author: LATTIMORE, J.

text:
    WILLIAMS v. STATE.
    (No. 4947.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    False Pretenses <&wkey;7(5) — Swindling.
    Where defendant had another person pick up a pocketbook in street in view of proseeut-ingíwitness, which, upon being opened, showed a $1,000 bill, and prosecuting witness, in consideration of a promise of defendant to change bill and give him one-third, gave defendant and his aide a certain sum of money, which was put in the pocketbook, and defendant and his aide went out to change the same and never returned, defendant was not guilty of swindling; mere false promises not being the basis of the criiñe of swindling.
    Appeal from District Court, Cooke County; Chas. F. Spencer, Judge.
    Charley Williams was convicted of the offense of swindling, and appeals.
    Reversed and remanded.
    Culp & Culp, of Gainesville, and McCut-cheon & Church, and Robert B. Allen, all of Dallas, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was tried in the district court of Cooke county for the offense of swindling, and his punishment fixed at confinement in the state penitentiary for the term of two years, and he has brought his case to this court for review.

In our opinion the case should he reversed for any one of several reasons. It appears from the evidence that the prosecuting witness, Powell, -was a colored gentleman of some affluence, owning a restaurant and a rooming house, and living in the city of Gaines-ville, and that the appellant appeared upon the scene one day and took a room at Powell’s house. He at once began to comment, in the presence of Powell, upon his own wealth, asking Powell ttoiich of the banks was the best and most solvent and best fitted to take care of his money, and asking Powell's advice with regard to purchasing and installing a moving picture show for the delectation of the colored population of the city of Gainesville. After having fully ingratiated himself into the good graces of Powell, another colored man by the name of Morgan showed up, and was seen on the streets with appellant. Shortly thereafter, while appellant and Powell were standing in front of the latter’s place of business, Morgan was seen approaching, and when a short distance away he stooped and picked up something from the ground, and appellant called Powell’s attention to that fact! and asked him if he saw Morgan pick that thing up. Powell said, “I seen him pick up something.” When Morgan came up appellant said to him, “What was that you found?” and Morgan said, "I found a pocketbook,” and appellant then said to Morgan that he must “square us up,” and after some further conversation between appellant and Morgan they got upon the porch and turned their backs to the street so nobody could see them, and Powell walked up and looked over their shoulders, and they opened the pocketbook, and Powell says he saw the figures, and that there was a bill with a 1 and three o’s on it. Appellant then said, “We have got to get it changed up,” and said to Powell, “You got any money?” and Powell said he had a little. They then proposed to the prosecuting witness, Powell, that he should raise what change he could, and they would put the money, including that in the pocketbook, in a pot and divide it equally among the three; and the prosecutor then went and got $63 from the bank and gave it to appellant, and shortly1 thereafter appellant and Morgan left, promising to get the money changed and come back and divide with him. As a matter of fact, and of course, they did not return, and the prosecutor was left a sadder and a wiser man, doubtless reflecting upon the adage that certain classes of people are easily separated from their money. He admits that they did not, at any time, represent to him that the money in the pocketbook was theirs, and that his expectation was to get a third of some money that belonged to some unknown person, and that that was his ■ purpose and expectation in parting with his $63.

It is perfectly plain from this statement, and an inspection of the record, that the prosecuting witness was relying wholly upon the false promises of appellant and Morgan, and upon their division with him of an unknown amount of money to which none of them had any sort of claim, and the acquisition of which by them, under the circumstances, if in truth there had been any such money, would have constituted the offense of theft. The prosecuting witness does not claim to have gotten anything of any kind or character from appellant or Morgan in exchange for his money, except the false promises aforesaid.

There is no better settled rule of law in Texas than that mere false promises cannot form the basis of the crime of swindling, and cannot be the basis of a swindling charge. Some attempt is made by the able state’s counsel who drew the indictment to so frame it as to make it appear that the representation by appellant and Morgan that the pocketbook was found was the false representation relied upon by the prosecuting witness, and was a representation of something present or past. We apprehend that the thing which induced the witness Powell to part with his money was the promise of appellant' and Morgan, at the time the money was delivered to thenf and prior thereto, to get it changed up and give to him one-third of it. It is exceedingly doubtful whether one who parts with his property in actual exchange for property delivered to him which he knows to be stolen, and to which he knows he can acquire no title by the transaction, could under such circumstances be deprived of his property in such way as to make the offense swindling. He knows that the parties with whom he is dealing acquired the property without the knowledge or consent of the owner, and that they have no title thereto. He is bound to know that if they promise to deliver it to him in exchange for his property, and do so actually deliver it to him, that he is getting nothing and is parting with his property for the delivery to him of something to which he can have no possible title.

We do not think the facts in this case, as set forth in this record, sustain the charge of swindling, and the judgment of the lower court is reversed, and the cause remanded.
      ©isFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    SHIPP v. STATE.
    (No. 5327.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    1. Receiving Stolen Goods &wkey;>7(3) — -INFORMATION — DESCRIPTION OF THIEF.
    An information for receiving stolen property, alleging that person from whom goods were received was unknown, was insufficient, where officers knew from whom goods had been received, or had reasonable grounds for so believing, under Pen. Code, art. 1349.
    2. Receiving Stolen Goods <&wkey;7(l) — INFORMATION— SUFFICIENCY.
    An information describing stolen goods .as the property of G. “which had been theretofore acquired” by some one unknown to affiant, and in such manner that such acquisition was brought within the term “theft,” was insufficient, under Pen. Code, art. 1349, in that it did not charge that defendant received goods from any one.
    Appeal from Tarrant County Court; Jesse M. Brown, Judg;e.
    Thelma Shipp was convicted of receiving and concealing stolen property, and appeals.
    Reversed and remanded.
    R,. H. Smith,’ of Ft. Worth, for appellant.
    E. A. Berry, Asst. Atty. Gen., for- the State.
   DAVIDSON, P. J.

Appellant was charged by complaint and information in the first count with theft, and in the second with receiving and concealing stolen property. The ease was submitted on the second count, and conviction occurred under it.

Omitting formal parts, the complaint and information charge that appellant—

“did then and there unlawfully and fraudulently receive and conceal certain corporeal property, to wit, two pair of shoes, the same then ^id there being the property of and belonging to G. B. Goodspeed, and being then and there of the value of $25, and which said property had theretofore been acquired by some person to this affiant unknown in such planner as that the acquisition of the same comes within the meaning of the term ‘theft’; the said Thelma Shipp then and there well knowing the same to have been so acquired, at the- time he received and concealed the same aforesaid, against the peace and dignity of the state.”

It is unnecessary to notice but one question, and incidentally another as presented by the record. In the motion in arrest of judgment the question is raised that the complaint and information will not sustain the conviction for the reason that it was known before the filing of the complaint and information that appellant had received the goods from Harold Miller, therefore the allegation alleging a receipt from unknown persons was fatal to the affidavit and information. The complaint is signed and sworn to by L. T. Ladd. We are of opinion that the contention of appellant is sustained by the record. It is shown by the defendant’s testimony that he was close to Harold Miller when Miller was arrested by the police, but was not -aware why he was arrested. Ascertaining subsequently that he was arrested with reference to the shoes in question, and officers were looking for him, appellant went to the city hall and saw the officers and told them about the shoes.

“I told them that they would find one pair at the barbershop in the possession of witness Ollie Warren, and that I had sold another pair to witness Graham. I did not know witness Graham’s name at that time. I only knew him as ‘Dad,’ and I told them I had sold them to ‘Dad,’ but that I did not know where he lived, nor where he worked. But.I told them all I knew about him, and where I got the shoes. I bought them from Harold Miller and sold them to witness Graham and Warren, when I found they would not fit my sister. I did not know anything about the shoes having been stolen, and did not know they were stolen shoes; all I knew about them was that Miller told me about buying them from a white man for his sister, and that they would not fit, and he sold them to me in my room at 9 a. m. on the day I sold them to Graham and Warren.”

Further testifying he says:.

“I went to tell the officers what I knew about them after- I had seen Miller arrested- and I heard the officers were looking for me. I told them all I could as to where they could find the shoes I got. I have never been arrested charged with theft. * * * I saw Miller arrested. I did not know why he was arrested until after I wént to the city hall and saw the officers, and then I heard of it.”

The question is raised, in connection with other testimony, that these matters were called to the attention of the officers, and it was known at the time of and before the complaint was filed that the property had been in the hands of Harold Miller and transferred to appellant; at least this evidence goes to prove that condition of affairs. If 1;he state knew at the time of taking the complaint, or had reasonable grounds for so believing, it should have charged appellant with receiving the property from Harold Miller. If there was an issue as to whether they knew or not, then two counts could have been inserted, one for receiving the goods from some person unknown, and the other from Harold Miller. The authorities all seem to bear out the above statement as the law. See cases collated by Mr. Branch in his Ann. P. C. p. 1367.

There is another serious question presented by the complaint as we understand its reading and effect. Appellant is charged with having received and concealed certain property, to wit, two pair shoes, alleged to be the property of Goodspeed, which had been theretofore acquired by some one unknown to af-fiant, and in such manner thai such acquisition was brought within the term “theft.” As we understand the complaint it does not charge appellant with receiving the stolen property from any one. It does charge that he received stolen property and concealed it. It does charge that the property had been stolen, and by some one unknown to affiant, but we do not understand that this complaint charges appellant with receiving the property from the unknown person. It is necessary in charging this offense to allege the name of the party from whom the accused received the property if known, and if unable to specify the party from whom it was received, then it may be alleged that he, was unknown. But there must be an allegation either one way or the other, or, if necessary, both, to meet emergencies, that appellant did receive it from somebody. It is not sufficient to simply allege that he received and concealed the stolen property. It must go further and allege that he received it from some party if known, and if not, then from some party unknown. The authorities are fully collated by Mr. Branch in his Ann. P. 0. p. 1367. This has been the subject of a great many decisions. Among the early cases see Jorasco v. State, 6 Tex. App. 238; Jorasco v. State, 8 Tex. App. 540. See, also, McKay v. State, 49 Tex. Cr. R. 118, 90 S. W. 653; Williams v. State, 69 Tex. Cr. R. 163, 153 S. W. 1136. This rule is also laid down arid aptly stated by Mr. Branch in his Ann. P. C.:

“If there is nothing in the evidence to suggest that the name of the person from .whom defendant received the property was known to the grand jury, or that it could have been ascertained by them, proof that the witnesses did-not know such name is sufficient to support the allegation that such person was unknown.”' Yantis v. State, 65 Tex. Cr. R. 566, 144 S. W. 947.

It is also laid down by the same author:

“If the evidence makes it apparent that the grand jury knew or could have ascertained by the use of reasonable diligence the name of the person from whom the property was received, a-conviction will not be sustained if the allegation is that such person was unknown.”

Under article 1349, P. C., the name of the person from whom the defendant received the stolen property must be stated if known. It is also stated by the same author, on page-1365 of his Ann. P. C., that ownership should be alleged as in theft, and the indictment should allege the name of the person from whom the property was received, or should allege that such person is unknown, citing State v. Perkins, 45 Tex. 10; Brothers v. State, 22 Tex. App. 462, 3 S. W. 737; McKay v. State, 49 Tex. Cr. Rep. 120, 90 S. W. 653.

, As we understand this information, it does nót allege, or undertake to allege, from whom appellant received the property. This should have been stated.

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


text:
    HELMS v. STATE.
    (No. 5326.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    Indictment and Information &wkey;}110(32)— Sufficiency — Following Words of Statute.
    A complaint and information for violating the Sunday law stating that defendant was a dealer “of” wares and merchandise instead of “in” wares and merchandise, as used in the statute, was not invalid.
    Appeal from Hill County Court; R. T. Burns, Judge.
    Robert Helms was convicted of selling merchandise on Sunday, and he appeals.
    Affirmed.
    W. M. Martin and Thos. Ivy, both of Hills-boro, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The charging part of the complaint and information, omitting formal parts, is as follows:

“One Robert Helms, being then and there a merchant and a dealer of wares and merchandise, did then and there sell one cigar to Quill Pierce on said day, the same being Sunday, and against the peace and dignity of the state.”

The statute prohibits any merchant or dealer in wares and merchandise from selling on Sunday. The attack on the complaint and information is that between the words “dealer” and “wares” the pleader uses the word “of” instead of the word “in,” as used in the statute. The contention is that for this reason the complaint and information do not charge an offense in that it is not a sufficient compliance with the statute. We are not disposed to agree with this contention. While it is always best and safest in pleading to follow the language employed in the statute, yet, if words of the same or greater import are used instead of the statutory words, this would not amount to a sufficient reason for holding the pleading bad. We are of opinion that, as this complaint and information are drawn, the statement tha(t appellant was a dealer “of” wares and merchandise instead of dealer “in” wares and merchandise is not of sufficient importance to require the court to hold the complaint and information invalid.

Believing the complaint and information to be sufficient as presented in the record, we hold that there was no error in the trial court refusing to sustain appellant’s contention, and this does not present sufficient reason why the judgment>should be reversed, and it is therefore affirmed.
      (@=s>For other cases- see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GILBERT v. STATE.
    (No. 5272.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.
    On Motion for Rehearing, March 12, 1919.)
    1. Homicide <§=>250 — Murder — Sufficiency op Evidence.
    In a homicide case, evidence held sufficient to sustain a conviction of murder.
    2. Criminal Law <g=>1091(2, 8) — Matters Reviewable — Bills op Exception.
    A bill of exceptions complaining of a number of things which occurred on trial as being said by state’s counsel and court, will not be considered, where it is so general that court is unable to tell from the language what bill was intended to refer to. •
    3. Criminal Law <§=>730(3) — Misconduct op Prosecutor — Cure.
    There was no error in that county attorney offered in evidence inquest proceedings compelling accused to make an objection in presence of jury, where no statement was made by county attorney of contents of said papers and court promptly sustained defendant’s objection and told jury not to consider the matter.
    4. Criminal Law <§=>796 — Instructions— Suspended Sentence.
    An instruction concerning suspended sentence held not erroneous as placing an undue limitation upon testimony introduced with reference to defendant’s reputation.
    5. Criminal Law <§=>796 — Suspended Sen- ‘ tences — Instructions.
    Since law of suspended sentences authorizes jury to consider whether accused has borne a good reputation, it is proper for court to instruct jury that they might consider such reputation for that purpose, as otherwise they would not be aware of this phase of the law.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Sol Gilbert was convicted of murder, and he appeals.
    Affirmed.
    B. Y. Cummings, of Waco, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant was convicted in the district court of Hill county, Tex., of the offense of murder, and his punishment fixed at a period of 30 years in the penitentiary.

It appears from the record that the appellant and deceased and some other parties had gone to Ft. Worth the night before the killing, and had there imbibed freely of liquor, and had brought quite a quantity of it home with them in the car, appellant testifying that he had four quarts of whisky and the deceased two. After reaching home, some time after midnight they decided, to have a game of craps, and appellant and deceased started for the home of a neighbor to procure some dice. While on their way back appellant testified that deceased assaulted him and very severely beat him up, so that he was much bruised and bloody. He does not seem to remember much about the difficulty, or how he got home, or what occurred thereafter, but does state that in the morning when he awoke his hair was full of blood and sand, and that he felt very bad. It seems further that there was to be a gathering of men at a chicken fight, and that appellant and some others met, but deceased was not present, and some members of the party went to deceased’s home, and he declined to come. Thereupon appellant gót on his horse and rode at a rapid gait to the home of deceased. It is in testimony that some of the other members of the party tried to persuade him not to go, but he persisted. When he arrived at the home of the deceased, according to his own testimony, he hollered, and deceased came out and came toward the fence with his hands in his pockets; that he spoke to deceased, and said that he had come to have a talk with him this morning, and that thereupon the deceased said, “To hell with you,” and loosened Ins hands in his pockets and quickened his gait, and that as he approached with his hands in his pockets that he (the appellant) pulled out his pistol and fired a number of shots, killing deceased. The pistol was an automatic, and seems to have been emptied. The other eyewitnesses to the killing testified that deceased left the house in his shirt sleeves, and walked to the fence and shook hands over the wire with appellant, who thereupon stepped back and stopped and jerked out his pistol and fired repeatedly, deceased turning and running to the corner of the house, where he fell. Deceased was shot three times in front and three times in the back.

The appellant asked for a suspended sentence, making the statutory application, and setting up that his reputation was good, and that he had never been convicted of a felony.

The evidence amply supports the conviction. Appellant placed on the stand a witness named Wall, who testified that he lived in Bosque county, some distance from the appellant; that he knew his general reputation for a quiet, peaceable, inoffensive man, and that it was good. ' On cross-examination he said he had only heard of appellant having one fight. He further said that he knew that appellant was a man who drank, and that, he had drunk with him at Ft. Worth and places like that. The next witness was A. A. Gilbert, who had known the appellant, and was apparently related to him. He was introduced to establish the fact that'appellant had never been convicted of a felony, to which fact he testified. On cross-examination he was asked by the state if appellant had not been charged lots of times with fighting, drunkenness, crap-shooting, and gaming, to which his answer was: “Yes, sir; I suppose he has; I have heard of it; paid a few fines.”

This appears to be a substantial statement of the facts.

Appellant’s first bill of exceptions complains of a number of things which occurred on the trial as being said by the state’s counsel and the court. We are unable to tell from the language of the exceptions what the bill was intended to refer to, and in our opinion same is too general to be considered.

The second bill of exceptions complains because the county attorney offered.in evidence the inquest proceedings, and appellant was compelled to make an objection in presence of the jury to such proceeding. As presented, we see no error in this. No statement was made by the county attorney of the contents of said papers, or what was testified by any one at the inquest, and when it was offered the court promptly sustained appellant’s objection thereto and told the jury not to consider it.

Appellant further contends that the court erred in paragraph 15b, the language of his exception being as follows:

“The defendant excepts and objects to paragraph 15b of the court’s main charge because the same places an undue limitation upon the testimony introduced with reference to defendant’s reputation because the same limits the jury to the evidence offered on the question of reputation in determining whether or not the sentence should be suspended, when the jury are entitled to consider all the facts and circumstances in the case in passing on this question.”

The court’s charge in paragraph 15b is as follows:

“The defendant having filed herein his sworn statement and plea, alleging his good reputation heretofore, and that he has never been convicted of a felony in this or any other state, and asking for a suspension of sentence, you are further charged that the evidence of his good reputation, offered by the defendant, has been admitted for your consideration, and in order to enable you to determine, if it does, whether in your discretion you should recommend that his sentence of conviction, if any, be suspended.”

And the court certifies, in approving bill of exceptions No. 5, that when said charge was presented to the appellant and his exception to it handed to the court, the court then inserted the words, “considering all other facts in evidence.” So that the charge as given did not limit the jury to a consideration only of appellant’s reputation in arriving at whether they should suspend his sentence or not, but directed them to consider all the facts in the case in determining such matter. As qualified by the court, we do not think the charge open to the objection made by the appellant.

The law ®f a suspended sentence authorizes the jury to consider in determining that question,, whether the accused has borne a good reputation or not. If the court did' not instruct the jury that they might consider such reputation for that purpose, they would not be aware of this phase of the law, and' it appears to us correct for the court to tell them of this right, in the charge. We do not think the charge open to any other objection made to it by the appellant. According to-the state’s theory the appellant was guilty of a killing for which the jury might have given him a much heavier penalty under the testimony.

We are of opinion that under the record before us the appellant has had a fair' trial, and the judgment of the lower court is affirmed.

On Motion for Rehearing.

In this case appellant has filed a motion for rehearing by copying verbatim one of the grounds of objection which was presented and considered by the court in its original opinion. No additional authorities are presented or reasons given why the court’s former opinion was not correct.

Believing that this matter was fully considered and properly decided on the original presentation, the motion for rehearing is overruled.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    MATTHEWS v. STATE.
    (No. 5322.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    1. Husband and Wife <3=313 — Desertion —Evidence.
    In a prosecution under Vernon’s Ann. Pen. Code 1916, art. 640a, for desertion and failure to support a wife and child, evidence held, sufficient to support a conviction.
    2. Criminal Raw <3=1169(1) — Appeal — Haemless Ebeob — Evidence.
    In a prosecution for desertion and failure to support a wife and child, evidence that defendant’s wife married him when he was drunk and that she drank whisky tended to support the defense, and, if immaterial or incompetent, was harmless.
    Appeal from Harris County Court at Law; Walter E. Monteith, Judge.
    William C. Matthews was convicted of deserting and failing to support his wife and three year old son, and he appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was charged and convicted of deserting and failing to support his wife and three year old son. The punishment, fixed was confinement in the county jail for a period of six months.

The statute (article 640a, Vernon’s Ann. Pen. Code 1916) provides that any husband who shall willfully, or without justification, desert, neglect, or refuse to provide for the support and maintenance of his wife, who may be in destitute or necessitous circumstances, or any parent who shall willfully, or without justification, neglect, or refuse . to provide for the support and maintenance of his child under the age of 16 years, in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor.

The evidence was such as to justify the conclusion that appellant was an able-bodied and capable man; that he had been for several months prior to the beginning of the prosecution earning $5 or $6 per day. He admitted on the trial, taking place in July, 1918, that during the year he had furnished for the support of his wife and three year old child but the sum of $5. It appears that his wife was working in a bagging factory for $7 or $8 a week, and had no other means of support for herself and child; that they depended in a large measure upon charity. He attempted to justify his neglect upon the ground of infidelity on the part of his wife, which theory the evidence wholly failed to sustain, and it appeared that, while he did not live in the same house with her, he did visit her from time to time and engage in sexual intercourse with her.

We are unable to accept the proposition advanced by the appellant that the evidence is insufficient to support the conviction. One of the witnesses for the. appellant testified that his wife married him when he was drunk. This witness was asked upon cross-examination if appellant’s wife drank whis-ky, to which an affirmative reply was given, and exception was reserved upon the ground that it was immaterial and incompetent. We are unable to comprehend its relevancy from the standpoint of the state. It tended, however, to support the appellant’s defense, and was clearly harmless, if immaterial or incompetent.

The judgment is affirmed.


text:
    LOVE v. STATE.
    (No. 5294.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.
    Rehearing Denied March 12, 1919.)
    Homicide <3=325 — Appeal — Reservation of Exceptions — Submission of Issues.
    Submitting the issue of manslaughter in a homicide case, although not warranted by the facts, is not error of which appellant can complain in the absence of an exception to the charge.
    Appeal from District Court, Brazoria County; Samuel J. Styles, Judge.
    Chris Love, Jr., was convicted of manslaughter, and he appeals.
    Affirmed.
    A. E. Masterson, of Angleton, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

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

His contention is that the evidence did not justify the court in submitting the issue of manslaughter, and that the verdict is not supported by the facts. There were no exceptions reserved to the charge of the court. Under the recent case of Borrer v. State, 204 S. W. 1003, this court held that the court was not in error in submitting the issue of manslaughter when the facts may have only showed self-defense, or murder, as there was no exception to the charge of the court. This court held under those circumstances appellant could not take advantage of the supposed error in court’s charge. For a discussion of that matter we refer to the Bor-rer Case, supra. We are not in position, however, to hold that, had an exception been reserved, the issue of manslaughter was not in the case. It would serve no practical purpose ‘to review the testimony under the circumstances of this case.

The judgment will he affirmed.
      <®5nlToi other cases see same topic and KEY-NUMBER in all Key-Numbered Digests'and Indexes


text:
    HAMMETT v. STATE.
    (No. 4926.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    1. Criminal Law <§=814(17) — Circumstantial Evidence — Instructions. •
    In abortion case, where prosecuting witness testified fully to acts and conduct of both defendant and physician procured by defendant to perform abortion, court properly refused a special charge setting forth law of circumstantial evidence.
    2. Criminal Law <§=507(6) — Accomplice’s Testimony.
    In abortion case, prosecutrix is not accomplice.
    3. Criminal Law <§=H72(1) — Harmless Error — Conduct—Instructions.
    An accused cannot complain that trial court instructed entire panel of jury, upon general phases of procedure, prior to calling any cause for trial, where nothing was said calculated to prejudice his rights.,
    4. Criminal Law <§==>649(2) — Postponement-Absence op Witness.
    Where two were indicted together and filed statutory affidavits, and defendant was tried first, trial resulting in a hung jury, and thereafter other indicted person was convicted, there was no error on defendant’s second trial in refusing to postpone trial to. enable defendant to obtain testimony of convicted person.
    5⅛ Abortion <§=>3 — Principals.
    One who- has been unduly intimate with a female, and arranges with a physician for an abortion, and takes the female to the physician, is guilty as a principal, althóugh not actually present on occasion of premature birth; what was done being result of conspiracy.
    ■6. Criminal Law <§=547(3) — Evidence at Examining Trial — Proof.
    Court did not err in refusing to allow accused to prove by a county attorney whether prosecutrix had made certain statements on examining trial, examination being had from written document purporting to be examining trial testimony, document itself being b.est evidence of its contents.
    7. Criminal Law <§=422(6) — Declaration OF COCONSPIRATORS.
    Where defendant was unduly intimate with a female, and arranged with a physician for an abortion, he was a conspirator and prosecu-trix was properly allowed to testify that on occasion of one of her treatments physician stated in absence of defendant what amount of money defendant had paid him; the criminal conspiracy not yet having been fully concluded.
    8. Criminal, Law' <§=1170½(5) — Harmless Errois — Evidence.
    In a prosecution for abortion charged to have been accomplished by use of a metallic instrument, defendant was not prejudiced by cross-examination of his medical witnesses to effect that an abortion could be accomplished by other means than that charged in indictment, where no claim was made to jury or by prosecution that abortion was committed in any other way than that charged.
    Appeal from District Court, Eastland County; Joe Burkett, Judge.
    G. C. Hammett was convicted of abortion, and lie appeals.
    Affirmed.
    M. C. Council, of Clyde, and J. R. Stubble-field, of Eastland, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was charged in the court below with abortion. The indictment contained two counts,, one charging the use of a metallic instrument, and the other the giving of drugs and medicine. The court submitted only one count — the one charging the use of a metallic instrument to effect the abortion. The jury found appellant guilty and fixed his punishment at five years’ confinement in the penitentiary.

Appellant asked several special charges, his special charge No. 1 setting forth the law of circumstantial evidence as shown by his bill of exceptions No. 7; but an examination of the facts in evidence satisfy us that no error was committed in refusing this charge and refusing to charge on circumstantial evidence. The prosecuting witness testified fully to the acts and conduct of both the appellant and the physician who was procured by appellant to perform the abortion upon her, and this would take the case out of the rule of circumstantial evidence.

In .his special charge No. 2, as shown by his bill of exceptions No. 8, appellant asked that the jury be charged the law of accomplice testimony, claiming that the prosecutrix was in law an accomplice, and that that phase of the law should be submitted to the jury. The question has been passed upon so frequently in this state that it is no longer an open one. The prosecutrix was not an accomplice. Willingham v. State, 33 Tex. Cr. R. 98, 25 S. W. 424; Miller v. State, 37 Tex. Cr. R. 575, 40 S. W. 313; Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602; Gray y. State, 77 Tex. Cr. R. 221, 178 S. W. 337.

Appellant asked special charge No. 4, which was given by the court, and will be noticed later in this opinion.

Appellant complains by his bill of exceptions No. 1 of the action of the trial court in instructing the entire panel of the jury, prior to calling any cause for trial, -upon certain general phases of procedure and trials. We have examined the authorities cited by appellant’s counsel, and have carefully examined the remarks of the court to the jury, and while we agree with the holdings in the cases cited, we do not find anything in the instant case that was in any wise calculated to prejudice the rights of any person accused of crime whose case might be set for trial during that week.

Appellant’s bill of exceptions No. 2 complains of the action of the trial court in refusing to postpone the trial in order to enable the appellant to obtain the testimony of Dr. Earnest, who was indicted by separate indictment for the same offense. The qualification of the trial court upon this bill shows that both appellant and Dr. Earnest filed statutory affidavits, each asking that the other be tried first, and that in accordance with the law the court had in such case put the one to trial whom he thought best, and that one being the appellant, who had had a trial resulting in a hung jury, and thereafter Dr. Earnest had' been tried, and convicted, and this instant case was the second trial of appellant. As explained by the court we see no injury in the court’s action.

Appellant’s bill of exceptions No. 4 complains of the charge of the trial court on the law of principals; the contention being that same was erroneous because it authorized the jury to find the appellant guilty as a principal if he consulted or advised the doctor who actually performed the abortion to commit same. It is not necessary for one to be present when an offense is actually committed in order to make him a principal. Where a criminal enterprise is launched by the active participation and presence of certain persons, and same moves on to its completion under the visible direction of some and in accordance with the plan of all, and the case be one in which it is impossible for the jury or the court to tell at what stage of its progress the. forbidden thing was actually accomplished, that is, whether in the initial chapter where all who engaged in the criminal enterprise were personally present and participating, or whether at some later stage, then neither the jury nor the appellant could have been benefited by an attempt to disconnect such cpntinuous parts of the whole criminal undertaking by giving a charge as to principals applicable to one part of the same, and accessories as to the other part. In this case no evidence was offered of any abandonment of the criminal accomplishment of what was undertaken and possibly finished in appellant’s presence. The statute forbids the use of any violence or means whatsoever by which an abortion is procured, and the presence of the accused at the moment, or on the occasion of the premature birth of the fetus, is not necessary to make him a principal. Nor is it necessary that he should be present at each one of a series of treatments in one of which, or as ai result of all of which, the destruction of the' life of the embryo is accomplished. In this case the criminal scheme was the appellant’s. He was a married man who had unquestionably been for a long time criminally intimate with the prosecutrix, a young woman of 20. When they both concluded that she was pregnant, he took her to Ranger, in the neighboring county of Eastland, took her to a hotel as his wife, left her there after spending the night with her, and came back and told her he had talked to Dr. Earnest, and took her to Dr. Earnest’s office. There he told the physician who she was and what they were there for, and remained present while this physician used his instruments and other treatment upon the person of the prosecutrix. She remained in Ranger three or four days, visiting the doctor twice a day, and testifies that on the occasion of her second visit he, the doctor, told her that she had had a baby started and that he got it. The next day appellant returned to Ranger to see how the enterprise was progressing, and consulted with her about each successive thing'that was done in connection therewith. At just what precise moment or day the desired result was accomplished is not shown by the record, and probably could not be known. It was shown, however, that appellant wrote to the doctor about the matter later, and also paid him. In this state of case the complaint of the court’s charge on principals, because it authorized the jury to find the defendant guilty as a principal if he counseled or advised the doctor who committed the abortion, is hypercritical. It was not necessary, as stated, for one to be present at each treatment, nor to remain continuously with the other parties to the enterprise, where, as in this case, it is clear that what was done was the result of what in law is denominated a conspiracy. What we have just said applies also to appellant’s bills of exception Nos. 5 and 6.

Appellant’s bill of exceptions No. XI complains because he was not allowed to prove by County Attorney Bean, testifying as a witness, as to whether or not prosecutrix made certain statements contained in a written document purporting to be the examining trial testimony, from which the examination was being had. The trial court sustained objections to these questions, holding that the instrument itself was the best evidence of its contents. There was no error in so holding. The written instrument was later introduced. in evidence by the state.

We think, no error was committed in allowing prosecuting witness to state that on the occasion of one of her treatments for this abortion Dr. Earnest stated to her, not in the presence of the appellant, what amount of money appellant had paid him. The criminal conspiracy had not yet- been fully concluded. She had been sent back on this occasion by the appellant for further treatment at the hands of the physician, and in our view of the case what was said by either the appellant or Dr. Earnest hearing on the mutual object of their agreement before its final termination was admissible as against each.

Bills of exception Nos. 13 and 15 present no reversible error. Drs. Griffin and Rush, who were witnesses for the appellant, testified on cross-examination as to a different method by which an abortion could be accomplished than that charged in the indictment in the instant case. Nothing appears from the bill or record showing that any claim was made to the jury, or by the prosecution, that this abortion was committed in the way testified to by these physicians.

We have carefully examined the evidence in the case, and are of the opinion that the same fully supports the judgment, which is accordingly affirmed.
      <g=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JARROTT v. STATE.
    (No. 5269.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.
    Rehearing Denied March 12, 1919.)
    1. Criminal Law <§=>1092(8) — Bills or Exception.
    ‘ Where there was a 60-day order entered allowing filing of bills of exception, and an additional order of 30 days was entered by court, bills filed on ninety-first day were too late for consideration on appeal.
    2. Intoxicating Liqtjoes <§=>37 — Elections —Local Option — Validity.
    A local option election will be held valid in absence of a contest within the time prescribed by statute and a finding of court upon -that contest that election was illegal.
    3. Intoxicating Liquors <§=>25 — Local Option — Zone Law.
    Assuming that the zone law was a prohibition, and not a regulation, measure, it could not substitute or repeal a local option law voted in by the people.
    4. Intoxicating Liquors <§=>25 — Prohibition-Local Option.
    The state-wide statutory prohibition did not repeal the local option law.
    Appeal from District. Court, Montague County; John Speer, Judge.' .
    Hugh Jarrott was convicted of violating the local option law, and he appeals.
    Affirmed.
    Hugh Jarrott, pro se.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted for violating the local option law; his punishment being assessed at two years’ con-. finement in the penitentiary.

The statement of facts is not approved by the trial judge, and the bills of exception •seem to have been filed one day too late. There was a 60-day order entered allowing the filing of bills of exception and statement of facts, and an additional order of 30 days was entered by the court, making 90 days allowed in which to file bills of exception. The bills were filed on the ninety-first day, which is one day too late for their considerf-ation.

Appellant presents in his motion to quash and in his motion for new trial a question that ought to require notice. His contention is that the local option law was not put into effect legally. This cannot be considered as presented. The election was held in 1912. This election would be held valid in the absence of a' contest within the time prescribed by .the statute and a finding of the court upon that contest that the election was illegal. In any event, it could not be made the subject of a motion to quash without the facts supporting it.

It is contended also that the local option law, if valid, was repealed and the statute set aside by what is popularly known as the zone law. We cannot agree with this contention. The zone law, in Ex parte Hollings- • worth, 203 S. W. 1102, was held to be a regulatory measure, and did not apply to local option territory. The regulation of the sale of whisky does not apply in local option territory. It is unnecessary to review or discuss the question involved in the Hollings-worth Case. It being a regulation as announced in that case, it could not interfere with a local option election held by the people and put into operation in the same territory. Appellant perhaps would be in no better condition if the zone law was a prohibition, and not a regulation, measure, for the reason that, if it was a prohibition law, then it could not substitute or repeal the local option law voted into existence by the people. The decisions are unanimous in regard to this question in the history of this court.

Nor is there any force in the further ground that what is known as state-wide statutory prohibition repeals the local option law. This question underwent very thorough consideration both on the original submission and on rehearing in the case of Ex parte Myer, 207 S, W. 100. It is not the purpose of the writer to review those questions again. The substance of the holding was that, in view of the constitutional provision in reference to local option, the Legislature was without authority to pass a prohibition law that was in violation of said section of the Constitution.

As the record presents the case, the judgment will be affirmed.
      <£=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PATTEN v. STATE.
    (No. 5215.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    1. Criminal Law <®=»824(3), 1056(1) — Prejudicial Error — Failure to Charge on Aggravated Assault.
    Failure to charge on aggravated assault in a prosecution for assault to murder is not reversible error, in the absence of requested instructions or exceptions.
    2. Criminal Law <®=»939(3) — New Trial — Newly Discovered Evidence.
    Newly discovered evidence held not sufficient to require a new trial, where defendant’s counsel for accused had talked with the witnesses, but had failed to discover facts known by them, and did not place them on the stand.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    John Patten was convicted for assault to murder, and he appeals.
    Affirmed.
    J. M. Gibson, of Houston, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The jury allotted appellant ten years in the penitentiary for assault to murder.

The state’s case, in substance, is that two officers, Riney and Hight, were on duty on the streets of Houston, and saw a party in front of a door on the sidewalk who called somebody a “God damned son of a bitch,” and as he did so holloed as loud as he could yell. The officers were within two-thirds of a block from the party making the remark. This was on the public street. The party then came in the direction of the officers, and got within about two feet of Hiney, who took one or two steps in front of him and asked, “What is the matter with you? What are you raising all this noise about?” Appellant looked up and saw the parties were officers, they being in uniform and having brass buttons and a big star. on their breast. He was within two feet of Hiney, and looked at him, and made a move for his hip pocket. The policeman tried to catch his hand and caught his coat. Appellant jerked loose and ran into the middle of the street, and when he got to the car track dropped, his pistol. It was a pearl-handled pistol. Hi-ney remarked to the other policeman who was with him, “He had got a gun, let’s get it,” and they took after and chased. him down San Felipe street to the same restaurant out of which appellant had come. Appellant came back on the sidewalk and turned up Heiner street toward the ball park. Following after appellant Riney got within about fifteen feet of him, when he turned and said to Hiney, “Stop, you white son of a bitch,” and at the same time shot at Riney. Riney says appellant shot twice before he got his pistol out. The first shot entered his breast above the right nipple, and is still in his body. The second shot cut a button from his coat in front, and a third shot entered the left lapel of his coat, but did not enter the body. Appellant fired three other shots, neither of which struck Riney. Riney fired two shots. Appellant then ran, and Hight, the other policeman, fired two shots at him as he ran away. This is the substance of the state’s case.

Appellant received one slight wound, a bullet going through his right hand between his thumb and index finger. Appellant says that about 11 or 12 o’clock he was fixing to close his establishment when he thought some one called him from the outside, and some one came in to get some change; that he had his money on the counter, and the party coming in snatched something and ran. He did not know what it was, but he ran after him, followed him to a restaurant, went in, hut failed to find the party, and started across the street, and stumbled and fell. At this juncture he heard somebody say, “Catch that nigger; he has a gun.” Appellant then turned, and as he did somebody was shooting at him. He' says when he .reached the corner of the street he threw up his hands to surrender, and that is the time he got shot through the hand, and it was at that time he shot the officer. Appellant was drinking, if not drunk, at the time. This sufficiently presents the two theories made by the evidence.

The court charged the jury with reference to assault to murder and self-defense. There was no charge given on aggravated assault, none asked, and no exception taken to the failure of the court to give such charge. In fact, the record does not contain a bill of exceptions except to the overruling of the motion for a new trial. In the amended motion for new trial appellant criticizes the charge for failure to submit aggravated assault. The writer is of opinion that aggravated assault should have been charged, but in the absence of requested instructions or exceptions taken at the proper time to the failure of the court to so charge, it will not be considered reversible error; at least the failure to so charge is not of such a fundamental nature as to require a reversal of the judgment.

Attached to appellant’s amended motion for new trial are the affidavits of two witnesses in which appellant sets up newly discovered testimony. These witnesses were examined by appellant’s counsel before the trial, and were in attendance upon court during the -trial, and under the rule. It is shown that appellant’s counsel talked with these two witnesses, and after doing so did not place them upon the stand. Appellant in his affidavit attached to the motion for new trial says he did not talk to them, • and does not know why his counsel failed to use them before the jury. We are of opinion that as the matter is presented, the statements of these witnesses cannot be treated as newly discovered evidence. Both witnesses filed an amended affidavit to their original statement to the effect that while they talked with counsel for appellant during the trial, they rather evaded telling him what they knew, as they did not care to antagonize the police force. What occurred between them and counsel is not stated, or what the evasion was, if any. Appellant’s counsel did not file an affidavit, and the record is silent as to his version as to what occurred between himself and these two witnesses, but from no viewpoint of this motion can this be considered newly discovered testimony. Appellant was required to use diligence, which he did, in securing the witnesses, but says, although he had the witnesses present and had them examined, that he was unaware of what they would testify, leaving that matter to his counsel, who failed to place them on the witness stand after discussing the case with them. As before stated, this showing does not bring it within the rule of newly discovered testimony. See White v. State, 76 Tex. Cr. R. 615, 177 S. W. 93; Howe v. State, 77 Tex. Cr. R. 108, 177 S. W. 497. These cases seem to be in accord with the unbroken line of authorities. Further citation will not be made.

As this record presents itself, we are of opinion that the judgment should be affirmed, and it is accordingly so ordered.
      ©ssFor other oases see same topic and KEY-NUMBER -in all Key-Numbered Digests and Indexes


text:
    FARRIS v. STATE.
    (No. 5282.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.
    On Motion for Rehearing, March 19, 1919.)
    1. Criminal Law @=1092(8) — Appeal—Exceptions Filed Late.
    The Court of Criminal Appeals cannot consider a bill of exceptions filed November 30th under an order of October 30th,i extending the time 30 days from date, which expired November 29th.
    2. Criminal Law @=1090(14) — Appeal — Bill os Exceptions — Refusal op Instruction.
    In absence of bill of exceptions reserved to failure to give charge not showing from contents or anything connected with it whether it was presented to court before or after main charge or after case was concluded, Court of Criminal Appeals cannot consider action of trial court.
    3. Criminal Law @=1090(8,11) — Appeal-Absence of Bill of Exceptions.
    Court of Criminal Appeals cannot consider alleged errors in introduction of evidence and errors committed by the court on trial, where none are brought up by proper bill of exceptions.
    On Motion for Rehearing.
    4. Criminal Law @=1054(1), 1092(4) — Appeal —Evidence—Bill of Exceptions.
    If defendant desired to object to introduction of testimony, it was his duty to have excepted to such action, and to have embodied exception in bill approved and filed within 30 days after adjournment of court, or else to have brought before Court of Criminal Appeals, in a legal way, some sufficient excuse.
    5. Criminal Law @=1056(2) — Appeal—Reservation — Exceptions—Instructions.
    Where no exception was taken to charge despite express provision of statute that if there is an objection which defendant desires to present on appeal he must make his objection known in writing before the charge is read to the jury, defendant cannot come before Court of Criminal Appeals for first time and attempt to argue incorrectness of charge.
    Appeal from Criminal District Court, Dallas County; C. A. Fippen, Judge.
    Isaac Farris was convicted of murder, and appeals.
    Affirmed.
    Will S. Payne, of Dallas, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

In this case appellant is charged by indictment in criminal district court No. 2 of Dallas county with the offense of murd.er, and upon his trial was found guilty and his punishment fixed at five years in the penitentiary.

There appears but one bill of exceptions in the record and the court is without authority to consider same because it was filed too late in the trial court. On the 30th of October, 1917, the court made an order extending the time for filing the statement of facts and bill of exceptions for 30 days “from that date.” This time expired on the 29th day of November, and the bill of exceptions was filed November 30th, and, it being too late, this court cannot consider same.

No exception was taken to the charge of the court on the trial, and but one special charge asked, which does not show from its contents, or anything connected therewith, whether it was presented to the court before or after the main charge or after the case was concluded. There was no bill of exceptions reserved to the failure of the trial court to give this charge from which we can get any such information, and we cannot, therefore, consider the action of the trial court in refusing to give said special charge.

Various matters are complained of in the motion for new trial; but as they are mostly with regard to the introduction of evidence and errors committed by the court on the trial, and none of them are brought to this court by proper bills of exceptions, the court therefore cannot consider same.

No reversible errors appearing in the record, the judgment of the lower court is affirmed.

On Motion for Rehearing.

This case is before the court upon appellant’s motion for a rehearing, in which he complains at length of this court’s refusal to consider the error of the lower court in admitting testimony as to what occurred in the conversation between appellant and the deceased. Our statute has provided that if any person is aggrieved from the admission of testimony upon a criminal trial, he shall make known his objection to the court, and, if the same is overruled, that he shall preserve the entire matter and present it to this court by means of a bill of exceptions, the requisites and formalities of which are both statutory, and have been passed upon by this court in decisions without number. If this appellant desired to make an objection to the introduction of the testimony of the witness Bane, and get the court’s action thereon brought before this court for review, it was his plain duty to have taken his exception to the action of the trial court and to have embodied said exception in a bill which it was his duty to have approved and filed within 30 days after the adjournment of the court, or else to have brought before this court in a legal way some sufficient excuse for not having done so. We decline to consider the bill of exceptions seeking to present this erroneous action of the court below, for the reason that the said bill was not filed in the trial coprt within the statutory time. This is perfectly apparent from an inspection of the same, and we are not at liberty to consider any reason that may be presented by appellant in argument here why said evidence was admitted and the harm that might have resulted to appellant therefrom. These are matters which should have appealed to appellant’s counsel and induced him to present his objections to this court in a proper manner.

What we have just said applies to the other contention, made by appellant on this motion for rehearing, to wit, that the court committed a fundamental error in its charge. No exception was taken to the charge of the court below, notwithstanding the fact that the statute expressly provides that, if there be objection which the appellant desires to present here, he must make his objection known in writing, and before the charge is read to the jury. Having wholly failed to do this, it is entirely too late for appellant to come before this court and attempt to argue that the charge is incorrect.

What we have just said applies to the remaining ground of appellant’s motion, to wit, that the court refused to give his special charge as requested. The statutes of this state plainly require that every charge that is requested of the court must be requested before the argument of the case, and this fact must appear from the charge or the hill of exceptions retained to the court’s action in refusing to give it. The special charge in this case has nothing in it or around it, before it or after it, upon its face or by bill of exceptions, or in any other manner, to show whether it was presented to the court and by him refused before the trial begun or after the verdict was brought in. This court cannot tell whether the special charge was presented before the argument begun or not, and certainly cannot, in that condition of the record, be called upon to consider whether the principle embodied in such special charge is correct or not.

The motion for rehearing is accordingly overruled.
      @=For other cases see same topic and KEY-NUMBF.R in all Key-Numbered Digests and Indexes


author: DAVIDSON, P.- J.

text:
    CURLIN v. STATE.
    (No. 5298.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.)
    1. Assault and Battery ⅞=»54 — Aggravated Assault on an Officer.
    To constitute an aggravated assault on an officer, it must appear that the person assaulted was an officer in the discharge of his duties, and that the assault was made as an interruption of his official duties.
    2. Assault and Battery ⅞=»92 — Aggravated Assault on Officer — Evidence,.
    Evidence that defendant accosted a justice, while latter was going from the post office to his office with some papers, before going out to show a man some land, and struck him down on receiving an affirmative answer to question whether the justice was going to issue certain papers in his official capacity, held insufficient to show an aggravated assault on an officer in the discharge of his duties.
    Appeal from Montague County Court; Homer B. Latharrf, Judge.

      Will Curlin was convicted of aggravated assault on an officer, and lie appeals.
    Reversed and remanded.
    W. T. Russell, of Montague, for appellant.
    E. A. Berry, Asst. Atty. Gen., for tlie State.
   DAVIDSON, P.- J.

Appellant was convicted of aggravated assault; his punishment being assessed at a fine of $25.

The charging part of the affidavit alleges that—

“One Will Curlin did in and upon Henry M. Burns make an aggravated assault, the said Henry M. Burns being then and there an officer, to wit, justice of the peace for precinct No. 7 of Montague county, Texas, the officer being then and there in the lawful discharge of the duties of bis office, as said officer, which fact was then and there known to the said Will Curlin, against the peace and dignity of the state.”

As we view the record, it is necessary to notice but one question, and that is the contention of appellant that the evidence is not sufficient to sustain the charge that Burns was in the discharge of his duties as justice of the peace. He says on the 6th of February, 191S, on the streets of Nocona, near his office, he had a difficulty with appellant; that he was going along the street in the direction of his office, and met the defendant and) his father, John Curlin, coming up the street; that appellant asked him if he was going to issue those papers against his mother.

“I said, ‘Ves;’ it will be my duty to issue the papers, but that I was going to investigate, and if there was nothing in the case I would dismiss it. He then hit me and knocked me down; and I got up, and while I was down he said something and cursed me. I do not just remember now what he said. Some one pulled him off, and I got up, and he said, ‘Now, are you going to issue those papers?’ I do not remember just what I said, whether I said, ‘I’ll see,’ or ‘No;’ something of that kind. Was on my way to my office, and had some papers in my hands, and they were coming up the street, ánd met me along in front of the Farmers’ Union Store.”

He further testified:

“The day before this occurrence, John Curlin was in my office, and asked me about the case of Mrs. Curlin, his wife, and I told him that one of the daughters of Mrs. Milligan had sworn to a complaint against his wife, charging his wife with abusive language toward her mother. I told him that I had not yet issued any warrant, and that I would investigate the matter.”

On cross-examination he said:

“At the time defendant hit me, I was not at my office, but was coming along down the street toward my office, to leave some papers that I had got out of the. post office, before going to show a man some land I had- to sell. I am in the real estate business some. I had left the automobile where the man was, to go down to my office to leave some papers. I don’t know that I was performing any duty required of me as justice of the peace at the time the defendant struck me with his fist I was going to my office to leave the papers, as I have stated, and met theta coming from toward my office, and they began to talk to. me about the case.”

He also testified he ran a newspaper office, and it was there where he was going to leave the papers; that he had no place of office except the one mentioned.

A witness named Goodspeed testified he was city marshal of Nocona, and arrested the defendant, who pleaded guilty in the city court at Nocona; that he had a conversation about the matter, and asked him what made him hit Burns, and told him he could break him in two at one lick; that it was just like hitting a woman, and that appellant said, “He just made me so damn mad, that I just hit him;” and that he did not like Burns anyway. On cross-examination he stated, further, that appellant said he was mad with Burns because he had filed a complaint against his mother, and bringing her into court with that bunch of women; that he did not want her mixed up in court with that bunch of women, as they were of bad reputation. This is the case in a nutshell from the state’s standpoint.

The question turned upon whether this is sufficient evidence to show that the assault was made upon a justice of the peace in the discharge of his duties. We are of opinion the facts are not sufficient to sustain that allegation. In order to constitute this offense three things must be established:

“(1) The assault; (2) that he was an officer in the discharge of his duties; and (3) that .the assault miist be made as an interruption of his official duties.”

There is no evidence that Burns was discharging any official duty at the time, or attempting to discharge any such duty. On the contrary, the state’s evidence shows that he was not, but was going to his office to leave papers he had gotten out of the post office before rejoining his client, who was waiting in an automobile to go to the country to look at land. See Jeanes v. State, 60 Tex. Cr. R. 440, 132 S. W. 352; Williams v. State, 64 Tex. Cr. R. 491, 142 S. W. 899; Nickerson v. State, 69 Tex. Cr. R. 659, 154 S. W. 992. This evidence, viewed in the light of the cases above cited, in our opinion, does not show an assault upon an officer in the discharge of his duties. The evidence for defendant is not mentioned.

The judgment will be reversed, and the cause remanded.
      ®=>For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


text:
    MARTIN v. STATE.
    (No. 5297.)
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1919.
    On Motion for Rehearing, March 19, 1919.)
    1. Criminal Law <&wkey;1097(l) — Appeal/—Original Statement op Pacts — Record.
    Where the original statement of facts does not accompany the record, as required by Code Cr. Proc. 1911, art. 844, the Assistant Attorney General’s motion to disregard it must be sustained.
    ,2. Forgery <&wkey;29(3) — Indictment—Explanatory Averments.
    An indictment for forgery setting out- a written instrument which on its face would have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred or in any manner affected any property whatever, requires no explanatory averments.
    3. Forgery <&wkey;29(3) — Indictment—Explanatory Averments.
    Forged instrument, reading, “Fort Worth, Texas, May 4, 1918. Received of the Fort Worth National Bank $100.00 for account of I N Bank, Groveton,” with signature, held within Pen. Code 1911, art. 924, defining “forgery,” so that indictment for forgery setting out such instrument required no explanatory aver-ments.
    On Motion for Rehearing.
    4.-Indictment and Information &wkey;>137(6)— 1 Motion to Quash.
    Failure of indictment for forgery to embrace averments explaining the words, “I N Bank, Groveton,” the forged instrument being an acknowledgment of the receipt of $100 for the account of I N Bank, held not to render the indictment subject to quashal on motion.
    5. Forgery <&wkey;34(2) — Evidence—Variance.
    If, in a prosecution for forgery,' there is an effort to show the words of the instrument declared on mean anything other than' what they naturally import, the variance is available on objection to the evidence.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Charley Martin was convicted of forgery, and he appeals.
    Affirmed.
    Roberson & Oogdell, of 'Ft. Worth, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for forgery.

The original statement of facts does not accompany the record as required by article 844, C. C. P., and the motion of the Assistant Attorney General that it be disregarded must be sustained. Morris v. State, 63 Tex. Cr. R. 375, 140 S. W. 775; Salinas v. State, 142 S. W. 908.

The instrument declared on is as follows:

“Fort Worth, Texas, May 4, 1918. Received of the Fort Worth National Bank $100.00 for account of I N Bank, Groveton.
“[Signed] R. B. Buffington.”

The overruling of the motion to quash the indictment and the motion in arrest of judgment is complained of upon the ground that the instrument is not one that may be declared on in a forgery indictment without explanatory averments. It is the general rule that an indictment for forgery which sets out a written instrument which on its face would have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever, requires no explanatory averments. Hendricks v. State, 26 Tex. App. 176, 9 S. W. 555, 557, 8 Am. St. Rep. 463; Branch’s Ann. P. C. p. 851, § 1398. There are decisions somewhat conflicting touching the question as to whether a receipt for money comes within this class of instruments or not. See-Fonville v. State, 17 Tex. App. 381; Black v. State, 42 Tex. Cr. R. 585, 61 S. W. 478. The first of these decisions appears to affirm and the latter deny that a receipt for money is an instrument that may be declared on in a forgery indictment without explanatory averments. The instrument in question appears to be more than a receipt for money. Its purport is to show that Buffington had received $100 from the Ft. Worth National Bank, and that he had received it for account of the bank at Groveton. We are unable to reach the conclusion that the instrument was not such as would come within the terms of the statute (article 924, P. C.). It imports an obligation on the part of Buffington to the I N Bank at Groveton for the $100 received for its account, and would form the basis of a civil suit by that bank against him. In a suit by Buffington against the I N Bank for $100 it would defeat his claim. So the $100 paid, as shown by the receipt, would have diminished the obligation of the Ft. Worth National Bank to the bank at Groveton. Likewise it would have shown a transfer of money from the Ft. Worth National Bank to the bank at Groveton, thus creating or increasing the obligation of the latter.

Judge Hurt, in reasoning on the subject in Fonville v. State, 17 Tex. App. 382, says:

“Let us suppose that Hamby has ascertained that appellant had only paid Middleton $1.35 instead of the $1.75, and had instituted suit for the 40 cents, will it be contended that if Middleton’s receipt was absolutely true, Hamby’s suit would not be defeated? Appellant only having paid Middleton $1.35, and receiving $1,-75 from Hamby, he was by this transaction placed, in conscience and law, under a pecuniary obligation to Hamby, to the amount of forty cents. And for this amount, though small indeed, Hamby had a right of action against appellant. Now suppose suit instituted; upon the trial, if indeed he had paid Middleton, as is stated in the receipt, $1.76, certainly the pecuniary obligation of him to Ham-by would have been defeated.”

Many courts and text-writers designate a receipt for money as one of the instruments which may be subject of indictment for forgery without averments explaining it. Wharton’s Crim. Law, § 887; People v. Munroe, 100 Cal. 664, 36 Pac. 326, 24 L. R. A. p. 33, 38 Am. St. Rep. 323, and note; Cyc. vol. 19, p. 1384.

Binding no errors, the judgment is affirmed.

On Motion for Rehearing.

The failure to embrace in the indictment averments explaining the words “I N Bank of Groveton” would not render the indictment subject to quashal on motion. If, on a trial of the case, there was an effort to show that the words meant anything other than that which they imported, viz. that the name of the hank intended was the I N Bank of Groveton, a variance would have been disclosed between the allegation and proof available on objection to the evidence. Beasley v. State, 39 Tex. Cr. R. 688, 47 S. W. 991.

The motion for rehearing is overruled.
      <&^>For oilier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    McLaren v. state.
    (No. 5115.)
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1919.
    On Motion for Rehearing, March 12, 1919.)
    1. Infants <&wkey;lS — Jurisdiction of Courts— Felonies Committed while Under Seventeen Years of Age.
    One who commits a felony while under 17 years of age can, under Code Cr. Proc. 1911, art. 1195 be tried in district court in same manner as one who was more than 17 years of age when offense was committed, if he is more than 17 when brought to trial.
    2. Infants &wkey;>18 — Jurisdiction of Courts.
    ¡Where defendant was tried in district court for a felony committed while he was under 17 years of age, and for that reason appellate court, under Code Cr. Proc. 1911, art. 1195, reversed and remanded case, district court on second trial, defendant having passed age of 17 years, properly refused to dismiss prosecution or send it to juvenile court, but correctly retained jurisdiction.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    J. C. McLaren was convicted of murder, and appeals.
    Affirmed.
    See, also, 199 S. W. 811.
    J. F. Taulbee, of Georgetown, for appellant.
    Wilcox & Graves, of Georgetown, and E. B. Hendricks, Asst. A tty. Gen., for the State.
   LATTIMORE, J.

This is the second appeal in this ease. The facts are fully stated in the opinion on the former appeal, and we omit discussion of them here.

But one question is presented by able counsel for appellant, before the court on this appeal, which, broadly stated, is whether one, who commits a felony while under 17 years of age, if he is more than 17 years of age when brought to trial, could properly be tried in the district courts in the same manner as one who was more than 17 years of age when the offense was committed.

The language of the entire Juvenile Act, embraced in title 17, C. C. P. of Texas, is that ordinarily used in speaking of a child. Those subject to such laws are called “children.” If violators of its provisions, they are called “delinquents,” and are committed to a “school,” where it is expressly provided they may not be “detained” after reaching the age of 21 years.

It could hardly be seriously contended that one who had committed a heinous crime, as, for instance, murder, while 15 or 16 years of age, and who was not apprehended or indicted until past 21, would, by reason of such lapse, go absolutely unwhipped of justice, unless the language of the law were such as that it was reasonably susceptible of no other construction than one which produced such result. And this is true whether such lapse resulted from an act of the accused or of another, for neither his resistance to or avoidance of prosecution, nor the state’s failure or refusal to prosecute, could add to- or take from the force of the law as written.

Article 1195, tit. 17, O. O. P., provides that when an indictment is returned against a person, he, or some other named person for him, may at any time before trial file a sworn statement in court, setting forth the age of such person as a juvenile. It is not provided nor hinted that the age when the offense was committed should be set forth in such application or thereafter inquired into. Said article further provides for a hearing before the court upon such application, and uses this language:

“And, if he be satisfied from the evidence that said juvenile is less than sixteen years of age, said judge shall * * * dismiss such prosecution,” etc.

—the plain inference being that if at such time it appear from such hearing that the accused is not then less than 17 years of age, the prosecution shall not be dismissed, but shall proceed as in other felony cases.

Said act further contains the following language:

“The age of the defendant shall not be admitted by the attorney representing the state, but shall be proved to the satisfaction of the court by full and sufficient evidence that the defendant is less than sixteen years of age, before the judgment of commitment to said institution shall be entered.”

It is too plain for cavil that the inquiry and commitment referred to have reference to the age of the accused when brought before the court, and not to the time of the commission of the offense.

Such being the law, we are called upon to decide whether the trial court in this case erred at its January term, 1918, when it found, correctly as admitted by appellant, that at that time appellant was not under 17 years of age, and in proceeding to try him for killing his father under the usual felony procedure in such cases. We hold that it did not. Counsel urges that his client should have been tried in the first instance in the juvenile courts, and that the district court erred in not dismissing such case upon the first hearing, and sending the prosecution to the juvenile court. This court agreed with this contention of counsel in its former opinion, but the action of the lower court in that first trial is not now before us for revision. That the said trial court then erred in not remanding the appellant for prosecution to the juvenile courts is no reason why he should not now be tried in a proper manner in a court which unquestionably has jurisdiction in this case. If, upon the hearing of the question of his age, on the trial from which this appeal is prosecuted, it was found by the court that he was then over 17 years of age, the court properly and correctly retained jurisdiction of the case, and properly proceeded to hear and determine same. It is not the province of this court to attempt to redress real or imaginary wrongs of defendants unless the same result from the failure to follow the law, in the instant case, and in the matter before the court. If appellant thinks the law is wrong, the Legislature is the tribunal to which he should appeal. If he thinks the punishment given in this case is not commensurate with his tender years, that is a matter that should be presented to the chief executive. Few cases of more deliberate, cold-blooded homicide are to be found in the books.

The judgment of the lower court is affirmed.

On Motion for.Rehearing.

This ease is again before us on appellant’s motion for rehearing, which presents but one question, viz. that the finding of the district court of Williamson county that the appellant was under 17 years of age in a former and different trial of appellant than the one from which this appeal is prosecuted ipso facto made all subsequent proceedings such as judgment, sentence, etc., absolutely void.

Appellant’s counsel base this contention apparently on the statement and assumption that because of this court’s decision on a former appeal of this case it is now the settled law of this state that article 1195, O. C. P., is mandatory, and that, therefore, when the court below made such finding of fact relative to the age of appellant in said case, that the application of the settled law was instantaneous, like the immediate action of an automatic brake, and that the wheels of justice in the felony trial in said court were legally and finally stopped by such application. If his interpretation of what is necessary to constitute settled law be correct, and obtained at the time of said former trial, then it is clear that under the then settled law the trial court had a complete right to find, not only that appellant was under 17 years of age at the time of his trial, but also to refuse to dismiss the felony prosecution pending against him, and, in the exercise of the court’s discretion, to proceed to try appellant therefor. We make this observation for the reason that in the last decisions rendered by this court interpreting said article 1195, befofe the said first trial of appellant, it had been held that the trial court was empowered to do just as the court below did in said cause at said time (see Davis v. State, 80 Tex. Or. R. 118, 188 S. W. 990; Townser v. State, 182 S. W. 1104), and it is apparent that if the court had acted otherwise than it did it would have been in direct conflict with such settled law. This court’s decision in the former appeal of this ease (199 S. W. 811), rightly interpreted, holds that in any case where a juvenile is charged with felony, and makes the statutory affidavit as to his age, that upon an ascertainment of that fact, as being under 17 at the time, would make it the duty of the court to remand such person to the juvenile court for trial. This court did not reverse and dismiss the. case when brought before it on said former hearing, as would probably have been the case if appellant had been held under a void judgment or sentence. We observe that a judgment of this court holding an indictment bad would not have the effect of making void all judgments of conviction theretofore had under similar indictments, which for reasons sufficient the court had held to be good. We state, further, the judgment of this court was declaratory of the law, and did not make the law.

An examination of articles 1195 and 1199, C. O. P., with a view of ascertaining what would have been the duty of the trial court, according to appellant’s contention, after the rendition of the former judgment of this court, discloses that if said trial court had proceeded, upon the receipt of the mandate of lilis' court, to tlien file complaint against appellant as a juvenile, as required by the provisions of article 1199, supra, it would have been confronted at the threshold of said proceeding with the fact that appellant was not under 17 years of age, and with the express mandate of article 1195,. that before a judgment of commitment could be entered committing appellant to the State Industrial School for Boys, it would have to be shown to the satisfaction of the court that he was then less than 17 years of age, and it is further emphasized in said article that he must actually then be less than 17 years of age, by- specifically providing that such fact shall not be admitted by state’s attorney, but must be “proved by full and sufficient evidence.” This is said in view of the fact that appellant’s age, as shown on said former appeal to this court, was more than 17 years when the judgment of reversal was here entered, and necessarily more than that when the mandate of this court reached the court below. The logic of the contention of appellant might result in a patricide of the most pronounced type going scot-free. We cannot agree with 'appellant’s contention. Had the court below, upon the receipt of the mandate of this court reversing this case upon a former appeal, proceeded by dismissal of the felony charge, and a hearing upon a complaint filed against appellant, charging him as a juvenile, and thus have attempted to do what appellant seems to contend should have been the proceeding, we think it clear that this could have resulted only in the trial court entering an order that appellant was not then a juvenile, and in such case, there being no question of jeopardy, it would have been the plain duty of the grand jury of Williamson county to reindict appellant for murder, and it would follow that, he being then clearly over the age of 17, the trial court, in the exercise of its proper jurisdiction, would have proceeded to try him on said charge as an ordinary felon.

The law will not countenance or require the doing of a useless thing; nor that its machinery of justice should perform extra labor where but one result could legally follow, and we hold that the court below did not err in not dismissing the case, and that it properly retained jurisdiction to hear and determine the same.

If the fallibility of human judgments and the difficulty in ascertaining in a given proceeding just what is the law as written results in an apparent hardship, and in confining the appellant in the penitentiary instead of the reform school, it is to be regretted from his standpoint, hut this court must follow that course, and pronounce that judgment which to it seems the only conclusion it can reach by trying to follow the law as it understands it to be and as interpreted heretofore by the decisions.

The motion for rehearing is accordingly overruled.
      (S^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes