.

Tbe first of these questions is that error was committed by the lower court refusing to permit him to ask tbe state’s witness Fletcher Howard and require him to answer, as set up in bis thirty-seventh bill of exceptions. We will here state this bill. After tbe formal part of “be it remembered,” etc., the bill is: “The court refused to permit counsel for tbe defendant, on cross-examination of said witness Fletcher Howard, to ask said witness if be bad ever committed robbery, and was confined by tbe court in bis cross-examination of witness to inquiries to thefts and burglaries, because said inquiry was a proper one, was tending to impeach said witness Fletcher Howard, and tbe defendant expected to prove and could have proven by said Fletcher Howard that be bad committed many robberies and bad been indicted for tbe offense of robbery, to all of which tbe defendant then and there expected at tbe time and now tenders this bis bill of exceptions and asks that tbe same be approved, signed, and filed as a part of the record in this case.” Tbe court, in allowing this bill, qualified it with this explanation: “Tbe court allowed tbe defendant to ask this witness about all indictments against him and also allowed defendant to ask him about thefts and burglaries; these being involved in tbe system and contract be was testifying about. Tbe court did refuse to allow him to be cross-examined as to-whether he was guilty of robberies and other-extraneous crimes which were in no wise connected with tbe offense charged nor involved in its contract and system of tbe Kaufmans and this witness.” By all of tbe decisions of this court this bill is wholly insufficient to require this court to consider tbe' question attempted to be raised. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612. But suppose tbe bill was sufficient to require us to consider it. Taking tbe whole bill and the qualification thereof, it expressly shows that the court allowed tbe defendant to ask this witness “about all indictments against him.” So that the statement in the bill that he expected to prove by the witness that “he had been indicted for the offense of robbery” was not true as a matter of fact. The court, as stated, stated that he allowed him to ask the witness about all indictments against him.

The other feature of the bill shows that he wanted to impeach the witness by proving by him “that he had committed many robberies,” not that he had been indicted or convicted of robbery, but to prove that he was guilty of an independent crime without showing an indictment or conviction therefor.

Mr. Branch, in his Crim. Law of Texas, in section 868, lays down the correct rule in this language: “Mere accusations against or evidence of particular acts of misconduct are not admissible to affect the credibility of a witness. A witness can only be im-i peached as to other offenses by showing that he has been legally charged with a felony or a misdemeanor imputing moral turpitude.” And cites a large number of decisions of this court which clearly support his text. It is unnecessary to cite them here. We have many times recently had occasion to thoroughly investigate the law and our decisions on this subject.

In the recent case of Wright v. State, 63 Tex. Cr. R. 436, 140 S. W. 1109, we held in effect this: “There is no question but that, if a witness was offered for the purpose of proving as a matter of fact that the witness was guilty of specific offense involving moral turpitude or of the grade of felony where no legal proceeding had been instituted against him, such testimony would not be admissible. Conway v. State, 33 Tex. Cr. R. 329 [26 S. W. 401].” And we also held in that case “that where a party is charged by complaint only, and sufficient time has elapsed for an indictment, and none has been preferred, the mere fact of the arrest of a party on a complaint is not legal testimony to go to his impeachment.”

This bill of appellant, therefore, even if considered, presents no error.

The other question urged in appellant’s motion for rehearing is, as we understand it, that the evidence in this case shows that appellant was an accomplice to the theft of the property with which he was convicted of fraudulently receiving and concealing, knowing it to have been stolen, and therefore was improperly convicted for receiving and concealing the property, because he calls attention to two grounds only in his motion for new trial, which he claims raised the question. In the first of these grounds he quotes as follows: “The evidence, if same establishes any guilty connection of the appellant with the property described in the indictment, showed his connection with same to be that of accomplice and not as a principal offender.” It is not stated in this, as is seen, with which particular feature he is an accomplice and not a principal offender, whether the theft of it or the receiving and concealing it. But the other ground 'of his motion for new trial, which he quotes, is to the effect that the evidence “would not show this defendant guilty of either receiving or concealing the property, but would show him guilty as an accomplice in the commission of the offense of theft of the property.” He couples these two grounds as raising the question he urges,, so that, as stated above, as we understand, his contention is that the evidence in the ease shows that he was an accomplice to the theft and not guilty of receiving and concealing the stolen property. This is further borne out by the evidence in the record which appellant quotes, which tends, even from his theory, to show that he was an accomplice to the theft of the property only,

We have carefully considered appellant’s motion and his brief and argument thereon, and the authorities cited. In discussing this question we will not cite the cases to any extent, because the principles that we lay down are so well and thoroughly established that authorities need not be collated.

The offense of theft of property is an entirely distinct and separate offense from that of an accomplice to the theft of such property, and also an entirely separate and distinct offense from receiving and concealing the same property. The theft of it is one offense, an accomplice to the theft of it is another offense, and the receiving and concealing it, knowing it to be stolen, is another offense. An accused cannot be convicted for either of the offenses upon an indictment for one of the other offenses. In other words, an accused cannot be convicted as an accomplice to the theft of the property, nor for receiving and concealing the stolen property, upon an indictment for the theft of it. Neither can he be convicted for the theft of; it, nor receiving and concealing it upon an: indictment as an accomplice to the theft of it. Nor can he be convicted of the theft of it, or as an accomplice to the theft of it upon an indictment for the receiving and concealing it. The principle is clearly illustrated by the opinion of this court through Judge Hurt in McAfee v. State, 14 Tex. App. 675, thus: “A. steals a cow. B., with knowledge-of the theft, buys the cow from A. Shall, we say, thereupon B. stole the cow? Again, A. steals a cow. B. with knowledge of the-theft, buys from A. Are we not forced ro say, therefore, B. did not steal the cow; this, being the real fact of the case? Theft is the fraudulent talcing of property from the possession of the owner, or some one holding-possession for him. There must he a taking, and no subsequent connection with the stolen property, be it in good or had, faith, honest or fraudulent, will constitute theft. If the-evidence fails to connect defendant with the taking, unless by recent possession, this recent possession may be accounted for by proof' of purchase, whether in good or bad faith; and defendant may in lato urge the purchase, notwithstanding he had full knowledge that the seller had stolen the property. It is. true that this would be receiving property knowing that it had been stolen, for which the purchaser, under an indictment charging this offense, could be tried and convicted. But appellant in the case at bar was tried for and convicted of theft. It was this, charge, this offense, he was called upon to meet, and no other; and he had the right to meet and defeat the charge of theft with, any matter which would secure that purpose, although his guilt of another offense should be developed.” This principle has been so. many times and so uniformly held by this, court we do not cite any of the other cases, though they are quite numerous. What is. said in the McAfee Case just above quoted, is equally applicable and might be used as. a complete illustration of each of the offenses. herein above specified, to wit, that of an accomplice to the theft and that of receiving and concealing the stolen property, knowing; it to be stolen.

Again, no person can be an accomplice-without there is a principal, and in order-to convict as an accomplice, even upon.an indictment as an accomplice, the proof must show that there is a principal and that the-principal is guilty of the main offense. In, this instance, that of theft. So-in the offense-of receiving and concealing stolen property. If a party were indicted as an accomplice to, the receiving and concealing the. stolen property, there must be a principal, and- that. principal must be guilty of receiving and concealing it before the accomplice could be convicted as an accomplice to receiving and concealing it.

While the indictment in this case has five separate and distinct counts, as stated by appellant in his motion for rehearing, only one was submitted to the jury. The others were excluded from any submission. The one which was submitted is the one only under which appellant was convicted. So that the case is treated as if only that one count had been in it. The others cannot be used for any purpose.

The evidence in this case cited by appellant in his motion for rehearing in no way intimates or tends to intimate that appellant was an accomplice to the receiving and concealing of this stolen property. He alone is shown in it to be the principal in the receiving and concealing of this property. It is unnecessary to take up and collate the evidence. As we said in the original opinion: “We are clearly of the opinion that the evidence in this case justified the jury to believe that appellant knew that these goods were stolen by Howard and his associate and that he directed that they should be delivered to him by placing them in his barn, which was done. This ‘was a receiving by him in the eye of the law.’ It was not necessary under the law that he should personally be present nor manually receive the property under the circumstances of this ease.”' In the original opinion we also cited and Quoted from the authorities which clearly showed that it was not necessary for the appellant to have been personally present and manually received and seen the property when it was delivered at the time and place which he designated. As stated above, appellant in his motion for rehearing did not contest any of the questions decided in the original opinion and, while not expressly assenting thereto, clearly impliedly did. But, however that may be, we are of the opinion that the evidence which the jury believed clearly established that appellant was guilty of receiving and concealing, the stolen property as a principal, as charged in the indictment, and not as an accomplice to such receiving and concealing.- It might be that appellant could have been prosecuted and convicted, under the evidence cited by appellant, as an accomplice to the theft of the property, instead of having received and concealed it, but he has not the choice. The state has the choice of which crime originating out of the transaction it will prosecute him for. “One answerable for a criminal transaction may be holden for any crime, of whatever nature, which can be legally carved out of his entire offending. He is not to elect, but the prosecuting power is. If the evidence shows him to be guilty of a higher offense than he stands indicted for, or a lower, or of one differing in nature, whether under a statute or at the common law, he cannot be heard to complain; the question being whether it shows Mm to be guilty of the one charged.” 1 Bish. New Cr. Law, § 791; Whitford v. State, 24 Tex. App. 489, 6 S. W. 537, 5 Am. St. Rep. 896; Grisham v. State, 19 Tex. App. 513. “A party may in a criminal proceeding be held to answer for any offense, great or small, which can be legally carved out of the transaction.” Jackson v. State, 43 Tex. 423. “The prosecutor had a right to carve as large an offense out of this transaction as he could, yet must cut only once.” Quitzow v. State, 1 Tex. App. 53, 54, 28 Am. Rep. 396. It is needless to cite the many other authorities to this effect.

The motion for rehearing is overruled.


author: SPEER, J.

text:
    STEPHENVILLE, N. & S. T. RY. CO. et al. v. VOSS et al.
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 31, 1913.
    Rehearing Denied June 28, 1913.)
    1. Death (§ 23) — Right of Action — CONTRIBUTORY NEGLIGENCE.
    Since, under the express provisions of Rev. Civ. St. 1911, art. 4695, the wrongful act sufficient to form the basis of recovery for wrongful death under article 4694 must be such as would, if death had not ensued, entitle the injured party to maintain an action, there can be no recovery for wrongful death proximately resulting from contributory negligence of the deceased.
    [Ed. Note. — For other cases, see Death, Cent. Dig. §§ 25, 26; Dee. Dig. § 23.]
    2. Negligence (§ 141) — Instructions— Contributory Negligence — “Tender Years”— “Immature Years.”
    In an action for the wrongful death of a 14 year old boy, an instruction that a person of immature years need not exercise the same degree of care as is required of a person of mature years was not erroneous in the use of the phrase “immature years” instead of “tender years;” the two expressions being practically synonymous, and it appearing indisputably from the age of deceased that he was of immature years.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. § 141.

    For other definitions, see Words and Phrases, vol. 8, p. 6911.]
    3. Trial (§ 260) — Refusal of Instructions Covered — Negligence.
    In an action for the death of a boy playing beneath a turntable revolved by his companions, an instruction that there could be no recovery if deceased was warned of the danger, and understood such warning and failed to observe same, and his death resulted therefrom, was sufficiently covered by an instruction to find for defendants if deceased had sufficient intelligence to realize the danger in which he placed himself, and of his conduct while there, whether from his own knowledge or from warnings given him, and if his conduct proximately contributed to his death, though defendants were negligent in leaving the turntable unlocked ; and hence the requested instruction was properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.]

      4. Negligence (§ 136)—Injury to 'Minor-Contributory Negligence—Question eor Jury.
    In an action for the wrongful death of a 14 year old boy, who had placed himself beneath a turntable revolved by his companions, which turntable was unusally attractive to children, the question whether deceased was guilty of contributory negligence in playing beneath the turntable was for the jury.
    [Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277-353; Dee. Dig. § 136.]
    Appeal from District Court, Comanche County; J. H. Arnold, Judge.
    Action by F. E.'and Etta Voss against the Stephenville, North & South Texas Railway Company and others. From judgment for plaintiffs, defendants appeal.
    Affirmed.
    Marshall Ferguson, of Stephenville, and Goodson & Goodson, of Comanche, for appellants. Calloway & Calloway, of Comanche, and Wilkinson & Baugh, of Brownwood, for appellees.

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

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

   SPEER, J.

F. E. and Etta Voss sued the Stephenville, North & South Texas Railway Company, John R. Scott, and the firm of Thompson & Scott for damages on account of the death of their minor son, who was killed while playing in a turntable pit belonging to and under the control of the defendants. The defendants answered, among other things pleading contributory negligence of the deceased. There was a trial before a jury, resulting in a verdict and judgment for the plaintiffs for $3,100, and the defendants prosecute this appeal.

The deceased was nearly 14 years old at the time of his death, and the evidence indicates was a boy of unusual intelligence and precocity for one of his age. In company with a number of other boys about his age he repaired to the turntable on the day of his death, and along with the other boys entered the pit beneath the arms of the table proper, and by placing himself between the ties, and by extending himself prone upon the ground, permitted his companions to revolve the table above him. While in this position there was no danger to him, but upon raising his head or limbs he came in eontact with the rapidly revolving table, and was crushed to death. The evidence shows that he was warned immediately prior to the accident by some persons who were present that it was dangerous to get into the pit under the table, and admonished not to do so. He replied that it was not dangerous, and immediately put himself in the position where he was subsequently killed. There is nothing to indicate that the boy was either above or below the average boy of his years in the matter of intelligence. The crucial question in the ease is whether or not the deceased was guilty of contributory negligence.

The present cause of action in favor of appellees, if any exists, is by force of statute (article 4694, Revised Statutes 1911), and, death having ensued, these appellees have a cause of action only in the event their son, if death had not ensued, could have maintained an action for his injuries (Revised Statutes 1911, article 4695). The contributory negligence, then, of the deceased becomes a vital question in the case.

The court thus submits the rule for the guidance of the jury in determining this important issue: “In this connection, however, you are instructed that the conduct of a person of immature years is not to be judged by the same rule which governs adults. While the general rule applied to an adult is that, to authorize a recovery of damages for his injury or death resulting from the fault or negligence of another, he must himself have been free from negligence or fault, the law does not require that a person of immature years shall exercise the same degree of care and caution as a person of mature years but only that degree of care and caution that a person of the same age, intelligence, and experience would reasonably be expected to use under .the same or similar circumstances. Therefore you are further instructed that the term ‘ordinary care’ as applied to Jim Ed Voss would be the use by him of such care and caution as a person of the same age, intelligence, and experience would reasonably be expected to use, and would naturally and ordinarily use under the same or similar circumstances; and, if you find and believe that he contributed to his death by his failure to exercise such ordinary care, you will find for the defendants.” The criticism of this charge is that it was calculated to mislead the jury, and cause them to believe that a person of any age under 21 years necessarily was not held to the same degree of care as an adult. In other words, the deceased being only 14 years of age, the court should have employed the words “tender years” instead of the expression “immature years.” The age of the deceased was such, however, that indisputably he was of immature years, and the cour' committed no error in telling the jury so. That the charge might have been misleading as applied to some cases different from the facts of the present case cannot make the charge harmful in this instance. Besides, we see no advantage which could have accrued to appellant by the use of the expression “tender years” in this connection, instead of that of “immature years,” for the word “tender” in such connection is, for all practical purposes, synonymous with the word “immature.”

The following special charge was requested by appellant: “If you should find from the evidence that just before Ed Voss came to his death the said Ed Voss was warned by any person or persons that it was dangerous for him to play in said pit or under said turntable, and that he might get hurt by so doing, and you believe from the evidence that Ed Voss heard such warning, if any such was given, and that the said Ed Voss was at said time of sufficient intelligence to know what said words meant and to understand said warning, if such words were said or warning was given, and you should further find that the said Ed Voss failed to observe Said warning, if any, and that his failure to do so was negligence in the said Ed Voss as defined in the main charge of the court, and that said negligence on the part of said Ed Voss, if any, caused or contributed to the injuries to said Ed Voss which resulted in his death, then and in that event you will find for the defendants.” This charge was refused because the court was of the opinion the matter had been covered by the main charge, and we concur in that opinion. In the main charge we find this: “Or if you believe and find from the evidence that the said Jim Ed Voss did, on the day of his death and prior thereto, lay down in the pit of the turntable in question between the ties, while the turntable was in motion, and that he intended to permit the said turntable to pass over him, and that the said Jim Ed Voss while so lying in the pit in question, if he did so, raised his head and legs, or his head or leg up to a point that the same would come in contact with the turntable in question in passing over him, and in a position that his head or leg, or both, would be caught and struck by said turntable as it passed over him, and that while in such position the said Jim Ed Voss was caught and killed by the said turntable in question, and if you should further believe and find from the evidence that the said Jim Ed Voss had sufficient intelligence to understand and realize the danger to himself of the situation in which he had placed himself and of his conduct while in said position, whether from his own knowledge and judgment, or from any warning or warnings then and there, or theretofore, given to him, and that such conduct on the part of said Jim Ed Voss, if the same occurred, was negligence on his part within the meaning of that term as heretofore explained to you in this charge, and that such conduct on the part of Jim Ed Voss caused, or proximately contributed to, his death, then in either of these events you will find for the defendants, although you may find from the evidence that the turntable was unlocked and unguarded, and that the same was negligence on the part of the defendants.”

This disposes of all matters save the sufficiency of the evidence to support the verdict. We find from the facts that the defendants were negligent in leaving the turntable, which was under their control, unlocked and unguarded, that the same was unusually attractive to children and persons of immature years, and that the deceased while in the exercise of ordinary care for one of his years and experience, in playing beneath said turntable, was crushed and killed by reason of appellant’s negligence, and that appellees sustained damages in consequence thereof to the amount of the judgment. See Evansich v. G. C. & S. F. Ry. Co., 57 Tex. 126, 44 Am. Rep. 586; G., C. & S. F. Ry. Co. v. Coleman, 51 Tex. Civ. App. 415, 112 S. W. 690; Russell v. O. R. & N. Ry. Co., 54 Or. 128, 102 Pac. 619. The Oregon case of Russell v. Railway Co., last cited, is very much in point. The deceased in that case was a boy 13 years of age. The court there said: “Defendant in this case pleaded contributory negligence on the part of the deceased, and the evidence shows that he drove upon the track without stopping, looking, or listening,, or apparently giving much attention to the train. * * * In a man of mature years we would be inclined to hold that the ease of contributory negligence was so satisfactorily made out that the verdict ought not to-be allowed to stand, but we are not prepared to apply that rule to the case of a boy of the age of the deceased. It is true he was shown to be a bright, intelligent boy, the equal, and perhaps the superior, of many boys of his age. He had driven over this crossing nearly every day for over two weeks, and had been told by his father to be careful at the crossing. A lady had warned him to be careful, and he had answered that he-knew enough to take care of himself, and, no doubt, with the self-sufficiency of youth,, he thought he did. But with, all his intelligence he was yet a child. He ‘thought as a child and understood as a child,’ and in an-emergency he would act as a child, and it would be a harsh rule that would hold him. to the same strict accountability that would be required of a person of mature years. * * * While a boy of the general intelligence of the deceased, as shown by the testimony, approaches in some respects the standard of an adult, it is not for the court, as a matter of law, to say that he had the-judgment, power of reflection, and discrimination to appreciate the full extent of the-dangers at this crossing. This was a matter for the jury.” This excerpt indicates what we think is the true rule in this state; that is, that whether or not a child of the age of the deceased in this instance is guilty of contributory negligence in a given case is á question of fact for the determination of the jury, and not one of law for the direction of the court.

There is no error in the judgment, and it: is affirmed.