author: HARPER, J.

text:
    JONES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Prostitution (§ 4) — Evidence — Reputation.
    On a trial for procuring a place for a woman in a house of prostitution, evidence that the house in question had the general reputation of being a house of prostitution was admissible.
    [Ed. Note. — Eor other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.]
    2. Prostitution (§ 3) — Venue oe Offense.
    An indictment, which, after alleging that in the county of W. accused did, etc., alleged that he did then and there procure a place as inmate for P. in a house of prostitution, sufficiently showed that the house was in' W. county, as “then and there” related back.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 3; Dec. Dig. § 3.].
    3. Indictment and Information (§ 110)— Pandering — Indictment.
    An indictment charging the offense of pandering in the language of the statute was sufficient.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. § 110.]
    4. Criminal Law (§ 1090) — Appeal—Reservation of Grounds of Review — Bill of Exceptions.
    The striking of a plea of former jeopardy could not be reviewed, where no bill of exceptions was reserved thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec.Dig. § 1090.]
    5. Criminal Law (§ 867) — Disagreement of J ury — Discharge .
    Under Code Cr. Proc. 1911, art. 759, providing that the court in its discretion may discharge the jury, where they have been kept together for such time as to render it altogether improbable that they can agree, where, on a trial for pandering lasting only from 9 a. m. to 4 p. m. the jury were kept together until 6 p. m. the following day, and then reported that they could not agree, the court did not abuse its discretion by discharging them without accused’s consent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2071-2078; Dee. Dig. § 867. ⅜
    6. Prostitution (§ 4*) — Pandering — Evidence.
    On a trial for procuring a place for a woman in a house of prostitution as an inmate, evidence that accused visited her at such house was admissible,
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.]
    7. Criminal Law (§ 1169) — Harmless Error —Admission of Evidence.
    On a trial for procuring a place for a woman as an inmate of a house of prostitution, the admission of evidence that accused, while visiting her at such house, cursed her for refusing to give him money was not reversible error where the jury assessed the minimum penalty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    8. Prostitution (§ 4) — Pandering — Evidence.
    Such evidence should, however, be excluded on proper objection.
    [Ed. Note. — For other cases, see Prostitution, Cent. Dig. § 4; Dec. Dig. § 4.]
    9. Criminal Law g 1120) — Pandering—Evidence.
    On a trial for procuring a place for a woman in a house of prostitution, the court did not err in refusing to require such woman and the proprietress of such house, who admitted that they were going under assumed names, to disclose their true names, unless such information could be of some useful purpose to accused, and hence a bill of exceptions which did not show why accused desired to know their true names presented nothing for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    10. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence.
    On a trial for pandering, an instruction, in response to an inquiry by the jury, that if accused, knowing the purpose for which- it was to be used, secured a place for a woman in a house of prostitution the offense would be complete, and it was proper for the jury to consider her request to go there as meaning the same in law as consent to go there, was on the weight of the evidence, as it virtually told the jury that she made a request, and that accused obtained a room on such request.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dee. Dig. §§ 763, 764.]
    11. Criminal Law (§ 507) — Instructions— Testimony of Accomplices.
    _ The provision of the statute against pandering that the female for whom a room in a house of prostitution is alleged to have been procured may testify for or against accused shows an intention not to bring such witnesses within the rule governing accomplices’ testimony, since, under the law, an accomplice cannot testify for a codefendant, and hence the court properly refused to charge that such female and the proprietor of the house of prostitution were accomplices.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 1082-1096; 507.] see Criminal Dec. Dig. §
    12. Criminal Law (§ 1156) — Appeal — Review — Misconduct of Jury.
    The action of the trial court on a motion for a new trial for misconduct of the jury is always given great weight on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1156.]
    13. Criminal Law (§ 857) — Misconduct of Jury — Reference to Accused’s Failure to Testify.
    Under Code Cr. Proc. 1911, art. 790, providing that the defendant in a criminal action may testify, but that his failure to testify shall not be taken as a circumstance against him, where, on a trial for pandering, accused’s failure to testify was referred to by the jurors in their deliberations on more than one occasion, one of them remarked that if he had gone on the stand and testified and shown that he ever worked they would not convict, and another stated that if he had anything good in his past record his attorney was too good a lawyer not to have shown that fact, a new trial should be granted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. § 857.]
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    E. J. Jones was convicted of pandering, and he appeals.
    Reversed and remanded.

      Cunningliam & Sewall, of Abilene, and Matins & Kay, of Wichita Falls, for appellant. O. 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

   HARPER, J.

Appellant was prosecuted and convicted oí pandering, in that he procured a place in a house of prostitution for one Lillian Powell, and his punishment assessed at five years’ confinement in the state penitentiary.

Florence Hughes in her testimony admitted that she was running a house of prostitution, and testified: “My name is Florence Hughes. I live at The Brick, in Wichita Falls, Tex. I have seen the defendant, E. J. Jones, several times. Lillian Powell rooms and boards with me. I suppose that Lillian Powell is a woman; she is a prostitute. The first time that I ever saw Lillian Powell was the night that Jones brought her to my house, tie phoned to the house and asked if I had a room for a girl, and one of the girls answered the phone and she turned around and asked me, and I said, ‘Yesand so in about 20 minutes he brought her down and told me that he was the party who phoned me for a room for a girl, and I gave her a room. Lillian Powell was with him at the time. I gave her a room; she has been in my house ever since. Jones has been there every day or every night until he was arrested. I have seen Jones go upstairs. I never saw him in her room, because I never go upstairs, only to my meals. I have seen Jones talk to Lillian Powell a great many times. On a couple of occasions I have heard him curse her—she was in my room one night and he came in there and bawled her out and took her upstairs. Another time she was standing at the end of the porch talking to some man who had stopped there and he came up in a machine and called her over. This happened when she was in my house. He called her to the automobile and cursed her, and asked her if he would never be able to teach her any sense. I never saw Lillian give Jones any money, but she made $92 the first week that she was in my house.”

Appellant offered no testimony, but, on cross-examination of Florence Hughes and Lillian Powell, proved that Lillian Powell paid her own rent for the room, and Lillian Powell testified that appellant secured the room for her at Florence Hughes’ house of prostitution at her request.

The state, before introducing Florence Hughes, proved by George Hawkins and Bob McFall that the residence of Florence Hughes had the general reputation of being a house of prostitution. As appellant was being prosecuted for procuring a place, as inmate of a house of prostitution, for Lillian Powell, this testimony was admissible, and the court did not err in so holding. Harkey v. State, 33 Tex. Cr. R. 100, 25 S. W. 291, 47 Am. St. Rep. 19; Sylvester v. State, 42 Tex. 496; Allen v. State, 15 Tex. App. 320.

Appellant filed a motion to quash the indictment on the grounds that the indictment did not allege that the house was situate in Wichita county. The indictment, after alleging that in the county of Wichita, state of Texas, appellant did, etc., says, “did then and there procure a place as inmate for Lillian Powell in a house of prostitution.” The words “then and there” related back and alleged that the cause was situate in Wichita county. De Los Santos v. State, 146 S. W. 919.

The other grounds are equally without merit, as the indictment charges the offense in the language of the statute.

Appellant also files a plea of former jeopardy, which, on motion of the state, was stricken from the record. No bill of exceptions was reserved to the action of the court in so doing, consequently the matter is not presented in a way we can review it. But, if we take the allegations of the plea that the trial was completed at 4 o’clock June 19th, and case submitted to the jury, that about 4 o’clock June 20th the jury reported to the court they could not agree, as appellant was unwilling to discharge them, the court refused to do so, and ordered the jury to retire and further consider the case. That thereafter about 6 o’clock the jury again reporting that it was impossible for them to agree, the court without the consent of appellant did discharge them. Every case of this character must be considered in the light of the record of that case. On this trial there were but four witnesses introduced, and in the first trial it is shown that the trial consumed only from 9> o’clock in the morning until 4 o’clock that same day, when the case was submitted to the jury. That they were kept together the remainder of that day, that night, and all the next day. Considering the small amount of evidence introduced, the issue or issues involved, we cannot say the court abused his discretion in the premises after they had twice reported they could not agree. Article 759, Code of Griminal Procedure.

The issue in this case was, Did appellant procure a place in a house of prostitution for Lillian Powell? She was permitted to testify as to all her relations with appellant. That he was her lover, and was her lover before they went to Wichita Falls. That she had bought and paid for an automobile which appellant took in his name; that she had given him a part of her earnings, mainly, as he claimed, to repair the automobile. This testimony was all admitted without objection, but when the state undertook to prove that the night before appellant was arrested he had demanded money of Lillian Powell, and, when, she refused to give it to him, she applied to Florence Hughes for protection on account of Jones’ conduct; that Jones cursed her, etc. Considering the issues in this case, whether or not appellant had procured this place for the woman, the fact that he visted her there each day would certainly be admissible on this issue. As to his conduct on these occasions, showing that he cursed her, if the jury had assessed more than the minimum penalty, we would feel inclined to reverse the case on that account. But as they assessed the minimum penalty, and it is an extremely doubtful question as to whether or not this was so entwined with other legitimate testimony as to render it admissible, it is not such error, if error it be, as to cause a reversal of the case. In addition to this, the bills merely state “that objection was made, and the court overruled the objections, to which appellant excepted”; no grounds of objection being stated in the bill. Wilkins v. State, 35 Tex. Cr. R. 525, 34 S. W. 627; Carter v. State, 37 Tex. Cr. R. 403, 35 S. W. 378; Miller v. State, 36 Tex. Cr. R. 47, 35 S. W. 391. However, on another trial that part of the testimony relating to him cursing and abusing her should be excluded, on proper objection.

The record discloses that Florence Hughes and Lillian Powell were going under those names and generally known by those names, and had been so known for some time. They frankly admitted these names were not their real names, and declined to state what their real names were. The bill shows that: “Counsel for the state objected, for the following reasons, viz., because same was immaterial and would tend to embarrass innocent families and would embarrass the witnesses, and the court sustained the objections so made by the state, and the court refused to require answers to such questions, the defendant excepted to said rulings and herewith tenders his bill of exceptions.” No grounds are stated why appellant objected to such ruling, and no reasons stated why appellant desired to know their real names, or in what way such information could be of any service to him. The bill is insufficient to bring anything before us for review. We can readily understand why the women did not desire to give their real names, and, unless some purpose would be subserved in requiring them to do so, there would not be error in so holding. If, however, the obtaining of their real names could have been of any useful purpose to the defendant—enable him to make his defense, or break down the case of the state, and these reasons had been stated to the court at the time—then the court should have required them to give their real names. But, as no reason is stated in the bill why this information was desired, and it would appear to be only idle curiosity, the court did not err in so ruling.

The next bill shows the jury propounded the following question to the court: “The charge reads: ‘With her consent.’ The evidence shows that the room was secured by her request. We, the jury, want to know if the word consent and request have the same meaning in his case”—signed by the foreman of the jury. The court in writing instructed the jury: “In answer to the above question, you are instructed by the court that the question of whether the room secured for the woman in the house of prostitution was with or without her consent; request that it' be secured for her is an immaterial question in the case. If the defendant, knowing the purpose for which it was to be used, secured a place for her in a house of prostitution, then the offense would be complete under the law. It is therefore proper for you to consider her request to go there as meaning the same in law as ‘consent to go there.’ ” The objection made is that this charge is upon the weight of the testimony. We think this ground is perhaps well taken. The concluding sentence, “It is therefore proper for you to consider her request to go there as meaning the same in law as consent to go there,” was a virtual instruction by the court to the jury that it was a fact proven by the testimony that she had made the request, and appellant obtained the room on such request by her.

Another ground states the court erred in not instructing the jury that Lillian Powell and Florence Hughes were accomplices. The facts would show that appellant procured the room at the request of Lillian Powell, and Florence Hughes let him have it, knowing the use it would be put to. Does the statute defining this offense, and stating who are competent witnesses, take these witnesses out of the general rule as to accomplices’ testimony as in gambling and other cases? We think so. Under the law of our state, an accomplice cannot testify for a codefendant, while in this law it is specifically provided that the wife of the person accused may testify, and the female for whom the accused is alleged to have procured a room in a house-of prostitution may “testify for or against the accused.” This clearly evidences the intention of the Legislature not to bring such witnesses within the rule governing accomplice testimony.

This disposes of all the grounds in the motion that need be discussed, except the one setting up the misconduct of the jury. The court heard the testimony and overruled the motion, and we always give great weight, to such action on the part of the court. In, this case the testimony is preserved in a bill filed in term time, and the question is properly before us. J. E. Lowrance testified that in the jury room the fact that defendant had-not testified was referred to on more than one-occasion. “The statement was made that if he had gone on the stand and testified that he had ever worked or had a job they would never agree to convict.” Mr. Burton testified that the fact that appellant did not testify was referred to in the jury room, and admitted he said: “If the man ever had anything good in his past record that I thought Lon Mathis was too good a lawyer not to have shown that fact on this trial, considering that lie was facing such character of a charge.” All the jurymen placed on the witness stand say that the fact was mentioned in the jury room about appellant not testifying. It is strange that, with the positive instructions given by the court that they must not refer to, allude to, nor consider, that fact, that jurymen will constantly violate such instruction. While we would not reverse a case for every incidental reference to the matter, when properly suppressed, but we are driven to the conclusion in this case that the matter was carried far beyond that. Article 790 of the Code of Criminal Procedure confers the right to testify, but in it is expressly provided that a failure to testify shall not be taken as a circumstance against him. It appears that in the jury room some one said if he had gone on the stand and testified and shown that he had ever worked they would not convict. This evoked the response from Mr. Burton that if appellant had anything good in his past record Lon Mathis was too good a lawyer not to have shown that fact. We believe under these circumstances a new trial should have been granted, and accordingly the case is reversed and the cause remanded.


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    MARTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Indictment and Information (§ 87) — Allegations — Time of Offense.
    Where the affidavit charging the obstruction of a street was made on the 14th of June and alleged that the offense was committed on that date, it was defective for not specifically alleging that it was committed before the complaint was made.
    (Ed. Note. — For other cases, see Indictment and Information, Cent.. Dig. §§ 244r-255; Dec. Dig. § 87.]
    2. Indictment and Information (§ 109*)— Obstruction of Streets — Allegations of Complaint.
    The complaint in a prosecution for violating the statute before its amendment, which prohibits the willful obstruction of a street in an incorporated • town, was defective for not alleging that the town at the time was an incorporated town.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 286-288; Dee. Dig. § 109.]
    3. Municipal Corporations (§ 700*) — Obstruction of Streets — Prosecutions—Admission of Evidence.
    In a prosecution for violating the statute prohibiting the obstruction of streets in an incorporated town, evidence that accused was advised by the mayor and others that he had a right to place the posts, which were the alleged obstruction, where he placed them after incorporation was voted out, was admissible on the question of willfulness.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1495, 1508; Dec. Dig. § 700.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Frank Martin was convicted of obstructing a public street, and appeals.
    Reversed and remanded.
    McMurray & Gettys, of Decatur, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

The complaint is attacked because it is not sufficient to charge that the offense was committed before making the complaint. It alleges the offense was committed on the 14th day of June. The affidavit is made on the 14th of June. We are of opinion that the attack on the complaint is well taken. It ought to have specifically alleged that, if the offense was committed on the 14th of June, it occurred prior to making the complaint.

There are a great many very interesting questions in the case. The complaint itself alleges that the street obstructed led by the public school building, running east and west through the town of Bridgeport, Tex. It is contended this complaint is not sufficient because it does not allege that Bridgeport at the time was an incorporated town. This proposition is well taken. The statute prohibits the willful obstruction of a street in an incorporated town. McClanahan v. State, 21 Tex. App. 429, 2 S. W. 813. This was a necessary allegation, if relying upon obstructing a street. Such was the statute' at the time. That statute has, however, been changed, but the amendment occurred subsequent to this offense, and therefore could not cover this transaction. Appellant presented this matter again in a special charge, which was refused by the court. That charge reads as follows: “The defendant asks the court to charge the jury: That if they find from the evidence beyond a reasonable doubt that defendant placed any obstruction in a passageway in the town of Bridgeport, and also find that said passageway was a street, and that Bridgeport was. unincorporated at the time said obstruction was so placed, they will find defendant not. guilty; or, if they have a reasonable doubt as to whether said passage was a public-road or street, they will find defendant not guilty.” This charge ought to have been given, and it was error on the part of the court to refuse it.

There are other interesting questions-raised on the charge and on the rejection of testimony bearing upon defendant’s willfulness, if there was any road or street obstructed. Testimony was offered but rejected going to show he was advised by the mayor and others that he had a right to place the posts where he did place them, after the incorporation was voted out. This testimony should have been admitted on the question of willfulness. So that, if there be another trial,- this evidence should be admitted. The court should also upon another trial Instruct tlae jury as contended by special instructions, which were refused, submitting the question of willfulness to the jury.

Eor the errors indicated, the judgment is reversed and the cause remanded.


text:
    BOWEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Criminal Law (§ 982)—-Sentence—Sus-pended Sentence.
    An accused, who elected to avail himself of the benefit of the suspended sentence law, is not entitled to a suspension of the sentence merely because the jury found that this was the first time he had been convicted of a felony, where their verdict did not recommend suspension.
    • [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    2. Criminal Law (§ 913*)—New Trial — Newly Discovered Evidence.
    In a prosecution for forgery, a contention that accused was under 16 years of age at the time of the commission of the alleged offense and was less than 17 when the indictment was found against him must be made on trial, and cannot be raised for the first time on the motion of new trial.
    [Ed. Note—Eor other cases, see Criminal Law, Cent. Dig. §§ 2137-2145; Dec. Dig. § 913.]
    3. Criminal Law (§ 1120*)—Appeal-Bills oe Exception.
    A bill of exceptions to the admission of evidence, which does not show the ground of objection stated or that an objection was duly made, presents no question for review.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. § 1120.]
    4. Criminal Law (§ 829)—Trial-Instruc-tions.
    The refusal of a requested charge is not error, where it is covered by the charges given.
    [Ed. Note.—Eor other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    5. Forgery (§ 28) — Indictment — Sufficiency. . ,
    . , An indictment for forgery, which merely set out the check which was drawn on the First National Bank and dated Mexia, Texas, is sufficient without allegations as to what first national bank it was drawn on for the check would have been a forgery, whatever bank may have been intended to be defrauded.
    [Ed. Note—For other cases, see Forgery, Cent. Dig. §§ 66-70, 74-76; Dec. Dig. § 28.]
    Appeal from District Court, Limestone County; H. B. Daviss, Judge.
    Z. T. Bowen was convicted of forgery, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of forgery, his punishment being assessed at two years confinement in the penitentiary.

The first bill of exceptions recites that defendant elected to avail himself of the benefit of the suspended sentence act of the 33d Legislature, and to this end filed a proper plea in writing, and that the jury found in his favor as to his previous reputation and the fact that he had not heretofore been convicted of a felony, but failed to recommend the suspension of the sentence. Under the. verdict of the jury, appellant was not entitled to a suspension of the judgment, as was determined in Roberts v. State, 158 S. W. 1003.

It is further alleged in the bill of exceptions that defendant would show to the court that at the date of the commission of the alleged offense he was under 16 years of age, and was less than 17 years of age when the indictment was found against him. This matter was not raised, as shown by the bill and the qualification of the judge, until after the conviction. This, in our judgment, came too late. He knew or ought to have known his age at the time he went to trial. Had he desired to take advantage of this matter, he could have done so as required by statute. The court qualifying the bill says that he did not believe the statement of appellant’s father, Mose Bowen, which is attached to the motion for a new trial, which shows that the Bible entry of appellant’s age shows him to have been born November 2S, 1895. This was the evidence set out in the motion for a new trial, and that the affiant had seen the entry made by another person; that he himself did not make the entry. If, as a matter of fact, appellant was under 17 years of age at the time of the commission of the offense, and that became an issue in the case, or he desired to make it an issue, or seek the benefit of it, he should have properly raised it. It comes too late after the trial, and in addition he filed his application under oath to obtain the benefit of the suspended sentence act of the 33d Legislature. We hold there is no merit in that question.

Another bill recites that, while the state’s witness Hight was testifying, he was asked the question whether or not the defendant presented for payment the alleged forged check at the window of the First National Bank of Mexia, Tex. Appellant objected, but does not state any ground of objection to the introduction of this evidence. This bill is not sufficient to present the matter for revision. There should have been some ground of objection stated or something brought to the attention of this court by which it could review this matter to ascertain whether or not it was in error.

Another bill recites that, while Murphy was testifying, he was, over objection of defendant, permitted to state that the defendant presented to the First National Bank of Mexia, Tex., the alleged forged cheek for payment. The bill recites that the court erred in overruling defendant’s objection and in permitting the witness David Murphy to so testify, but to this there is no ground of objection stated, and the court qualifies the bill by stating: “Refused because no objection was in fact made to Murphy’s statement, which was in writing, either when statement was being made or when the statement was read in course of the trial.” This bill, therefore, presents no error.

Another bill recites that, while Eight was testifying, he was by the state’s attorney asked the question: “Is the check now shown you (which was the alleged forged check) a check of the First National Bank of Mexia, Tex., and is it one of the checks furnished by said bank to its customers?” Appellant objected, which objection was overruled, and the witness was permitted to and did answer that the check shown him was a cheek issued by the First National Bank of Mexia, Tex., to its customers and furnished to its customers, and was a check of the First National Bank of mexia, Tex. The bill recites that the court erred in overruling his objection, and in permitting the witness to so testify, but states no ground or reason for his objection.

Another bill recites that the court erred in not giving his special requested instructions with reference to the law of circumstantial evidence. The bill recites further that the charge was presented prior to the reading by the court of its main charge. This bill is qualified as follows: “At the time this special charge was presented to me I rewrote thfe charge of the court, and gave paragraph No. 8 as representing this special charge. I then submitted same to counsel for defendant before it was read to the jury, and, as then understood, defendant’s counsel then agreed that said paragraph No. 8 properly presented the law of circumstantial evidence, and withdrew special charge No. 3. I respectfully submit that paragraph No. 8 correctly presents the law of circumstantial evidence as applied to this case, and I maintain that said special charge is upon the weight of the evidence.” This bill is accepted as qualified by the judge, and it would seem the charge given by the court is in correct form, and it may be a little doubtful as to whether the special charge requested by appellant is, but, be that as it may, the court’s qualification shows that he rewrote his charge in accordance with the requested instructions of appellant. The charge given by the court in this connection is the usual charge given, and such as we understand it has been approved by this court and the decisions generally as correctly presenting the law applicable to cases of circumstantial evidence.

Appellant presented a motion in arrest of judgment which was based upon the matters contained in the first bill of exceptions above noticed. It is unnecessary to review that matter.

Appellant in his motion for new trial contends that the verdict and judgment is contrary to the law in this, that the indictment is in law insufficient to support or form the basis for a conviction for forgery, of which defendant was convicted. This indictment sets out in full the check as follows:

“Mexia, Texas, - 191— No.
“The First National Bank
Pay to Dim Smith or bearer $15.25
fifteen dollars, 25/00 Cent-Dollars
“Charlie E. Garretson.”

It is contended that the indictment should have contained extrinsic averments to the effect that the First National Bank meant or was intended to mean the First National Bank of Mexia, Tex., or some other bank, and that there were no extrinsic averments or explanatory allegations which taken together with the other allegations would constitute said check, if true, such an instrument as would have created, increased, diminished, discharged, or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever. He further contends that the verdict and judgment is contrary to the law in that the check alleged to have been forged and introduced in evidence, and upon which the conviction was had, is not subject of forgery, and cannot be made the basis of conviction of forgery under the definition of that offense as defined by our laws. We are of the opinion that the criticisms are not legally correct. It was not necessary, as we understand it, that it should have been alleged in the indictment what first national bank was meant, or that the First National Bank of Mexia was the bank intended to be set out in the alleged forged instrument. It would have been forgery, whatever bank may have been intended to be defrauded. If the instrument is such as could defraud by its operation, then it would be sufficient from that viewpoint to constitute the offense of forgery, and, whether it was intended to represent the First National Bank of Mexia, or first national bank anywhere, would be sufficient, and the evidence shows it was written upon one of the blank checks of the First National Bank of Mexia. We are cited to no authorities to sustain appellant’s contention, and are of the opinion that, while it might have been more specific to have placed this matter in the indictment, it does not render the indictment vicious.

The judgment is affirmed.


text:
    HARRIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Criminad Law (§ 1144) — Appeal—Record-Evidence — Presumptions.
    In the absence of a statement of facts and bill of exceptions, it will be presumed that the court charged all the law applicable to the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774r-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    Lizzie Harris was convicted of crime, and she appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

Appellant was prosecuted and convicted of keeping a disorderly house. In the absence of a statement of facts and bills of exceptions, no question is presented we can review. We must presume that the court charged the law and all the law applicable to the evidence when no evidence is presented to us.

Affirmed.


author: PRENDERGAST, P. J.

text:
    SANDAVAL v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Criminal Law (§' 304) — Evidence—Judicial Notice — Size of Counties.
    The Court of Criminal Appeals takes judicial notice that in 1877 Nueces county was much larger than the ordinary Texas county.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 700-717, 2951½ ; Dec. Dig. § 304.]
    2. Intoxicating Liqttop.s (§ 41) — Local Option — Change of Districts.
    Where the prohibition law has been put in force in any subdivision of a county, that territory cannot be changed by the commissioners’ court so as to affect the law in any part thereof, and it continues in force until repealed by that same identical subdivision.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 35; Dec. Dig. § 41.]
    3. Intoxicating Liquors (§ 196) — Prosecution — Election.
    Acts 32d Leg. c. 140, carved Jim Wells county out of Nueces county. Part of the territory placed in the new county had previously been in justice precinct No. 3 of Nueces county, wherein the prohibition law had been put in effect in 1877. After the organization of the new county, a new election was held for precinct No. 1 of the new county, which was composed of part of the same territory formerly composing precinct No. 3 of Nueces county, and the prohibition law then in effect was adopted. Held, that precinct No. 1 of the new county might adopt prohibition, and, having done so, the present prohibition law making the sale of intoxicants a felony is in effect, and the state cannot elect to prosecute under the old election; the penalty having been changed.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Gent. Dig. § 215; Dec. Dig. § 196.]
    4. Intoxicating Liquors (§ 196) — Offenses —Election.
    Where a subdivision which had adopted the prohibition law holds a new election, and adopts the new law making a sale of intoxicants a felony, instead of a misdemeanor, the state cannot elect to proceed under the original election, and the county court has no jurisdiction of the prosecution.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. -Dig. § 215; Dec. Dig. § 196.]
    Appeal from Jim Wells County Court; W. R. Perkins, Judge.
    Mareard Sandaval was convicted of a misdemeanor, and he appeals.
    Reversed and dismissed.
    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

   PRENDERGAST, P. J.

This is an appeal from a misdemeanor conviction for a violation of the prohibition law against the sale of intoxicating liquors. The offense is alleged to have been committed on April 3, 1913. The case was tried in May, 1913.

There is but one question in the case necessary to decide. The record shows that in 1877, in justice precinct No. 3 of Nueces county, an election was held, carried, and the law put in force in that precinct prohibiting the sale of intoxicating liquors therein; that no such prohibition election since then has ever been held in that same territory. We judicially know that Nueces county, at that time, was a very large county, embracing a territory much greater than the ordinary size county in Texas. The Thirty-Second Legislature, by the act of March 25,1911, e. 140, p. 58, created and established Jim Wells county from a part of said Nueces county, and authorized and required the organization of that county. The act, as is usual, required the proper authorities to divide Jim Wells county into county commissioners’ precincts, which was done. Commissioners’ precinct No. 1 of Jim Wells county, as thus laid out and established, embraced only a part of what was originally said justice precinct of Nueces county. Thereafter, in October, 1912, under the proper orders of the commissioners’ court of Jim Wells county, an election was duly and legally held to determine whether the sale of intoxicating liquors should be prohibited in said commissioners’ precinct; in that election prohibition was carried, was so declared, and the law then properly put in force, and was in force continuously thereafter, and at the time this alleged offense was committed.

This prosecution was begun by complaint and information in the county court of Jim Wells county. Appellant contended that the offense, if committed, was a felony by reason of said last election, and not a. misdemeanor, and that the county court had no jurisdiction, hut that the district court only had jurisdiction, and that the offense must be prosecuted by indictment, and not by complaint and information.

The contention of the state was that, as said commissioners’ precinct of Jim Wells county embraced only a part of said justice precinct, and as no other election defeating prohibition had ever been held in the identical territory embracing said justice precinct, the prohibition law, as it existed in 1877, was still in force in that part of said justice precinct which was embraced in said commissioners’ precinct, and that, although an election had been held in said commissioners’ precinct since the prohibition law made the sale of intoxicating liquor a felony, the state could elect under which law it would prosecute the offense, and that both laws were in force in that part of justice precinct embraced in said commissioners’ precinct.

We are unable to find that this question has ever before been passed upon.

This court, in many decisions, has held that, where said prohibition law has been put in force in any given subdivision of a county, that territory cannot be changed by the commissioners’ court so as to affect the law in such territory, or any part of it, and that the identical territory that first put the law in force must repeal it, and until and unless the identical territory does so, the law as first put in force continues in force. We cite only some of these cases. Ex parte Elliott, 44 Tex. Cr. R. 575, 72 S. W. 837; Medford v. State, 45 Tex. Cr. R. 180, 74 S. W. 768; Woods v. State, 75 S. W. 37; Nelson v. State, 75 S. W. 502; Ex parte Fields, 86 S. W. 1022; Ex parte Cox, 28 Tex. App. 537, 13 S. W. 862; Aaron v. State, 34 Tex. Cr. R. 103, 29 S. W. 267; Ex parte Pollard, 51 Tex. Cr. R. 490, 103 S. W. 878.

This court has also, in many decisions, held that, when subsequent elections are held in the same territory, and result in prohibition again being carried and put in force, offenses thereafter committed in that same territory can be prosecuted under either election, and that the state has the right to choose under which election the offense shall be prosecuted. We cite only some of the cases on this point. Massie v. State, 52 Tex. Cr. R. 548, 107 S. W. 846; Holmes v. State, 55 Tex. Cr. R. 332, 116 S. W. 571; Johnson v. State, 53 Tex. Cr. R. 340, 109 S. W. 936; Wade v. State, 53 Tex. Cr. R. 186, 109 S. W. 191; Wade v. State, 52 Tex. Cr. R. 610, 108 S. W. 376; Wade v. State, 52 Tex. Cr. R. 621, 108 S. W. 677; Hood v. State, 52 Tex. Cr. R. 525, 107 S. W. 848. But in all cases so decided the penalty for a violation of said prohibition law was the same under each of said elections. However, in the case of Enriquez v. State, 60 Tex. Cr. R. 580, 132 S. W. 782, this court held that, when such subsequent election was had, and the law thereby put in force, making the sale a felony, when the previous election and law thereby put in force made it a misdemeanor, the state had no longer an election to prosecute under either election, but must prosecute under the latter, because the penalty had been changed.

It is true that, if no other election had been held in said justice precinct while it was a part of Nueces county, and no election had been held in that part of said justice precinct which was cut off and made a part of Jim Wells county after the latter county was properly organized, prosecutions under the law as put in force in 1877 in said justice precinct would still be in force, and a prosecution could be had in Jim Wells county, if the sale was made in that part of the justice precinct which had been made a part of Jim Wells county. Still we cannot believe the Legislature intended that Jim Wells county, after its organization, could not thereafter in any of its proper subdivisions hold an election, and put the law in force as it existed at the time of said election, even though the territory embraced therein should be only part of the territory embraced originally in said justice or any other part of the territory cut off from Nue-ces county. In other words, we are of the opinion that, when the Legislature created Jim Wells county, and it was properly organized, it could then hold a prohibition election in any part of its territory authorized by law, and if prohibition carried, and the penalty at the time was different from what it had theretofore been in that part of the original county, such election and law, with the increased penalty, would then go into effect, even though such territory embraced only a part of the same territory where the original election had been held; and that the law by such latter election then put in force would control and supersede such law as theretofore was put in force while the territory was part of the other county.

This leads to the conclusion that appellant’s contention that the alleged crime was a felony, and not a misdemeanor, and could be prosecuted by indictment only in the district court, and not by complaint and information in the county court, is correct, and results in the reversal and dismissal of this cause, which is hereby ordered.


text:
    Ex parte ELDRIDGE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Habeas Cokpus (§ 113) — Appeal—Right to Appeal.
    In habeas corpus, where the writ is denied, the Court of Criminal Appeals will not entertain an appeal unless the relator is in custody.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 192-115; Dec. Dig. § 113.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Application by A. Eldridge for a writ of habeas corpus. From a judgment remanding relator, he appeals.
    Appeal dismissed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   HARPER, J.

In this case appellant shows that he was in custody by virtue of a judgment of the corporation court of the city of Ft. Worth. He sued out a writ of habeas corpus before Hon. R. H. Buck, judge of the district court of the Forty-Eighth judicial district. Upon a hearing he was remanded, and gave notice of appeal to this court. The record discloses that he is not in custody, and has not been, since he gave notice of appeal to this court. It has been so often decided that this court will not entertain an appeal in habeas corpus cases, unless the relator is in custody of the officers, it seems unnecessary to cite authorities, but see Ex parte Parvin, 63 Tex. Cr. R. 512, 140 S. W. 439, and cases there cited.

Appeal dismissed.


text:
    LISENBEE v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Criminal Law (§§ 1092, 1099) — Appear — Statement of Facts.
    A statement of facts and bills of exception, not filed within the time permitted by law, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    Appeal from Shackelford County Court; J. A. King, Judge.
    J. M. Lisenbee was convicted of a misdemeanor, and he appeals.
    Affirmed.
    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

   HARPER, J.

Appellant was prosecuted and convicted of a misdemeanor, and his punishment assessed at a fine of $25.

The term of court at which appellant was tried adjourned September 27th. The statement of facts and bills of exception in this case were not filed until October 24th. As the statement of facts and bills of exception were not filed withia the time permitted by law, we cannot consider them. In the absence of a statement of facts and bills of exception, no error is presented, as the information charges an offense under the law, and the court submits this offense to the jury.

The judgment is affirmed.


text:
    Ex parte ILES.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Extradition (§ 39*) — Arrest—Appeal.
    Where extradition papers are regular on their face, and no error in arresting the relator for extradition is alleged in the record, the judgment remanding him to custody after the denial of habeas corpus will be affirmed on appeal.
    [Ed. Note. — For other cases, see Extradition, Cent. Dig. §§ 45, 46; Dec. Dig. § 39.*]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Ex parte application by E. E. lies for a writ of habeas corpus. From a judgment remanding relator' to custody, he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The relator was arrested under extradition proceedings. The Govern- or of Oregon made a requisition upon the Governor of Texas for the arrest and extradition of relator. The Governor of Texas issued his warrant, which was executed by the arrest of the relator. The evidence in the case shows that relator was charged in Clackamas county, Or., with riot; quite a number of other names being included in the indictment. There was a bench warrant Issued in that county for his arrest. He was found in Texas, and requisition was made upon our Governor, who honored it and issued his warrant of arrest.

On the trial before District Judge Crawford, he was remanded to custody of the sheriff of Dallas county, with instructions to turn him over to the extradition agent, Mr. Earnest T. Mass, of Oregon. Appeal was prosecuted from this order. There are no grounds of error alleged in the record. The papers seem to be regular, and relator identified as the party who is charged in the indictment, and, so far as we are able to see, there is no reason shown by the record why the judgment should not be affirmed.

It is ordered that the judgment be affirmed.


text:
    HARRIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Criminal Law (§ 823*) — General Charge —Requested Specific Charges.
    Although a charge by the court was too general, it was cured by the giving of special specific charges requested by defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.*]
    2. Homicide (§ 340*) — Instructions—Harmless Error.
    Where defendant was convicted of aggravated assault, he cannot complain of the submission of the issue of assault to murder, with which he was charged.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.*]
    3. Homicide (§ 90*) — “Deadly Weapon”— Definition.
    That “a deadly weapon is one which, from the manner used, is calculated or likely to produce death or serious bodily injury” is a correct and full definition.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 119; Dec. Dig. § 90.*
    For other definitions, see Words and Phrases, vol. 2, pp. 1853-1856; vol. 8, p. 7627.]
    4. Criminal Law (§ 949*) — Appeal—Bills of Exceptions — Review.
    The admission of evidence over objection, the refusal to admit certain evidence, and alleged improper argument of the county attorney, urged in a motion for new trial as grounds therefor, where there are no bills of exception and the grounds of the motion are not verified, cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2344; Dec. Dig. § 949.*]

      Appeal from District Court, Grayson County ; Jolm C. Wall, Special Judge.
    J. G. Harris was convicted of crime, and lie appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tlie State.
   DAVIDSON, J.

Appellant was convicted of aggravated assault under an indictment charging him with assault to murder; his punishment being assessed at a fine of $50 and 30 days’ imprisonment in the county jail.

He excepted to the charge of the court, first, because it was too general in submitting the issue of self-defense, and it did not submit to the jury the specific facts upon which defendant relied for his right of self-defense; second, to that portion of the charge where the court submits the issue of assault to murder ; third, for the reason that the charge nowhere gives to the jury the definition of what is a deadly weapon.

•[1] With reference to the first exception, if, as a matter of fact, the court’s charge was too indefinite, this was covered: by the special charges requested by appellant and given by the court. In those charges the court submits specifically the facts upon which defendant relied.

In regard to the second proposition, where the court submits the issue of assault to murder, it may be stated that the jury acquitted him of that offense.

As to the third (that is, that the court did not give the jury the definition of what it takes to constitute a deadly weapon), we find this in the court’s charge, which we think is sufficient: “A deadly weapon is one which, from the manner used, is calculated or likely to produce death or serious bodily injury.” Section 83 of Branch’s Crim. Law collates the authorities with reference to this question. The authorities support the statement in Mr. Branch’s work, which is as follows: “Charge is correct which states that a deadly weapon is one which, from the manner used, is calculated or likely to produce death or serious bodily injury.”

The motion for new trial sets out several grounds. The first complains that the county attorney used improper argument which was highly prejudicial to appellant. This is in no way verified; it is simply' stated as a ground of the motion. There was no bill of exceptions taken. The second ground of the' motion says the jury, after retiring to consider their verdict, discussed matters and things highly prejudicial to the appellant. There is nothing to verify this ground of the motion. The third ground alleges the court erred, in admitting the testimony of I. J. Moore, a character witness for the prosecution. ^There was no bill of exceptions reserved to this ruling. The fourth ground states that the court erred in not permitting defendant’s witness A. C. Worsham, a police officer in the city of Deni-son, to testify about having seen the prosecuting witness Nichols on certain occasions in the “red light” district of Denison, etc. This is not verified by bill of exceptions. The fifth ground states the court erred in not sustaining defendant’s objection to the testimony of M. Golden relative to having seen the defendant’s witness Minnear in a questionable part of the city of Denison at a late hour of the night. There was no bill of exceptions reserved to this matter.

The grounds of the motion are not stated fully, but this is not deemed necessary, inasmuch as none of them are verified so that they can be considered. These are all the matters presented by the record. None of them are in such condition that would justify a reversal of the judgment; therefore it is affirmed.


text:
    GREEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Homicide (§ 250) — Trial—Evidence—Sufficiency.
    In a prosecution for homicide, evidence held insufficient to support a conviction of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 515-517; Dec. Dig. § 250.]
    Appeal from District Court, Knox County; Jo A. P. Dickson, Judge.
    Bill Green was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    See, also, 154 S. W. 1003.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

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

This is the second appeal. The judgment on the former appeal was reversed, for reasons stated in the opinion, in March, 1913. The case arose in Baylor county and was transferred on change of venue to Knox county. The case is not materially different on the facts on this appeal from those on former appeal.

It may be stated briefly that the two youngsters, deceased being 19 and. defendant not quite 17, met at a party. The deceased had made some remarks about the appellant and a young lady. Appellant had expressed a desire to call the attention of deceased to the matter, and ask him about it, as he says, with the wish that he cease such talk. He was requested not to do so, and he said very well, that he would not, and paid no further attention to it. He mingled with the crowd at the party, among whom was deceased, and with him pleasantly. About 11 o’clock appellant carried a young lady, Miss Gar-nett, home in a buggy and returned to the party, but when he returned deceased called .appellant and told Mm lie wanted to talk with Mm. Some of the witnesses say he called appellant and Doss and said he wanted to talk with both of them. The three went outside of the yard to a well a short distance away. Upon reaching the well the deceased remarked to appellant that he understood that he (appellant) was going to whip him or had said he was going to whip him. This appellant denied, whereupon deceased called him a damned liar and struck him, knocking Mm down, and got on Mm and beat him with his fists, and, as one of the witnesses expressed it, “was tramping on his breast and stomach with his knees.” Appellant reached in his pocket, got out his knife, and cut deceased four times. Two of the wounds were trivial. One of the wounds was in his left chegt, two or three inches from the heart. Some of the witnesses say it went to the hollow. This seems to be a disputed fact, however. The fourth wound occurred in the thigh and penetrated the main artery at that point, not cutting it in two but slicing it downward. The doctor who attended the deceased 'testified the wound in the thigh produced death, and was the only fatal wound. Appellant testified that the deceased knocked him down, jumped on him, and beat him with his fists, and was tramping on his breast and stomach with Ms knees. That he reached in Ms pocket, got out his knife and opened it, and cut deceased, not with any view of killing him but to relieve himself from the assault and to get the deceased off of him. There is evidence showing appellant complained for several days from the soreness about his chest and stomach. The evidence further shows the deceased was much stronger and more athletic than appellant, weighing something like 160 to 175 pounds, and was 6 feet and 1 inch in height, while appellant was a small man, weighing about 120 pounds, and was not a match physically for deceased. This is the substance of the facts of the case omitting incidental matters, which have no, or at least very little, bearing upon the case.

Under this testimony the writer is of the opinion that the state has not made out a case that ought to incarcerate this appellant in the penitentiary. The jury gave him manslaughter, with two years as a punishment.

This is the only question presented for revision, and we are of opinion this judgment ought not to be affirmed, and it is therefore ordered to be reversed, and the cause remanded.


text:
    DALY v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1.Criminal Law (§ 1092) — Bill of Exceptions — Acceptance.
    Bills of exceptions which were accepted with an indorsement of the trial court’s refusal to approve them, without any attempt to prove up the bills, cannot he considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    2. Witnesses (§ 255) — Evidence—Refreshing Recollection.
    A witness who made a customary memorandum from a tab sheet of the time that the burglary was called to his attention as an officer could refer to such memorandum to refresh his recollection as to the date of the burglary.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. § 255.*]
    3. Criminal Law' (§ 1169) — Appeal—Harmless Error — Admission oe Evidence.
    The admission of evidence in a burglary case that the report of the burglary was kept in the city detective’s office, and made by the witness, and showed that the burglary was committed on a certain date, was not prejudicial to accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    4. Criminal Law (§ 1090) — Bill oe Exceptions — Statement op Facts — Necessity.
    In the absence of bill of exceptions or statement of facts showing that a certain witness testified,, and what her evidence was, the Court of Criminal Appeals cannot determine whether there was any prejudicial error in the examination of such witness or the admission of her evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Criminal Law (§ 1090) — Appeal—Statement op Facts.
    In the absence of a showing by the statement of facts or bill of exceptions that a certain person testified as a witness, alleged error in refusing to take a recess, in order to produce the court records showing a former conviction of such person for felony, cannot be reviewed by the Court of Criminal Appeals.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2808-2822,-2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    6. Witnesses (§ 78) — Competency—Show-ins.
    In order to make a witness incompetent on the ground that she had been convicted of a felony, and not pardoned, such facts should have been shown by the court records; but it could be shown by other evidence than such records, if it was merely sought to be shown for impeachment purposes.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 195-206; Dec. Dig. § 78.]
    Appeal from Criminal District Court, Dallas County; J. C. Muse, Jr., Special Judge.
    Ernest Daly was convicted of burglary, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

Appellant was convicted of breaMng into a private residence at mght; Ms punishment being assessed at five years’ confinement in the penitentiary.

The residence was alleged to he the property of Daisy Williams. Bills Nos. 1 and 5 to 10, inclusive, cannot be considered, because they were refused by the court. There was no attempt in any way to prove up the bills, but they were accepted with the in-dorsement of the trial court’s refusal to approve them; therefore they pass out of the case.

Bill No. 2 recites that, while the witness (Sunning was testifying he stated that the report of this burglary was kept in the city detective’s office, and was made by himself, and showed this burglary to have been committed on November 21, 1911. The bill further states that, upon cross-examination of this witness by the defendant, witness testified that he was testifying from a record which was made by the witness, from a tab sheet on which the first notation of these reports were noted and transferred every day to the record. At this juncture appellant objected to the testimony of this witness as to the date that this burglary was reported to the detective’s office, because the witness testified that he refreshed his memory, and was testifying, from a record made by the witness from a tab sheet, which record was not the original, hence not the best evidence. We are of opinion there is nothing in this matter. If the witness made a memorandum of the date of the burglary, or at least the time that it was called to his attention as an officer, as stated in the bill, he certainly could refer to this record as a means of refreshing his memory, if his mind was in any confusion about the dates. It would make no difference, so far as the objection here is concerned, that the record itself was not original, and the manner of testifying by the witness was not the best evidence. It was not used as evidence. It was only used, as we understand this bill, to refresh the memory of the witness as to when this matter came to his knowledge, the report of it. He made this record, as was customary to do under the circumstances, and referred to it only for the purpose of refreshing his memory. We think this testimony could not have been injurious to appellant, and under the bill was admissible.

Another bill recites that, while the witness Mittie Green was on the stand, defendant asked her the following questions: “Q. Did you ever live in Bonham, Texas? A. Yes. Q. Were you ever convicted of a felony?- A. Yes. Q. Have you ever been pardoned? A. No.” Whereupon the defendant moved the court that the testimony of this witness be excluded from the jury on the ground that she was incompetent to testify. Then the county attorney asked for an adjournment of court until pardon could be secured for the witness. The court did adjourn at that hour, which was 11:45 in the morning, until 1:30 in the evening. The bill recites that defendant understood at the time of adjournment that this witness was convicted of a felony and sentenced from Bonham, in Fannin county. The court was called at 1:30 o’clock, and the judge ruled that the testimony of the witness would not be excluded; whereupon the defendant requested that the witness be brought into court to complete her cross-examination. It developed that the witness was not present; whereupon the court, over appellant’s objection, allowed another witness to be placed on the stand and give her testimony, to which ruling of the court with reference to the witness Mittie Green, and in allowing the witness Harriott Watt to testify before the completion of the cross-examination of the witness Mittie Green, the defendant excepted. The bill further recites that the action of the court overruling the defendant’s objection to the admission of Mittie Green’s testimony was highly prejudicial, because the same resulted in her being later cross-examined in the presence of the jury as to all matters of which she had testified, which was calculated to, and did, so imbed her testimony in the minds of the jury that the same influenced them, to the hurt of this defendant, in arriving at their verdict; and the conduct of the court in causing to he placed upon the stand and examined the witness Harriott Watt between the cross-examination of the witness Mittie Green served to keep the defendant from properly cross-examining the witness Mittie Green, and to keep her testimony before the jury a much longer time than would have been the case had the witness Harriott Watt not been permitted to testify. If the witness Mittie Green at 1:30, when court was called, did not testify, the defendant could not complain that she did not testify. If she was an unpardoned convict, her testimony would not be admissible. This bill does not show what her testimony was, and only indirectly that she testified at all. As the bill is presented, the matter is so indefinite that we are unable to tell anything about it. The statement of facts fails to show that Mittie Green testified, and, except from the indirect averments of this bill, that she did testify, and was kept before the jury a longer time than she would otherwise have been but for the intervention of the witness Watt, we would not know that she was even a witness in the case, and the only evidence that shows to have been elicited from her has been already quoted, to wit: That she had lived in Bonham, had been convicted of a felony, and unpardoned. If she testified in the case, it may have been very beneficial to the defendant; but we are unable, in view of the statements of the bills of exception, to revise the matter, and as presented it shows no error. Her evidence, if she testified, is not in the record either by bill or in statement of facts.

Another bill shows that counsel moved the court to take a short recess, in order that the records of the district clerk showing former conviction of Mittie Green of a felony could be produced. This the court declined to do, stating that the process of the court I was available to secure the testimony. This fact was within the knowledge of counsel, and could have been produced. Without some showing with reference to this witness, if she testified in the case, not bringing the matter in review, this court could not decide the question.

As these bills are presented, no error is shown. If Mittie Oreen was an unpardon-ed felony convict, and testified in the case, this was error. She had no right to testify, because the statute renders her incompetent If it was sought to show her incompetency, it should have been done by the record. This was not done. If only to impeach her, she could have been made to testify to her conviction without producing the record. Except inferentially and indirectly, these bills fail to show that she did in fact testify, and the bills do not show that she testified to any fact for or against the defendant.

The judgment will be affirmed.


text:
    SIMS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Criminal Law (§ 1099) — Appeal—Agreed Statement of Eacts — Duty of Judge.
    Where the attorney for defendant and the county attorney agreed on a statement of facts and presented it to the county judge, the judge should approve it if correct, and, if not, prepare and file one, • and his failure to do so authorizes reversal of a conviction.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. INDICTMENt AND INFORMATION (§ 39) — Information — Signed by Whom.
    An information prepared and presented by an attorney who was not county attorney and who had not previously been appointed to prosecute the case, is not good, and a motion to quash should have been sustained.
    [Ed. Note. — Eor other cases, see Indictment and Information, Cent. Dig. § Í50; Dec. Dig. § 39.]
    3. Criminal Law (§ 1192) — Appeai>-Re-
    versal — Bad Information — Remedy.
    JYhere the complaint was valid, but the information was invalid because signed by an attorney not appointed to prosecute, on reversal of the case, the county attorney can file another information and proceed with the prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3231-3240, 3243; Dec. Dig. § 1192.]
    Appeal from Collingsworth County Court; R. H. Cocke, Jr., Judge.
    Sam Sims was convicted of crime, and he appeals.
    Reversed.
    A. M. Stewart, of Hollis, W. F. Ramsey and C. L. Black, both of Austin, and Tem-pleton & Templeton, of Wellington, 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.

   HARPER, J.

Appellant was prosecuted and convicted of an aggravated assault, and his punishment assessed at a fine of $200.

No statement of facts accompanies the record, consequently many of the questions presented we cannot review. The record before us discloses that the attorney for appellant and the county attorney agreed on a statement of facts, and presented same to the county judge for his approval, but that the judge refused to approve same, and that the judge has prepared and filed no statement of facts. When appellant had prepared a statement of facts, and same was agreed to and signed by the county attorney, and then presented it to the county judge, it became the duty of the judge to approve same if correct; if incorrect, to prepare and file a correct statement of facts. Having failed to do so, under the record in this case appellant is entitled to have his ease reversed because he has been deprived of a statement of facts.

Another matter in this record would present reversible error. It appears the complaint was sworn to before the county clerk. The complaint is therefore valid. But the information filed was filed by an attorney prosecuting the case, but not by the county attorney. The qualification of the bill by the court shows that this attorney was never appointed by the court to prosecute this case prior to the time the information was filed, therefore the motion to quash the information ought to have been sustained. The information must be presented by the county attorney, or, if there is no county attorney present in attendance on court, then by some attorney appointed by the court to' prosecute the case, reciting those facts. In this case it is made to appear that the information was prepared and presented by a lawyer who was not the county attorney of Collingsworth county, and who had not at that time been appointed by the court to prosecute the case.

The complaint being valid, the county-attorney, upon the reversal of this case, can, if he so desires, file another information in the case and proceed with the prosecution. The other questions presented we cannot intelligently review in the absence of a statement of facts, but on account of the above-errors, the judgment is reversed and the-cause remanded.


text:
    HALL v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Larceny (§ 57*) — Hog Theft — Evidence.
    Where defendant’s only defense was that he thought the hog which he killed was his own, and no complaint was made as to the court’s manner of submitting the question to the jury, a judgment of conviction is not “contrary to the law and evidence.”
    TEd. Note. — Eor other cases, see Larceny,. Cent. Dig. §§ 150, 151; Dec. Dig. § 57.*]
    Appeal from District Court, Cass County;. H. E. O’Neal, Judge.

      Hardy Hall was convicted of crime, and lie appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the theft of a hog, and his punishment assessed at two years’ confinement in the state penitentiary.

The only complaint in the motion is that the “judgment is contrary to the law and the evidence.” There is no question in the evidence but that appellant killed the hog, and carried it to his house. His defense that he took it, believing it to be his own, was submitted by the court to the jury in a way not complained of by appellant, and under such circumstances the judgment must be affirmed.

Affirmed.


text:
    DICKERSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    Intoxicating Liquors (§ 236) — Offenses— Evidence — Sufficiency.
    In a prosecution for violating the local option law, evidence helé sufficient to support a conviction.
    [Ed. Note. — Eor other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. § 236.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Bob Dickerson was convicted of violating the local option law, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.

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

   DAVIDSON, J.

This conviction was for violating the local option law. The state’s contention is that appellant sold the whisky to the alleged purchaser. Appellant’s theory is that he was the agent of the purchaser, and so bought it. There is no complaint of the charge; the only insistence being that the evidence does not support the conviction. After the parties talked with reference to getting the whisky, it seems to have been understood that appellant could do as the witnesses say “rustle some whisky.” The purchaser went with appellant a short distance to some stock pens, where he stopped, and appellant went to Jack Dickerson’s house, and came back directly with a bottle of whisky. The purchaser and another party had given appellant $1.50, with which to get the whisky. Appellant testified that he went down to Jack Dickerson’s and got the whisky out of a box under the bed, and laid the $1.-50 on the bed, where Mrs. Jack Dickerson could get it, and went away with the whisky. Mrs. Jack Dickerson says that this whisky had been there for some months, she having intended to use it in making camphor; that her husband had brought her some alcohol, which she used for that purpose, leaving the bottle of whisky in the box under the bed. She corroborates appellant to the effect that he came and got the whisky, and went away with it; but she contradicts him with reference to the money. She says he did not leave the money on the bed; if he did, she did not see it, nor know anything of it. If appellant got the whisky, as he says he got it, leaving the money for it, then he would be purchasing as the agent, and would not be the seller; but if he went to Jack Dickerson’s, got the whisky from under the bed, and did not leave the money, as Mrs. Jack Dickerson says he did not, then he got the whisky and the money both, and under that view of the testimony he would be guilty. The jury had the right to view the evidence from this standpoint, which they seemed to have done. This court would hardly be in position under this state of evidence to reverse the judgment. It is therefore ordered that it be affirmed.


text:
    MEADOR v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1914.)
    1. Criminal Law (§ 368*) — Malicious Mischief — Intent—Evidence—Res Gestas.
    Where defendant was charged with maliciously taking down a gate, it was prejudicial error not to allow witnesses to testify as to what was said by the boys doing the act to show that there was no intent to injure the property; it being res gestas.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. § 368.*]
    2. Fences (§ 28*) — Indictment—Issues.
    Where defendant was convicted under a count charging that he “broke, injured, and pulled down the fence of F. D.,” and the theory of the state was not that he took down a gate, but that he advised and encouraged the act, he would not be guilty if he had nothing to do with the taking down of the gate, although he did afterward help carry the gate a few feet and hide it.
    [Ed. Note. — Eor other cases, see Fences, Cent. Dig. §§ 62-67; Dee. Dig. § 28.*]
    Appeal from Erath. County Court; A. P. Young, Judge.
    Lester Meador was convicted of crime, and he appeals.
    Reversed.
    Cox & Daniel, of Stephenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was for malicious mischief. The particular allegation upon which the conviction occurred was that appellant broke, injured, and pulled down the fence of Frank Driskill. The evidence shows that five youngsters were out opossum hunting in February, and in their perambulations came to a gate set in a fence belonging to Driskill. The gate was open. One of the party, Roy Ramsey, made the remark, either to appellant or appellant and tlie others present, “Let us take the gate down.’’ Roy Ramsey himself testified that when they came to the gate of Driskill, “I said to Lester Meador, ‘Let us take down the gate and hide it,’ and I took hold of the gate and pulled it down, and Lester Meador took hold of the gate and helped me carry it away and hide it. * * * I took hold of the gate and lifted it off the thing it was setting on, and pulled it out of the ring and put it down.” He further testified after this occurred Lester Meador assisted him in carrying the gate some 20 dr 30 yards where they hid it. Prank Driskill testified he was acquainted with the boys out hunting that night; lived within a mile from where defendant lived with his mother, and all the boys lived in the immediate neighborhood. He recalled the incident of the gate being taken down in February; says the gate was in the lane, and “when I had stock in another pasture I kept the gate closed, but the gate stood open much of the time. When I found the gate some time afterward it was not injured in any way.” The defendant testified in his own behalf with reference to their hunting excursion and incidental matters. Coming to the immediate transaction, he says when they reached the gate Roy Ramsey said, “ ‘Let’s take down the gate and hide it and have some fun out of Prank Driskill,’ and Roy Ramsey took hold of the gate and lifted it and pulled it out of the ring around the post at the top, and laid it down, and then I took hold of the gate with him, and we took it and put it over the fence and went on. X did not tell Roy Ramsey to take the gate down, and did not take hold of the gate until after Roy Ramsey had taken the gate down. We took the gate down to have some fun out of Prank Driskill, the owner of the gate, and to play a Christmas trick upon Prank Dris-kill. We did not injure the gate in any way.” This is sufficient statement of the facts to bring in review the matters sought to be revised.

Appellant proposed to prove by other witnesses who were present the remarks made by Roy Ramsey at the time of taking the gate down, and why he took it down. This was excluded by the court. We are of the opinion this testimony was admissible. It was made at the time and in connection with Roy Ramsey’s movement in taking the gate down, and why he took it down. It is true the defendant in person was permitted to testify to these facts, but each of the other witnesses who were present and knew of the matter were as competent to testify to these res gestse matters as was the appellant. Where the intent to injure enters into or forms a part of the offense, any legitimate testimony that goes to show the intent or want of it is necessarily relevant, pertinent, and admissible. This testimony should have been admitted.

Another matter is presented, which we think shows error. Appellant not participating in taking the gate down, the state sought his conviction upon the theory that he was present aiding, encouraging, and advising Ramsey in taking the gate down. If appellant did not so encourage Ramsey, then he would not be guilty under these facts. To meet this appellant requested the court to instruct the jury that if he only assisted Ramsey in carrying away the gate he would not be guilty of breaking the fence, if Ramsey took down the gate before appellant had any connection with it. This question was presented by the testimony; in other words, the case seems to have occurred this way under the facts: That Ramsey took down the gate, and after he took it down appellant assisted him in carrying the gate off a few steps and hiding it. If Ramsey was guilty of taking down the gate, and appellant encouraged him, aided him, or advised him to do so, he would be as guilty as Ramsey, and if Ramsey is guilty, appellant would be. If he did not advise him to take down the gate, but only assisted him subsequently in hiding it, he would not be guilty of pulling down the gate. If the act was complete at the time appellant assisted in carrying the gate away and hiding it, the fact of hiding and his assisting in hiding it would not constitute injury to the fence or pulling it down, or breaking it. It is evident from the facts that the boys did not intend to injure the fence. Driskill so understood it from his testimony. They were his friends, and the fence was not injured, and the testimony indicates it was not the first time they had played these pranks upon Driskill, and, so far as Driskill’s evidence is concerned, without any objection on his part.

Por the errors indicated, the judgment is reversed and the cause remanded.


author: HENDRICKS, J.

text:
    LYLE & EIKER v. LONGAN et al.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 10, 1914.)
    Constitutional Law (§ 68) — Judicial Power — Political Questions.
    Courts cannot enjoin the canvass of an election by the commissioners’ court of a comity, held to determine whether poolrooms should be prohibited, since the canvass of elections is the exercise of a political power beyond judicial authority, and such rule is not changed by a showing that the effect of canvassing such election would affect the pecuniary rights of plaintiff.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 125-127; Dec. Dig. § 68.]
    Appeal from District Court, Donley County; J. N. Browning, Judge.
    Action for injunction by Lyle & Eiker against Pat Longan and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.

      II. B. White, of Clarendon, for appellants. W. T. Link, of Clarendon, for appellees.

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

   HENDRICKS, J.

The appellants instituted this suit in the trial court by petition for an injunction, for the purpose of restraining the commissioners’ court of Donley county from canvassing, declaring, and publishing the returns of an election held in that county by the qualified voters thereof, which election was for the purpose of determining whether or not the business of conducting pool halls would be prohibited; said election having been held under the recent act of the 33d Legislature (Senate Bill No. 220, c. 74, p. 136, of said Session Acts). The election resulted in favor of the prohibition of pool halls in Donley county. The district judge, upon the presentation of the petition, issued a temporary writ, and upon final hearing, upon the hearing of a general demurrer and the sustaining of same, the court dissolved the order theretofore granted, and the legality and constitutionality of the act in question is attacked here on several grounds.

The appellants, petitioners in the district court, succinctly but fully present in their petition that they were lawfully engaged in the business of conducting a pool hall for a livelihood and for pecuniary gain and profit, and present allegations that the declaration of the result of the election and the attempted enforcement of it (void as they declare) will imperil such rights, invoking the usual guaranties embodied in our own Constitution and the Constitution of the United States with reference to the deprivation of property without due process of law, and their privileges and immunities as citizens, and the untrammeled pursuit of a legal occupation afforded by the law of the land. We also gather from the brief that appellants attack the constitutionality of the act in question because “in violation of their contract rights with the state of Texas, county of Donley, and city of Clarendon, in that they had paid the same an annual occupation tax in the aggregate sum of $210, entitling them to pursue said occupation or business for one year, ending the 18th day of January, A. D. 1914,” and further upon the promise that the annual occupation tax receipt being property, and the legislative act complained of alleged to be void, depriving them of such specific property and destroying the same without due process of law, that the judiciary has the right on this ground to interfere with the effectuation of this legislation, where it is an invasion of specific property rights by an unlawful exercise of a tribunal carrying into effect an unlawful election.

In the recent case of the City of Dallas v. Electric Street Railway Co. (Sup.) 148 S. W. 293, it is disclosed that the street railway company attempted to enjoin the mayor, the board of commissioners and its secretary from canvassing the returns and declaring the result of an election held in that city, at which election an ordinance, under the iniative principle in the charter of said city, prescribing street railway fares and regulating the carriage of passengers and the operation of cars, had been submitted, voted upon, and carried by the-qualified voters of said city. The Supreme Court said in that case, with reference to the allegations of the petitioners: “It was ⅜ ⅞ ⅜ sufficiently alleged that the franchise and property rights of the plaintiff would be injuriously affected by the existence of the ordinance.” The pronouncement of the effect of an election is the exercise of political power, and all the courts, almost without exception, hold that the interference of this power, exercised in that manner, is beyond judicial authority. The doubt cast upon this proposition was the opinion of the Supreme Court, in the case of Harding v. Commissioners’ Court, 95 Tex. 175, 66 S. W. 44, where language was used, the inference from which . indicated that, where the effect of declaring an election would imperil a pecuniary right, the proposition that it was a political question might be devitalized and a judicial question, based upon protection of property, might arise. In the first case cited by us, supra, the Supreme Court, through Justice Phillips, definitely settles this question against the appellants, and says: “All that the court decided in that ease was that the failure of the petition to allege that the effect of declaring that the election there involved had carried would be to imperil a pecuniary right of the plaintiff was of itself sufficient to justify the refusal of the injunction against the declaration of the result of the election. It was not held that, had the petition contained such allegation, the injunction would have properly issued,” etc. Hence, in so far as our supreme authority is concerned, allegations of that character with reference to the impairment of property rights or pecuniary interests would not aid the injunction of an exercise of political power in effectuating an election.

On account of the federal question injected into the case, we have attempted an investigation of authorities by the Supreme Court of the United States along the lines indicated, and the only case we find enunciating a principle relative to the question is New Orleans Waterworks Co. v. New Orleans, where the waterworks company solicited the power of a court of equity to condemn as void ordinances of the city of New Orleans granting certain franchises and privileges to other persons on grounds inconsistent with petitioner’s rights and in violation of certain rights guaranteed by the federal Constitution. While the Supreme Court of the United States declares the bill in equity insufficient upon grounds inapplicable to the issues involved here, however, it further says: “A court of equity cannot properly interfere with, or in advance restrain, the discretion of a municipal body while it is in the exercise of powers that are legislative in their character,” and: “The courts will pass the line that separates judicial from legislative authority if, by any order or in any mode, they assume to control the discretion with which municipal assemblies are invested, when deliberating upon the adoption or rejection of ordinances proposed for their adoption. * * * ” Further saying: “If an ordinance be passed and is invalid, the jurisdiction of the courts may then be invoked for the protection of private rights that may be violated by its enforcement.” (The emphasis is ours.) New Orleans Waterworks Co. v. New Orleans, 164 U. S. 481,17 Sup. Ct. 165, 41 L. Ed. 524.

Upon the principles enunciated above, of course we do not, and it would be inappropriate if we did, pass upon the constitutionality of the act challenged by the appellants, and we think the action of the trial judge in sustaining the demurrers and dismissing the petition for injunction was correct, and it is affirmed.